Copyright Owners', Consumers' Rights Examined in CEA Conference

Where does "fair use" end and piracy begin? Can consumers have open access to digital information and entertainment while respecting the rights of the creators of such content? Is there an inevitable collision between consumers and the rights of intellectual property owners? Can a happy balance be found in a world of high technology?

The Consumer Electronics Association tackled these questions in a one-day conference, Digital Download: Public Access to Content in a Digital World, held March 6 in Washington, DC. CEA president and CEO Gary Shapiro stated his organization's allegiance to both intellectual property rights and consumers' fair use rights in his opening remarks. "Copying content and reselling it for commercial gain is wrong and should be illegal," he stated, making a sharp distinction between consumer home recording for non-commercial purposes and "piracy." Duplicating copyrighted materials for non-commercial purposes—whether dubbing tracks from CDs for private compilations, videotaping TV shows for later viewing, or photocopying magazine articles for classroom purposes—has generally been upheld by US courts as falling within the "fair use" provisions of copyright law. Selling such copies, or using them for commercial gain, has generally been viewed by the courts as piracy.

Digital technology that enables the easy sharing of copyrighted content by millions of people has complicated the issue tremendously. The recent lawsuit against audio file-sharing service Napster is but one of many cases that will clog the nation's legal system as the sharing of digital information becomes quicker and easier—a new phase of communications that Shapiro characterized as "a revolution in electronics," one that is "providing important benefits for consumers," with instant access to each other and every bit of information they seek.

"Fair use" is a fundamental concept in this context, conference participants agreed, while disagreeing wildly about what the phrase actually means. "Broadly speaking, fair use incites courts and individuals to engage in a balancing process between the content's use and its costs," commented Peter Jaszi, a professor at the Washington College of Law at American University. Jaszi was a participant in "Digital Freedom vs. Digital Restraint," the day's first discussion.

Speaking at the next session, Pam Horovitz, president of the National Association of Recording Merchandisers, addressed the confusion among consumers about what their rights actually are. "When someone buys a CD, they expect to be able to do whatever they want with the CD," Horovitz stated. "But the difference between what is legal and what is unauthorized is very vague at this time." There is a sense of ownership when a product is bought, agreed Linda Golodner, president of the National Consumers League. Golodner believes that the public understands and expects that the money being spent for a product goes to both the designer and the producers of the product.

The time limit on copyrights is "a mandate for creativity," opined James G. Neal, dean of university libraries for John Hopkins University. Neal hopes to see content creators and consumers reach some agreement that will engender mutual respect. Respect for copyrights vanished long ago, when consumers discovered that they were being taken to the cleaners by major music labels, according to Mathew Zinn of TiVo, Inc. "Napster is the consumer's reaction to getting ripped off $19 for a CD that costs 50 cents to make," Zinn stated. "The genie is out of the bottle and has changed the timelines for everything. We are beyond even Internet time. We must fill the Napster gap quickly. People want content, and if the music business does not provide it, someone else will."

The Internet has long been hypothesized as offering an end-run around the traditional music business distribution model, but many musicians have discovered that without major label promotional support, they are simply one more voice in a crowd of thousands. Jonathan Potter, executive director for the Digital Media Association, said the duty of conference participants is to develop "ways to get the content to consumers in the way that they want it and are willing to pay for." Fair use, according to Potter, doesn't mean free music.

A panel discussion on downloading and copy protection included Zinn, David Leibowitz, chairman of Verance Corp., and Cary Sherman, general counsel for the Recording Industry Association of America. Sherman stated that, with an increasing number of people gaining access to high-quality duplication tools and free music services, the recording industry must develop better protection against piracy. "Napster has raised the bar," Sherman explained. "But control is needed so that businesses that produce these works aren't competing against these free services. We want to keep piracy at manageable levels." That last statement implies that the industry recognizes that it will never completely eliminate piracy. Trying to stop file sharing is "like eating soup with a fork," asserted rapper Chuck D., a longtime advocate for musicians' rights. "The Internet is the saving grace," he said. "As an artist, it's not so much the money as it is the control. There needs to be a parallel industry to the industry that now exists."

In a noontime keynote speech, Congressman Rick Boucher discussed legislation recently introduced to protect home recording rights and to ensure the fair use of copyrighted works by students and scholars. Boucher believes that the Digital Millennium Copyright Act, enacted during the Clinton administration, went overboard to protect copyright holders without regard for the rights of consumers. The new legislation, if passed, may correct this imbalance, he hopes. "The use of copyrighted material is at the heart of the educational process," agreed Sharon Hogan, university librarian at the University of Illinois at Chicago. Hogan spoke at the last session of the day.

During a closing speech, Congressman Billy Tauzin, chairman of the House Energy and Commerce Committee, reiterated the need for all parties in the copyright issue—consumers and consumer advocates, legislators, and content creators—to cooperate in an effort to find a solution. "This battle will go on until the recording industry finds a way to live harmoniously with new technology," Tauzin said. "If we are not careful in the effort to protect intellectual property in this new digital age, we may end up hurting consumers' rights. We need to achieve that balance."