Copyright Context
Article I, Section 8, Clause 8 of the U.S. Constitution states that Congress shall have 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.'
However, the past 45 years have seen an unprecedented explosion of copyright extensions. As copyright critic and Creative Commons Founder Lawrence Lessig wrote in Free Culture, '[Since 1962] Congress has extended the terms of existing copyrights; twice in those 40 years, Congress has extended the term of future copyrights. Initially the extensions of existing copyrights were short, a mere one to two years. In 1976, Congress extended all existing copyrights by 19 years. And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress extended the terms of existing and future copyrights by 20 years.'
The 1976 extension also eliminated the need to file a copyright renewal, and after 1978, all copyrighted materials received the maximum term possible. Since more than 85 percent of copyright holders never filed for extensions, this meant that the average copyright period for material created by a corporation went from roughly 32 years before 1976 to a mandated 95 years today. For private work, the copyright was extended from the author's lifetime plus 50 years, to the author's lifetime plus 70 years.
However, in a nod to the Constitution's original intent 'to promote the progress of science and useful arts,' the Copyright Act of 1976 also mandated important copyright limitations, giving more legal standing to copyright infringements by codifying fair use -- the legal use of copyrighted work for purposes of criticism, comment, news reporting, teaching or research.
The Audio Home Recording Act of 1992 (AHRA) further expanded fair use rights, declaring, 'No action may be brought under this title alleging infringement of copyright based on the manufacture, importation or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.' As the Senate report on the AHRA further clarified, these exemptions are meant to cover any use 'not for direct or indirect commercial advantage.'
Regardless of the massive copyright extensions of the past several decades, between the 1976 and 1992 acts, it seems that many noncommercial and private uses of copyrighted materials, and most educational and research uses of these materials, fall into the fair use doctrine. Though many people question the elimination of the copyright renewal requirement; the increase from a 14-year initial period to an automatic 95-year copyright coverage; and the difficulties in promoting 'science and the useful arts' when the last year that copyrighted materials were in the public domain was 1923, an even more egregious undermining of fair use has quietly infiltrated the doctrine for the past decade.
Digital Millennium Copyright Act In response to lobbying efforts from copyright holders (e.g., the Motion Picture
Association of America, the Recording Industry Association of America, the National Association of Broadcasters, the American Society of Composers, Authors and Publishers, Broadcast Music Inc., the Society of European Songwriters, Artists and Composers, and Disney), Congress passed the Digital Millennium Copyright Act of 1998 (DMCA). Among the protections afforded to copyright holders, the DMCA criminalized the production and dissemination of technologies, devices or services that could be used to circumvent access control of copyrighted works (known as DRM), and also criminalized the act of circumventing access control -- even when there is no copyright infringement.
The DMCA created a legal loophole where copyright holders could infringe on the general public's fair use rights, and anyone circumventing this diminution of fair use rights could be fined 'not more than $500,000 or imprisoned for not more than five years, or both, for the first offense; [and] fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.' Alternatively a U.S. Department of Justice report found that the average time served in jail for 'violent offenders' (e.g., homicide, rape, kidnapping, robbery, sexual assault -- and who typically do not pay fines) was 43 months.
Combined with the systematic extension of copyright protection far exceeding average human life expectancy, the DMCA provides a dangerous precedent for undermining our ability to freely access constitutionally protected rights. Yet even this would not be enough to harmfully affect fair use.
The major dangers arise when DRM is built into the media we access and the hardware we access it on. The initial attempt to do exactly this was a resounding victory for fair use rights.
Digital Rights and Restrictions
In 2005, Sony BMG introduced DRM technology on more than 20 million CDs that automatically installed a software program on users' computers, limiting their ability to freely use their music.
'At issue are two software technologies, which Sony BMG claims to have placed on the music CDs to restrict consumer use of the music on the CDs but which in truth do much more, including reporting customer listening of the CDs and installing undisclosed -- and in some cases hidden files -- on users' computers that can expose users to malicious attacks by third parties, all without appropriate notice and consent from purchasers,' according to the Electronic Frontier Foundation
Basically Sony created a secret program that reported what users were doing. The program also disabled certain functions and hid itself from easy detection or deletion.
In addition to doing the functional equivalent of hacking into PCs to monitor activities, unlike traditional CDs, which once bought, are owned by the purchaser, Sony BMG attached a 3,000-word end user licensing agreement (EULA) that severely limited consumers' rights to make fair use of their purchased music.
According to the Electronic Frontier Foundation, Sony's EULA states that 'You can't keep your music on any computers at work. The EULA only gives you the right to put copies on a
