Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain
2003; Duke University School of Law; Volume: 66; Issue: 1 Linguagem: Inglês
ISSN
1945-2322
Autores Tópico(s)Copyright and Intellectual Property
ResumoI INTRODUCTION A. The White Rabbit Alice Randall, an African-American woman, was ordered by a government official not to publish her criticism of the romanticization of the Old South, at least not in the words she wanted to use. The official was not one of the many in Congress and the Administration who share a romantic view of the Confederacy. It was a federal judge in Atlanta who told Randall that she could not write her critique in the words she wanted to use--a judge enforcing copyright law. Randall is the author of a book called The Wind Done Gone. (1) In it, she tells a story that takes off from Gone with the Wind (2) from the perspective of Scarlet O'Hara's mulatto half-sister. In 2001, more than fifty years after Margaret Mitchell died, and years after the original copyright for the book would have expired under the law in effect when Mitchell wrote it, a federal district judge ordered Randall's publisher not to publish The Wind Done Gone. The Court of Appeals then overturned the injunction as a prior restraint. (3) B. Off with His Head! Dmitry Sklyarov is a Russian programmer who faced the prospect of an American jail because he wrote software that enables people to read books that they are not allowed to read. Adobe Systems convinced the government to prosecute Sklyarov because he made it possible for people to read documents that Adobe had encrypted so that they could only be read with its eBook reader program. The Digital Millennium Copyright Act (DMCA) makes it a criminal offense to provide software that lets people read digitized books with equipment that is not licensed to decrypt them. (4) The DMCA does not exempt people who write software that readers can use to read books that they are perfectly privileged to read. It does not matter that the person who wants to read the book owns a copy of it. It does not matter that the person who wants to quote from a book or a DVD wants to do so in a manner that is permitted under copyright law, such as under the fair use doctrine. It does not even matter if the encrypted materials are in the public domain--like Alice in Wonderland. (5) Adobe wanted to demonstrate how useful its eBook reader would be to publishers who wanted to distribute their books digitally. It used a digital book that it could get cheaply--Alice in Wonderland. The original text was in the public domain. Alice had already been digitized and proofread by volunteers as part of Project Gutenberg. (6) All that Adobe needed to do was take this free text, wrap it in its digital code, and presto--Adobe had a cheap and effective demonstration of how its technology could help copyright owners. The cover sheet of the closed edition of Alice is immensely instructive. It explains to the readers that they may not give, lend, quote, or print out a copy of this public domain work. (7) C. What, Exactly, Is Your Problem? Edward Felten is a computer scientist at Princeton. As he was preparing to publish a paper on encryption, he received a threatening letter from the Recording Industry Association of America (RIAA), telling him that publication of the paper constituted a violation of the DMCA. The music industry had spent substantial sums developing encryption for digital music distribution. In order to test the system before it actually entrusted music with this wrapper, the industry issued a public challenge, inviting all cryptographers to try to break the code. Felten succeeded in doing so, but he did not continue to test his solutions because the industry required that, to continue testing, he sign a nondisclosure agreement. Felten is an academic, not a businessperson. He works to make knowledge public, not to keep it secret. He refused to sign the nondisclosure agreement and prepared to publish his findings. As he did so, he received the RIAA's threatening letter. In response, he asked a federal district court to declare that publication of his findings was not a violation of the DMCA. …
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