Digital Copyright - Righting Wrongs?

Below is an article by Sasha Planting which originally appeared on the website of Futurecompany (, and which discusses a number of interesting issues relating to digital copyright in particular.

The internet has made it possible for anyone to disseminate copyrighted information quickly and cheaply. Software, music and movie companies are fighting back aggressively. But many are questioning their methods.      

A scientist is intimidated by big business into not publishing academic research. A Russian programmer is jailed by US authorities for three weeks for developing software that promotes freedom of speech. A software company forces users to behave in a particular way and denies them access to a product they have paid for and own.

Something is wrong with the state of US copyright law.

Princeton University professor Edward Felton is at the forefront of a growing battle against US copyright legislation. With the Electronic Frontier Foundation (EFF), the group dedicated to protecting rights and promoting free speech online, Felton has filed a law suit against the Recording Industry Association of America (RIAA), the grouping of the big record companies.

Felton wants to defend his right as an academic to publish the results of his research into the problems associated with a proposed encryption technique for protecting digital music files from unwanted consumer copying. In the process, he and his supporters hope to strike a blow against the Digital Millennium Copyright Act (DMCA), a controversial law passed by the Clinton administration in 1998.

The DMCA was an attempt by the US Congress to refresh US copyright law in the light of new technologies. To many people, however, DMCA restrictions on security, privacy, research and the copying and sharing of information are unconstitutional under the First Amendment, the section of the US constitution that guarantees the freedom of speech.

The law makes the circumvention of copy-protection schemes illegal, even when the person avoiding the protection has paid for the work or has a fair-use right to it.

"This policy creates a big stumbling block in the area of fair use," says the EFF. "Suddenly researchers in the academic world and home users alike have new legal barriers to their use of copyrighted materials."

The law may be American, but its effect will be felt on individual freedoms worldwide.

"The biggest problem on the Internet is the universality of laws that govern Internet behaviour," says Ryk Meiring, head of the IT and e-commerce law department at law firm Spoor & Fisher. "The US can and is enforcing its provisions on the rest of the world. Contravening the DMCA could result in criminal prosecution - in your absence if necessary. A guilty verdict could have serious implications."

Just ask Dmitry Sklyarov, the Russian programmer, who wrote a software program allowing users of Adobe´s e-book software to skirt restrictions imposed on an e-book by a particular publisher. A publisher may, for example, disable the software´s read-aloud function that enables a blind person to listen to a book. Sklyarov´s program lets people circumvent this restriction. What upset Adobe, which reported Sklyarov to the Federal Bureau of Investigations (FBI), was that the same software could be used to copy the entire book and, it was feared, distribute it on the Internet.

What Sklyarov did was not illegal in Russia, or in most other countries - after all he had not breached copyright. But by showing how to circumvent a copy-protection scheme he fell foul of the DMCA. His "mistake" was to enter the US to present the results of his research at a conference. The FBI arrested him. He spent three weeks in jail, before being released on bail. At the time of writing, it seemed that the US authorities, who faced a storm of protest over his arrest, would back down on prosecution.

Copyright is by no means an ancient concept. It came into being early in the 20th Century. Copyright law is designed to balance the competing rights of creators to exploit their work, entrepreneurs to receive a return on their investment and the public to gain access to works. It is not intended to give authors a monopoly over their works. On the contrary, the US constitution states: "(Congress has the power) to promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

According to Richard Stallman, president of the Free Software Foundation, the US Supreme Court has stated repeatedly that promoting progress means bringing benefit to the users of copyrighted works.

The notion of "fair use" furthers the goal of disseminating knowledge to the public. It refers to an individual´s right to use copyrighted material in a reasonable manner without the consent of the copyright owner, says the EFF. This is an intellectual property bargain that places the interests of the user above those of the author. But powerful economic forces lobbying governments to tip the balance in favour of producers and marketers of copyrighted material are eroding the public´s fair-use rights.

And it is the Internet that is mobilising them. This global network has dramatically reduced the production and distribution costs associated with the dissemination of information. Information expressed in various digital formats is easy to reproduce. Digital information can be made immediately accessible to anyone, anywhere. Anyone can become an information provider, able to generate and distribute ideas at the speed of light.

Replace "generate and distribute" with "copy and distribute" and we hit the nub of the problem. The publishing industry - be that music, books, movies or software - is afraid that unfettered copying will impinge on its ability to maximise profits.

"Just as the monks feared the impact of the printing press, the publishers today are afraid of a system where knowledge is freely shared because they cannot control it," says John Perry Barlow, co-founder of the EFF.

What is indisputable is that the simplicity of digital copying has led to an infringement of copyright on a much greater scale than was ever thought possible. Kick-started by music file-sharing service Napster, which took the world by storm, technology developments, such as improved compression methods, have seen publishers scrambling for their legal advisers. Their response has been two-fold: seek changes to copyright legislation and use technology to block users from copying digital content.

The result was the passage of the DMCA. Many of the provisions set out in the Act, Barlow says, are considered by a growing number of people to be "overbroad" and "too restrictive", inhibiting the public´s fair-use and other rights. "This act was shuffled through Congress in the face of intense lobbying from the RIAA, with little input from anyone else - including the content creators themselves."

In an article published in the New York Times, Prof Lawrence Lessig, a law lecturer at Stanford University, explains why the DMCA is viewed by some as an infringement on people´s rights. "The DMCA outlaws technologies designed to circumvent other technologies that protect copyrighted material. It is law, protecting software code, protecting copyright. The trouble is, however, technologies that protect copyrighted material are never as subtle as the law of copyright. Copyright law permits fair use of copyrighted material; technologies that protect copyrighted material need not. Copyright law protects for a limited time; technologies have no such limit.

"Thus, when the DMCA protects technology that, in turn, protects copyrighted material, it often protects much more broadly than copyright law does. It makes criminal what copyright law would forgive."

It is this legislation that US industry has invoked against Felton, Sklyarov and others before them.

It is the continuation of a trend already in evidence, says Stallman, one that sees publishers being awarded greater powers for longer periods. "Legislators pay lip service to the idea that copyright serves the public, while, in fact, giving publishers whatever they ask for."

In 1995, the US extended the copyright on already-published works written since the Twenties. "This is a giveaway, with no possible benefit to the public," Stallman says. Consequently, no new material has passed into the public domain since then.

The bill also extended the copyright of works recently written. Copyright now lasts 95 years instead of 75. Theoretically, this increases the incentive to write new works.

So what are the answers? For authors and publishers it is simple: enforce and protect.

Microsoft will force users who buy its upcoming Windows XP operating system to activate the product by contacting the company during a 30-day grace period. The system, that you have paid for and own, will shut down if you don´t. Also, every time a major configuration change is made to your PC, you will need to call Microsoft for a code to reinstall your own software. Microsoft justifies the action as a means to counteract piracy.

Research and development dollars are also being invested in technologies that prevent users from copying digital information on to other formats. Digital watermarking schemes will dictate "usage rules" to compliant devices (CD players and VCRs). So a device will enforce the rules placed on a song by a record company about the number of copies that may be made of a file. The problem is they usually prevent the public from exercising most types of fair use and don´t expire when a work is due to pass into the public domain.

ContentGuard, a digital rights management company backed by Xerox and Microsoft, announced recently that it had received a patent for a "digital ticket" that lets copyright holders distribute and track people´s access to digital goods such as music, video, e-books and images. With this, users can view an e-book or listen to music for a specified number of times.

To freedom activists, the concept is abhorrent. "Imagine not being able to borrow a book from a library, lend a book to a friend or buy a second-hand book," says Stallman. "In the US, Australia and Europe, publishers have succeeded in censoring these activities through e-books. All they need to do now is get readers to switch from paper books to e-books. Then their freedom will be gone.

" Barlow sees this as being the end of the generally shared system of knowledge. "We had the opportunity to be the greatest ancestors the world has ever known. At our fingertips is an extraordinary ecosystem that is democratising access to art, science and other kinds of information. A system that held the promise for greater societal good. But instead we are rapidly converting content that was once freely available into closed, proprietary product´. Knowledge that should be shared is being fenced off into private preserves and we´ll all be the poorer for it."

Stallman believes that a gradual shortening of the copyright period and an acknowledgement of the public´s right to use digital technology to copy for their own, non-commercial purposes will go some way toward addressing the problem. "By seeing if and when a measurable diminution in publication occurs, we will learn how much copyright power is really necessary to achieve the public´s purposes (to continue the flow of original knowledge). We must judge this by actual observation, not by what publishers say will happen, because they have every incentive to make exaggerated predictions of doom if their powers are reduced in any way."

For Barlow the solution requires a new approach. "Once we were able to drink indefinitely from the containers of knowledge that we bought. Now we find ourselves headed in a direction where you cannot drink unless you pay by the sip. To suggest selling the container with a licence to take five sips is the wrong way to approach the problem."

Barlow believes conveying knowledge should be viewed as a service rather than the creation of a material product. Thus, the author should be paid for the service of creation, as any professional is paid, not on the basis of the number of items sold.

Should we fail to find a balance, he says, "we will nip in the bud this ecosystem to protect some institutions that are relatively minor in the greater scheme of things".

Sasha Planting


Date published: 2001/08/01
Author: Sasha Planting

Tags: digital copyright music movies software