The Digital Age: An Administrations Dedication to a New Era of Copyright Law
With the proliferation of the Internet in the early to mid 1990's, the integration of the internet into our daily lives has steadily been changing the ways we live and do business in America. The Internet itself is quite possibly the most influential technology implemented within the past decade. With it, the Internet has brought a complete host of new ideas, experiences and problems for various types of people and businesses around the globe. The Internet has affected the general way we receive our news, communicate, conduct business, as well as shop, amongst other things.
The Internet in itself is a new field that will require new research methods of study and evaluation, along with the application of new and developing ideals about the culture of our interactivity, through the internet, around the world. The Internet currently stands as a herald of neo-liberalism, individuality as well as community; it has also come to represent ideals of freedom -- of information, speech and expression -- and choice to many, as well as a new means of market consumerism.
Along with all the benefits of the Internet, has come a fair amount of controversy, especially within the entertainment industries. Items that were once only available in purely physical means and at a price, such as movies and music, have now become available for free to anyone who knows how to use a search engine. But now the cost is nothing except a little time for the end user and a little space on computer hard drives across the world.
In The Wealth of Nations, Adam Smith stated that the industry and work of performing artists "perishes in the very instant of its production." Smith believed that the wealth of a country, the wealth of a culture, is developed through work of its musicians, its actors and its singers. (Smith, Book II, Ch III) Similar to the ideal L. Ron Hubbard believed when he stated, "A culture is only as great as its dreams, and its dreams are dreamed by artists." (Hubbard) No longer are these ideals in question, because there are few who now doubt the importance of the contributions made by creative arts and entertainment industries to countries across the world, if only in terms of a source of unique economic and financial wealth. Not only are these industries a source of continuous and perpetual wealth for many nations, but they represent a international and global economic advantage.
The US government plays an important role in economic planning and policy in support of the cultural industries. President Clinton's economic program and focus was created and controlled by the National Economic Council (NEC); developed in 1993, it was created for the purpose of advising the President on matters related to U.S. and global economic policy. The head of the NEC was later placed in charge of the committee of Economic Council Committee on Intellectual Property. (Samuelson, 4)
"This Economic Policy Council Committee developed the Administration's policy on a wide variety of matters. These included: the relationship of intellectual property policy to competition policy (anti-trust); the development of the U.S. negotiating position on the intellectual property provisions of the WTO Treaty; proposals to Congress for Amendments to the Copyright Laws, and the role of Copyright law in the context of the Internet. In spite of pockets of opposition within the Government, the National Economic Council was able to put the Clinton Administration squarely in favor of strong intellectual property protection in these areas." (Lehman, 6)
President Clinton's National Information Infrastructure Task Force coordinated and made national policy in areas far removed from Intellectual Property. A central goal of the task force was to create the most favorable environment possible for harnessing the potential of new technology to create growth of the information industries. (Lehman, 3) This meant working out a host of policies and coordinating with other governments on issues such as privacy and security of digitized information accessible though the Internet.
"The Working Group explored issues such as digital signatures, legally binding digital contracts, legal mechanisms for contracting through the Internet and methods of making payment for digitized products delivered on-line. Of course, telecommunications policy was extremely important." (Lehman, 5) They worked on policies designed to make additional bandwidth available for Internet delivery of products and to encourage uses of satellite technology. "The Clinton Administration was dedicated to creating an environment where competition for telecommunications services in the broadband environment would be encouraged." (Lehman, 6)
The issue of copyrights in the context of the Internet was, and still remains today, extremely important, and it was for this reason that President Clinton and his administration established a "Task Force on the National Information Infrastructure" under the chairmanship of Ron Brown, the Secretary of Commerce. Ron Brown, in turn, established a Working Group on Intellectual Property within the Task Force. (DMCA-WIPOIL)
In 1995, the Working Group issued document titled "Intellectual Property and the National Information Infrastructure;" the 200 page report (The White Paper) formed the basis for the Clinton Administration's eventual position in negotiating the World Intellectual Property Organization Copyright and Phonograms Treaties of 1996, as well as the restructuring of current US copyright law. It represented the Group's assessment and examination of intellectual property. (IPNII, DMCA-WIPOIL) This report was the first step in the reappraisal of the applicability of US intellectual property laws in the current and coming digital age.
If nothing else, the report recognized difficulty faced by the law -- even intellectual property law -- in keeping pace with changes in technological ability and proliferation. Copyright law even had a major overhaul in 1976, but a quality of technology is that it consistently outpaces even flexible statues that have a foresight of the future. Special care was taken in the drafting of the 1976 overhaul, especially so that it could remain malleable enough to make room for future innovations and technologies. (US Copyrights, Title 17) Because of the statutes myopic features, however, by the mid 1990's, the Copyright Act was in need of dire help if it was going to sustain it's relevance in our new digital age. It was therefore the job of the President and Congress to develop new rules that could consistently cope with the changing technological landscape while not restraining its ability, innovation and progress.
The Group predicted that because of a current and future, difficulty of copyright enforcement and detection, copyright holders might look to technological solutions to copyright problems as well as legal ones. This was especially important to note because of the ease of copyright infringement that had been developing over the last couple years; there was general feeling that measures needed to be taken in order to protect the copyrighted works of owners and companies. (Primer) However, such is technology that for every technology created to protect information, an equal and opposite technology is likely to be created to break it. It was in this vein that the Working Group suggested that Congress provide legal protection for copyright holders who wanted to use such measures to protect their work. (Primer)
In December of 1996, the Working Groups suggestions provided a new conduit to the reform of US copyright law when a diplomatic conference was assembled in Switzerland to discuss the WIPO treaties. It's charge was purported to "negotiate new multilateral treaties to protect copyrighted material in the digital environment and to provide stronger international protection to performers and producers of phonograms. ...and to provide guarantees abroad of the same strong protection for American records, tapes, and compact discs abroad that is provided domestically." (DMCA Full Text) The conference resulted in the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Each was adopted by consensus 157 countries. (WIPO)
In 1997, the treaties were sent to the House and Senate for ratification by the Clinton Administration; they were tendered with proposed methods of implementation legislation. By 1998, it was obvious that passing the WIPO treaties were atop the legislative agenda for both Congress and the Administration.(House Reports) Chairman of the Senate Judiciary Committee, Senator Oran Hatch, renamed the WIPO treaty's implementation legislation the Digital Millennium Copyright Act (DMCA); thereby intending to stress the government's emphasis and rediscovered importance upon a renewed effort in U.S. copyright policy. (House Reports)
The bill quickly became the center and focus of all of all current legislative debate, especially anything related to intellectual property such as exemptions on anti-circumvention, database protection, term extensions, as well as Online Service Provider limitations and liabilities. Throughout the session, negotiations were on-going to resolve disputes involving each of these issues.
As the bill worked its way through Congress, it became obvious that there was a substantial amount of opposition from both public and private sector interests. Objection came from places like libraries, universities, consumer electronics producers and computer product manufacturers, inventors, and others. It was this debate which highlighted dual priorities and concerns of protecting intellectual property rights while also promoting the strong and perpetual growth and development of technological prosperity and innovation. (Samuelson, 7)
"Updating laws relating to distance education also developed as an important part of the educational agenda. Equally important, politics played a role in the final developments of the DMCA. Although copyright jurisdiction belongs to the House and Senate Judiciary Committees, the impact of the legislation on commerce resulted in joint referral of the DMCA to the House Commerce Committee. This second House deliberative body played a crucial role in formulating the final policy of the DMCA. In particular, the Commerce Committee's staff managed direct negotiations between content owners and libraries and educational interests over the relationship between fair use (as well as other statutory copyright limitations) and the anti-circumvention rules. This part of the DMCA's ultimate structure was laid out in these negotiations." (DMCA-WIPOIL)
The United States Congress ultimately enacted The Digital Millennium Copyright Act, on October 28, 1998. Whose final and ultimate charge and purpose was to update the US copyright laws with in order to make them more relevant, protective and lithe to promote the ideal of both prosperity and protection in the ever-changing digital information climate. The DMCA was divided into five sections, each having a different focus.
Title I of the DMCA is the WIPO Copyright and Performance and Phonograms Treaties Implementation Act of 1998. Title II is the Online Copyright Infringement Liability Limitation Act, which creates limitations on the liability of online service providers for copyright infringement. (DMCA Full Text) Title III is the Computer Maintenance Competition Assurance Act, which creates an exception for making a copy of a computer program by activating a computer for purposes of maintenance or repair. Title IV contains miscellaneous provisions relating to distance education, the ability of libraries to make ephemeral recordings, web-casting of sound recordings, and the applicability of collective bargaining agreement obligations in the case of transfers of rights in motion pictures. Title V is the Vessel Hull Design Protection Act, which creates a new form of protection for the design of vessel hulls. (DMCA Full Text)
Generally, the DMCA makes it a crime to circumvent anti-piracy measures built into most commercial software. It outlaws the manufacture, sale, or distribution of code-cracking devices used to illegally copy software. Does permit the cracking of copyright protection devices, however, to conduct encryption research, assess product interoperability, and test computer security systems. (DMCA Full Text) It provides exemptions from anti-circumvention provisions for nonprofit libraries, archives, and educational institutions under certain circumstances.
In general, limits Internet service providers from copyright infringement liability for simply transmitting information over the Internet. Service providers, however, are expected to remove material from users' web sites that appear to constitute copyright infringement. It limits the liability of nonprofit institutions of higher education -- when they serve as online service providers and under certain circumstances -- for copyright infringement by faculty members or graduate students.
The DMCA requires that "web-casters" pay licensing fees to record companies; that the Register of Copyrights, after consultation with relevant parties, submit to Congress recommendations regarding how to promote distance education through digital technologies while "maintaining an appropriate balance between the rights of copyright owners and the needs of users." (DMCA Full Text) It also States explicitly that "[n]othing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use..." (DMCA Full Text)
The DMCA also covers a hugely hot topic of debate amongst many Americans right now: one of which is the widespread availability of music that can be downloaded for free off the Internet and its affect on the music industry as a whole. With the research that has been conducted, many believe that the mp3 explosion is due, in large part, to a number of factors including: the general lack of knowledge and disregard for the law - copyright law in particular - throughout the internet, a complete lack of sympathy to the music industry and artists are receiving no compensation for their work that's being distributed daily, along with a misconception about CD prices, a feeling of invulnerability and the ease of access to these materials. (DMCA Full Text)
But all of these problems originate with the seeming ideal of the customer instead of the industry based position. The claims put the blame on the consumer instead of on the recording industry, who still has not figured out an effective ways of combating piracy and making money through Internet.
According to the Recording Industry Association of America (RIAA), approximately 2.6 billion copyrighted music files are illegally downloaded each month, and that number is on the rise. In addition, they claim that file-sharing has cost the music industry up to $700 million to date, and could cause Music revenues to plummet 19% by 2008. As a result, the music industry has resorted to fighting this trend with "high-profile lawsuits against individuals to discourage piracy and promoting new online sites that sell licensed music for a low price," which is undoubtedly an unintended consequence of the DMCA. (CQR, pg. 989)
Many believe that music artists, along with the record companies have enough money as it is, and don't feel the need to continue paying them the amount it costs to buy a new CD. Some experts however, believe that the issue of CD prices didn't become an issue until "free was an option." (CQR, pg. 986) Artists, as a whole, average about 50 cents per CD sold. Approximately, another $8 to $12 dollars - of the average $18 dollar per CD price tag - goes into the record companies for the production costs of the album, marketing, promotion, as well as toward the support and underwriting of new, less popular, or up and coming bands. For every successful act the music industry achieves, that money will generally go to supporting nine other unsuccessful acts on any particular label.
Part of the frustration the music industry is facing is that it has moved so slowly with the identification of new technology, that it hasn't yet developed a way to make money off the internet. They didn't expect content to become available, and especially not as quick as it did, partly because the music industry has always been slow to adapt to new technologies of the time. The majority of the problem lies not with particular prices of music but with the general culture around the internet itself.
From the beginning, the Internet was created for and has been used as a tool for the dissemination of information across the world. It was from this ideal that notions of freedom of access to information and other online materials quickly sprung into the online culture. As a result, the commercialization of the Internet has always contained some basic form of piracy, and in fact, the Internet has always stood as a catalyst a promoter of freedom and accessibility. These ideals inevitably became ingrained in the basic way people used and saw the Internet. It has only been within the last five to seven years that consumerism has become a major and leading form of capitalism and opportunity for money making within the US.
With current business efforts so focused on how to make money off the Internet, it has become inevitable that the ideals of freedom and money would conflict, as proven with the current situation with the music industry. The internet has instilled a generational ideal within it's users that will ultimately affect the way the music industry actually releases it products. A study done shows that people ages 23 and up acquire the majority of their music in a physical form from stores whereas people ages 22 and below download most of their music free of the internet. (CQR, pg. 987) The ideal isn't simply in the ease of access to the music files online, but it's within the general culture of online use, and has become more so as the Internet becomes more ingrained in our ways of life.
Some states are starting to enact digital protection. These state attempts to regulate in this area have caused quite a stir. With few people paying close attention, at least at first, state legislators, urged on by the Motion Picture Association of America, have been considering bills that would be even broader than the controversial federal Digital Millennium Copyright Act. One piece of legislation being considered in Texas would restrict anonymous Web browsing, using an encrypted communication to send and receive e-mail, and would prohibit the use of firewalls using the popular Network Address Translation scheme. (CQR, pg. 990)
With few people paying close attention, state legislators are considering bills that would be even broader than the controversial DMCA, which restricts bypassing copy-protection measures.
Again, unintended consequences are abundant amongst the effects of the DMCA. Since the bill was enacted, the "anti-circumvention" provisions of the Digital Millennium Copyright Act have not been used as Congress envisioned. Congress meant to stop copyright pirates from defeating anti-piracy protections added to copyrighted works, and to ban "black box" devices intended for that purpose. (CQR, pg. 989) In practice, the anti-circumvention provisions have been used to stifle a wide array of legitimate activities, rather than to stop copyright piracy. As a result, the DMCA has developed into a serious threat to several important public policy priorities.
Many claim that the act stifles free speech and legitimate scientific research. Also they say that the DMCA jeopardizes fair use by banning all acts of circumvention, and all technologies and tools that can be used for circumvention; it impedes competition and innovation, rather than focusing on pirates, many copyright owners have wielded the DMCA to hinder their legitimate competitors; and has become an all-purpose ban on access to computer networks.
With these, as well as other tales of woe, mark now as a time which is ripe for a re-evaluation of the DMCA - and a small step in the right direction. The DMCA has been a constant headache for many legislators and continues to falter from its original position, consistently being exploited by companies out for vengeance, not only against their competitors but their consumers as well.
Across the globe, the Internet has come to represent a myriad of ideals; amongst them, the most prominent are inclinations of freedom: freedom of speech, knowledge, information and expression. With the current path the DMCA has been on, it promotes nothing but stagnation of this highly influential and potent technology and it is merely only one of the technologies that have come to suffer under the DMCA. The reevaluation of this acts purpose, effects and guidelines of operation is a necessity for the prolific nature of the scientific technology of our future.
The end result of the DMCA was formed basically from the original suggestions that the Working Group originally purported in its White Paper report on the future of copyright law. The role of the Working Group was strengthened by the fact that differences within the Administration were worked out in the National Economic Council, and the resulting policies were given the full backing of the President. Without such support, the development process and level of importance would have stunted the goal and future protection schemes of technology.
It was President Clintons, as well as Congresses effort to get new copyright legislation passed, allowed the bill to reach the success it did. Even though there are numbers sections of the bill that have been looked down upon as limiting the ability of technology, the bill showed a renewed and good faith dedication of government to regulate matters on copyright issues in our current and coming digital age.