Copyright Law Needs Broad Digital Overhaul, Official Tells Congress

By Wayne Rash  |  Posted 2013-03-20

Copyright Law Needs Broad Digital Overhaul, Official Tells Congress

Even the reasonably recent Digital Millennium Copyright Act is so out of date that it never anticipated things such as cell phone unlocking or people selling licensed software without the permission of the copyright owner when they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.

Copyright Law Needs Broad Digital Overhaul, Official Tells Congress

The real problem with today’s copyright laws, as Pallante noted, is that they’re rooted in the past. Today’s rules on content apply to things that are printed, such as books, or things that are recorded, such as tapes and vinyl records. They are applied to digital content only with difficulty. Worse, the line between owning something that contains content (a book, for example) and licensing copyrighted material such as is done with software, has created a world when many things are licensed but few things are owned.

This means that you can own a book and keep it forever in your personal library. But if you buy a Kindle book, Amazon can simply remove it from your device if it decides there’s a problem with the licensing—a situation that has already occurred. So while you can take your book to a used bookstore and resell it, you can’t resell a Kindle book.

Likewise, you can own a vinyl record, but at least in theory you don’t own the music on a CD. You only own the plastic that comprises the CD, but the music publisher owns the music itself. As a practical matter, this is hard to enforce with compact discs, since you can play any CD on any CD player. But with the advent of DVDs, this has changed. Now the copyright holder can define where you can play the movie on your DVD, and if you try to play it somewhere it wasn’t intended, the copyright holder can prevent it.

As a result the concept of copyrights becomes more of a mess as it moves through time. Pallante said that the law needs to be changed so that it’s broad in principle and the details are specified by rulemaking (sort of like what happens at the Federal Communications Commission’s regulatory process), so that the rules can change as the situation changes.

Unfortunately, there would need to be changes in more than just the copyright laws. As one of the questioners pointed out in the hearing, the reason for the three-year exception rule handled by the Librarian of Congress that caught up cell phone unlocking is rooted in a South Korean trade agreement that Congress can’t change without renegotiating the treaty.

Worse, the copyright rules are chock full of rules like that which create unintended consequences that frustrate people and technological progress. Maybe a new copyright law will help, but maybe the South Koreans would have to approve it first.

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