A Proposed Quick Fix to the Dmca Overprotection Problem That Even a Content Provider Could Love ... or at Least Live With
| Jurisdiction | United States,Federal |
| Citation | Vol. 28 No. 04 |
| Publication year | 2005 |
A long history of conflict surrounds the scope of copyright protection within the content industries,(fn1) and the music industry is no exception. Invariably, these conflicts arise as a result of new technologies that threaten the copyright holder's ability to restrict reproduction, distribution, and ultimate control of a work.(fn2) This conflict has manifested itself both within the different branches of the music industry(fn3) and between the industry and the consuming public.(fn4)
The first copyright struggles arising from new technologies divided the music industry from within and threatened to shift control of copyrighted works in favor of nontraditional, competing distribution formats.(fn5) For example, the development of player pianos at the turn of the century pitted music publishers against manufacturers of the then-new player piano.(fn6) Similarly, the development of radio caused record labels and recording artists to worry about how they would collect royalties in the new media.(fn7) Each of these new technologies was, at one point, thought to infringe upon the rights of intellectual property holders so egregiously that proliferation of the technology might mean an effective end to intellectual property rights' protection.(fn8) Despite the development and proliferation of each new technology, however, the industry survived and grew.(fn9)
With the advent of home recording, the scope of the conflict shifted away from internal conflict and toward a new threat: the consumer. Home audio and video recording enabled consumers to make multiple copies of a protected work, at the same time possibly infringing on the copyright holder's exclusive right to reproduce those works.(fn10) With each new technological innovation, users were able to make more uses of copyrighted works at the expense of the copyright holders' control over content.(fn11) More recently, digital copying and distribution technology, including P2P networks,(fn12) "ripping" software,(fn13) and other digital copying technologies, threatened copyright holders' control over protected works. The industry reacted by lobbying for the enactment of the Digital Millennium Copyright Act of 1998 ("DMCA").(fn14)
Among other things, the DMCA outlawed the use or importation of tools that others use to circumvent copy-protection measures that copyright owners have installed in their content.(fn15) However, the DMCA provisions disallowing copy protection and the importation of circumvention tools endow copyright holders with far too much power to control their works because those provisions prevent fair uses of those works. Congress must amend the DMCA to restore the balance of power between the content providers and the public by creating a meaningful fair use defense in the digital age.
This Comment first explains the evolution of the fair use doctrine, which historically prevented copyright holders from having too much control over their works by allowing certain legal and noninfringing fair uses of protected works. Part II explains how the United States Supreme Court developed the Betamax standard to apply the doctrine of fair use to a new technology: home video recorders. Part II also addresses how fair use and the Betamax standard might apply to digital technologies. Part III explains how the DMCA effectively abolished the defense of fair use and its application under the Betamax standard. Finally, Part IV concludes that the fair use defense must co-exist with the DMCA in order to maintain an appropriate balance of power between copyright owners and the public. Part IV then proposes a solution for restoring that balance.
I. The Evolution of Fair Use
The United States Constitution grants Congress the power "to Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."(fn16) This clause endows Congress with the power to grant monopolies, or copyrights, to authors for limited periods of time.(fn17) The monopoly may only extend as far as necessary in order to "Promote the Progress of Science and useful Arts."(fn18) Thus, Congress's power is limited to serving the purpose of promoting progress.
This "purpose" language ensures that "copyright legislation ... under the terms of the Constitution is not based upon any natural right that the author has in his writings."(fn19) Instead, the monopoly privileges that Congress may authorize are "intended to motivate the creativity of authors and inventors"(fn20) and induce authors to release those works to the public,(fn21) ultimately allowing the public complete access to the product after the monopoly period has expired.(fn22) Thus, the monopoly "confers a benefit upon the public that outweighs the evils of the temporary monopoly."(fn23) The reward to an individual author is merely "a secondary consideration."(fn24) Overall, the copyright laws strive to balance the protection of property rights, which encourage innovation and creativity, against the public's interest in having access to the free flow of ideas and creative works.(fn25)
In order to preserve the balance between property rights and the public's interest in access, copyright law has never granted a copyright owner complete control of his work;(fn26) control is limited even during the monopoly period.(fn27) Under 17 U.S.C. § 106, a copyright holder's control is limited to five exclusive rights during the monopoly period, or six where the copyright is in a sound recording.(fn28) Those exclusive rights are the rights to reproduce the work, prepare derivative works, distribute copies of the work, perform the work publicly, display the work publicly, and perform a sound recording publicly through digital transmission.(fn29) The rights granted in § 106 are explicitly limited not only to the terms of the list itself, but also by §§ 107-122.(fn30) Notably absent from the list of exclusive rights is the copyright holder's right to control fair uses.(fn31)
The concept of fair use first evolved as a judicial doctrine(fn32) as early as 1841,(fn33) and although it is not constitutionally mandated,(fn34) "some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose [of] 'promot[ing] the Progress of Science and useful Arts.'"(fn35) Fair use developed after the courts found that rights granted under the pre-1976 versions of the Act were broad enough to encompass almost any possible activity associated with a copyrighted work.(fn36) Consequently, the courts consistently refused to read the statute strictly(fn37) and instead developed the doctrine of fair use by recognizing a class of exceptions to the exclusive rights in copyrighted works.(fn38) Congress first acquiesced in the application of the fair use doctrine by doing nothing to counteract it, and then in 1976, Congress explicitly ratified the doctrine by codifying the fair use exception in the Copyright Act of 1976.(fn39)
When Congress enacted § 107 as part of the Copyright Act of 1976, it emphasized that future advances in technology demand an elastic formulation of fair use.(fn40) It explained that "there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change."(fn41) Congress's decision proved prudent and, as technology has developed, the fair use test has been adapted, interpreted, and customized to fit new technologies.(fn42) In 1984, with the development of personal video recording devices, the Court dramatically adapted the fair use test when it adopted the Betamax standard.(fn43)
II. The Betamax Standard
The Betamax standard developed as a result of litigation between Universal Studios and Disney on one side and Sony on the other. This section will first examine the development of the Betamax standard, and then it will turn to a discussion on the application of the Betamax standard today, more than twenty years after it was first developed in
In 1969, Sony developed the Betamax, a video tape recorder that could be used at home to record television programs onto magnetic tape.(fn44) Sony began marketing the Betamax to the public for home use in 1975;(fn45) soon after, Universal and Disney filed suit. The claim against Sony was that Betamax users were infringing television and movie copyrights and that Sony was contributorily liable for that infringement.(fn46) The Court made two significant holdings with respect to fair use. First, the sale of equipment capable of copyright infringement is not contributory infringement if that equipment is capable of "substantial noninfringing uses.(fn47) Second, creating unauthorized copies of television broadcasts for personal use at a later time is a fair use of those broadcasts.(fn48)
1. Sale of Equipment Capable of "Substantial
Noninfringing Uses" Not Contributory Infringement
The Court's first conclusion, that the sale of equipment capable of "substantial noninfringing uses" is not contributory infringement, was based upon an analogy to patent law.(fn49) Because the Copyright Act...
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