Some Thoughts About Copyright

Copyright issues in media have been in the mainstream news and in TV Technology recently. A number of important problems have been rattling around over the past couple of years, and it's beginning to look like a bumpy ride.

As a recent TVTechnology editorial pointed out, the one sure thing is that the Supreme Court is going to get into it (actually, the Supreme Court is already currently reviewing the Sonny Bono Act, which extends copyright for 20 years, ostensibly as a favor to Mickey Mouse). Other recent problems include the Digital Millennia Copyright Act (DMCA), which seriously criminalizes certain "digital" copyright infringements as well as even discussing copy protection schemes, whether or not infringement is involved.

At the same time, a Motion Picture Association of America report to Congress allegedly calls for copy protection circuits on all A/D converters (yikes!). And not too long ago, I was contacted by a recording industry trade group insisting that a professional digital loudspeaker I was working on should have encrypted digital I/Os.

There's a move afoot to get control of all this stuff.

I wouldn't know much about all this, except that back in the late 1980s I got involved with the federal government, first evaluating the so-called CBS Copycode, and then as an advisory board member for a congressional study on home copying.

As a result, I ended up reading a few thousand pages and dozing through a whole bunch of hearings in Washington. What I learned turned out to be fascinating. It also got me thinking about the whole problem.

Meanwhile, my own professional life is centered on royalty income from copyrighted publications and patents. I have a real and vested interest in the handling of intellectual property. Trust me on this!


The copyright law in this country has its foundation in the Constitution, which specifies that in order to promote arts and sciences, Congress shall give authors exclusive rights for limited times. James Madison, who wrote the law, was primarily concerned with the promotion of arts and sciences, not authors; he regarded exclusivity as a monopolistic evil.

Congress originally limited the term for copyright to 14 years. Copyright was viewed as an "intellectual property bargain" between government and author, guaranteeing limited exclusivity in return for publication.

Over the years, our view of copyright has evolved dramatically. Now copyright has a term of "life of the author plus X years." Further, the major "content owners" have worked to convert the intellectual property bargain into a right of pure ownership. The software industry has been bad about ignoring exclusions to copyright, and has subverted the Commercial Code in regard to mechanisms such as shrink-wrap licenses. This has been done in keeping with a proud commercial tradition of aggressive lobbying and campaign contributions in return for, ah, favorable legislation - a tradition beloved by the health, energy, transportation and, of course, entertainment industries. It's not pretty, but they figure nothing beats fixing the card game upfront.


The primary cause of the recent explosion of interest in this has been the conversion of most media to digital storage and distribution. As you all know, such a conversion strips the intellectual property off any particular fixed media and makes it comparatively easy to store and distribute. This presents a problem to us copyright holders, because we charge for the tangible physical media - that's how we get paid.

Meanwhile, Congress acknowledges numerous exclusions to copyright, most notably the so-called "fair use" provisions, which permit people to use copyrighted material without sanctions under certain limited circumstances. There is also a doctrine of "first sale," so that when I sell a textbook, the purchaser is in turn free to sell that text without further compensation to me. Finally, there is a sweetly reasonable "personal use" exclusion for time and media shifting, as well as exclusions for archiving and the making of safeties.

These are all viewed as "safety valves," reasonable limitations on exclusivity that serve the public interest.


Our brave new infoworld has engendered some serious abuses of this system. Most basic to this is the decentralization of copying. The tape recorder and the Xerox machine have enabled all of us to easily and cheaply make copies of anything we would like. It's handy and convenient, and we don't know how we'd get along without it. At the same time, we tend to get a little, uh, casual about all those copyright notices. I mean, who's going know and how much can this be worth, anyway?

The result is, in fact, lost sales and therefore lost income for copyright owners, in violation of both the letter and the spirit of the law. However, it is a two-edged sword, and the congressional study I worked on (Copyright and Home Copying: Technology Challenges the Law) gently suggested that there may very well be a net gain to society from decentralized unauthorized copying.

The stakes went up in the 1990s as our whole communications and intellectual property world went digital. Now we can make "copies" that are indistinguishable from the original. Why should I buy a CD I heard at Bob's house when I can simply dub a clone?

So, professional counterfeiters set up shop counterfeiting hit records, movies, etc. They were so brash they would even send counterfeits back to the original manufacturers as returns, piling grievous injury on ripoff - not only have you lost sales, but you are also directly buying back from the counterfeiters products you never made!

On an international basis especially, piracy of successful entertainment products is a huge problem. Piracy is easy to do, hard to detect and profitable. And even the penalties haven't been too harsh.

Meanwhile, the Internet has made it even tougher. Transmission of small documents (like a book) is trivial, once you have them in digital form, and copyright holders like me are essentially without recourse. Once a work of ours is posted on the net, there is little hope we can ever obtain more money from sales of copies.

The only saving grace here has to do with the low-res quality of digital data compression schemes - music and video are both clumsy to transmit in their high-res forms. But it's a limited saving grace - the industry has striven mightily and with considerable success to convince the public that the low-res MP3, et al. are of "good enough" quality. Oh dear.


What's a body to do? Copyright is an essential economic element in our informational society. We've got to compensate the authors and publishers or else they'll go into, say, real estate. The fix probably has to be technological because the problem is technological. It also has to be supported by - even originated in - the law.

Ten years ago, I submitted a fairly detailed discussion of all this to the government. In it I recommended (a) abandonment of analog copy protection, (b) a system of provenance maintenance in the digital realm and (c) a system of compensation based on transmission through the digital system. I did this looking ahead toward 2000 and beyond.

Well, here we are. Let's look at it today, briefly.


For this to work, operating systems would have to accommodate the attachment of watermarking to all files plus provenance data as a function of copying. The goal would be to maintain an accurate and reasonably indelible record of provenance of any copyrighted file as it passes through the system. Such a system would permit us to "know" the details of any particular intellectual property usage, as well as to trace ownership and usage. That's the first step.

The second part of this would be to require compulsory licensing of any data transmitted, subject to micro payments, as per current telephone and charge card practice. The current proposals for Webcasting are an example of such a system, in which fees of very small fractions of a penny are due for each transmission.

There are lots of problems with all this, of course - privacy is a big one; hackers are another. Greed of content owners, who (a) don't want to give up control and (b) want to really nick you for their mega-hits, is a third. Technological complexity and administration is a huge fourth problem. And, of course, political contributions trump everything.

However, the current solutions being suggested are much more Draconian and Big Brotherly than my suggestions - very tight control and copy prohibition, built into everything. And no rights for users; in fact, an "end run" of copyright by licensing in lieu of publication.

Those things don't serve the public interest very well. What we need is a system that yields reasonable compensation while being cheap and simple enough for the users that it's not worth the trouble to try to cheat. We aren't there yet, but we could do it.

Thanks for listening.

Dave Moulton