|Volume 20, Number 1||The CPSR Journal||Summer 2002|
by Paul Hyland
Copyright law has existed in this country for over two centuries, but changes that have occurred in just the past few years threaten to alter the entire balance between the creators and the consumers of content. Further proposals that are on the drawing board could make things even worse.
Two important laws were passed by Congress and signed into law in 1998: the Digital Millennium Copyright Act and the Sonny Bono Copyright Term Extension Act.
The Digital Millennium Copyright Act (DMCA) was intended to update copyright law to account for the new reality of digital technology, and to align U.S. law with recently ratified treaty of the World Intellectual Property Organization (WIPO), A United Nations agency. It is CPSR's opinion that the DMCA goes beyond what is required by the WIPO treaty. It makes illegal the creation, possession, or distribution of technology that could be used to circumvent access and copy protection technologies. It also contains language authorizing the collection of new royalties for digital music transmissions over the Internet, which threatens to eliminate most community and educational Internet radio stations. CPSR has commented on this law and on rulemaking since it was enacted, and has signed several amicus briefs in legal cases that threaten computer science research and technology innovation. Karen Coyle's piece, What the Copyright Office Got Wrong," discusses one such initiative.
The Sonny Bono Copyright Term Extension Act (CTEA) was named after the recently deceased champion of the legislation. This is the seventh time in 45 years that copyright terms have been extended, in a regular ritual some call Mickey Mouse copyright term extension acts (as they often appear when Disney's Mickey Mouse character is about to enter the public domain). CPSR contributed to a brief in the Eldred case, currently before the Supreme Court, that challenges this law. In general, copyrights are intended to be for limited terms; in the case of computer software, a 95-year term is particularly absurd.
The past several years have seen numerous proposals and initiatives in this area; below are a few of the more notable from 2002.
The Consumer Broadband and Digital Television Promotion Act (CBDTPA), introduced earlier in 2002 by Sen. Ernest Hollings (D-SC), attempts to give the entertainment industry control over all digital media technology. Any device that can read or transmit digital media content is supposed to incorporate digital content management technology approved by a business consortium heavily dominated by Hollywood. While this seems to have little chance of passage, some opponents of entertainment industry excess have publicly stated that they might support a limited version targeting specific technologies agreed upon by industry. This appears to be the legislative proposal circulated by Rep. Billy Tauzin (D-LA) that I discuss below.
Rep. Howard Berman (D-Hollywood) recently introduced the P2P Piracy Prevention Act (H.R. 5211). This law essentially gives any copyright-holder the right to break any existing law while engaging in technological measures (such as hacking) in the course of protecting their content. They must give prior notice to the government, but there is no approval is required, and the government must keep secret any notice it receives. Large copyright holders sought this immunity in the counter-terrorism bills that greatly increased penalties for hacking, but the absurdity of equating file sharing to terrorism forced them to withdraw their bid that time. The chances of success are hopefully slim, but it's hard to tell.
Rep. Jay Inslee (D-WA) introduced the Internet Radio Freedom Act (H.R. 5285) which would fix some of the excesses in the DMCA as applied to community and educational radio -- defined in the legislation as small business radio stations with less than $6 million in revenues. This bill comes in response to onerous royalty and reporting requirements that were proposed by the Copyright Office's Copyright Arbitration and Royalty Panel, and approved in slightly amended form by the Librarian of Congress, under the authority of the DMCA. The Copyright Office's requirements far exceed the burden placed on traditional radio broadcasters, and threaten to kill much vital and creative streaming media programming that had proliferated in recent years.
At the other end of Pennsylvania Ave., the FCC has expressed interest in helping Hollywood ensure the protection of its intellectual property, in order to promote the release of more broadband entertainment content and thus the faster adoption of broadband Internet. The Department of Commerce held a roundtable meeting recently at which proponents of free software succeeded in being heard in spite of being left off of the agenda. And Congress encouraged the administration to more aggressively pursue violations of copyright law; the Justice Department responded favorably to the request, but there has been no sign of increased prosecutions yet.
Within the last few weeks, three bills have been circulated or introduced that seek to change policy regarding copyright or content protection. These bills have little chance of passage in this session of congress, but they give a good indication of where the debate will begin when the new session starts next year. In the article "Hollywood's Legislative Agenda: MPAA Wants to Plug the 'Analog Hole,'" Cory Doctorow describes efforts underway in Hollywood to implement a broadcast flag or other digital rights management identifier to control digital copying/use, and to "plug the analog hole" to prevent the recording of analog signals. After a series of closed-door roundtables, Rep. Tauzin circulated a draft bill to essentially implement the proposals of this process, which would require adding approved DRM to all analog-to-digital converters and would disallow analog inputs to digital recording devices after a certain date. This bill is similar to, but slightly more focused, than the Hollings bill, but almost as dangerous a limitation on technology and people's freedom to use it.
On October 3, two bills were introduced to undo some of the damage wrought by the DMCA. Rep. Rick Boucher (D-VA) introduced the Digital Media Consumers' Rights Act (H.R. 5544), which would require labeling of copy-protected digital content that might prevent fair use (or even any use in many devices), would enable reverse engineering and research on copyright-related technology, and would allow circumvention of copy and access protection technology for legal uses. Rep. Zoe Lofgren (D-CA) introduced the Digital Choice and Freedom Act (H.R. 5522), which would restore fair use and first sale rights that have been limited recently for digital technologies, and clarify that circumvention of copy protection and access control technologies is legal unless done for illegal purposes (such as piracy). Both of these bills are consistent with CPSR's beliefs, and we may endorse them or otherwise work to support their passage.
CPSR is working with the Digital Future Coalition (http://www.dfc.org/) on supporting these two bills, and the Electronic Frontier Foundation has initiated action alerts encouraging people to mail their congresspersons in support of these bills as well (see http://action.eff.org/action/). The CPSR Intellectual Property page (http://www.cpsr.org/program/ip/) contains up-to-date information regarding news, organizations and resources covering this important issue.
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