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DMCA Architect Acknowledges Need For A New Approach

Friday March 23, 2007
McGill University hosted an interesting conference today on music and copyright reform. The conference consisted of two panels plus an afternoon of open dialogue and featured an interesting collection of speakers including Bruce Lehman, the architect of the WIPO Internet Treaties and the DMCA, Ann Chaitovitz of the USPTO, Terry Fisher of Harvard Law School, NDP Heritage critic Charlie Angus, famed music producer Sandy Pearlman, and myself. A video of the event has been posted in Windows format.

My participation focused on making the case against anti-circumvention legislation in Canada (it starts at about 54:30). I emphasized the dramatic difference between the Internet of 1997 and today, the harmful effects of the DMCA, the growing movement away from DRM, and the fact that the Canadian market has supported a range of online music services with faster digital music sales growth than either the U.S. or Europe but without anti-circumvention legislation.

The most interesting - and surprising - presentation came from Bruce Lehman, who now heads the International Intellectual Property Institute. Lehman explained the U.S. perspective in the early 1990s that led to the DMCA (ie. greater control though TPMs), yet when reflecting on the success of the DMCA acknowledged that "our Clinton administration policies didn't work out very well" and "our attempts at copyright control have not been successful" (presentation starts around 11:00). Moreover, Lehman says that we are entering the "post-copyright" era for music, suggesting that a new form of patronage will emerge with support coming from industries that require music (webcasters, satellite radio) and government funding. While he says that teens have lost respect for copyright, he lays much of the blame at the feet of the recording industry for their failure to adapt to the online marketplace in the mid-1990s.

In a later afternoon discussion, Lehman went further, urging Canada to think outside the box on future copyright reform. While emphasizing the need to adhere to international copyright law (ie. Berne), he suggested that Canada was well placed to experiment with new approaches. He was not impressed with Bill C-60, seemingly because he does not believe that it went far enough in reshaping digital copyright issues. Given ongoing pressure from the U.S., I'm skeptical about Canada's ability to chart a new course on copyright, yet if the architect of the DMCA is willing to admit that change is needed, then surely our elected officials should take notice.

--Michael Geist

I've read some stupidity before but this goes beyond the pale...

this is what we in the south (I don't really live in the south) call hypocrisy to the extreme and I will tell you why.

"our Clinton administration policies didn't work out very well" and "our attempts at copyright control have not been successful"

hey mr layman (yes I typed that correctly) you were the idiot that crafted this piece of crap (the dmca) obviously you didn't understand wtf you were getting into.

kinda makes me wonder why you forced it down our throats. could it have been maybe --- special interest money?


here's the fact pal. you were bought and paid for by a lobbying cartel. you gave them what they wanted. you didn't understand what you were getting into. Is there some reason you think they didn't know what they were asking for or were you just too busy lining your pockets with the cash they were throwing at you to care?

While he says that teens have lost respect for copyright, he lays much of the blame at the feet of the recording industry for their failure to adapt to the online marketplace in the mid-1990s.

again mr layman...

why should they adapt to anything? YOU gave them what they were asking for. there is no incentive for them to comply with free market systems when they get to set the rules. lawsuits, copyright abuse cary sheman's feminine looks.. none of this should come as a surprise. they asked for it and you gave it to them.

now you want to lay the blame at their feet. clearly, the blame is theirs but first we have to look at the people who empowered them. fact is bub, if you hadn't given them a green light they wouldn't have gone ahead.

Now you want Canada to think outside the box. Hmmm, this is what I'd like. I'd like for you to go away and shut the f up. that's right. leave and don't come back. you are an unqualified wanker. you clearly have someone else's interests in mind and we don't need you and those of your ilk in any sort of legislative capacity. not in this country, not in any other country. you had your 15 minutes and you sold it to the highest bidder. take your money and go away and let somebody else fix what you screwed up.

Lehman = complete moron.

Dumbest person in the copyright world, after Hilary Rosen. New word for the two of them:

Copysexuals.

Copyright Czar Threatens to "Destroy" Law Professor

A powerful foe of free speech on the Internet does not come from Nebraska or pander to the Christian Coalition. No, he's part of the White House crowd, and the Hollywood money elite loves him.

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The villain here is none other than Bill Clinton's favorite ex-copyright lobbyist, Bruce Lehman, whom the White House picked to head the National Information Infrastructure working group on intellectual property. Under the Lehman sway, the Administration's White Paper on IP gives copyright holders an unprecedented amount of control over their works. Ordinary citizens may find themselves clearly violating the law just because they email each other some electronic newspaper clips.

The White Paper itself isn't law, but is setting the stage for Draconian copyright legislation and for courts to resolve controversies in favor of copyright holders. The less material Joe Net User can directly quote or swap--or can obtain through Carnegie-style libraries online--the less free speech will be available to average citizens when they need to back up their arguments. Lawyers, librarians and non-comatose journalists have long been aware of these principles.

James Boyle, however, a law professor at American University who is an expert in intellectual property, has a new reason to worry about the Czar Lehman and the First Amendment. The Czar threatened to "destroy" Boyle, following the publication of an anti-White Paper piece in the Washington Times of Novemer 14.

What was the uppity professor's crime? Offering comments--on Czar Lehman's paper--that in an important way had been milder than criticism from scads of enraged Netfolk and law professors.

Of course Boyle couldn't help noting the obvious: "The document is dense and outrageously legalistic, denying any citizen but a member of the copyright bar an ability to comment on this crucial piece of information policy." Boyle wrote: "I am a law professor and I find it hard going."

What Boyle didn't say just then was that he was author of Shamans, Software, and Spleens: Law and Construction of the Information Society, which Harvard University Press planned to release in May 1996. While hypocritically claiming to fight for the information needs of the average American, the Clinton Administration had come up with arcana to challenge the decoding abilities of even top legal scholars. And this gobbledygook hell was none other than the master paper setting forth copyright policy. Indirectly Lehman's assignment had been to help determine how many ten of billions our schools and libraries would be spending from taxpayers' pockets on copyrighted works over the next few decades--and perhaps even whether free, Carnegie-style libraries could survive, period, if the costs ballooned too much in the digital age.

In the article of November 15, Boyle went on to say that news people had been asleep while Lehman and his colleagues pressed on. "The only groups whom journalists contacted were software publishers and the Recording Industry of America." All valid criticisms--as I know first-hand, having myself tried to rouse fellow writers out of their slumber.

Continuing, Boyle noted that "under its bland surface the White Paper is an astoundingly radical measure." Strong stuff? Of course, and that was just a sample.

So what was mild? Well, Boyle did his best not to question anyone's motives and to avoid a personal confrontation with Czar Lehman. He did not accuse the Czar and the White House of selling out to Hollywood and other copyright interests that had hired Lehman or donated handsome amounts of campaign cash.

"Money and power are always good explanations," Boyle charitably wrote, "but I am a Pollyannaish sort and I think that there are more credible reasons why some serious legislators and an administration nominally committed to universal access would buy this kind of nonsense." Rather he blamed the White Paper on too much zeal to protect property rights, and said that politicians and the press didn't grasp the full gravity of what was happening.

How much further could Boyle have gone to give Lehman, and in effect Bill Clinton, the benefit of the doubt? Just one educator and one librarian sat on the 37-member NII advisory council. Clearly, as I noted in my book NetWorld!, the White House had stacked the odds in favor of the copyright interests. A White House advisor admitted to me that the Administration wanted to serve "the stakeholders." Library patrons clearly weren't among them. While no quid pro quo was blinking in neon, it was fascinating how Bill Clinton's people could so brazenly shortchange libraries and education while appointing major political donors to the NII Advisory Council--biggies from such universities as CBS and Walt Disney, who, of course, had their gifts augmented with money from flunkies below.

Lehman himself hadn't picked members of the NII council. But he was acting on behalf of the same, Hollywoodcentric administration. And he himself had been a Clinton fund-raiser and, in the early '90s, had offered a questionable $10,000 loan to a D.C. council candidate, who, under pressure from the local elections authorities, later returned the money with interest. Why shouldn't Lehman's conduct be worthy of examination from his critics and the press?

Clearly, then, in being Pollyannaish, Boyle had made quite a stretch, for which the Czar should have bowed down three times a day in the direction of the American University's law school. So what happened? As reported by the Washington Times of Feb. 20, 1996, Bruce Lehman was in a health club when he confronted a colleague of the professor. Lehman vented his spleen against the November 14 article. The colleague passed the message on to Boyle, who, in turn, sent Lehman a letter that the newspaper somehow obtained and quoted.

Boyle wrote the Czar: "You…said you 'know a lot of people' and 'can hurt [Boyle] in ways he couldn't imagine,' that you would 'destroy [Boyle],' would 'get him,' that you would call the university' and 'stop him [from] getting tenure.' During this conversation you also told my colleague that you would 'rip [Boyle's] throat out' and 'chase [Boyle] to the ends of the earth.'" (As reported by the Times, neither Boyle nor Lehman would comment on the matter to the paper. That seemed in character for Lehman, who refused to answer my donations-related questions and others while I was researching NetWorld!.)

Lehman himself kept ignoring Boyle until the law professor complained to Commerce Secretary Ronald Brown. Then, in a letter that a Commerce spokesman later released to the Washington Times, the Czar wrote Boyle: "I regret that you apparently have an incorrect view of my reaction to your criticisms of [the White Paper]. However, regardless of how strongly I disagree with your views, I wish to assure you that I am in no way interested in personalizing a professional disagreement." At the same time Lehman did not deny the encounter at the health club. The Czar did say: "Unfortunately, some who disagree with the findings of the working group have chosen to level personal attacks at those responsible for the policy making process."

Oh? As if it weren't relevant that Lehman had worked for the copyright clients whom the White Paper's biases would help protect at the public's expense? Boyle had been preternaturally kind.

Responding to the Lehman reaction, the law professor said in a letter to the Times published on March 6:

"As the Times article noted, he did not deny making those statements. He did say that I 'apparently have an incorrect view of [his] reaction [my emphasis].' Presumably I should have seen the threat to have my tenure denied as a friendly piece of career counseling and the desire to rip my throat out as a kindly offer of a low-cost tracheotomy.

"To me the issue seems very simple. Mr. Lehman's spokesman calls [the controversy] a sideshow.' I disagree. The First Amendment is not a sideshow. The one thing government officials can't do is threaten their critics, particular if their threats have the purpose or effect of chilling speech. In Mr. Lehman's case, the principle has especial weight. The administration official responsible for the most far-reaching reforms of the information highway ought to be defending free speech, not threatening his critics in order to silence them.

"I believe that this incident should be investigated to see if it is part of a larger pattern. In this situation, however, the facts are clear and the result lamentable. Bullying tactics corrupt the policy process. You end up with self-censorship, sycophantic lobbyists, and bad law."
NOTE: I may adding to Update #6. Meanwhile let me note that it turns out the Post did run a small mention of the controversy on March 8. More or less echoing the Washington Times, the Post said: "When asked whether he made those threatening comments, Lehman would only respond through a spokesman that he 'is not interested in personalizing professional disagreements.'" - D.R., March 17, 1996

"Lehman had worked for the copyright clients whom the White Paper's biases would help protect at the public's expense."

This layman guy is a horrendous enemy of free speech.

"Bullying tactics corrupt the policy process. You end up with censorship, sycophantic lobbyists, and bad law."

And that's just what the damn DMCA turned out to be!
Thanks to this layman jerk and his cartel lackeys. . .
PLUS, the political blessing of the corrupt Clinton administration to boot.
While I'm at it, both Bill AND George W. have been some of the very worst presidents that Americans have had to put up with.
(BTW, how long has it been since we had good leadership in the White House?)

And this layman dork had the gall to call his own physical threats "professional disagreements".
Then again, what should one expect from a deceitful opportunist such as him?

Hey, Michael Geist, how much background information are you aware of about Lehman (such as the article posted by leflaw)? I ask this because the tone of what you wrote is WAY too soft on him!

One thing Lehman is right on the mark about: that the RIAA is to blame for exacerbating the situation.

There is good news in Lehman's confession of error. I would hope that after all this time has passed that Congressional staffers and SCOTUS associates would realize the bad science behind the lobbying efforts of the RIAA, Disney and Valenti.

I hope that it is apparent to all that the economy has been hampered. Even today, the Supreme Court agrees to mount yet another assault on pornography. Even today, the broadband penetration of the US is a pathetic Number 20, and falling, behind Taiwan, Japan, Sweden, the Phillipines and Korea, etc.

Now to Bruce Lehman. Lehman's motive was to enter the private sector, raise money and re-enter guv'ment serice and create a post of Copyright Czar.

The proper outcome of the copyright and DCMA reforms he instituted "should have" followed the peer-review, scientific outcry and shutdown that followed the Clipper Chip legislation that Al Gore championed.

BUT Michael Eisner owned Clinton lock, stock and testicles.

Two true stories:

(1) Lehman attempted to raise financing to buy BMI in 2003.

(2) Lehman had dinner with a certain Washington member of Future of Music and erupted in a purple inappropriate fury by saying that "(c-word) Pam Samuelson is married to a millionaire and is following me everywhere I go,and destroying my best-laid plans."

That is a great article you kept, Leflaw.

The entire history of the DMCA legislation is the basis of Jessica Lipman's book, Digital Copyright.

I would somewhat tone down the article's assertions that no one showed up for the debate. It's just that Congress gave lesser weight to the opinions of librarians, academics, arts administrators, engineers and computer scientists.

But I hope it is apparent to all now that show business lobbyists managed to hypnotize regulators and judges and convince them that "more is always better" when considering the strength of property rights.

To: the architect of the DMCA who admits it has failed

Every morning is the dawn of a new error.
(And some errors are worse than others;
yours was among them.)