An Industry Unwilling to Play by Rules of ‘Fair Use’

Scarcely a week passes without the entertainment industry warning us that its business model is about to be exterminated by some new technology.

The Internet, satellite radio and TiVo are among the mortal threats that have sent media executives scurrying to Washington with proposals to rein them in, tax them, even ban them. The music labels, TV networks and movie studios never propose to alter their own models to accommodate new technologies -- they merely insist that everybody else change to accommodate them. When they don’t get their own way with lawmakers, they take it out on consumers.

The most brazen recent example of the latter approach was a copy-protection program that Sony BMG Music Entertainment added to 52 of its CD titles by artists ranging from Sinatra to Van Zant. When any of these CDs was played on a personal computer, it secretly installed software designed to prevent copying of the disc. But the program also surreptitiously transmitted data to Sony about what was on the PC, rendered it vulnerable to hackers and was configured to wreck the machine if the owner attempted to uninstall the program.

After all this was exposed this fall, Sony recalled the CDs and gave buyers a safe way of eradicating its coded mole. (The label still faces lawsuits, and possibly government action, in the matter.)

Sony’s rationale was that the ability to make flawless reproductions and distribute them over the Internet could destroy its business. It’s not alone in exploiting this supposed threat as a pretext for imposing new limits on what consumers of CDs, DVDs, TV programs and books can do with them.

To this end, DVDs bought in one country sometimes can’t be played on players bought in another. Buyers of songs from Apple Computer’s iTunes Music Store are subject to tight restrictions on how often they can copy the songs to CDs or computers. Hollywood is asking Congress for restrictions on the design of TV recorders like TiVos, so that consumers will have to pay a fee for each recorded show.

Plainly, the media companies are engaged in an all-out attack on the principle of “fair use.”

Fair use is a legal limit on the rights of copyright holders. It’s a compromise: In return for the exclusive right to profit from the initial sale of a work for a given term (in the U.S., up to 70 years after the death of the creator), the copyright holder allows some non-commercial copying, limited quotation by critics, parodies and a few other uses.

Media companies detest fair use. They regard your ability to make a backup copy of a CD as a lost opportunity to sell you a new disc. They worry that a song parody by “Weird Al” might be mistaken in a store for the real thing. They don’t understand why a critic with the knives out for a book should be permitted to quote from it in a review. If they had their druthers, you’d pay them a few bucks every time you played a DVD at a party or put songs on a mix CD to give to a friend.

Fair-use rules are constantly changing because new uses keep emerging, and then landing in court. In perhaps the most famous case, the Supreme Court ruled in 1984 that recording a TV show at home to watch later, or “time-shifting,” is fair use. The justices rejected the movie studios’ demands for a ban on the pioneering Betamax videocassette recorder and for damages from Sony, its manufacturer. (This was years before Sony, as a copyright owner, landed on the other side of the fair-use debate.)

The next court case might well involve Google Print, the search company’s proposal to scan the full texts of millions of published books into its database. A search would return only a few sentences of context on either side of a search term, but the publishing industry has already called this process a potential copyright violation.

It’s true that copying entertainment content is much easier today than it was in the days of analog LPs and audio cassettes. Back then, you couldn’t easily distribute copies of a song or movie to millions of strangers. Moreover, every copy you made was less crisp than the original.

Today, a digital copy of a digital content file is identical to the original and every file can be exposed almost instantaneously to the entire world online. That’s a prospect the entertainment companies say could cost them billions.

Yet, it’s a mystery why anyone believes the entertainment companies’ claims about their losses from online piracy, given their record of ludicrously inflating the dangers of earlier technologies.

Consider the studios’ long campaign against home VCRs. In 1982, Jack Valenti, then president of the Motion Picture Assn. of America, wrote himself into the history of cocksure misprediction by warning a congressional committee that “the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.” He demanded a steep tax on recorders and blank tapes, to compensate for the damage they would do to Hollywood.

We all know the punch line: The movie industry survived, nay, thrived in the VCR era. Most VCR buyers used them exactly as the Supreme Court anticipated -- to tape TV shows for viewing a few hours later. Rates for commercial airtime didn’t fall, and the VCR didn’t make free TV disappear.

Are today’s technologies any different? CD sales have declined in the years since free file sharing became possible, but there’s evidence that this has more to do with the dearth of exciting new acts than with Napster and its successors. Bootleg songs and video clips often enhance, not suppress, interest in the commercial product.

The industry wants our money, but they also want to dictate all the ways we can use their products once we own them. As the copyright expert Lawrence Lessig says, this “permission culture” will only make us less free. In short, the media moguls are making arguments that we shouldn’t buy.