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A Cold Look At Chilled Speech

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Can copyright protections go to far? http://www.wired.com/news/privacy/0,1848,47195,00.html A Cold Look at Chilled Speech By Mark Anderson 2:00 a.m. Oct. 3, 2001 PDT When he finished his manuscript on copyright protections in the digital age last Thanksgiving, Siva Vaidhyanathan knew some things would change before its Oct. 1 publication date. Then came a Tuesday in September. Questioning copyright policy may seem only a distraction with the World Trade Center a heap of rubble. But if issues such as freedom are truly at stake, what prouder freedom do Americans proclaim than that of free speech? His book, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity, presents a clear and historically based argument against the push to transform American intellectual property law into a new zone of zero tolerance. With Americans appearing to welcome Big Brother -- in some form -- if it means better protection against terrorism, Vaidhyanathan's book arrives at an interesting time. "It's hard to ask people to pay attention to the state of music in America right now," Vaidhyanathan said. "However, the larger issue is about the richness of our democratic culture." As more and more "speech" goes digital and as those digits get locked down with increasingly stronger clickwrap -- copyright and copy protection measures -- speech faces the very impediments the Constitution's framers took pains to avoid, Vaidhyanathan says. "It's very clear that reckless copyright enforcement can chill speech," he said. "The message of my book is that we've gone too far. There are ways in which the copyright system becomes an engine for democratic culture. But once you increase the protection to an absurd level, you end up having a negative effect on this process." One day before the attacks, all systems were go on the souped-up revision to the Digital Millennium Copyright Act -- a bill that proposed to outlaw any digital electronic device or PC that did not have copy protection hardwired into it. After the attacks, a shift in priorities came that leaves the "Security Systems Standard & Certification Act" (SSSCA) in limbo. Communications Daily now rates the chances that the SSSCA will even show its face on Capitol Hill anytime this session as "unlikely." That suits Vaidhyanathan just fine. "The bill as written is so sweeping that it would outlaw Linux -- or any sort of open-source activity," he said. "It would require us to fundamentally change the nature of the personal computer. "It seems like a really short-sighted policy proposal, and I can't imagine that the personal computer industry is going to stand by and let this happen." Another development that appeared too late to make the book was the U.S. Supreme Court's decision on New York Times v. Tasini, a copyright case that recognized print journalists' right to compensation when their work is republished on the Web. Vaidhyanathan was "agnostic" about the ruling, especially concerning Justice Ruth Bader Ginsburg's majority opinion. "I really didn't like the fundamentalist tone of Justice Ginsburg's opinion," he said. "She dismissed any appeal to a greater public good in matters of copyright and she made it seem that copyright is only a matter of private -- not public -- interest." On the other hand, Vaidhyanathan hopes the tone set in Justice John Paul Stevens' dissent can carry forward into future rulings -- and laws. "Justice Stevens actually wrote one of the most historically informed, nuanced and reasonable opinions I have ever read about copyright," Vaidhyanathan said. "He basically said that copyright is for the public, and we have to take the effects of our decisions into account. It can't just be about the interests of the copyright owners."
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