Digital Public Domain Management

by Laurence Garfield

One of the underlying principles of copyright is that, after the term of copyright has expired, the work in question enters the public domain. A work in the public domain is free for anyone to access and use without restriction, because it is "unowned." The former copyright holder has no right or permission to in any way restrict the access, distribution, or use of the work in question after it has entered the public domain.

That system is a good one, in that it acknowledges that information has value to the public when it is unrestricted, even if its value as a pseudo-product to the copyright holder has diminished. However, it relies on a number of assumptions that have, in recent years, begun to change for both technical and political reasons. Copyright law must be amended, not to encourage those changes, but to ensure that the fundamental system and protections of copyright remain intact despite them.

The first issue is technological. New forms of creative work have come into existence in recent decades that have the unique property of having not one but two forms; an "editable" form and a "use" form. The best example of such a work is computer software, which is written and edited as source code, then compiled into a human-unreadable binary "use" form. In the majority of cases, the use form of such a work is effectively useless for creating derivative works. However, typically only the use form is distributed commercially when the work is still under copyright. The editable form is rarely made available. [see also Immortality Upon Death]

The other issue is more political than technological. In the past decade, more and more information has become available primarily or exclusively in digital form. Digital form offers a number of advantages for copyright holders over analog distribution mechanisms, among them reduced cost of distribution and the potential for non-linear features, such as the "special features" collections on many DVD movies. However, it is often argued that digital copies of works also make more feasible mass copyright violation, as duplicating and redistributing digital works is trivial compared to analog works.

Many companies have recently begun new practices to counteract the nature of digital works. Under the inaccurate but market-friendly names of "Digital Rights Management" (DRM) and "Trusted Computing," some copyright holding companies have begun to encrypt the use form of their works prior to distribution using a private-key system. The company then holds exclusive access over the decryption key, which it licenses as a trade secret to selected partners to build "closed box" decryption devices in order to access and play back the work so-encrypted. Those closed box decryption devices then have limited features, which do not allow the user to perform certain functions that would, in the eyes of the company holding access to the decryption key, be beneficial to copyright violation.

Many of these systems are in fact rather trivial, and in practice any private-key encryption mechanism will be broken sooner or later; history indicates that it generally happens sooner rather than later. Understanding that fact, such copyright holding companies pushed for and received a new law in the United States in 1998, known as the Digital Millennium Copyright Act (DMCA). The DMCA, among other things, makes it a federal felony to break such an encryption system to gain access to the work in a manner not authorized by the copyright holder. The purported intent is to make the illegal mass-distribution of copyrighted works difficult or impossible, and thus preserve the copyright holder's provisional artificial monopoly.

There are many problems with DRM and the DMCA, however. The DMCA creates for the first time the concept of "access rights," which have no fair use exemptions. Thus, a company or copyright holder may require a receiver of a copyrighted work to agree to certain terms to gain access to the work in the first place, terms that effectively restrict fair use, even though once the receiver has obtained access he technically would have said fair use rights. To gain access to the work by any other means, thus "breaking" the DRM encryption system, is a felony. [8]

As a non-digital example for clarification, suppose that a company chose to publish a paper book, but on every page included additional text in red transposed over the text of the book, making it unreadable. In order to read ("access") the work itself, the reader must use a strip of red cellophane that, when held over the page, blanks out the red words and makes the page readable. However, only the book publisher may authorize others to make or sell red cellophane strips, and in order to obtain a red cellophane strip the reader must contractually agree to, for instance, not read the book aloud to others. While it would work just as well to use a red highlighter on the paper, which would similarly "decrypt" the text on the page, that is considered circumventing the access control mechanism (the red overlay text), and is under the DMCA illegal.

Additionally, such measures do not address wide-scale copyright infringement, their purported goal. Mass illegal duplication and redistribution of the work does not, in fact, require decrypting it. Simply duplicating and redistributing the encrypted form is just as effective for a would-be copyright violator. (In the analogy above, that would be making a color photocopy of the book and then reselling the photocopied pages. The work was never decrypted, yet copyright is still being violated.)

There are other problems with such access-control mechanisms; they do not expire. All copyrighted works are intended to eventually enter the public domain. However, when the distributed form of a copyrighted work is encrypted, and the encryption mechanism is not public but only available via a contractual purchase, then the technical status of the work in the public domain is irrelevant; it is still not publicly available and accessible, even by those who received it while it was still protected under copyright.

Too, it must be understood that technological standards, given sufficient time, become a form of law themselves. Since all technological systems are at the whim of the designer of said system, it means that the designer of a technological system may in essence establish de facto laws independent of the legislative process. In most cases, the designers of a technological system are private parties, not the government. Thus, by creating an access control system for digital information, a copyright holder may in a sense create his own laws that override copyright law and its accompanying fair use rights. If those access control systems are given blanket-endorsement by the government, as the DMCA does, then copyright holders are given carte blanche to circumvent copyright law by making it illegal to access a given work, irrespective of the infringement or lack thereof in the intended use. [9]

We then run into two problems. First, DRM effectively results in restrictions to fair use, which is unacceptable. Second, it prevents a work from ever completely falling into the public domain. As the end goal of copyright is to enrich the public domain (by providing authors with a financial incentive to create more works that will eventually enter the public domain), DRM is then directly contradictory to the goal of copyright; that is, to promote the progress of science and the useful arts.

To preserve the integrity of the copyright system and the public domain, therefore, we must ensure that such "loopholes" created by digital technology cannot be exploited.

However, it must also be acknowledged and understood that encryption itself is not the problem. Encryption technology has a wide variety of valid, constructive uses that do not contradict the constitutional purpose of copyright, nor are in any way related to it, and those should not be in any way impeded.

As with other technologies, it is not encryption technology itself that is problematic but certain uses of it. Thus, to properly protect the constitutional mandate of copyright and the public domain, it is specific uses of encryption that should be explicitly restricted. Specifically,

It shall be illegal to use technological means, including encryption, to interfere with the ability of any individual who has legally received a copy of a copyrighted work to utilize that copy in accordance with the provisions of copyright law, including fair use.

Although not explicitly stated in the above, it still has the necessary effect of ensuring that a work, once its copyright term has expired, can easily enter the public domain, as there are no restrictions in place to keep it from doing so.

Although some may argue that such a restriction result in an increase in copyright violation, it must be recalled that decryption is not in fact necessary for copyright violation to occur. Such access control systems as described and banned above do not deter copyright violation, but merely create a new class of criminal offenses that cannot be justified under the Constitution's mandate to "promote the progress of science and the useful arts." [7]

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