Do you have digital Rights?

A battle brews occasionally between content creators such as authors, musicians, and television companies, and their customers, typically average consumers such as you and me. One famous case from the early 1980s pitted Sony against Universal City Studios and Walt Disney. This case started when Universal City Studios and other copyright owners sued Sony for offering a device—the VCR—that could record copyrighted television shows. The TV industry feared that Sony's device would devalue the industry's copyrights and lead to the death of TV as a communications medium. In a landmark 1984 decision, however, the US Supreme Court ruled that letting consumers record shows for personal use constituted "fair use." The message was clear: Sony didn't have to stop selling its devices just because someone could conceivably use the technology illegally.

The decision had two direct results. First, the VCR sparked a billion-dollar industry that continues to this day, and the technology has only augmented TV viewing, not destroyed it. Second, every time someone raises a fair-use argument—such as in recent cases surrounding Napster's failed battled against the recording industry and SONICblue's ReplayTV battle with the TV industry—the Sony precedent comes up. Despite this precedent, lawmakers have foisted various bills that actually reverse consumers' fair-use rights, and a recent decision by record companies to offer copy-protected audio CDs further blurs the lines.

The VCR's biggest benefit is time shifting, a feature that lets consumers watch TV shows when viewing is convenient for them, rather than when a program falls within a TV network's rigid schedule. Digital video recording (DVR) devices such as ReplayTV and TiVo have fine-tuned the time-shifting feature, and arguably you can apply the same theory to digitally recorded music. When you buy an audio CD, for example, you can listen to that music whenever you like. But what if your car only has a cassette player or you want to listen to a song from that CD on your Flash RAM-based portable audio player? We've come to expect that we can record the music from the CD and, assuming the CD isn't in play elsewhere or that we haven't resold the CD, we can legally copy the music for personal use. Actually, we might call this process "space shifting," rather than time shifting.

Napster used the above argument in its failed court case. Napster said that up to 50 percent of its users used the music-sharing service specifically to access the users' legally purchased music from other locations. And if some users were using the service to illegally share music, well, that was too bad: According to the 1984 Supreme Court decision, technology that can be used legally shouldn't be trampled simply because some people use it illegally.

The Napster argument falls apart for three main reasons (and today the company no longer exists, at least not in its original form). First, Napster's primary use was clearly illegal, and that wasn't the case with VCRs, whose primary use was time shifting. Second, the courts felt that Napster harmed the recording industry by making copyrighted music available for free download. And finally, Napster was the victim of a technicality: In the court's eyes, PCs aren't recording devices, and therefore the 1984 precedent didn’t protect Napster.

I hope SONICblue has better luck than Napster; certainly SONICblue has a more agreeable position. The company is in legal trouble because of a feature in its ReplayTV devices that lets customers jump forward 30 seconds at a time, effectively jumping right over commercials in recorded shows (using an undocumented hack, TiVo users can enable a similar feature). This jumping ability is a gray area because VCR and other DVR device owners are obviously fast-forwarding over commercials already, but the TV industry was apparently flabbergasted that SONICblue would make the feature so easy to use. As a consumer, I simply salute this feature: I'd pay extra for TV right now if I could never see another commercial (although I'd miss that "dude" guy from the Dell commercials—OK, not really).

But are our civil liberties at stake? Would the US government actually impose federal law that prevents consumers from making fair use of legally purchased goods and services? Precedent suggests that such a limitation could happen. Threats of lawsuits from the recording industry effectively prevented the DAT format from taking off in the late 1980s, legislation in the early 1990s prevented the home recording of rented videotapes, and the 1998 Digital Millennium Copyright Act (DMCA) sought to prevent cyber-piracy through various means. The point here is that despite the 1984 Supreme Court decision, various copyright owners have sought to prevent home taping, in various forms, for the past two decades. Some claims, such as the rented videotape case, have merit. Others, of course, don't.

As long as I continue to purchase audio CDs, I intend to record them onto my PC and listen to the music elsewhere. And I regularly skip commercials on my TiVo, placated by the knowledge that my cable TV bill has risen from about $50 a month 2 years ago to more than $70 a month now. My conscience is clear, I suppose, although I'm leery of what the future holds for fair rights in the digital age.

Looking to the Future
Based on the feedback I received about the three "Digital Strategies" columns that appeared in the May 22, May 29, and June 5 issues of Connected Home EXPRESS, in which I covered the basics of converting to digital photos, music, and video, I'll be getting into specific topic areas over the next few weeks. Three topics I will investigate are film scanners (for converting film negatives and slides into digital format), analog audio recording, and home-based Network Attached Storage (NAS—or its equivalent). But I'm looking for more ideas, so if you have any other specific topics you want me to cover more deeply than I did in the "Digital Strategies" overviews, please let me know.

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