EFF Comments to the FCC on the
Compatibility Between Cable Systems and
Consumer Electronics Equipment

September 7, 2000


COMMENTS OF THE ELECTRONIC FRONTIER FOUNDATION

BEFORE THE FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554

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In the Matter Of

Compatibility Between Cable
Systems And Consumer
Electronics Equipment
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PP Docket No. 00-67

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We write you today to share the concerns of the Electronic Frontier Foundation (EFF) in response to the FCC's comment period for docket No. 00-67 regarding digital home recording. We urge you to ensure that any regulation of HDTV equipment maintain the traditional copyright balance by rejecting the copyright industry's plan to mandate restrictive copy protection technology into digital home entertainment devices.

EFF (http://www.eff.org) is a global nonprofit organization linking technical architectures with legal frameworks to support the rights of individuals in an open society. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. Over the past decade, EFF has participated in precedent-setting litigation, has worked to ensure that any legislation passed or rules promulgated protect individuals' rights, and has been on the forefront of public debate over the equitable use and growth of information technology. A member-supported organization, EFF maintains one of the most-linked-to Web sites in the world.

EFF is deeply concerned about attempts to use the technological changes allowed in the digital age to alter the fundamental relationship between freedom of expression and intellectual property rights, and the general limitations on intellectual property rights long established in the United States. Put more bluntly, the EFF is concerned about attempts to make all digital copying of audio and visual works illegal. While preserving intellectual property rights is important, it must not be done at the expense of free expression.

Our basis for this concern grows from the U.S. Supreme Court's decision in the Betamax case that copyright concerns cannot be used to eliminate recording equipment from the market if the equipment has any substantial non-infringing function. We believe that, under Betamax, the storing, transmitting, or reproducing of copyright protected digital audio/video should be treated no differently than other forms of speech or publication. The digital distribution of audiovisual content must not be crippled by regulation or industry standards that mandate restrictive technologies.

We understand that the movie industry has called for mandated copy restrictions in HDTV equipment. We believe this call, if heeded by the FCC, will dramatically shift this traditional copyright balance as applied to HDTV. We hope that rather than blindly adopting the industry position, any FCC action on this issue will ensure that the public can continue to engage in fair use copying of digital programming and that the remainder of the traditional copyright balance is maintained.

FAIR USE REMAINS VITAL IN DIGITAL AGE

Because it is designed to promote the values protected by the First Amendment to the U.S. Constitution, fair use remains essential to the copyright bargain. Fair use is the mechanism that provides the necessary breathing space in copyright to avoid conflict with the First Amendment. The FCC should take care to ensure that the public's ability to exercise its legal rights, including the unauthorized by the rightsholder, but fair use copying of digital programming is preserved.

An ability to engage in fair use must be built into HDTV equipment, the same way it has been built into copyright in other contexts. Fair use is part of copyright's overall design. Copyright's goal is to balance competing legitimate interests in such a way so as to achieve maximum public benefit. While authors and publishers have important interests in controlling how their works can be used, it is not the only interest to be considered. Under the First Amendment, the public also has a legitimate interest in accessing and learning from a work. Indeed, it is because of the public interest that copyright grants a limited monopoly on certain uses of a work to the author.

PERSONAL USE COPYING WELL-ESTABLISHED UNDER LAW

A wide range of judicially created case law and copyright statutes firmly establish an individual's right to make a personal use copy of material to which she is the lawful owner. For example, the Copyright Act specifically allows software owners to make copies of their software for archival or personal use purposes. Similarly people may make noncommercial copies of digital or analog musical recordings which they own according to the Audio Home Recording Act. The history of the AHRA is replete with Congressional desire to protect personal use copies. As one legislator stated: "This legislation will end the 22-year-old debate and make it clear that home taping does not constitute copyright infringement."

As noted above, the U.S. Supreme Court validated personal use copying of complete television shows and movies as legitimate "time-shifting" in the "Betamax" case or Sony v. Universal City Studios. "A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work. if it is for a noncommercial purpose, the likelihood must be demonstrated," stated the Court.

Relying heavily on the Supreme Court's reasoning in the Betamax case, the 9th Circuit Court of Appeals recently upheld personal use copying of digital musical recordings onto other devices. The Court stated that this type of copying, or "space-shifting" falls squarely within the personal use right of individuals to make analog or digital copies of copyrighted works for private, noncommercial use. "Such copying is paradigmatic noncommercial personal use entirely consistent with the purposes of the Act," stated the unanimous court. The ruling made clear that consumers have a right to make their music portable rather than forcibly tied to any particular media. Yet this freedom is exactly what Hollywood's plan aims to prevent consumers from having the ability to render their entertainment portable.

In Betamax the Supreme Court said that a VCR was not the proper subject of copyright protection. The private noncommercial copying of legally obtained audio and video streams is beyond the scope of Hollywood's grant of control over their works. Congress and the courts intended that the public have rights under copyright yet Hollywood is attempting to mandate equipment that would turn public rights into private permissions.

OTHER LIMITATIONS ON RIGHTSHOLDERS IN THE TRADITIONAL COPYRIGHT PROTECTION SCHEME

In order to properly balance the differing objectives, Congress and the courts have allocated certain rights to authors, such as reproduction, distribution, adaptation, public display or performance . At the same time, Copyright has afforded certain rights to the public, such as the fair use privilege and mandating works pass into the public domain. Copyright holders are granted the right to control public performances of their works, but not private performances. Additionally, the first sale rule prevents rights holders' from maintaining complete control of their works after they have been purchased by a consumer. For instance, once you own a book, you may reread it, sell it, lend it, or read only a portion of it without restriction from the content holder. These limitations serve as important reminders that copyright is not absolute and must constantly maintain a balance between several legitimate interests. The delicate balance must not be lost in the digital age.

In addition to denying the consumer the benefit of her bargain, mandating HDTV copy restriction equipment treads dangerously close to core First Amendment principles. Because of substantial non-infringing uses of these devices, mandating copy protection into HDTV equipment would undermine core principles of copyright and First Amendment law.

THE THREAT FROM THE RIGHTSHOLDER'S REQUEST HERE

An ability to engage in fair use and other uses beyond the scope of the rights granted to content owners under copyright law cannot be turned on or off at the whim of the copyright holder and still withstand Constitutional scrutiny. Such ability also cannot be made subject to a requirement of "authorization" from the rightsholder. By definition, all fair use is unauthorized. The whole point of fair use is that it is unauthorized, but noninfringing use. Preserving fair use necessarily means preserving an ability to make copies that the authors do not expressly permit. Yet, this eradication of fair use is precisely the result of Hollywood's plan here. If Hollywood can require copy protection in HDTV equipment that obeys its commands, the public's ability to make any unauthorized copies disappears completely. Such a radical change in society's ability to exercise legal rights is certain to stifle free expression and innovation.

Thus, the rightsholder's position here is a blatant attempt to redefine home taping of digital programming as theft and piracy. It is a fallacy to equate unauthorized copying with piracy as the studios' claim. As noted above, the Supreme Court made plain in Betamax that copyright owners' exclusive rights to their works only extend to those specifically enumerated by the Copyright Act.

CONCLUSION

FCC should discount the familiar cry that new technology is causing the sky to fall necessitating governmental intervention mandating copy restrictions over creative expression. If Betamax has taught us anything, it that it's holding was essential for innovation and market penetration to flourish. Devices that enable the public to exercise their fair use rights must continue to remain legal and accessible if copyright will continue to "serve as the engine of free expression," as Supreme Court Justice O'Connor has described the statutory scheme. Hollywood's plan to mandate copy protection impinges upon the public's right to make fair use copies, rendering the privilege obsolete and must be rejected.

The FCC should resist the copyright industry's over-reaching attempt to install digital locks into every citizen's private home by incorporating the restrictive technology into all digital audiovisual devices. Copyright law would not permit such a one-sided power grab, nor should the FCC.

Respectfully submitted,
Robin D. Gross, Esq.
Electronic Frontier Foundation
1550 Bryant Street, St. 725
San Francisco, CA 94105
Phone: (415) 436-9333