For more than 20 years, the copyright industry, the public, and others involved in creating and preserving works have followed the Sony Corporation of America v. Universal City Studios case which “found that a distributor cannot be held liable for users' infringement so long as the tool is capable of substantial non-infringing uses” (under the Ninth Circuit). Meaning that as long as the technology is capable of performing techniques that do not infringe any copyright laws, the distributor cannot be held responsible for what users do. On the other hand, if a device was sole purpose was to perform illegal procedures, the distributor could in fact be held, at least somewhat, responsible. Therefore, when the case of MGM v. Grokster was brought to court, official had to follow the example. In this specific case, “twenty-eight of the world's largest entertainment companies brought the lawsuit against the makers of the Morpheus, Grokster, and KaZaA software products, aiming to set a precedent to use against other technology companies (P2P and otherwise).” Interestingly, the court sided with StreamCast Networks, “the company behind the Morpheus peer-to-peer (P2P) file-sharing software,” thus not giving Hollywood what they “wanted – a veto over technological innovation.”
The ever changing technology and subsequent copyright laws are seriously affecting producers, consumers, and the market. Many of these cases are so technical and delicate, that it has become inevitable that someone is going to be unhappy with the outcome. The trick for copyright officials is to try and set some standard that applies to all devices, all copyright infringements, and all users and distributors. In an ideal world, this could all be possible. In the meantime, everyone involved must work with what they are given and find a way to revive the media industry against copyright pirates.
From October 4, 2004 until March 15, 2005, courts heard the arguments of the American Library Association (ALA) versus the Federal Communications Commission (FCC). The FCC hoped to pass a piece of legislation to have a broadcast flag placed in every digital television. These flags would signal that the taped program or a DVD being watched on a certain digital device was not legally copied. Flags would thus “not record or output an unencrypted high-def digital signal if the flag were set.” This may be a good idea in theory, indicating and preventing the viewing of not copyright, illegal materials. However, the court decided that “the FCC lacked [the] authority to regulate what happens inside your TV or computer once it has received a broadcast signal.” Upon the court’s decision, the FCC jumpstarted their latest endeavor of fighting to have legislation passed to give them the authority to regulate the digital television broadcast signal.
This original documentation gives insight that is otherwise excluded in summaries of the trial. The first-hand accounts give readers an opportunity to get the full effect of both sides of the argument. Though the FCC is adamant about implementing broadcast flags, it doesn’t seem to be in the public’s best interest to do so. “During the development of the broadcast flag, both before and after it was submitted to the FCC, the concerns of smaller innovators, libraries, archives, consumer groups and open source developers were ignored.” If either legislation is put into effect, not only will television be completely changed, but copyright laws will need to be updated in order to support this new technological development.
This blog is divided into three different parts that deal with distinct, yet related topics. Firstly, there is the issue of “preserving the quality of movies for fans like these and so many others, we must stop these Internet thieves from illegally trading valuable copyrighted materials online” (movies television shows aren’t mentioned, but the same is true). Strong ticket and DVD sales are likely with huge blockbuster films even with films that are illegal downloaded and distributed prior to actual theatrical release. Movies such as “Star Wars,” with huge fans, do not have to worry about the potential consequences. Films that don’t have a set fan bases are more likely to be affected by the illegal downloading process.
Secondly, the issue of the Boucher Bill is discussed. The U.S. Congress was sent a letter this past May arguing the passing of the Boucher-Doolittle Bill, saying “(1) that the legislation would “legalize hacking tools” and that (2) the bill misinterprets the 1984 U.S. Supreme Court Betamax decision.” However, that information was incorrect and opponents of the bill were quoting a previous year’s version. In actuality, this year’s version of the bill says that (1) “it would not legalize the manufacture, sale or other public provision of circumvention (or so-called “hacking”) tools” and (2) by directly quoting the Supreme Court’s Betamax decision, “it shall not be a violation of the Copyright Act to manufacture or distribute a hardware or software product capable of substantial non-infringing uses.”
Lastly, there is discussion of the FCC’s case arguing for the implementation of broadcast flags into digital television (DTV). “The core issue is consideration of the conditions under which broadcasters will turn off their current, over-the-air analog signal and replace it with a digital one.” Without the new, proper equipment, consumers’ televisions will no longer be in working order. The FCC wants to put broadcast flags in each individuals television to detected “what can be copied or transmitted, and under what terms.” The FCC court case was dismissed after the courts decided that the FCC did not have the power necessary to do what the intended. The FCC is now looking to implement legislation to give them the power they need. All in all, the broadcast flags will cost consumers a lot of money and the idea does not seem to be well received.
The sale of television shows on DVD has really taken off in the past few years. Interestingly, many being reproduced are shows that are in the public domain and are shows “on which not a penny of royalties is being paid to the creators or original distributors” (par. 2). Many of the shows in the public domain are classics “from the 1960s such as ‘Bonanza,’ ‘The Lucy Show,’ ‘The Rifleman’ and ‘The Beverly Hillbillies. Television copyrights “must be renewed every 28 years” and if they owner of the rights does not do that, then, television shows are placed into the public domain. Under these conditions, any person is free to package and sell those television shows as DVD box sets. These box sets can either be sold for extremely cheap or at the same price as licensed shows; the only difference is that shows still under copyright have to pay licensing fees, and are therefore not making as much money as the reproduced public domain shows.
One could ask if this entire concept is fair to the shows not in the public domain and paying fees. Any produced, and thus licensed, work can argue the pros and cons of the public domain, but without it there could be no protected works out of the public domain. Whether in the public domain or not, television shows are being reproduced onto DVDs, sold to the public, and bringing in legal income to companies. Rather than finding illegal ways of reproducing these classic televisions series, some fans and producers are willing to wait until they can be reproduced for a cheaper price, but still legally.
In a copyright infringement case, the judge ruled against the company Cablevision. Customers were given a DVR remote to store television shows where “the hard drive itself was stored on Cablevision property.” The courts decided that this made “Cablevision liable for reproducing and transmitting the programs without permission.” In other words, when Cablevision customers record television shows, no matter if they actually watch them or not (“buffer copies”), Cablevision is responsible for creating this “infringing copy.” Since all the saved programs are stored in Cablevision’s hard drive, the shows are then transmitted to the user after the broadcast, whenever they choose to watch their show. Thus, officials are claiming that Cablevision “needs to manipulate signals in order to record the shows a user has selected” and, in essence, calling the company a “broadcast pirate.” The Cablevision case “does nothing to curb piracy”; if anything it “discourages innovation.” Also, it seems that Cablevision did nothing to actually infringe any copyright laws, which “center not on the details of the machinery, but on how the rights in a work are affected.” This is a major problem for the officials who deal with copyright laws. If DVR and other recording techniques become so complicated and so afflicted with copyright laws, consumers may refuse to use them; thus, consumers would not be able to keep up with their favorite shows and probably never be willing to buy the DVD box sets later in life. These copyright laws could negatively affect the market more so than DVRS (what they see to be the problem in this case) ever would have.
Consumers using Cablevision were not affecting how the works were used, the general market was in no way affected, and there was no copyright infringement. Therefore, it seems that all this lawsuit did was enrage the public and prove that copyright laws are only “being used as a tool to scrape more money from wherever the studios can get some.”
In a recent case, television studios realized that a certain individual had gotten a copy of a number of episodes of the popular Fox television show 24. These episodes had yet to be aired, but were soon uploaded to the Internet. The individual was charged with “uploading copyrighted material…knowing the work was intended for commercial distribution.” The episodes were first uploaded to the website LiveDigital, but quickly reached YouTube, therefore both “were served subpoenas under the DMCA demanding they disclose the identities of the users who uploaded the episodes.” In this landmark case, the individual could receive a rather severe punishment. Not only were the uploaded episodes considered valuable because of the popularity of 24 and the fact they hadn’t been aired yet, but copyright officials are trying to use this case as an example for future pirates. Normally, Internet copyright infringement cases are taken up against “user share sites.” The fact that an individual did the same gives copyright officials more incentive to protect “‘the rights of the content owners who invest millions of dollars in a television series must be protected.’”
Twentieth Century Fox, who produces 24 and is a major studio in the television industry “hopes it [this case] will serve as a powerful warning that uploading copyrighted TV shows and movies to the Internet can be a crime with significant penalties and will be prosecuted as such. ”It seems fair to say that this particular studio is not alone in their beliefs. It also seems that the individual prosecuted in the 24 case is being so harshly is so that others will be deterred from attempting the same. Television copyright officials “have no choice but to take it seriously, because if they don’t catch it early, they won’t be able to stop it at all ’” Without enforcing harsh punishments, illegal downloading and uploading of copyrighted material will continue to the point that there will be no laws to prevent it or punish for it. Officials are implementing harsh penalties, but more importantly they are putting into effect laws that are current with the technology.
The Federal Communications Commission (FCC) petitioned to have “broadcast flags” placed in “all devices and receivers that are capable of receiving digital content. Such devices include, but are not limited to: televisions, computers, digital video-recorders (such as TiVo), and DVD players.” These flags are “a combination of technical specifications and federal regulations designed to combat unauthorized redistribution of content broadcast through digital television (DTV) signals.” Though the broadcast flags cannot prevent illegal distribution, they can stop consumers who purchase illegal copies from actually viewing the television show or movie that has been copied. However, individuals with older versions of specific devices “will still be able to receive and copy television programs in non-digital form.” Only devices and receivers that have transferred from analog to digital are capable of being flagged. The FCC made it clear that the institution of broadcast flags would not affect the current copyright law. Instead, officials “established [the flags as] a ‘technical protection measure’ that did not change the underlying ‘rights and remedies available to copyright holders.’” In the FCC’s official case against the American Library Association (ALA), the FCC was found to not have the power to implement broadcast flags in each individually owned device or receiver. Though this was the court’s decision, this judgment “did not address the imposition of the broadcast flag requirements in terms of copyright law.”
Though the broadcast flags would help stop viewers from watching illegal material, it would not prevent the production and distribution of television shows illegal put onto DVD. So while the FCC is trying to implement laws trying to “protect digital content,” pirates continue to mass-produce their goods. Television shows are still being illegally put onto DVDs, and others are still finding ways of watching classic, cancelled, or syndicated television shows in their original formats without paying for a DVD box set. While, the FCC had good intentions, they should instead focus their fight to the enforcement of copyright laws and try to be one step ahead of the pirates involved in reproducing television series.
There are many “legal issues facing copyright holders of television shows whose product is available online through modern peer-to-peer networks.” In the instance there is a copyright infringement in peer-to-peer file sharing, court cases are left to determine whether or not the fair use policy is applicable. It has been suggested that the fair use argument depends “on whether the end user downloads for a private viewing experience or whether the end user downloads and extends the use beyond mere private viewing.” In other words, the courts are responsible for determining whether the character of the television show has been changed from the original. If, in fact, individuals are downloading television shows with the intention of using it for more than just “a private viewing experience,” then the fair use argument is much less valid.
It is suggested that the television industry take as many anti-piracy precautions as possible, so to avoid the level of illegal downloading in the music industry. Though the fair use argument may prevail in some instances, the majority of copyright infringement and piracy cases cannot be explained by the fair use doctrine. Therefore, copyright laws need to be updated to cover the technology that pirates are using to download their favorite television shows. As the title suggests, individuals involved in these copyright cases need to prepare for the fact that the fair use argument does not work with television shows as well as it may with music.
High licensing costs are one of the many reasons that many former television shows are unable to be reproduced as DVDs. Shows that are actually released on DVD often edit the language or change the music, in order to abide by specific copyright laws. “And some shows, like WKRP [in Cincinnati], which is full of music, will probably never make it to DVD because of high licensing cost.” Not only are some shows not even able to reach the DVD format, but those that do are often different than the originals. In these cases, the fans of certain television shows are disheartened and upset. “The fans don’t want syndicated cuts. They don’t want the songs replaced. They don’t want anything censored for political correctness. They want to see it in the way they originally saw it broadcast, enjoyed it, and fell in love with.” Some shows have been released in full in other countries, and only limitedly in the United States, due to a difference in licensing fees. For example, “only selected episodes from the first season of Ally McBeal had been released in the United States because of the high cost of music licensing. But in the United Kingdom, where different licensing deals have been struck, viewers can order all five seasons.”
In some instances, fans are willing to wait long periods of until the studios strike a deal and the television shows are eventually released. However, other fans are neither willing to wait nor pay the money for a show that has been altered from the original. Similarly, some producers do not want their shows reproduced differently than the originals. Since fans are unable or unwilling to legally purchase original copies of their favorite television shows, some have taken to finding and downloading them illegally. As a result, many copyright laws and infringement cases have erected. The technology of the Internet moves at a much faster pace than many of these current laws; therefore, since fans have take to finding alternative means of watching currently syndicated or previously cancelled television shows, copyright officials must find ways to stop them.
Jon Johansen, from Norway, was tried and acquitted on charges “for writing a software tool that can be used to overcome anticopying technology built into most commercial DVDs.” At the time, Norway was being pressed to mimic the strict copyright laws of the United States. With stricter laws, officials can ensure sufficient punishments for violators rather than having the charges completely dismissed, as they were in this instance. Stricter laws would also give companies more power to better protect themselves from people caught or accused of copying media products. In the past, “court cases targeting alleged piracy have generally gone in favor of the content owners to date, but the industry is still on the defensive and needs to bolster legal victories with better antipiracy technology.” However, as of now, the current “DMCA-like laws are the entertainment industry's best hope of fending off a new era of digital piracy.”
Currently, copyright officials are in limbo between the former and future laws, thus making it difficult to try cases. This specific case helped bring officials’ attention to the fact that copyright laws dealing with the Internet and anticopying technology need to be updated and made universal. Having non-universal laws makes it easier for piracy to go unpunished. By implementing and enforcing stricter punishments, companies would not only have stronger defense cases against Internet pirates, individuals would be potentially deterred from ever downloading illegally (or attempting to decode encryptions) in the first place.