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Perspective: The copyright conundrum

As the debate over digital copyright resurfaces, CNET News.com's Washington watcher Declan McCullagh explains why elected representatives have a rare opportunity to fix problems with the law.

Declan McCullagh headshot
Declan McCullagh
5 min read
WASHINGTON--The debate over digital copyright finally is returning to the nation's capital--and it's about time.

Last week, the Supreme Court kicked off its fall term by hearing a challenge to a law that extends the duration of all U.S. copyrights for 20 years.

And on Tuesday, James Rogan, Commerce Department undersecretary for intellectual property, will give a talk with the dead-giveaway title of "Reaffirming Intellectual Property Rights in an Information Age." Also this week, the Association Internationale pour la Protection de la Propri?t? Intellectuelle (AIPPI), devoted to promoting "the protection of intellectual property," is holding a two-day conference in Washington.

Copyright is anything but a novel topic for Washington's politicos. After all, the first copyright law was enacted in 1790, with major revisions coming in 1831, 1870, 1909 and 1976. Then came the No Electronic Theft Act (1997), the Digital Millennium Copyright Act (1998) and the Copyright Term Extension Act (1998).

Each of the three measures takes a different approach, but they have two things in common: First, they're designed to crack down on illicit copying through the Internet. Second, they wormed their way through Congress with scant opposition and often with unanimous votes.

Both sides of the debate are unhappy with this state of affairs. The copyright expansionists, led by the entertainment industry, want more laws and more power for holders. Lobbyists for the motion picture studios and the record labels are behind two important bills: The Consumer Broadband and Digital Television Promotion Act, which would forcibly implant copy-protection technology in electronic devices, and a peer-to-peer hacking bill, sponsored by Rep. Howard Berman, D-Calif.

The copyright reductionists, on the other hand, want their opponents to have fewer laws and far less power. Besides the Supreme Court case, they're pinning their hopes on a pair of newly-introduced "fair use" proposals introduced by Reps. Rick Boucher, D-Va., and Zoe Lofgren, D-Calif., that would make it legal to bypass copyright-protection mechanisms.

This renewed interest in copyright law could be a very good thing. The reason: More and more of what people do in real life--trading files on peer-to-peer networks and descrambling DVDs, for instance--has become illegal.

Both sides of the debate are unhappy with this state of affairs.
For example, did you know that under the No Electronic Theft (NET) Act, if you participate in a peer-to-peer network, you may be charged with a federal felony? The law says you could be "imprisoned not more than five years" if the MP3 or video files you trade have a total retail value of at least $2,500. If it's between $1,000 and $2,500, the prison sentence is a cushy one year. (An alternate interpretation of the law is that if you distribute even one MP3 with the expectation that you'll get music in return, you instantly qualify for the five-year trip to Club Fed.)

And did you know that under the Digital Millennium Copyright Act (DMCA), if you use DeCSS or a similar utility to descramble your legally-purchased DVD, you're guilty of a federal offense? Under the law, the Motion Picture Association of America (MPAA) or its member companies can get a court order to impound "any device or product that is in the custody or control of the alleged violator and that the court has reasonable cause to believe was involved in a violation." And that's not counting those pesky civil judgments and lawyer fees.

The problem is simple: Copyright law has diverged wildly from what the average Internet user and DVD owner believes it is reasonable to do. This can result in a dangerous and unstable situation, where the police have the legal authority to toss so many otherwise law-abiding people in prison. It creates contempt for the law and the courts. It's a throwback to Prohibition, when booze was illegal, but bootlegging was common.

In an excellent history of the 1920s, the Detroit News describes what happened after the 18th Amendment was ratified and Prohibition took effect. Because it was legal to sell alcohol in Canada, and the Detroit River was less than a mile wide in some areas, the area became a haven for smugglers. Illicit shipments were dragged underneath boats, enterprising fishermen used underwater cable systems to drag booze along the river bottom, and a pipeline even emerged--all despite the best efforts of federal agents.

Copyright law has diverged wildly from what the average Internet user and DVD owner believes it is reasonable to do.
So far we haven't seen a similar crackdown against peer-to-peer users, though all signs say it's coming soon. The U.S. Department of Justice, which would lead the charge, has been busy responding to the Sept. 11 terrorist attacks, but said in August that the department would begin to prosecute MP3 and video pirates. John Malcolm, a deputy assistant attorney general, said the Internet has become "the world's largest copy machine" and that criminal prosecutions of copyright offenders are now necessary to preserve the viability of America's content industries. "There does have to be some kind of a public message that stealing is stealing is stealing," said Malcolm, who oversees the arm of the Justice Department that prosecutes copyright and computer crime cases.

A few weeks before the August announcement, some of the most senior members of Congress pressured the Justice Department to use the NET Act to imprison peer-to-peer users who swap files without permission. The letter from Congress complains of "a staggering increase in the amount of intellectual property pirated over the Internet through peer-to-peer systems." Signed by 19 members of Congress, including Sen. Joseph Biden, D-Del., Rep. James Sensenbrenner, R-Wis., and Sen. Dianne Feinstein, D-Ca., the letter urged Ashcroft "to prosecute individuals who intentionally allow mass copying from their computer over peer-to-peer networks."

Don't get me wrong: Pirating music and movies instead of buying them is wrong. But should such piracy be punishable by five years in prison? Nope, because all punishment should fit the crime. Before the NET Act became law, copyright holders already had the power to sue suspected infringers in civil court, and if the NET Act were to be repealed, they would retain that right. Should copying a DVD to your laptop--so you can watch it while you're traveling--land you in hot water, as is now the case? Hardly.

Politicians' renewed interest in copyright creates a rare opportunity to try to fix some of the problems with existing laws and square them with reality. Let's hope Washington manages to avoid recreating Prohibition.