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The end of copyright?

Hot on the Web

This column originally ran in ComputorEdge on March 22, 2002
(Issue 2012, Everyday Good Stuff)

Despite what the high-paid lawyers at Disney and AOL/Time-Warner would have you believe, copyright doesn't exist to protect quarterly profits.

Copyright law – and its cousin, patent law – were developed in order to provide an economic reward for those who create. The thinking was that by giving those who invent, write (and, still to come when copyright was first created) record a temporary monopoly on their works, they'd be more likely to produce these creations that bring so much value to society as a whole.

That's the theory, anyway – copyright's basic purpose is to benefit society.

But over the past couple of years, the entertainment industry – chiefly Disney, but with some generous support from the music labels – has changed the rules, standing them on their head so that copyright is used against the people rather than for. These Hollywood bigwigs got copyright protection extended an additional 20 years, to match the European Union standard (author's life plus 70 years). And they got the Digital Millennium Copyright Act passed in 1998, which gives all the power to the record companies, book publishers and software outfits.

At the heart of this new anxiety on the part of the entertainment moguls is the Internet. The success of and Napster scared the heck out of the Hollywood suits – and so they have reacted as those whose power is threatened always do.

But they may have overreached in their efforts to protect their turf – and in so doing, have sparked a backlash that is calling into question the very need or even possibility of copyright in the age of the Internet.

Coming to a head

This ongoing struggle between those who control our entertainment and those of us who want to use it is now being joined by a third party: Oddly enough, those who actually create have been just as ignored by the Hollywood CEOs as we lowly users have. And they're fighting back, too.

And so as 2002 opened, we had three arenas in which copyright is coming under increased scrutiny:

  • The U.S. Supreme Court agreed in mid-February to hear a lawsuit arguing that copyright law as presently written is unconstitutional.
  • The Copyright Office of the Library of Congress issued proposed new regulations that would require any online webcaster to track each individual listener – and pay royalties on them. Broadcasters, of course, pay royalties when a song is played – not when it is listened to.
  • The Recording Artists' Coalition held a large fund-raising concert in Los Angeles to help raise money for their efforts to change copyright law so that the artists' heirs inherit the rights to that 70 years of protection – not the publishers and recording companies. They're also seeking to overturn a California law that binds musicians to their record labels for a minimum of seven years, as well as force record companies to pay musicians a larger share of their profits.

As expected, the Supreme Court case has publishers and recorders most worried. And with good reason – that life of the author plus 70 years doesn't jibe with copyright's historical uses.

For instance, in 1790, copyright only lasted for 14 years. Under the 1790 rule, Jay McInerney's 1987 novel, "Bright Lights, Big City" would already be public domain – meaning it would be as freely available as the novels of Twain or Dickens. (Groups like Project Gutenberg make public domain literature available online for free.)

Today, given that McInerney is only in his early 40s and seemingly in good health, the book might not be public domain for another century or so.

Assuming the publisher's don't get copyright extended indefinitely.

Copyright vs. privacy

What should have the rest of us worried is the above rule proposals from the Copyright Office – and for two reasons: 1. Those radio stations that continued webcasting under those rules would be tracking who listens and to what (which would seem to contradict Congress' earlier legislation regarding online privacy – but since when is Congress consistent?) 2. Some radio stations are already dropping their Internet webcasts in reaction to the ex post facto portion of the proposals, thus denying online listeners access to their programming.

The Copyright Office's proposal adopts the Recording Industry Association of America's requests, and says they seem "reasonable." So much for protecting the public good. (Read the proposals yourself at the Library of Congress' web site.)

Among these proposals is a unique identifying number assigned to each listener – how is it that Microsoft does something like this, and it blows up in the media as a gross violation of privacy (which it is), but the government proposes doing it and nobody pays attention?

The average person – a non-lawyer gifted with a modicum of common sense, for instance – might wonder what the difference between a radio broadcast and an Internet webcast is, outside the technology used to deliver the signal.

In truth, there is none.

Yet radio stations manage to pay royalties for their broadcasts without tracking which of us are listening to what and when; they manage to keep their playlists of songs without violating anyone's privacy.

But truth and big business have little overlap, and so many radio stations are now dropping their webcasts rather than the face the combined wrath of the federal bureaucracy and Hollywood.

Here in San Diego, KSDS-FM (88.3), the nonprofit jazz station owned and operated by the San Diego Community College District, has already dropped its webcast in reaction to the proposed rules (the link was still on their website at as this was written, but the link no longer works).

Which is too bad, because if you happened to live somewhere that didn't have a jazz station, you could listen to KSDS on the Web. It was a nice bit of cultural promotion, providing a service to the community by sharing its jazz programming with the world.

And now, that has ended – the public has been deprived of a true creative voice so that corporate profits can be protected.