... settlements actually increased the need for legislators to carve out a
“fair use for noncommercial use,” now that the companies that had advocated
that position had given it up. He said practices that had hazy legal
justification but were widely accepted in the analog world, such as creating
mix tapes, soon would be virtually impossible once companies could tightly
control the use of intel-lectual
property....
>From Warren Washington Internet Daily 11/17/00
Don’t Look To Courts To Loosen Copyright Rules, Judge Says
Will Congress need to intervene in the Napster wars, or can existing
copyright law and negotiations between business eventually sort things out?
At a Thurs. conference at American U. Law School on “The Future of
Copy-right on the Internet,” not everyone agreed, with some participants
encouraged by recent Napster and MP3.com settlements and others less
sanguine. Some opinions were informed as much by skepticism over Congress’s
abil-ity to handle the issue as by confidence in industry.
Calling it a “middle-of-the-road” decision, Judge Lewis Kaplan of the U.S.
Dist. Court, N.Y.C., defended his much-discussed decision to ban the posting
of instructions for cracking DVD copyright protections. He said both sides
presented “bitterness and sloganeering,” and there was “not going to be an
absolutist answer to copyright.”
Although acknowledging that his decision was on appeal, Kaplan warned that
the Supreme Court never had taken “an absolutist interpretation of the First
Amendment,” as demonstrated by its allowing the FCC to regulate broad-cast
content. Parties seeking more freedom of intellectual property on the
Internet will find that’s “a judgment that must be made by Congress, not by
the courts,” he said. He said only Congress can assemble all parties, take a
ho-listic look at the situation and make the inevitable “messy compromises,”
whereas courts can only choose between one or the other of 2 competing
arguments under a limited set of circumstances. “Courts can serve as
referees” in
the copyright battles, Kaplan said. “They can’t ultimately play the game.”
“I’m encouraged” by the Bertelsmann deal with Napster (WID Nov 16 p1), said
Bruce Lehman, pres. of the International Intellectual Property Institute. “I
see a business model developing” that can “provide con-sumers with benefits
and is consistent with the policy vision” laid out in the Digital Millennium
Copyright Act (DCMA). “I think we provided the courts with a pretty good
foundation” in the DMCA, he said, and “I’m pleased with the way things are
going.” As a result of the MP3 and Napster settlements, Lehman said, “we
may never see the Supreme Court or even appeals court decisions” of those
cases. However, U. of Buf-falo Law School Prof. Shubha Ghosh said the
settlements actually increased the need for legislators to carve out a “fair
use for noncommercial use,” now that the companies that had advocated that
position had given it up. He said practices that had hazy legal
justification but were widely accepted in the analog world, such as creating
mix tapes, soon would be virtually impossible once companies could tightly
control the use of intel-lectual
property.
It’s “very difficult” for Congress to “create a rational [legal] structure”
once a business model has been estab-lished in the marketplace and lawmakers
essentially are just codifying general practice, Lehman said. Any at-tempts
to amend the DMCA will be obsolete by the time Congress finishes, agreed
lawyer Peter Schalestock.
Lawyer Timothy Casey, who worked extensively on the DMCA when he was with
WorldCom, said he “would be surprised” if a bill such as the one floated by
Rep. Boucher (D-Va.) loosening copyright rules could be passed, in large
part because it would violate international copyright treaties. The question
would be whether a new exemp-tion such as for personal use “is presented as
an extension of existing fair use, or as a novel concept,” said Ameri-can U.
Law Prof. Peter Jaszi. — Sasha Samberg-Champion
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