More Thoughts About Copy Protection

Since I wrote my column on copyright, I've received some e-mails about it and I've noticed that the issue is alive and kicking in other industries as well. These merit further discussion, I think, so I'll continue my brief digression from pure audio for another month or so.

Reader John Hoog wrote to suggest that my dim view of the economic consequences of posting intellectual property for free on the Internet was not borne out by the experiences of the Baen Free Library, (see

Meanwhile, in a trade magazine called The Chronicle of Higher Education, which is to colleges and universities as TV Technology is to professional television, several stories and features have cropped up that take a decidedly different view than we have in our industry. These are definitely worth discussing briefly for our own edification.


What lies at the center of all of this is the so-called "Intellectual Property Bargain," the legal underpinning to U.S. copyright law. In a general way, our government frowns on monopolies, regarding them as contrary to the best interests of the general public and free markets. However, in the case of copyright (and patent) law, a limited monopoly is granted by the government, in return for the public sharing of the protected intellectual property. That particular quid pro quo of the intellectual property bargain is mostly being forgotten these days, and the current crop of digital protections we mentioned in my last column do not take into account (a) the public interest and rights in regard to such intellectual property, and (b) an implicit obligation to obey the law in regard to copyright and other statutes if you are going to seek protection from those laws. The very powerful urge to build fences around the extremely porous digital membrane tends to obscure such concerns.

In the academic world, access to information is critical to professional work. A longish piece ("Copyright as Cudgel") in the August 2, 2002 Chronicle by Siva Vaidhyanathan, professor of Culture and Communications at New York University, bemoans the threats to such access engendered by the Digital Millennium Copyright Act and its protectionist siblings. What is of real interest in this article is the very thoughtful discussion of the traditional legal limits and exclusions to copyright that enable access to information in an academically viable way, plus a brief look at what is meant by "Fair Use."

Vaidhyanathan discusses four primary limits to copyright that are essential to the intellectual property bargain. First is the principal of "Fair Use," which consists of both a set of legal principles to be used to defend against a claim of infringement and also a set of "unauthorized" (but not necessarily "illegal") uses that are generally perceived to be "fair"; more about these in a moment.

Second is the so-called Doctrine of First Sale, which holds that the purchaser of an embodied piece (book, sculpture, CD, painting, whatever) of intellectual property can do with the embodied piece as he or she wishes, except to sell copies of said piece. This common-sense doctrine is closely tied to the principle of property transfer and the inherent executed sales contract in such a transfer. Once a transfer has occurred and the property and money have changed hands, the seller relinquishes rights to the property and the buyer relinquishes rights to the money. Except for, uh, copying the property - sort of.

The third constraint has to do with ideas. Ideas themselves are not protected by copyright. Only the particular and unique expression of ideas is protected. A composer may create a 13-bar blues and copyright it. If somebody else appropriates that 13-bar blues form for a different blues, that does not infringe. Further, we all may discuss the implications of that particular 13-bar blues at length, including citations and demonstrations of it, without infringing copyright. Voila! This means there can be newspapers and magazines. TV Technology lives!

Finally, copyright has a limited term. This has been jacked up to pretty silly durations now (half a century after the death of the author?), but it still isn't quite like diamonds.


Fair Use itself is pretty interesting. As put forth in the Copyright Law, it is a set of defenses against claims of infringement, which is to say that Fair Use is use that would be infringing if it was not part of a particular set of fairly broad and vague usags. In order for there to be fair use, there must be infringing behavior and blocking such infringement blocks fair use. The "Fair" usages refer to the nature of the infringing use (unauthorized research, education, criticism, etc.are all OK), the nature of the copyrighted work, how much of it is used, and the effect of Fair Use on the market for the protected item.

In addition, there is another kind of fair use, which is a set of consumer uses, such as time-shifting, etc. Interestingly, a Consumer Technology Bill of Rights has been proposed by a consumer group called They call such rights "fair use."

So, copyright is more than simply an articulation of pure ownership of a chunk of writing, an art object, a movie or something. It is not a "right" and it is not inherent in the natural scheme of things. It is a deal between the government and various individuals, and it cuts both ways. Along with the protections afforded by copyright there are some obligations. As I noted above, we have tended, particularly in our industry, to forget about these latter items. Uh-oh, as Custer said, once.

We have begun to criminalize behaviors that relate to the bypassing of electronic constraints. It has even become illegal to publicly discuss how a digital constraint might be defeated. Further, we have made service providers liable for any possible infringement by a user that they don't censor. We now contemplate blocking any recording or format conversion of any "protected" property, a remarkable and Draconian move indeed (it's going be fascinating to see such blocking in action in an operating room or airplane cockpit, for instance). However, we haven't yet asked if such constraints themselves are actually legal and in the public interest.

Meanwhile, the Chronicle also reports, in other articles, that a graduate student is suing a software company for infringing his "right" to conduct "fair use research," that Congress is putting into law a "fair use" exemption for accredited, non-profit schools to transmit "distance learning" materials (a fine idea, except that it confuses a specific class of people with a specific worthy behavior), and that college radio stations can't possibly afford to pay new micro-licensing fees for on-line broadcasts, resulting in such exemplary activities being discontinued.

There are two points to all of this. The first is that there is a large, articulate, influential, righteous and respectable industry fighting against the intellectual property shenanigans of the entertainment industry. They seem perfectly capable of getting their own private legislation cut, too, and they are happy to rationalize away both the legitimate and illegitimate concerns of the large "content owners" we generally work for.

Second, the current urge to criminalization is running in favor of the content owners, not the public. This isn't necessarily fair, and it is only a matter of time until somebody suggests that not only should we criminalize the bypassing of electronic constraints, but we should also criminalize the application of such constraints in ways that prevent legitimate and permitted fair use and other copyright exceptions. That is roughly what the aforementioned graduate student is attempting to do. That is also, most definitely, in the public interest, as a key element of the intellectual property bargain. Hmmm.

This is quite important to us all, because this work of transmitting intellectual property is the basis of our livelihood. We need to push for balance, fairness and reasonableness. Right now, it's getting a little crazy. And, because this ain't a party, that ain't good.

Thanks for listening.

Dave Moulton