An Unpleasant Equilibrium on Copyright Protection

Today I’m going to ask a hard question I don’t have an easy answer for.

How do you protect digital copyright without controlling technology?

That’s the question in a host of new court cases, where copyright holders expect the Digital Millennium Copyright Act of 1998 to keep people from writing and distributing software.

When Congress was debating the DMCA it created some exceptions to a general rule against writing or passing around copyright-cracking software, although it’s important to note that such a rule now exists.

If you’re trying to make sure your stuff fits with someone else’s stuff you can take protection apart to see how it works. There’s also a “fair use” exception similar to the one that lets you photocopy a page from a library book. And Internet service providers also have protections so they won’t be held liable for what their users do, so long as they act when they get notice.

A law that makes software illegal is certain to be tested. Supporters of DeCSS say they were just building a Linux DVD player, and had to crack DVD encryption to make one. The makers of Napster, a program that enables the trading of MP3 files, now say they’re an ISP.

Despite their numerous victories in court battles, the plain fact is copyright holders have lost the war. Millions of people have downloaded the DeCSS code. Napster is so popular many colleges have banned it because the trade in music was hogging their bandwidth. And now reports are surfacing of a program that will do to movies what Napster did to music.

What makes this difficult is we’re all on both sides of the question. The story you’re reading is copyrighted material. So is everything I write. I want my rights protected, but since these files are small they’re very easy to pirate.

Many people I know have had entire sites pilfered and posted under others’ names, often in foreign lands. The most popular (and effective) response has been to complain to the thieves’ ISPs. The sites seldom last long, because the thieves can’t come up with new stuff.

Microsoft and other software companies have fought piracy for decades. One big reason China is still having trouble getting into the World Trade Organization has been the issue of software piracy. Microsoft has also become expert in the technical means of fighting software piracy. The fight against software piracy has become an industry in its own right.

Of course, the software industry is trying to use the DMCA just as the music and movie businesses are, fighting any use of the Internet that might enable copyright infringement. The most controversial such case may be Mattel’s fight to keep contents of its Cyberpatrol program from being seen.

The lesson of the past is that even when courts hold software illegal, it seems, the market fights back. An unpleasant equilibrium is eventually established. Most of us try to acknowledge most copyrights most of the time. It’s an equilibrium I’ve learned to live with. It may be the best the software, music and movie industries can do.

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