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The following discussion excerpt is from “New Media Law: Keeping Up in the Digital Age,” a two-hour streaming video discussion moderated by Richard Lee. This seminar was originally recorded on June 14, 2000, in association with The Recorder, an American Lawyer Media Publication. For more information on this streaming video program, other law.com seminar offerings, and our upcoming seminars, please visit http://www.law.com/seminars. RICHARD LEE, INTERNATIONAL CONSULTANT, SAN FRANCISCO, CALIF. It’s probably best to define new media by starting with old media, which is, I guess, the media before digitization — newspapers, magazines, books, movies, videocassettes, television, recording. The new media, on the other hand, is at the intersection between digitization and the Internet. Examples include online news, magazines, books, DVD movies and digital music in formats such as MP3. The point is that this radical shift in the ability to reproduce information that came about with digitization has affected distribution, control and the ability to publish information. And it’s that radical shift that has focused the rapidly changing law in this area. In terms of intellectual property and copyright, several questions arise. Who owns the information? Who publishes the information? Who has access to the information? Who pays for the access? Who can impede or frustrate access, and who can copy the information? CLAUDE M. STERN, FENWICK & WEST, PALO ALTO, CALIF. I think new media, the way you’ve defined it, raises issues about who controls the media. Particularly in the copyright venue, the issues really come down to breaking some of the conventional models and developing new models with respect to control. The entire federal Copyright Act assumes that there’s something called a copy, which is supposed to be a work that is fixed in a tangible medium. The problem in the new media is that there is no tangible medium. It’s all digitized. And when you don’t have a copy, the question is: how useful is it to apply conventional norms and conventional rules concerning the limitations of how one controls copies? The challenge that’s raised by the new media is that we are trying to apply some of our conventional rules involving conventional media to the new media. It provides a challenge to the authors of the works, to the people who distribute and publish the work, to the people who are using the work. And I think it’s also fair to say it’s a tremendous time of uncertainty for everybody. All the lawyers around the table represent clients who are on various sides of the issue. And in this time of uncertainty, we are trying to figure out to what extent the conventional elements that comprise the rights of copyright can be applied to the new media. I’d like to say that I or somebody else around this table has an answer, but I doubt that’s the case. We’re just trying to spot the issues. JAMES CHADWICK, GRAY CARY, PALO ALTO, CALIF. Court decisions have held, for instance, that transient storage of a digital copy of a document in a computer’s random access memory (RAM) constitutes a copy. I don’t think the courts really understand the ramifications of that holding. And since we have courts trying to make decisions that have significant ramifications based on less than a sophisticated understanding of the technology they’re addressing, the problems are going to get worse before they get better. RICHARD LEE I assume that anytime I download anything, I’m making a copy. JAMES CHADWICK You don’t even have to download it to make a copy. If you look at it, you’ve made a copy. MEGAN E. GRAY, BACKER & HOSTETLER, LOS ANGELES, CALIF. The holding about RAM use being a copy came out before the Internet, and it was hard to predict that it was going to go to such a point that the model would completely break. In terms of applying that analysis to the Internet, there is just no way to try and enforce a copyright with that vision of the Internet. There are too many copies. The very basis of the Internet is copy. JAMES CHADWICK Part of the problem is that every time you try to adapt decisional law to the technology, the technology changes again. CATHERINE KIRKMAN, WILSON, SONSINI, GOODRICH AND ROSATI, PALO ALTO, CALIF. I think what that shows is new media in the past has meant old wine in a new bottle. But what is the new bottle, and does a party have the right to put something in the new bottle? The courts may not be adapting, or be on top of, the ramifications, so all the stakeholders are looking for legislated solutions. The Copyright Act is becoming a reactive reflection of all the stakeholders’ concerns and a negotiated document. And so it seems like the clarifications are going to be made in large part through legislation. CLAUDE M. STERN In the interim, there have been technology changes, and the courts have to do something. As a practical matter, it will end up being the courts who are going to be devising the game plan while legislators figure out who has what rights. RICHARD LEE What about the Digital Millennium Copyright Act (DMCA) of 1998? What’s good and bad about that? JAMES CHADWICK We’ve been talking initially about copyright infringement. But now there’s a whole new field for lawyers to fight endlessly, and that’s circumvention, which to me is scarier in some ways than infringement. With infringement, at least we have some traditions to guide us. And although the DMCA alters infringement in some ways, primarily through the enactment of the safe harbor provisions, infringement analysis hasn’t changed radically. Circumvention is a whole new ball of wax, and it has potentially Draconian applications, including criminal liability for disseminating things like DeCSS (software that decrypts information, including movies, contained on digital video disks, or DVDs). Nobody who is on the Internet now could possibly mistake the fact that courts have said DeCSS is a circumvention technology. So if you know that and you’re still out there distributing it, you’re now subject to criminal liability. MEGAN E. GRAY We’ve always had contributory infringement. Isn’t that really the same thing as circumvention? JAMES CHADWICK Circumvention isn’t just about derivative liability. It now creates direct liability for something that doesn’t result in infringement. RICHARD LEE Let’s get some examples of circumvention. JAMES CHADWICK DeCSS is a current one. The circumvention provision says that regardless of whether or not you actually use DeCSS to infringe anybody’s copyright, because it is a technology that permits the circumvention of copyright protections, you can be subjected to civil and criminal liability merely for distributing it. CLAUDE M. STERN Doesn’t that make sense? Historically, if I wanted to make a copy of a particular book, I had to take the book physically over to a machine and make a copy of it, which took a certain amount of effort. Then I could stand by the machine and reproduce a certain number of copies, but it took a certain amount of effort and deliberation over time. The anti-circumvention provision in the DMCA has two different provisions. First, it makes it unlawful to circumvent technology whose purpose is to prevent access to an otherwise copyrighted work. Second, it prohibits decrypting or circumventing a technology, which prevents the copying of a particular work. It was never unlawful to get access to a work before you copied it under the Copyright Act. Doesn’t this reflect reality, namely that once somebody has circumvented the protections of a particular author of work in an effort to copy it, we want to be able to stop them and say that’s unlawful? Doesn’t it show our priorities by making sure that when somebody decides to use some sort of encryption technology to protect access to a work, we’re going to allow social policy to further the interest of that author and protect that work? I don’t think that’s necessarily bad. I think given the digitization that we are all living with, I think that may be a good move. JON SOBEL, YAHOO, SANTA CLARA, CALIF. I think with all of these measures, whether it be common law doctrines of contributory infringement or statutory fixes, there are some very understandable concerns behind them. But there’s also the potential for overreaching and abuse. If we think back to what seems like ancient history — attempts to prohibit distribution of an MP3 player — the arguments were the same. The arguments were that this device will allow people to engage in piracy. It’s only been a year and a half or so since that case. I don’t think anyone would sincerely argue today that there’s tremendous social value in having those kinds of devices. So when we put rules in place that are designed to address very understandable concerns, things can quickly get out of hand. I think Congress has shown a very commendable degree of restraint in trying to address the problems on some level. The DMCA is clearly an attempt to balance concerns, and members of Congress are under enormous pressure to respond to concerns on all sides. The rights holders are very well organized, so I think that pressure is most clearly felt. But the danger of a hastily designed cure is probably far worse than the disease.

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