Copyright War Summit Report: Law vs. Technology: Embracing Not Suing New Technologies

Today Ip’s What’s Up brings you our report on the last of the four BrightTalk presentations in the Copyright War Summit we attended: Law vs. Technology: Embracing Not Suing New Technologies.  E. Michael Harrington explained his four work mantra and reviewed the good, the bad and the neutral of copyright and technology.

Harrington’s Mantra

• Everything – access to all audio/visual media
• Everywhere – access in your home, on any mode of transportation, anywhere you might go
• Anytime – access any and all the time
• Anyway – including using media to create derivative works and using whatever device you please to access and change media

The realization of Harrington’s mantra is currently blocked by both law and technology.  Copyright law prevents ‘everything’ and ‘anyway.’  Technology, with its proprietary protections, can prevent ‘anyway’ as well.  ‘Anytime’ and ‘everywhere’ are pretty well covered now, being allowed (to some extent) by both technology and the law.  Harrington’s good/bad/neutral list helps explain how technology and the law both hinder and help in the achievement of Harrington’s Mantra.

Copyright and Tech – The Good, the Bad and the Neutral

The Good

• The Sony Betamax case from 1984, introducing “substantial noninfringing use” and “time shifting” as key copyright terms (also mentioned by Howard Knopff during his presentation)
• Audio Home Recording Act of 1992 (AHRA), allowing consumers access to blank digital media (and imposing a levy on specific blank digital media, paid to the recording industry)
• RIAA v. Diamond Multimedia case from 1999, allowing consumers access to mp3 players
• introduction of the iTunes music store in 2003, allowing consumers a legal and easy way to download music
• Amazon introducing DRM-free mp3s in 2008

The Bad

• Telecommunications Act of 1996, deregulated the broadcast industry so that it was ok for a single company to own many, many stations (for plenty of commentary on why this is bad and where it’s led, see Inside Music Media)
• Digital Millennium Copyright Act [pdf] in 1998, made circumventing technologies put in place by media owners a crime in itself, regardless of legality of use of the media
• UMG v. Mp3.com case in 2000, Mp3.com was the first of the ‘store your own music in the cloud’ music lockers; Universal’s lawsuit shut down the service
• A&M v. Napster case in 2001, the infamous case that changed the face of Napster.  Harrington pointed out that there were “so many reasons why [turning Napster into something the industry could use] should have worked”
• Closing of Tower Records in 2006, the beginning of the end of brick and mortar record stores

The Neutral

• Marketplace
• New technology
• Litigation
• Legislation

For more details on Harrington’s mantra or his list of good, bad and neutral aspects of technology and the law, or to explore some reasons why people break the law, check out Harrington’s full presentation.  Even if you’re not that interested in the topics, you will be entertained.

Happy Thoughts Series: The Homestyle Exemption

This second Happy Thought is a good thing in the US's domestic  copyright law, though it may fall under another category internationally.

Sec. 110(5) of the US Copyright Act is a bit infamous in its own way.  It was the subject of a WTO dispute almost a decade ago.  Although the law was found to be partially in violation of TRIPs, the US has not changed it.  Despite this international aspect, Sec. 110(5) is still a good part of the US Copyright Act.

Sec. 1110(5) allows special exemptions to small bars, restaurants and shops, or bars restaurants and shops that have minimal sound and video equipment who play broadcasts in their establishments.  This covers things like corner pubs with a small television, restaurants that play the radio for their customers, and shops playing music in the backroom that can be heard out front.

The original homestyle exemption was added to the 1976 Copyright Act as Sec. 110(5) after the famous Aiken case.  In Aiken, the Supreme Court decided that the owner of a small chicken shack was not infringing the copyright of rights owners whose work was being played on the radio station to which Aiken had his radio tuned despite the fact that customers in the restaurant could hear the radio. 

Congress amended Sec. 110(5) in 1998, splitting it into two parts: one a narrower version of the original homestyle exemption and the other another variation in line with the original exemption that came to be known as the business exemption.  The amended Sec.110(5) was part of a package deal negotiated and worked out by Congress to protect small users from abuse at the hands of the collecting management organizations but still recognize the right holders' rights by limiting the exceptions in terms of size, equipment and type of performance (i.e. only re-broadcasts).  That is why it is a good thing in the US's copyright law: it shows a successful balancing of interests between users and creators/owners.