By: Fred von Lohmann and Wendy Seltzer
A flood of legislation released by the passage of the Digital
Millennium Copyright Act threatens to drown whole classes of consumer
In 1998, U.S. entertainment companies persuaded Congress to make
dramatic changes in its copyright code by passing the Digital
Millennium Copyright Act. The DMCA gave copyright holders new rights
to control the way people use copyrighted material and new protection
for technologies designed to restrict access or copying. The movie
and record companies argued they needed these new restrictions to
fight increased piracy threats in the digital era.
In the eight years since the DMCA's passage, however, piracy has not
decreased, and hurdles to lawful uses of media have risen. The Motion
Picture Association (MPA), the international arm of the Motion Picture
Association of America (MPAA), estimated worldwide losses because of
piracy to be US $2.2 billion in 1997 and $3.5 billion annually in
2002, 2003, and 2004.
Meanwhile, entire consumer electronics categories have been wiped from
retail shelves. If three or four years ago you didn't buy a digital
video recorder that automatically skips commercials, you're out of
luck; that feature is not in such products today. Television
executives brought litigation that bankrupted the company offering
DVRs with these user-friendly features, because skipping commercials
potentially undermines their ability to sell commercial time.
You're likewise out of luck if you're looking to buy software that
lets you copy a DVD onto your laptop's hard drive; it's no longer for
sale, at least not in the United States. Even if you want to put the
movie you bought onto a pocket-size video and game console, such as
Sony's PlayStation Portable, which allows users to watch video stored
on flash memory or a miniature hard drive, you can't legally do so,
because you'd have to "rip," or decode, it to make the transfer-and
the studios claim that this action violates the DMCA. When you rip a
CD, be it to an audiotape or an MP3 file, you're not breaking any
laws. But to rip a DVD you need to somehow get around the encryption
technology built into a standard disc, and since such circumvention is
forbidden by the DMCA, if you rip a DVD, you are breaking a law. Under
the DMCA, legality doesn't depend on how the copy will be used but
rather on the means by which the digital content is copied.
Now, in an even more vexing situation, U.S. entertainment companies
are successfully spreading the copyright code changes established by
the DMCA around the world. Laws similar to the DMCA now exist in
Japan, Australia, and much of Europe. At least nine additional
countries, including Chile, Guatemala, and Singapore have also been
pressured to enact DMCA-like laws as part of a devil's bargain with
U.S. trade negotiators, who say the copyright change is necessary to
secure free trade pacts with the United States that would govern all
sorts of commerce. And in Europe, the body charged with defining the
European digital television standards is mixing in content-protection
obligations, responding yet again to pressure from major U.S. movie
Emboldened by their successes, U.S. entertainment companies are
pushing for another wave of even more restrictive legislation.
"Broadcast flag" legislation could require that all consumer
electronics devices recognize protected television broadcasts and
potentially refuse to copy them; a so-called "radio flag" bill would
prevent or restrict the manufacture of hard disk recorders for digital
radio; and an "analog hole" closure would restrict the connections new
digital devices can make with analog devices.
As the entertainment industry expands copyright law, the rising tide
threatens to completely wash away many types of innovative gadgets.