When elephants dance

When elephants dance, it’s best to get out of the way. That’s exactly what’s happening now as the entertainment industry—the recording, publishing, and motion picture industries, mainly—attempts a worldwide intellectual property power grab with two distinct targets. Think of it: a coup and a lock on all published content in the same year, amazing isn’t it?

[ed. note: Minor clarification changes have been made to this article since it was published in its original form. For complete details, see the revision history section at the bottom of the document.]

When elephants dance, it’s best to get out of the way. That’s exactly what’s happening now as the entertainment industry—the recording, publishing, and motion picture industries, mainly—attempts a worldwide intellectual property power grab with two distinct targets. Think of it: a coup and a lock on all published content in the same year, amazing isn’t it?

Target number 1 is the average customer: anyone who purchases software, an audio CD, an electronic book, or a movie on DVD. The entertainment industry sees customers as pirates, plain and simple. In their collective mind’s eye, we all have a wooden leg, eye patch, and a filthy talking parrot on our shoulder. While the Copyright Act of 1790, Title 17, Chapter 1 of the U.S. Code, and subsequent judicial rulings grant customers certain rights with regard to copyrighted material, the entertainment industry very much wants to separate us from those rights.

Target number 2 in the sights of the entertainment industry are technology behemoths like Microsoft, Intel, IBM, and Apple. These companies, in the perverse worldview of the entertainment industry, make the tools—computers mostly—that allow customers to practice their piracy.

Let me point out that I am a copyright owner, as is everyone else who has ever created a work in tangible form. That’s all authors, for short. Authors are almost never members of the entertainment industry club. The entertainment industry hates authors almost as much as they hate customers. Sometimes, especially when authors get uppity, the entertainment industry hates authors much more than customers. Until recently, authors have always been seen to be at least a marginal threat while customers were seen as merely necessary annoyances.

To complicate matters by at least an order of magnitude, the consumer electronics manufacturers—the companies that make stereos, VCRs, and DVD players—have aligned with the entertainment industry. At least some of them, and at least to some extent.

Unfortunately for us—both authors and customers—we’re likely to get squished as these elephants dance. The intent of the entertainment industry, believe it or not, is to outlaw personal computers. As security and cryptography expert Bruce Schneier explains it to Mike Godwin: “If you think about it, the entertainment industry does not want people to have computers; they’re too powerful, too flexible, and too extensible. They want people to have Internet Entertainment Platforms: televisions, VCRs, game consoles, etc.”

Copy-protected CDs

The recording industry is selling shiny plastic discs that contain music that can’t be copied to or even played on some customers’ equipment. Philips, the owner of the CD format says these discs cannot be called CDs because they do not meet the standard of what a CD is. Sony, one of those weird hybrid companies that, as a member in good standing of both the technology and entertainment industries, finds itself on both sides of this issue says it can’t guarantee the audio quality of these discs. The technology used to protect these discs sometimes prevents the discs from playing on computer CD-ROM drives, DVD players, and other devices specifically designed to play standard audio CDs.

Sales of recorded music are down 10% in the United States over the last year. The recording industry blames this downturn not on the economic recession, not on the crappy music that they’ve released in the past few years, but on Internet piracy.

And it’s only going to get worse. Hilary B. Rosen, president of the Recording Industry Association of America (RIAA) told Congress on 28 February 2001 that the practice of copy-protecting audio CDs would expand in the United States. “If technology can be used to pirate copyrighted content,” Rosen wrote in her response to a Congressional query, “shouldn’t technology likewise be used to protect copyrighted content? Surely, no one can expect copyright owners to ignore what is happening in the marketplace and fail to protect their creative works because some people engage in copying just for their personal use.” Her pal, Michael Eisner, head of Disney, said he was tired of being “finessed” by the technology industry, whatever that means.

Unfortunately for Eisner, Rosen, Disney, and the RIAA, personal use—and more importantly the rights associated with that use of copyrighted material—is exactly why copying of copyrighted material is not just allowed, but mandated by Title 17, Chapter 1, Section 107 of the U.S. Code. That some individuals illegally sell copied CDs or distribute copies of the music on the Internet is immaterial. In fact, fairly casual observation indicates that if customers are treated like criminals they will indeed begin to behave like criminals.

It has become common practice for music-loving computer owners to legally transfer audio CDs they purchase to .mp3 format files on their computers. The copy protection technology employed by the recording industry prevents such transfers by adding distortions to the music of the recordings. The industry insists that these distortions are inaudible when the disc is played on a standard CD player but result in pops when the music is transferred to a computer. In any case, it’s usually impossible to tell whether or not a disc includes the copy protection technology; in general, the copy-protected discs are not labeled.

Ironically, or probably not, .mp3 player manufacturers could easily defeat the copy protection technology, but they fear doing so would risk prosecution under the Digital Millennium Copyright Act (DMCA) which prohibits the bypassing of copy protection systems. In 1999, the Ninth Circuit Court of Appeals ruled that .mp3 players did not violate copyright law because customers have the right to “space shift” music they have purchased.

Moral rights

Interestingly, the act of using the copy protection technology is much more prevalent in Europe. Most European countries, unlike the United States, recognize an artist’s “moral rights” in the work they create.

Moral rights are a package of intellectual property rights granted to the original creator of a work, and include:

  • The right of integrity;

  • The right of attribution;

  • The right of disclosure;

  • The right to withdraw or retract;

  • The right to reply to criticism.

These moral rights are separate from the economic copyright that these days generally transfers from an author to a publisher and they can survive the author. The idea originated with the French, who believe that any creative work, by definition, includes the personality and character of the author. Where copyright is a property right that can be transferred, moral rights are part of the author’s personality and character and non-transferable.

The first two moral rights—the right of integrity and the right of attribution—are especially important because they are codified as international law in the Berne Convention. The United States claims its intellectual property law complies with the Berne Convention, but this is just two instances where it doesn’t.

The most important of these rights is the first, the right of integrity. Basically it prohibits an author’s work from being distorted in any way that would harm the author’s reputation and dates to the 1957 French law of “droit au respect de l’oeuvre.” It’s a safe bet that a cross-reference over which the author had no control would be seen as a distortion of the work.

Seemingly, in Europe at least, an artist could make an argument against the production of a copy-protected version of her work on the sole basis of moral rights. Especially in the case of an audio CD to which distortion is intentionally added by the publisher.

In the United States, Representative Rick Boucher (D-Virginia) appears to be taking the point position in questioning the behavior of the entertainment industry. He believes that instead of using copyright to obtain fair compensation for the works they’ve licensed, the copyright owner industry—including the recording industry—is attempting to “exercise complete dominance and total control of the copyrighted work.”

And just how much money does an artist receive in the form of royalties? Use Moses Avalon’s royalty calculator to figure it out.

A DMCA rewrite?

Representative Rick Boucher (D-Virginia) plans to introduce legislation that would regulate—and maybe outright ban—copy-protected compact discs. Boucher reportedly has concerns about customers buying copy-protected discs without knowing it and the compatibility problems inherent with the copy protection mechanism. In an interview with Wired News, Boucher said, “The big problem initially is that consumers have no information that is complete and reliable about the disabilities which attend copy-protected CDs. These CDs will not play in DVD players, not play on personal computers (and) not even play on all CD players.”

Boucher isn’t talking about what kind of legislation he might introduce to accomplish his goal of protecting audio CD customers, and the possibilities are intriguing. At the simplest level, legislation may require copy-protected CDs to carry a warning label. At a more interesting level, Boucher may try to rewrite the DMCA. In fact, Boucher announced that he would introduce such legislation last July and reiterated his commitment to that approach in early March of this year.

Internet radio

Under the U.S. Copyright Office’s interpretation of the DMCA, Internet radio may be a thing of the past. KFJC, KPIG, and RadioParadise may all be goners. Why is this tragic? Because any of these stations are orders of magnitude better than the sorry excuse for radio available on the traditional dial.

Internet radio is routing around an obsolete and unaccountable industry’s safely padded environs and making a difference. Corporate radio sounds exactly the same from coast to coast because it is exactly the same. Sit and watch that website for a few minutes; if it doesn’t nauseate you, it’ll damn sure hypnotize you.

Adding to the arsenal of tools deployed by big media is the Copyright Arbitration and Royalty Panel (CARP). CARP met secretly for the past several months and issued the CARP Report in late February. The keystone of this report is steep licensing fees for webcast music. Let’s be clear: compulsory licensing is a good idea, consistent with the intent of copyright law. Usury licensing fees for small webcasters is not.

KPIG responded almost immediately with a plea to “save the Pig from the digital slaughterhouse:”

“Independent webcasters such as KPIG are facing a grave threat to our existence. It may be an evil conspiracy on the part of the big record companies and corporate webcasters, or—more likely—it’s just a dumb mistake. In either case, KPIG could soon be liable for huge music usage fees ($5,000 – $10,000 per month) that would make it impossible for us to stay online. For background on the issue, see The Death of Web Radio? below and the SaveInternetRadio.org website.

Doc Searls, in his article “ Bizarre vs. Bazaar,” eloquently sums up the combination of DMCA and CARP as “the destruction of the Net as a commons and its replacement with a plumbing system for the distribution of ‘content’ (a word hardly used in a shipping context before Big Media got all drooly over The Promise of The Net).

A brief history of copyright

Copyright, until this recent entertainment industry power-grab, has always been a delicate—maybe even precarious—balance between the rights of the author to benefit from his or her work for a short period of time and the rights of the rest of us to innovate and benefit from those works when they fall into the public domain.

The Constitution granted Congress the power “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.” Originally, the Copyright Act of 1790 established the “limited times” of copyright protection of 14 years with an option for the author to renew the copyright for an additional 14 years if he or she were still alive. That copyright term was good enough for the first 100 years of intellectual property in the United States. During the next 100 years, Congress extended the copyright term 11 times.

Certain uses of a protected work that would ordinarily be seen as infringing are specifically allowed for education, criticism, etc. These uses are allowed under the “fair use” provision. The core concept of fair use is that, in general, any use that does not exploit the commercial value of the original is permissible.

The fair use statute recognizes four criteria by which a use can be determined to be fair or unfair:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

  2. The nature of the copyrighted work;

  3. The amount and substantiality of the portion used in relation to the copyrighted wok as a whole; and

  4. The effect of the use upon the potential market for or value of the copyrighted work.

William S. Strong, in The Copyright Book: A Practical Guide, provides an interpretation for working writers:

“As a general rule a critic or reporter should not quote at any one point more than two or three paragraphs of a book or journal article, a stanza of a poem, or a solitary chart or graph from a technical treatise.”

The Net allows ordinary citizens to exercise their fair use rights in ways never imagined by the entertainment industry. Subsequently, the reaction is to pressure innovation by extending the copyright term for any given work. In October, the U.S. Supreme Court will hear a case that will likely determine the legitimacy of the most recent copyright term extension, the Copyright Term Extension Act of 1998. This law extends the copyright term to the life of the author plus 70 years. In the case of works made for hire in which a corporation owns the copyright, the copyright term is now 95 years.

While one side of the entertainment industry was pushing, an activity that eventually became the Copyright Term Extension Act of 1998, the other side was pulling. That activity eventually resulted in the DMCA. Designed specifically to control the uses that can be made of published works, the DMCA makes it illegal to circumvent copyright-protection technology. The result: the entertainment industry controls not only what you see and hear but the methods and devices with which you see and hear it. Even if the copy-protection is circumvented to enable the fair use of a published work, it is prohibited and deemed to be a criminal act.

Digital TV

According to Mike Godwin, digital television is the tipping point in the war between the entertainment and technology industries. Never mind that every time the entertainment industry shoots itself in the foot, the technology industry comes to its rescue. Remember in the 1970s when the movie industry was in a deep funk and that vampire Jack Valenti said that VCRs would kill it for good? As it turns out, the VCR revived the film industry. The film industry was failing not because of customer VCR usage but because they were putting out epically craptacular films. Just like the recording industry today—when in doubt blame those dang customers.

Anyway, Godwin says digital television is the flashpoint because its quality (technical, not artistic) is way too good and unlike DVDs, it’s unencrypted and has to stay unencrypted to be useful. Oh, and the pesky FCC regulations say that broadcast television signals must be sent unencrypted.

The purveyors of digital television think they have the answer: digital watermarks. They think that’s the answer for the online distribution of music, and any other digital content as well. Unfortunately for them, in order for a watermark to be used to restrict copying of digital content, consumer devices used to play the content will have to have technology included that’s capable of receiving those watermarks. That would require the cooperation of the technology industry, and that cooperation has not been forthcoming.

Godwin cites the theory of Edward Felten, a computer scientist at Princeton, holding that any sort of tagging system that is undetectable by the user will likely be easy to remove.

Digital rights management

Perhaps the weirdest part of all of this is that the technology industry is just as enamored of protecting intellectual property. They’re just going about it in a minimally different way. Digital rights management (DRM) is the battle cry of the techheads. And where they differ from their entertainment industry brethren is the question of government mandates. The technology industry wants to lock up published content just as badly as the entertainment industry; they just don’t want the government (or anyone else) telling them that they have to. Remember that the entertainment and technology industries both lobbied heavily in favor of the DMCA.

And then there are the schizoids, the companies—like AOL Time Warner and Sony—that are so large that they find themselves on both sides of the fence depending which way the wind blows.


The Security Systems Standards and Certification Act (SSSCA), kept on a leash but regularly trotted out by Senator Fritz Hollings (D-South Carolina), chair of the Senate Commerce Committee, can best be thought of as a sort of appendix to the DCMA. It is clearly designed to further extend legal protections for digital content owned or licensed by enormous media conglomerates.

According to the draft language of the bill, it would be illegal to create or distribute “any interactive digital device that does not include and utilize certified security technologies” approved by the Commerce Department. Even though MIT professor and RSA Data Security co-founder Ron Rivest has referred to the proposed legislation as the “Digital Rectal Thermometer Security Act” it’s really just mandatory corporate welfare for media conglomerates subsidized by the actual creators and consumers of intellectual property.

Felony penalties for distributing copyrighted material without the “certified security technologies” fully enabled or using a computer that circumvents those technologies are up to five years in prison and fines up to US$500,000.

Even worse, the proposed legislation calls for manufacturers of digital devices and the media conglomerates to collaboratively develop a copy protection system. If, after two years, they can’t come up with a mechanism both industries can live with, the federal government will specify a standard. Hollings’ bill fails to include the actual creators or users of content in any of the machinations.

Should we be surprised that four of Hollings’ top campaign donors are media conglomerates?

Predictably, the politicians split along party lines over the SSSCA. Or, more accurately, the split is along the lines of entertainment industry campaign contributions. Democrats, who received US$24.2 million in contributions from the entertainment industry tend to support the idea of legislating the protection of copyrighted material in digital form. Republicans, who received a relatively paltry US$13.3 million in entertainment industry contributions usually oppose the SSSCA, claiming it is too interventionist.

In mid-March 2002, the other shoe dropped. Senator Hollings, better known as the Senator from Disney, transformed the SSSCA into the Consumer Broadband and Digital Television Promotion Act (CBDTPA) and ceased his tip-toeing around. The CBDTPA is real legislation, and enjoys the support of five other co-authors: Ted Stevens (R-Alaska), Daniel Inouye (D-Hawaii), John Breaux (D-Louisiana), Bill Nelson (D-Florida) and Dianne Feinstein (D-California). Just think, one more author and they could have been the seven dwarves. The CBDTPA would require all digital devices—everything from fax machines to MP3 players and computers (as well as the software that runs on them)—to be equipped with embedded copy protection schemes, approved by the federal government.

What’s most disturbing about this is relatively paltry sum it took to buy this legislation. During the 2002 election cycle, only two of the dirty half-dozen were in the top 20 recipients of soft money from the entertainment industry. So far in the 2002 election cycle, Hollings has received only US$19,000 and Stevens has taken only US$39,621. To get the real story, we have to look back several election cycles:







Fritz Hollings (D-South Carolina)






Ted Stevens (R-Alaska)





Daniel Inouye (D-Hawaii)





John Breaux (D-Louisiana)





Bill Nelson (D-Florida)






Dianne Feinstein (D-California)





Total as of 20 March 2002


There’s no question why Fritz Hollings carried the water for this puppy, is there? But check those senatorial links in the table carefully because they tell the even bigger story of who the top contributing industries were for each politician. In every case, the entertainment industry scored big in the top 20 contributors for every Senator. And remember the 2002 campaign cycle isn’t over yet. Not hardly.

So, how much does it cost to get your bill through the Senate? Looks to me like it’ll come in right around US$1 million.

Enter DigitalConsumer.org

The technology industry was quick to respond to the CBDTPA threat by launching DigitalConsumer.org and its attendant Consumer Technology Bill of Rights. Launched by two of the co-founders of Excite, DigitalConsumer.org is basically trying to protect the “fair use” rights of customers in digital media. The group’s principles, outlined in the Bill of Rights are deceptively simple:

  1. Users have the right to “time-shift” content that they have legally acquired.

  2. Users have the right to “space-shift” content that they have legally acquired.

  3. Users have the right to make backup copies of their content.

  4. Users have the right to use legally acquired content on the platform of their choice.

  5. Users have the right to translate legally acquired content into comparable formats.

  6. Users have the right to use technology in order to achieve the rights previously mentioned.

The depth and breadth of support this lobbying group will receive remains to be seen. Some of the precepts are in direct conflict with the interests of some of the largest technology industry members. Microsoft, for example, almost certainly wants to be the digital rights management company of record and is none too keen on, say, items 2, 3, 4, and 5.

A solution

The solution is actually quite simple and requires only four steps:

  1. Revert the term of copyright to 14 years, immediately and retroactive to all existing works. Works created more than 14 years ago would immediately revert to the public domain.

  2. Recognize moral rights in the works authors create, like every other civilized country on the planet. Make it immediate and retroactive to all existing works.

  3. Immediate repeal of the DMCA.

  4. Prohibit any corporation from owning a copyright. Corporations create nothing; they’re consensual hallucinations and exist at our pleasure. I don’t know about you, but I’m not much pleased any more.

Because the fair use provision of Title 17, Chapter 1, Section 107 of the U.S. Code, along with judicial findings (including those related to time-shifting and space-shifting rights), adequately protect the rights of consumers, there is no need for additional action in this area.

The basis of the problem is found in a single court ruling: Santa Clara County v. Southern Pacific Railroad. In this 1886 dispute, the U.S. Supreme Court found that a private corporation was a “natural person” under the Constitution and enjoyed the same protections as a citizen under the Bill of Rights. Corporations from that point forward were granted all of the rights and freedoms of a private citizen, yet none of the responsibilities. We made a mistake; hey, shit happens. It’s not too late to fix it.

Revision history

29 March 2002: Changed appropriate references Constitution > U.S. Code. Added recognition of fair use provision and judicial findings to “A solution” section. Added repeal of DMCA to “A solution” section.

Extension and companion documents

Breakout of entertainment industry Senate campaign contributions: Elephants dance with a little help from their friends

Documents in support and opposition: Riffing on When elephants dance

Prediction of CBDTPA companion bill in the House of Representatives: When elephants waltz

The problem of works-made-for-hire: On corporations owning copyrights

CBDTPA as a negotiating tool: Michael Eisner’s financials and possible smokescreen

Rep. Adam Schiff’s letter soliciting co-sponsorship of CBDTPA companion in the House of Representatives: The other CBDTPA shoe drops

Explanation and extensive discussion of proposed solution: Forthcoming

Last update: Friday, March 29, 2002 at 10:45:07 AM
Copyright © 1993–2002 ARTS & FARCES LLC. All rights reserved.

Author: Michael Fraase

News Service: arts & farces

URL: http://www.farces.com/stories/storyReader$414

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