Fair Use in the Digital World: Copyright Owners' Rights vs. Consumers' Rights
Copyright Owner Rights Perspective: Traditional copyright law says that when a person uses a copyrighted work without permission, it is infringement. To protect against infringement in the digital world, copyright holders can use copy-protection technology as a way to further prevent infringement of their works. Because the act of unauthorized copying is much easier in the digital world, some copyright holders did not believe that a traditional infringement cause of action was sufficient to protect their rights. The goal of the DMCA was to afford copyright owners extra legal protection for their digital works.
To allow for a digital fair use equates to legalizing computer hacking. It may be understandable that a member of the public might want to make fair use of a digital work they purchased, but to write a fair use exception into the law would cause rampant hacking of digital copy-protections, and futher the cause of pirates. Technology may eventually provide a way for consumers to make controlled, limited excerpts of a digital copy-protected work, that will be sufficient for fair use.
Consumer Rights Perspective: Under traditional copyright law, the public shares a group of rights known as "fair use" rights. Fair use works to maintain one of the goals of copyright: to enable and promote the disemination of information. Under fair use, the public may make unauthorized use of copyrighted materials so long as these uses fall within certain criteria. The criteria can be found in Title 17, Section 107. A more indepth discussion of fair use can be found here.
Making fair use in the digital world is much more difficult; the reason being the Digital Millennium Copyright Act, or DMCA. The DMCA, found at Title 17, Sections 1201 and 512, contains an "anti-circumvention" provision which legally prohibits getting around technological locks that would protect a digital copyrighted work. This legal prohibition also applies to fair use. What this means is, if you own a story in both physical book and protected e-book form, it would be illegal for you to make fair use excerpts of the e-book, simply because it is digital. Many believe that the DMCA creates a severe inbalance to copyright law by distinguising rights over digital from physical copyrighted works in this way.
P2P: Piracy vs. Effective Digital Distribution
P2P as a tool of Piracy: Those who run P2P networks encourage, facilitate and profit from piracy. Many of these neworks rely on the advertising revenue generated upon the infringement of others' works. Courts have said that the activity of users of file-copying networks to distribute copyrighted music, motion pictures and television programs is illegal, so those who provide the software should be held liable. There is no such thing as "file sharing," it is actually file stealing.
Effective Digital Distribution: P2P stands for peer-to-peer, and it refers to a networking technology that distributes information without the need for a central server because each member of the P2P network can share and distribute information and data. The Internet is a P2P network. A P2P network can be more efficient than a server based model when it comes to downloading high-bandwidth material like music and video. Because each member of the network carries the load, less bandwidth is needed, faster distributed downloads can be had, and because P2P is both more efficient and faster, content can be distributed at almost no cost to the provider. It is truely a disruptive technology in that many of the traditional costs and business methods will no longer apply.
P2P has become stigmatized because it has not yet been monitized by content providers. To the industry, P2P is a threat because it forever changes their business model. Even though there are some 60 million users of the technology, the vast majority of the content industry refuses to legally distribute or sell their content via P2P. However, the recording industry does use the technology to track and pinpoint the popularity of music, based on how often it is traded, in specific geographic regions. This enables them to promote popular music in those regions.
The public Internet has been a viable marketplace for almost ten years, yet it has only been in the last four since the recording industry has even attempted to utilize it as a way to distribute music -- and most business models they have introduced have been less than popular or have failed. The most popular online music distributor, Apple's iTunes Music Store has been very successful by providing consumers with an easy and inexpensive way to purchase music -- showing that it is possible and profitable to compete with free.
One of the largest legal obstacles that stands in P2P's way is that of licesensing. Even if the recording industry and Hollywood decided they wanted to distribute content via P2P, they may not have the rights to do it. Because the rights to works have been sliced so finely and individually licensed as a source of revenue, it is difficult and costly to track down who owns the rights to a work, and then obtain that rights owner's permission to distribute the work over a P2P network. It is because the content industries do not have a way of solving this rights problem, many believe they would litigate the technology out of existance rather than work towards a profitable solution.
