Copyright in a Digital Environment
So, how have copyright holders, users, and lawmakers reacted to digital information?
Copyright law used to be considered technology and media neutral.
Copyright law is no longer neutral.
The characteristics of digital works and the network environment, particularly the nature of the identical copy and ease of copying works, gives users the ability to create, modify, distribute, and present information on a scale that has not been possible before. That information, however, includes information that is copyrighted. Any type of information can be transmitted.
The sharing of information, particularly the proliferation of illegal sharing of copyrighted materials on Peer-to-Peer networks, has made the entertainment industries very nervous. Copyright law, some believed, did not adequately deal with digital content. In response, Congress passed several laws, including the No Electronic Theft Act and the Digital Millennium Copyright Act.
We'll talk more about the Digital Millennium Copyright Act in the next section.
Here are some fairly common questions I receive and hear about often. Note that most of these questions are related to the file sharing of audio files.
Are MP3s illegal? No. MP3 is a file format. The technology is not illegal.
Is Peer-to-Peer file sharing illegal? Well, it depends. Conceptually, Peer-to-Peer technology is not illegal in and of itself- not yet, anyway. Peer-to-Peer file sharing is a type of technology that can be used for legal and illegal purposes. Napster was shut down for copyright infringement. The copying done on the Napster network was done with their knowledge and oversight. An appellate court determined that Grokster, on the other hand, was not guilty of infringement, going back to the Betamax standard. The software was capable of substantial noninfringing use.
From GigaLaw, Why Grokster does not infringe and Napster does.
However, the Supreme Court disagreed and sent the Grokster decision back to the appellate court for reconsideration. They have added an "intent" perspective to how to think about copyright and technology. If the technology was designed with the intent to induce infringement, then it might be illegal to distribute that technology. This decision has led to some confusion and a great deal of ongoing discussion. The Grokster decision from the Supreme Court was not a limitation on the technology, but on the business plan behind that particular technology. There is an interesting discussion at SCOTUSblog about the Grokster case and its potential effects.
Generally, however, file sharing in itself as a technology is not illegal. But see the next question.
So what's the big deal? What is illegal?
Well, the distribution of copyrighted material without the copyright holder's permission (in cases that are not exemptions or fair use) is illegal. That is illegal file sharing, and illegal file sharing is copyright infringement. The people who are sharing copyrighted music and movies are very likely infringing, since it's difficult to see how fair use or an exemption could possibly apply.
Recently, groups such as the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) have been lobbying Congress to strengthen copyright law. At the same time, they have been suing individual fire sharers, among others. They've also been attempting to limit user copying by influencing vendors and companies that create technology.
There have been other changes to how we think about copyright law. For example, take a look at the First Sale Doctrine, which has been a cause of some contention. Some contend that the First Sale Doctrine no longer applies to digital media. This doctrine, if you recall, is what allows the lending and selling of materials, the secondhand market, and even the existence of libraries. The DMCA, in particular, weakens the concept of the doctrine for electronic materials.
What's in a word?
Here's a matter of some controversy: the use of terms like "theft" and "piracy." Theft and piracy have specific legal meanings. Colloquially, we often see the terms used in relationship to copyright infringement (and some, but not all cases of infringement may fall under one of those words). However, the controversy comes when people or groups use the terms in a way that is automatically prejudicial. For example, we often see references to file sharers as pirates. However, that is discounting the noninfringing uses of file sharing technologies. This terminology is becoming increasingly common, even in laws such as the "No Electronic Theft" Act. People still argue about it, though. ^_^
The RIAA/MPAA tactics
Here's my opinion on some of these lawsuits. Legally, the associations, as representatives of copyright holders, can sue the end users. That is within their rights. At the same time, though, they're suing their audience, the technology vendors, and technology developers. They're also attempting to force legislation that in my view could be fairly detrimental to technology development. Additionally, not every person they sue is an infringer. Jesse Jordan, a student at Rensselaer Polytechnic Institute, was sued for creating a search engine that crawled and indexed files on the local campus network. Jordan settled for all of his savings because even though he believed he had a good chance of winning a lawsuit, he was advised that the cost of the lawsuit would be far, far, far more than he could afford. (Here's a transcript of an interview with Jordan from CNN.)
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