Access Denied: The Limits of Fair Use
By Elliot Zaret

Recently, Apple Computer ran a series of advertisements touting how its computers could revolutionize the way people listen to music. The message Apple was selling was that computers constitute more than the stodgy workstations at your office that do spreadsheets and e-mail. Computers form the center of a new “digital lifestyle” that provides new ways of listening to music, looking at pictures, and making videos.

Specifically, Apple was touting how its own computers, coupled with its iTunes music software and built-in compact disk recorders, could help users compile their own music CDs. Its commercials and print ads showed how people could “rip” songs from store-bought CDs, “mix” the songs from different artists into their own personal playlists, then “burn” the songs onto a recordable CD. The computer makes it all easy.
     Apple’s slogan was simple, catchy, and hip: “Rip, Mix, Burn.” But at the end of the ads, it added another phrase: “Don’t steal music.”

Perhaps nothing sums up the current battles over digital media more than the juxtaposition of those two phrases.
From CD copying to sharing of music files over the Internet, from digital televisions to new tapeless personal video recorders like TiVo, from e-books to Internet radio stations, there is no doubt that a massive media revolution is unfolding before our eyes. The computer is dramatically changing how we interact with our music, movies, books, and other entertainment. For the average person, it’s an exciting new world of choices, convenience, and flexibility.

But the revolution means something else entirely to the owners and producers of the media. For the record
companies and movie studios, the computers are a threat to business. For them it’s a nightmare, of people downloading music for free from services like the now-defunct Napster instead of buying CDs. It’s people copying television shows or movies and sending perfect copies instantaneously
to friends or strangers. It’s personal video recorders that
automatically skip commercials so no one ever has to watch them again. It’s a world of theft and piracy.

“Rip, mix, burn. Don’t steal music.” Six words that can be viewed as a prism diffracting a spectrum of new legal battles pitting copyright against fair use.

On the one side is the entertainment industry, which wants to fight what it sees as theft and piracy through a combination of lawsuits and legislation, giving it more control over the access to media. On the other side are consumer groups and the technology industry, which want to fight what they see as a rent-seeking industry trying to protect an outdated business model at the risk of jeopardizing fair use and First Amendment rights.

The battles are being waged at every level of the legal system and in Congress. The outcome will determine how you get your entertainment and information in the future, as well as what you can do with it once you have it.

Granting Exclusive Rights
Though the technology is modern, the questions surrounding the legal ownership and control of information and artistic works have been the source of conflict and controversy for centuries. Even so, intellectual property and copyrights are relatively modern concepts.

Through the mid-16th century, printing was expensive (the Gutenberg press had just been invented in 1450), and books were mostly hand-copied by monks. That copying a text without permission might be stealing seemed absurd—if you copy the book, the owner still has the original.

In the mid-16th century Queen Mary of England issued the Star Chamber decree, giving sole control of all printed works to a single company. The idea, cemented through a series of 17th-century acts, was that by controlling the licensing and distribution, the crown could control the information itself. In short, the acts were a tool for censorship.

Eventually, the British parliament responded by passing the 1709 Statute of Anne, granting ownership to the author for a limited duration, after which the work would become public. The temporary monopoly was intended to give economic incentive to authors and to stimulate new writing. Because of the restricted duration, however, authors could avoid state censorship. The statute’s economic principles became the foundation for modern copyright law.

“The exclusive-rights holder will have the opportunity because of the exclusive rights to basically act as a monopolist—to restrict output and raise prices,” explains Christopher Sprigman, an antitrust lawyer with King & Spalding who specializes in intellectual property. “Any government granted monopoly involves a tradeoff between the incentive to create—which you hope that you are magnifying by holding out the promise of monopoly rents—and, on the other hand, the restriction on dissemination of information that would appear in a monopoly market where output is restricted.”

With that principle in mind, the framers of the U.S. Constitution crafted the copyright clause, in article 1, section 8, which gave Congress the right “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.” Congress passed its first copyright law in 1790, protecting books, maps, and charts for up to 28 years, and in 1831 amended the law to include musical works and extended the term to 42 years.

The time limitations were crucial to the founders, says Sprigman. “If you think that information has an important role in democracy, then, like the founders, you are probably wary of restrictions on the dissemination of information and the granting of exclusive rights. The grant of exclusive rights in England pursuant to the crown’s power to grant exclusive rights to patents or copyrights to printers was used by the crown as a means of controlling expression. And the reform of those laws in England and the founders’ understandings of why those laws in their original form were bad provide a window into seeing why we have the intellectual property clause in the Constitution, a clause that involves an explicit tradeoff between exclusive rights and dissemination and also limits those exclusive rights to limited times and is not perpetual.”

For the same reasons, the exclusive rights are balanced with the free speech rights of the First Amendment. Courts have always recognized there must be exceptions to copyright’s exclusivity for things like criticism and education—without those, the copyright law would stifle free speech and limit the progress it was intended to promote. In 1841 the United States Supreme Court first upheld the concept of “fair use,” allowing an author to use George Washington’s letters in a semifictional biography of the first president.

Concept of Fair Use
“ Fair use is basically a limitation on the copyright holders’ right to control copying of their work,” says Robin Gross, executive director of IP Justice, a group that advocates fair use rights in digital media. “[Fair use] tries to balance the interests—the competing legitimate interests—between the copyright holder and the public, which needs to have access to information to be able to share ideas. The copyright law does not give total control to the copyright holder over what they choose to allow or permit. There is an intentional breathing space.”

It wasn’t until 1976 that fair use was added to the copyright statute itself as part of a major rewrite of the act. In the intervening century and a half, much had changed: electricity, the phonograph, radio and television, audiotapes, and photocopy machines had vastly expanded the kinds of products and property that could be copyrighted. Although Congress had amended the legislation to add some of the new technologies along the way, the 1976 act was the first wholesale rewrite of the law. It extended the term of copyright to the life of the creator plus 50 years and attempted to deal with such uses as audio and photocopying, and to include future technologies—at least the ones it was able to foresee in an age before the personal computer.

One of the most significant steps the new act took was to codify fair use as an affirmative defense to a copyright infringement suit, but just what acts would be considered fair use was left for the courts.

“No one knows what fair use is,” says Jonathan Zittrain, codirector of the Berkman Center for Internet and Society at Harvard Law School. “It’s a four-factor test. It is a standard, decidedly not a rule. As a result, no one can tell you what is or isn’t fair use without actually going to trial—and it costs a million dollars to go to trial. So it’s not all that helpful then to know that you have a fair use right if you’re worried about being sued and then having to vindicate it through a long trial.”

But fair use advocates argue that it is a fundamental right.

“When we first created the fair use doctrine and then codified it in the copyright act, the policy grounds of that was that we have First Amendment interests in enabling people to engage in unlicensed copying in many circumstances,” says Mike Godwin, policy fellow at the Center for Democracy and Technology and author of Cyber Rights: Defending Free Speech in the Digital Age.

“If you’re writing a book review for a newspaper, you’ve got to be able to quote the book. We don’t want to shut down book reviews. There are countless other contexts. You know there’s a political scandal that’s based on a letter that’s been received by a newspaper and you want to publish the letter even though the copyright holder might not want you to, and so on. That’s a right. Whenever it’s said reductively, that fair use is merely an affirmative defense, that’s disingenuous.”

Fear of Piracy
So what does all of this have to do with Napster? Or with DVDs? Or with whether you can rip, mix, and burn CDs? In a broad sense everything, but in a narrow sense nothing. Everything, because the balancing of these constitutional rights underlies all the 21st-century battles. Nothing, because the modern copyright law was passed the year after the Sony Betamax, the first home video recorder, was released. Nothing, because the law was passed before the first PCs were sold, before audio tape recorders were popular in homes, before the Internet, before CDs and DVDs and MP3s and digital television.

Though the 1976 act brought the law up to two centuries of progress, few people anticipated that the next 25 years would offer a technology revolution that would result in more new concepts and uses for the copyright law to deal with than the preceding 200 years.

There are two facets to the new technologies that work as a double-edged sword: the ease of copying and distribution, and the ability to limit access through encryption.

First, technology has allowed anyone with a computer to make and distribute perfect copies of music files, for instance, with almost no technological know-how. That scares record labels, motion picture studios, TV networks, and news media. These companies say the technologies have enabled wide-scale “piracy” of music, movies, and books, and that strong measures have to be taken to enforce the copyright law.

“It makes copyright infringement easy. There is no degradation with digital media as there is with analog media—that is a real threat to creators of copyrighted content,” says David Kendall, a partner at Williams & Connolly who represents many players in what is often called the copyright industry, including the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA). “We’re not opposed to any kind of technology. What we do believe is that the rules of unauthorized copying and distribution should be enforced on the Internet in much the same way as they are enforced in stores that sell physical goods that have intellectual property: books, DVDs, CDs. I don’t think anybody advocates the right to shoplift those. Even if you think that they are overpriced, you’ve got to buy them.”

The industry’s fear is inherent in the economics of entertainment. It takes a lot of money to put out a CD or a movie. When a musician is signed with a label or a movie studio agrees to produce a film, the industry is gambling that it will sell enough CDs or movie tickets to recoup the millions invested, and make millions more. It’s high stakes—successes and failures are measured in millions of dollars—and anything the industry perceives as jeopardizing its ability to recoup its costs terrifies it, making it less likely to invest in a movie or band that’s not a “sure thing.”

“The copyright industries make up 5 percent of the U.S. gross domestic product…it’s a major piece of the American economy,” says Carey Ramos, a partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP who represented music publishers in the Napster case. “So I guess the starting point for the advocates of intellectual property protection is generally that if it ain’t broke, don’t fix it.”

Taken to Court
The first case against the new technologies had nothing to do with computers. In 1976 Universal Studios and Disney sued Sony for copyright infringement and asked the court to stop Sony from selling the Betamax, the first VCR, claiming it enabled unauthorized copying of television shows and movies that would cause irreparable harm to the industry.

As the case moved through the judicial system on its way to a 1984 Supreme Court decision, MPAA President Jack Valenti made a Cassandra-like prediction to Congress in 1982: “I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone…. We are going to bleed and bleed and hemorrhage, unless this Congress at least protects one industry that is able to retrieve a surplus balance of trade and whose total future depends on its protection from the savagery and the ravages of this machine.”

Despite the dire picture painted by Hollywood, the high court ruled 5–4 in Sony’s favor, saying that most people used their VCRs for “time shifting”—taping a show to watch it later—which the Court ruled was a fair use. As long as the Betamax was capable of such a significant noninfringing use, Sony could not be liable for contributory infringement.

Fifteen years later the Ninth Circuit Court of Appeals invoked the Betamax doctrine when it added “space shifting” to time shifting in the list of noninfringing uses. The case was markedly similar, with the RIAA trying to block Diamond Multi-media’s Rio, the first MP3 player. The term MP3, which has come to mean any song stored on a computer, refers to the standard for “compressing” digital music files, or making them smaller on your computer’s hard drive to fit more songs than could be fit using the uncompressed CD format. The Rio was the first hand-held device that allowed songs taken from a CD and saved as MP3s—ripped—to be taken with you, the same way the Sony Walkman allowed music cassettes to be portable.

In the unanimous 1999 ruling, the Ninth Circuit said that despite the RIAA’s fear of piracy, most people used the MP3 player to space-shift music—copy legally owned music to the new device—which the court held to be a fair use act. “Such copying is paradigmatic noncommercial personal use entirely consistent with the purposes of the Act,” the court wrote.

By that time, however, space shifting was not the only thing people were doing with MP3 files. That same year 18-year-old college dropout Shawn Fanning introduced the revolutionary Napster “peer-to-peer” (P2P) computer program, allowing anyone with a computer and an Internet connection to access other users’ files and copy them. Napster was an instant hit. Fanning gave the first test copy to 30 friends on June 1, 1999, asking them not to tell anyone about it. They didn’t listen; within days there were 4,000 users. By the end of the year 20 million people were swapping songs on Napster.

There is nothing about P2P technology that inherently has anything to do with music or piracy. The technology can be used to share any computer file. But most of Napster’s users were doing a single thing: copying MP3 music files that had been ripped from CDs.

The RIAA sued Napster in December 1999, seeking to shut it down and to collect more than $100 million in damages. Napster’s attorneys invoked the Betamax defense, arguing that even if some users are trading copyrighted materials, there are many other noninfringing uses of the system, such as trading songs by unsigned “garage” bands and exchanging other personal files like recipes. They argued that putting your files on Napster is essentially no different from the space shifting the court upheld in the Rio case.

But U.S. District Court Judge Marilyn Hall Patel didn’t buy either argument. Patel said the Betamax defense didn’t apply because there was no substantial noninfringing use.

“The court finds that any potential non-infringing use of the Napster service is minimal or connected to the infringing activity, or both,” Patel wrote in her July 2000 order to shut down the company. “The substantial or commercially significant use of the service was, and continues to be, the unauthorized downloading and uploading of popular music, most of which is copyrighted.”

Patel similarly dismissed the space-shifting argument: “The most credible explanation for the exponential growth of traffic to the website is the vast array of free MP3 files offered by other users—not the ability of each individual to space-shift music she already owns. Thus, even if space-shifting is a fair use, it is not substantial enough to preclude liability under the staple article of commerce doctrine.”

A little more than a year after it began, Napster was, as they say, all over but the shouting. The Ninth Circuit upheld Patel’s ruling, saying that because Napster had a centralized directory and offered search functions, it could filter out copyrighted works. Since it didn’t, it was liable for contributory infringement. The company was ordered to filter out copyrighted songs. After initial attempts at compliance, Napster shut down.

Even fair use advocates now acknowledge that trading songs on Napster is not a fair use. That said, they argue that the industry is using its victory and strong rhetoric about piracy to shut down what clearly are—or at least should be—fair uses, like making a backup copy of a CD, putting songs on your computer or MP3 player for personal use, making a mix tape or CD, and lending your music to a friend.

Gross says the industry is “demanding all of the rights and the privileges that copyright law gives them but none of the responsibilities that come with it, like making sure that works fall into the public domain and don’t stay locked up forever, making sure that people are able to exercise their fair use rights. That’s part of the deal. That’s part of the copyright bargain. It’s sort of cheating to say that the public only gets what you, the copyright holder, want to give them that day.”

Copy Protection and Circumvention
This brings us to the second major change that has come with the technology. Though it makes copying easy, it also offers the copyright owners new ways of limiting access to the work, through encryption and “copy protection.”

Last year many music fans were shocked to find they couldn’t play their store-bought music CDs on their computers or MP3 players because the industry had quietly added copy protection. The new CDs made some Macintosh computers lock up completely, with users unable even to eject the discs.

As much as the digital copying scared the industry, the new ability to prevent users from legal uses rankled fair use advocates. The industry wants to put what it calls digital rights management (DRM) code on all consumer electronic devices sold that can use copyrighted information. A DRM could limit how many copies you make and onto what devices, or make your copy expire after a fixed amount of time. That totally changes the landscape for fair use.

“We’ve lived in this analog world for a long time. It wasn’t 1’s and 0’s, it was analog waves we were talking about or words on a page,” says Sprigman. “If you have possession of the book, you can copy it…. Mere possession allows you to copy it—a book, a record, a videotape. There aren’t good copy protections for analog work. So the question of fair use was always a fairly simple one: you have the work, copying is fairly simple—not serial copying, but making a copy from the original—anyone could do it. So the only question was, when you copy that expression and you used it and it was purportedly a fair use, did it fit within the rules that we’ve been throwing around for a while that come from the statute?

“In the digital world to which the law is just really getting its hands around, getting accustomed to, because of encryption technologies, possession does not necessarily confer the ability to copy.”

In 1998, under intense pressure and lobbying by Hollywood and the record industry, Congress enacted the Digital Millennium Copyright Act (DMCA), which made it a crime to circumvent any copy protection technology or DRM. The DMCA made it illegal even to disseminate information about how to evade the encryption. Violations would be punishable by up to five years in prison and fined $500,000.

To the industry, all these measures seem quite reasonable. “It doesn’t seem—how should I say it?—an extravagant intellectual position to say that Congress can mandate protections for intellectual property and make it a crime to tamper with those protections,” says Kendall.

But others say that DRMs lock users out of what they otherwise legally could have done, allowing the industry to bypass fair use rights. In order to access the material for a legal use, a person would have to circumvent the copy protection, which is illegal under the DMCA. Without the ability to access the information, the First Amendment fair use rights are meaningless.

“If you create the access issue, you have in effect created a fair use issue—you have just done it in a different point in the reasoning,” says Julie Cohen, a law professor at Georgetown University Law Center who specializes in intellectual property and cyberspace. “The content industry argues that it’s just like putting a book in a locked room or a locked trunk, so it’s the same as a physical lock or a fence to keep you out of a physical property. So, for example, you can’t break into Borders at 3 in the morning to get access to a book. But it’s a little more complicated than that.”

Digital copy protection is more analogous to locking a book to your shelf. You can sit next to your bookshelf and read it, but you can’t lend it to a friend, sell it in a used-book store, take it on a trip, or bring it to Kinko’s to make a copy of a chapter for a classroom, says Cohen.

Copy protection is increasingly common. When the electronics industry first began to make DVD players, the movie industry refused to license any Hollywood movie unless concessions were made to prevent copying.

According to the movie industry, nothing has had as much potential to harm it since, well, it was destroyed by the Betamax. Jack Valenti recently said that digital copies of movies and file sharing will again destroy Hollywood: “It’s getting clear—alarmingly clear, I might add—that we are in the midst of the possibility of Armageddon.” As a example, he pointed out that 10 million people attempted to download copies of Spiderman and Star Wars: Episode II the week before the movies were released, undercutting box office sales. (The movies were the fastest ever to reach $100 million in box office receipts, and combined for a whopping $715 million in box office sales in 2002.)

“In the case of DVD, there had to be peace between the two sides at the outset because the consumer electronic format would have gone nowhere unless there were movies available,” says Ramos, who also represents the DVD Forum, a consortium of hardware manufacturers and software makers that decides the specifications of the DVD format. “The motion picture companies were only going to release movies on DVD if they were satisfied that there was copy protection.”

So the groups agreed to put encryption called the Content Scrambling System (CSS) on all DVDs, which distorts the picture when copied. The CSS technology prevents not only illegal copying of DVDs, but tasks that fair use advocates say consumers have every right to do, like making a backup copy in case the original gets scratched and copying to tape to watch on a VCR in another room.

In 1999 a 16-year-old Norwegian student cracked the CSS protections in order to watch a DVD on his computer running the Linux operating system, which had no DVD player software, and posted his Decrypted Content Scrambling System (DeCSS) on the Internet. Unable to sue him because of his age and nationality, the movie industry looked at the people who published the DeCSS code and picked Eric Corley, publisher of 2600–The Hacker Quarterly, named after the sound frequency in megahertz that used to trigger pay phones into giving free calls.

In August 2000 U.S. District Judge Lewis Kaplan enjoined Corley from publishing DeCSS and from linking to any Web site that published it. Corley’s attorneys argued that he had First Amendment rights to publish it, but Kaplan said the copyright fears outweighed those rights. The ruling stung fair use advocates and put them on the offensive.

“Normally that kind of analysis only applies to troop movement reports in times of war,” says Godwin. “How do we get to that kind of magnitude of the threat of the speech when we’re really just talking about people making copies of DVDs? And the answer is, a judge can just say it is and it’ll probably survive on appeal. It’s a judgment call.”

Repercussions
Many believe the industry’s judicial success stems from carefully choosing defendants that fit the narrative of pirates and hackers glibly stealing content. In Napster “you had an immature 18-year-old running the thing, saying, ‘Boy, isn’t piracy fun!’ ” says Zittrain. Similarly, the defendant in the DeCSS case was the editor of a magazine that billed itself as the Hacker Quarterly.

“Judges, like the rest of us, read the New York Times and the Wall Street Journal and read all the quotes from Jack Valenti and all about how the world is ending,” says Cohen. “Judges are very smart people, but they have a lot of other stuff to do, so they’re not necessarily going to spend a lot of time trying to dig under that rhetoric.”

But the industry lost a rhetoric battle in 2001 when Princeton University computer science professor Edward Felten, a renowned security expert, tried to deliver a paper demonstrating a weakness in a CD encryption technology called watermarking. The RIAA sent a letter warning Felten that he “could be subject to enforcement actions under federal law, including the DMCA.”

Instead of waiting for a lawsuit, the Electronic Frontier Foundation (EFF) and Felten decided to turn the tables and sue the RIAA, challenging the DMCA on free speech grounds. The suit was met by a groundswell of support by other professors, and the case was framed in terms of academic freedom and scientific research rather than piracy. The RIAA backed down, adding that it never intended to sue Felten (despite the threatening letter). EFF and other groups wanted to press forward, hoping to convince the judge to strike down the DMCA. But the judge dismissed the suit.

“The court really didn’t want to face the implications of what it might have to do if it found there was in fact a chilling effect,” says Cohen. “District courts are quite leery of striking down federal statutes, and copyright isn’t a context in which they’ve been accustomed to thinking of civil liberty issues. So you’re asking a court to do what’s considered to be a reasonably extraordinary thing in a context that is not to them one in which they are used to considering these issues.”

The fair use camp argues that the DMCA throws the entire copyright balance out of whack.

“In the interests of accommodating the influence of the content industries, Congress has tipped much too far and is threatening to tip even farther in the direction of changing the default settings of the system where digital content is concerned,” says Peter Jaszi, a professor at American University Washington College of Law. “We know that when a schoolchild cuts and pastes with scissors a photograph into a school report, that’s fair use. And so when we discovered that they can’t do that by virtue of DRMs, we know that there has been a loss to fair use.”

The controls also limit rights people have under the copyright law’s “first-sale doctrine,” which gives people the right to resell copyrighted works they have purchased. The first-sale doctrine allows libraries and used-book stores to exist. But if a DRM were, for instance, to make a downloaded music file only playable on the computer that was used to purchase it, the user would de facto lose his or her right to resell the song.

Zittrain warns that if first-sale rights are taken away in the name of piracy prevention, there would be many repercussions: “The rights holder would be able to have that much more control over the work, including being able to do what’s called price discrimination: sell the work to one person for $10 and to another person for $5, and the person you’re selling it to for $5 can’t buy two and give the other one to the guy you tried to charge $10 to, because the first-sale doctrine isn’t around to allow that to happen.”

Further, Zittrain argues that using the industry’s rationale for shutting down Napster libraries shouldn’t exist. “If somebody were to take a book out from a library, chances are good that the person won’t go out and buy the book, buy their own copy after they read it—this sounds a lot like the complaints about Napster,” he says. “Napster does probably lower CD sales, just as libraries probably reduce book sales. We don’t define piracy instantly as anything that diminishes the value of the work to the creator or to the rights holder. If we did, we would be locking up librarians.”

Not only are fair use and first-sale rights threatened, advocates say, but by permanently limiting access to the work, the DMCA may have the practical effect of granting a copyright in perpetuity—something in direct opposition to the Constitution. The industry maintains that all these fears are overblown.

“You are as entitled as you ever were to comment upon, use bits of copyrighted material, without the permission of the owner for the traditional fair use purposes—scholarship, commentary criticism, scientific research, critical reviews, and so forth,” says Kendall. “I can condition a sale to you of various things on certain conditions. The first-sale doctrine does not prevent that. You don’t have a right—you don’t have a constitutional right—to make a backup copy. You have a right to buy what I’m selling, and if you don’t like that, if you say, ‘Look, Kendall, you’re limiting my rights,’ your option is not to buy.”

Taking Sides
The battles between copyright and fair use continue on several fronts. In the courts, numerous cases are pending.

A group of TV networks and movie studios sued SonicBlue, which makes the personal video recorder (PVR) ReplayTV, a competitor to the more popular and better known TiVo. PVRs are essentially the digital equivalent of VCRs, only they allow new features, like pausing “live” shows.

ReplayTV offers a couple features that drew the wrath of the industry. First, it allows users to skip commercials automatically, a quality that the industry says is illegally changing the broadcast in a way that will destroy its entire business model. Second, ReplayTV allows people to share a recorded TV show or movie with as many as 15 other users—something the industry says makes it like Napster.

Fair use advocates counter that the commercial-skip feature is no different from fast-forwarding a videotape or going to the bathroom during a commercial. The file sharing is different from Napster, since it is very limited, only allowing a finite number of copies to people you already know.      Further, they argue that the primary use of ReplayTV is still the same time shifting that legitimized the Betamax.
In the first criminal case brought under the DMCA, a California jury in December acquitted Russian software company ElcomSoft on criminal charges for making a program that cracks the copy protection on Adobe eBooks. ElcomSoft made the program to enable users to do things with the eBooks they bought that Adobe didn’t include in its software, like have the computer read them aloud to blind people. The jury ruled that even though ElcomSoft’s program clearly violated the DMCA, the company wasn’t liable because it may not have “willfully” broken the law.

The RIAA has suits pending against just about every company that has followed in Napster’s footsteps. The industry has already shut down Aimster, and is gunning for the rest, primarily KaZaA, Morpheus, and Grokster. The companies argue they are different from Napster, since they don’t have a central directory and therefore lack the ability to monitor and filter files—and some don’t even control the networks they operate on.

The industry has also targeted Internet service providers, arguing that the companies are responsible for piracy committed on their networks. The RIAA has sued telecommunications company Verizon’s Internet unit to force it to identify a user the RIAA accuses of piracy. Verizon refused, citing privacy concerns.

Another closely watched case has nothing to do with technology at all. Last October the Supreme Court heard Eldred v. Ashcroft, which challenged the 1998 Sonny Bono Copyright Term Extension Act, which extended the copyright term by 20 years to life plus 70 years. Critics say Congress passed the extension as a gift to big-donor Disney, to keep Mickey Mouse from becoming public domain, and that extending copyright does nothing to promote new works but threatens to create a perpetual term. The industry says the law brought the U.S. copyright term into line with European standards. Both sides are anxiously awaiting the decision to try to glean how the high court may rule if any of the digital cases petition certiorari.

In Congress both sides are expected to reintroduce bills that run the complete spectrum in the dispute, from industry-
supported bills that would mandate copy protection on all consumer electronic devices and would allow the industry to hack into file-sharing systems to render them useless, to fair use bills that would allow copy protection to be circumvented for legitimate fair use acts. Also, Congress and the Federal Communications Commission will weigh the industry’s plan to include a “broadcast flag” on digital broadcast, limiting viewers’ ability to copy digital television.

Meanwhile, the industry has threatened to up the ante by bringing criminal charges against individuals who have downloaded copyrighted music.

“There’s a kind of cold war going on here between the two sides, just as the cold war…was waged through proxy battles,” says Ramos. “Here the proxy battles are Eldred, Napster, this new Verizon case, the legislation that is being proposed in Congress—there are various battles being waged in different theaters where one side is trying to either gain ground or to prevent ground from being lost. That’s the big picture in the sort of realpolitik view.”

Though the battles continue to escalate, and the rhetoric grows more inflamed, some maintain hope that a compromise will be reached that protects artists’ ability to be paid for their work but, at the same time, acknowledges consumers’ fair use and First Amendment rights. Instead of being a threat to both sides, the technology could be crafted into a panacea for all.

“Everybody needs to keep their eyes on the prize,” says Sprigman, “which is a market where the Net and the devices that connect to it are valuable to people because there’s lots of good stuff in there; a market where rights are basically protected for intellectual property holders, but that fair use is admitted; where there is digital rights management to reduce the incidents of serial copying; and where because of this low-distribution cost environment, you get companies willing and able to offer an enormous variety of differentiated products to people at low cost with helpful tools and assistance and add-ons that make cheap and great better than free and sort of crummy.

“That’s the environment we should be looking toward, and I think we can get there. The technology’s there, and there are sufficient people thinking about what the rules ought to be so we can get some agreement. It won’t be perfect, but it will be a hell of a lot better than what we have now, which is an environment where there’s both a lot of theft and a lot of movement toward very restrictive, very invasive enforcement. So I think there’s a deal to be made.

“The question is, when will the entertainment industry climb down from this copying-is-theft position? Because that’s a position that doesn’t lend itself to compromise very well.”

CSS

The Content Scrambling System is the encryption put on all U.S. DVDs that prevents people from copying the movies onto computers or videotapes—it makes the picture wavy, choppy, and unwatchable. It also prevents DVDs from being played on unauthorized devices, or on players manufactured in other geographic regions.

DeCSS

The Decrypted Content Scrambling System is computer code that removes the CSS encryption from a DVD, making it watchable on any computer, and allowing copies to be made.

DRM

Digital rights management is a term for any copy protection placed on media. DRM code can be written to prevent all copying or certain kinds of copying, such as making copies from copies, called serial copying. It also could limit the number of copies made or make copies expire after a fixed amount of time.

MP3

MP3 has come to mean any song stored on a computer. It refers to the standard for “compressing” digital music files, or making them smaller on a computer hard drive to fit more songs than could be fit using the uncompressed CD format. Their small size allows MP3s to be more easily traded or copied over the Internet.

P2P

Peer-to-peer technology, known as P2P, allows anyone with a computer and an Internet connection to form a loose network through which users can share any file they choose to make public on the network. Users can then copy each other’s files, from music to academic research to recipes.

PVR

The personal video recorder is the digital equivalent of a videotape player—it is to the VCR what an MP3 player is to the Sony Walkman. Instead of using videotapes, PVRs like TiVo and ReplayTV have a computer hard drive that digitally stores movies and television shows. Features include pausing “live” television, instantly skipping commercials, and potentially sharing and copying programs.

Journalist Elliot Zaret wrote about the controversy over law school admission policies in the December issue.