The copyright boomerang

A new copyright law bans tools that "circumvent" copy protections. Does that make cutting and pasting illegal?

By Peter Wayner

Published November 20, 1998 8:00PM (EST)

The end of this legislative year was a great time for Hollywood studios, recording companies and similar big corporate content mills. At the end of October, the White House and Congress finally approved a controversial new copyright law called the Digital Millennium Copyright Act that includes changes the so-called content industry has long lobbied for: Among other things, the law makes it illegal to "circumvent" copyright controls. The ban covers not only the making of an illegal copy, but also the creation of tools that might help you make such copies.

The victory dance is likely to be short-lived, however -- because the content companies are about to discover that they're also the new law's main victims. These companies may love the part of the law forbidding illegal copies, since they're the main copyright holders. But the restrictions on tools are going to be a major headache for the artists in their stables. Content manipulation tools on the market -- like Adobe Photoshop, Avid's video editing software or many sound-editing programs -- will become less useful and begin to disappear, and the ones remaining will become more expensive.

Fritz Attaway, general counsel for the Motion Picture Association of America, says everyone in his organization is celebrating several long years of hard work to convince Congress that the legislation was necessary. When asked about the negative effects of the bill, he said, "I don't really see a downside." But real life laws rarely have such simple Hollywood outcomes.

How can the content industry be both victor and victim in this crazy case of regulation gone wild? Think about how artistic works are created: First, artists sit down with some tools; then they think deeply about the human condition and grouse a bit about how the world doesn't understand their perfect vision; then, when the deadline looms, they produce a work of some kind. The tools they use may be paint brushes, pencils, paper, videotape machines, film and a zillion other media -- including computers.

Every one of these tools can be used to make illicit copies. But the last is the one that upset Hollywood and the content conglomerates. The lawyers for the content rights holders realized that computers make it easy to produce perfect copies. Meddlesome kids were starting to use computers to make digital copies of songs over the Internet in much the same way that kids used to make cassette tapes.

Of course, the content industry lawyers didn't stop to think that their own artists used the same tools as those punk kids. In fact, the content mills might even do more cutting and pasting than the rest of the world put together.

"Films are released first in theaters, then after some time they're released on home video, then pay-per-view, then pay channel, then free TV. That's the distribution chain that lasts anywhere from two to four years depending on the film," Attaway says. "The reason that the distribution to the home comes so late on the distribution chain is because there's no way to date to prevent copying."

The content industry's solution is to push Congress to make laws against the business of making tools that can make copies. Now, thanks to the new law, anyone who makes a tool with the "primary purpose" of circumventing a copyright protection mechanism will face fines of "not less than $200 or more than $2,500 per act of circumvention, device, product, component, offer, or performance of service, as the court considers just." People who do this for commercial gain face fines of up to $1 million and up to 10 years in prison.

Hollywood is clearly taking aim at people like the garage electronics wizards who produce devices that descramble premium cable television services. The gadgets, which are often sold illicitly, make it possible to get HBO, Showtime or other expensive signals without paying for them. As the Internet evolves, there are bound to be more scrambling systems put in place, and Hollywood wants to be ready to prevent digital brigands from circumventing them.

But in this process Hollywood never really bothered to think much about who is really doing the most "circumvention" -- or what a tool for "circumvention" really is.

The best way for most readers to grasp this dilemma is to use the basic cut and paste or copy and paste features built into all Web browsers and computer systems. You can test this out by copying the text of this article and pasting it in, say, the window of a word processing program. (Don't paste a copy in your e-mail program and send it to a friend, though -- that would be violating the copyright.)The big content combines in Hollywood would like to believe that there's a way to distinguish between good cutting and pasting and bad cutting and pasting. This is probably a side-effect from watching too many of their own features from the 1950s, in which the characters' morality is established in the first two minutes of the film.To solve this problem, the content conglomerates are pushing technical solutions that essentially lock up artwork. Editing devices are supposed to look for a particular embedded no-copy mark and refuse to copy if such a mark is found. (Such marks are often dubbed "digital watermarks," and the term is apt because they are usually barely detectable.) Some of these features are already included in many lower-end editing tools and videotape decks. Only the "professional" ones that cost substantially more can slip around the restrictions. Adobe Photoshop, for instance, will now scan files to look for an embedded watermark that might identify the copyright holder. Today, it just provides the information; in the future it might simply refuse to let the artist do anything with the file.As the new law's restrictions begin to be built into all levelsof technology, the big copyright combines in Hollywood are going to start discovering how onerous the new limitations can be. Imagine some artist at Walt Disney is given the assignment of creating a box for holding the videotape version of some recent film, like "Pocahontas." In the past, the artist could take a copy of the DVD version of the film, stick it in a computer and cut and paste an image of Pocahontas from there.No one knows what will happen in the aftermath of the new bill. Devices and software are prohibited if they are "primarily designed or produced for the purpose of circumventing protection afforded by a technological protection measure that effectively protects a right of a copyright owner." They're also prohibited if they have "only limited commercially significant purpose or use other than to circumvent protection afforded by a technological protection measure." It is not clear what the software companies will do, but they may remove the feature that lets people take out still frames from DVD movies. The big content companies would probably be overjoyed -- this would stop those pothead kids from snipping out a picture of Pocahontas, sticking a joint in her lips and posting it on a Web site. Sure, a few technically savvy folks in Peoria would have trouble using recordable DVDs to distribute home movies, but that's not Disney's problem, right? In their eyes, the primary purpose to cutting and pasting from DVD movies is to interrupt the revenue stream of the major conglomerates. In essence, the bill is banning the creation of tools for picking the electronic copyright locks the content factories will stick on their products. Everyone knows that locks work fine in most cases, but there are always cases where locksmiths need to circumvent them. The bill seems to prohibit the creation of these devices.Attaway and others feel that this won't be a problem. Of course, he says, there will be tools for legitimate circumventing, "if people are authorized." But how will these tools manage to distinguish between the good circumventers and the bad ones?Attaway says he doubts this bill will have any effect on the marketplace for editing tools. "I don't think anyone on the content side thinks that those types of devices will be prohibited," he says.At the same time, one of the MPAA's sister industry groups, the Recording Industry Association of America, is continuing to press to stop the distribution of the Rio, a digital music player manufactured by Diamond Multimedia. Although the Rio can only play back digital MP3 recordings, it must copy the music data from the Net to its internal memory in order for you to listen to a track -- and the association was trying to stop its distribution even before the new law came into effect. While Attaway doesn't see the lawsuits coming, who knows what others will try to do with the new legislation behind them?All of this litigation and regulation is bound to make the marketplace for editing software more restricted. Fewer small companies will enter the arena with neat tools for fear of being sent to prison for 10 years; others will struggle to devise and implement new kinds of tools for automatically distinguishing between the right and wrong kinds of cutting and pasting -- and between good and bad users.This will drive up the prices of editing software dramatically. First, the greater complexity will make life harder for the programmers who write the software, who will now have to integrate copyright juggling mechanisms into all levels of the editing tools; second, the smaller "legitimate" marketplace will mean fewer sales over which to amortize development costs.And who knows how that poor graphic artist at Disney is going to get a picture of Pocahontas to use for the package? Maybe Disney will keep a special computer that acts like a vault for storing versions of its properties that aren't copy protected. That graphic artist may be able to get access after going through the proper channels -- but the artist for McDonald's working on a cross-licensing deal will have a harder time of it.Maybe Disney will try to buy special, super-secret tools for unlocking the copy-protected images. These master keys are going to have to be even more carefully guarded than non-copy-protected content. If they slip into the hands of the pirates, so much for the copy protection system. It's likely that the content conglomerates won't even know why their development costs will skyrocket in the future. The companies are vast organizations in which the attorneys pushing for more and tougher laws are disconnected from the artists struggling with the tools they need to create. The MPAA, the RIAA and the other content-industry lobbies are going to crow about their legislative successes. In the meantime, the graphic artists, the film editors, the sound editors, the commercial creators, the marketing staff and practically all of the employees on the content assembly lines are going to be walking a few extra hallways, signing a few more forms, taking a few more data-juggling steps before they can get their work done.Another way to think about this is by looking backwards through time at how new copying technologies spurred the development of the content industry itself. In the Middle Ages, monks copied sacred texts by hand. The movable-type printing press led to a profusion of books. Now, after the development of the photocopy machine, the fax machine and the Internet, a wider selection of books is more widely available to more people than ever before, and mega-bookstores proliferate. As copying became easier and easier, in other words, the content conglomerates only grew bigger and more profitable. Why would they want to turn back the clock now?

Peter Wayner

Peter Wayner has several large Pascal applications he needs to rewrite.

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