The Public Good: Fred Benenson Explains the Rights and Wrongs of Copyright

Fred Benenson, currently of Kickstarter, presented the history and current state of copyright law to Evan Korth’s Computers & Society class at NYU. I was lucky to be allowed to sit in.

Prof. Korth noted that Benenson started the Free Culture chapter at NYU. After college and an ITP masters degree, Benenson joined Creative Commons.

“Copyright law is a balancing act,” Benenson said. “It balances fair use and the rights of the public with the private rights granted to copyright holders.”

Fair use

Fair use, enshrined in the 1976 copyright act, is a “fuzzy test,” Benenson said. Fair use is allowed when users of a work transform it.

Fair use consists of four tests: whether the use transforms the work, whether the work was published or not, the depth of the use, and its effect on potential markets for the original work.

“Judges have to make aesthetic decisions,” Benenson said. When Andy Warhol painted Campbell’s soup cans, the company was thrilled. Had he been working today, he might have been sued, and then a judge would have had to decide whether or not his paintings of soup cans were art. He might not win such a case today.

For citations, you’re allowed to cite a newspaper article but not to reprint it.

As for the potential market of a copyrighted work, Benenson cited the case of the Harry Potter Lexicon. As a fan website, it was legal. In fact, it still exists. However, when the site tried to print a book, J.K Rowling sued and won on the basis that the lexicon was a market that Rowling could wish to enter in the future.


College students are keenly aware of the content industry’s fight against copying, as it often involves suing college students and even colleges. They also know that the content industry routinely lies.

Many don’t know, however, that these legal fights date back to the invention of the VCR in the 1980s. Sony fought a long battle for fair use when it produced the Betamax device. Jack Valenti (another liar) of the RIAA claimed, “I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

“Mister Rogers argued in favor of the VCR and for time shifting,” noted Joly MacFie, who was recording the session. Expect to be able to view it on YouTube soon.

Ten years later, Beneson noted, the movie industry depended on videotape sales for its very survival. The irony of many of these copyright fights is that those that embrace new technology — instead of fighting it — often profit.

For example, the band Nine Inch Nails offered a recent album consisting of unpublished work under a creative commons license. “Reznor uploaded it himself to Pirate Bay,” said Benenson.

Perhaps because it was so widely available so fast, the album sold $1.6 million in its first week and topped the list of best selling mp3 files on — even though it was widely available for free.

DRM and the DMCA

But music companies chose to fight technology instead of embracing it. They invented DRM, for digital rights management. In many cases, DRM takes away a right that customers have in the analog world. Used book stores exist because a customer has the right, under the first sale doctrine, to resell what they have bought, Benenson said.

Purchasers of software, however, do not have such a right. They sign it away when the agreement they click on in order to use the software. “I believe that it will eventually all be on the web and will be tied to your e-mail account,” said Benenson.

Meanwhile, however, there’s DRM, which imposes real costs on users. DRM is protected by the 1998 Digital Millenium Copyright Act. This Clinton adminstration law contains Section 1201, which prohibits not only the making of DMCA circumvention but even prohibits speech: it forbids people from discussing how to get around DMCA.

Benenson said that as an early Linux user, he wanted to play movies on his PC, and was pleased when the 2600 Magazine printed code that would enable people to watch movies on their Linux PCs. The Motion Picture Association of America (MPAA), however, saw this as a copying device, rather than an attempt to consume content. They sued 2600 magazine and the teenager who had written the code and they won.

Although he loathes that decision, both because it inhibits free speech and because it prevents the development of DRM that works (most DRM is deeply flawed) and that does not have significant externalities (some DRM installs viruses), Beneson said that the DMCA is not all bad.

He pointed to the story of how it saved YouTube from Viacom.

Viacom sued YouTube but YouTube was complying with the DMCA. Every time that YouTube received a notice from Viacom saying that content on YouTube violated Viacom’s copyright, YouTube took it down. Viacom’s case was hurt by the fact that Viacom’s content arm valued YouTube so much that they were uploading some of the content that Viacom’s lawyers were then complaining about. The business arm understood that the new technology was a valuable marketing tool; the lawyers were fighting the new technology.

Today, there is the top secret ACTA treaty, largely written by lobbyists. The fear is: “ACTA is being worked on behind closed doors, in a totally undemocratic fashion. What we’ve seen so far is very worrying though. It’s clearly been put together by people who don’t know or care how the internet works. Not only that, but it means that you can be punished for a newly created crime without any evidence that you’ve committed it. Just an accusation from an industry lawyer is enough.”

The Creative Commons solution

Benenson said that the lighter copyright regime developed by Creative Commons can deliver the solution to many of the problems with existing copyright law. CC allows people to grant specific rights to the content they create in four licenses that can be mixed together: Attribution, Share Alike, Non Commercial, and (the most restrictive) No Derivative Works.

Benenson said that these licenses were upheld in court this year in the long (over 400 filing) case called Jacobsen v. Katzer. An appeals court upheld the creative commons license, reversing the decision of a lower court that had said that creative commons licenses had no standing.

The Kickstarter solution

Benenson is still extremely enthusiastic about Creative Commons, to the point where he sometimes forgets he no longer works there (“I, um, they, I no longer work there …”). Benenson now works for Kickstarter. He says that he would not have recognized what Kickstarter was doing had he not read an important paper by Bruce Schneier and John Kelsey called The Street Performer Protocol.

“We introduce the Street Performer Protocol, an electronic-commerce mechanism to facilitate the private financing of public works. Using this protocol, people would place donations in escrow, to be released to an author in the event that the promised work be put in the public domain. This protocol has the potential to fund alternative or marginal works,” the authors of the paper write.

“At Kickstarter, we believe that good ideads, communicated well, will travel,” Beneson said.

Those with the ideas have to give the funders something in return for the cash. For example, a project called Musopen, which is recording classical music and releasing it on a creative commons license, will send music CDs to anyone who gives $25.

This delivers clear benefits. There is no longer a large corporation recouping a massive investment through copyright monopolies and lawsuits. Instead, the public is pre-paying for the projects and nobody except the creator of the work and the public benefit from the work itself.

Copyright laws were promulgated at the foundation of the United States of America in order to encourage the publication of information. Today, they are too often used to prevent speech, publication, and innovation. In fact, Benenson says, most uses of content in the digital world are potentially infringing. You may want to watch a DVD on your Linux PC, but if you can do that, you can also copy the DVD.

Today, innovators who care about the dissemination of information are finding new ways to limit and change copyright laws — for the public good.

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