Bill D. Herman

New York: Cambridge University
Press, 2013, 243 pp, £60.00, ISBN 978-1-107-01597-5

Cite as: N Sousa e Silva, “Book Review: The Fight Over Digital Rights: the Politics of Copyright and Technology”, (2014) 11:1 SCRIPTed 140

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DOI: 10.2966/scrip.110114.140

© Nuno Sousa e Silva 2014.

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This book
is not about the law, at least in the same way Trevor Hartley writes on European
Union law or Donald Chisum on patents. It is also not about policy, advocating for
how the law should be, although the author expresses his own opinions in this
regard. Indeed, from a lawyer’s perspective, it can be criticised for its failure
to discuss in depth the legal and philosophical aspects that are important to
the arguments being made (e.g. the section on "what copyright is
for",  is over simplistic and ignores the huge debate that revolves around
copyright justifications). However, that is not the purpose of the book. Its
aim is chiefly political and sociological (although a rigid separation can
never be seriously undertaken).

As its
subtitle aptly indicates, this is a book about the politics surrounding
copyright and technology, focusing on digital rights management (DRM), defined
as the use of technology "to build a heightened degree of copyright holder
control into digital media". The author draws upon several sources and methodologies
(legal, sociological, statistical, philosophical and historical) in order to
provide the reader with a vivid picture of how the political issues arising out
of copyright and technology are being debated, by whom and in which fora. The
perspective is limited to the situation in the United States.

with the rise of the digital technology allowing DRM, also arose the
possibility for ordinary citizens to become lobbyists and activists in a more
convenient and powerful way, bringing about "changes in policy
advocacy". That could be a different way of using Charles Clark’s famous saying
"the answer to the machine is in the machine". As the author
demonstrates, the debate has moved online, and so did the demonstrations. The
most spectacular being the anti-PROTECT-IP Act (PIPA) and Stop Online Piracy
Act (SOPA) black out on January 2012 and the surrounding protests worldwide (a
picture from which is on the cover of the book), that also managed to stop the Anti-Counterfeiting
Trade Agreement (ACTA) and galvanise the common citizen on copyright matters

This wide
debate is examined from the perspective of two sects: the Strong Copyright
coalition, as opposed to the Strong Fair Use group. The former benefits from
more resources and concentration, which has thus far translated into the expansion
of copyright upwards.[1]
The latter is "more densely populated by internet enthusiasts”, and less organised
but enjoys broader public sympathy. A third group, the "persuadable
technology" division, mainly technological companies such as ISPs and
members of the consumer electronics industry, play an important role and their
support is the most coveted

The book
is well organised, containing three parts, divided into twelve chapters. The
first part provides a good historical account of the technological challenges
to copyright and legal answers thereto, from 1987 to 2006, covering The Audio
Home Recording Act (Chapter 2), The Digital Millennium Copyright Act (DMCA) (Chapter
3), what the author calls the “DRMs interlude” (Chapter 4) and the Digital
Millennium Copyright Act Reform and the Broadcast Flag (Chapter 5). These
chapters take a political view on the changes in the law but aptly describe
what was happening and why.

DRM legal
protection originated as a compromise solution between the music industry and
the technology producers concerning digital audio tapes, though, as the author
explains the Audio Home Recording Act "was outdated quickly after it
became law". He later argues that "the copyright debate has not been ‘Silicon
Valley versus Hollywood’ so much as it has been Hollywood versus a diffuse
coalition of underfunded non-profits, public intellectuals, and technology writers"
for the former have only "sought to avoid the reach of copyright into
their core business models" without committing ideologically. However,
from the political story told here, one can see the huge importance of
corporate action, mainly from the persuadable technology division.

In fact,
the DMCA (which is analysed beyond its DRM aspects) was pushed forward by the
content industry, often relying on a false dichotomy and overstatements,
presenting several radical proposals to change copyright (most of which did not
find success in their entirety). The author rightly points out "the use of
international law-making bodies to advance one’s domestic agenda". This is
all the more striking when one is aware of the US courts’ and legislature’s
attitude towards international treaties in other instances. The solution
provided, regarding online service providers, was also the result of a
compromise. As wittily noted, "The kind of horse-trading between
industries that went into the DMCA is not exactly the most democratic way to
make law", which should be of particular concern taking into account the
very wide reach of this regulation. And, indeed it was. The author shows how
the radical proposals "scared opponents into coordinated action", the
blooming of the fair use coalition and its impact on the final text of the DMCA.

The rise
and fight against peer-to-peer technologies favoured non-governmental
organisations and scholars prominence in the copyright debate, all of which
contributed to heightened consideration and general public attention to
copyright matters ("from obscurity to a topic of conversation across the
country"). This was a period when DRMs were under dim light. Henceforth,
both coalitions presented proposals according to their views and were able to
block each other. So, in fact, nothing changed. The author presents this as a
"remarkable victory for a coalition that was, by all rights just getting

After the
political account of the debate, the second part of the book features statistical
and data analysis with representative graphs and tables. The author provides us
with a detailed account of how communication in Congress (Chapter 6), in print
(Chapter 7), and online (Chapter 8) has evolved, comparing his results in a
final chapter (Chapter 9).

Chapter 6
is based on documents produced in Congress classified as indicating a strong
copyright, strong fair use or neutral/mixed position. As expected, the results
in Congress mirror those passed into law, the prevalence of a strong copyright
position in the early 1990’s (73%) and its gradual shift to strong fair use
(46% strong fair use, 42% strong copyright, between 2003-2006). The deadlock
described in Chapter 5 is explained by these numbers. The author also analyses
the origin of these documents and its distribution by sectors of activity,
concluding that one of the factors for change must have been the growth in diversity
of views expressed at Congressional hearings, shifting from a biased to neutral
status quo.

the press was more challenging and the author limits himself to two major
newspapers and convincingly explains why these are good proxies for general
public opinion and policy advocacy. He also addresses, separately, the industry
press, which is more concerned with industry-specific issues, and is
consequently less representative. The (cheering) conclusion reached is that
"newspaper coverage has been mostly balanced", with the Strong Fair
Use coalition increasing coverage through time.

Chapter 8
is the pièce de résistance of the second part of the book. Here the
author undertakes an analysis of the debate online, employing complex
statistical analysis, which is comprehensively explained to the uninitiated, thus
allowing an understanding of the results achieved. These were not surprising: online
the fair use coalition prevails. The author submits that "the most
technologically knowledgeable in society are the most likely to have the
strongest opinion on copyright and their opinions are the most likely to be
pro-[Strong Fair Use]".

results are summarised and compared in Chapter 9, which might be very useful
for the reader in a hurry.

The third
and last part, entitled "The Present and Future of Digital Copyright and
Digital Advocacy", documents the decline of the DRM debate (Chapter 10),
the new strategies adopted by the Strong Copyright coalition and the massive uprising
against SOPA and PIPA (Chapter 11), concluding with a short reflection on the
future of the digital rights and the surrounding debates.

As is commonly
known to those aware of the wider copyright debates, the strategy to use DRMs
as a means to prevent and stop infringement failed miserably. As the author
notes, "the law against circumvention has the same problems as the law
against infringement". The reasons for this failure are explained and the consequent
backing away from DRMs is reported. The author then turns to international
treaties under negotiation, briefly describing ACTA, the Trans-Pacific
Partnership and the secrecy surrounding them, setting the stage for unrest
against the strengthening of copyright.

11 starts by outlining the notice and takedown procedure and its shortcomings
from the point of view of the strong copyright coalition, and the several
proposals this coalition brought forward. The seizing of domain names related
to copyright infringement, which began in 2010 (and is of dubious legality), is
considered in detail. SOPA and PIPA appeared in this context as proposing
radical measures including blocking access to websites, cutting access to
advertisers, preventing search engines from linking to these sites and the aforementioned
domain-name seizure. The outcome is not surprising – using the author’s words:
"The internet – already the bogeyman of the [Strong Copyright] coalition
for its capacity to facilitate infringement – became the means for mobilizing
millions of citizens who spoke out against SOPA and PIPA". Thus Herman
concludes that this copyright debate and movement is just one major (and probably
seminal example) of online advocacy that might become the rule in the future.
This presents particular challenges for those studying the future and the
author concludes by making some suggestions on how this could be addressed.

Overall, Herman
offers an original approach to a subject that is far from settled. Beyond being
very pleasant to read, it provides a different perspective on the copyright
debate outwith the law. The book is offers more on the sociological and
political phenomenon surrounding the debate, rather than a reiteration of legal
rules, principles and cases. It is less about the future of copyright and more
about the future of policy and advocacy in general.

One very
useful aspect of this book is the thorough description of the methodologies and
sources used. There is a website with additional resources and the author
expresses his availability and wish to receive any comments or suggestions, and
to answer any further queries.

Nuno Sousa e Silva

Master of Laws, LLM IP (MIPLC), Guest
Lecturer at UCP (Porto) and ISCAP, trainee-lawyer.

DOI: 10.2966/scrip.110114.140

Considering the IP chapter
of the Trans-Pacific Partnership leaked by Wikileaks a few months ago, this
tendency seems to subsist

Book Review: The Fight Over Digital Rights: the Politics of Copyright and Technology

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