The Limits of Licensing

Richard J. Greenstone

        The progress of society relies on the availability of knowledge, and not just old, been-there-done-that knowledge, but upon cutting edge information. The explorer stands on the shoulders of his ancestors to see a bit farther ahead in the distance. The ancestor does not charge the explorer for that privilege but gladly makes his experience available to all so that progress marches forth. True, that knowledge is made available in different forms, with some paying dearly for it (in dollars, sometimes lives), while others gain it relatively free at places where the whole of society contributes to make the knowledge available at low cost–the public or university library.

        That is until now. The advancement of technology limits the spread of information: The Wall Street Journal recently

Clouds No. 1 by Richard Greenstone, 2007

Clouds No. 1
by Richard Greenstone, 2007

reported that electronic text books on dentistry self-destruct if the user does not continue to pay a licensing fee. Thomas E. Weber,Protecting Copyrights: How E-Books Will Be Like Parking Meters, Wall St. J., Sept. 11, 2000, at B1. Substantive practice guides published by well known legal publishers and issued on CD-ROM now also self-destruct–time bombed by the publisher–after a certain period of time, usually quarterly.

        Prohibitive licensing also takes other forms. Motion pictures on DVDs contain region codes and platform restrictions. After a certain number of plays, a DVD player locks in a particular region code thereby preventing a DVD purchased in Europe, for example, from playing on a U.S. located DVD player. So much for practicing French by watching a French-dubbed Jerry Lewis film. Or a DVD viewed on a computer platform plays only on Windows or Macintosh operating system platforms, but not a Unix platform machine.

        These examples illustrate how technology and overly restrictive licensing prevent the spread of culture (well, maybe not the Jerry Lewis film), information, and knowledge. Restrictive licensing should not be confused with an artist’s moral rights. Although Woody Allen may his films–like Manhattan–in the original anamorphic Panavision theatrical aspect ratio of 2.35 : 1, the artist generally does not dictate on what video tape recorder and television the work is to be viewed or whether the work be made unavailable after a set period of time. The auteur theory breaks down when confronting the reality of motion picture distribution: the movie studio/distributor owns the copyright, and determines, again, the platform on which viewed and other such licensing restrictions.

        Until recently, United States law recognized that societal progress depended upon the free flow of information. Article I, Section 8, Clause 8 of the United States Constitution explicitly states “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Emphasis added. The Copyright Act of 1976 (as originally enacted) limited the term of copyright to the lifetime of the author plus fifty years, or, in the case of a work made for hire, for a term of seventy-five years from the year of its first publication, or a term of one hundred years from the year of its creation, whichever expires first. 17 U.S.C. § 302. Section 107 provided a rational limitation on exclusive rights through fair use; Section 109(a) allowed the owner of a copy to sell or otherwise dispose of the possession of that copy–the first sale doctrine. These provisions encourage the dissemination and use of knowledge. Recently passed amendments to the Copyright Act, seemingly to preserve to authors their writings for extended periods of time or limit the use of authors’ work to a select, licensed few, actually inhibit the flow of information and knowledge. The beat goes on for certain authors who needed an extension in the term of copyright lest their works fall into the public domain. The Sonny Bono Copyright Term Extension Act, Pub. L. 105-298 (codified as amended in scattered sections of 17 U.S.C.) extended the terms alluded to above to 75, 95, and 125 years respectively. The Digital Millennium Copyright Act, Pub. L. 105-304 (codified as amended by adding new “Chapter 12–Copyright Protection and Management Systems), contains anti-circumvention provisions so that authors may control access to work protected by copyright. The DMCA does provide a study period where the Librarian of Congress in consultation with other political appointees may determine whether certain classes of copyrighted works are likely to be adversely affected by the anti-circumvention provisions to make noninfringing uses of the work under the Copyright Act. 17 U.S.C. § 1201 (a)(1)(B-D).

        Which brings us back to our opening dental example. The dental student with minimum funds may not be able to constantly renew the license. Will the provisions of 17 U.S.C. § (a)(1)(B-D) provide a hole through which a user can access what should be readily available knowledge, or will the DMCA anti-circumvention provisions become the root decay of fair use and the First Amendment upon which the free flow of information and knowledge relies for a solid foundation and protection?

        Many pundits in the cyberworld state that copyright is dead, done in by the ubiquity of and free flow of information. The demands of a content driven, information and intellectual property economy highlight the need for a strong copyright law. On the other hand, those who create and own copyright works must understand that while they should protect their intellectual efforts and be rewarded for their intellectual efforts, they must also accept the responsibility by not walling off content through the use of overly restrictive licenses, region codes, and anti-circumvention laws thereby preventing true scholarship and the advancement of human society and culture. The copyright monopoly offered by the Constitution and statutes presents the copyright owner with a quid pro quo–bear the responsibility of making the work available under fair use, first sale, and First Amendment condition in exchange for protection.

        Technology will battle technology. Just as mountains are meant to be climbed, and encrypted information to be cracked, technology which keeps content out of the hands of people will be made available by those using technology to make it available to all. It may be trite to say that information yearns to be free of its bonds, but just as secrets cannot be kept, or scientific advances secured behind closed doors or limited to one nation, licensors must recognize their responsibility to society by not keeping their products under such restrictions so as to prevent lawful use of the works by those not utilizing mainstream devices, or with the ability to pay a quarterly license fee.

        Over the next twelve months I will be writing a column on Internet (and by its very nature, technology) licensing for The Licensing Journal. From time to time I’ll refer back to this article with suggestions on how the licensor may benefit society by not incorporating zealous overly restrictive terms, but at the same time, benefit from those works.

This article first appeared in The Licensing Journal, January 2001.