COPYRIGHT CONUNDRUM

June 2003
		Is downloading copyrighted music tantamount to stealing? Lawrence Lessig, an expert on Internet law from Stanford University's Law School, and Matt Oppenheim, senior vice president of business and legal affairs for the Recording Industry Association of America, answer your questions about this heated debate.

Online NewsHour Special Report: Copyrighting in the Digital Age Forum Introduction If I can go to my local library and check out and copy a CD for free, why can't I copy a digital CD from an online friend? Given that distributing a large number of Xerox copies of a book without proper authorization is illegal, why would P2P be any different? Please explain how the DMCA will or will not impede further technological innovation and scientific research of new media devices? And, does this law violate my fair use rights as a consumer? Are the RIAA's "cease-and-desist" notices to alleged Internet pirates a violation of my personal property rights? How do musicians benefit from the RIAA's actions against alleged Internet 'pirates'? Would music companies consider developing an online service similar to that of Apple's iTunes or develop their own P2P networks? Does the U.S. Constitution rely on patent and copyright laws as way to advance the arts and sciences, or to protect business interests? Is it illegal to download the MP3 version of a song that I have already purchased? Would outlawing anti-copyright devices in theory extend copyright terms for eternity?

Two viewer questions regarding anti-piracy devices, technological innovation, and the right of "fair use": A) Michael Wyman from Eden Prairie, Minn. asks: (1) Technologies that can be used for copyright infringement also serve many legitimate purposes. Is it possible to prevent the illegal use of these circumvention technologies, without simultaneously obstructing their use for legitimate purposes and stifling technological innovation and advances? (2) Please explain how the DMCA [Digital Millennium Copyright Act] will or will not impede further technological innovation and scientific resessarch, and the development of new software programs and other new media devices. B) Lenny G. Arbage from Billerica, Mass. asks: Under the DMCA, is it illegal to purchase, create, or distribute technologies that circumvent copy-protection devices? Considering that the recording industry has recently begun embedding copy control devices in CDs, how can I make legal copies and transfer the content to another medium -- under my fair use rights -- without trafficking in (illegal) anti-circumvention devices? If all CDs sold in the U.S. had such built-in anti-piracy devices, then wouldn't the ban on anti-circumvention technologies perpetuate copyrights for eternity even after a copyright expired? Please explain how this does not violate my "fair use rights" as a consumer, and how the DMCA does not impede technological development and scientific research. Lawrence Lessig from Stanford Law School responds to the two viewer questions: The DMCA is an embarrassment to copyright law. Copyright law has always been about balance -- about the balance between restrictions and access. The Constitution expresses that balance: it requires that copyrights be for "limited Times;" the First Amendment requires that copyright yields to "fair use." But the DMCA rejects that principle of balance. The DMCA regulates technologies that circumvent copyright protection technologies. In that regulation, it abolishes this tradition of balance. If you develop a circumvention technology that circumvents a copyright protection technology, it doesn't matter whether or not the circumvention would be permitted under copyright law. Even if the use you would make of the copyrighted work was a "fair use," it is still regulated under the DMCA. That is an extremism that the law should not allow. And in my view, when the Supreme Court finally gets a chance to review the DMCA, it will apply the principle it just announced in Eldred v. Ashcroft: That the protections of copyright must yield to the First Amendment, whether under copyright law directly, or under the DMCA. Matt Oppenheim from the Recording Industry Association of America responds: A (1.) Absolutely! There are quite a few ways that these technologies can incorporate safeguards to prevent copyright infringement. Indeed, in all of the cases that the record industry has filed in court against P2P [peer-to-peer] networks like Napster, Aimster, Kazaa, Morpheus, etc., we have not asked that the Court shut these services down. We have asked that the infringements be filtered out of the system. By implementing these types of technological safeguards, those artists and copyright holders who want to distribute their works for free can do so, and those that would prefer not to do so have a choice as well. More and more companies are now legally distributing music online. Those companies (including Pressplay, Rhapsody, Listen, etc.) are delivering to consumers high quality music online in a format and form that consumers have demanded. Those companies are harnessing many of the productive technologies that have been developed in the last decade. A (2.) The DMCA Anti-Circumvention provision is not intended to stifle technological innovation. Indeed, it is intended to spur it on by creating and protecting business markets for new technologies. Many new technology companies are focused on developing technologies to protect content, whether that be music or genetic code, and those companies will not be able to sustain their businesses if they cannot protect their products. In the absence of a business market, technological innovation will be limited because only the government and non-profits will ever be able to support it. All that aside, the DMCA Anti-Circumvention provision has specific provisions built into it that exempts true scientific research. Moreover, every three years, the United States Copyright Office reviews whether specific exemptions need to be added to the DMCA to address this issue. B. The goal of copy protection in CDs is not to prevent individuals from making copies that they want to make for personal use, but rather to prevent individuals from distributing the recordings or making copies they don't have a right to make. Record companies don't want to lock music up -- after all, why would people buy it if they could not listen to it in the way that they wanted? Many copy-protection technologies include on a CD a second copy of the album in compressed form ready for transfer to an owner's computer, but not capable of being distributed on programs such as Kazaa. These technologies are still, in many respects, in their infancy, and they will become more and more flexible over the next few years. Having said all this about copy-protected CDs, as far as I know, only nine such CDs have been released in the U.S. The rumors of widespread use of copy-protected CDs seem to more prolific than the CDs.