What follows are essays about
Copy Right, Fair Use, Internet Computer File Sharing and related
topics.
Some are longer than others. Pace yourself. ;-)
In 1998 Congress was the scene of a battle over public domain, the public
right of common, free and unrestricted use of artistic works whose copyright
has expired. Corporations like Disney, organizations like the Motion Picture
Association of America, and dead artists' families wanted to extend copyright.
Advocates of public domain wanted to leave copyright protection as it was,
which would have allowed many early 20th-century works, including corporate
creations like Mickey Mouse, to slip into the public domain. The copyright
owners won, and yesterday they won again when the Supreme Court, by a vote
of 7 to 2, decided that Congress was within its constitutional rights when
it extended copyright. The court's decision may make constitutional sense,
but it does not serve the public well.
Under that 1998 act, copyright now extends for the life of an artist
plus 70 years. Copyrights owned by corporations run for 95 years. Since
the Constitution grants Congress the right to authorize copyright for "limited
times," even the opponents of an extended term were not hopeful that the
Supreme Court would rule otherwise. This decision almost certainly prepares
the way for more bad copyright extension laws in the future. Congress has
lengthened copyright 11 times in the past 40 years.
Artists naturally deserve to hold a property interest in their work,
and so do the corporate owners of copyright. But the public has an equally
strong interest in seeing copyright lapse after a time, returning works
to the public domain — the great democratic seedbed of artistic creation
— where they can be used without paying royalties.
In effect, the Supreme Court's decision makes it likely that we are seeing
the beginning of the end of public domain and the birth of copyright perpetuity.
Public domain has been a grand experiment, one that should not be allowed
to die. The ability to draw freely on the entire creative output of humanity
is one of the reasons we live in a time of such fruitful creative ferment.
From -
http://www.nytimes.com/2003/01/16/opinion/16THU2.html
After the copyright smackdown: What
next?
Don't despair at the Supreme Court's gift to Disney, says one expert.
The fight has really only just begun.
By Siva Vaidhyanathan
salon.com
Jan. 17, 2003
When the U.S. Supreme Court ruled Wednesday that Congress was within
its constitutional bounds to extend the duration of all copyrights by 20
years -- up to 70 years beyond the life of the author and potentially infinitely
-- many saw the ruling as a knockout blow to the movement to reform copyright.
Some on the public interest side are tempted to lament what could be
called the "Dred Scott case for culture," unjustifiably locking up content
that deserves to be free. After all, six of the nine justices concurred
with Justice Ruth Bader Ginsburg when she issued a stark opinion that cavalierly
dismissed the historical "bargain" that justified American copyright in
the first place: We the People agree to grant a limited, temporary monopoly
to a creator or publisher in exchange for access to creativity and the eventual
return of the work to a state of freedom.
And Ginsburg's opinion did not allow that the purpose of copyright is
to encourage future production, not lock up works already created. She ignored
the fact that the Sonny Bono Copyright Term Extension Act of 1998 does
nothing to "promote the progress" of science or art because it grants no
incentive to produce and distribute new works.
So out of despair some might see civil disobedience -- hacking and freely
distributing songs and films over digital networks -- as the only remaining
response to the excesses of the copyright regimes and the hold they have
over courts and Congress.
While disobedience might be more fun, the power of civil discourse remains.
In fact, the ruling gives public interest activists both motivation and
ammunition in the continuing battle against the excessive expansion of the
power to control information and culture.
As is so often the case, the best rallying cry came from a dissenter
in the case. Justice Stephen Breyer wrote: "It is easy to understand how
the statute might benefit the private financial interests of corporations
or heirs who won existing copyrights. But I cannot find any constitutionally
legitimate, copyright-related way in which the statute will benefit the public."
This is the key to any public interest movement: Show that narrow special
interests are getting away with everything and the public interest is suffering.
Yet Ginsburg herself aided the public's rhetorical cause even while ruling
against its interests. While dismissing the notion that excessive copyright
expansion has severe First Amendment implications, she invoked two of the
classic democratic safeguards of American copyright: the idea/expression
dichotomy and fair use. Because of these two concepts, Ginsburg concluded,
the court need not take the censorious power of copyright seriously.
The idea/expression dichotomy means that copyright does not protect facts
or ideas. It only protects specific expressions of facts or ideas. This
allows us to cite a fact or idea while criticizing another writer or building
on another's work.
Fair uses are small allowances for the public good, exceptions to the
sweeping powers that a copyright holder enjoys. A teacher may invoke fair
use, for instance, when showing a film in class. A student uses another's
work fairly if she quotes a small portion in a research paper.
Ginsburg's expression of faith in the power of the idea/expression dichotomy
and fair use does not recognize that both these rights are under attack
in Congress and lower courts right now. The motion picture, music, publishing,
and software industries are trying to expand their control over the machines
in your home to limit the uses you might make of material you have lawfully
purchased.
Ginsburg made one more statement that public interest advocates can take
to heart and use for their purposes. While dismissing the petitioners'
First Amendment concerns, she wrote, "But when, as in this case, Congress
has not altered the traditional contours of copyright protection, further
First Amendment scrutiny is unnecessary." As a matter of fact, the 1998
Digital Millennial Copyright Act did just that. By outlawing technologies
that could break through access controls around digital materials, Congress
created a whole new technological regime and a new set of powers for copyright
holders to use against scholars, librarians, students and artists. This
shift in the locus of enforcement from human relations to hard technology
has certainly "altered the traditional contours of copyright protection."
In the wake of this decision, if Congress and later courts are going
to take Ginsburg's words seriously, they must take fair use and the idea/expression
dichotomy seriously. They cannot take them for granted, as so many have
in recent years.
The Eldred decision, in the words of University of Buffalo law professor
Shubha Gosh, "deconstitutionalizes" copyright, pushing it father into the
realm of policy and power battles and away from the principles that have
anchored the system for two centuries. That means public interest advocates
and activists must take their battles to the public sphere and the halls
of Congress. We can't appeal to the Founders' wishes or republican ideals.
We will have to make pragmatic arguments in clear language about the effects
of excessive copyright on research, teaching, art and journalism. And we
will have to make naked mass power arguments with echoes of "we want our
MP3" and "it takes an industry of billions to hold us back."
Back in 1998, when legal scholars and librarians tried to make such arguments,
they found they had no army of CD burners and TiVo users behind them. So
Congress did not care. What was good for Disney was deemed good for America.
Despite the fact that no one has ever made an argument that adding 20 years
to copyright benefits the public in any way, Congress acted in the narrow
interests of a few against the greater interests of the people. And no one
seemed to notice.
Since that time, public awareness of copyright has blossomed. In just
the past month the New York Times has run three stories on its front page
about copyright. And this evening (Friday Jan 17, 2003), Bill Moyers' program
"Now" will examine the copyright battles in depth. And several important
books about copyright have found their ways onto library shelves.
One bill introduced last Congress would allow copyright holders to hack
in and disrupt your computer's ability to communicate with others if they
suspected you might be distributing their material. Another bill would require
all machines that work with digital code -- from microwaves to MP3 players
to mechanical pets -- to include copy control technology that would restrict
their customizability.
And the idea/expression dichotomy is under attack in Congress via a bill
to create an entirely new form of intellectual property to protect databases.
European database companies have enjoyed this excessive protection for
several years now. Yet without similar protection in the United States,
American database companies are doing just fine. And the industry is healthier
over here than in Europe.
However, a bill filed recently by Rep. Richard Boucher, D-Va., would
actually strengthen consumer rights by restoring and clarifying fair use
for research and teaching and require media companies to label their materials
if they restrict fair uses in any way.
So public interest activists have more options than downloading in despair.
We can rally public support for the Boucher fair use bill and can play
solid defense against the other restrictive proposals. It won't be easy,
but we have the facts on our side and soon we will have the rhetorical
high ground as well.
The vehicles for reform come in many colors. There are rumblings among
religious communities that are tired of being harassed for singing protected
songs at gatherings and threatened for painting protected cartoon characters
on their nursery school walls. Conservative and family groups have taken
an interest in technologies that allow them to make and view "clean" edits
of Hollywood films. Scholars are increasingly angered by restrictions on
research and the high cost of reproducing images. And when consumers find
it's not so easy to use the format of their choice to record all their favorite
shows for later viewing or to take their music to the gym they are going
to be angry as well.
In response to this growing demand, several organizations have stepped
up to speak for the public. Among the earliest to raise the alarms, the
Electronic Frontier Foundation
remains at the forefront of legal and technological advocacy. Now the
EFF is joined by
Publicknowledge.org
, an advocacy group devoted to protecting the public domain with the
same vigilance that the Sierra Club defends wilderness. And some concerned
citizens from Silicon Valley have formed
digitalconsumer.org
to protect users' rights in an electronic age.
And because the legal front remains hot, we can depend on law students
at two clinics to help those who get crushed by the copyright system. Clinics
at
Washington
College of Law of American University
and at
Boalt Hall
at the University of California at Berkeley have been compiling research
and writing briefs in important copyright cases.
And at Harvard Law School, the
Berkman Center for Internet and Society
runs the
Chilling Effects
Clearinghouse
, which documents examples of copyright lawyers run amuck.
None of these organizations -- save the EFF -- existed in 1998. They
are all products of the rise in public awareness created by
Lawrence Lessig
and his team as they selflessly pursued the case of
Eldred v. Ashcroft
through the federal court system.
After the decision came down on Wednesday, Lawrence Lessig expressed
exhaustion and frustration on his blog. He and the lead plaintiff in the
case,
Eric Eldred
, had been working on this case for four years. But there was no need
for either of them to feel dejected.
Their work and words have solidified a popular movement. The movement
is certainly not strong enough yet to roll back the copyright term through
legislation. But in smaller ways, through a hundred lesser battles we can
get Congress and the courts to serve the needs of students, teachers, and
citizens instead of Hollywood studios.
From --
http://www.salon.com/tech/feature/2003/01/17/copyright/index.html
Right and Wrong
The Copy-Right Infringement
By John Bloom
November 22, 2002
Whoever turned "copy right" into one word had to be a lawyer. We don't
say "freespeechright" or "gunright" or "assemblyright" or "religionright."
As a result, 99 percent of the public thinks that a copyright is some
kind of formal legal document. They think you have to go get it, or protect
it, or defend it, or preserve it, or buy it, or hire a lawyer to make
sure you have it.
On the contrary, it's simply a
right, like all our other rights,
and it goes like this: Whoever creates something that has never been created
before has the exclusive right to copy it.
It's not the person who registers it with the Library of Congress.
It's the person
who does it first. Just the act of creation makes
the right kick in.
Unlike other rights, though, this one is transferable. You can sell
your copyright, license your copyright, or give your copyright away. What's
most often done is that you let a big company — say, a book publisher —
use the copyright for a specific period of time, in return for money, and
at the end of that period the right reverts back to you.
One other difference: This is a right with a specific term.
The Founding Fathers wanted that term to be 14 years, with an additional
14 years if the author were still alive. After 28 years, they figured you'd
had your chance to exploit your creation, and now it belonged to the nation
at large. That way we would never end up with a system of hereditary privilege,
similar to the printers guilds of Renaissance England, who tied up rights
to dead authors and tightly controlled what could or could not be printed
and who could or could not use literary material.
In America, land of free ideas as well as free people, this would
never happen, they said.
Well, it's happened. It's happened because for years now Congress
has allowed it to happen. We now have an exact replica of the medieval
Stationers' Company, which controlled the English copyrights, only its
names today are Disney, Bertelsmann, and AOL Time Warner. The big media
companies, holding the copyrights of dead authors, have said, in effect,
that Jefferson, Madison, and Hamilton were wrong and that we should go
back to the aristocratic system of hereditary ownership, granting copyrights
in perpetuity. To effect this result, they've liberally greased the palms
of Congressmen in the form of campaign contributions — and it's worked.
In the name of Mickey Mouse and other American icons, we have gradually
lengthened that 14-year limit on copyrights. At one time it was as much
as 99 years, then scaled back to 75 years, then — in one of the most anti-American
acts of the last century — suspended entirely in 1998. The Sonny Bono
Copyright Term Extension Act of that year says simply that there will
be no copyright expirations for 20 years, meaning that everything published
between 1923 and 1943 will not be released into the public domain. Presumably
they'll take up the matter again in 2018 and decide whether any of these
books, movies, or songs are ever set free. There are 400,000 of them.
What's especially hypocritical about this law is that many of the
works produced in this period, such as The
Wizard of Oz, are based
on works from previous centuries that are already in the public domain.
It's as though Congress is saying that it would be wrong for the heirs
of the Brothers Grimm to own a perpetual copyright to
Snow White and
the Seven Dwarves , because it belongs to all people, but Walt Disney's
version of it is so sacrosanct it should earn money forever. Besides, if
he really is cryogenically preserved, he'll need those royalties when he
comes back to visit. (And this was a man who stole from everybody.)
I don't think it's hard to see who was greasing the skids to get a
law passed that seems unconstitutional on its face. With 1923 as the cutoff
date, all sound movies are protected for another 20 years. All pre-war Broadway
musicals are protected. All swing-era music is protected. Even the song
"God Bless America" falls into this period, so I hope you people are sending
in your residuals.
Fortunately, the Supreme Court has agreed to rule on a case challenging
the Bono Act. It was brought by Eric Eldred of Derry, N.H., who started
a website for his teenage daughters in which he published online versions
of classic literary texts — a site that eventually became a destination
for students around the world and received a commendation from the National
Endowment for the Humanities. That all changed on Oct. 7, 1998, when the
Bono Act was passed.
Congress apparently looked at the whole controversy as a property-rights
issue. It's not. It's a free-speech issue.
The Constitution is quite clear on the matter. It says copyrights
are to be granted for "limited times." I don't know any definition of
"limited" that would mean 75 years plus a 20-year extension plus the chance
of getting another extension later. The whole issue was argued three centuries
ago, and it was established as a principle of democracy that, when the author
is dead, his work becomes the property of all. This was modified slightly
to allow the first generation after his death to continue to collect royalties,
presumably to protect widows and children. But that's all that was intended.
There was no argument ever made for a third- or fourth-generation royalty,
much less a perpetual assignment of royalties to a corporation that never
dies.
The reason it's important is this: Publishers are in the business
of expanding capital. The writers who supply them are in the business
of expanding civilization itself.
Tools for expanding capital are available in many forms. Tools for
expanding civilization, on the other hand, are a limited commodity. They're
resident in the books of Hemingway and Faulkner, the movies of Disney and
Capra, and the songs of Kern and Berlin.
Give 'em up. We need 'em. We've got work to do.
It's not just the right thing to do. It's a right.
—
John Bloom writes for United Press
International
From
National Review Online
http://www.nationalreview.com/comment/comment-bloom112202.asp
Common Sense, Copyright, and Fair Use
Dan Knight
November 27, 2002
This has been a good week for those who follow copyright and related
issue -- and that should be all of us.
One of the best articles pointing out what's wrong with copyright
law was posted at National Review Online last Friday. In
Right and Wrong
, John Bloom reminds us that "copyright" simply means that the creator
of a work determines who has the right to copy it -- and that only for
a limited amount of time. This is an automatic right; there is no need to
file paperwork or hire a lawyer. You have copyright of your works simply
because you have created them.
When the American Republic was established, the Founding Fathers chose
a third path between no copyright whatsoever, which tended to impoverish
authors, and perpetual copyright, which tended to make publishers rich.
As with patents, the creator would maintain rights for a specified period
of time and be allowed to renew that right once. After that, the creation
would enter the public domain to benefit the general populace.
As Bloom writes,
The Founding Fathers wanted that term to be 14 years,
with an additional 14 years if the author were still alive. After 28 years,
they figured you'd had your chance to exploit your creation, and now it
belonged to the nation at large.
But we are now engaged in a great civil war, testing whether the public
domain can long endure. At this point, nothing published in the United
States since 1923 has entered the public domain without the explicit wishes
of its author. And this state will continue until at least 2018 unless Congress
makes some changes.
Copyright Is Good
I have nothing against copyright. We copyright everything we publish
on
Low End Mac
and the other
Cobweb Publishing
sites. And we make it very clear that when our editorial content
is written by a freelancer, the author retains copyright.
When we find sites that have deliberately or inadvertently plagiarized
our content, we ask them to remove it, and so far they have all complied.
When we are asked for reprint rights for a User Group newsletter, we generally
offer free use of our material in exchange for a couple copies of the newsletter,
a notice of copyright, a link to the site and the original article, and
the User Group not posting the article on their website.
Copyright lets us protect our livelihood by letting us choose where
our writing is published.
Copyright Can Be Excessive
The problem with copyright comes from excess. What if "Happy Birthday"
was a copyrighted work and you had to send $1.98 to the author every time
you sang it in public? {BC's note: "Happy Birthday"
is a "copyrighted
work" and you
are supposed to send in the Royalty Fee everytime you
sing it in
public -- see this link,
http://www.snopes.com/music/songs/birthday.htm
} If that seems ridiculous, it isn't.
"God Bless America" remains under copyright, and someone has to pay the
copyright holder every time it's performed in public. (For the record,
fees collected by the God Bless America Fund are used to support the Boy
and Girl Scouts of America.)
Back in the 1960s, copyright law fell behind the technology of the
times. A lot of people bought open reel tape decks and recorded hour upon
hour of their own music to provide a sound track for daily living. Later
people used cassettes and 8-track tapes to create personal favorite collections
or copy LPs so they could listen to them on the car stereo.
The legality was nebulous, but Congress addressed this by rewriting
copyright law to specifically allow "fair use" of copyrighted material.
This meant you had the right to copy any LP you owned to tape, photocopy
pages of a book for research, and so forth. Over time issues such as videotaping
television broadcasts and making backup copies of software were also addressed.
Big Business vs. Personal Use
In the digital era, we're wrangling over issues such as copy protected
DVDs, MP3s vs. "protected" music formats, and whether the mere presence
of MP3s on a hard drive implies piracy.
Don't laugh. The RIAA takes their control of music very seriously,
as noted in
this article
:
Acting unilaterally at the behest of the RIAA, Navy officials confiscated
100 computers on suspicion of harboring illegally downloaded MP3s, The
Capital, an Annapolis, MD daily reports. A Naval official quoted confirms
the raid, adding that punishment ranges from "court martial to loss of leave
and other restrictions".
The folks at the Naval Academy didn't simply check the students' hard
drives for the presence of MP3s and then ask if they were legal or not.
Instead they confiscated 100 student computers simply because they suspected
that they might harbor some illegally downloaded MP3s. And because of the
Naval Academy's honor code, cadets can be expelled and have their future
in the Navy destroyed.
They could have taped these songs off the radio, and there would have
been no penalty. But unless they can prove that they own CDs or LPs or
tapes with legal copies of the music on their computers, these cadets may
well have their lives changed by the actions of the RIAA.
Things have obviously gone way too far when something is legal in
one medium but illegal in another.
Common Sense and Copyright
I don't condone the wholesale distribution of MP3s over the Internet.
No matter how easy it is to do, under current copyright law almost all
of it is piracy. But destroying Napster won't end MP3 file sharing, nor
will ruining the lives of Naval Academy cadets deter many from downloading
files.
Think about it. If it's legal for me to record anything on the public
airwaves for personal use and all of the songs available as MP3s have
at some point been broadcast on the public airwaves, why is the RIAA going
after individual file swappers and downloaders instead of the pirates who
actually press and sell contraband CDs? Nobody is getting rich sharing
MP3s.
In fact, research tends to find that the less file swapping taking
place, the less music the recording industry sells. If anything, Napster
exposed people to music they may not have had access to on local radio
and got them to buy more CDs. To make more money, the RIAA should promote
MP3s, not damn them.
That's common sense. Instead they are working with Microsoft and others
to create alternate formats that are supposed to prevent piracy and could
make it very difficult to rip a CD to both your home and work computers,
for instance. And what happens if your hard drive crashes or someone deletes
your favorite music files?
Thank goodness Apple is avoiding that path. On the down hand, Sony's
new scheme requires Windows -- just like that new movie download service.
We may soon lose the ability to listen to some CDs on our Macs if the music
industry has its way.
Plane Crazy and Steamboat Willie
The concept of copyright is that the creator can benefit from a work
for a limited period of time, after which it enters the public domain.
Copy protected DVDs and CDs deter that, as does legislation that continues
to increase the length of the copyright term.
I'm sorry, Disney, but you've had exclusive rights to
Plane Crazy
, the 6 minute silent cartoon that introduced Mickey Mouse, and
Steamboat Willie
, the more famous Mickey Mouse cartoon with a soundtrack, for 84 years
-- that's long enough. Let it go.
The fear, of course, is that this would put Mickey Mouse himself in
the public domain, allowing anyone to use the trademarked Disney mascot.
But that needn't be the case if we carefully rewrite copyright and trademark
law in such a way that fictional characters (such as Mickey Mouse) remain
protected from use in unauthorized works while still allowing the old works
to fall into the public domain.
That could end these ongoing extensions of copyright law.
How Long Is Long Enough
I think most people would agree that a 14 year copyright period with
a single 14 year renewal is inadequate with today's longer life spans.
An author should be able to benefit from her created works as long as she
lives, but such a right shouldn't be granted automatically.
Today's copyright law extends 70 years beyond the death of the author,
95 years from publication, or 120 years from creation. That's excessive.
If the media companies have their way, nothing will ever enter public domain
until it's long forgotten; that isn't what the Founding Fathers had in mind.
Here's a simple suggestion that would benefit the artist and the public
without severely impacting business:
* A fixed, reasonable initial copyright period of
perhaps 40 years. If not renewed, the material falls into the public domain.
* A ten year copyright extension available at minimal
cost to the copyright holder, whether individual or corporate.
* A second 10 year extension at double that cost.
* A third 10 year extension at double that cost.
Also fourth, fifth, and so on extensions available, each at double the cost
of the last one.
* All copyright would cease 100 years after initial
publication, except in cases where the artist remains alive. In such cases,
copyright can be renewed every 10 years for an additional 10 year period
at twice the cost of the last renewal as long as the artist lives.
The greatest benefit of this is that copyright holders have an increasingly
great incentive not to renew copyright on material that isn't generating
income. Further, corporations would only be able to renew copyright for
a limited time. Only material with a personal copyright could be renewed
after 100 years (or whatever term Congress deems appropriate -- this is just
a suggestion).
A further stipulation of any new copyright legislation should be that
the method of publication should not make fair use impossible, which would
address the problem Linux users have when the want to watch DVDs on their
computers and a problem Sony's proposed CD protection system might pose
for Mac users.
Beyond Copyright
Then we just need some good old fashioned common sense legislation
that clearly differentiates between different types of copyright violation.
Publishing a book or movie or CD without permission of the copyright holder
is a much different thing than downloading an MP3 from the Internet or
recording a song off the radio. There is a difference between deliberate
piracy for profit and casual use.
There is also a difference between ripping your own MP3s and making
them available to all comers. No matter how much legitimate file sharing
Napster allowed (I used it a couple times to download MP3s from songs
on CDs I owned), in the final analysis it was primarily used for unauthorized
distribution of copyrighted material.
What the MPAA and RIAA need to realize is that this isn't going to
disappear. The nature of the Internet makes it a certainty that user-to-user
file sharing is going to take place.
That said, there seems to be a strong correlation between the level
of MP3 sharing and the level of CD sales, just as there is a correlation
between listening to music on the radio and buying that music for your
own collection. File sharing, legal or not, actually benefits the media
companies. Instead of fighting it, they should try to work with it.
This might seem too sensible, but what if the record companies actually
offered MP3s on their own servers. They could control the quality. They
would know who is downloading them. They could charge a fee depending on
the quality -- low quality MP3s could be free and higher quality ones might
cost 50¢ or $1.00. And each track would contain a unique identifier
that could be used to trace piracy. They could make money off the music without
pressing and distributing all those CDs.
Of course, that's not a copyright issue. That's business.
The RIAA needs to find ways to work with technology and with its customers
instead of working to have cadets thrown out of the Naval Academy. They
know how to make enemies; they need to learn how to make friends.
Copyright Law
And we need to petition Congress to overhaul copyright law. The Digital
Millennium Copyright Law, the Bono legislation, and so many other actions
have undermined the concept of the public good. Instead, Congress has
responded to the deep pockets of the media companies by gutting the public
domain.
We need some common sense legislation that recognizes the importance
of fair use and public domain. We need a new birth of freedom so that a
copyright law of the people, by the people, and for the people shall not
perish from the earth.
An Open Letter Offering a Solution
Allowing Music File Sharing on the Internet
(This Open Letter was sent to the Chairman and Ranking Member of the
Senate Judiciary Committee)
Honorable Senator Orrin G. Hatch, Chairman
Honorable Senator Patrick Leahy, Ranking Member
Senate Judiciary Committee
United States Senate
Washington, DC 20510
Dear Senators:
I have a solution to the controversy about music piracy on the Internet.
I believe that what is necessary is the creation of a compulsory statutory
license for music file sharing on the Internet. This would provide for
a statutory rate for a music duplication and distribution license fee that
would go to the owner of the copyright in the sound recording whenever a
file is copied. Right now, that owner is usually the record label, but some
musicians own the copyrights to their own master recordings.
This solution has a precedent in copyright law under the United States
Copyright Act. The Act provides that once a song copyright owner has recorded
and distributed a song to the US public or permitted another to do so,
a compulsory mechanical license is available to anyone else who wants to
record and distribute the work in the US upon the payment of license fees
at the statutory "compulsory" rate as set forth in Section 115 of the Act.
This allows an artist to record and release any song they wish provided
that they pay the copyright owner of the song in question a mechanical royalty,
which is currently set at 7.55 cents per song per record sold. This royalty
goes to the publisher of the song, who typically splits the royalty with
the song’s composer. This mechanical license does not include the right
to reproduce an already existing sound recording.
A compulsory statutory license tends to act as a maximum royalty.
People are free to negotiate any deal they want, but in the absence of
negotiations, the compulsory statutory license rate holds. Since mechanical
licenses will already have been acquired by the sound recording copyright
holders, any compulsory statutory duplication and distribution license fee
will have to be high enough for the sound recording copyright holder to
pay the mechanical license royalty from.
For example, the Pay2StealMusic.com web site enables a download of
a four minute song composed by Joe Songwriter, published by Get Your Song
Recorded Publishing, performed by the band Covers R Us, and released on
Huge Major Label Records. With a statutory license rate of 25 cents per
minute, Pay2StealMusic.com would pay Huge Major Label Records $1 for the
download. Huge Major Label Records would pay Get Your Song Recorded Publishing
7.55 cents for the song’s mechanical royalty. Typically, Get Your Song Recorded
Publishing would pay 50% of this (3.775 cents) to Joe Songwriter. If Covers
R Us has negotiated extremely well with Huge Major Label Records, then
Huge Major Label Records would credit the Covers R Us recording fund 42.5
cents (half of the download income less the cost of the mechanical royalty).
If Covers R Us has used their studio time to good effect and has spent only
$4250 recording the song, then they have to log 10,000 downloads before they
can start seeing some income.
This would allow any site on the Internet to promote music file sharing
provided that they pay the compulsory statutory license fee to the sound
recording copyright holder. Internet sites would be free to negotiate a
lower license fee, and many would be successful at such negotiations. A
central database of sound recording copyright holders could be set up to
assist small organizations and individuals in arranging licenses.
Musicians, independent labels, major labels, file sharing sites and
the public would benefit from such an arrangement. Musicians would benefit
by not being as tied to an exclusive contract with a label. Independent
labels would get added distribution. The major labels would benefit greatly
financially because they own a huge portion of the content. File sharing
sites could offer any music they choose and could also negotiate with copyright
holders for bulk rates based on any promotional value they may be able
to offer. The public would support this because it is fair and allows file
sharing to continue.
Sincerely,
Matthew Montfort
Musical Director
Ancient Future
World Fusion Music Ensemble
POB 264
Kentfield CA 94914-0264
415-459-1892
1-888-823-8887
info@ancient-future.com
ancient-future.com
Let's Not Let Entertainment Cartel Set Terms of Debate
Dan Gillmor
Knight-Ridder Newspapers
August 19, 2002
If you can set the rules, you can win the contest. That's
the major reason the entertainment cartel is winning the debate over
copyright in the Digital Age.
Average people are not part of the conversation, not in any way
that matters. To the cartel and its chattel in the halls of political
power, we are nothing but "consumers" - our sole function is to eat
what the movie, music and publishing industries put in front of us, and
then send money.
It's long past time for the rest of us to challenge the cartel's
assumptions, actions and overall clout. Over the next few weeks and months
I'll offer some suggestions.
The first thing we can do is stop letting the entertainment companies
set the terms of the discussion. Let's restore some balance.
* One of their most noteworthy achievements, notes Stanford law
Professor Lawrence Lessig, is to frame the debate in a way that presents
two extreme choices. Unless Hollywood and its allies gain absolute control
over digital music, movies and other "content," insist the cartel members,
there will be anarchy - a situation in which no creative person can ever
be compensated for his or her work.
Absolute control means demolishing the rights we users of copyrighted
material have enjoyed for centuries, such as the fair-use right to make
personal copies or quote from copyrighted works. It means carving away
what's left of the public domain, shrinking the public commons from which
so many creative works have emerged.
The entertainment companies don't fear the end of creativity.
They fear the end of the business model that has centralized control
over much of our culture, a system that has produced exorbitant profits
for companies that have a remarkable tendency to cheat the artists in
the process.
The industry has made it abundantly clear that it isn't interested
in a compromise that preserves traditional rights. By using scare tactics
- the threat of anarchy and loss of creativity - the entertainment companies
poison the well and prevent a compromise.
Maybe there can't be a compromise. Maybe technology inevitably
creates a binary choice.
But I'm convinced that we can preserve our rights, if we can only
persuade Congress that they're worth preserving. There's little or no
constituency for fair use and other rights, partly because lawmakers
are only hearing one side. But if the community of readers, listeners,
viewers, scholars, researchers and others who don't "own" copyrights doesn't
at least challenge the terms of the debate, it will surely lose.
* The copyright industry talks about "intellectual property" -
a grossly misleading expression that turns history and logic upside down.
Property, by tradition and law, is physical. The idea of "intellectual
property" is a fairly recent invention by the people who believe they
should be able to own ideas, and totally control their use, with the help
of a compliant Congress.
If you go into a grocery store, pick up an apple and leave without
paying for it, that's stealing. The physical product, the apple, has
been appropriated. If you make a copy of a song you haven't already purchased,
the owner has lost the possibility that you might have paid for it.
I'm not arguing for the wholesale copying and selling of others'
works, such as the kind of thing we see from China-based DVD factories
that stamp out tens of thousands of copyrighted works and sell them for
pennies. That surely is criminal behavior. A personal copy of a CD you've
already purchased, for playing on a computer or in your car, is not piracy
no matter what the record companies want.
And neither is a download from a file-sharing service by someone
who wants the music but sees a chance to avoid paying; that's somewhere
in between the DVD factory and personal copying, but the industry sees
everything as piracy.
* When we think about piracy, we should realize who the biggest
pirates are - the members of the entertainment cartel themselves.
The nation's founders wanted to encourage inventiveness. The Constitution
explicitly discusses the rights of writers and other creative people
in the context of adding to the public good. Congress, the founders wrote,
has the obligation and 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. ..."
Note the order. The purpose is to promote progress in science
and the arts. The way we do it is to give creators rights for limited
times, after which the material ends up in the public domain - and,
in the meantime, it's available for others to use.
Congress has tortured this clause, extending copyright terms many
times. Today the term of copyright is so long as to be effectively unlimited
- or, as well-informed cynics have noted, long enough for Disney to extract
every dollar it can get from Mickey Mouse. The irony of the company's
founding - Walt Disney got rich by using material that had fallen into
the public domain - is utterly lost on the current operators who run the
conglomerate.
When copyright owners extend the copyright terms of existing works,
as they've done repeatedly in the past, they are taking works that would
otherwise enter the public domain and keeping them private. That is
a theft from the public, from you and me, and it surely amounts to tens
of billions of dollars. So who's the real pirate?
To re-establish some balance, we need to re-educate ourselves,
to learn the alternatives to the cartel's offerings. We need to re-educate
Congress - and, in the process, adopt some of the tactics the entertainment
industry uses so successfully.
Most of all, this will take your efforts. Watch this
space for some specific suggestions. And send me yours.
Write Dan Gillmor at the Mercury News, 750 Ridder Park Drive,
San Jose, Calif. 95190; call 408-920-5016; fax 408-920-5917. Visit Dan's
online column, eJournal: www.dangillmor.com
; e-mail: dgillmor@sjmercury.com
DIGITAL DUSTUP
Should the computer industry protect Hollywood from
digital theft?
The guns are drawn.
Devin Leonard
Fortune Magazine
May 27, 2002
Nothing has stirred up Hollywood lately like
Ted Waitt's talented Holstein. Waitt is CEO of Gateway, the nation's
fourth-largest PC manufacturer, and the cow is his company mascot. It's
the Holstein's spots you see on Gateway packaging. Lately, though, Waitt
has been using his sidekick to attack the entertainment industry. In
a TV commercial, Waitt is driving down the highway in an 18-wheeler at
dusk, with the cow riding shotgun. Waitt shoves a homemade CD into the
truck's sound system. Out comes a hip-hop version of Gordon Lightfoot's
1974 classic "Sundown." Waitt raps along as he steers the big rig, bobbing
his head to the beat.
"Hey, B, what's the deal?" Waitt asks the cow.
On cue, the Holstein starts rhyming like a bovine Jay-Z: "Sometimes
I rap slow, sometimes I rap quick..."
Sounds innocent enough. But as Waitt and cow head off into the
sunset, viewers are directed to Gateway's Website, where they can download
the song free. There, they are urged to oppose a Hollywood-backed bill
in the U.S. Senate intended to end the unlawful distribution of copyrighted
music and movies. "Have you seen this??" asks an e-mail circulating among
movie-studio and record-company executives. "This is WAR!"
It certainly is. Hollywood has gone to Washington to stop the
trading of pirated movies online. It has thrown its lobbying muscle behind
a bill, introduced by South Carolina Senator Ernest Hollings, that would
order the Federal Communications Commission to find a way to halt this
thievery if the entertainment and technology sectors can't come up with
their own solution. Disney CEO Michael Eisner, testifying in favor of
the bill, took the opportunity to bash Silicon Valley on the Senate floor:
"We're dealing with an industry where an unspoken strategy is that the
killer app is piracy."
Hollywood has reason to be alarmed. Global music sales declined
last year by 5%, largely because you can get any song you want on the
Internet these days free. In a recent survey, 23% of music fans told
the Recording Industry Association of America that they were buying less
music because they were downloading it free from the Web or burning copies
of other people's CDs. "We've seen a fundamental collapse of the music
business," says Peter Chernin, president of News Corp., owner of 20th Century
Fox studios.
Now Hollywood is watching fearfully as free copies of hit movies
are beginning to appear in cyberspace. Viant, a Boston consulting firm,
has estimated that feature films already are being swapped on the Internet
at a rate of 300,000 to 500,000 times a day. Considering that the average
cost of making and marketing a movie has reached $78 million, it's easy
to see why studio executives have rallied around Eisner in support of
the Hollings bill.
The bill, however, is anathema to technology leaders like Intel
Chairman Andy Grove and Apple Computer CEO Steve Jobs. They fear the
government could muck up the computer industry royally. Moreover, they
question whether it's their responsibility to rescue an industry that has
historically been more concerned with cranking out Frankenstein sequels
than embracing change. "Were the manufacturers of printing presses forced
to protect the monks?" Grove asked in a recent op-ed piece. "Was the PC
industry forced to protect the mainframe computer industry? Why is this
case any different?" In an interview, Grove says, "We spent a decade talking
convergence, and now that convergence is about to happen the content industry
says, 'Oh, not so soon' and 'Not this way and not that way.' I think they
are deadly afraid of [convergence], deadly afraid of what it is going to
do to their business." The message is clear: The studio owners are dinosaurs.
If they can't adapt to the brave new world that companies like Intel
and Apple have ushered in, extinction is what they deserve.
Grove has a point. But so do Hollywood executives who accuse
their Silicon Valley counterparts of ignoring Internet piracy because
it helps them sell gadgets. Annual sales of CD burners rose 14% last
year, to $684 million. Over the past two years the number of portable
MP3 players, like Apple's iPod, has more than doubled. It's pretty clear
that many of these devices are being used to copy and play stolen tunes.
The irony is, these two industries could really use each other's
help. PC sales declined last year for the first time since 1991. Hollywood
had a record year at the box office in 2001, but that obscured the
fact that average revenue per movie actually declined by 40%, to $22.4
million, as the number of releases grew. Think of the money Hollywood
could rake in if it could come up with a way to safely distribute movies
over the Internet. Think of all the people who would sign up for broadband
and buy swifter computers if everything from
Easy Rider to
Dude,
Where's My Car? were lawfully available online.
So why can't Hollywood and Silicon Valley find a way to make
this happen? The problem is, Hollywood studio owners think they are
the lords of the entertainment world. Their Silicon Valley peers see
themselves as masters of...well, the universe. Is it any wonder these
two industries can't get along?
Michael Eisner loves his iPod. "It's one of
the most fabulous things I've seen in the past couple of years," he
says. Eisner has no problem with the technology itself, but he deplores
the fact that people are using it to avoid paying for Disney products,
in effect stealing from the company. "Nothing about technology is threatening
or upsetting or negative," he insists. "This is simply about conscious
behavior, about right and wrong, and I just don't understand the enormous
tidal wave of rhetoric that this issue has created from the so-called
technology side. Shakespeare would find it interesting."
Eisner is the most outspoken member of a Who's Who of media moguls--Viacom
CEO Sumner Redstone, Vivendi CEO Jean-Marie Messier, and News Corp.'s
Chernin--whose movie studios have endorsed the Hollings bill. They are
being supported somewhat less enthusiastically by AOL Time Warner CEO
Richard Parsons and Sony Corp. of America CEO Sir Howard Stringer, whose
companies have one foot in the entertainment business and the other in the
technology sector. "Unless you make piracy a very serious issue," Stringer
says, "the technology industry won't try, not because they are bloody-minded,
but because it complicates their lives." While AOL doesn't endorse the
bill, Parsons says, "There is a role for government to play here, but
we think it's a narrow one of enforcing agreements hammered out in the
marketplace."
The way these CEOs see it, Silicon Valley has put some very powerful
tools in the hands of consumers--tools that are now being used to rip
off their products. So it's up to these same technology companies to
come up with a way to stop this. Eisner and his fellow studio owners would
like to see a system designed so that music and movies could be stamped
with a "digital watermark." PCs and other digital media players could
scan for the watermarks and tell whether content had been acquired legitimately
or stolen. "All we have to do is get together and figure out some system,"
Eisner says. "If we can get to the moon or get to Mars and get those unmanned
drone ships to fly to the Middle East, why can't we put a little watermark
on our content?"
To Andy Grove, this is typical Hollywood nonsense. These are
the same people, he says, who fought tooth and nail to kill the VCR
and today get more than 50% of their revenues from video rentals. Now
they are running away from the greatest distribution channel ever imagined:
the Internet. By failing to offer movies online, Grove continues, they
have allowed piracy to flourish and instilled the belief in Web surfers
that it's okay to grab whatever's available for nothing on the Internet.
"It is going to happen sooner or later," the Intel chairman warns his
adversaries. "If it happens later, you will have corrupted your consumers
and you are going to antagonize your consumers. So do you want to do it
when your customers are still with you, or when they have abandoned you?"
Grove is basically speaking for an A-list of technology industry
executives, including Microsoft's Steve Ballmer, Cisco's John Chambers,
Dell's Michael Dell, and IBM's Lou Gerstner, all of whom share his
concern about what would happen if the government stepped in to set
digital-content security standards. Most of them have been quietly working
behind the scenes to stop the bill. But because their companies do business
with the studios, they are reluctant to speak as bluntly as Grove.
Yet they aren't all holding their tongues. Jobs was mortified
in February when Eisner singled out Apple's "Rip, mix, burn" marketing
slogan in a Senate hearing as evidence that the technology community
is promoting thievery to sell computers. It was particularly galling
to Jobs because he is also CEO of Pixar, the digital animation studio
that has co-produced hits like Toy Story 2 and Monsters Inc. with Disney.
"On a personal basis, I was just floored," Jobs says. "He used 'Rip, mix,
burn.' He doesn't understand what it means. He thinks it means download,
mix, burn, but ripping of course means you have a physical CD, which is
what [the music industry] would like."
Eisner is unapologetic. "I didn't mention his company by name,"
he says innocently. However, he clearly resents the suggestion that he
doesn't "get" technology. Eisner is tired of being told he should just
overcome his fears, put his movies online, and trust market forces to
work things out. "The only thing I can say is it's very hard to create
a business model against something that is a perfect copy for free," he
says. "It would even challenge the greatest business man who ever was."
Says News Corp.'s Chernin: "All we're asking is for [Andy Grove]
not to build a business while stepping on our necks. When technology
arises to help solve this problem, trust me, he'll figure out a way to
make money on it."
Hollywood and Silicon Valley have always had an uneasy relationship.
Eight years ago Grove was invited to investment banker Herb Allen's
annual gathering of entertainment-industry moguls in Sun Valley, Idaho,
to explain this new thing called the Internet. "They were all fascinated
by it," he recalls.
The feeling was mutual in Silicon Valley. Intel, Microsoft, and
Sun Microsystems opened Hollywood offices hoping to profit from the marriage
of content and the Web. There were lots of discussions but few meaningful
deals. Engineers from the Valley found it difficult to communicate with
studio executives, some of whom didn't even use e-mail. Hollywood was
uncomfortable with Silicon Valley's penchant for coming up with products
like TiVo, the commercial-jumping digital video recorder that threatened
their television production businesses. "That was a very nice presentation,"
a studio chief reportedly told a contingent from TiVo after sitting through
a demo. "Now go set yourselves on fire."
Hollywood's fears weren't misplaced. Fueled by billions of dollars
of venture capital, technology advanced more rapidly in the late '90s
than anybody in the media business could have imagined. Instead of becoming
a vehicle for legitimate distribution, the Internet became a channel for
piracy. Napster, a Web startup led by a 19-year-old college student named
Shawn Fanning, linked PC hard drives around the world and created a network
where you could make a free copy of any song you desired from a fellow
participant's digital collection. Before Napster was shut down by a court
order, the tech industry persuaded a generation of music fans to see executives
at Sony, Universal, and Warner Music as greedy corporate suits bent on
depriving them of their beloved Web "community." By contrast, Fanning became
a Time (and FORTUNE) cover boy.
It was pretty clear to studio executives that bootlegged movies
were next on the file-sharing crowd's menu. But when studio executives
asked technology CEOs for help, they got nowhere. Eisner personally appealed
to IBM's Gerstner, Microsoft's Ballmer, and Compaq's Michael Capellas,
but nothing came of it. Other studio owners had similarly frustrating conversations.
"You don't know how many times I was told, 'Hey, the express train is
running down the tracks, get out of our way,' " Sony's Stringer sighs.
It was too much for Hollywood to swallow. Two
years ago at the Sun Valley conference, Viacom Entertainment Group Chairman
Jonathan Dolgen dressed down Andy Grove after he had lectured a roomful
of media-company CEOs about how they needed to get together among themselves
and figure out what to do about piracy so they didn't miss opportunities
on the Internet. "You're being disingenuous," Dolgen responded. "You got
us into this mess. Now you help us get out of it." The room exploded with
applause.
The studios had more leverage than the music business. Napster
went mainstream because music is so easy to download. But you need a
broadband connection to get Hollywood's products online. Even then it
takes two hours to download a movie from a file-sharing service like Morpheus
using a cable modem. (It takes two days using a 28.8 modem). So bootlegged-movie
viewing is still largely restricted to college campuses, where students
have the bandwidth and the time for such frivolity.
Companies like Intel and Microsoft are eager to get a wide variety
of movies online because they believe films will drive the large-scale
adoption of broadband and help the PC become the center of the home entertainment
network. For several years Intel and a consortium of consumer-electronics
companies have been trying to persuade Hollywood to endorse a technology
that promised to protect movies coming into home networks through a set-top
box.
However, in late 2000, Disney decided it was tired of having
endless conversations with Silicon Valley and not getting its worries
addressed. When the engineers at the meetings said they couldn't do
anything to protect Disney's digital "over the air" broadcasts on ABC,
Disney refused to endorse the technology. Paramount, Universal, and
News Corp.'s 20th Century Fox followed suit, and the negotiations effectively
came to a halt. Instead, Eisner set out to reframe the file-sharing debate
from a discussion about technology into one about stealing. "Our route
is very simple," the Disney CEO says. "Our route is to make this into
an issue that somebody will solve."
The forum he chose was Washington. It wasn't long before Disney
and its allies found a champion in Hollings, the powerful Senate Commerce
Committee chairman. In March the Senator introduced a bill that would
give Hollywood and Silicon Valley a year to address the movie industry's
worries before the FCC steps in. The bill mandates that they find a way
to encode a "broadcast flag" in free digital television programs so that
they can't be uploaded onto the Internet. It gives the same deadline to
find a way to keep digital content from being stolen after it is converted
into the wave form used for analog television sets in 95% of American homes.
The bill also gives the two industries a one-year window to come up with a
way to keep copyrighted content from being shared free through services like
Morpheus and KaZaA.
Hollywood's pressure tactics had their intended effect. On the
eve of the Commerce Committee's hearing on the bill, the heads of the
seven largest movie studios received a letter from technology CEOs,
including Intel's Craig Barrett, Microsoft's Ballmer, and IBM's Gerstner,
asking for "inter-industry cooperation."
Since then, negotiations have moved quickly. Hollywood and Silicon
Valley are close to announcing a plan for a broadcast flag. There is
also a consensus on using watermarking to protect digital movies when
they are converted to analog. Hollywood executives say none of this would
have happened without the Hollings bill. "I try not to be cynical," says
News Corp.'s Chernin, "but it's hard not to be skeptical when we were
nowhere on the broadcast flag until those hearings, and now the broadcast
flag is solved." Technology executives say they are able to address Hollywood's
concerns more speedily now because the studios are finally back at the
negotiating table.
Does all this mean the fight is over? Hardly. Emboldened by its
success in Washington, Disney is asking Silicon Valley to design PCs
that can sniff every piece of incoming content--including e-mails--for
watermarks. "There is a thing in the computer called the CPU, the central
processing unit, right?" says Preston Padden, Disney's chief Washington
lobbyist. "All the bytes go through there, and we're looking to come up
with reasonably standardized watermark detection [that] can effectively
read for watermarks on all the content coming through."
Naturally, Silicon Valley is horrified. "Think of all the billions
of e-mails that you would have to check," fumes Grove. "Not only are
you going to slow down everybody's transmission, but you're going to
be guilty of an incredible privacy violation which is more or less equivalent
to requiring the U.S. post office to steam open every piece of mail."
"This isn't 1984," Padden says. "We don't want to violate anybody's
privacy."
The technology community is using Hollywood's hard line to stir
up consumers. That's the thrust of the Gateway anti-Hollings bill advertisement.
"Some content distributors want the government to regulate your ability
to [use digital media]," the company says on its Website. "There's even
a bill before the U.S. Senate that would force the technology industry
to implement anti-piracy technology that could prevent all digital copying--even
copying that's legal today under U.S. copyright laws." Never mind that
the Hollings bill wouldn't do that. Gateway wants to unsettle all those
consumers who've invested in CD burners and MP3 players in the past year.
So what we have here is a game of chicken. Unless somebody flinches,
both sides stand to lose. And there remains plenty to fight about.
The steps the two sides have agreed to will block some sharing of files,
but not all. Digital movies broadcast over the air will be given a "flag,"
a kind of digital stamp that PCs will recognize as a prohibition against
uploading to the Internet. But movies that leak out to the Web will still
be susceptible to file sharing. Silicon Valley leaders say there's no
way to get the genie back in the bottle. There are too many songs on
Morpheus that have been ripped from CDs, too many movies that have shown
up on the Internet before appearing in theaters because they were stolen
directly from studio vaults. Unless content is protected when it is created,
they say, there's no way for a PC to tell if it's legitimate or bootlegged.
Hollywood executives think they are getting the typical technology
runaround. "We all know GM has a motor in its files that would get
60 miles a gallon," scoffs one of them. "I'm pretty sure Intel has something
in its files that will solve our problems." This talk infuriates Apple's
Jobs, who says his industry would also love to get this problem behind
it: "To say this intractable technology problem is going to be solved
by something in the back pockets of technology companies, and they are
not sharing it, is unbelievable. This is an important issue, and it's
not going to be solved by threatening rhetoric. It's going to be solved
by a computer scientist who has an incredibly original idea. We just don't
know who or when."
Jobs is right. Name-calling isn't helping matters. However, there's
so much bad blood between the movie and technology industries that they
don't trust each other anymore. The piracy dilemma won't be solved until
that changes. Judging from the things Hollywood and Silicon Valley are
saying about each other, it will be a long wait.
© Copyright 2002 Time Inc.
http://www.fortune.com/indext.jhtml?channel=print_article.jhtml&doc_id=207975
