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09.08
Why Should Engineers Be
Concerned About Copyright Law?
By David Pietrocola
Intellectual property is rarely
on the minds of today’s young engineers —
but it should be. Some may be familiar with
patents, which grant an exclusive monopoly to
the patent holder for a period of 20 years, but
fewer are familiar with copyrights. A copyright
grants exclusive rights for a maximum of 95
years for corporate authorship or the life of
the author, plus 70 years. Copyrights can be
registered with the government for almost any
creation: a book,
painting, music recording, movie or doodle you
drew on a napkin this morning. While roughly a
million patented works will enter the public
domain in the next 20 years, zero works that
were published with a copyright notice after
1963 will do the same. This makes it difficult
to promote “the progress of science and useful
arts” — which is why the founding fathers
introduced copyright and patent rights into the
Constitution in the first place.
Copyright wasn’t a major concern
for engineers until digital became the standard,
and President Clinton signed into law the
Digital Millennium Copyright Act (DMCA)
in 1998. Copyright law of the twentieth century
is supposed to protect works in order to
encourage artists to innovate and create. A
writer can publish a single work and reap the
benefits for the rest of his or her life, plus
70 more years for the estate (Harper Lee’s only
book, To Kill a Mockingbird, should come
to mind). The concern stems from “orphan works”
— copyrighted works where the copyright owner is
difficult or impossible to identify or contact.
Couple these orphan works with the fact that all
copyrighted works enjoy a monopoly period at
least five times longer than that of patents,
and we are left with very few copyrighted works
that appear in the public domain. While
engineers have developed many new technologies
and tools, there is little free and legal
content created after World War I that can be
worked with beyond the bounds of
fair use.
Mash-ups, remixes, and content across
multiple devices and media all walk a fine line
in terms of legality.
What about all the music you
download legally? Or the movies you download or
rip from the DVDs you purchased? Storage device
prices have plummeted, and people are moving
rapidly toward a world of streaming content
across multiple portable and home devices.
Children of Generation Y and younger assume
media literacy includes being able to express
themselves on everything from food to music to
political figures through mash-ups posted on
sites like YouTube, where they can be viewed by
thousands of people across the world.
Consumers do have rights to copy
works they purchase — called fair use
rights — but the fair use doctrine is tinged
with grey areas and fuzzy definitions that
usually require a court’s backing for each
particular new “use.” More importantly, the
original intent of fair use seems to have
translated poorly to our digital world. It
exists in a mangled, barely recognizable form on
a landscape of technical and legal barriers that
prevent users from actually applying their fair
use rights on a digital copy they “own.” These
technical barriers are known most commonly as
digital rights management (DRM), and they have
been legally protected for 10 years by the DMCA.
DRM is designed to extend
physical user barriers in a digital world that
knows no such limits. DRM enables content owners
to control how their protected works are used,
and to enforce payment for the privilege of that
use. Every DRM that has entered the marketplace
has been cracked, sometimes within hours of
release. Once a protection scheme has been
defeated, others can follow suit with far less
effort — and often with far less technical
competence. To compensate for this fundamental
flaw, content owners successfully persuaded
Congress to include language in the DMCA’s Section
1201 that makes illegal the circumvention of
technological protection measures (TPM). Not
surprisingly, the DMCA — Section 1201 in particular
— has emerged as a top intellectual property
concern for engineers and technology users
alike.
The DMCA marks a shift in the
century-old legal tug of war between the
established content owner interests and a new
innovation or interest group that disrupts a
healthy revenue stream. Piano roll manufacturers
(recording industry) vs. sheet music publishers;
cable television providers vs. movie studios and
broadcasters; and the all-important Sony Betamax
vs. movie studios. In each of these major
courtroom confrontations, the courts ruled in
favor of a technological advancement over
stubborn and powerful old-business interests.
Ironically enough, each of these milestones in
media technology led to new and bigger revenue
streams for content owners than they were
originally complaining about losing. IEEE
members likely appreciate the Supreme Court’s
5-4 decision in the 1984 Betamax vs.
Universal case, because it expanded the
interpretation of fair use, and offered
protection for technology manufacturers — a
decision that paved the way for the digital
media explosion we have witnessed during the
past 20 years. In other words, the Betamax
decision afforded a favorable legal environment
for computer and consumer electronics
manufacturers to produce PCs, laptops, DVD
players, mp3 players and digital video recorders
without the worry of being sued for contributory
copyright infringement allegations.
However, the DMCA and subsequent
court cases, such as MGM vs. Grokster
(2005), have punched holes in the Betamax
defense and, in some cases, rendered it
completely irrelevant. Under the DMCA, content
owners can instead go after circumvention of
TPMs rather than copyright infringement (legal
protection granted by Betamax). From a
user's perspective, Section 1201 establishes a
distinction between copy and access controls in
order to preserve pre-established fair use
rights. Today's DRMs are set up so that use
follows access — but access to and the
distribution of the tools to circumvent it are,
for all intents and purposes, illegal (except
for specific circumstances that have been made
exempt by one of the Copyright Office’s
triennial rulings, but still outlaw tool
distribution).
Most content available today is
under copyright, and content owners have finally
claimed an upper hand over technology companies
in the legal system. The final piece in this
puzzle is the advantage this affords content
owners when striking partnerships with IEEE
members and their companies. For a simple
example, consider the DVD and the Content
Scramble System (CSS), the DRM that protects it.
The CSS is, from an encryption-strength
perspective, very weak at protecting DVD content
and its crack was highly publicized in 1999. It
relies on a secret key to ensure that only
authorized devices can unlock the content, and
that key is only available to paying,
license-abiding members of the DVD-Copy Control
Association (CCA). Any other attempt to access
DVD content through circumvention of the CSS
would be illegal under DMCA Section 1201(a).
Thus, engineers must design products that
strictly adhere to the CCA license’s litany of
demands. This is just one example in a plethora
of entertainment industry demands on technology
companies and product design. The
closed-development atmosphere that this has
created in regard to DVD and other DRM-regulated
media should also be noted.
Consider the uncertain legal
climate in which technology companies and
entrepreneurs find themselves, faced with
lengthy copyright terms, few public domain
works, anti-circumvention laws, the legal shift
in favor of content owners. A few companies
managed to stay clear of the DMCA and its legal
uncertainties by targeting the decades-old
analog hole, the unencrypted analog outputs
still commonly found in most consumer
electronics devices. Since the output is
unencrypted, the devices looking to use the
analog content avoid having to circumvent any
protection measures. One of the most successful
and recognizable products in this arena is Sling
Media’s Slingbox, a $250 device that allows
customers to “place-shift” their television
feed, meaning watch it in different locations).
But how long will it last?
Next year will mark the official
switch to digital television in the United
States and the sure death of the analog hole in
electronics equipment. Why? Digital content
sales are sky-rocketing as a multi-billion
dollar business, with most of the increases to
come in the form of digital television and
movies. In order for computer and electronics
manufacturers to sell their media-playing
computers, televisions, DVRs and smart phones,
they need to adhere to agreements from content
owners. As corporations in business for profit,
they will oblige and the analog hole will be
replaced with protected bit streams like
high-definition multimedia interface (HDMI).
Fair use in a digital world with DMCA-protected,
DRM-encoded, acronym-filled media, one can
argue, is quickly disappearing.
This article provides just a
brief introduction to the complicated issues
surrounding copyright law, and the digital world
that IEEE members have worked so hard to develop
over the past decades. The current state of
affairs rose out of rampant piracy fears — a
situation that still very much exists — and has
resulted in many sacrifices in innovation, fair
use and even computer security research. By and
large, digital copyright law has been a realm
for lawyers and academics to pick apart the
business conducted by the mammoth entertainment
and electronics lobbies, but perhaps increased
involvement from engineers can add a new
dimension to discussions toward new copyright
laws that respect fair use, foster innovation
and promote the endless possibilities of digital
media and technology.
Resources
For further discussion, sources,
anecdotes and policy recommendations:
D. Pietrocola. “Thawing Digital
Media: Legal Uncertainties and the Chilling
Effect on Innovation.” Journal of Engineering
and Public Policy, vol.11. Available
www.wise-intern.org/journal/2007/DavidPietrocolaFinal.pdf.
For a detailed look at
protection measures in the digital world:
T. Gillespie, Wired Shut,
Cambridge, MA: MIT Press, 2007.
For a story on the drafting of
the Digital Millennium Copyright Act:
J. Litman. Digital Copyright,
Amherst, NY: Prometheus, 2001.
For a discussion on fair use,
copyright and digital rights:
L. Lessig. Free Culture,
New York, NY: Penguin, 2004. Available for
download under the Creative Commons license,
www.free-culture.cc/freecontent
David Pietrocola is a
doctoral student in the Department of Electrical
and Systems Engineering at the University of
Pennsylvania in Philadelphia, and is a research
assistant at the Ackoff Center for Advancement
of Systems Approaches. As a 2007 IEEE WISE
intern, he researched the negative effects of
the Digital Millennium Copyright Act and
the Grokster decision on innovation in the
digital media and consumer electronics
industries. He received his BS in Electrical
Engineering from Trinity College, in Hartford,
Conn., in May, and is
a corresponding member of the IEEE-USA
Intellectual Property Committee. Comments may be submitted to
todaysengineer@ieee.org.
Opinions expressed are the
author's.
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