The Copy-Fight: The collision of technology and individual freedom
By Adam Maya and Sonya Senkowsky
Fred Von Lohmann
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Who’s responsible for iPods playing stolen music?” Electronic Frontier Foundation attorney Fred Von Lohmann asks. “And who makes that decision?”
Or, more specifically, now that there are hundreds of programs that allow you to trade music, movies and software over your computer, who’s responsible for copyright infringements? The producer of the technology or the consumer using the technology?
Fred Von Lohmann gives the best answer possible at this time: “I don’t know.” In this age of increased copyright confusion, one thing is for sure: The answers will come in a courtroom.
The 1970s saw the advent of the VCR, photocopiers and cassette recorders. To the chagrin of the entertainment industry —notably over double-tape decks, which have no other use but to make copies—the Supreme Court ruled then that copyrights cannot stop technology from advancement.
Today the issue is digital, with the possibility of making “eternal perfect copies.”
The arrival of Sony’s first Betamax VCR in the mid-1970s prompted the Copyright Act of 1976, as consumers had the ability to make copies and, more important, distribute. But copyright infringement became even more of a public issue in 1999, with Shawn Fanning’s “Napster.”
Generally defined as a legal protection granted to a published or unpublished tangible form of expression, a copyright lasts the lifetime of the author plus 70 years (longer today than ever before). This protects a work from being copied, distributed, publicly performed, displayed, or made into derivative works. However, U.S. law also has a “fair use” provision — which allows, for example, quoting from a copyrighted work.
Copyright law has long depended on the ability to go after intermediaries who can be held responsible for infringements more easily than individuals. For example, flea markets can be held responsible for bootleg vendors.
But legal battles over VCRs represented the first time the law was used to pursue after technology vendors. The Supreme Court decided, however, that as long as technology is capable of legal uses, the maker will not be held responsible for infringing uses.
Then in 1998, came a new provision. The Digital Millennium Copyright Act prohibited the act of circumventing to gain access into copyrighted works. Now, encryption technology has been instituted to restrict access to digital copyrighted content. “This represents a huge change in copyright law.”
That law is responsible for today’s encrypted DVDs, which require special “keys” (located within VCRs) to unlock their data. “This is the first media content to come encrypted at birth,” said Lohmann.
The line between fair use and pirating is a fine one. Consider the Amoeba Music example, Lohmann said:
Say you were one of the few hundreds of thousands who bought the new White Stripes’ CD, “Get Behind Me Satan,” upon its release last Tuesday. “If you happened to buy it at one of Amoeba’s three locations, you could have burned it on your computer, returned the CD within seven days for 75 percent of the sale price, and that CD would now be on sale in the used section.” Copyright infringement? Not according to fair use and first sale doctrine. But at what point does intent play a factor?
“It’s survival of the fittest,” Von Lohmann says. “Is it legal? I don’t know. Nobody’s going to litigate that.”
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