Fair Use and the IP Rental Model

Fair use is on the way out as the licensing of rights gains industry acceptance. This has huge implications for libraries, information professionals and the general public. This can also put the kibosh on projects like Google Print and Google Scholar. But first some background.

In the old days, back in the early 90's when dinosaurs roamed the earth, if you bought a CD you owned the CD and were entitled to fair use privileges. You could sell it, trade it, re-record it for personal use, play it at parties or destroy it. Most people didn't partake in the last freedom of fair use but used CD stores, clubs and personal music players can still be found. They exist only at the pleasure of media companies, however.

With the Digital millennium Copyright Act, which President Clinton signed into law while America was focused on "The Dress", media companies can license media content in a similar fashion as computer companies. They could also use Digital Rights Management systems (DRMs) to protect the content from being copied. That's how CSS and Macrovision could be put on DVDs that would not work unless the user had the licensed decoder. Fortunately for anyone who has a ton of DVDs and likes the option of looking at them on her Linux boxen there shortly appeared DeCSS which effectively broke the encryption algorithm.

That's not going to happen as quickly with the next wave of media devices. Windows Vista will use HDCP for content protection which has raised some concerns. The realistic concern is that people may be drawn into purchasing a Blu-Ray Disc movie and find that it is no better than a regular DVD. This is because of the way protection is implemented. Typically the rule is if you can see it you can capture it but HDCP allows for a protected stream on top of the other mechanisms such as encryption. In essence you need a trusted player and a trusted display. Depending how things shake out when the spec is finalized people who've just bought a HD monitor may be getting screwed shortly.

Windows, Macs and any of the other operating system producers who wish to pony up the cash will be fine but Linux will likely need some enterprising user to crack the protection. HDCP needs to be commercially licensed and while Linux has many distros it doesn't have a central company to make such deals. It'll be every distro for itself. There is the added cultural problem that KDE ran into how are you going to distribute a free operating system with closed code. Even without the source are the distros going to include a HDCP tax? If they include it at all I'd say yes.

Buying a BD-disc or a HD-DVD disc and not being able to play it properly is a future problem that won't hit home till next Spring CD protection has already been a problem. Some bands have taken the unusual step of telling fans how to circumvent copy-protection. The technical details of how to bypass the copy protection on most Sony discs is to just hold down shift when you put the CD in the Windows PC so it doesn't auto-load. For Macs and Linux you don't have to do anything since the copy protection only works on Windows. This is an improved version of the protection that crashed PCs when it was included in Celine Dion's CDs in 2002.

At this point one might ask how this effects libraries or Google. Well if one were to look here or here, they might get a clue. The key is that from the media companies view playing a CD in a computer is not a right it is a privilege that can be taken away when it interferes with their profitability. The thinking boils down to the belief that sluggish sales are a sign that piracy is running rampant. Piracy is a problem but most people aren't buying CDs or DVDs to share with their closest million friends. Most of the people who rip CDs are transferring them to their iPods, iRivers or some other digital music player. The fact that some CD players will not play some of the DRM schemes out there is only worse.

This impact libraries in the event a patron checks out media that is DRM protected and they do not have the means to play it. Libraries could carry devices for loan but that can be expensive or have large placards telling patrons to get a new media player. The problem is that most people would not see the DRM sticker unless told where to look and wouldn't understand what it meant regardless. after all, the exploit to bypass Sony's DRM does nothing to stop Macrovision. Should telling people how to bypass copyright protection be part of the job of a librarian? As much as the ALA would say the opposite is true, within reason there are reasons to think that circumventing copyright isn't all that bad.

Opening the can of worms that is intellectual property rights, they are by definition limited so that there is a fair use right. Copy right has expanded to the point where fair use is an endangered species. Since in the digital world everything is a copy and despite giving you a copy I can still keep my copy rules like the DMCA were established to limit the spread of the copies. A case can be made that this is proper but preventing me from copying a CD I bought so that I can listen to it in my car on my iPod is a little over the top. It only works because of the licensing of content instead of the purchase. The switch happened so rapidly people didn't even see it. When you buy a CD now you are merely buying a license to play it in locations and on devices considered acceptable by the copyright owners.

I find this kind of ridiculous myself, the legal exception made for copying for educational purposes or personal use can slowly be eroded by the prohibitions on technologies to circumvent DRM. If you have an old recording that is no longer available and you wish to preserve it you are in a bit of a gray area depending on the number of copies made and in what format the original and copies are in.

This is similar to something Google found out the hard way. Despite the fact that Google Print allows authors to opt out the Authors Guild thinks they are not going far enough. Google Print they fear, will allow ne'er do wells to avoid buying the book and instead read a brief excerpt of their work online. The Authors Guild should lose the case but that is not guarantee that they will. This raises the specter of litigation facing any library that co-operates in this project or any other project like it to make their collections available to patrons who can not physically come into the library. Even a librarian that would ensure that circumvention of DRM was not allowed could be at risk. The Authors Guild has more money than many of the already struggling major metropolitan libraries. There are also publishers and other content companies who see digital media as a means to reestablish control over content.

Authors Guild v. Google has the potential to be another universal Studios v. Sony Corporation let's hope that Google stays in the fight and prevails.