Thursday, May 16, 2002 10:08:16 PM
OT-Digital Content Protection
May 16, 2002
By: Don Labriola
"The Congress shall have the Power to … promote the Progress Of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
--The "Copyright provision" of the United States Constitution, Article I, Section 8, ratified 1788
"No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that is primarily designed or produced for the purpose of circumventing a technological measure that controls access to a (copyrighted) work."
--Digital Millennium Copyright Act, Section 1201, signed into law October 1998
Forget about religion and politics. One of the best ways to start a bar fight in Silicon Valley is to talk in a loud voice about copy protection. Almost everyone has an opinion on the subject, and few take their positions lightly.
The situation is so bad that opponents can't even agree on which issues to argue or what language to use. Big-player content providers focus on legal and moral concerns, citing violations of the far-reaching Digital Millennium Copyright Act (DMCA), and condemning the "wholesale theft" of copyrighted materials. Crackers, hackers and peer-to-peer devotees are more pragmatic, stressing the impossibility of preventing the "sharing" and "personal use" of content, and insisting that such activities don't significantly impact the incomes of creators who have already been ripped off by giant media conglomerates.
The open-source community denounces efforts to transform the "information wants to be free" Internet culture into a tightly controlled digital marketplace. Constitutionalists and free-speech advocates argue that current copyright law undermines the long-held balance between creators' rights and the public interest. Peripheral to all these arguments is the escalating battle between the industry consortia that develop increasingly sophisticated content-protection mechanisms and the renegades who quickly defeat them. Balkan politics were never this complex!
None of this made it any easier for us to write an objective assessment of the latest content-protection technologies. We found many of these systems impossible to document from primary sources, due to restrictive non-disclosure clauses embedded into licensing agreements. Otherwise-loquacious spokespersons stopped returning our calls when questioning turned to the inner workings of their anti-piracy initiatives. Even when we managed to infer technical details by cross-checking public patent records against analyses posted on hacker sites, we were prevented by law from publishing anything that could be construed as a potential circumvention aid. Nor could we identify any online source that might also distribute cracking tools. The stakes were high, paranoia was rampant, and people simply weren't talking.
With that brief introduction to a highly complex topic, welcome to our in-depth analysis of digital content protection issues and technologies. Over the next few weeks, we'll be exploring numerous critically important topics, describing many content protection technologies, and numerous problems in their application and usage. We'll preface it all with a brief history of copyright protection over the last few hundred years.
A Little Background: The Roots of Copyright
The best way to understand how we arrived in such a humorless place is to take a few steps back. The way we understand intellectual-property rights today is only a snapshot of a continuously evolving relationship between copyright law and technology.
The most commonly cited precedent for American copyright is a 1710 British decree called the Statute of Anne. Introducing itself as "an act for the encouragement of learning", this law gave printers a 28-year monopoly on the reproduction of books that they had registered with the Crown. It was ostensibly designed to control heretical texts that were deemed a danger to society, but it also helped eradicate rogue Scottish publishers who, by printing pirate editions of registered books, had been cutting into the profits of Crown-licensed printers. As Scott Moscowitz (CEO of security-software company Blue Spike, Inc.) has noted, the parallels to today's copyright wars are striking.
What made the Statute of Anne particularly noteworthy was its strict limitation on the duration of these printing monopolies. Not only did it acknowledge and protect the rights of legitimate publishers, but it also thwarted those who sought to control and print popular texts indefinitely. Its 28-year term was intended to motivate authors and to allow printers to recover sunk costs. At the end of that period, rights owners were considered to have been fairly compensated and books became property of the general populace. In this way, the Statute provided an elegant balance between the public good and the interests of content owners.
The founding fathers of this country considered this balance crucial enough to invest Congress with the power to give authors and inventors exclusive rights to their creations for a limited time. This resulted in the 1790 Copyright Act, which, in the spirit of the Statute of Anne, established 28-year protections for books, maps, and charts. Amendments later shifted the balance a bit by extending this duration to 42 years. But they also added protection for many other types of works, including musical compositions, photographs, works of art, dramatic compositions, and even musical performances.
US Copyright Act of 1909
After a century of relative stability, the expansive US Copyright Act of 1909 tilted the scales much further toward creators' rights by boosting copyright terms to 56 years. It also changed the definition of controlled activities from "printing" to "copying", a revision that was prompted by composers' concerns about mechanical recording devices like phonographs and player pianos. This change greatly expanded the scope of copyright law at the time, but with photocopiers, magnetic tape and the Internet still the stuff of science fiction, it wasn't yet obvious that it would also lay the groundwork for our modern interpretation of creators' rights.
It took over sixty years for the other shoe to fall. In 1972, Congress passed another far-reaching amendment that ushered in an era of increasingly frequent overhauls of US copyright law. In response to the recording industry's concerns about consumer tape recorders, this latest revision added specific protections for the electronic reproduction and distribution of sound recordings. But it also established a home-recording exemption that helped preserve the tradition of balance. Electronic media had broadened the meaning of the term "copying" so dramatically that lawmakers felt the need to compensate with the concept of Fair Use. Although it's never been defined in absolute terms, Fair Use implies that the public interest can be served by defining cases in which copyright owners cannot control what is done with their properties - in this case, by allowing citizens to duplicate protected works for private or academic use.
Only four years later, another overhaul lengthened the copyright term to fifty years beyond the death of the author or, when corporations own a copyright, to a flat 75 years. Many believed that this extension was driven in part by well-connected content providers concerned about the imminent lapse of gigabuck properties into the public domain--a far cry from the copyright law's original intent to ensure a reasonable return for a limited period of time.
The balance shifted even further toward rights owners over the next few decades, as computer programs were added to the list of protected works, restrictions were placed on the rental of audio recordings and computer software, and penalties for willful infringement were raised to a maximum of $100,000.
Copyright in the Digital Age
Rights holders didn't always fare as well in court as they did on Capitol Hill. One such case was the Supreme Court's landmark 1984 Sony vs. Universal Studios case. Outraged by the popularity of Sony's Betamax VCRs, Universal (and Walt Disney Productions) attempted to outlaw the practice of using videotape to time-shift TV programming. The Ninth Circuit court initially agreed that this was infringement, effectively outlawing the VCR. Upon appeal, the Supreme Court struggled mightily with the case through two terms, finally deciding for Sony by a single vote. Had one justice voted differently, the VCR industry would have collapsed, with Sony and other manufacturers potentially liable for hundreds of millions of dollars in damages. What ultimately swayed the court was its unwillingness to retroactively brand millions of Americans criminals for activities that the studios could not demonstrate caused them financial harm, but which obviously benefited the public.
Brief History of Copyright Law
Date Description
1710 British decree "Statute of Anne" which gives printers a 28-year monopoly on the reproduction of books that they had registered with the Crown
1788 The "Copyright provision" of the United States Constitution, Article I, Section 8, ratified.
1790 US Congress passes Copyright Act based on "Statute of Anne", which gives 28 year protection for books, maps & charts.
1909 New US Copyright Act boosts terms to 56 years while expanding coverage of protected products.
1972 Congress expands Copyright law with specific protections for the electronic reproduction and distribution of sound recordings, while introducing notion of "Fair Use".
1984 Supreme Court approves legality of VCRs in Sony vs. Universal Studios.
1992 Audio Home Recording Act (AHRA) ordered all consumer digital-audio recorders be equipped with a Serial Copy Management System (SCMS) that met Fair Use standards.
1995 Digital Performance Right in Sound Recordings Act (DPRA) extended copyright to services like webcasting and digital-cable audio by establishing a “public performance” right that controls the digital transmission of sound recordings.
1998 Sonny Bono Copyright Term Extension Act added yet another 20 years to the duration of most copyrights.
1998 Digital Millennium Copyright Act (DMCA) defines tough new guidelines for the control of digital content, establishing "moral rights" for non-audiovisual performers.
1999 Uniform Computer Information Transactions Act (UCITA) attempts to standardize software-licensing laws in all fifty states, while legitimizing "shrinkwrapped licensing".
The next crisis was triggered in 1987 by the appearance of Digital Audio Tape (DAT) recorders. As the first consumer digital-recording technology, DAT raised the bar by enabling professional bootleggers to create multiple generations of perfect copies. Alarmed by the potential for enormous losses, the recording industry did its best to kill the medium, just as Hollywood had attempted to outlaw VCRs a decade earlier. Manufacturers were threatened with huge contributory infringement suits, and record labels refused to release albums in DAT format and floated controversial copy-protection technologies that many believed degraded sound quality. After years of bickering, it took an act of Congress to resolve the debate. The 1992 Audio Home Recording Act (AHRA) ordered all consumer digital-audio recorders to be equipped with a Serial Copy Management System (SCMS) that met Fair Use standards by permitting only one generation of copies from commercial recordings. It also exempted manufacturers from prosecution for infringement in exchange for collecting a royalty on recorders and blank media that would compensate copyright holders for presumed piracy losses. Surprisingly, this provision did little to hobble large-scale bootlegging operations by excusing high-end pro-quality DAT recorders from the SCMS requirement.
Despite its attempt to effect a compromise, the AHRA ultimately gave the recording industry everything it wanted. Although DAT had once been eagerly anticipated by both consumers and audiophiles, years of delaying tactics and public disdain for copy-protection eventually ended its chances as a consumer format. Similar constraints helped put nails in the coffins of subsequent digital audio-recording technologies, such as the Philips Digital Compact Cassette and Sony's original MiniDisc.
Why MP3 Continues to Flourish
Strangely enough, it was a loophole in the AHRA that helped set the stage for today's battles over MP3 files, handheld players, and CD rippers. Devices like computers and portable digital-music players are exempt from SCMS and royalty requirements because they're not designed solely as "digital recording devices". But because of this exclusion, hardware and software vendors are subject to lawsuit should they produce products that primarily serve as pirating tools - as Diamond Multimedia found in 1998, when it was unsuccessfully sued by a record industry livid about its Rio handheld MP3 player.
After the AHRA in 1992, the next six years saw a flurry of Congressional activity, putting the final pieces of our current copyright law into place. The 1995 Digital Performance Right in Sound Recordings Act (DPRA) extended copyright enforcement to services like webcasting and digital-cable audio by establishing a "public performance" right that controls the digital transmission of sound recordings.
Passed at the urging of the anti-piracy Business Software Alliance (BSA) consortium, the 1997 No Electronic Theft (NET) Act essentially made the act of bartering pirated software legally equivalent to selling stolen goods. It also boosted maximum penalties for infringement to a staggering five years in prison or $250,000 fine (recently increased to $300,000) - even for infringements that involve only the possession or trading of unlicensed content. Although these penalties are unlikely to be imposed upon an end-user who uploads and downloads only a few pirated applications from a file-sharing service, the possibility exists.
Particularly disturbing to some was the 1998 Sonny Bono Copyright Term Extension Act, which added yet another twenty years to the duration of most copyrights. The bill passed unanimously while the nation was engrossed with impeachment hearings, and few pundits noticed that it was enacted just in time to once again rescue a key Disney mouse from the public domain. Intense lobbying was provided by interests as diverse as Time-Warner, Carlos Santana, and Disney itself, which reportedly made contributions to 18 of the bill's 25 sponsors, Senate Majority Leader Trent Lott, and the National Republican Senatorial Committee.
Even worse, this time there was no pretense about some lawmakers' desire to transform the Constitution's time-limited monopoly into a permanent one, as Representative Mary Bono proclaimed on the record, "Sonny wanted the term of copyright protection to last forever, (but) I am informed by staff that such a change would violate the Constitution… As you know, there is also (MPAA President and CEO) Jack Valenti's proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress." Aside from the obvious fact that there's no practical difference between forever and "forever less one day", these statements made it clear just how far copyright law had strayed from its original intent. The Sonny Bono Act guaranteed that virtually no properties (especially those nearing completion of their copyright period) would enter the public domain for twenty more years, and some fear that Congress stands ready to continue extending copyright terms to ensure that no work created after 1923 ever becomes public property (providing a comfortable five-year cushion for even old-timers like Mickey Mouse, who first appeared in 1928).
The Last Straws--DMCA and UCITA
The digital content industry's most powerful weapon to date is the 1998 Digital Millennium Copyright Act (DMCA). This sweeping law was based on a pair of United Nations agreements known as the WIPO (World Intellectual Property Organisation) Treaties, which were in turn driven by special interests like the IFPI (International Federation of Phonograph Industries), an international consortium that represents the global recording industry. These accords define tough new guidelines for the control of digital content, affording owners broad rights to determine whether and how their works are copied, rented, performed, and distributed. They also establish a "moral right" for non-audiovisual performers to prevent modifications to their work that might damage their reputations - a restraint that could be construed to restrict some types of satire and parody. Most importantly, they outlaw the circumvention of access and copy controls that owners insert into digital content, which in this country has been interpreted to also prohibit most links to Web sites that offer piracy tools.
Ratifying the WIPO Treaties obligated the United States to pass a law like the DMCA, but it can't force Congress to violate the Constitution. Since its inception, the DMCA has been a target for free-information advocates who argue that its toothiest provisions are unconstitutional, and too broad to accommodate the concepts of free speech, Fair Use, public access, and the public domain. They point to the example of an encrypted DVD or digital download that packages even a tiny amount of copyrighted material with publicly owned content like a 19th-Century novel, historic sound recording, or early motion picture. Under the DMCA, it would be illegal to decrypt and copy the public-domain material if doing so would mean exposing the copyrighted content.
The law is almost as restrictive when a copy-protected title contains only material that has entered the public domain, either before or after the title is published. Even in this case, it would be a crime to distribute circumvention tools that allow access to such a title, if those tools could be used to unblock other copyrighted works. Most damning, DMCA foes maintain, is the way the law virtually eliminates the concept of Fair Use by requiring rights-holders' permission to perform tasks like making personal backups, or excerpting a work for journalistic, critical, or academic purposes.
DMCA proponents reply that, like most copyright legislation, the law is merely a response to new technologies that change the way works are created or distributed. They maintain that it serves the public interest by encouraging rights owners to embrace online-distribution models and by promoting the adoption of digital media like DVD and HDTV. They also note that, although the American Home Recording Act legalized Fair Use home-recording, it did not obligate rights-owners to make this power available to consumers and, in any case, the AHRA has no jurisdiction over personal computers and handheld players, which are not considered digital recording devices.
Uniform Computer Information Transactions Act
Potentially even more divisive is the proposed Uniform Computer Information Transactions Act (UCITA), which was drafted in 1999 by the NCCUSL (National Conference of Commissioners on Uniform State Laws) and forwarded to each State legislature for consideration. Driven by key players like Microsoft, AOL, and the BSA (Business Software Alliance), the official goal of UCITA is to standardize software-licensing laws in all fifty states. But it also attempts to displace the concept of selling copies of software, as defined by existing copyright law, by legitimizing the practice of shrink-wrapped licensing. In this latter scenario, an instance of software is never actually "sold". Instead, it remains the exclusive property of the vendor, and customers are allowed to merely use it under the terms of a standardized click-through licensing agreement.
Of particular concern is the fact that UCITA grants software vendors unprecedented power to circumvent safeguards guaranteed by copyright, consumer-protection, and privacy laws. Under the current system, licensing terms that are deemed illegal or unfair can be challenged in court. But UCITA would give vendors the right to unilaterally enforce virtually any condition that a user accepts by clicking a lengthy agreement. It would enable software publishers to rig applications with a back door that lets them monitor licensing compliance or collect sensitive customer data. In fact, vendors could remotely shut down programs when they think an infringement has occurred, prohibit customers from suing because of defective products, create single-user licenses that must be repurchased when employees are replaced or companies merge, or deny libraries the right to lend out software or make interlibrary loans. UCITA would also allow software companies to choose the state in which failed lawsuits against them would be heard. Worst of all, because most click-through licensing occurs during the setup process, vendors would be free to impose non-negotiable terms after a purchase is made.
After being passed in Maryland and Virginia, outspoken criticism by the Federal Trade Commission, consumer-advocacy groups, State Attorneys General, and library associations slowed the UCITA's progress elsewhere. But what had been shaping up to look like an extended battle may have been short-circuited when the American Bar Association decided in August 2001 to independently evaluate the measure - a move that observers say could result in significant revision. The final outcome is still uncertain, but with software vendors moving to subscription, rental, Web-service, and application-hosting models, the industry is likely to continue lobbying for the passage of similar measures.
The Bottom Line
No one argues the fact that the scope of copyright law has grown dramatically over the last century. What's at issue is whether this radical transformation was justified.
The audiocassette, photocopier, and DAT recorder all gave consumers new ways to manipulate content without rights-holders' consent. But none of these technologies created as profound a disruption as the Internet. With tens of millions of surfers freely trading copyrighted music, movies and software, it wasn't hard to convince Congress that a drastic solution was needed to prevent crippling losses to some of the nation's most powerful businesses.
As a prime and very recent example of the magnitude of the problem, there has been a rash of Internet downloads of pirated versions of the new Star Wars: Episode II-Attack of the Clones (likely derived from somebody sneaking a DV camera into an early screening). Jack Valenti claimed that 350,000 films per day are illegally downloaded. And that's just with 15% of homes being broadband-enabled. Valenti said "with what velocity will this avalanche of thievery roar when broadband is more widely used?".
Public-interest groups and free-speech advocates view the Internet from a different perspective, charging that its unprecedented potential for restraint of trade and invasion of privacy must be offset by adding, rather than diminishing, consumer protections. They note that Congress acted quickly to shield the public from online pornography and clandestine information-gathering, but in the case of intellectual property, it has consistently sided with content-industry special interests. As a result, they claim, copyright holders are no longer compelled to tolerate activities that would once have been considered Fair Use. Creators take for granted the fact that their properties will never enter the public domain, and a plethora of sophisticated rights-management initiatives are poised to reinvent the Internet as the most secure and meticulously controlled marketplace ever devised.
The repeated failure of copy-protection initiatives in the software industry has convinced many that the same approach won't provide lasting solutions to content providers today. Almost any anti-piracy measure can be circumvented by a determined user and, as the software and recording industries have discovered, any company in an adversarial relationship with its customers finds itself expending endless resources battling the people who buy its products. Denying consumers privileges that they once enjoyed can backfire by transforming loyal customers into crackers who rip and post content out of spite. A better approach, some say, is to follow the lead of industries that have developed workable business models that allow free access to copyrighted material. Such solutions may sacrifice a potential revenue stream and surrender some control over how properties are distributed and used. But they can produce a reasonable return, serve the public interest, and don't turn customers into pirates.
Segments of the entertainment industry claim to be experimenting with online-distribution systems, but entrenched corporate cultures and an array of technical, political, and financial hurdles have made the job a massive undertaking. Adding a sense of urgency is the fact that, should they miss this window of opportunity, even the biggest players may find themselves out of the loop. In the case of the recording industry, an increasing number of artists, including nationally known acts like Alanis Morissette and Aimee Mann, have already discovered that it's far more profitable to sell directly to fans than to sign away their rights to a record label. Nonetheless, a scalable, secure digital-distribution system that doesn't pit consumers against creators is most likely a long way off. In the meantime, there's always copy protection.
And with that, we'll be diving deeply DVD content protection schemes coming up in Part II. We hope our intro to the subject of copyright law and content protection was informative and useful.
Copyright (c) 2002 Ziff Davis Media Inc. All Rights Reserved.
http://www.extremetech.com/print_article/0,3428,a=27038,00.asp
culater
May 16, 2002
By: Don Labriola
"The Congress shall have the Power to … promote the Progress Of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
--The "Copyright provision" of the United States Constitution, Article I, Section 8, ratified 1788
"No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that is primarily designed or produced for the purpose of circumventing a technological measure that controls access to a (copyrighted) work."
--Digital Millennium Copyright Act, Section 1201, signed into law October 1998
Forget about religion and politics. One of the best ways to start a bar fight in Silicon Valley is to talk in a loud voice about copy protection. Almost everyone has an opinion on the subject, and few take their positions lightly.
The situation is so bad that opponents can't even agree on which issues to argue or what language to use. Big-player content providers focus on legal and moral concerns, citing violations of the far-reaching Digital Millennium Copyright Act (DMCA), and condemning the "wholesale theft" of copyrighted materials. Crackers, hackers and peer-to-peer devotees are more pragmatic, stressing the impossibility of preventing the "sharing" and "personal use" of content, and insisting that such activities don't significantly impact the incomes of creators who have already been ripped off by giant media conglomerates.
The open-source community denounces efforts to transform the "information wants to be free" Internet culture into a tightly controlled digital marketplace. Constitutionalists and free-speech advocates argue that current copyright law undermines the long-held balance between creators' rights and the public interest. Peripheral to all these arguments is the escalating battle between the industry consortia that develop increasingly sophisticated content-protection mechanisms and the renegades who quickly defeat them. Balkan politics were never this complex!
None of this made it any easier for us to write an objective assessment of the latest content-protection technologies. We found many of these systems impossible to document from primary sources, due to restrictive non-disclosure clauses embedded into licensing agreements. Otherwise-loquacious spokespersons stopped returning our calls when questioning turned to the inner workings of their anti-piracy initiatives. Even when we managed to infer technical details by cross-checking public patent records against analyses posted on hacker sites, we were prevented by law from publishing anything that could be construed as a potential circumvention aid. Nor could we identify any online source that might also distribute cracking tools. The stakes were high, paranoia was rampant, and people simply weren't talking.
With that brief introduction to a highly complex topic, welcome to our in-depth analysis of digital content protection issues and technologies. Over the next few weeks, we'll be exploring numerous critically important topics, describing many content protection technologies, and numerous problems in their application and usage. We'll preface it all with a brief history of copyright protection over the last few hundred years.
A Little Background: The Roots of Copyright
The best way to understand how we arrived in such a humorless place is to take a few steps back. The way we understand intellectual-property rights today is only a snapshot of a continuously evolving relationship between copyright law and technology.
The most commonly cited precedent for American copyright is a 1710 British decree called the Statute of Anne. Introducing itself as "an act for the encouragement of learning", this law gave printers a 28-year monopoly on the reproduction of books that they had registered with the Crown. It was ostensibly designed to control heretical texts that were deemed a danger to society, but it also helped eradicate rogue Scottish publishers who, by printing pirate editions of registered books, had been cutting into the profits of Crown-licensed printers. As Scott Moscowitz (CEO of security-software company Blue Spike, Inc.) has noted, the parallels to today's copyright wars are striking.
What made the Statute of Anne particularly noteworthy was its strict limitation on the duration of these printing monopolies. Not only did it acknowledge and protect the rights of legitimate publishers, but it also thwarted those who sought to control and print popular texts indefinitely. Its 28-year term was intended to motivate authors and to allow printers to recover sunk costs. At the end of that period, rights owners were considered to have been fairly compensated and books became property of the general populace. In this way, the Statute provided an elegant balance between the public good and the interests of content owners.
The founding fathers of this country considered this balance crucial enough to invest Congress with the power to give authors and inventors exclusive rights to their creations for a limited time. This resulted in the 1790 Copyright Act, which, in the spirit of the Statute of Anne, established 28-year protections for books, maps, and charts. Amendments later shifted the balance a bit by extending this duration to 42 years. But they also added protection for many other types of works, including musical compositions, photographs, works of art, dramatic compositions, and even musical performances.
US Copyright Act of 1909
After a century of relative stability, the expansive US Copyright Act of 1909 tilted the scales much further toward creators' rights by boosting copyright terms to 56 years. It also changed the definition of controlled activities from "printing" to "copying", a revision that was prompted by composers' concerns about mechanical recording devices like phonographs and player pianos. This change greatly expanded the scope of copyright law at the time, but with photocopiers, magnetic tape and the Internet still the stuff of science fiction, it wasn't yet obvious that it would also lay the groundwork for our modern interpretation of creators' rights.
It took over sixty years for the other shoe to fall. In 1972, Congress passed another far-reaching amendment that ushered in an era of increasingly frequent overhauls of US copyright law. In response to the recording industry's concerns about consumer tape recorders, this latest revision added specific protections for the electronic reproduction and distribution of sound recordings. But it also established a home-recording exemption that helped preserve the tradition of balance. Electronic media had broadened the meaning of the term "copying" so dramatically that lawmakers felt the need to compensate with the concept of Fair Use. Although it's never been defined in absolute terms, Fair Use implies that the public interest can be served by defining cases in which copyright owners cannot control what is done with their properties - in this case, by allowing citizens to duplicate protected works for private or academic use.
Only four years later, another overhaul lengthened the copyright term to fifty years beyond the death of the author or, when corporations own a copyright, to a flat 75 years. Many believed that this extension was driven in part by well-connected content providers concerned about the imminent lapse of gigabuck properties into the public domain--a far cry from the copyright law's original intent to ensure a reasonable return for a limited period of time.
The balance shifted even further toward rights owners over the next few decades, as computer programs were added to the list of protected works, restrictions were placed on the rental of audio recordings and computer software, and penalties for willful infringement were raised to a maximum of $100,000.
Copyright in the Digital Age
Rights holders didn't always fare as well in court as they did on Capitol Hill. One such case was the Supreme Court's landmark 1984 Sony vs. Universal Studios case. Outraged by the popularity of Sony's Betamax VCRs, Universal (and Walt Disney Productions) attempted to outlaw the practice of using videotape to time-shift TV programming. The Ninth Circuit court initially agreed that this was infringement, effectively outlawing the VCR. Upon appeal, the Supreme Court struggled mightily with the case through two terms, finally deciding for Sony by a single vote. Had one justice voted differently, the VCR industry would have collapsed, with Sony and other manufacturers potentially liable for hundreds of millions of dollars in damages. What ultimately swayed the court was its unwillingness to retroactively brand millions of Americans criminals for activities that the studios could not demonstrate caused them financial harm, but which obviously benefited the public.
Brief History of Copyright Law
Date Description
1710 British decree "Statute of Anne" which gives printers a 28-year monopoly on the reproduction of books that they had registered with the Crown
1788 The "Copyright provision" of the United States Constitution, Article I, Section 8, ratified.
1790 US Congress passes Copyright Act based on "Statute of Anne", which gives 28 year protection for books, maps & charts.
1909 New US Copyright Act boosts terms to 56 years while expanding coverage of protected products.
1972 Congress expands Copyright law with specific protections for the electronic reproduction and distribution of sound recordings, while introducing notion of "Fair Use".
1984 Supreme Court approves legality of VCRs in Sony vs. Universal Studios.
1992 Audio Home Recording Act (AHRA) ordered all consumer digital-audio recorders be equipped with a Serial Copy Management System (SCMS) that met Fair Use standards.
1995 Digital Performance Right in Sound Recordings Act (DPRA) extended copyright to services like webcasting and digital-cable audio by establishing a “public performance” right that controls the digital transmission of sound recordings.
1998 Sonny Bono Copyright Term Extension Act added yet another 20 years to the duration of most copyrights.
1998 Digital Millennium Copyright Act (DMCA) defines tough new guidelines for the control of digital content, establishing "moral rights" for non-audiovisual performers.
1999 Uniform Computer Information Transactions Act (UCITA) attempts to standardize software-licensing laws in all fifty states, while legitimizing "shrinkwrapped licensing".
The next crisis was triggered in 1987 by the appearance of Digital Audio Tape (DAT) recorders. As the first consumer digital-recording technology, DAT raised the bar by enabling professional bootleggers to create multiple generations of perfect copies. Alarmed by the potential for enormous losses, the recording industry did its best to kill the medium, just as Hollywood had attempted to outlaw VCRs a decade earlier. Manufacturers were threatened with huge contributory infringement suits, and record labels refused to release albums in DAT format and floated controversial copy-protection technologies that many believed degraded sound quality. After years of bickering, it took an act of Congress to resolve the debate. The 1992 Audio Home Recording Act (AHRA) ordered all consumer digital-audio recorders to be equipped with a Serial Copy Management System (SCMS) that met Fair Use standards by permitting only one generation of copies from commercial recordings. It also exempted manufacturers from prosecution for infringement in exchange for collecting a royalty on recorders and blank media that would compensate copyright holders for presumed piracy losses. Surprisingly, this provision did little to hobble large-scale bootlegging operations by excusing high-end pro-quality DAT recorders from the SCMS requirement.
Despite its attempt to effect a compromise, the AHRA ultimately gave the recording industry everything it wanted. Although DAT had once been eagerly anticipated by both consumers and audiophiles, years of delaying tactics and public disdain for copy-protection eventually ended its chances as a consumer format. Similar constraints helped put nails in the coffins of subsequent digital audio-recording technologies, such as the Philips Digital Compact Cassette and Sony's original MiniDisc.
Why MP3 Continues to Flourish
Strangely enough, it was a loophole in the AHRA that helped set the stage for today's battles over MP3 files, handheld players, and CD rippers. Devices like computers and portable digital-music players are exempt from SCMS and royalty requirements because they're not designed solely as "digital recording devices". But because of this exclusion, hardware and software vendors are subject to lawsuit should they produce products that primarily serve as pirating tools - as Diamond Multimedia found in 1998, when it was unsuccessfully sued by a record industry livid about its Rio handheld MP3 player.
After the AHRA in 1992, the next six years saw a flurry of Congressional activity, putting the final pieces of our current copyright law into place. The 1995 Digital Performance Right in Sound Recordings Act (DPRA) extended copyright enforcement to services like webcasting and digital-cable audio by establishing a "public performance" right that controls the digital transmission of sound recordings.
Passed at the urging of the anti-piracy Business Software Alliance (BSA) consortium, the 1997 No Electronic Theft (NET) Act essentially made the act of bartering pirated software legally equivalent to selling stolen goods. It also boosted maximum penalties for infringement to a staggering five years in prison or $250,000 fine (recently increased to $300,000) - even for infringements that involve only the possession or trading of unlicensed content. Although these penalties are unlikely to be imposed upon an end-user who uploads and downloads only a few pirated applications from a file-sharing service, the possibility exists.
Particularly disturbing to some was the 1998 Sonny Bono Copyright Term Extension Act, which added yet another twenty years to the duration of most copyrights. The bill passed unanimously while the nation was engrossed with impeachment hearings, and few pundits noticed that it was enacted just in time to once again rescue a key Disney mouse from the public domain. Intense lobbying was provided by interests as diverse as Time-Warner, Carlos Santana, and Disney itself, which reportedly made contributions to 18 of the bill's 25 sponsors, Senate Majority Leader Trent Lott, and the National Republican Senatorial Committee.
Even worse, this time there was no pretense about some lawmakers' desire to transform the Constitution's time-limited monopoly into a permanent one, as Representative Mary Bono proclaimed on the record, "Sonny wanted the term of copyright protection to last forever, (but) I am informed by staff that such a change would violate the Constitution… As you know, there is also (MPAA President and CEO) Jack Valenti's proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress." Aside from the obvious fact that there's no practical difference between forever and "forever less one day", these statements made it clear just how far copyright law had strayed from its original intent. The Sonny Bono Act guaranteed that virtually no properties (especially those nearing completion of their copyright period) would enter the public domain for twenty more years, and some fear that Congress stands ready to continue extending copyright terms to ensure that no work created after 1923 ever becomes public property (providing a comfortable five-year cushion for even old-timers like Mickey Mouse, who first appeared in 1928).
The Last Straws--DMCA and UCITA
The digital content industry's most powerful weapon to date is the 1998 Digital Millennium Copyright Act (DMCA). This sweeping law was based on a pair of United Nations agreements known as the WIPO (World Intellectual Property Organisation) Treaties, which were in turn driven by special interests like the IFPI (International Federation of Phonograph Industries), an international consortium that represents the global recording industry. These accords define tough new guidelines for the control of digital content, affording owners broad rights to determine whether and how their works are copied, rented, performed, and distributed. They also establish a "moral right" for non-audiovisual performers to prevent modifications to their work that might damage their reputations - a restraint that could be construed to restrict some types of satire and parody. Most importantly, they outlaw the circumvention of access and copy controls that owners insert into digital content, which in this country has been interpreted to also prohibit most links to Web sites that offer piracy tools.
Ratifying the WIPO Treaties obligated the United States to pass a law like the DMCA, but it can't force Congress to violate the Constitution. Since its inception, the DMCA has been a target for free-information advocates who argue that its toothiest provisions are unconstitutional, and too broad to accommodate the concepts of free speech, Fair Use, public access, and the public domain. They point to the example of an encrypted DVD or digital download that packages even a tiny amount of copyrighted material with publicly owned content like a 19th-Century novel, historic sound recording, or early motion picture. Under the DMCA, it would be illegal to decrypt and copy the public-domain material if doing so would mean exposing the copyrighted content.
The law is almost as restrictive when a copy-protected title contains only material that has entered the public domain, either before or after the title is published. Even in this case, it would be a crime to distribute circumvention tools that allow access to such a title, if those tools could be used to unblock other copyrighted works. Most damning, DMCA foes maintain, is the way the law virtually eliminates the concept of Fair Use by requiring rights-holders' permission to perform tasks like making personal backups, or excerpting a work for journalistic, critical, or academic purposes.
DMCA proponents reply that, like most copyright legislation, the law is merely a response to new technologies that change the way works are created or distributed. They maintain that it serves the public interest by encouraging rights owners to embrace online-distribution models and by promoting the adoption of digital media like DVD and HDTV. They also note that, although the American Home Recording Act legalized Fair Use home-recording, it did not obligate rights-owners to make this power available to consumers and, in any case, the AHRA has no jurisdiction over personal computers and handheld players, which are not considered digital recording devices.
Uniform Computer Information Transactions Act
Potentially even more divisive is the proposed Uniform Computer Information Transactions Act (UCITA), which was drafted in 1999 by the NCCUSL (National Conference of Commissioners on Uniform State Laws) and forwarded to each State legislature for consideration. Driven by key players like Microsoft, AOL, and the BSA (Business Software Alliance), the official goal of UCITA is to standardize software-licensing laws in all fifty states. But it also attempts to displace the concept of selling copies of software, as defined by existing copyright law, by legitimizing the practice of shrink-wrapped licensing. In this latter scenario, an instance of software is never actually "sold". Instead, it remains the exclusive property of the vendor, and customers are allowed to merely use it under the terms of a standardized click-through licensing agreement.
Of particular concern is the fact that UCITA grants software vendors unprecedented power to circumvent safeguards guaranteed by copyright, consumer-protection, and privacy laws. Under the current system, licensing terms that are deemed illegal or unfair can be challenged in court. But UCITA would give vendors the right to unilaterally enforce virtually any condition that a user accepts by clicking a lengthy agreement. It would enable software publishers to rig applications with a back door that lets them monitor licensing compliance or collect sensitive customer data. In fact, vendors could remotely shut down programs when they think an infringement has occurred, prohibit customers from suing because of defective products, create single-user licenses that must be repurchased when employees are replaced or companies merge, or deny libraries the right to lend out software or make interlibrary loans. UCITA would also allow software companies to choose the state in which failed lawsuits against them would be heard. Worst of all, because most click-through licensing occurs during the setup process, vendors would be free to impose non-negotiable terms after a purchase is made.
After being passed in Maryland and Virginia, outspoken criticism by the Federal Trade Commission, consumer-advocacy groups, State Attorneys General, and library associations slowed the UCITA's progress elsewhere. But what had been shaping up to look like an extended battle may have been short-circuited when the American Bar Association decided in August 2001 to independently evaluate the measure - a move that observers say could result in significant revision. The final outcome is still uncertain, but with software vendors moving to subscription, rental, Web-service, and application-hosting models, the industry is likely to continue lobbying for the passage of similar measures.
The Bottom Line
No one argues the fact that the scope of copyright law has grown dramatically over the last century. What's at issue is whether this radical transformation was justified.
The audiocassette, photocopier, and DAT recorder all gave consumers new ways to manipulate content without rights-holders' consent. But none of these technologies created as profound a disruption as the Internet. With tens of millions of surfers freely trading copyrighted music, movies and software, it wasn't hard to convince Congress that a drastic solution was needed to prevent crippling losses to some of the nation's most powerful businesses.
As a prime and very recent example of the magnitude of the problem, there has been a rash of Internet downloads of pirated versions of the new Star Wars: Episode II-Attack of the Clones (likely derived from somebody sneaking a DV camera into an early screening). Jack Valenti claimed that 350,000 films per day are illegally downloaded. And that's just with 15% of homes being broadband-enabled. Valenti said "with what velocity will this avalanche of thievery roar when broadband is more widely used?".
Public-interest groups and free-speech advocates view the Internet from a different perspective, charging that its unprecedented potential for restraint of trade and invasion of privacy must be offset by adding, rather than diminishing, consumer protections. They note that Congress acted quickly to shield the public from online pornography and clandestine information-gathering, but in the case of intellectual property, it has consistently sided with content-industry special interests. As a result, they claim, copyright holders are no longer compelled to tolerate activities that would once have been considered Fair Use. Creators take for granted the fact that their properties will never enter the public domain, and a plethora of sophisticated rights-management initiatives are poised to reinvent the Internet as the most secure and meticulously controlled marketplace ever devised.
The repeated failure of copy-protection initiatives in the software industry has convinced many that the same approach won't provide lasting solutions to content providers today. Almost any anti-piracy measure can be circumvented by a determined user and, as the software and recording industries have discovered, any company in an adversarial relationship with its customers finds itself expending endless resources battling the people who buy its products. Denying consumers privileges that they once enjoyed can backfire by transforming loyal customers into crackers who rip and post content out of spite. A better approach, some say, is to follow the lead of industries that have developed workable business models that allow free access to copyrighted material. Such solutions may sacrifice a potential revenue stream and surrender some control over how properties are distributed and used. But they can produce a reasonable return, serve the public interest, and don't turn customers into pirates.
Segments of the entertainment industry claim to be experimenting with online-distribution systems, but entrenched corporate cultures and an array of technical, political, and financial hurdles have made the job a massive undertaking. Adding a sense of urgency is the fact that, should they miss this window of opportunity, even the biggest players may find themselves out of the loop. In the case of the recording industry, an increasing number of artists, including nationally known acts like Alanis Morissette and Aimee Mann, have already discovered that it's far more profitable to sell directly to fans than to sign away their rights to a record label. Nonetheless, a scalable, secure digital-distribution system that doesn't pit consumers against creators is most likely a long way off. In the meantime, there's always copy protection.
And with that, we'll be diving deeply DVD content protection schemes coming up in Part II. We hope our intro to the subject of copyright law and content protection was informative and useful.
Copyright (c) 2002 Ziff Davis Media Inc. All Rights Reserved.
http://www.extremetech.com/print_article/0,3428,a=27038,00.asp
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