The View From 2009: This is a brief update on the current state of copyright and media, ca. 2002. Many problems, no answers. In the intervening time, it hasn’t really gotten better. Lobbyists rule, it seems to me.

Some Thoughts About Copyright

Copyright in the News

Copyright issues in media have been in the mainstream news and in TV Technology recently. A number of important problems have been rattling around over the past couple of years, and it’s beginning to be a bumpy ride. As our own editor Tom Butts recently pointed out, the one sure thing is that the Supreme Court is going to get into it (actually, he had this one wired – the Supreme Court is already currently reviewing the Sonny Bono Act, which extends copyright for 20 years, ostensibly as a favor to Mickey Mouse). Other recent problems include the Digital Millennia Copyright Act (DMCA), which seriously criminalizes both certain “digital” copyright infringements as well as even discussing copy protection schemes, whether or not infringement is involved. At the same time, a Motion Picture Association of America report to Congress allegedly calls for copy protection circuits on all(!) A/D converters (yikes!). And not too long ago, I was contacted by a recording industry trade group insisting that a professional digital loudspeaker I was working on should have encrypted digital I/Os.

There’s a move afoot to get control of all this stuff.

I wouldn’t know much about all this, except that back in the late 1980s I got involved with the Feds, first evaluating the so-called CBS Copycode, and then as an advisory board member for a Congressional study on Home Copying. As a result, I ended up reading a coupla thousand pages and dozing through a whole bunch of hearings in Washington. What I learned turned out to be fascinating. It also got me to thinking about the whole problem.

Meanwhile, my own professional life is centered around royalty income from copyrighted publications and patents. I have a real and vested interest in the handling of intellectual property. Trust me on this!

A Little History

Copyright Law in this country has its foundation in the Constitution, which specifies that in order to promote arts and sciences, Congress shall give authors exclusive rights for limited times. James Madison, who wrote this, was primarily concerned with the promotion of arts and sciences, not authors – he regarded exclusivity as a monopolistic evil. Congress originally limited the term for copyright to 14 years. Copyright was viewed as an “intellectual property bargain” between government and author, guaranteeing limited exclusivity in return for publication.

Over the years, our view of copyright has evolved dramatically. Now copyright has a term of “life of the author plus X years.” Further, the major “content owners” have worked to convert the intellectual property bargain into a right of pure ownership. The software industry has been bad about ignoring exclusions to copyright, and has subverted the Commercial Code in regard to mechanisms such as shrink-wrap and click-through licenses. This has been done in keeping with a proud commercial tradition of aggressive lobbying and campaign contributions in return for, ah, favorable legislation – a tradition beloved by the health, energy, transportation and, of course, entertainment industries. It’s not pretty, but they figure nothing beats fixing the card game up front.

Technology

The primary cause of the recent explosion of interest in this has been the conversion of most media to digital storage and distribution. As you all know, such a conversion strips the intellectual property off any particular fixed media and makes it comparatively easy to store and distribute. This presents a problem to us copyright holders, because we charge for the tangible physical media – that’s how we get paid.

Fair Use and other Safety Valves

Meanwhile, Congress acknowledges numerous exclusions to copyright, most notably the so-called “fair use” provisions, which permit people to use copyrighted material without sanctions under certain limited circumstances. There is also a doctrine of “first sale,” so that when I sell a textbook, the purchaser is in turn free to sell that text without further compensation to me. Finally, there is a sweetly reasonable “personal use” exclusion for time and media shifting, as well as exclusions for archiving and the making of safeties. These are all viewed as “safety valves,” reasonable limitations on exclusivity that serve the public interest.

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