US copyright laws in the Internet and digital age

Since the enactment of the first copyright laws in the United States in 1790, trying to end

copyright infringement on creative works has been an endless battle. The last change to that the

law came in 1976 with music copyright added on in 1909. The basis for all copyright law is the

Constitution, Article I, section 8, and therefore Congress has the right to grant the owners of the

property the sole right to its use, which is a limited monopoly, for a particular period of time

(Sirois and Martin, 2006). Since the late1990s, the US Congress got into the work of legislating

copyright in the age of digital and the Internet with the U.S. Digital Millennium Copyright Act of

1998 (DMCA). Even with the laws, challenges to the law have been made to balance the needs

of copyright owners and consumers.

This paper examines the current debates arguing a that copyright needs to end in some

areas to guarantee consumers their freedom. The first section reviews the legal issues between

consumers and copyright holders since the 1998 DMCA law has been enacted. Section two

examines solutions to the problem proposing a change in copyright law in favor of consumers.

Legal issues since 1998 with the Internet and copyright

When a copyright holder believes that there has been an infringement on their copyright,

the recourse is to take the violator to court. However, to win a case in court, the precedent is that

the plaintiff has to show that an infringement took place and that it was “illicit or improper

appropriation” (Sirois and Martin, 2006, p. 5). Many cases have to be appealed, sometimes all

the way to the Supreme Court, to settle the case and interpret the law. The Supreme Court has

heard a number of digital cases that have changed the way that consumers can access

copyrighted creative content.One area of concern for consumers involves how the United States

and other countries are to deal with the protection of copyright overseas and the reciprocal

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agreements for the United States to enforce the copyright of overseas creative works. Public

domain is a key issue too because when creative works are public domain anyone can rework

them, add more to them, or change them without being subject to paying copyright.

An aspect of public domain involves foreign copyright. People who make their living

from public domain works were the ones who brought the lawsuit in Golan v. Holder (2012).

In 2011, the Supreme Court heard arguments “about whether Congress can grant copyrights to

works by foreign authors never before protected” in the United States (Brevin, 2011). Google has

put thousands of books, art and music online considered public domain. Moreover, Google

beleives that the public domain works should remain public domain and free in the public

interest. Interestingly Chief Justice John Roberts noted that when Jimmy Hendrix riffed on the

Star-Spangled Banner, he did not have to pay royalties when he performed it at Woodstock. The

question being raised by the Chief Justice was whether works that have been in the public

domain, can have copyright laws applied to them (Brevin, 2011).

Copyright is not forever and once it ends, the product falls into public domain. But the

argument was made that there is a significant difference between extending a copyright to a work

that already has it, versus adding copyright onto a work that never did. This is a prickly point for

many consumers. One group most concerned about how this ruling will affect public learning

and knowledge are academic scholars. Many scholars rely heavily on public domain materials

for their work. Thus they would encounter excessive difficulty in tracking down and receiving

permissions, for example, from many of their subjects, some which are already deceased.

However, the Court ruled that works that were once free in the public domain should have a

copyright so that users have to pay and licensingfees when they are on the Internet especially

(Brevin, 2011).

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A second area of public concern with the rise of the Internet and digital comes from

artists who now digitally alter other people’s work, like photographs, for use in their own work.

Sampling, as it is called in the music industry, is a new phenomenon because of digital work. For

example one area of copyright law that has yet to be resolved is with using copyright

photographs and using them, or at least parts of them, in new work (Grant, 2009). One artist,

Richard Prince took the photographs of another artist and used them in a collage. Prince argued

that he was not stealing them, but hat his work was “transformative” in that he was “borrowing

in the process of creating something entirely new” (Grant, 2009, para. 1). He lost the case

ultimately, meaning that in some ways copyright is in the eye of the beholder.

The first big digital version of this copyright infringement, however, came with Brian

Burton, aka Danger Mouse’s release of his 2004 The Grey Album. In this album, Burton took the

“melodies, drums and rhythms of the Beatles’s famous album, The White Album” (Sirois and

Martin, 2006, p. 1). He also added in vocals from Jay Z’s The Black Album, a process in the

music industry known as blending, which is something that many DJs do as well as album

producers. EMI, who held the rights to the Beatles got an injunction that forbade the album from

being produced, or played, and to destroy all copies. In response, Internet sites around the world

that had the album, offered to download it for free to anyone on the last Tuesday of February in

2004 and called it ‘Grey Tuesday’ (Sirois and Martin, 2006). One of the issues that was raised

was about the rights of artists or copyright holders of sampling, taking a bit of a song or a the

beat and using it.

A third area for consumers that is being litigated concerns the rights of web companies

that want to air television shows that are currently being seen on broadcast networks through the

Internet. CBS and Aereo, a web-television company, are suing each other over whether Aereo

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can rebroadcast CBS’s shows. Aereo is making the argument that the it can stream CBS’s

“broadcast signals over the Web” without paying a fee since the signals should be free “over the

air” (Ramchandran and Sharma, 2013, para. 4). Initially CBS sued Aereo for copyright

violations, and the case is yet to be resolved.

Finally, the entire reason for the DMCA, which was to keep individuals from sharing

files of copyrighted music (Sirois and Martin 2006). Sharing music in a song is called, where a

musician takes a part of another piece of music and adds to it. Since 1978 copyright laws blocked

this form of sampling, without giving credit and paying loyalties (Sirois and Martin, 2006). The

DMCA law was not written to protect the consumer, though. According to Mossberg (2007), it

ensures that record companies and movie studies would be able to collect on everyday things that

consumers do with the CDs they purchase without believe that they are infringing on copyright.

One example that Mossberg (2007) gives is buying a CD, downloading the music to their own

personal computer, and then emailing one of the songs to a friend. Since 1998, these are now in

violation of copyright. Even the writing of software that allows for sampling, or for a person to

download on more than one computer content they bought is prohibited. A solution is required.

Solutions to the standoff between Internet consumers and copyright holders

Solutions thus far have been in the favor of securing or trying to secure the rights of

copyrighters to the disadvantage of the consumers. There is little doubt that many performers and

songwriters, for example, were robbed of their copyright in the past so protecting creative work

is necessary. However, the copyright laws for music and the public domain of works for personal

use need to be changed.

Tang (2005) shows that through the passing of laws restricting file sharing, it led to the

creation of software that facilitated file sharing and in the end, was beneficial to music

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companies. Thus, the laws themselves, when mixed with technological innovation, can find the

answer. This is one possible solution to the copyright problem: stop legislating to try to cover

every contingency and leave it to the public to design technology that will eventually control the

problem. This puts Congressional law making on the back burner and allows entrepreneurs and

others in the industry to innovate the answer not legislate.

A second solution, however, is to lift copyright restrictions on personal use for music and

academic materials. Over time, the music industry will figure out how to overcome the problems

that currently seem to be limiting revenue. Adelle had the largest selling song in 2012 and 2011,

to the tune of over 20 million records. Given that the industry is able to sell albums, even with all

of the technology out there and the ability to gain “pirate” copies of music, people are still

willing to shell out considerable amounts of money to pay for their music. Since individual

consumers are willing to mix up their own purchases with downloads, and students and

academics will still pay for photocopies and buy textbooks in addition to the use of public

domain articles, the notion that copyright holders cannot make money does not appear to be the

case. Thus, people should be allowed individual use rights to music and academic work.

Even with a solution that will allow consumers more freedom, the copyright violations in

the age of digital and the Internet will continue to evolve as new technologies and creative ideas

about how to record music, make art and the like are brought into the mainstream. Copyright

laws have sought to protect the owners. Since the 1990s, and the DMAC legislation in 1998,

Congress has sought to legislate and the Supreme Court rule on copyright but it has come at the

expense of consumer access. To correct this wrong, this paper suggests that personal use music

and academic works should be copyright free to allow the public to find solutions to the problem

if indeed it needs to be restricted.

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References

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http://online.wsj.com/article/SB123319795753727521.html

Mossberg, W.S. (2007, Mar. 22). Congress must make clear copyright laws to protect

consumers. Wall Street Journal, Eastern Edition [New York, NY], B.1.

Ramachandran, S., and Sharma, A. (2013, May 6). Aereo sues CBS, seeks copyright

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http://online.wsj.com/article/SB10001424127887323826804578466982119594300.html

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