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Copyright, Privacy and Your Rights

Feb 28, 2002 -- Take this very short true or false quiz:

1. When I make a copy of a song to listen to on my computer or to share with someone else, I'm doing something illegal.
2. When I download music from the Internet via a Napster-like service, I'm doing so anonymously.
3. When I subscribe to a music or e-book service, the service is not tracking my usage.

One of the hottest topics in law and technology today surrounds the current reach of copyright law, expansion of copyright laws, and the use of digital rights management systems (DRMs) to "protect" content on the Net. Privacy and anonymity are often the neglected casualties of content providers' zealous "protection" of content.

The main goal of copyright in the past was to balance the interests of the general public with those of the creators/inventors, all for the social good. Lopsided laws, DRMs, and shutting out the public from commenting on technical standards for what kinds of features end up in products all threaten this balance. Perfect control of content has never been part of the bargain with copyrights.

The answers to the quiz, by the way, are 1) generally false, 2) generally false, and 3) false. Let's look at them one by one.

Remember the Betamax case?

Back in the 1980s, the Supreme Court decided the "Betamax" case that allows people to use VCRs (then called VTRs) to record TV shows for "time-shifting" purposes--tape now, view later. The Supreme Court held that time-shifting is a "fair use" of the copyrighted TV show.

By analogy, making copies of a CD or tape, or creating "Deborah's Favorite Songs of 2001" for my own private and non-commercial use would likely be held a fair use of the otherwise copyrighted nature of the songs. In addition, the Audio Home Recording Act (AHRA) allows individuals to make recordings of copyrighted music for private, noncommercial use. To be determined is whether you can copy thousands of songs from Napster (or other file-sharing sites) for yourself or to share with friends. The answer will be "probably not."

For more information:

For a letter from the ACM to Senator Hollings detailing the harms that SSSCA would impose on technology:
www.eff.org/IP/SSSCA/20010926_usacm_hollings_letter.html

For more information on DRMs, copyright, the DMCA, and Standard-making bodies see the extensive resource list from EPIC:
http://www.epic.org/privacy/drm/

To learn more about “time-shifting” and fair use, read the Betamax case:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=464&invol=417

Microsoft’s Media Player
http://www.wired.com/news/privacy/0,1848,50567,00.html

Amazon and variable pricing:
http://www.wired.com/news/business/0,1367,38622,00.html

Anonymous downloads?

Companies like Napster have a central repository of content. If you are using Napster or a similar kind of service, chances are high that anyone looking for you will be able to find you. Systems like Morpheus and Gnutella are decentralized and ephemeral, making users much more difficult to track.

Services like these may have other problems. If you aren't careful, they allow others to access the contents of your computer as they look for the songs that you have listed. How do you feel about others looking at your tax files or personal journal?

In a related twist, ripped literally from today's (2/20/02) headlines, Microsoft admitted that its Media Player software is logging the songs and movies that customers play on their PCs. Microsoft says it won't sell the information, but privacy policies change, and lawyers are handy at getting subpoenas.

Tracking the customer

So you've decided to subscribe to a particular service. Now you can download some number of songs or access some number of e-books every month for a set fee. This is where digital rights management systems kick in. DRMs are used to control access to content (for what time period can you listen to the song, how many times in that time period can you listen to it, etc.). Most of the current DRMs work by having the company collect personal information about you: name, address, email, preferences, and what you want to use. Once you've given the company this information, they will give you access to content.

The upside to this arrangement is that you can read a book once, and not have loads of paperbacks cluttering up your bookshelves; you can listen to a CD once and if you don't like it, you haven't paid $20 for something you would never listen to again.

The downside is that you've allowed a corporation to create a fairly intimate profile of your tastes. The music you listen to and the books you read can tell a lot about you. Your zip code can indicate what kind of income bracket you are likely in. This allows the corporation to not only market to you more precisely, but to possibly engage in price discrimination as well. Can't happen? Remember Amazon's woes when it was revealed that it had a practice of "variable pricing"?

What does the future hold?

Stopping copying of digital media is generally regarded as futile, but record companies and other content producers are trying hard. Expect them to continue to pursue options. Two of the more viable alternatives are manipulating the standards so that the only products available to consumers are ones that prohibit copying (or permit copying in only a few limited circumstances), and changing the law to shift the balance even more from consumers to copyright holders. Either way, your rights to control how you enjoy music or reading will be constrained.

What you can do

Refuse to buy CDs that prevent you from making copies of the CD you just lawfully purchased;
Refuse to do business with a company that would prevent you from listening to music or reading books anonymously;
Contact state representatives and let them know how you feel. For example, Senator Fritz Hollings (D-SC) is considering reintroducing the Security Systems Standards and Certification Act (SSSCA). This bill would require equipment manufacturers to embed government-approved copy protections into all computer equipment.

Deborah Pierce is the founder and executive director of privacyactivism.org, which has its headquarters in Bellevue. She spent the last four years as a staff attorney at the Electronic Frontier Foundation, www.eff.org. To contact her, send e-mail to editor@seattlepress.com, attention Deborah Pierce.

Reader Comments

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aldo	Sep 09, 2002	sydney	student
then how do u feel that the relationship between DRM and privacy? did they affect eachther? or DRM erode/protect privacy? or you might have some other views, would u liek to share?

Law & Technology

Copyright, Privacy and Your Rights

By Deborah Pierce

Reader Comments