Copyright Infringement? Stopping the Swap
One of the many enumerated powers of the Legislative Branch mentioned in Article I Section 8 paragraph 8 is to regulate copyrights and patents. With the rise of illegal trading and downloading of music and video files, the music and movie industries have claimed that they have lost millions if not billions of dollars in potential sales. With the advent of peer-to-peer file sharing programs, it is easy to share and transfer files without respect to the artists or the rights holders.
In late 1997 the No Electronic Theft Act, and a few months later the, Digital Millennium Copyright Act were passed by Congress. These laws essentially made it illegal to trade any digital music even for non-commercial (not for profit) purposes among many other activities. With the ease and extremely wide extent of copying of copyrighted digital music with programs such as Kaaza, it would be hard to enforce the law. However, the Justice Department has made an effort to go beyond attacking the companies that produce such software. In fact, a recent Court Ruling found that companies such as Kaaza were breaking the law- it’s the individuals downloading or trading the copyrighted digitized music that were breaking the law. The Justice Department is stepping-up measure to go after individuals and has recently gained attention after arresting four university students for swapping copyrighted material.
The law you will be making is not exactly pertaining to downloading digitized copyrighted material. Your main concern is to decide whether or not individuals should be allowed to make copies of legally purchased DVDs. According to the laws mentioned, it is illegal to make a personal back-up of a legally purchased DVD (because the law makes it illegal to “bypass protection measures” which are present in almost all commercially produced DVDs). However, it is legal to make a back-up of a legally purchased VHS movie. Many contend that DVDs are easily prone to scratches and are rendered useless unless back-ups are made soon after purchasing. Companies such as 321 Studios which produces numerous products that crack commercially produced DVD copy-protections (DVDx and DVD Copy Plus are examples) are in a legal battle in the courts to determine if a person can legally copy a commercially produced DVD for fair use.
Here is a history of the Copyright War (copied from an excellent Powerpoint slideshow
I.) Before the War:: 1992
A. Legal to:
•Record from TV or Radio
•Backup Software, Tapes, etc
•Make a tape compilation
•Lend books, movies, even software
•Copying and selling databases (non-creative work)
•Resell books, movies, tapes, software, etc. Rent books and movies (but not software or records).
•Fair use: Reproduce parts of copyrighted work for scholarship (education) or criticism
•“Cracking” copy protection on software, provided you own it.
B. Crime to:
•Copy copyrighted works and selling them
C. Torts:
•Unauthorized performances
•Giving away copies of copyrighted software
•Renting records or software without permission
D. Audio Home Recording Act of 1992
•Mandated copy controls on “digital music recorders”
•Added a royalty fee to every music CD-R or DAT sold
•Allowed consumers to use a digital music recorder to copy music for private noncommercial
use
•Did not address personal computers
E. Problems:
•Networks make it easy to distribute software
•Outlawing only the sale of copies is ineffective
•Suing individuals inconvenient
•“Cracks” are openly sold
II. Upsetting the Status Quo: Rise of the Internet
A. Usenet and FTP: Allow cross-border distribution
B. World Wide Web: Easy to Use
C. Technological Threats
1. Compression: Makes Files Smaller, Easier to Download (MP3, DivX, etc)
2. Broadband: Fast Connections Allow Trading of Larger Files
D. Peer-to-Peer (P2P) File Sharing
1. Napster
•MP3 Sharing
•Central Server -> Ordered to Shut Down
2. Post-Napster (Kazaa, Morpheus, etc)
•All types of files
•True peer-to-peer -> Hard to Shut Down- many are in foreign countries
-recent Federal Court ruling states that those companies making peer to peer programs are breaking the law- those that do copy, however, are breaking the law
-The Justice Dept. is currently making an effort to go after ISP and gain information of individuals sharing files
-Recently, four university students have been arrested for sharing files
III.) Copyright Holders Strike Back
A. National Information Infrastructure (NII)
•1993: Working group formed
•Commerce Department, copyright holders, technology executives
•1995: Recommendations
•Make copying without a profit motive a crime
•Make it illegal to bypass technological protection for copyrighted work – no “cracking”
allowed
B. International Law
1. Berne Convention and TRIPS
•Restored copyright to foreign works that were already public domain in the US (published after 1920)
•Examples: Tchaikovsky, Shostakovich, Stravinsky
•Notice not required
2. WIPO (World Intellectual Property Organization)
•WIPO Treaties: Negotiated in 1996, Effective 2002
•Major Provisions:
•Countries must ban circumvention of copyright protection measures
•Compilations of data must be protected by copyright
C. A Year of Massive Copyright Expansion: 1997-1998
1.No Electronic Theft Act (December 1997)
•Criminalizes copyright violation without commercial intent: Trade MP3s and go to jail
•Criminalizes unauthorized recording of music performances: Bring a recorder to a
concert and go to jail
2. Digital Millennium Copyright Act (October 1998)
•Makes it a crime to make any duplicates of digital movies even for personal use only
•Makes it a crime to bypass protection measures
•Makes it a crime to “traffic in” technologies used to bypass protection measures
•“Safe Harbor” provision to protect Internet providers if they take action against users.
3. Copyright Term Extension Act
•11th Extension in 40 Years
•Adds 20 Years to Copyright Terms:
•Life of the author plus 70 years
•Works owned by corporations or any work published before 1978: 95 years
•Nicknamed the “Mickey Mouse Act” by opponents
•Mickey was due to enter public domain in 2006.
•Irony: Disney made its money from public-domain stories without paying royalties to
authors of Cinderella, Snow White, etc.
IV. Aftermath: The Law Today
A. Legal:
•Record from TV or Radio – But not digital TV or Internet Radio
•Backup Software, Tapes – But not if it is copy-protected
•Lend books, movies, even software – But not e-books, digital movies, etc
•Make a tape compilation – But no trading of digital copies (CD-Rs)
•Copying and selling databases (non-creative work) – Still legal!
•Resell books, movies, tapes, software, etc. Rent books and movies (but not software or records)
– Depends on your state (UCITA?)
•Fair use: Reproduce parts of copyrighted work for scholarship or criticism – Unless copy
control is in place
B. Crimes:
•Copying copyrighted works and selling them
•Trading copyrighted material online
•Recording a live performance
•Circumventing copy controls to backup, quote, print, play, or save a file
•Distributing “cracks”
C. Torts:
•Unauthorized performances
•Violating a “click-wrap” license
•Renting records or software without permission
V. Mopping-Up and Counterattacks: Pending Legislation
•Database Protection
•CDBPTA (Consumer Broadband and Digital Television Promotion Act)
•Requires built-in Digital Rights Management (DRM)
•Peer-to-Peer Piracy Prevention Act
•DMCRA (Digital Media Consumers’ Rights Act)
•Allows circumvention for “fair use”
•Requires labels on copy-protected CDs, allows returns
•“Substantial non-infringing uses” immunity
VI. Postmortem: How did copyright holders win?
A.Interest Groups
•NII and other “working groups” focused on technology and entertainment industries – not
consumers
•Prior agreement prevented serious debate
•Subsequent regrets by some representatives
•Complete voter disinterest
•Opponents: Libraries, Researchers, Computer Users
B. Bipartisanship
•Both parties supported bills: DMCA and Copyright Extension passed unanimously in Senate,
voice votes in House
•Logrolling instead of partisanship: DMCA and boat hulls
•Willingness to delay controversial issues: database protection
•Non-ideological issues
C. Follow the Money: Entertainment
•Campaign contributions by movie, TV, music industries:
•$39 million in 2000
Follow the Money: Computers
•Campaign contributions by computer / Internet industries
•$41 million in 2000
Follow the Money: Software
•Campaign contributions by software industry
•$13 million in 2000