In last month's disContent, I quoted the Constitution, and some quotes are worth repeating: "The Congress shall have power...To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries."
Based on recent legislation, I also provided a hypothetical reworking that goes something like this, "Members of the MPAA, RIAA, and AAP shall have the right to control technological change in order to enforce perpetual rights to creative works. Congress shall ensure that the corporate right to control over and payment for every use of those creations takes precedence over outmoded notions such as freedom of speech, fair use, and the first purchase doctrine."
To reiterate the first part of my point, copyright in its constitutional form provides for a limited-term monopoly that balances the rights and needs of those who create original works, those who use those creations--readers, listeners, viewers--and those who create new works based in part on what came before. Along the way, copyright makes it possible for intermediaries--publishers, distributors, etc.--to function by establishing known and reasonably equitable rules. But things have gotten out of whack--and could easily get worse.
Living With DMCA
When the Digital Millennium Copyright Act (DMCA) became law in the late 1990s, the basis was that copyright holders needed better tools to fight digital piracy. DMCA provided those tools--and also created a whole new class of crime that causes unfortunate side effects. The Electronic Frontier Foundation (www.eff.org) posted Unintended consequences: three years under the DMCA in May. The executive summary argues that DMCA's anti-circumvention provisions (Section 1201) "have not been used as Congress envisioned." Congress was after pirates and wanted to ban black boxes, but the provision has been used to stifle legitimate activities. According to EFF's report, Section 1201 chills free expression and scientific research, jeopardizes fair use, and impedes competition and innovation. The summary provides examples of otherwise-legitimate activities made impossible by Section 1201 (e.g., fast-forwarding through commercials before a DVD movie), real-world examples of the harm done by DMCA, including self-censorship for fear of violating the act, scientists unwilling to come to the U.S., the assault on fair use represented by copy-protected pseudo-CDs, and more. The entire report is available for download in PDF form.
Consider deCSS, a program created so that Linux users could view legally purchased DVDs with their DVD-ROM drives. Under DMCA, deCSS is illegal as is any publication of the algorithm in any form. As for the First Amendment, the courts decided that DMCA takes precedence. So what about free expression and scientific research? The Secure Digital Music Initiative devised methods to watermark digital music in order to protect against copying and invited people to crack the codes. Edward Felten and his Princeton team did so and planned to present a paper on their work. The RIAA sent Felten a letter demanding that he destroy the research and threatening that publication of academic research "would subject your research team to enforcement activities under the DMCA." Felten pulled his paper from one conference and raised a public stink. The RIAA responded that they weren't really threatening legal action, just sending an innocent letter. By disavowing the threat, the RIAA mooted a potential anti-DMCA court case, while showing how effectively DMCA could be used to stomp on academic freedom as well as fair use, free speech, and other "pre-digital" rights.
DMCA's warping of copyright balance is bad enough that Business Week has run more than one story denouncing its provisions. Its proponents have become surprisingly public with their assumptions that all consumers are thieves at heart, that fair use does not exist, that reasonable expectations of purchasers and users should be overridden in the name of copyright.
SSSCA and CBDTPA
How's this for a law: Any "interactive digital device" must include "certified security technologies" that will implement "directions of copyright owners...with regard to the reproduction, performance, display, storage, and transmission of such material or content." Removing or altering security: illegal. Transmitting unencrypted material: illegal. The one "consumer" provision provided is that you can make one copy of a broadcast or non-premium cable or satellite program, to be viewed once. That's the essence of SSSCA, a bill Senator Hollings planned to introduce last fall. After March hearings, SSSCA disappeared from the scene--and Hollings introduced the Consumer Broadband and Digital Television Promotion Act (CBDTPA).
Instead of "security," the selling point for CBDTPA is that people aren't signing up for broadband fast enough because there isn't enough digital media available requiring broadband. Big Media desperately wants to make content available, but can't do so without absolute protection, since we need broadband to "Make America Strong" and bring all the benefits of broadband to the masses. Therefore, we'll give technology companies and media outfits one year of government-sanctioned secret meetings so they can come up with a standard. The standard is to make hardware and software do what SSSCA mandated: assure that copyright owners can maintain absolute control over their property on any digital device. If the companies don't arrive at such a standard, then it's up to the government to do so. Thus, you would have government-designed chips that would control any transmission or copying of any digital information in any computer or other digital device.
A few senators who should know better have co-sponsored the legislation, including California's faux-liberal Dianne Feinstein. The RIAA appears to favor this draconian legislation. MPAA hasn't taken a formal stance only because AOL Time Warner regards the legislation as absurd, but Jack Valenti thinks it's wonderful. (The same Jack Valenti that assured us VCRs would destroy the movie industry.) Disney thinks it's wonderful; the company had called SSSCA "an exceedingly moderate and reasonable approach." Technology companies (Intel, Dell, Gateway, Microsoft, etc.) are mostly opposed.
HARSH REALITY
Herewith an unfortunate fact and an even more unfortunate probability:
Fact: Congress responds to money and doesn't seem terribly concerned about eliminating consumer protections, particularly when Big Media keeps talking about "acting on behalf of the consumer" by restricting our ability to use what we've paid for.
Probability: Any security technique that could provide the protection demanded by Big Media would eliminate the ability of devices to record, copy, or distribute non-watermarked digital files, including your own video camera recordings or musical compositions, as well as compilations of your CDs. Why? Because any watermark can be removed, and because one simple digital:analog:digital cycle--for example, connecting an audio CD player to your PC sound card's analog input and recording the result--will eliminate any inaudible watermark. There would be a loss of quality, although for music it will be much less than the loss involved in typical MP3 encoding...and the RIAA has clearly found MP3 copying to be theft.
Why should you care? Any such mandated protection could cause a market crash for personal computers and other digital devices, as sensible people stop buying new "protected" machines. There are other reasons to be disturbed, particularly if you base content on other works or use any digital copying or distribution devices--computers, digital copiers, MP3 players, whatever. I believe that includes every reader.
I've been writing a lot about copyright-related issues in Cites & Insights: Crawford at Large, certainly more than I'd like. That's one good starting point for links to articles, books, and legal briefs in these areas. There's no shortage of other sources on the Web--too many to mention here. But no matter where you look you'd best be paying attention to the evolution of copyright as it hits closer and closer to rights you may have taken for granted.