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This case was brought to raise questions about the legality and constitutionality of the Digital Millennium Copyright Act. The argument is that "the DMCA's anti-device provisions are not a valid exercise of any of Congress' enumerated powers," and that they also "violate limits on the scope of copyright protection required by the First Amendment." The first part says that the Intellectual Property Clause does not give the authorization that anti-device provisions give, which allow technology to be banned regardless of how the device is actually used. The second argument is that in the anti-device provisions, Congress overstepped the authority given by both the Intellectual Property Clause, and the Necessary and Proper Clause, and upset the balance created by the Intellectual Property Clause, resulting in the monopolies that the framer sought to avoid. The third argument is that the Commerce Clause does not empower Congress to override other constitutional constraints. The fourth argument is that anti-device provisions violate First Amendment Limits on the scale of copyright protection.
I am researching why copyright holders in the case specifically of major record labels are willing to waive their copyright in certain situations such as MP3 blogs while choosing to exercise the copyright in similar situations such as peer-to-peer file-sharing networks. The case is relevant although it is not about blogs in that it provides an argument against a proposed end goal for copyright holders, the DMCA's anti-device provisions. The argument is that it upsets the balance intended between copyright and censorship and monopolies. Anti-device provisions would ban many devices even with commercially significant uses and would contradict fair use and First Amendment arguments, and would effectively end any possibility for use of technology such as MP3 blogs.
This is a long essay about corporate power in the music industry. The argument is that cross-ownership in the media tends to reduce competition and increases profits, in turn, forcing music production to become increasingly uniform and profit driven, and harming artistic expression. It has descriptions of corporate sponsorship, and the loss of diversity. The next section is about Clear Channel Communications, and how the consolidation takes away jobs, excludes a large variety of music, and provides listeners with a biased source of information. Next, is the analysis of a recent hit, which examines the predetermined song structure which results in homogenized music and play lists, this is called the sound of corporate music. The conclusion suggests that a number of musicians would prefer to circumvent the bureaucratic systems of the industry, and that in order to preserve the artists ability to express sometimes controversial and diverse views, that musicians and the population at large would prefer legislation that moves away from monopolies.
This article is relevant to my research in finding out why copyright holders are willing to waive some of their copyright in such cases as MP3 blogs, which often involve unauthorized downloading of copyrighted work. In the conclusion of the article, it suggests that a majority of musicians are not so upset about free downloads and many who are independently minded, support distribution systems that are not connected with the industry devotion to profit. Some artists who want to make more controversial material release it for free on the internet. It also suggests that this is a reaction to media consolidation, and provides some argument that more copyright control leads to the growth of monopolies, and the limiting of new technology and expression.
Where copy protection goes wrong is that it takes away rights from the new digital author and monopolizes the protections of them for only a select few. Competing open DRM formats have begun to emerge to fill this gap. However, a young filmmaker needs to ensure that his video is as compatible as possible. He now has the choice between protecting his work but preventing it from being played on DVD players that don't support the new open formats (most of them), or exposing his work to piracy.
Gilmore's arguments shows a strong legitimate need for an open source developers to develop applications that might be in violation of the DMCA. An open source application might expose certain algorithms and codes, and even development of a closed source application would likely require breaking encryption at some point in the product's development. The courts and the copyright office generally use the phrase “mere inconvenience” and wave their hands at demonstrated harm to consumers not being able to access their digital content. However, requiring young authors to get picked up by a major licensed company in order to receive protection can hardly be so easily ignored. The best solution to lowering the barrier of entry for copyright protection is through an open source DRM standard that either is adopted by major players or at least cocurrently supported with their proprietary technologies.