Even the reasonably recent Digital Millennium Copyright Act is so out of date that it never anticipated things such as cell phone unlocking or people selling licensed software without the permission of the copyright owner when they traded cars.
Maria Pallante, testifying before the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet, said that the legislative process was so slow that the last major rewrite of the U.S. copyright laws, passed in 1976, reflected the reality of the 1950s. “The DMCA is 15 years old,” Pallante told the committee, “that’s really long in Internet time.”
Pallante’s testimony comes hard on the heels of the Supreme Court decision affirming the principle of “First Sale” in copyrights, which said that the owner of a copyright can’t control how the owner of a copyrighted product disposes of the product once it’s been purchased. The Supreme Court decision applied to a situation in which books purchased outside of the United States were then sold as used books in the United States.
The book publisher, John Wiley & Sons, had sued a bookseller claiming that purchasing used books and reselling them in the U.S. violated its copyrights (full disclosure note: Wiley is the publisher of my most recent book, “Politics on the Nets”). The court disagreed, but perhaps more important specifically said that the decision applied to products that included copyrighted content, including software that might be part of a car’s computer system.
The court specifically said that the copyright holder could not control how the copyrighted material was used or how it was distributed. And while cell phone unlocking wasn’t mentioned in the court decision, it certainly became a hot topic in the questions that came after the testimony in the copyright hearings. While Pallante didn’t express an opinion on cell phone unlocking, she did say that it was an example of how the law failed to keep up with technology.
Pallante also noted that the existing copyright laws really didn’t address content streaming from a live source in a meaningful way. Nor do they address incidental recording, such as when streaming content is buffered to a hard disk. However, Pallante stressed that lawmakers had to change their fundamental approach to the copyright laws.