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.
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.
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.
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.”
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.