The Problem

Digital technologies allow everyone the freedom to be artists, innovators, producers and creators; to listen, watch and participate wherever, whenever and however they choose.  But that freedom is in jeopardy today.  The big labels and studios have launched an assault on your technology freedom, because they fear their antiquated business models are being threatened. They’re lobbying for government controls over new technology and filing lawsuits to do the same.

Their goal is to outlaw new digital technology and devices that allow individuals to enjoy digital music and videos at a convenient time and place.  They want to severely limit— if not eliminate altogether— the technology-provided freedom to innovate, create, listen and see.

The Digital Freedom Campaign recognizes that new technologies are essential to the creativity and innovation that have allowed this nation to thrive.  Allowing these new technologies the freedom to flourish is at the heart of The Digital Freedom Campaign.  Digital technology enables would-be artists and hopeful innovators to produce music, create cutting edge films and videos that reach new audiences.  It allows consumers to enjoy these legally acquired works whenever, wherever and however they choose.  These basic freedom must be protected.  The Digital Freedom Campaign is dedicated to defending the rights of artists, innovators, creators and consumers to use technology without fear of unreasonable government restrictions or costly lawsuits.  

 

The Threat

The fear of new technologies is hardly new:

" I foresee a marked deterioration in American music…and a host of other injuries to music in its artistic manifestations, by virtue—or rather by vice—of the multiplication of the various music-reproducing machines…"
- John Philips Sousa on the Player Piano (1906)

"The public will not buy songs that it can hear almost at will by a brief manipulation of the radio dials."
- Record Label Executive on FM Radio  (1925) 

"But now we are faced with a new and very troubling assault on our fiscal security, on our very economic life and we are facing it from a thing called the videocassette recorder…"
- MPAA on the VCR (1982)

"These devices are just repositories for stolen music, and they all know it.  So it's time to get paid for it."
- Universal Music Group Chairman/CEO Doug Morris, November 10, 2006

The Nature of the Fight
The United States Constitution grants a limited monopoly to the works of authors and artists as an incentive to create and innovate.  That monopoly typically has granted creators a limited period of time in which their works cannot be copied, or otherwise appropriated, without permission and compensation.  Fair Use of those works, however, gives an exemption to that monopoly by allowing certain unauthorized uses—for example, the right to discuss the work in a review or the ability to make a personal backup copy of a CD—as long as they don’t infringe on the creator’s rights.  Because copyright, in some cases, limits free speech rights granted by the Bill of Rights (not allowing someone to read another author’s poem without permission on national television is arguably a limit on free speech), one Supreme Court Justice has stated that Fair Use is what keeps copyright Constitutional.

But today, Fair Use is under fierce attack by the entertainment industry, particularly the large recording labels and Hollywood studios, who contend that any unauthorized use of a CD or DVD somehow infringes on their copyrights.  They are wrong.  Fair Use protects most of the activities they seek to ban.  Why shouldn't a student be able to use lawfully acquired music in a school project?  Why can't someone use the song she bought on ITunes on a DVD she is making of her photos?  Why can't a consumer make a favorite hits CD with music lawfully acquired? Why shouldn't a music teacher be able to assemble clips of sound recordings purchased by the school in order to better teach a class?

The entertainment industry would have you believe that this is about piracy.  Again, they are wrong.   The Digital Freedom Campaign has nothing to do with the unauthorized mass distribution of copyrighted materials.  We all oppose that. In its 2005 Grokster decision, the Supreme Court gave the entertainment industry the legal ability to go after peer-to-peer networks that promote mass, indiscriminate redistribution of copyrighted works if those networks “induce” that behavior.  In their arguments, the big recording labels repeatedly stated that their target was not the private and personal recording practices of law-abiding consumers. 

Yet, the industry made a concentrated push in 2006 to restrict in-home personal use of new technology. New technology is under the most serious assault since Hollywood almost succeeded in keeping consumer VCRs off the market 25 years ago.  The entertainment industry is filing punitive lawsuits against legitimate and law-abiding businesses, and having bills introduced in Congress that would place absurd restrictions on lawful consumer practices. 

For more information on Fair Use and efforts to restrict it, please visit www.hrrc.org.

The following are recent lawsuits threatening to restrict or ban new technology and limit Fair Use rights

TARGETED TECHNOLOGY:  DIGITAL AUDIO RECORDERS

Atlantic Records v. XM Satellite Radio
The recording industry sued XM Satellite Radio for billions in potential damages, for marketing lawful products that allow subscribers to time-shift programs by recording them only for private, personal use such as listening to them at a more convenient time.  The devices do not allow transferring music to computers or other players, nor do they permit burning permanent copies or distribution over the internet.  This lawsuit has been pursued even though the Audio Home Recording Act of 1992 prohibits lawsuits based on the use of such products (on which the music industry already receives royalties under the AHRA).

TARGETED TECHNOLOGY: HOME VIDEO EDITING

Macrovision v. Sima Products
Sima's digital consumer video editing products allows consumers to improve the quality of certain non-commercial recordings, such as wedding videos, by stripping analog video recordings of the artificial noise and distortion that are a result of Macrovision's copy protection.  A Federal District Court has enjoined the sale of these products under the Digital Millennium Copyright Act (DMCA) because the device doesn’t include a chip that generates copy protection – despite the fact that the copy protection would create some of the very viewing distortions that the editing products are meant to remedy.       

TARGETED TECHNOLOGY: HOME NETWORKING OF DVDS

DVD Copy Control Association (DVD CCA) v. Kaleidescape
DVD CCA is suing Kaleidescape claiming that it is illegal for them to sell a home server which copies legally-purchased DVDs to a hard drive and sends them around the home network. 

TARGET TECHNOLOGY: PLACE-SHIFTING OF DVDS

MPAA v. LOAD 'N GO Video Inc.
Load N' Go is a service that allows consumers to load DVDS, which they have purchased, onto their iPods.  The movie studios' suit claims that this is illegal, because ripping a DVD (i.e., decrypting it and making a copy) is illegal under the DMCA. The suit also claims that this constitutes copyright infringement.

Other Threats to Fair Use

Association of American Publishers v.  Google 
The publishers are suing Google for digitizing libraries, even though the information publicly displayed is minimal (like a library card) and publishers can opt out.  This service will make libraries and their books far more easily searchable and, because only short snippets are excerpted, does not provide a substitute for the book itself. 

Google v. Perfect 10
The issue here is whether a search engine indexing a copyrighted image on an unauthorized site, and then creating and then delivering a thumbnail photo of that image constitutes an infringement.  That Perfect 10 is an adult entertainment site does not diminish the threat here to the ability of consumers or libraries to rely on search engines to find content on the internet.  Another Federal District Court held that Google’s linking to certain images, as a result of consumer searches, is not Fair Use – threatening personal use of a popular consumer tool for finding information and content.

Huntsman (Cleanflicks) v. Soderbergh
The issue here is whether parents can utilize services that edit out adult scenes and language in movies.  A U.S. District Court found that supplying consumers a version of a DVD in which objectionable content has been edited out is not Fair Use – even though the original version has been purchased and supplied to the consumer as well.

Digital technologies allow everyone the freedom to be artists, innovators, producers and creators, and to listen, watch, and participate wherever, whenever and however they choose. That freedom must be protected and nurtured.