The Copyright Wars

A new world of digital entertainment beckons, but industry clashes impede progress

Illustration: Tavis Coburn

When you opened your Web browser this morning, the start page listed the Oscar winners. Bowling for Columbine and The Chubb Chubbs had never made it to your local Cineplex, and you feel like you're missing out.

Or maybe you just started reading the hot new novel Gilligan's Wake and decided that to truly appreciate the author's artistry, you ought to review a few episodes of the classic 1960s television show on which the novel is based.

Whatever it is that has captured your attention, you want it now. You want to do a quick Internet search, type in your credit card number, and download the gigabytes you crave.

Well, you probably can't, at least not easily, and probably not legally. Much of the technology is here, but the utopian future—digital entertainment at your fingertips—risks being stalled by the lack of consensus on digital copyright control. Today there is no universally compatible, standard means of ensuring that the people who bring you creative works—the artists, the musicians, the studio owners, the distributors—get their fair share of your money every time you obtain a piece of their work. There isn't even agreement as to how many times you should pay for "content": once per viewing (or listening), once per person, once per household, or once for every single device in the household.

Meanwhile, the technology needed to deliver that content—those movies, audio tracks, and TV shows—is taking off. Digital compression works today and gets better all the time. Recordable DVD drives are on the market, and the new blue-laser discs, the first of which were introduced in Japan last month, are each able to hold an entire high-definition feature film. Broadband connections, which now take hours and hours to pump a feature film in low resolution to your home computer, are getting faster as well.

Obviously, the widespread dissemination of these technical advances that could deliver a boost to both the consumer electronics and communications industries is being held back by the inherently different goals of the product and the content creators. The consumer electronics industry wants abundant content to be readily and cheaply available to drive the sale of the new products needed to download, record, and play it. The entertainment people deservedly want remuneration for the use of their content—but what uses are reasonable to charge for is a debatable matter.

The right to fair use

This last point of contention arises out of an established legal concept called fair use. It refers to your right to copy copyrighted material for certain purposes without permission from the copyright holder.

The Sony Betamax case in 1984 established in the United States a fair use right to time-shift a television show, that is, record it to watch at a later time. That right has been extended, with little controversy, to a right to space-shift—for example, to make a copy of a favorite CD for listening to in the car, and to make a reasonable number of backup copies, in case, for example, your child puts your rare, out-of-print disc in the toaster. Not allowed under this heading is copying for commercial purposes—you may not, for example, copy a season's worth of "The Sopranos" to your TiVo recorder and then charge your friends and neighbors to attend a viewing marathon.

In the analog era, preventing copying beyond fair use was basically left to the judicial system. That meant, in effect, that major violators (those who made and sold masses of copies) were prosecuted, and minor violators, such as those who made a copy of a CD for a friend (you know who you are), were left alone.

But the entertainment industry thinks this judicial control is not enough in the digital age. One reason is its dread that copying will spread uncontrollably. Two factors limited the proliferation of analog copies—they had to be distributed on physical media, and the tape hiss and other noise introduced by the copying meant that none was ever as good as the original. (Copies of copies are close to unbearable.) Digital copying has no such impediments. A digital copy of a digital TV show is as good as the broadcast and can be distributed to your entire e-mail list with the stroke of a key. Said Scott Dinsdale, executive vice president for digital strategy of the Motion Picture Association of America (MPAA), speaking at the Consumer Electronics Association's 2002 Fall Conference in San Francisco: "The ability to share programming was one thing when it was limited to two to three friends, but now it's a million friends."

Degrees of control

From Hollywood's point of view, the best way to prevent copying from getting out of control is to prevent copying at all. "What we really want to do is not to stop copying, simply to stop redistributing. But the technology available doesn't distinguish between the two," said Larry Kenswil, president of the eLabs division of Universal Music Group (Universal City, Calif.), speaking at the January Consumer Electronics Show (Las Vegas, Nev.).

Meanwhile, the consumer electronics industry, while working with the entertainment industry on copy protection technologies, is not willing to make copying outright impossible. Without the freedom to copy music from CDs to digital jukeboxes and portable players, for instance, entire categories of products, like MP3 players and hard-disk recorders, would disappear. People just aren't going to pay for the same album three or more times—once to use in their car CD player, again to use in their home audio jukebox, and once again to listen to while jogging.

At the same time, the electronics industry is not going to put out technology for totally unrestrained digital copying, in case the content owners retaliate. So the introduction of new products, such as portable TV players that download content from home video recorders into pocket-sized devices, is reportedly being delayed. The fear is that systems will never even be imagined because of the copy control constraint. Consider the broadcast flag, a technology intended to prevent unauthorized retransmission of digital TV broadcasts by inserting a coded signal into programs (though the signal may also end up preventing copying). Had some form of it existed 30 years ago for analog products, the consumer VCR, sales of which were worth over US $2 billion annually in the late 1990s, might never have reached the market, says Joe Kraus, cofounder of DigitalConsumer.org (Palo Alto, Calif.).


"You can't be convicted of breaking into your own house"
JOE KRAUS, cofounder, DigitalConsumer.org

Consumer groups like Kraus's are up in arms concerned about losing existing fair-use rights. The erosion has begun. First to go was the ability to make a backup—you can do so with CDs, but not readily (or legally) with video DVDs. To cite a typical situation, Lisa Nee, a mother of three in Mamaroneck, N.Y., has purchased the 2001 movie Shrek three times in the past year because discs in her hectic house get stepped on, buried in the toy box, and occasionally thrown, and the scratches they acquire make the movies stick or stutter.

Had she wanted, with a little time and effort, she could have copied the protected DVD to her computer hard drive—but not legally. Under the Digital Millennium Copyright Act of 1998, you can be prosecuted simply for breaking copy protection, regardless of your use of the material.

Less daunted, Washington Post reporter Rob Pegoraro, during a Consumer Electronics Show panel, noted that he had copied a DVD to his notebook computer's hard drive using DeCSS (a program widely available on the Internet for decrypting code in the DVD content scramble system). He did it so that he could watch the movie on an airplane unburdened by the extra weight and power drain of his computer's DVD player—and violated the letter of the law, though not the standard of fair use.

Kraus thinks this is crazy. "You can't be convicted of breaking into your own house," he says, and since the reporter owned the DVD, it was, in effect, his house. Kraus's organization is targeting the 1998 Digital Millennium Copyright Act for repeal, on the grounds that the act allows the copyright holders to make law, for if they decide something shouldn't be copied, and put a copy control in place, it becomes illegal to break that control and copy. "Should a copyright holder have that much power?" he asks.

While entertainment, consumer electronics, and consumer groups do battle, the situation is fast becoming quicksand, in which we're all at risk of bogging down. I'm not trying to raise a couple of criminals, but a few months ago my children were entertained at a friend's home by a motion picture shown in the home theater, Harry Potter and the Chamber of Secrets. The movie had been downloaded a few weeks earlier from the Internet, at a tolerable quality, shortly after it had started playing in local theaters.

You, too, if you attended a wedding in northern California recently, could be a lawbreaker. A January article on wedding planning in the San Francisco Chronicle's Sunday magazine reported that today's most popular wedding favor is a collection of the happy couple's favorite songs—burned onto a CD, or hundreds of CDs, certainly without permission of the copyright holders.

The situation is truly a mess, and resolution will not be quick or clean. In this special report from the copy protection battleground, IEEE Spectrum visited the war on its many fronts, from the legal and the legislative to the many technical skirmishes now being fought.

So wave your broadcast flag, load your DVD burner, or pack up the CDs you filled with MP3 tracks and send them with a letter of apology to the MPAA or the Recording Industry Association of America. It is time to pick a side; the fight for the future is now.

Acknowledgments

IEEE Spectrum editors wish to thank the following reviewers for sharing their expertise for this report: Whitney Broussard, partner, Selverne, Mandelbaum & Mintz; Rob Koenen, vice president, Intertrust Technologies Corp.; and David Ostfeld, partner, Chamberlain, Hrdlicka, White, Williams & Martin.

To Probe Further

Legislation - "The Congressional Corral"

  • More about proposed legislation affecting consumers' fair use rights, including the BALANCE (Benefit Authors without Limiting Advancement or Net Consumer Expectations) Act of 2003, the Consumer Broadband and Digital Television Consumer Protection Act, and the Digital Media Consumers' Rights Act, appears at http://thomas.loc.gov.

Europe - "Europe's Regulatory Gridlock"

  • Versions of the European Union Copyright Directive, in a variety of languages, and some precursor documents are at Eurorights.org; see http://www.eurorights.org/eudmca/.

Legal - "Extreme Lawsuits"

  • For insight into copyright law, see "The Digital Dilemma: Intellectual Property in the Information Age," a 2000 report exploring in detail the copyright issues raised by digital content published by the Computer Science and Telecommunications Board, National Research Council.

  • To receive BNA's Internet Law News, a free daily e-mail update of legal developments related to digital computer networks, compiled by Michael Geist of the University of Ottawa Law School, go to http://ecommercecenter.bna.com.

CDs - "For Your Ears Only"

Spoofs - "Digital Decoys"

DVDs - "Lights, Cameras, Controls!"

Broadcast: - "Fort TV"

  • To find out more about the efforts of the Home Recording Rights Coalition, look at http://www.hrrc.org.

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