Study Guide:: Fair Use and Technology  

Patents and Copyright Laws

Fair Use and Technology

Study Guide

Definitions and History
Ethico-Technological Stormfront
Industry Strikes Back
Case Studies in new media technologies


  • Fair use: the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
  • MPAA: Motion Picture Association of America 
  • RIAA: Recording Industry Association of America 
  • DeCSS: De-Content Scrambling System. Software created by a 16 year old linux user to play DVD's on his linux computer. (Linux has no officially supported DVD players.) 
  • SDMI: Secure Digital Music Initiative. 



    Whenever there is an unexpected or unforseen evolution in technology, or an adaptaion of existing technology, corporations want to be able to profit from it. Alot of the argument for fair use lies within control. By trying to make it illegal to view legally purchased DVD's on unlicensed DVD players, the MPAA illustrates that the issue isn't about copyright infringement, it's about control. Since the corporations aren't profiting from selling a player as well, they clearly show that they want to gain profit from every angle. They are, in effect, trying to make it illegal to view legitamate "fair use" copies (very similar to VHS and Betamax) of DVD's on players they didn't make. If this trend continues, one day, you might have to have a DVD player created by Paramount to view Paramount movies, a Warner Brothers DVD player to view Warner Brothers DVD's, etc.

    Music faces virtually the same fate if the SDMI ever officially takes off. Restricting legitimate rights might seem trivial now, when only "small rights" are being fought for. If the trend continues, however, then one day you might have a stack of music players, or dvd players on top of each other in your entertainment room, just to play a wide variety of studio's releases.

The Approaching Ethico-Technological Stormfront

Here's ethical stormfront we're facing: 

    "The information age is not about technology. It is about information -- about content. [...] Media technologies are only means of delivering -- and selling -- words, pictures, and sounds. [...] Whoever controls the content controls the medium. Is that control to lie in the hands of the suits at Disney, whose sole concern is maximum profits for shareholders? Or is it safer [with] the individual creators, whose income depends solely on their reputation for accurate, high-quality work?" [from "Copyright and Author's Rights", Creator's Copyright Coalition]
The stakeholders in this entire arena of intellectual property, copyright law, and fair use and copy protection technology can be summed up in three sets: the Authors, the Publishers, and the Users. Authors create the content, Publishers market the content, and Users buy the content. For an excellent exploration of the interplay amongst these groups, please see The Great Internet Panic: How Digitization is Deforming Copyright Law" by Anne Fujita.

Wendy Grossman notes that: 

    CPRM uses the technology to embed the interests of powerful organizations [directly into a product] without public discussion. Lawrence Lessig, a professor of law at Stanford University, points out in his book Code and Other Laws of Cyberspace that technology, far from being neutral, is designed with assumptions that wind up controlling what we do and how. In this case, what is being embedded--in removable media, if not permanent media--is the presumption that we are guilty until proven innocent. [Grossman, SciAm 03.2001]
The dilemma is, the Publishers who sell the content are creating the medium, and by restricting the capabilities of the medium they are restricting the excercise of legal fair use by law-abiding Authors and Users. Any ethical debate needs to reconcile this fact: Authors and Users tend to be individuals (or cooperative and often publicly open groups, such as music bands or libraries), with all the problems and resource limitations that living and breathing bring; while Publishers tend to be huge corporations with resources infinite by comparison, and without needing to worry about food and shelter.

Ethically, who has higher priority? Who has it legally? And who has it technologically?

Fair Use v. Industry:
The Industry Strikes Back

Our focus here is the Publishers and their technological means of circumventing the rights of Authors and Users. The most obvious technological weapons are "copy protection" or "content protection" schemes that inhibit the unlicensed copying of the content

So what's wrong with copy protection? John Gilmore of the EFF gives a good overview of the situation. To sum up his arguments, there's nothing wrong with copy protection as long as the Users are aware of their rights. Copy protection becomes problematic when:

  • Competing products are driven from the market
  • Companies don't disclose copy-protection restrictions
  • Scientific research is unpublishable (see the SDMI Case Study)
  • Competition is prevented
  • Abuse of "copyright protection" rewards monopolies
  • Social policy is created without public input
  • Copyright's balance of benefits is lost
  • Beneficiaries are a tiny fraction of society

  • "Why should self-interested companies be permitted to shift the balance of fundamental liberties, risking free expression, free markets, scientific progress, consumer rights, societal stability, and the end of physical and informational want? Because somebody might be able to steal a song? That seems a rather flimsy excuse." ["WWwCP", John Gilmore]

Case Studies in New Technologies
  • Betamax: Sony's Betamax was challenged by Hollywood in an early trial between copyright law and new technology in 1984. The Supreme Court decided time-shifting TV programs (by extension, recording streaming Internet videos for later offline viewing), a possibility introduced by the Betamax technology, is an application of fair use.

  • DVD and DeCSS: Reverse engineering is okay when it's your car, and you want to install a new stereo or a different engine. But the DMCA doesn't allow you to write a program to play your DVD on that new computer. Not even if you're just a bright fellow trying to see if you can watch that DVD on your unsupported OS. Here's the story of DeCSS, which the DVD CCA claims incorporates stolen CSS technology, despite an army of academics pointing out scads of ways to defeat the encryption.

  • HDTV, or other forms of Digital TV, in which the FCC is taking some interest. Congress set a deadline for digital television to replace analog TV when 85 percent of U.S. consumers have compatible sets, or by 2006, whichever is later. Public voices largely consider a forcible switch from analog to HDTV a bad thing, due to higher costs of HDTV sets, incompatibility issues with older machines, and the standard's image quality problems.

  • Peer-to-peer filesharing: Everyone knows Napster, the first major peer-to-peer filesharing technology designed to allow Users to share their music collections. After the RIAA v. Napster decision, peer-to-peer technologies must consider copyright law and prevention of copyright infringement.

  • CPRM, or Content Protection for Recordable Media, is a specification created by IBM, Intel, Matsushita, and Toshiba designed to encrypt content and prevent copying. It was proposed to be required in all hard drives, DVD, Flash memory, or other removable media. The initial CPRM proposal was withdrawn, then another, subtler specification was submitted. Grossman's editorial focused on CPRM.

  • SDMI: The Secure Digital Music Initiative is an industry consortium developing an RIAA-approved audio format (like an MP3 with built-in copy controls). In September 2000, SDMI challenged academics to test proposed security techniques, for a $10,000 prize (including required non-disclosure agreements against publishing results). A group of Princeton researchers defeated the security and are publishing their results to the academic community. SDMI seems to be floundering now, but the issues and dangers remain.

  • DRM:
  • Digital Rights Management is a new type of software being developed by several different vendors to allow restrictions on viewing different types of media. Both SunnComm and MacroVision are leading producers of this sort of technology. Even though new technology is being worked on constantly, nothing is one hundred percent fool proof, as Microsoft's latest hacker hunt shows. The problem with new technologies like this is that they often have many technical problems and are subject to consumer scruitiny. Despite these short comings though, Microsoft and other companies continue to persue the dream.
  • Hardware Solutions:
  • Many of the devices in existence today are meant to make our life easier. MP3, DVD, and CD players were all designed with either portable or convenient access to multimedia in mind. Because of these ideas several technologies now have the ability to record media in high quality formats. In order to stop the casual copying of lots of this media DRM, SDMI, and CPRM technologies are working together to hardwire copyright law into our every day devices. One such technology built with this in mind was High Definition Television and the IEEE 1394 (Firewire) standard. Both of these technologies have encryption and detection algorithms built into them to keep media secure.
  • Consumer Dissatisfaction:
  • In order to be useful in protecting media all of these new technologies must pass consumer scrutiny. If the technology is hard to use, causes problems, or is majorily opposed chances are that it will fail. In order to test the waters various manufacturers must release a sample product. And even during the test phase problems arise and law suits are filed.
  • New Legislation:
  • New legislation to combat media piracy is being suggested every day. Such legislation has advantages and disadvantages. Many groups such as the RIAA and MPAA are in favor of almost every available technology, as long as it's not vendor specific. On the opposing side though many groups don't wish their rights to be further restricted with new legislation such as the SSCA (Security Systems Standards and Certification Act). As with every law, the pros and cons must be carefully measured and weighted.


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