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Minefields and Timebombs: Glancing at Copyright

Net TV, Net Video, Video on Demand, MP3s ,peer to peer, streaming, decentralization of content, self-publishing tools, blogging, DRM, digital fingerprinting …all this convergence between entertainment, media and technology is changing the world.   It is also making Copyright Law issues like the rights of authors (creators), Fair Use, and distribution of content, increasingly relevant.  

copyright puzzleCopyright law, domestically and internationally (from Common Law, to the Copyright Act of 1976, to the Digital Millennium Act (DMCA), to the Berne Convention) is a complex patchwork of overlapping and frequently contradictory statutes.  Like many laws, the statutes have been woven together through countless legislative horse-trades in an ongoing effort to both anticipate and keep up with the way changing technologies do (and might) influence the rights and control of intellectual property.  Despite best efforts, the legislative process, even streamlined to its most efficient ideal, can’t begin to keep pace with the innovations of our digital age and changing communications technologies.  Much of Copyright law’s tenets were written before the digital age, and even those written recently, are hard pressed to keep up with the pace at which technology is changing.  

Navigating the laws can sometimes feel like walking through a minefield while blindfolded and on crutches.  As the ever observant Mark Twain once said of the subject:  “only one thing is impossible to God: to find any sense in any copyright law on the planet.” (Mark Twain’s Notebook May 23, 1903).  It may be more than a hundred years later, but his sentiment is as fitting as ever.

From Major League Baseball recently targeting Sling Media, to Viacom (and others) suing YouTube, to Digital Rights Management technologies, copyright is becoming a more and more prevalent issue for management and customer alike.  Increasingly, articles on Metue brush across copyright issues. 

The time seems ripe to look more closely….so to highlight Mark Twain’s favorite legal arena,  here’s a glance at some of the issues and examples of  how complicated the problem is.  In future posts, including one later this week on the Sling Media/MLB issue Metue will end up noting others.

Laws can be contradictory:  Fair Use versus the Digital Millennium Act 

The Laws
The Digital Millennium Act (DMCA) is a copyright statute that was written to bring copyright law up to date with the changes of the Digital Era.  The law criminalizes efforts to bypass copyright protections (like encryption).  It also increases the penalties for Internet copyright infringement.  The law was enacted in 1998. (The European Union enacted a similar law called the EU Copyright Directive in 2001).

“Fair Use” is a doctrine in US copyright law that covers circumstances where licensed work can be used without having to obtain a license.  Derived from First Amendment Free Speech rights, it allows limited use of copyrighted works (for things like research and reviews) without the requirement of getting explicit permission from authors.     In the United States Fair Use was explicitly codified from its common law roots in 1976. 

It is Fair Use that forms the basis by which a journalist can excerpt from another source without license, or a website can similarly show a thumbnail image of content from another source.  It’s Fair Use that allows a critic to show a scene, or excerpt a book, when reviewing its merits.   It is also Fair Use that allows parody and satire to use an original work in an authorized way.   Without Fair use, much of Google or Yahoo image searches would be illegal. 

Where things go Wrong
Among activities that are sometimes suspect, it is generally accepted (though the RIAA has disputed the claim) that making a backup copy of a CD or DVD you’ve purchased is allowable under the 4-part tests of what legally constitutes Fair Use Doctrine. (The copy would be for use in the event of damage to the original).   Changing the digital format of a song you bought and downloaded on I-tunes in order to play it on a MP3 player other than an iPod would probably be Fair Use too.

Unfortunately, as an example of how laws conflict, in both of the above examples, the actions are legal under Fair Use and illegal under the DMCA.   The reason is something called Section 1201.  Making a backup copy of a DVD requires bypassing regional encoding and Macrovision encryption.  Converting music bought on iTunes to play freely on players that don’t decode Apple’s Fairplay Digital Rights Management technology (only iTunes and iPods decode Fairplay, unless you bought a new iTunes Plus song) would also require Digital Rights Management protections embedded in the download be removed or circumvented.  According to 1201, circumventing copyright that encryption is explicitly illegal.

Put another way, you likely have a right to make a copy of your purchase but the only means of doing so would mean violating another law.

Questions Questions Questions

At the heart of Viacom’s billion dollar lawsuit against YouTube is a question of what constitutes a reasonable effort by a publisher to ensure that they don’t encourage, or inappropriately create a forum for copyright infringement?  

Who is responsible for ensuring copyrights aren’t violated?  If I have a forum online, for example, and it allows users to submit and exchange content, how far do I have to go to insure the content is not submitted in violation of copyright laws?

Expensive digital fingerprinting? DRM? What’s reasonable? 

What policing responsibilities do I have, and where do my rights to create an exchange, and the rights of free speech intersect with the rights of original authorship? How are they balanced?

These are questions for the courts, and they’re still largely undecided.

Even Good Intentions lead to violations

To a publisher, to an author, or creator, to anyone with an intent to follow the laws (as much as they understand them),  the process can be so difficult that business practices and incentives foster a climate where it may be more prudent to ask for forgiveness after a violation instead of permission beforehand.

This stems in part from the fact that there is generally no central clearing house for maintaining or managing licenses which makes seeking licenses for archival content a piecemeal, fragmented process.  If a documentary filmmaker is hoping to license a little known, little desired piece of content from a pool that teeters on the verge of disappearance, for example, or if the owner of a twenty second film clip lives on a rural dirt road in Alabama:   the filmmaker not only has to locate the owner, but may have to go there to secure clearances.  That’s costly; even more so if he/she needs 30 similar clips to complete a documentary on the Blues Music of the Mississippi Delta. 

Adding to the morass, there is not just the logistical issues of locating and contacting owners. There are complex negotiations which may include issues ranging from the duration of a license, to the permissible ways in which content can be used, to royalty sharing. 

At some point the cost of seeking the rights can be less than paying penalties for not securing them later.

Eyes on The Prize: an example

The story of Eyes on the Prize, the award winning documentary of the Civil Rights Movement is an illustration of just how complex things can get.  (The story on Eyes on the Prize was first showcased an article by Katie Dean for Wired magazine in late 2004).

Eyes on the Prize  had been collecting dust for a decade, unable to be rebroadcast, or reissued on DVD, despite widespread demand.  The reason was that many of the licenses for the footage used in the documentary had expired and any reissuance required they be updated or the film be remade. (And the films original producer, Henry Hampton died in 1998)  

Obtaining new licenses was estimated to cost more than $500k, a number exceeding the budget of those initially seeking to revive the film.  While donations were made toward the cost (eventually more than covering it), a bigger obstacle was the fact that ownership and control of copyrights had changed hands since original licenses were issued.  Each clip, each soundbyte, needed to be re-secured owner by owner, license by license.  Some of those owners hadn’t even been found.  Consequently,   until, issues were resolved,  those who wanted to watch the documentary were limited to either illegal copies placed on file sharing networks, or buying it on used VHS Tapes (which can go for upwards of $500 on Amazon.)

To date, the copyright issues are still not all resolved. While, in the fall of 2006, PBS did show Eyes on the Prize in three two hour segments as part of its American Experience series. (It was the first time the program was aired since 1993) the airing was likely permissible only because PBS is a non-profit organization, and showings of the program for education and scholarship falls under the purview of Fair Use. To date there are no commercial copies of the program available for retail sale. It’s only available for education and institutional purchase.

More Info

Copyright issues aren’t going away.  If anything they’re becoming more relevant and more complex.  These few examples are just a glimpse. For further reading here are some related links on Copyright:

  • Wiki Info
  • William Paltry   Commentary on copyright from former copyright counsel to the House of Representatives and current Sr. Copyright Counsel at Google.
  • Lawrence Lessig   Commentary, often on IP issues, from former Harvard and now Stanford law school professor Lawrence Lessig, found of Stanford’s Center for Internet and Society
  • Article by Lessig about Copyright law following a loss at the supreme court in Eldred v Ashcroft
  •  Blog on copyright issues

  • Copyright Readings Copyright related articles maintained by the head of Digital Media Services at Northwestern Univeristy.

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