Tech.gov: Copy Crime and Punishment

Exercising fair-use rights over digital media keeps getting harder and harder, with silver linings few and far between in the thickening clouds.

Several months ago, I wrote about the copyright battles between entertainment studios and 321 Studios, maker of DVDXCopy (and other copying programs), and the fallout for consumers. Since then, game makers have stepped up their own attacks on 321 Studios, and the company has continued to lose ground, laying off a hefty number of employees. It may well shut its doors in the near future.

But whether or not you're a fan of 321 Studios, the fact remains that while U.S. courts and Congress have done a lot to help copyright owners defend their rights, they have done comparatively little to help users maintain theirs.

The Digital Media Consumers' Rights Act, H.R. 107, proposed in January 2003 by Representative Rick Boucher (D-Virginia), is one of the few bills that would help consumers get back their fair-use rights--which were practically if not explicitly erased by the Digital Millennium Copyright Act. But H.R. 107 has gone nowhere in the 18 months since its introduction. In late June, the bill was reintroduced and its Congressional backers have mustered more computer industry support. But with entertainment companies bitterly opposed, there's no guarantee it will get anywhere this time around.

Legislation and court rulings favorable to copyright holders, however, have not had that problem.

More Protection for Copyright Holders

Consider two pieces of legislation in the works: One has already passed in the Senate, less than three months after introduction; the other, which is far more troubling, has just been introduced. Both are championed by a bipartisan group of fairly powerful politicians led by Senate Judiciary committee leader Orrin Hatch (R-Utah) and the committee's ranking Democrat, Patrick Leahy (Vermont).

What would these bills do?

The first, the Protecting Intellectual Rights Against Theft and Expropriation Act of 2004 (S. 2237, affectionately known as the Pirate Act), would give the Justice Department the power to bring civil lawsuits--which have a lower burden of proof than criminal ones--against suspected copyright violators. And this would relieve poor little entertainment companies of the burden of paying their own legal costs: Taxpayers will do it for them.

The second bill, S. 2560, appears to target those who "intentionally induce" copyright violations by others--meaning unfiltered peer-to-peer networks, at the moment.

What the Heck Does "Intentionally Induce" Mean?

Primarily sponsored by Hatch, S. 2560 would let copyright owners sue those who indirectly, but intentionally, help cause or induce copyright violations.

Prosecuting those who intentionally induce a crime is an accepted legal concept. Legally speaking, to "induce" implies to essentially aid, encourage, or order someone to perform a criminal act by a variety of means, including coercion, enticement, trickery, and the like. Hatch would bring this legal concept into the realm of civil copyright law. His description of the bill likens it to making sure the courts are able to go after the P2P Fagins of the world, and not be limited to the Oliver Twists (i.e., P2P users) who are currently popular targets of Recording Industry Association of America lawsuits--more than 3000 filed to date, and counting.

Hatch and the bill's other sponsors claim that S. 2560, a comparatively short amendment to the copyright code, won't deter technical innovation, restrict copying technologies in general (copiers, VCRs, and the like), or affect fair-use rights.

Other observers, however, see it differently.

Nasty Consequences

Jessica Litman, a law professor at Michigan's Wayne State University, has specialized in copyright law and Internet law for more than 20 years; she is also the author of Digital Copyright: Protecting Intellectual Property on the Internet (2000, Prometheus Books, 800/421-0351). In Litman's view, the language in Hatch's bill is incredibly broad: Had it been in existence in the early 1980s, it might have killed off VCRs.

In 1984, the U.S. Supreme Court ruled that VCRs were legal because although they could lead to copyright violations, they also had other substantial uses (like time shifting) that did not infringe copyright law. Moreover, although Sony and other VCR makers knew that it was generally possible to use the devices to infringe copyright protections, that general knowledge alone wasn't enough to make VCR vendors themselves guilty of copyright violations. Nor could vendors be held liable for what consumers ultimately did with their products.

In the Sony VCR case, the Supreme Court also specifically stated that Sony did not act to intentionally induce copyright violations when it introduced the machines. Because of that, Hatch says his bill won't affect devices like VCRs or similar copying technologies.

But how do you actually define intentional inducement? Hatch's bill tries to be clear by using a lot of synonyms for "induce." It also helpfully says that intent can be determined by a reasonable person looking at the actions of and information available to the alleged infringer, including whether the supposed inducing activity (read: product) relies on copyright infringement for its "commercial viability."

Under this standard, would Sony's VCR have stood the test? What about DVD or CD burners? Or MP3 players--which certainly faced numerous court challenges when first introduced? How about photocopying machines, for that matter?

P2P: Plague or Progress?

Say we forget those thorny, more ambiguous issues and stick with the evil that is P2P. What kind of impact would this bill have had on P2P technology had it been law ten years ago? Some could argue (and I'd wager Hatch would be among them) that the technology would still exist, but it would exist with built-in filtering or other fingerprinting technology to prevent its use as a large-scale piracy tool. That's a legitimate possibility (pun intended).

I'm a little less optimistic. At the very least, I'm skeptical that P2P would have come to broad exposure in the late nineties. We might be hearing about it by now, maybe, if someone had bothered to keep it in mind while encryption and digital rights management technologies caught up. But would encryption and DRM have developed to the extent that they have without the P2P piracy problem to spur them on? Would digital media be as prevalent? Would legitimate services, like Apple ITunes, exist today?

I'm not saying that massive illegal activity is the best way--or even a good way--to spur progress, but P2P's impact has not only been negative. Even copyright holders can use the technology to make money, just like other technologies that arguably allow infringement. (Movie rentals, anyone?) Heck, there are legal music download services that use P2P technology.

Moreover, P2P networks and other digital technologies can and do warehouse lots of stuff that has never been or is no longer copyrighted: for example, public domain texts such as speeches given decades ago by the likes of Abraham Lincoln, older songs and artwork, and more. The technology has substantial uses that do not infringe copyright.

Hatch's new bill doesn't specifically address how to evaluate a technology that can help infringe copyright while still having other, substantial uses that don't. But in his remarks introducing the bill to the Senate, he says that existing laws dealing with secondary liability--such as intentionally inducing a copyright violation--do not make exceptions for substantial noncriminal uses. The implication seems to be that such legitimate uses should not be a consideration in copyright infringement cases either.

I'm not a lawyer, but it seems to me this reasoning would have made the Supreme Court's 1984 VCR ruling extremely unlikely.

Why Is This Bill Necessary?

Hatch's bill is a direct response to last year's ruling, by Los Angeles U.S. District Court Judge Stephen Wilson, on the P2P case involving Grokster and StreamCast Networks. It was the first time the entertainment industry--represented by songwriters, music labels, and movie studios--lost a major digital copyright violations case. That loss centered mostly around the issue of who (or what) exercises control over copyright violations taking place on P2P networks. From the text of the ruling, this point is important when establishing indirect or secondary infringement under existing copyright rules.

Wilson seems to have ruled the way he did for one primary reason: Unlike the old Napster, the P2P networks he looked at do not give P2P software vendors control over what users do with it.

This is where control versus intentional inducement enters the fray. The original Napster was held liable because its centralized, searchable databases allowed it to control what users were doing with the downloaded files, so it materially contributed to the copyright infringement activity as it happened. When it closed, so did its network for sharing copyrighted material.

P2P networks don't work that way. They're decentralized, linking individual users' computers, each of which hosts a selection of all available files. The P2P software vendors do nothing but offer software support or updates to the products.

However, there's little dispute that P2P networks make breaking copyright really easy. And Wilson certainly saw that ease as a primary reason why P2P software products had so many users (sounds like "commercially viable" to me). Do these two facts combined mean that P2P software vendors intentionally induce copyright violations? Hatch definitely thinks so and he wants to amend copyright law to say so.

By the way, Hatch's bill won't do much about any product that isn't distributed by an identifiable company or individual, as could be the case with some freeware programs or open-source programs. I guess we'll save that for another law.

Making Laws Work--For Who?

I'm sure the Pirate Act will save entertainment companies lots of money if it becomes law; I'm less sure what it will do to my tax bill next year. It doesn't seem to me that entertainment companies are hurting for legal recourse, or that the recourse they already have is failing to stop those they see as copyright violators, like the old Napster, vendors of copying programs like 321's, or individual users. But perhaps I'm missing something.

While adding to my yearly taxes, Congress continues to eagerly act on behalf of copyright holders, and it drags its heels when it comes to restoring the balance between copyright holders' rights and consumers' fair-use rights that the DMCA threw out of whack.

As I've said before, I believe that copyright holders should get paid for their work. And peer-to-peer networks, as they exist today and as they are billed to potential users, certainly contribute to widespread piracy and theft. I don't have a simple solution to that problem. But as written, Hatch's solution, though it appears to be simple and targeted on the surface, could curtail far more than even he intends.

In the Beginning

Our legislators need to remember that copyright laws exist because we want progress in both science and arts. According to Litman, we "bribe" creators into creating with exclusive (but not total) copyrights that let them profit from their creations and the distribution of those creations for a specific period of time.

That limit on copyright protection is in the Constitution because this progress benefits society as a whole--we, the people, as it were. The concept of fair use exists in copyright law because Congress did, once upon a time, acknowledge that copyright is not absolute: It has limitations, which directly contribute to the ultimate goal of benefit to the public.

That benefit may be manifest indirectly, by teachers having the right to reproduce works in part or discuss technologies in order to teach them; through free access to information and copyrighted works at libraries; or even (gasp) by allowing occasional copies for personal use of something you've already paid for, which helps you enjoy and appreciate it, and perhaps even be inspired by it.

The benefits of copyright law are easily grasped in its more direct expression: new music, movies, or other art for us to enjoy, which is what many of the proposed laws aim for, including Hatch's.

But it seems to me that any law that limits progress by protecting existing copyright holders at the potential expense of innovation (on the part of future copyright and patent holders) goes against the whole point of copyright.

We can do better, and we should.

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