Speaker 1: How Has Technology Affected Copyright Law? Throughout the history of copyright in the United States, technological innovation and changes in consumer behavior have forced Congress and the courts to adjust to new forms of copyrighted media and new ways of distributing and consuming it. The 19th century saw copyright expand to include a variety of new technologies, such as photography, mechanical reproductions of music, and eventually, movies. But those changes were small compared with the advances of the 20th century, which required significant changes to U.S. copyright law. In the 1960s and 70s, early court cases like Fortnightly Corporation v. United Artists in 1968 and Teleprompter v. CBS in 1974 held that rebroadcasting television shows over cable television did not infringe the copyright in those shows because it was not a performance. However, the Copyright Act of 1976, the most significant revision of copyright law since 1909, extended copyright protection to works performed over cable TV. The Copyright Act of 1976 made several other major changes. It codified fair use into statutory law and granted copyright protection as soon as a work was put in tangible form rather than only when it was registered. It also began to bring the U.S. into closer compliance with international copyright law. In the international sphere, meanwhile, the United States finally agreed to the Berne Convention in 1988 and joined in 1989. The purpose of the convention was to ensure fair and reciprocal copyright protection for member nations. Although it did not create an international copyright, it did require the United States to amend its copyright law to comply with certain Berne provisions. But, overall, the convention facilitated cross-border protection of creative works while leaving most details of copyright laws to the member states. The Computer Software Rental Act of 1990. The next major copyright issue arose with the emergence of personal computer software in the 1980s. Software companies and independent developers lobbied Congress to curtail illegal copying of copyrighted software. In response, Congress passed the Computer Software Rental Act of 1990, prohibiting the unauthorized rental, lease, or lending of a computer program for commercial gain. Individuals, however, could still make personal copies for their own use, and libraries were permitted to lend software. Audio Home Recording Act of 1992. Hoping to prevent similar piracy in the emerging digital audio field, the Audio Home Recording Act of 1992 amended copyright law to require manufacturers and importers of digital audio recording devices to install technology to prevent illegal copying of copyrighted music. It also mandated that royalties be paid to copyright owners for every device sold. No Electronic Theft Act of 1997. The Recording Industry of America Association, or RIAA, successfully lobbied Congress to enact the No Electronic Theft Act of 1997, making it a criminal offense to reproduce or distribute music electronically. Nonetheless, by 2002, some 3.6 billion songs a month were still being downloaded illegally thanks to music-sharing sites like Napster. Napster claimed they should not be held responsible for any illegal downloading committed by users, but in court cases like A&M Records v. Napster and Metallica v. Napster, judges and juries repeatedly found Napster guilty of infringement, and it was forced into bankruptcy in 2002. Digital Millennium Copyright Act of 1998. Meanwhile, Digital Rights Management, or DRM, technologies were developed in an attempt to prevent piracy of copyrighted content. Companies in various content industries lobbied Congress to pass the Digital Millennium Copyright Act of 1998, or DMCA. This law made it a crime to distribute technology or services that could circumvent DRM measures used to control access to copyrighted media. It also increased penalties for copyright infringement on the Internet. But in a concession to online services that merely hosted user content, the DMCA limited the liability of online services for copyright infringement committed by their users so long as they acted to remove the offending content once informed of it. Sonny Bono Copyright Term Extension Act of 1998. The Sonny Bono Copyright Term Extension Act was also passed in 1998. This law added an additional 20 years to copyright terms, extending it from most works to the life of the author, plus 70 years after. Critics called it the Mickey Mouse Protection Act because it extended many copyrights held by the Walt Disney Company, which lobbied strongly for the bill. Even Professor Richard Epstein of the NYU School of Law, a staunch defender of intellectual property rights and top legal thinker, believes that the copyright term of life plus 70 years is too long. My own view is that no commercial property right should ever be tied to life and the extra 70 years is far too long, he argues. It has the potential to create an anti-commons that deprives the public of its rights to freely access cultural works. Copyrighted works should pass into the public domain after 28 years, which was the approach of the founders. Not surprisingly, the debate over the proper length of copyrights continues. Copyright © 2020, New Thinking Allowed Foundation