Copyrights are designed to provide some form of protection against unauthorized use of original informational materials. The rapid shift of information production and distribution to electronic form, with its corresponding ease of copying, naturally makes copyright-dependent industries nervous. Much talk in the news and on the net these days is about the future of copyright law, a law developed in an age of print and now perhaps too tied to that medium to have ready application to today’s information technology.
The fate of copyright may seem in doubt to some, but copyright has a long durable history. It has survived countless technological changes over nearly two centuries, including the advent of photography, the phonograph, player pianos, motion pictures, audiotapes and cassettes, and computer programs-and it’s still going strong. From this historical perspective, then, one might paraphrase Mark Twain by concluding that reports of copyright’s death are greatly exaggerated.
Neither to expect that copyright will survive the new information technologies is not to expect that it will be unchanged, nor that those industries publishing, music, computer software, etc. that depend on copyright law will remain unchanged. To the contrary, pressure for change will build on both industry practice and copyright doctrine to sharply intersect in several areas. One significant area is that of copyright preemption of state contract law. For a combination of reasons, we can expect to se considerable emphasis in litigation on the preemption doctrine in the future.
Copyright owners have a variety of rights under the copyright act, including the rights of reproduction, and the rights of public distribution, performance, and display. For convenience, let the term “copying” serve as a surrogate for all of these various rights.
Copyright owners need a certain amount of protection against copying in order to make a profit at a given level and scale of business. “Protection” means an assurance that no more than some amount of copying of their works will take place once those works are released to others. Protection does not have to be, absolute. That is, once a work of authorship is released to the public, as a practical matter some uncontrolled copying is possible and even likely. But without some practical, predictable limits on copying, copyright owners will not be willing to release commercial materials to the public in any substantial volume.
Those who are steeped in copyright law will naturally and almost automatically think of those predictable limits as stemming from copyright law. Protection against copying does not depend solely on copyright’s legal restrictions however. Those restrictions are but one of four forms of protection. For example, the publishers of Rolling Stone magazine, with it’s glossy photographs and typeset text, do not need to worry much about their market being eaten away by photocopy machines-photocopies of Rolling Stone are just too inferior to the original to be competitive with it. This would remain true even if the cost of photocopy machines dropped low enough that every home had one. It would remain true even in the absence of a copyright law because for colorful, glossy magazines, the inferior quality of photocopies alone will ensure that copying would be at a minimum. To be sure, photocopying is only one technology for reproduction. Much higher quality reproduction is possible, using the same techniques used by magazines themselves-typesetting, etc. But use of these high quality-printing techniques raises the cost of copying so high that it is cheaper to buy an original.
Even when magazines move today to the on-line world, they have little to fear of serious erosion in their paper subscription sales. For example, such magazines as Time, Spin, and Home and Garden can be browsed online. The slowness of browsing, the slowness of downloading the graphic images and the fact that many illustrations are not available, however, means that currently there is little competition between the computerized and the print versions of such periodicals.
On the other hand, if the state of the photocopy art were to advance so that every home had a machine that could make a perfect copy of a magazine, then the publishers of any number of magazines and similar works would have a lot to worry about. In particular, they would have to look beyond the state of the copying art to achieve the limits on copying that are necessary to earn a profit.
One such limitation is the use of special technical devices to limit reproduction. Though not common in the market for glossy magazines (they are not needed there), such devices do appear in industries where the state of the copying art does little to stop copying. In computer software and satellite transmissions, for example, one sees a variety of special technologies implemented to control copying. Today satellite signals are “scrambled” and require a “describer” at the receiving end to make use of them. This is a typical example of a technical device designed to defeat easy copying. Another example of special technical restrictions is that of a publisher selling a drum to a library but providing the Drum in a personal computer that has no accessible floppy disk and form, which the Cd-rom itself cannot be removed. The scrambled signal and the specially configured computer are kinds of technical anti-copying devices that make up for what would otherwise be the possibility of easily achieved copying.
Finally, in addition to the other forms of limitation on copying, the law of contracts can provide protection. Instead of using a special-purpose, no-copying computer, a publisher might sell drums to a library for use in an ordinary computer, but contractually obligate the library to permit only a certain type or extent of copying.
In sum, copyright owners rely for assurance against unauthorized copying not just on copyright law, but on the aggregate deterrence of all four methods for limiting copying of their works: copyright law, the state of the copying art, special technical devices, and contract law. We can think of these four factors as slices in a pie, where the overall size of the pie represents the publisher’s assurance against undue copying. The balance of these factors providing protection for any given work may differ from those protecting another work, as the contrasting examples of Rolling Stone magazine and the satellite signals illustrate. That simply means that the relative sizes of the “slices” of protection differ from one type of work to another.
The Draft Report
Copyright specialists are attending conferences, writing articles and speeches, convening advisory councils, holding public meetings, and caucusing over the Internet about how the information superhighway will, indeed must, be paved with copyright asphalt. Some view the coming of the internet as an opportunity to redesign intellectual property policy before stakeholders acquire vested interests; others see an occasion to consolidate the advantages they currently enjoy under the copyright law or to close copyright “loopholes” that they feel have inadvertently sprung up in their way. In 1994 the federal government’s Information Infrastructure Task Force, with much fan fare, issued a Draft Report containing it’s preliminary analysis of copyright issues affecting and affected by the Information Infrastructure, and its’ suggestions for copyright revision. The Draft Report recommends what it characterizes as minor clarifications of well-settled principles, and modest alterations to better secure copyright owner’s control.
The Report takes the position that current law secures to the copyright owner control over virtually any reproduction, but finds the state of current law regarding transmissions to be less than clear. It therefore recommends amending the law in several respects. First, the distribution right should be amended to “reflect that copies of works can be distributed to the public by transmission, and such transmissions fall within the exclusive distribution right of the copyright owner.” Second, the Draft Report recommends expanding the current definition of “transmit”, to encompass transmissions of reproductions as well as transmissions of performances or displays, and to add a test distinguishing between transmissions of reproductions and transmissions of performances and displays based on
“the primary purpose and effect of the transmissions.” Third the Draft Report suggests an amendment making it clear that transmissions of a work into the United States violates the copyright’s owners exclusive importation rights. Fourth, The Report suggests that the first sale doctrine, which allows the owner of a lawfully made copy to sell, loan, rent or otherwise dispose of the possession of that copy, be repealed insofar as it might apply to transmissions. Finally, the Draft Report offers miscellaneous suggestions to forestall the emergence of other perceived threats to the copyright owner’s bundle of rights.
By vesting copyright owners worth control of any reproduction or transmission of their works, and then defining reproduction and transmission to include any appearance, even a fleeting one, of a protected work in any computer, and any transfer of that work to, from, or through any other computer, the Draft Report’s recommendations would enhance the exclusive in the copyright bundle so far as to give the copyright owner the exclusive right to control reading, viewing, or listening to any work in digitized form. The Draft Report comes down firmly on the side of increased rights for copyright owners and it endorses the goal of enhanced copyright protection without acknowledging any countervailing concerns. Because it is an advocacy document, it at times misrepresents the state of current law. It gives voice to only one side of complicated policy debates. In some cases, the Report identifies a particular alternative as more desirable because it gives copyright owners subject to fewer exceptions. The Report’s drafters apparently did not perceive objectivity or balance to be their job.
Not that anyone is clamoring to volunteer. The general public’s interest in copyright legislation is diffuse; a grass roots revolt of copyright users seems unlikely. Interest groups with copyright on their agendas have a long history of dropping their opposition to copyright amendments of general application in return for narrow provisions addressing their specific concerns. Congress, for it’s part, has since the turn of the century, been delegating the policy choices involved in copyright matters to the industries affected by copyright. But, before we succumb to calls for further enhancement of the rights in the copyright bundle, we need to reexamine the intellectual property bargain from the vantage point of the public, on whose behalf, after all, the copyright deal is said to be struck in the first place. Does the shape of the law as currently stands make sense? Do the changes that are being proposed cause it to make more sense, or less sense?
At the turn of the century, U.S. copyright law was technical, inconsistent and difficult to understand, but it didn’t apply to very many people or very many things. If one were an author or publisher of books, maps, paintings, a playwright or producer of plays, or a printer, the copyright law bore on your business. Booksellers, phonograph record publishers, motion picture producers, musicians, scholars, members of congress, and ordinary consumers could go about their business without ever encountering a copyright problem.
Ninety years later, the U.S. copyright law is even more technical, inconsistent and difficult to understand; more importantly, it touches everyone and everything. In the intervening years, copyright has reached out to embrace much of the paraphernalia of modern society. Technology, heedless of law, has developed modes that insert multiple acts of reproduction and transmission, potentially actionable events under the copyright statute, into commonplace daily transactions. Most of us can no longer spend even an hour without colliding with the copyright law. Reading one’s mail or picking up one’s telephone messages these days requires many of us to commit acts that the government’s Information Task Force now tells us ought to be viewed as unauthorized reproductions or transmissions.
What we know about the general public’s impression of the shape of copyright law suggests that the public believes that the copyright statute confers on authors the exclusive right to profit commercially from their copyrighted works, but does not reach private or non-commercial conduct. The law in this country has never been that simple; the copyright statute has never expressly privileged private or non-commercial use. Until recently, however the public’s impression was not a bad approximation of the scope of copyright rights likely, in practice, to be enforced. If copyright owners insisted, as sometimes they did, that copyright gave them broad rights to control their works in any manner and in all forms, the practical costs of enforcing those rights against individual consumers dissuaded them from testing their claims in court. So long as nobody proposed to sue the nation’s teenagers for copying music on to audio cassette, or copying computer games onto floppy disks, what did it matter that some folks argued that if they chose to sue they could win.
The Napster Debacle
Things have changed dramatically since 1994. Not only are people now testing the limits of private and non-commercial use of copyrighted materials, but the owners finally decided to sue the teenagers for copying their products. With the advent of programs like Napster, Gnutella, Spinfrenzy, Scour and similar websites, that allow people on the internet to share music files of all kinds with anyone anywhere, U.S. copyright law is on the minds and tongue of most people.
In a lawsuit filed recently, the Recording Industry Association of America charges Napster with violating federal and state laws through contributory and vicarious copyright infringement,” because it has created a forum that lets on-line users trade unauthorized music files directly from their personal computers.
“ An underlying assumption of the technology and the service is that people determine entirely for themselves how they are going to use the system and participate in the community-Napster provides the tools, but has no ability to impose limitations or exercise control. The music people are sharing and discussing ranges from the rock music you might expect to classical, opera, country, gospel, jazz, you name it.” (Shawn Fanning)
The lawsuit is the latest front in what has become rough terrain for the music industry, which has been aggressively fighting to maintain control over their copyrighted material as the Web and related technologies increasingly threaten to undermine their security. In the case of Napster it could be an uphill battle. At least two federal laws protect content “providers” from being held responsible for illegal activity over their networks. No music trades actually take place on computers owned by Napster. Nor does the company monitor users to see whether they are trading copyrighted material, although it does warn users that MP3 files could be illegally copied and that distributing such material is illegal. Under this argument, copying music through such services as Napster or Gnutella would be legal, but downloads of software or movies would still be copyright violations. The fall out from Napster is already affecting industries beyond the music business. As everything from movies to books to comic strips goes digital, it becomes easier for people to swap virtually anything on-line. Dozens of for-profit start-ups such as AppleSoup and Lightshare Inc. are now using Napster as inspiration for copyright-friendly ways of sharing all kinds of information.
1. Money, Music and Success-The Insider’s Guide to the Music Industry
Jeffrey Brabec and Todd Brabec 1994 Schirmer Books
2. West’s Business Law, 8th Edition
Kenneth Clarkson, Roger LeRoy Miller, Gaylord A. Jentz and Frank B. Cross 2001 West Legal Studies
3. TIME Magazine “Meet the Napster” pages 60-73 October 2, 2000
4. Napster http://www.napster.com
5. ABC News.com: Rockers sue Napster, Schools http://www.abcnews.go.com
6. Businessweek Online: Inside Napster http://www.businessweek.com
August 14, 2000 Issue
7. Rolling Stone Online: You got nailed!: Napster Creates Accidental Bootleggers http://www.rollingsone.com
8. “RIAA asks judge to pull all major-label songs off Napster” http://www.news.cnet.com
There are no visitor comments for this essay. You can submit a review below.