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Piracy v. Fair Use: Where’s the Line? Brooklyn Law School Visiting Professor Laurence H. Winer Mr. Chernin acknowledges in his keynote address to Comdex, that no technological protections for digital content, such as those he mentions, will perfectly prevent whatever level of copying and other uses are deemed inappropriate. His "Kids Will Be Kids Theory" also accurately describes the mind-set prevalent among many younger people that digital content is essentially a public good to be easily and freely copied, traded and exchanged. And it is precisely this generation that is most adroit at circumventing any technological controls that may be imposed. Moreover, effective enforcement of legal controls worldwide likely will remain problematic. Napster was shut down, and the Second Circuit in 2001 upheld application of the DMCA against posting of encryption cracking code. Unfortunately, there is not yet Supreme Court review of the potential adverse First Amendment implications of this expansive law. But on December 17, 2002, in an important test of the DMCA’s criminal provisions, a California jury acquitted ElcomSoft, the Russian company accused of selling software designed to crack antipiracy protections on electronic books. And the Wall Street Journal of December 18, 2002 reported that an appeals court ruling in The Netherlands that another popular file-sharing service, Kazaa, is not responsible for copyright infringements by users of its service may make The Netherlands a legal haven for international file sharing services. Another article in the same paper suggested that DVD burners that will further facilitate alleged copyright violations are becoming the next hot consumer electronics item. Thus, in the long run the media industry well may exhaust itself in a Quixotic quest to keep the ever growing and ever more sophisticated international digital genie bottled up. Mr. Chernin several times states that he has no desire to restrict fair use or other personal freedoms. But the key question is what exactly does he mean by this; what specific uses of digital content would he consider fair use, and what does he think should be proscribed? Does he, for example, support copyright term extension currently before the Supreme Court, especially retroactive extension, or would he agree that this is a good example of overreaching by powerful and influential corporate interests? (As a New York Times headline phrased it in describing the new law, "Disney Gets to Keep its Mouse.") This is the admittedly difficult question I would put to representatives of both sides - the content producers and providers on the one hand, and the consumers and "fair use crowd" on the other. Consider the various forms of digital content - software, audio recordings, digital movies, broadcast/cable/satellite programs, electronic books, and the like - as the answers may well vary from medium to medium. And forget for the moment about what sorts of controls are currently technically possible or legally enforceable. Then, for each medium, consider exactly what uses of the content should be appropriate fair uses and which go too far towards "piracy" that will threaten legitimate creative and ownership interests. If I buy one copy of a software program, can I use it on all the computers in my home and office? If I shouldn’t make it universally available on the Internet, can I at least share it with my dorm room-mates as we share our one, common subscription to newspapers and magazines? If I rent a DVD movie should I be able to copy it for later or repeat viewing; what if the copy would be good for only a limited number of showings? What should I similarly be able to do with content I copy from a broadcast/cable/satellite signal or download from the Internet; what would be reasonable limitations to impose? How much content should I be able to take from commercially produced product for purposes of research, criticism, parody, education, and so on? One can easily proliferate a host of questions along these lines. A related key challenge to Mr. Chernin and the media industry side is to repeat the success of the VCR revolution and develop the new business models he refers to that will best capitalize on the new digital environment. It is not sufficient just to claim that the current culture of piracy stymies any such effort. Many once claimed the VCR posed similar threats. My notion, however, is that first we should try to get some agreement from all sides at least on the outer parameters of what clearly should be allowed and what clearly goes too far. Only then should we devise technological and legal controls to implement, imperfectly to be sure, the desired results. So far, however, many perceive that various digital "locks" and overbroad legal restrictions, such as (retroactive) copyright extension and the DMCA, are just the results of industry overreaching that then spawns a commensurate reaction of free-scale "piracy." Mr. Chernin wanted to "forge greater understanding between media providers and the technology community," appropriate to be sure for his Comdex audience, but he really needs to work first with the most important constituency - all aspects of the consumer public. Laurence
H. Winer |