In search of digital copyright clarity

COMMENTARY--Copyright is in the news again as Congress debates new technology regulations. Sponsored by Senator Fritz Hollings and backed by media companies such as Disney, the Security Systems Standards and Certification Act (SSSCA) would require consumer electronics companies to include technology that would prevent the unauthorized playback and reproduction of digital media. Media companies fear the ease with which digital media can be copied and distributed, and want to use enhancements to copyright law to prevent the erosion of their business.

Opposing them is an array of consumer electronic companies who believe the bill would destroy consumers' incentive to upgrade to new hardware, as well as interest groups such as the Free Software Foundation who believe that consumer rights are violated by such regulations. Leading the charge has been Gateway which fears a sales drop if copyright protection for digital media become more restrictive. Brad Williams, spokesman for Gateway, considers CD burners "one of the Top 5 reasons why people buy PCs today."

What I have not heard from the naysayers, however, is any recognition of the problem the bill attempts to solve, much less any attempt at defining an alternative. The confusion centers around a lack of understanding as to why copyright exists in the first place, compounded by the mistaken notion that the precedent set by the fight over VCR recording directly applies to digital copying.

A bit of copyright history
The framers of the American constitution had reservations about copyright. They feared that strong copyright protections would slow progress by creating monopolistic tollbooths around good ideas. In the end, the decided that the incentive to create provided by copyright overrode benefits derived from the free and unrestricted access to new ideas. Among the powers granted to the U.S. Congress in Article 1, Section 8 of the U.S. constitution is the right:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

Early copyright law was considerably less stringent than exists today. Copyright protections extended a mere 14 years (in 1831, 28 years), with the option to extend it another 14. Likewise, copyright did not extend outside American borders due to the lack of international copyright treaties with other nations. This caused considerable harm to American authors, given that American publishers were not obligated to compensate foreign authors for reprints of their works. As author Siva Vaidhyanathan noted in his book "Copyrights and Copywrongs:"

American readers were hooked on inexpensive books. And British works not only carried heavier social and intellectual value--they were cheaper. A London reader who wanted a copy of Charles Dickens' "A Christmas Carol" would have to pay the equivalent of $2.50 in 1843. An American Dickens fan would have to pay only six cents per copy.

Facing competition from British authors whose works were available for the cost of the binding, American authors found it hard to make a living. This led to a smaller pool of American authors. Not surprisingly, authors were the prime movers behind attempts to strengthen copyright protection.

The status quo was not universally opposed, however. Bookbinders and sellers benefited greatly from the increased demand which resulted from cheap books, and thus lobbied against any change in the current copyright regime. Arguments advocating the protection of bookmaker and bookseller jobs mattered more to elected officials than compensation for foreign innovators or the effect artificially cheap British imports had on the supply of American authors.

In the end, however, copyright was extended internationally because it was decided (though not always explicitly) that the incentive to create overrode benefits resulting from low cost access to information.

The rationale for copyright, therefore, comes down to utility. Who should society value more, the creative people who produce the content people want or the people who build the "pipes" (i.e. Gateway) through which that media is distributed and consumed? Given that the pipes are useless without something to put in them, Congress has come down on the side of the creators.

Some think that VCR recording serves as a guiding principal to the issue of digital media. The legal battle over video recording in the early 80s extended "fair use" to include recordings made for personal use. Digital copies are very different from analog copies of the sort made by VCRs, however. Digital copies are perfect whether it is the first copy or the thousandth, and as Napster has shown, can be sent around the Internet in seconds.

VCRs in theory lower the demand for official copies of movies from which studios derive revenue. However, the degree to which the market is affected is reduced by the imperfection inherent in analog technology. Second generation copies are noticeably degraded from first generation copies, and bootleg videotapes imported from China can be confiscated at borders. This limits the harm resulting from access to analog video recorders, and thus the benefits to consumers take precedence. In contrast, the potential harm and resulting disincentive to media producers is much greater with digital media, and may outweigh the benefits consumers derive from unrestricted digital copying capabilities.

So what's ahead?
Hollings' SSSCA bill may not be the right response to the issue posed by digital media. It is important, however, to ensure that media producers can safely generate revenue from digitized content. Though brilliant individuals do exist who are willing to donate their time for free (open source development would have gone nowhere without them), most will only produce if they are paid to do so. Taking note of Richard Stallman's protestations to the contrary, good ideas are still interesting whether or not someone charges for them.

Copyrights that extend 70 years, process patents like Amazon's patent on "one-click" purchasing technology, and algorithm patents that seem like ownership of a particular construction of LEGO blocks are legitimate causes for concern. Regardless, copyright protection is a necessary component of a modern economy. Just as the need to extend copyright protection to works produced outside the U.S. became apparent in the 1800s, the incentive to create must withstand the arrival of digital media. If legal protections aren't the right tool, then what is?

John Carroll is a software engineer who lives in Switzerland. He specializes in the design and development of distributed systems using Java and .Net.