Webcasters, Media Groups Spar Over Copyright Proposals

Webcasters, Media Groups Spar Over Copyright Proposals
©Newsbytes News Network, 11/29/2000, by Brian Krebs, Newsbytes

WASHINGTON, D.C., U.S.A., 2000 NOV 29 (NB). Digital media companies and leaders in the entertainment industry faced off today in a hearing that could lead Congress to propose changes to online intellectual-property laws.

The hearings today were scheduled back in October 1998, when Congress passed the Digital Millennium Copyright Act. At the time, Congress tabled several controversial amendments to the act, and instead asked the US Copyright Office and the National Telecommunications and Information Administration (NTIA) to conduct a joint study on those proposals and report back within two years.

Two of those proposals, originally drafted by Reps. Rick Boucher, D-Va., and Tom Campbell, R-Calif., were at the center of today's heated debate, which could have far-reaching implications for libraries, streaming music and content providers, and copyright holders nationwide. The first, and most contentious proposal would have amended Section 109 of the act to make the "first sale" privilege - the provision that permits the resale of used books, for example - apply expressly to digital transmissions of copyrighted works.

Library associations and archiving companies have insisted that the amendment is necessary because under current law, the first sale doctrine would only apply to digital media if the underlying work were actually deleted - just as a resold book is no longer physically in the hands of the original owner.

"The consequences of allowing the law to lag digital technology will be felt by educators, librarians, consumers and - not coincidentally - by technologists," said Scott Moskowitz, president and CEO of Blue Spike Inc., a company that provides watermarking technology for copyright management systems.

"Content owners and providers understand the marketplace of ideas, but they have little interest in the archival requirements of universities and libraries that must be able to make copies of works in different formats in order to ensure the continuity of access and to serve the educational requirements of their constituents."

Time Warner Senior Counsel Bernard Sorkin said while it might be thought that amending Section 109 to include digital transmission would be useful to libraries, such an assumption would be a "delusion." The removal of a restriction against "deleting" the original copy would merely result in the endless duplication of any copyrighted product, Sorkin said, given the inherent difficulties in verifying that the original user had somehow destroyed his or her copy.

At best, he said, the amendment would result in content owners being more reluctant to make their works available in digital form.

"The proposed amendment to Section 109 would transform that section from a protection against restraint of alienation of particular copies to a device for allowing the owner of one copy to supply, without authority of the copyright holder, the needs and desires of a vast population," Sorkin said.

The second proposal would alter sections of the act that permit the owner of a copy of a computer program to make backup copies of the work in order to use that piece of software, music, etc., in a separate device or format - such as a MP3 player.

Witnesses from streaming media companies such as RealNetworks, myPlay Inc., and MusicMatch Inc. would like the second proposal to exempt certain reproductions of copyrighted material when that material resides on a user's hard drive only temporarily.

When playing an incoming media stream, PCs usually cache a portion of the file in temporary memory - or RAM buffer - to ensure uninterrupted playback.

The music industry has argued, however, that such storage constitutes a physical copy of the copyrighted work, and thus merit a separate royalty fee in addition to the fee a user pays for downloading a song or CD.

RealNetworks Vice President Alex Alben testified today that while while the streaming media business has steadily been growing in popularity, several prominent streaming content companies have been forced to close or cut back their offerings in light of severe financial difficulties. More charges, he said, simply would put more companies out of business.

"Current licensing practices already impose substantial costs and administrative burdens upon these companies, and it would be untenable and unfair to require them to shoulder additional costs with respect to these buffer copies," Alben said.

But Emery Simon, an attorney for the Business Software Alliance, suggested that copyright protection against unauthorized "temporary copying" is crucial to ensure a healthy environment for the development of the software industry and e-commerce.

"From the user's perspective, these formats are indistinguishable, except that the exploitation of a work through the creation of a temporary digital copy may be far more convenient, enjoyable, and even less expensive than the exploitation of the work in physical format," Simon said. "There is no question that the exploitation of works will increasingly be through the creation of digital temporary copies as opposed to the creation of permanent copies."

Both amendments have a direct bearing on several issues currently before the Copyright Office. Aside from the obvious impact of such changes to the law on the current legal battles between Napster, MP3.com and the entertainment industry, the Copyright Office is considering whether users can legally copy purchased works - such as burned CDs - in much that same way they can duplicate audiotapes for other personal uses. The Copyright Office also is deliberating on what sort of fee - if any - streaming media companies should have to pay for streaming copyrighted content.

Today's was the last of several public hearings on the matter since the NTIA and the Copyright Office began holding public hearings and accepting public comments in May.

Jesse Feder, a policy-planning advisor to the Copyright Office, said the agencies were considering a suggestion to hold post-hearing comments, but no decision had yet been made on the extension.

"In any event, we will get our report to Congress by the end of February," Feder said. "From there, it will be up to Congress whether it wants to go ahead with our recommendations."

Reported by Newsbytes, http://www.newsbytes.com 16:25 CST

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