Controlling copyright through technology: when elephants dance

Michael Fraase
11 June 2002

When elephants dance, it is best to get out of the way. That is exactly what is happening now as the entertainment industry – mainly the recording, publishing and motion picture industries – attempts a worldwide intellectual property power grab with two distinct targets. Think of it: a coup and a lock on all published content in the same year. Amazing, isn’t it?

Target number one is the average customer, anyone who purchases software, an audio CD, an electronic book or a movie on DVD. The entertainment industry sees customers as pirates, plain and simple. In its collective mind’s eye, customers all have a wooden leg, an eye patch and a filthy-talking parrot on their shoulder. While the Copyright Act of 1790, Title 17, Chapter 1 of the U.S. Code, and subsequent judicial rulings grant customers certain rights with regard to copyrighted material, the entertainment industry very much wants to separate customers from those rights.

Target number two in the sights of the entertainment industry is technology behemoths such as Microsoft, Intel, IBM and Apple. These companies, in the perverse worldview of the entertainment industry, make the tools – computers, mostly – that allow customers to practise their piracy.

Let me point out that I am a copyright owner, as is everyone else who has ever created a work in tangible form, i.e. all authors. Authors are almost never members of the entertainment industry club. The entertainment industry hates authors almost as much as it hates customers. Sometimes, especially when authors get uppity, the entertainment industry hates authors much more than customers. Until recently, authors have always been seen to be at least a marginal threat while customers have been seen as merely necessary annoyances.

To complicate matters by at least an order of magnitude, the consumer electronics manufacturers – the companies that make stereos, VCRs and DVD players – have aligned with the entertainment industry; at least some of them, and at least to some extent.

Unfortunately for us – both authors and customers – we are likely to be squashed as these elephants dance. The intent of the entertainment industry, believe it or not, is to outlaw personal computers. As security and cryptography expert Bruce Schneier explains to Mike Godwin: “If you think about it, the entertainment industry does not want people to have computers; they’re too powerful, too flexible and too extensible. They want people to have Internet Entertainment Platforms: televisions, VCRs, game consoles, etc.”

Copy-protected CDs

The recording industry is selling shiny plastic discs, which contain music that cannot be copied to, or even played on, the equipment of some customers. Philips, the owner of the CD format, says that these discs cannot be called CDs because they do not meet the CD standard. Sony is one of the weird hybrid companies, in good standing with both the technology and entertainment industries, which find themselves on both sides of this issue. Sony says that it cannot guarantee the audio quality of these discs. The technology used to protect these discs sometimes prevents them from being played on computer CD-ROM drives, DVD players, and other devices specifically designed to play standard audio CDs.

Sales of recorded music have fallen by 10% in the United States over the last year. The recording industry blames this downturn not on the economic recession, nor on the poor quality of the music that has been released in the past few years, but on Internet piracy.

And it is only going to get worse. Hilary B. Rosen, president of the Recording Industry Association of America (RIAA) told Congress on 28 February 2001 that the practice of copy-protecting audio CDs would expand in the United States. “If technology can be used to pirate copyrighted content,” Rosen wrote in her response to a Congressional query, “shouldn’t technology likewise be used to protect copyrighted content? Surely, no one can expect copyright owners to ignore what is happening in the marketplace and fail to protect their creative works because some people engage in copying just for their personal use.” Her pal, Michael Eisner, head of Disney, has said he is tired of being “finessed” by the technology industry, whatever that means.

Unfortunately for Eisner, Rosen, Disney and the RIAA, personal use – and more importantly the rights associated with that use of copyrighted material – is exactly why copying of copyrighted material is not just allowed, but mandated by Title 17, Chapter 1, Section 107 of the U.S. Code. The fact that some individuals illegally sell copied CDs or distribute copies of the music on the Internet is immaterial. In fact, fairly casual observation indicates that if customers are treated like criminals they will indeed begin to behave like criminals.

It has become common practice for music-loving computer owners to legally transfer audio CDs they have purchased to .mp3 format files on their computers. The copy-protection technology employed by the recording industry prevents such transfers by adding distortions to the music of the recordings. The industry insists that these distortions are inaudible when the disc is played on a standard CD player but result in pops when the music is transferred to a computer. In any case, it is usually impossible to tell whether or not a disc includes the copy-protection technology as, in general, the copy-protected discs are not labelled as such.

Ironically, manufacturers of MP3 players could easily defeat the copy-protection technology, but they fear that doing so would risk prosecution under the Digital Millennium Copyright Act (DMCA), which prohibits the bypassing of copy-protection systems. In 1999, the Ninth Circuit Court of Appeals ruled that MP3 players did not violate copyright law because customers have the right to “space- shift” music they have purchased (another example of space-shifting is the creation of a tape for in-car use).

Moral rights

Interestingly, the act of using copy-protection technology is much more prevalent in Europe. Note that most European countries, unlike the United States, recognise an artist’s “moral rights” in the work they create.

Moral rights are a package of intellectual property rights granted to the original creator of a work. These include the rights of integrity, attribution and disclosure, the right to withdraw or retract, and the right to reply to criticism.

These moral rights are separate from the economic copyright that nowadays generally transfers from an author to a publisher, and can survive the author. The idea originated with the French, who believe that any creative work, by definition, includes the personality and character of the author. Where copyright is a property right that can be transferred, moral rights are part of the author’s personality and character, and are non-transferable.

The first two moral rights – the right of integrity and the right of attribution – are especially important because they are codified as international law in the Berne Convention. The United States claims its intellectual property law complies with the Berne Convention, but these are just two instances where it does not.

The most important of these rights is the first, the right of integrity. Basically, this prohibits an author’s work from being distorted in any way that would harm the author’s reputation. It dates to the 1957 French law of “droit au respect de l''oeuvre”. It is a safe bet that a cross-reference over which the author had no control would be seen as a distortion of the work.

Seemingly, in Europe at least, an artist could make an argument against the production of a copy-protected version of his or her work on the sole basis of moral rights - especially in the case of an audio CD to which distortion is intentionally added by the publisher.

In the United States, Representative Rick Boucher (D-Virginia) appears to be taking the lead in questioning the behaviour of the entertainment industry. He believes that instead of using copyright to obtain fair compensation for the works that they have licensed, the copyright owner industry – including the recording industry – is attempting to “exercise complete dominance and total control of the copyrighted work”.

And just how much money does an artist receive in the form of royalties? Use Moses Avalon’s royalty calculator to work this out.

A brief history of fair use

Copyright, until this recent entertainment industry power grab, has always been a delicate – perhaps even precarious – balance between the rights of the author to benefit from his or her work for a short period of time, and the rights of the rest of us to innovate and benefit from this work when it falls into the public domain.

Certain uses of a protected work that would ordinarily be seen as infringing are specifically allowed for education, criticism, etc. These uses are allowed under the “fair use” provision. The core concept of fair use is that, in general, any use that does not exploit the commercial value of the original is permissible.

The fair use statute recognises four criteria by which a use can be determined to be fair or unfair:

The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes. The nature of the copyrighted work. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. The effect of the use upon the potential market for, or value of, the copyrighted work. William S. Strong, in The Copyright Book: A Practical Guide, provides an interpretation for working writers:

“As a general rule a critic or reporter should not quote at any one point more than two or three paragraphs of a book or journal article, a stanza of a poem, or a solitary chart or graph from a technical treatise.”

The Internet allows ordinary citizens to exercise their fair use rights in ways never imagined by the entertainment industry. Subsequently, the reaction is to put pressure on innovation by extending the copyright term for any given work. In October, the U.S. Supreme Court will hear a case (Eldred v Ashcroft) that is likely to determine the legitimacy of the most recent copyright term extension, the Copyright Term Extension Act of 1998. This law extends the copyright term to the life of the author plus 70 years. In the case of works made for hire in which a corporation owns the copyright, the copyright term is now 95 years.

While one side of the entertainment industry was pushing, an activity that eventually resulted in the Copyright Term Extension Act of 1998, the other side was pulling, an activity that eventually resulted in the DMCA. Designed specifically to control the uses that can be made of published works, the DMCA makes it illegal to circumvent copy-protection technology. The result is that the entertainment industry controls not only what we see and hear but also the methods and devices with which we see and hear it. Even if copy-protection technology is circumvented to enable the fair use of a published work, this is prohibited and deemed to be a criminal act.


The Security Systems Standards and Certification Act (SSSCA), regularly put forward by the Democratic Senator for South Carolina, Fritz Hollings, chair of the Senate Commerce Committee, can best be thought of as an appendix to the DMCA. It has clearly been designed to further extend legal protection for digital content owned or licensed by enormous media conglomerates.

According to the draft language of the bill, it would be illegal to create or distribute “any interactive digital device that does not include and utilize certified security technologies” approved by the Commerce Department. Felony penalties for distributing copyrighted material without the “certified security technologies” fully enabled, or using a computer that circumvents these technologies, are up to five years in prison and fines up to US$500,000.

Predictably, the politicians are split along party lines over the SSSCA. Or, more accurately, the split is along the lines of entertainment industry campaign contributions. Democrats, who have received US$24.2 million in contributions from the entertainment industry, tend to support the idea of legislating the protection of copyrighted material in digital form. Republicans, who have received a relatively paltry US$13.3 million in entertainment industry contributions, usually oppose the SSSCA, claiming that it is too interventionist.

In mid-March 2002, the other shoe dropped. Senator Hollings transformed the SSSCA into the Consumer Broadband and Digital Television Promotion Act (CBDTPA) and ceased his tiptoeing around. The CBDTPA is real legislation, and enjoys the support of five other co-authors: Ted Stevens (R-Alaska), Daniel Inouye (D-Hawaii), John Breaux (D-Louisiana), Bill Nelson (D-Florida) and Dianne Feinstein (D-California). Just think, one more author and they could have been the seven dwarves. The CBDTPA would require all digital devices – everything from fax machines to MP3 players and computers (as well as the software that runs on them) – to be equipped with embedded copy-protection schemes, approved by the federal government.

Enter DigitalConsumer.org

The technology industry has been quick to respond to the CBDTPA threat by launching DigitalConsumer.org and its attendant Consumer Technology Bill of Rights. Launched by two of the co-founders of Excite, DigitalConsumer.org is basically trying to protect the “fair use” rights of customers in digital media. The principles of the group, which are outlined in their Bill of Rights, are deceptively simple:

  1. Users have the right to “time-shift” content that they have legally acquired.
  2. Users have the right to “space-shift” content that they have legally acquired.
  3. Users have the right to make backup copies of their content.
  4. Users have the right to use legally acquired content on the platform of their choice.
  5. Users have the right to translate legally acquired content into comparable formats.
  6. Users have the right to use technology in order to achieve the rights previously mentioned.

The depth and breadth of support that this lobbying group will receive remain to be seen. Some of the precepts are in direct conflict with the interests of some of the largest members of the technology industry. Microsoft, for example, almost certainly wants to be the digital rights management company of record and is none too keen on, say, items 2, 3, 4 and 5.

A solution

A solution is actually quite simple and requires only the following four steps:

  1. Revert the term of copyright to 14 years, immediately and retroactive to all existing works. Works created more than 14 years ago would immediately revert to the public domain.
  2. Recognise moral rights in the works authors create, like every other developed country on the planet. Make it immediate and retroactive to all existing works.
  3. Immediately repeal the DMCA.
  4. Prohibit any corporation from owning a copyright. Corporations create nothing, they are consensual hallucinations and exist at our pleasure, and I don’t know about you but I’m no longer very pleased about this.
Because the fair use provision of Title 17, Chapter 1, Section 107 of the U.S. Code, along with judicial findings (including those related to time-shifting and space-shifting rights), adequately protects the rights of consumers, there is no need for additional action in this area.

The root of the problem is found in a single court ruling: Santa Clara County v Southern Pacific Railroad. In this 1886 dispute, the U.S. Supreme Court found that a private corporation was a “natural person” under the Constitution and enjoyed the same protections as a citizen under the Bill of Rights. Corporations from that point forward were granted all of the rights and freedoms of a private citizen, yet none of the responsibilities. We made a mistake; hey, shit happens. It’s not too late to fix it.

This is a shortened version of an article originally published on ARTS & FARCES internet.

Had enough of ‘alternative facts’? openDemocracy is different Join the conversation: get our weekly email


We encourage anyone to comment, please consult the oD commenting guidelines if you have any questions.
Audio available Bookmark Check Language Close Comments Download Facebook Link Email Newsletter Newsletter Play Print Share Twitter Youtube Search Instagram WhatsApp yourData