Freedom vs. Control:
Private Copying And Technological Protection Measures

Tricia Mohan



I. Introduction

The Internet revolution promised the public unbridled access to a wealth of information on a scale previously unimaginable. At any time and from any place, each person would be able to pore through scores of libraries and entire archives of culture around the world. Unfortunately, this vision of an information oasis may soon become a mirage. In fact, access to information on the Internet may be even more controlled in the future than it is now. For fear of rampant piracy, copyright holders are urging legislatures to enforce tighter copying controls for on-line information. In particular, they are advocating the use of technological protection measures to halt piracy. However, these technological protection measures threaten to restrict, if not eliminate, legal private copying rights that consumers have enjoyed for decades. Today, consumers can tape a television program or copy a CD onto an MP3 player. However, as information is increasingly transmitted over the Internet, technological protection measures may prevent consumers from making such copies for private use.

There are currently several technological protection measures under development. Many of these are already in the market and affecting consumers' rights. One such protection measure is Cactus Data Shield, which was recently acquired by the American company Macrovision from its developer, the Israeli company Midbar. The company estimates that its encryption system has been used so far in 45 million CDs throughout the world. Another protection measure is Key2Audio, which was developed by Sony DADC, a branch of the Japanese company based in Austria. Key2Audio was last used in CDs released in Europe by Céline Dion and Shakira. In addition, other companies such as Microsoft are also developing their own technological protection measures.

The following article will demonstrate how technological protection measures are threatening to gain a greater legal foothold in the US at the expense of private copying rights. In particular, it will show how copyright holders are employing technological measures as a mechanism of control in a campaign to secure all potential commercial profit derived from their works. In the course of this analysis, the article will examine the legal basis for private copying, legislative attempts to establish technological protection measures, arguments against technical controls and the role of consumers' rights. Finally, it will compare consumers' rights threatened in France to those already in danger in the US to demonstrate how French copyright law is creeping closer to its American counterpart.

II. The Genesis of Private Copying: The Birth of Consumer Rights

An important part of the battle waged between consumer advocates and copyright holders over private copying has been fought over definitions. Over the past decade, content owners have systematically sought to equate any unauthorized use of copyrighted works with piracy in an attempt to gain complete control over their property. In the US, this semantic battle has found its expression in the statutes as lawmakers have added about 100 pages to the US Code, justifying the additions as loophole closers. These additions have served to narrow the previously legal exceptions for private copying to such a point that in many cases they are no longer legal. Since private copying is not an affirmative right, but rather an exception to a right, content owners have come close to eliminating it by narrowing its scope. It is, however, still important to consider the roots of private copying's past definition before analyzing copyright holders' legislative attacks against it.

American law, such as the US Copyright Act, does not contain a general exemption for private copying. Instead, the justifications for private copying are buried in the Constitution, the doctrine of fair use, the Audio Home Recording Act of 1992, and the Supreme Court's 1984 Sony v. Universal City Studios decision.

A. The US Constitution

The US Constitution allows for copyright "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." In short, the need for copyright is based less on protecting the author's moral rights to his or her own work, like it is in continental countries, but more in creating a "bargain in which the public grants limited exclusive rights to authors as a means to advance the public interest." The drafters of the Constitution recognized that without compensation, few authors would find it worthwhile to create new works. Copyright promotes society's interest by giving authors an economic incentive to create, which fosters more new works, and consequently more new ideas. Yet, an author's monopoly over his or her own ideas can prove to be pernicious to a society's progress as well. Consider, for example, a situation where writers must forever compensate authors for quoting their work. This would likely create an economic disincentive to write derivative works, such as parodies or news reports that would not be in society's interest either.

B. The Fair Use Doctrine

The balance sought in the Constitution between the author and society is embodied in the fair use doctrine, which was encoded into law as a counterweight for the exclusive rights granted to authors in the Copyright Act of 1976. The doctrine states that it is permissible to make unauthorized copies of authors' works without infringing on copyright if used for the purposes of criticism, comment, news reporting, teaching, scholarship, and research. The fair use doctrine created a four-pronged test to determine whether the copying is infringing or not:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

A professor who copies a chapter of a book while researching a class he or she is teaching is protected under the fair use doctrine. However, not all research is automatically protected. For example, in American Geophysical Union v. Texaco Inc., a Texaco researcher was found guilty of copyright infringement when he photocopied pages from a journal for his research. The court ruled that Texaco reaped at least "some indirect economic advantage from its photocopying" even though it was not directly connected to the company's commercial goals.

2. The nature of the copyrighted work

The Ninth US Circuit Court of Appeals cited this prong when it found that a computer game's code was not entirely protected as only part of the code was creative and the rest was functional. The Court explained its decision by stating "The protection established by the Copyright Act for original works of authorship does not extend to the ideas underlying a work or to the functional or factual aspects of the work."

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

This prong allows writers to quote from books without having to pay separately for each quote. Since writers only use a small section of the book, perhaps a number of sentences out of several hundred pages, they make a fair use of the copyrighted work.

4. The effect of the use upon the potential market for or value of the copyrighted work.

Finally, this prong directly relates to many of the most contentious issues surrounding digital copyright. A&M Records, Inc. v. Napster, Inc. illustrates on a large scale how unauthorized copying can potentially affect the market for a work. Napster aided people in posting MP3 versions of songs, which were then copied hundreds of times by people all over the world. The music industry alleged this copying decreased the global market for their songs. The Supreme Court also determined that each of these prongs should be accorded equal weight in Campbell v. Acuff-Rose Music.

C. The Audio Home Recording Act of 1992

In addition to the fair use doctrine, private copying is also permitted through the Audio Home Recording Act of 1992. Section 1008 of the Act states that "[n]o action may be brought" alleging infringement of copyright "based on the noncommercial use by a consumer of such a [recording] device or medium for making digital musical recordings or analog musical recordings." According to the Act, CDs must be coded so that they can be copied. In return, royalties on digital audio devices and all media blanks used in the device are collected and distributed to music publishers and artists. In effect, this bargain means that copyright owners cannot "preclude consumers from making a first-generation, digital-to-digital copy of an album on a compliant device using royalty-paid media." However, this is precisely what copyright owners are doing when they place technological protection measures on CDs.

D. Sony Corp. v. Universal City Studios

Finally, the Supreme Court further bolstered private copying with its decision in Sony Corp. v. Universal City Studios. In this case, Sony was accused of aiding in copyright infringement because their VCRs were used to make unauthorized copies of television programs. However, the Court found that VCRs were lawful because they have a substantial non-infringing use. Unlike pirates, most people did not copy hundreds of videos for resale. Instead, many people copied programs for legitimate purposes such as time-shifting. An example of time-shifting occured when a child legally taped the children's television show Mr. Roger's Neighborhood, which was broadcast during school hours. Thanks to the VCR, the child did not have to miss the show, but could watch it later at a more convenient hour. In fact, Fred Rogers, President of the corporation that produces Mr. Roger's Neighborhood, testified in favor of permitting such time-shifting non-commercial uses. Consequently, the Court found that where the copyright holder, like Fred Rogers, does not object, temporary private reproductions of free broadcast television programs constitute fair use.

A second justification for private copying called place-shifting is partially implicit in the Sony judgment. The idea underlying place-shifting is that where one has lawful access to the work, there may be an implied right to enjoy the work in a manner convenient to the consumer. This understanding encompasses more than a simple enjoyment of the work at a more convenient time (i.e. time-shifting). Instead, it is a statement of user autonomy that allows consumers to enjoy a work free from the author's surveillance. In this view, the consumer is not required to enjoy a work in a particular device designated by the author, but can copy a song from a CD to an MP3 player, or can make an extra copy on audio cassette to play in his or her car.

III. Technological Protection Measures and Legislation: The Long Road from the World Intellectual Property Organization to Fair Use Amendments

Before the digital era, copyright holders remained relatively quiet on the issue of unauthorized copying for several reasons. First, the copying did not occur on a large scale in the US. Furthermore, copies made from analog cassettes or VCR tapes were inevitably of a lesser quality than the original, and each successive copy decreased in quality. The copying was thus considered de minimis, since it did not significantly affect the potential market for the copyrighted work, and therefore did not run afoul of the fourth prong in the fair use doctrine.

However, in the Internet era, every copied digital file is perfect, and each copy can spawn thousands of other perfect copies. Content owners fear that just one private copy of a digital file uploaded on the Internet can destroy the entire market for their work. In essence, they fear private copying because its potential effect is the same as the effect of piracy. This explains the entertainment industry's stance that unauthorized copying and piracy are both illegal, as demonstrated by Hilary Rosen, a representative of the Recording Industry Association of America, in her testimony before the Senate Judiciary Committee. When she spoke before the committee, she claimed that it was illegal to copy a CD to play in the car, despite the Audio Home Recording Act's provisions for non-commercial copying of music. According to Rosen, while the copying was never legal, the industry simply tolerated the practice because its economic impact on the music industry was minimal. But now, the music industry has begun pursuing unauthorized copying on CD sales in court because the copying's effect is substantial.

Additionally, in recent years, the entertainment industry has gone beyond attempting to root out all unauthorized copying in courts. It has sought and obtained legislation to legitimize technological protection measures it hopes will halt all copying. In essence, they have made it illegal to make tools that could produce an unauthorized digital copy, regardless of the tools' original intended purpose. The legislative path that has led to this state of affairs in the US will be examined in the following sub-sections.

A. The World Intellectual Property Organization Copyright Treaty of 1996

The threat to consumer rights posed by technological measures can be traced back to the WIPO Copyright Treaty. Article 11 of the treaty states that "[c]ontracting parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors" and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law. The US, in its ratification of the WIPO treaty, interpreted the protection of technological measures called for by Article 11 so broadly that the law now threatens consumers' rights. This misinterpretation will be demonstrated below in the analysis of the ratification treaty.

B. Digital Millennium Copyright Act of 1998

The US ratified the WIPO Copyright Treaty with the Digital Millennium Copyright Act (DMCA). In what seems like a misinterpretation of the WIPO Copyright Treaty, the DMCA affords far more than adequate legal protection and effective legal remedies for technological protection measures. Instead, the DMCA's protection of technological measures is far-reaching, covering ten pages of the statute. The DMCA does contain exceptions for fair use. However, the wording of much of the statute tends to minimize their utility to such an extent that in some cases they cannot be used as a defense for private copying. Consequently, since its inception, consumer groups have widely criticized the DMCA for limiting fair use rights.

The main criticisms can be summarized under three points. First, the DMCA's ban on circumventing technological protection measures severely hampers the work of scientific researchers, especially encryption researchers. For example, in 2002, the Institute of Electrical and Electronics Engineers, which produces 30% of the world's literature in its field, temporarily stopped accepting papers that could be prosecuted under the DMCA. Second, the DMCA's ban on circumvention threatens the legal basis of consumers' fair use rights, such as place shifting. Simply put, if it is a crime to circumvent technological protection measures and there is no way to copy a CD for private use without circumventing these same measures, then effectively fair use rights are meaningless. Third, the DMCA's ban on the production of hardware or software capable of circumventing technological protection measures, regardless of their intended purpose, can interfere with the efficient workings of the market. For fear of prosecution, software manufacturers may avoid entering markets where their products may be construed as allowing an infringing use.

C. Consumer Broadband and Digital TV Promotion Act of 2002

The Consumer Broadband and Digital TV Promotion Act, introduced by Senator Fritz Hollings (D-SC), was drafted in the same vein as the DMCA. Where the DMCA promised that the effective protection of copyrighted digital works would result in a flood of new digital works being released on-line, Hollings' bill promises that increased protection of copyrighted works on-line will lead to greater confidence in and subscription to the new broadband and digital TV technologies. However, despite its claim to protect the rights for legitimate consumer copying in the home, Hollings' bill will only further restrict consumers' rights to make private copies.

The bill proposes to prevent the illegal retransmission of content over the Internet by requiring all digital receivers, recorders, and players to come equipped with a government technology standard. Only content coded with the same government technology standard could then be played on the device. Additionally, all digital content delivered over the Internet and on broadcast networks would contain information for consumers about their ability to copy the available content. To prevent illegal copying or distribution, digital media devices such as televisions, cable boxes, and personal computers would be manufactured to recognize and respond to those instructions. In a nod to fair use, the bill requires that security measures allow one copy for lawful use in the home, excluding pay-per-view programming.

There have been many criticisms of Senator Hollings' bill since its introduction last year. First, the bill assumes the government will act quickly enough to develop and introduce a technology standard applicable to all proposed media devices. As Hollings' languishing House bill demonstrates, speed is not one of the government's strong points. If the bill were to pass, the protection measures it advocates may already be outdated by the lightning-speed pace of technological development. In addition, involving the government in developing a technology standard inevitably drags politics into the equation. In such a case, the danger exists that the most advanced technology standard will be defeated by the most politically palatable standard. After all, politics is often an art of compromise, and technology may also have to take a back seat to compromise in this arena. In contrast, if the technology development were left to market forces, it is more likely that the best technical standard would succeed.

Second, the Hollings bill assumes that the technology standard it requires will work. What if it does not? A bugged technology standard would make it very difficult for honest consumers to make any copies of legally acquired works. The bill insists that the technology standard it proposes is technically feasible. But what if its development proves to be expensive and raises the price of media players while lengthening their product development cycles? The bill may also prevent software manufacturers from developing better and newer technology standards for media devices simply because they do not conform to government-imposed standards.

Finally, the bill's consumer copying provision does not assure consumers that they will be able to make full and fair use of the digital content they purchase. For example, the bill does not allow more than one private copy from each product. If a consumer bought a CD, he or she could not make a copy for both an MP3 player and a personal computer. Instead, he or she would be forced to choose between listening to the CD while jogging or while on-line. This control on the number and nature of private copies narrows fair use rights. Neither the Audio Home Recording Act nor the fair use doctrine limit private copying to one copy per product.

D. Digital Media Consumers' Rights Act of 2003

In direct response to the negative effect of the DMCA and the Consumer Broadband and Digital TV Promotion Act on consumers' rights, Congressman Rick Boucher (D-Va.) introduced the Digital Media Consumers' Rights Act this year. While Boucher's bill only addresses technological protection measures indirectly, it proposes direct amendments to the DMCA to restore fair use rights. First, the bill addresses the fact that many CDs are now released with technological protection measures designed to limit the ability of consumers to play or record them on personal computers. The Céline Dion CDs released with the Key2Audio technology mentioned earlier illustrate this problem, as they can neither be copied nor played on PCs or Macs. A CD that cannot be copied breaks the agreement reached in Section 1008 of the Audio Home Recording Act, which collects royalties for the entertainment industry in exchange for the consumers' ability to copy works at home. The bill tackles copy-protected CDs by requiring CD labels to inform consumers if their fair use rights will be restricted by the technological protection measures encoded in the product. The information that must be printed on the packaging includes any restrictions on the number of times a song file may be downloaded to a computer and the minimum recommended software requirements for playback of the songs on a computer.

Congressman Boucher's bill also proposes three amendments to the DMCA to restore the legal standing of fair use. His first amendment would make it legal to circumvent a copyright protection system if the sole purpose is to contribute to scientific research. The second amendment would permit circumventing technological protection measures in order to access works for a non-infringing purpose. For example, under this amendment it would no longer be illegal to circumvent the technological protection measures on a DVD only to play it on a Linux-based computer. The final amendment would address the problem of new technologies that could potentially circumvent copyright protection systems. This issue already surfaced in the courts last year when US v. Elcom Ltd. illustrated how a technology marketed for a purpose other than piracy can eventually be prosecuted under the DMCA. The software in the Elcom case was taken off the market, and so too could any other software that is accused of copyright infringement. Claiming that the current legal standard is too subjective to give software manufacturers confidence when introducing new products, Boucher would like to permit technologies that have a substantial non-infringing use. This amendment would bring the DMCA back in line with the Supreme Court's Sony decision, which established the substantial non-infringing use standard when it judged VCRs to be legal.

IV. Technological Protection Measures: Troubles Beyond Legality

While consumer advocacy groups have spent much time criticizing the laws that legalize technological protection measures, the controls themselves are not above reproach. In fact, there has been a great deal of controversy about their feasibility. In November 2002, John Halderman, a computer science researcher at Princeton University, showed delegates at a digital copyright conference in Washington, DC that technological protection measures are fundamentally misguided. In his research, Halderman examined three of the major copy control systems and found that all of them rely on the same mechanism to fool computer CD drives. Furthermore, hardware manufacturers can easily overcome this mechanism.

The copy-protection system employed on CDs relies on differences in the way tables of contents are created on CD-RWs and on regular CDs. On a regular CD, there is only one table of contents inscribed at the very beginning of the CD. CD-RWs on the other hand contain several tables of contents, as a table is added to the CD each time new information is recorded on it. Therefore, a computer CD drive reads only the last table of contents when it plays the CD. Copy-protected CDs work by including one correct table of contents at the beginning of the CD, and adding several error-filled tables after it. In this way a regular CD player, which only reads the first table, will play the music correctly, but a computer CD-drive will not be able to play the music. Copy-protected CDs not only affect computer CD-drives, but some audio and car CD-players, which also happen to read CDs the same way computer CD-drives do. This means that unfortunately some honest consumers are punished for being unlucky enough to buy the copy-protected CDs. However, CD copy-protections are not difficult to circumvent. In fact, the copy-protection can easily be thwarted by computer designers, who need only make a small modification to the way their drives read CDs to eliminate their effectiveness.

CD copy-protection systems are not the only technological protection measures that have failed to be completely secure. Content Scrambling System (CSS), the technological control that codes most commercial DVDs and all DVD players, was notoriously cracked by a Norwegian teenager, Jon Johansen. In November 1999, the young man reverse engineered a DVD he had bought to play on his Linux-operated computer, an act that is technically illegal under the DMCA, but for which he was recently acquitted in Norway. Despite being cracked, the system is still being used to encode DVDs. Since Johansen's software (DeCSS) has been available on the Internet for the past four years, CSS itself has been neutralized as a deterrent to piracy. Why then is it still used in DVD manufacture?

It turns out that despite being cracked, CSS is still valuable as a licensing tool to the companies that created it, Matsushita Electric Industrial and Toshiba. Both companies hold certain intellectual property rights in the code, though its use is royalty-free. This means that manufacturers who would like to encode CSS on their DVD players or DVDs must obtain a license. In turn, Matsushita and Toshiba can employ their licensing agreement as a control mechanism to restrict consumers' use of DVDs and to influence DVD content. In fact, the license serves as the justification to place commercials in non-skippable FBI warnings and to enforce the regional playback control.

The first type of control inserts movie previews and commercials in the same track as the FBI warning, which is legally required on every DVD sold for home viewing purposes. Since these tracks cannot be skipped under the law, consumers have no choice but to watch the commercials before viewing their movie. The second control prevents DVDs bought in one part of the world, for example Europe, from being played in DVD players that are bought in another part of the world, for example North America. The playback control was justified by the following reasons. First, it is often true that more than one company owns movie distribution rights in various countries. Second, the movie industry employs a staggered release schedule that often sees a movie debuting in theaters in one corner of the globe, while the DVD is already released in another part of the world. In essence, the playback control would limit consumers' ability to enjoy their movies in a manner of their choosing.

However, the movie industry's playback control idea hit a snag with computer DVD drives. Many computer companies have worldwide distribution networks and ship the same drives all over the world. The computer industry balked at designating particular DVD drives for a particular region of the world at the time of manufacture so that the regional playback control would work. Computer manufacturers' reluctance to the regional playback control was overcome by the CSS license. Since most DVD players are encoded in CSS, the movie industry employed their CSS license to require that computer DVD players request consumers to set them for a particular region when they are first used. Under this system, a consumer would need two DVD players to view movies bought in France and films purchased in the US. This limits the consumer's freedom to enjoy movies as he or she pleases and runs counter to the ideals behind place-shifting.

The CSS example also illustrates another major argument against technological protection measures. The measures remove the author's control over his or her work and give a monopoly over the form and content of the work to software makers. That is to say, the control of the work now lies in the contractual relations between the inventor of the technical measure and the creators of the program that reads the measure. This is especially so if access to digital works is only granted through a particular creator-approved software or hardware. In the case of the CSS license, makers of DVD players and the owners of the CSS license decide how movies are encoded, what devices can read the movies, and when consumers can view them. Authors do not participate in this extra layer of control.

V. A Question of Users' Rights: The Fight to Copy Unsupervised

According to Jessica Litman, law professor at Wayne State University, there has been an evolution in conventional thinking about copyright since 1995. Copyright is less about incentives today than it is about control. The present mainstream opinion about copyright is that the Constitution permits and may even require Congress to grant authors exclusive rights to their writings, and, in a digital age, that means giving authors control over access to their works. This control does not just encompass the initial access to a work, but extends to cover every subsequent act of gaining access to the work. This philosophy is sustained by the idea that content owners have a right to profit from their works in every way possible. However, as noted earlier, the Constitution's justification for copyright is rooted in the need to support the progress of science and creativity. Giving copyright holders complete power to permit or prevent any use that might undermine their control is deleterious to science. The emergence of technological protection measures in the copyright world is just a symptom of this larger trend.

In reaction to copyright's increasingly restrictive nature, consumer advocacy groups are pushing harder to make users' rights affirmative rights, rather than copyright exemptions. The advocacy group DigitalConsumer.org has drafted a Bill of Rights that addresses many of the issues brought up in this paper:

1. Users have the right to time-shift content that they have legally acquired.

2. Users have the right to space-shift content that they have legally acquired.

3. Users have the right to make backup copies of their content.

4. Users have the right to use legally acquired content on the platform of their choice.

5. Users have the right to translate legally acquired content into comparable formats.

6. Users have the right to use technology in order to achieve the rights previously mentioned.

In addition to consumer advocacy groups, scholars have also supported the idea of a law of users' rights. According to this view, copyright was never intended to create and guarantee profit, only to protect the work in the marketplace.

The idea itself of framing copyright as a mechanism of economic forces has only become popular in the last thirty years or so. Briefly, this view of copyright assumes that content owners have thus far been willing to tolerate unauthorized copying because they could not prosecute each and every consumer who indulged in the practice. The costs of prosecution were prohibitive and the process too complicated. Wendy Gordon, Professor of Law at Boston University, is most often credited with first proposing this view of copyright, which has since come to be called the market failure justification for private copying. However, technology has developed rapidly since the market failure theory was first propounded and now copyright holders argue that it is technologically feasible to create licensing agreements on an individual basis with each and every consumer. In such a situation, copyright holders who do not acknowledge the legality of any unauthorized copying, can justify their current aggressive tactics to limit such copying by legislative means.

The introduction of America Online's new MusicNet service in March 2003 demonstrates how copyright holders hope this individual licensing will develop. The service allows consumers to rent songs or, for an extra fee, to download them permanently onto a blank CD. This kind of service is marketed directly to the user and each download adds to the profit of the service provider. Consequently, any unauthorized copying of a CD, such as transferring a file to an MP3 player, necessarily hits the music publisher's bottom line. Still, this further highlights the need to consider whether it is really in the public's interest to give content owners complete control over every use of their work, or whether consumers should have the right to use legally acquired works more flexibly. The Supreme Court's Sony decision addressed neither the issue of permanent private copies of legally acquired works nor copies of paid transmissions. If a consumer downloads songs from AOL's website onto a blank CD, the service does not allow him or her to make a private copy of the downloaded songs for MP3 players. Yet, under the first sale doctrine, the copyright owner's rights in the physical copy stop with the sale of the copy; thereafter, my rights as chattel owner permit me to dispose of my copy as I will.

VI. Technological Protection Measures in France: Will the Spirit of the DMCA Reappear?

Since the nature of the Internet is global, it is not surprising that other countries around the world have reacted similarly to the dilemma of private copying. France, a country with very different exemptions for copyright, is also a signatory to the WIPO Copyright Treaty. However, it is about four years behind the US in its Internet legislation, so the same consumer issues that have been discussed in this article with regards to American fair use are only now just being publicized in France.

A.Private Copying in France

In French law, private copying has been a stated exception to the exclusive rights an author possesses over his or her work since 1957. It is applicable in two situations:

1. Private and gratuitous performances carried out exclusively within the family circle.

2. Copies or reproductions reserved strictly for the private use of the copier and not intended for collective use, with the exception of copies of works of art to be used for purposes identical with those for which the original work was created and copies of software other than backup copies made in accordance.

This first situation occurs when a husband buys a Céline Dion CD and makes an extra copy of it for his wife or daughter. Referring again to music CDs, the second situation takes place when a consumer copies a CD onto an MP3 player. The above exceptions for private copying do not apply to databases or computer programs, although it is permitted in the case of computer programs to make back-up copies. Naturally, the private copying exemption only applies to legally acquired works. Another important point to note is that it is technically possible, under this exception, to make an unlimited number of personal copies as long as they are all for private use.

As a counterweight to the exemption for private copying, French lawmakers passed the Lang Law to recognize copyright holders' concerns that unauthorized copying skims their revenues. At the time, the cost of negotiating contracts with each user for each individual transaction was prohibitive, so the law substituted the author's exclusive right to distribute his or her work (droit de divulgation) with a right to compensation. The Lang Law established a remunerative tax on blank materials used for copying purposes. The tax was initially placed on blank audio and video cassette tapes. However, in January 2001, in an attempt to compensate authors for the losses they sustained due to Internet copying, the tax was extended to include materials used in digital copying such as CD-RWs and Minidiscs. The proceeds from the tax are allotted to artists' societies, which then redistribute the money to their members. The yearly rate of taxation is established by the Brun-Buisson commission, a group composed of copyright holders, representatives from the industry, and consumers. Presently, the tax can amount to 50% of the price of blank copying materials. The tax on blank CDs, for example, is equal to 0.56 Euros, and in 2002, the tax collected 140 million Euros.

However, in recent years, the digital era has threatened the status quo established by the Lang Law. As mentioned above, the technologies necessary to negotiate individual licenses for each user are now feasible. Companies such as MusicNet and America Online are introducing new services that negotiate individual licenses with consumers. In view of the new technological reality, authors can now reassume their distribution rights. However, the Lang Law could be outdated when the ability to negotiate individual licenses became so efficient that unauthorized copying was replaced by marketing individualized products directly to the consumer.

Additionally, the Lang Law is being criticized for blurring the line between illegal and legal copies, that is to say, between piracy and private copying. The fear embodied in this criticism is that eventually consumers will believe any kind of copying is legitimate as long as a tax is paid on the blank materials used for the copying. In France, the justification for copyright comes from an author's moral rights to his or her work. One of these rights, the droit de divulgation, allows the author to choose when or if he or she would like to publish a particular work. This right would be completely negated if consumers took it upon themselves to make unauthorized copies whenever they wished.

B. European Copyright Directive of 2001

While the DMCA ratified the WIPO Copyright Treaty in 1998, the equivalent legislation in Europe, the European Copyright Directive (EUCD), was passed in May 2001. The EUCD states in Article 6.1 that member States shall provide adequate legal protection against the circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective. Similar to the DMCA, the EUCD offers protection for technological protection measures in article 6 that is far greater than that required in the WIPO Treaty. The EUCD has no requirement to show that a person intended to infringe on copyright. This means that circumventing technology to make a private copy at home, something that as noted earlier is legal in French law, could now be considered illegal.

This increased protection of technological protection measures prompted Lawrence Lessig, an American law professor, to condemn Article 6 of the EUCD. He says that it makes for a situation where Code is Law. Due to article 6, software, and not the law, controls what can and cannot be done in the digital world. The EUCD added an impenetrable layer of legal protection on top of ‘protection measures' [with which] the large publishers have been given a carte blanche to write their own copyright law. In actuality, the EUCD is legislating that the EU sign away its power to control the delicate copyright balance between society and author. As was demonstrated earlier with the example of CSS, the real control over the distribution, content, and form of the works would now be found in the contractual relations between the creators of the technical control and the copyright holders, not in the hands of the authors.

C. Avant Projet de Loi

On December 5, 2002, the French government presented a work document for a bill to implement the European Copyright Directive in French law. The work document follows the EUCD's lead in legitimizing technological protection measures at the expense of private copying. Similar to some provisions of the DMCA, Article 14 of the document outlaws the circumvention of technological protection measures. Many consumer advocacy groups see this law as a continuation of the misinterpretation of the WIPO Internet Treaties that began with the EUCD. In that tradition, the bill is overbroad in its protection of technological protection measures. Article 8 of the document permits copyright holders to legally place technical protection measures on their works. Critics argue that this article would grant technological protection measures a legal acknowledgement that they do not currently possess. Furthermore, it legitimizes these controls without addressing how to guarantee consumer and private copying rights. These are the same rights that the DMCA has threatened in the US.

VII. Conclusion

In a recent article for Le Monde, Michel Alberganti questioned the oft-proclaimed link between decreased CD sales and piracy. His article quotes 2002 sales figures from the Recording Industry Association of America, which show that industry sales as a whole lost 9.2% of their value during the first quarter of the year, while sales in France actually rose for that same period by 5.2%. Similarly, sales in Brazil rose by 7.1% and sales in Chile rose by 29% compared to the previous quarter. This demonstrates that the impact of piracy can be minimal depending on the country and the year examined. In Alberganti's opinion, the variability in CD sales has more to do with the quality and price of the music industry's product than private copying. In other words, good music translates into high sales and bad music does not.

Instead of trying to control consumers' behavior with copyrights and technological protection measures that are inevitably circumvented, the industry should be trying to develop new economic models that will actually appeal to consumers' tastes. To some extent the industry has already done that. For example, despite the fact that the DVD's copy-protection code has been available on-line for the last four years, DVD sales themselves are explosive and have driven real growth in the movie industry. More recently, the music industry has sought to appeal to new markets by introducing products superior in sound quality to CDs and MP3s. New Super Audio CDs and DVD-Audios, with graphics and music, are currently being introduced on the market to re-release classic albums.

In the end, the entertainment industry needs to find an economic model that strikes a balance between consumers' need for flexible, convenient access to works and content owners' need to make a profit. This may mean, in the case of the music industry, placing entire inventories of music on the Web for permanent portable downloading at a reasonable price, while significantly decreasing the price charged for music. In the long run, such an action would probably be in the interest of both copyright holders and consumers.


Copyright © 2003 World Jurist Association. All rights reserved. Reproduced with permission. Use of this material does not imply endorsement of the World Jurist Association.


1 Estelle Dumont, Droits d’auteur: un avant-projet de loi remet en cause la copie privée [Author’s Moral Rights: A bill that places the spotlight on private copying], ZDNET France, Dec. 5, 2002, available at: http://news.zdnet.fr/story/0,,t118-s2127034,00.html.
2 Id.
3 Id.
4 Id.
5 Christophe Guillemin, Copie privée: MPO-Online commente son partenariat avec Microsoft [Private Copying: MPO-Online remarks on its partnership with Microsoft], ZDNet France, Jan. 21, 2003, available at: http:// news.zdnet.fr/story/0,,t118-s2129033,00.html.
6 Jessica Litman, The Demonization of Piracy, Apr. 6, 2000, available at: http://www.law.wayne.edu/litman/papers/demon.pdf (p. 7) (presented at the CFP 2000: Challenging the Assumptions, Tenth Conference on Computers, Freedom and Privacy, Toronto, Canada).
7 Id. at 2, n.2.
8
9 Hereinafter the terms content owner and copyright holder are used interchangeably.
10 Jane C. Ginsburg, Authors and Users in Copyright, 45 J. Copyright Soc’y U.S.A. 1, 11 (1997).
11 U.S. Const. art. 1, § 8, cl. 8.
12 17 U.S.C. § 107 (1976).
13 17 U.S.C. § 1001 (1992).
14 464 U.S. 417 (1984).
15 U.S. Const. art. 1, § 8, cl. 8.
16 Litman, supra note 6, at 4.
17
18 17 U.S.C. § 107.
19 Imfeld, supra note 8, at 113, n.9.
20 60 F.3d 913 (2d Cir. 1994).
21 Id. at 921.
22 Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510, 1524 (9th Cir. 1992).
23 Joe Kraus, Testimony to the House Energy and Commerce Committee (Apr. 25, 2002), available at: http://www. digitalconsumer.org/testimony-20020425.html.
24 17 U.S.C. § 107.
25 284 F.3d 1091 (9th Cir. 2002).
26 John Borland, Lawmaker Renews Anti-Copying Criticism, CNET News.com, Mar. 13, 2002, available at: http://www. digitalconsumer.org/testimony-20020425.html http://news.com.com/2100-1023-858991.html?tag=bplst. In a letter to Representative Boucher (D-Va.) in February 2002, Hilary Rosen wrote "[w]hile no doubt there are a number of factors to explain the current economic plight of the music industry, there can be no question that mass copying, free distribution and piracy are causing significant damage to those who create and market music". Id.
27 510 U.S. 569, 578 (1994).
28 17 U.S.C. § 1001 (1992).
29 Id. § 1008.
30 Letter from Representative Rick Boucher (D-Va.) to Hilary B. Rosen, President and Chief Executive Officer, Recording Industry Association of America, and Jay Berman, Chairman and Chief Executive, International Federation of the Phonographic Industry (Jan. 4, 2002), available at: http://www.house.gov/boucher/docs/riaaletter.htm.
31 Id.
32 Id.
33 464 U.S. 417 (1984).
34 Id.
35 Id. at 445.
36 Id. at 446.
37 Ginsburg, supra note 10, at 12.
38 Id.
39 Id. at 12.
40 Id. 11, n.37.
41 Id. See also, 17 U.S.C. § 107.
42 Charles C. Mann, Hatch Warns Labels, Don’t Make Me Come Over There and Spank You, Inside.com, July 11, 2000, available at: http://www.inside.com/.
43 Id. See also, 17 U.S.C. § 1008.
44 See A & M Records, Inc. v. Napster, Inc., 284 F.3d 1091 (9th Cir. 2002); U.S. v. Elcom Ltd., 203 F. Supp. 2d 1111 (N.D. Cal. 2002).
45 See Imfeld, supra note 8, at 125.
46 Litman, supra note 6, at 8.
47 World Intellectual Property Organization Copyright Treaty, Dec. 20, 1996, available at: http://www.wipo. int/treaties/ip/wct/index.html.
48 EUCD.info, Les dommages économiques et sociaux de l’article 6 de l’EUCD [The social and economic damages of Article 6 of the EUCD], Jan. 30, 2003, available at: http://eucd.info/eucd.fr.php.
49 Id. art. 11.
50 17 U.S.C. § 101-105 (1998) (codified as amended in scattered sections of 17 U.S.C.).
51 17 U.S.C. § 1201.
52 See Imfeld, supra note 8, at 125.
53 Id. at 125.
54 Id. at 112.
55
56 Kraus, supra note 23.
57 S. 2048, 107th Cong., 2d Sess. (2002).
58 Id. § 2.
59 Id. § 3(e)(2).
60 Id. § 3.
61 Id.
62 Id.
63 Id. § 3(e)(2).
64 Kraus, supra note 23.
65 The Consumer Broadband and Digital TV Promotion Act was introduced in the House on March 21, 2002 and has yet to pass a year later.
66 Id. § 2.
67 Kraus, supra note 23.
68 H.R. 107, 108th Cong., 1st Sess. (2003).
69 Id. § 5.
70 Rachel Gader-Shafran, Confessions of a Serial Infringer: Can the Audio Home Recording Act of 1992 Protect the Consumer from Copy-Protected CDs?, ABA Section of Intellectual Property Law Newsletter, Vol. 21, No. 2 at 10, n.15 (2003).
71 17 U.S.C. § 1008.
72 H.R. 107, § 24A.
73 Id.
74 Id. § 5(a).
75 Id. § 5(b)
76 U.S. v. Elcom Ltd., 203 F. Supp. 2d 1111 (N.D. Cal. 2002). The case began with Elcomsoft, a Russian software company, manufacturing a software program that permits consumers to circumvent the technological protection measures in Adobe’s e-book software. Originally, Adobe’s software left the control over consumer copying rights in the hands of the publisher, who could decided if or how much copying would be permitted to the consumer. Elcom’s software allowed consumers to print, save or transfer the books as they liked without the publisher’s permission.
77 H.R. 107 § 5(b).
78 Sony Corp., 464 U.S. at 456.
79 Barry Fox, Copy-protection on CDs is "worthless", Newscientist.com, Nov. 6, 2002, available at: http://www.newscientist.com/news/news.jsp?id=ns99993020.
80 Id.
81 Id.
82 Id.
83 Id.
84 Id.
85 Id.
86 Timothy L. O’Brien, Norwegian Hacker, 19, Is Acquitted in DVD Piracy Case, N.Y. Times, Jan. 8, 2003, at C4.
87 Id.
88 Dean S. Marks and Bruce H. Turnbull, Technical Protection Measures: The Intersection of Technology, Law and Commercial Licenses, Dec. 6 and 7, 1999, available at: http://www.wipo.org/eng/meetings/1999/wct_wppt/pdf/imp99_3.pdf (p. 15). The study was written for a workshop on implementation issues of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. At the time, Marks was Senior Counsel for Intellectual Property at Time Warner Inc. and Turnbull was Partner at Weil, Gotshal & Manges, LLP.
89 Id. at 15.
90 Id. at 16.
91 Id. at 17.
92 Kraus, supra note 23.
93 Id.
94 Marks and Turnbull, supra note 88, at Annex C.
95 Id.
96 Id.
97 Id.
98 Id.
99 Loïc Dachary, Menace sur la copie privée: désir de monopole? [Threat on Private Copying: A Desire for Monopoly?], ZDNet France, Jan. 20, 2003, available at: http://news.zdnet.fr/story/0,,t235-s2128963,00.html.
100 Id.
101 Litman, supra note 6, at 5.
102 Id. at 6, n.14.
103 Id. at 6.
104 Id. at 4.
105 Id. at 7. See also, Imfeld, supra note 8, at 125 for an explanation of the effect of section 1201 of the DMCA on encryption researcher’s work.
106 DigitalConsumer.org, Bill of Rights, Mar. 14, 2002, available at: http://www.digitalconsumer.org/bill.html.
107 See generally, L. Ray Patterson and Stanley W. Lindberg, The Nature of Copyright: A Law of Users’ Rights (1991).
108 Id. at 193.
109 See generally, Wendy Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and its Predecessors, 82 Colum. L. Rev. 1600 (1982).
110 Davie Pogue, The Internet as Jukebox, N.Y. Times, Mar. 6, 2003, at G1.
111 Ginsburg, supra note 10, at 11.
112 Pogue, supra note 110.
113 Ginsburg, supra note 10, at 13.
114 World Intellectual Property Organization Copyright Treaty, Dec. 20, 1996, available at: http://www.wipo.int/treaties/ip/wct/index.html.
115 Code de la propriété intellectuelle L.122-5 (Fr.), translation available at: http://www.legifrance.gouv.fr/html/codes_traduits/cpialtext.htm.
116 Id.
117 Id.
118 Id.
119 Law No. 85-660 of July 3, 1985, (Fr.), available at: http://www.legifrance.gouv.fr.
120 Id.
121 Id.
122 Id.
123 Id.
124 Que Choisir, Menaces sur la copie privée [Threats on Private Copying], Union Fédérale des Consommateurs – Que Choisir, press release, Dec. 5, 2002, available at: http://www.quechoisir.org/Position.jsp;jsessionid= FEMTC0TNIMG0ZLDIBZQF4SQ?id=Ressources:Positions:B4717A5CF3E56342C1256C8600425A93.
125 Jean-Paul Geai, Oui au copiage, non au piratage [Yes to Copying, No to Piracy], Union Fédérale des Consommateurs – Que Choisir, Editorial, Mar. 2003, available at: http://www.quechoisir.org/Position.jsp; jsessionid=CYYXQRZ3XOE5A0JYEXVXJEY?id=Ressources:Positions:40101A9DBB230A7FC1256CCD004FAEF7.
126 Council Directive 2001/29/EC On the harmonization of certain aspects of copyright and related rights in the information society, May 22, 2001, available at: http://register.consilium.eu.int/pdf/en/01/st03/03622en1.pdf.
127 Id., art. 6.1.
128 See EUCD.info, supra note 49.
129 Eurorights.org, Why the EUCD is Bad, available at: http://www.eurorights.org/eudmca/WhyTheEUCDIsBad.html.
130 Id.
131 Document de travail CSPLA, Dec. 5, 2002, available at: http://www.planetelibre.net/article/cspla/doc.txt.
132 See EUCD.info, supra note 49.
133 Document de travail, supra note 131.
134 Id. art. 8.
135 See EUCD.info, supra note 49.
136 Michel Alberganti, CD, DVD: les vertus du piratage privé [CD, DVD: The Virtues of Private Piracy], Le Monde, Jan. 27, 2003, available at: http://www.lemonde.fr/article/0,5987,3232--307008-,00.html.
137 Id.
138 Id.
139 Id.
140 See Eric Hellweg, Who Wins as DVD Sales Soar?, Business 2.0, June 20, 2002, available at: http://www.business2.com/articles/web/0,1653,41560,00.html. According to the article, in 1999, the home video market was experiencing low single-digit growth. Thanks to DVD sales, the growth increased to double-digit figures in 2001.
141 Wilson Rothman, Beyond the CD: A Bid to Burnish Records’ Sheen, N.Y. Times, Mar. 13, 2003, at G5.

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