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The Sound of One Computer Copy
National Law Journal - November 2, 1998

DO YOU FEEL IT-- the paradigm shift in copyright law? Jonathan Band does. He's a partner in the Washington, D.C., office of San Francisco's Morrison & Foerster L.L.P. who was involved in the recent passage of two major pieces of copyright legislation.

"I think the entire tenor of the discussion of intellectual property in the past couple of years reflects a paradigm shift in Congress," he says. "There used to be a time when copyright was viewed in the same skeptical light that all other monopolies were."

The Constitution gives Congress the power to provide copyright protection "for limited times" to promote "the progress of science and useful arts." The basic working principle was that "monopolies are typically bad things, so Congress needed to limit them," says Mr. Band. But with the recent passage of the Digital Millennium Copyright Act and the Copyright Term Extension Act--two bills that Congress threw on the president's desk before heading home for the November elections--the focus has shifted, says Mr. Band, from "giving minimal protection to works to providing maximum revenue flow to American companies," he says. "This has become a jobs issue."

Copying Hits Home

As computers, the world's greatest copying machines, proliferate, the operation of copyright law hits home--or the office--as never before. People copy the look and feel of others' Web sites and e-mail copies of newspaper articles around the globe. Humorist Dave Barry, whose columns appear at www.sacbee.com/voices/national/barry, says sometimes his columns are e-mailed back to him, stripped of his byline but bearing a message reading, "Dave--thought you might get a chuckle from this." Some copyright law changes were necessary in light of global technological changes.


The Digital Millennium Copyright Act accomplishes four things, explains Mr. Band. First, it implements the World Intellectual Property Organization treaties, thus harmonizing U.S. copyright law with international law. Second, the DMCA establishes "safe harbors" for online service providers who unknowingly transmit copyrighted works. Third, the act permits the copying of software during computer maintenance. Finally, the DMCA facilitates Internet broadcasting.

But tucked into the DMCA is a prohibition of attempts to circumvent high-tech protection devices that are placed on a work to shield it from unlawful copying. The prohibition is so broad that many exceptions had to be carved out--for law enforcement, for example--but it is as if the provision stated that no one can ever break open a lock on a safe.

Mr. Band, who represents companies developing products designed to work with existing computer programs, objects that there are no "fair use" exceptions to allow minimal copying for lawful purposes, much as parts of a book may be reprinted in a book review.

"At the hearings, [an executive from the Recording Industry Association of America] said, 'That's a small price to pay to prevent piracy of our works overseas.' And that was accepted by the [House Judiciary] Committee as a good answer," marvels Mr. Band.

As the Recording Industry Association of America, or RIAA, was fighting on Capitol Hill, it also filed a case of first impression in federal district court in Los Angeles. The suit, Recording Industry Association of America Inc. v. Diamond Multimedia Systems Inc., 98-8247, will require Judge Audrey Collins to decide whether a new music- playing device violates the 1992 Audio Home Recording Act.

RIAA and the Rio

The device, called Rio PMP 300, or Rio, downloads music stored in MP3 file format--the most popular music format-- from the Internet to a computer, and then plays back the music. The Rio, which is portable, also allows users to convert CDs to MP3 format and to play back those files. On Oct. 16, the RIAA obtained a temporary restraining order. A hearing is scheduled for Oct. 26 to determine whether the ban on the sale of the device should be extended.

Cary H. Sherman, RIAA general counsel in Washington, D.C., says, "We've never filed a suit like this before. Record companies have benefited...from technology." But unlike tape and video recorders, says Mr. Sherman, new tools can and should distinguish between authorized and unauthorized works, using watermarks and file header data. A Rio makes no distinction.

* * * 

On Oct. 13, freelance writers, in Ryan v. Carl Corp., won a copyright suit in San Francisco federal district court.

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This article is reprinted with permission from the November 2, 1998 edition of The National Law Journal. © 1998 NLP IP Company.


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