Chapter 1 Copyright Let’s consider three copyright conundrums before taking up a historical review of the legislation through which US copyright law has emerged. First: . The film Titanic is being shown on a broadcast television network; you receive it over your digital cable service, Sunday night at 7. The film will be presented with limited amounts of advertising. You set your TIVO to record it so you can watch it later that evening. When you watch it, starting at 10pm, you fast-forward through all the ads. This is legal. You are working on a criticism project for a film appreciation class you are taking at the University. You go to Blockbuster to rent a copy of the film Titanic. However, your DVD player is on the fritz so you borrow a video copy to play in your VCR. Using your computer and a video deck, you “pull out” a short segment of the movie, digitize it, and include in the PowerPoint presentation you’ll do when you present your project to the class. This is legal. Later, your DVD player comes back from the shop. You go to Blockbuster and return the videotape and rent a DVD copy of the film Titanic. Returning to your computer and DVD deck, you use a piece of software you bought that “rips” DVDs and you extract the short portion of the film to use on your iPod. This is not legal. Second: . You were fortunate to receive a new Apple iPod for Christmas. You immediately use your computer to “visit” the iTunes Store where you download a skit from Saturday Night Live. Some skits are priced; others are free. You select a free skit. You then sync your iPod to your computer so that you can watch the episode while you are on the bus headed back to school for evening classes. This is legal. You were fortunate to receive a new Apple iPod for Christmas. You immediately use your computer to access the same skit from Saturday Night Live because you recorded it on your TIVO. After moving the segment from the Tivo to your computer, you use a piece of software to compress the episode for transfer to your iPod. You sync your iPod to your computer so that you can watch the episode while you are on the bus headed back to school for evening classes. This is not legal. Third: . In the process of completing a project for a class at school, you need some background music to enhance a presentation you are going to do. You digitize a copy of the latest single release by Cold Play from a CD you’ve purchased. The work is presented in class; you turn in a copy of the files to your teacher, for grading. After grading, the teacher returns the work to you and you throw it away. This is legal. In the process of completing a project for a class at school, you need some background music to enhance a presentation you are going to do. You digitize a copy of the latest single release by Cold Play from a CD you’ve purchased. The work is presented in class; you turn in a copy of the files to your teacher, for grading. After grading, the teacher returns the work to you. You put a copy of the file on your website so that family, friends, and future employers can see your work. This is not legal. By way of example then, the situations illustrate some of the complexities found in the paradoxical nature of copyright law. In the first instance, while it is legal to use a digital device to record and time shift the television broadcast of a movie so that you may watch it whenever you want without commercial interruption, and it is legal to digitize segments of that film from a rented video tape copy to use in a fair-use-protected academic environment, it is not legal to copy segments (or the whole) of the DVD of that movie for convenient private viewing on another device. The anti-copy protection circumvention clauses of the DMCA make the process of “ripping” a DVD illegal in most instances, although there are some exceptions for libraries, archives and the like. In the second instance, it is legal for you to use digital content across a number of players/viewers/platforms if and when the content provider supports that flexibility. Materials you obtain via, for example, the iTunes store can be displayed on your computer, copied across a number of machines, played (shared) across multiple machines via “internal” networks, or downloaded to your iPod at your discretion; one is also able to burn a limited number of legal copies to CDs. It is not legal for you, however, to convert the very same material for the purpose of cross-platform flexibility. Court rulings against software firm 321 Studios combined with DMCA anti-circumvention aspects show that platform conversion in the face of digital rights management prohibitions is not legal. The third instance further illustrates the changed nature of the fair use environment in that activities that are protected off-line are not encouraged online, though both sets of activities are similar and “usual” in the everyday lives of students. One can, then, freely borrow and use copyright protected material in the context of academic work under the protection of fair use. The amount and type of material borrowed constrains the scope of the use, but in general as long as the work is turned in to the teacher and then thrown away after return to the student, fair use protects the learning enterprise. However, many of the activities of learning, today, take place online. The Teach Act specifies a number of provisions under which academic folks may array materials online. The open posting of copyright protected materials, even if only a very small portion of either the protected work or a segment of the student work containing the protected work, is not allowed under, or protected by, the Teach Act, DMCA, or the Copyright Act. Copyright law and its application develop along three tracks. The first can be thought of as “normal” technological development. The pace at which technology changes, historically speaking, varies wildly. One gets the sense that the end of the last century and the start of the new one is a time of profound and rapid change. In such an environment, the pace of legislative and legal developments appear glacially slow as compared to the rate of technological advances. In short, the law just can’t keep up with changes in an environment such as this.1 The result of this track finds citizens empowered with technologies and uses for them prior to the requisite development of legal parameters that effectively and equitably control the uses of the technology. The second track is played out in the courts via litigation (and pre-trial settlements). Even casual, lay, observers of the American justice system can’t help but have the sense that the wheels of justice grind very slowly in the US. Legal wrangling over ownership, infringement, and remuneration can take years; sometimes decades (i.e., Apple Computing and Apple Records argued over their intellectual property-related differences from 1978 to 2006).2 Later in this chapter we will review some of the most important court cases in the development of US copyright law and will thereby illustrate the difficulties inherent in trying to settle intellectual property differences in court. The result of this track finds citizens faced with enormously complex legal circumstances such that applying the law to everyday needs in this area has become overly problematic, almost to the point of anarchy.3 The third track, the legislative process, provides the basis for litigation activities, so will be taken up first. Without over-simplifying the matter, the following two ideas will be exemplified through the historical review that follows. First, copyright law has developed as the handmaiden and tool of corporate interests. The laws were designed for corporate entities. These legislative activities paid little attention to the interests and/or needs of common citizens. The second indication is that not only has copyright law been most appropriately used by corporate interests, it has also been largely authored via corporate influence such that the governmental representation afforded citizens through the political process has been negated. In effect, large, corporate, IP content holders (“Big Entertainment”/“Big Media”/“Big Content”) have made their own laws and “the people” have been relatively un-represented in the process. The result of this track produces the largest challenge for intellectual property law today. Because technological progress has recently placed the means for production and distribution of “content” into the hands of common citizens, legislative controls must take citizen concerns into consideration and must be developed by those who represent them in the governmental process. And neither of these aspects are the case: The law doesn’t “work” for common people and legislative representatives don’t get much involved; often, when they do, they advocate on behalf of large, corporate, IP content holders for more controls and stronger penalties rather than for citizens’ rights and interests. When the law fails to keep pace with technological change, and in the process fails to protect citizens’ rights, the need to litigate burgeons and the entire process grinds toward an unsatisfactory state. [Chapter 1 insert one here] Legislative development of US Copyright Law Copyright Legislation: 1780-1910 Early English Influences American copyright (and patent) law originated as an outgrowth of legal considerations inherited from the British.