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  With the advent of digital data it is possible to make essentially perfect copies. The days when each copy of a copy was worse than the copy before are now over.  They are all perfect renditions of the original.  Moreover, with the advent of the Internet today it is possible to effortlessly distribute perfect copies worldwide.

  The ease of creating perfect copies can become the ease of stealing perfect copies, and it has.  In 2000 the Recording Industry Association of America alleged the industry suffered losses of $4.1 billion due to piracy.1  Overall, the International Intellectual Property Alliance (IIPA) estimates the U.S. content industries2 worldwide losses to piracy at $22 billion.3  In 2001 and in the first half of 2002 music sales fell, and only one album has sold more than ten million copies worldwide.4

      The content industry has responded in two ways.  It has created technologies that prevent or impair unlawful copying, and it has lobbied Congress for legislation to protect their interests in copyrighted material.

  As much as digitization and the Internet impact the content industry, its approach to protecting itself both impedes “fair use” and raises questions as to the constitutionality of the current copyright regime.

      At its inception, copyright served to balance public and private interests.  Digitization and the content industries response are dramatically changing the processes of information creation, distribution, use, and preservation.

  This paper discusses the current concept of digitization, and explains both the current technological and statutory approaches to protecting the interests of the content industry.  The impacts on the public interest and fair use are addressed.  Finally, alternative approaches are presented to the problems facing both the public and the content industry.

  Copyright is a set of exclusive rights in literary, musical, choreographic, dramatic, and artistic works.  The individual holding a copyright has the exclusive rights of reproduction, adaptation, public distribution, and performance.5  The Constitution guarantees this right: "Congress shall have Power:  [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."6  Congress has codified the Copyright Clause in what is now Title 17 of the U.S. Code.  Copyright attaches as soon as work is created and recorded in some medium.7  Currently, most copyrighted works are protected for the life of the creator plus seventy years.8

The framers intent was to strike a balance between the interests of the creators in receiving compensation for their works while allowing the public access to these works.9  As the Supreme Court itself characterized this balance in the Sony case:
The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.10
 

  Digitization has been around since the advent of computers.  Turning images and sounds into a series of ones and zeros, the binary code computers understand, makes them less susceptible to errors or deterioration and furnishes a higher quality of sound and picture.11  Until the mid 1970s computers able to handle these types of files were unavailable to the public.

Today consumers not only have the hardware and software available to view and hear digital works, now even a child can download, upload, distribute, copy, create, and alter any digital copyrighted work.  Unfortunately, often these activities can amount to copyright infringement when they involve copyrighted material.  Infringement becomes Internet piracy when uploading, posting, emailing, transmitting or posting links to any copyrighted content.  The music industry has had the most visible blow to its copyrighted works but television and film are also in danger of mass infringement.12

  Digitization and related technologies13 have facilitated the ease with which digitized content may be used, distributed, and infringed.  For example, CD-quality music in a digital format takes up a lot of space on a hard drive, and is, therefore, not easily distributed.  However, MP3 (compression) technology allows the distribution of smaller music files without seriously affecting the quality.14

   It was Napster’s use of MP3 technology and the ensuing litigation, that really brought Internet copyright infringement to public attention.  Napster is the creation of an innovative college student who wanted to share digital music with his friends.  Shaun Fanning created the computer code that would allow anyone else using the code to access his music files and allow him to access theirs.  Eventually, he launched an Internet website that allowed anyone to use his software and download music from other computers for free.15  It is reported that in the first year, Napster had 20 million individual users.  In other words it hosted 20 million possible copyright infringers.16

  Eighteen recording companies, all members of the Recording Industry Association of America (RIAA), filed suit against Napster Inc., on December 6, 1999, alleging contributory and vicarious copyright infringement.17  Vicarious copyright infringement allows the copyright owner to hold an individual accountable for the infringing actions of another, similar to respondeat superior liability.18  In other words, Napster was found to have both the right and ability to supervise and control the infringing activities of its users, and a direct financial interest in these activities.19  In addition, Napster was liable for contributory infringement, having directly contributed to another's infringement of the copyrighted works.20  After establishing that infringement took place, Napster was found to have known of the infringing activity, and to have induced, caused or materially contributed to the infringing activity.21

  Since Napster peer-to-peer (P2P) file sharing has grown, in spite of the possibility of vicarious and contributory infringement claims.  Although the music industry is also going after other makers of swapping software, like Kazaa, it has been more difficult.  The newer sharing programs have no central server.  There is no way, for example, for Kazaa to monitor what types of files are traded.22

  In part the growth of peer-to-peer file sharing can be attributed to consumer attitudes.  Consumers often pirate music or software because it is available.23  Part of the problem with the public is that they view Internet piracy as a victimless crime.24  According to Iser and Toma, “[I]n a recent survey, 22% of people between ages 12 and 44 agreed with the statement, "You no longer have to buy CDs, as you can download the music for free from the Internet." In addition Edison Internet Research found that seventy-four percent of teens feel there is nothing morally wrong with downloading music for free.25  These attitudes contribute greatly to Internet piracy.

      Although, some consumers do have a flawed sense of entitlement to copyrighted material, the content industry does have some responsibility in creating this problem. Poor treatment of consumers by the content industry also furthers Internet piracy because even if consumers did recognize a victim and a crime, the content industry would be seen as a deserving victim.26  Consumers do not like paying such high prices for content, especially now that they know how easy it is to access and create.27  Furthermore, the industry should have been availing itself of online deliver to cater to the publics needs.  This approach could also offer a content creator peace of mind that their work will not be pirated merely because it was available.28  Additionally, the music industry has certainly deprived the consumers of what they want.29

  It is unnerving to pay $20.00 for a CD only to find that the only good songs are the ones overplayed on the radio.  If consumers could purchase individual songs or download directly from the recording company, exactly what they want at a reasonable price, honest consumers would probably remain honest.30

  High definition television (HDTV), movies, and ebooks all have the same potential fate as digital music.  By 2007 television broadcasters will be required to go digital.31 HDTV, unlike a DVD, is not encrypted, and therefore is a concern for the content industry.  The FCC has been trying to free up a bunch of unused spectrum for wireless services by coaxing the nation's TV broadcasters to move from analog to digital broadcasts.32  Once a digital broadcast is copied it can be downloaded and widely distributed via the Internet.

  There are several ways for Internet piracy to affect the revenue of the television industry.  First, cable and satellite allow access to hundreds of televisions channels.  This has created a large market for old television shows because there is so much airtime to fill.33  However, why would a consumer watch Seinfeld on TBS, when she could download it for free (and without commercials) and choose which episodes she prefers to watch?  Second, successful television shows are now being sold on DVD or tape, but if the consumer can download it for free, why bother purchasing it?34  Finally, if Neilson ratings go down because people are not watching television or are watching television on computer, what happens to advertising revenue?35

  The film industry also fears the financial burden of Internet piracy.  The film industry has been slow to enter the digital market.  Not only would televised movies suffer the same fate as digitized television shows, but the cost of transitioning from the current analog system to a digital system is billions of dollars combined for networks, production studios, local television stations, and major cable companies.36  Why would the film industry spend that much if it could cause the loss of billions of dollars?  Therefore like the music and television industries, the film industry needs to protect itself.

 Dickinson would argue that the content industry deserves protection from pirating simply because of the revenue it generates and the jobs it creates.37

  Although the content industry does expect help from Congress to protect its interests, it is also using technology to prevent infringement, because even with strict statutory penalties copyright infringement abounds.

    The technologies the content industry has turned to in order to protect copyright are an element apart of what is called digital rights management (DRM).  These technologies limit the duplication, transfer or any use of content the copyright holders do not desire.  "This means of controlling content rights with technology comes in various forms and supports various business models. For example, forms of DRM are used in (1) DVDs (which use the Content Scrambling System), (2) dedicated DSL set top boxes, (3) digital encryption encoding of satellite signals, and (4) video- cassettes (which use Macrovision)."38

  Digital television broadcasts are higher in quality; they provide viewers with both a better picture and better sound.  Further, digital programming has the potential to be interactive and give viewers more choices on a single channel.39  Yet, fewer than three percent of American households have digital television.40  Digital television has been incredibly expensive, but the costs are going down, and consumers still will not invest in the technology unless they know they are getting quality broadcasting in return, like blockbuster Hollywood movies.41  But, Hollywood will not allow its films to be broadcast digitally until there is better protection against piracy.42

  “Broadcast flag" is a DRM technology that offers one viable solution to this problem.  Broadcast flags are signals attached to the digital broadcast that prevent the show from being copied.  The coding does not affect the quality of the broadcast and in some forms does not prevent the copying of digital programming, just the Internet distribution of it.43

  Once digital content has a broadcast flag encoded into it, the code remains with the content.  Therefore when a television broadcast converts digital images back to analog for our television sets, a digital recording will still have the broadcast flag attached, which will prevent the making of copies.44

  The Motion Picture Association of America supports the broadcast flag technology.45  In addition, the Broadcast Protection Discussion Group (BPDG) -- a private industry group consisting of over 70 representatives from the consumer electronics, information technology, motion picture, cable and broadcast industries -- has approved broadcast flag technology.  Based on their approval the FCC issued a Notice of Proposed Rulemaking regarding the use of broadcast flags.46  It is questionable what role the FCC should play in protecting copyright, especially when the industries woes have not been proven.47  The film industry has not proven that the same perils exist as with the music industry, especially since 2002 was their largest and most profitable sales year in history.48

  A concern about broadcast flags is that they will be removable without affecting the content, making the safeguard obsolete.  Therefore in order to guarantee the effectiveness of the technology, hardware will have to be created to ONLY read works with broadcast flags.  However, most of the DVDs and MP3s currently on the market do not contain broadcast flag technology, and would not be usable on new equipment.49

  Other DRM measures include “spoofing.” Decoy files are created to hinder file swappers searches for a particular song.50  Interdiction "creates an online traffic jam that blocks others on the network from accessing a work offered for copying. For example, last year Eminem's record label allegedly flooded the file-swapping networks with bogus copies of songs from his recently released album. These decoy files played the same short segment of the song over and over again. As individuals could not distinguish between real songs and decoys, their efforts to access pirated files were frustrated."51  Other technologies on the horizon will allow search queries to be scrambled and slow down the download process.52

  The Music industry has had some problems with some of the DRM measures they have recently taken.  One approach to protecting CDs is to release CDs with errors on them.  This prevents the consumer from copying CDs for personal use or from playing them on computerized devices (computers, DVD players, game consoles like PlayStation, MP3 players, consumer CD duplicators, high-end stereo equipment and car CD players).  How this works is that a traditional CD player can decipher a signal even if there are errors or scratches on the CD.  The computerized devices are much more sensitive and cannot compensate for these errors.53  Often these CDs cannot be played on Macintosh computers or are so corrupt they make any computer crash.54

  DRM can effectively manage consumer access to digital works.  "These technologies have advanced from passive password or IP domain models to more active encryption, invasive self-help, and digital rights management (DRM) systems."55  DRM technology tracks and limits the use of digital works by encoding controls into products that can serve to prevent copyright infringement but also reach further and prevent use that is non-infringing.56

   The various technologies the content industry uses to prevent copying impedes on consumer use (as with the errors on CDs) and fair use of copyrighted material.  The fair use doctrine confers privileges on people other than those that hold the copyright.  Reasonable use of copyrighted material is allowable, notwithstanding monopoly grant to the owner."57  Fair use includes such use by reproduction in copies or phonorecords or by some other permissible means, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.58

  Courts look to four factors in determining if a use of copyrighted works falls within the fair use doctrine:59 (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; (4) the effect of the use upon the potential market for or value of the copyrighted work.60  The Supreme Court held that as long as users are entitled to fair use of a form of expression, then the Copyright Term Extension Act survives a First Amendment Constitutional challenge.61  Although, fair use is not a right the public has, it is simply a defense to a copyright infringement claim.

   Digital rights management gives the content creators more power to control what consumers read, how many times they can read it and if it can be printed, copied, recorded, transmitted.  This will affect the fair use of these works, in fact it may completely abate it.

  In the not so distant future books, newspaper and magazines will join the world of movies, music and television and be available in a digital format.  Text on the page will change whenever the page is turned.62  As we are awed by these advances in technology it will be possible to use this to preempt fair use.

  It is feasible that with the distribution of an electronic book, the publisher might only permit a certain number of viewings before the content becomes inaccessible.  There may be blocks on the software prohibiting printing of the text or even a small portion of the text.  Further, software can be coded to work with only one device, after uploading something into your digital book, you may not be able to loan it to a friend.  As Rick Karr, NPR Culture, Media, and Technology Correspondent stated it, "[y]ou're losing freedom: to record a TV show and watch it later; to photocopy a page out of a book; to e-mail a news article to a friend. And someday, the critics say, you may no longer be able to check a book out of the library" with the advent of digital rights management.63

  With this loss of freedom, someday copyright could be used as an instrument of censorship. Once the content industry is able to control how and when we access copyrighted information, they are able to prevent the fair use of that information.  Without fair use the public has no way to comment, critique or parody without having to first obtain permission and pay a price giving the copyright holder carte blanche over the work.64

   The impact of the elimination of fair use can best be seen when examining how digital content affects the lending library.
Critics fear the new legal climate could eventually kill off the public lending library.65  Nancy Kranich, former president of the American Library Association, explained that the first sale doctrine allowed a library to buy a book and then do anything they wanted with it.66  This allowed the lending library to exist.  It only had to purchase the book once, and any number of users could check it out.  As books become digital, libraries have to purchase licenses to use these materials.67  Licensing schemes could require libraries to pay several times for the same material, or could base the payment on how many people use the material.  This becomes too costly for the public library.

      In addition the licensing agreements themselves restrict the libraries use of the digital copyrighted material, and this includes how the libraries' patrons use the material.68  As more things become digital, everything we were once able to do in a library will cost money each and every time it happens under these licensing agreements.  According to Rick Karr, "[d]uring a budget crunch, a library might not be able to pay the 'rent' on a digital book, so to speak. And so the book will disappear from the library's collection."69  As James G. Neal, librarian, put it:
 
 The American library community is confronted by a copyright axis of evil. The combination of globalization, extensive new laws and legislation, rampant licensing of information, and new technological controls is making it increasingly difficult for libraries to serve their users. Librarians must be at the frontlines of the intellectual property wars. The opposition--the content owners--are well-financed and well-organized. Under the guise of protecting copyrighted works from the ravages of network piracy and digital abuse, some are committed to undermining the copyright system that has developed over two centuries.70

  Libraries have reason to fear these new measures.71

  Broadcast flags are another technological advance that obstructs fair use.  Broadcast flags are a mark on digital programming that limit the improper use of digital television programming.  The mark also prevents fair use like video taping a television show to watch it later, or play it in a different device.72  So, imagine a student who has created a PowerPoint presentation for class and with video clips from a television show.73  It might work perfectly on her home computer, but the broadcast flags will prevent her from e-mailing the work to her teacher or even showing it on a school computer because she couldn't burn it to a CD.74

    The content providers argue they need these extra legal and technological protections.  The music industry says it needs protection because of piracy and the advancements in technology.  Recent DRM technological developments lock each track of music to a particular device.  While proponents of DRM claim that it merely helps keep honest users honest, in fact, argues Cory Doctorow of the Electronic Frontier Foundation, a lobby group, it "keeps honest users in chains."75  The elimination of fair use upsets the copyright balance of public and private interests.  "The more we limit fair use, the less likely we will enjoy the benefits of the creativity and innovation that are now possible under our intellectual property system. The more we dictate standards, the less room we have for broad accommodation and market-based solutions. Indeed, the broadcast flag proposal seems destined to create a cartel of content and technology producers that will decide who may prosper and who will not."76

  Congress is deeply ensconced in aiding the content industry to protect copyright.  The Copyright Extension Act (CTEA), the Digital Millennium Copyright Act (DMCA), and the Audio Home Recording Act have all gone a long way to protect the interests of the content industry generally and with respect to digitized works.
 
A. The Copyright Extension Act

      The CTEA is the eleventh congressionally mandated extension of copyright terms in 40 years. Copyright terms were extended only twice in the first 120 year history of our republic - once in 1831 and once more with the passage of the Copyright Act of 1909.77  Originally, under the Copyright Act of 1790, a copyright was granted an initial term of 14 years which could be renewed a second 14 years.78  It is this act that extended copyright to be the length of the creator's life plus seventy years.  This added twenty years to the prior act.  Before these extensions copyright was a fixed period of time.

      Although the extension does not directly deal with digitized copyrighted works, it is one way the content industry has been able to ensure stronger copyright protection generally.  The legal protections coupled with the technological measures being taken, as previously noted, impede fair use of copyrighted material, but as this paper demonstrates, also frustrates the framers original intent in creating copyright laws.  In addition, the CTEA shows how far Congress will go to appease the content industry, even at the expense of the public interest, fair use, and the Constitution.
 
B. The Digital Millennium Copyright Act

  In October 1998, Congress passed the Digital Millennium Copyright Act (DMCA).  The provisions of the DCMA try to promote the distribution of copyrighted works over the Internet.  For example, the DCMA prohibits the descrambling of any encryption used to protect copyrighted works.79  Selling, manufacturing and importing technology that is designed to circumvent copyright controls is prohibited.80  Also to promote digital copyrighted works the DCMA prohibits the manufacturing or selling of devices that circumvent access controls81 "such as "black boxes" that illegally capture cable signals, rather than conduct."82

C. The Audio Home Recording Act

  In 1992 Congress created the Audio Home Recording Act (AHRA).83  The AHRA prevents the content industry from going after consumers, manufactures, and distributors for infringement when they make use of, create or sell home audio recording equipment.  Before digital technology the content industry was not too worried about home recording because the original was always far superior to the copies.  However, the development of digital audiotape (DAT) technology enabled perfect digital copying.  "The AHRA allows consumer electronics manufacturers to sell digital audio recorders and recording media and allows consumers to use the recorders for home taping. This Act also compensates affected parties, such as record companies, songwriters, and music publishers, for revenues lost due to such home taping."84  In addition to getting royalties, the content industry is also guaranteed that one of three copyright protection systems will be in the digital recording devices.

  Critics claim the most recent extension to copyright, the Sonny Bono Term Extension Act (CTEA85), in 1998 (also known as the Mickey Mouse Protection Act)86, unconstitutional because it virtually eliminates the limited time for copyright, it violates the First Amendment, and it does not promote the progress of science and useful arts.  The current copyright regime focuses its benefits on big business/the content industry/mass media conglomerates and threatens to dry up the public domain.  Together with the DCMA and the AHRA, Congress has created a copyright regime that favors the content industry and neglects the rights of the public.

A. The CTEA and For a "Limited Time"

  Copyright attaches to a work as soon as it is created and recorded in some medium.87  For works created after January 1, 1978, copyright lasts for the life of the creator plus seventy years.88  Copyright easily protects for more than 100 years.  For example, the current life expectancy of the average woman is 80.89  If she publishes something at 35 and lives until 80, that's 115 years before the work enters the public domain, not quite forever, but certainly a drain on the public domain.

  The framers sought to promote the progress of science and art by creating a monopoly in the creator of a work for a limited time.  In addition, the framers endeavored to strike a balance between the interests of the creators in receiving compensation for their works while allowing the public access to these works.90  Siva Vaidhyanathan describes this as the copyright bargain.91  The copyright holder is granted a monopoly in order to earn money, and in exchange the public gets access to the copyrighted material and it eventually enters the public domain.92

  The extension altered copyright laws, so they no longer resemble what the framers intended.  Life plus seventy years hardly seems limited, but is virtually limitless.93  The content industry lobbied Congress to extend copyright, so much so that it does not necessarily promote the progress of arts and sciences, its justifiable ends.

  The content industry argues that the extension allows publishers to make more money off of copyrighted material.94  This money can then used to publish more works.95  Similarly, the industry finances the restoration of older works, especially film, which is costly to restore.96  Yet, thousands of old movies, records and books fade behind a legal blockade because copyright prevents the public from accessing them.97  The vast majority of older works whose copyright has been retrospectively extended are not even commercially viable.98  However, not being commercially viable does not mean the public cannot benefit from these older works.  Except, due to the CTEA these works will remain unused.99

  The Supreme Court recently held the CTEA  constitutional.  In Eldred v. Ashcroft100 the petitioners challenged the CTEA on two Constitutional grounds.  First, the CTEA is not for a limited time as required by the Constitution.  Second, the CTEA violates the First Amendment's free speech guarantee.101

  Petitioners do not argue that adding 20 years to the term for a copyright is the flaw with the extension, but that the extension retroactively affects works with existing copyrights.102  For example, Gershwin's Concerto in F, written in 1925 would have entered the public domain in approximately 1983.  However, with the CTEA, Gershwin's copyright will not expire until approximately 2025.103  Petitioners claim this violates the limited time means in the Copyright Clause.

  The Court found that each time Congress extended copyright it applied to existing works and future works alike, and therefore noted the argument had little weight.104

   Furthermore, the extension was not in perpetuity and therefore copyright still exists for a limited time.  The Court also discerned that it is persuasive that the American law is in line with both the Boerne Convention and European law.105  Yet, in the past the Court has held that complying with foreign law is not a valid reason for creating unconstitutional laws.106  Ultimately, the Court's decision focused on the fact that it is Congress' job to worry about copyrights, and it is not the Court's place to question their actions.107

  Both Justice Breyer and Justice Stevens dissented to the Court's opinion.  Breyer thought the statute unconstitutional for falling outside the scope of the legislative power in the Copyright Clause.108  Although the extension is not perpetual, he finds that it virtually is.109  Justice Stevens agrees, under the majority's analysis Congress may continually extend the length of copyright retrospectively, thereby preventing works from ever entering the public domain.110

  Most importantly, Breyer finds that the extension of time does not produce the wanted result - to promote the progress of art and science.  Breyer eventually turns to the framers themselves to advance his argument.  Madison warned against monopolies, but found they were valuable for the authors of books and inventions.111  In those two instances the monopolies were temporary and there was actually a community benefit.112 This idea should carry through today, and Congress should not be extending copyright without trying to strike a balance between the public and private interests.113

  Justice Stevens in his dissent stressed the exchange of the grant of a limited monopoly for the later contribution to the public domain, and he found Congress did not honor this bargain by allowing the private interests a windfall.114

B. Promote the Progress of Science and Useful Arts

   As previously stated, the purpose of extending a monopoly to the creators of useful arts and science, for a limited time, is to promote progress  -- stimulate writing, creativity, learning, knowledge and invention.  Precedent shows that Congress' motivation to extend copyright should be to serve the public and not the private interests.115  Justice Breyer is skeptical of Congress' motive for enacting the CTEA, and he argues that it is not for the promotion of the arts because the extension actually inhibits it.116  Similarly, it could be argued that the DMCA and the AHRA, also were not created to serve the public interests.

   The costs associated with someone or, more often, some corporation holds the copyright an interested party pays to use of the work.  According to a Congressional Research Service report, approximately "2% of copyrights between 55 and 75 years old retain commercial value--i.e., still generate royalties after that time."117  In order to generate revenues from the multitude of older works with copyrights, the few classics might have higher than necessary royalties.118  Another added cost is that of obtaining permission to use copyrighted material.  The need to locate copyright holders, in order to obtain permission to use their work, deters potential users, especially if the work has n o commercial value, and its intended user is a scholar, historian, teacher or writer who may benefit from access to historical information and works.119

  It is not difficult to discern what Congress' motive was when enacting the CTEA.  Companies like Disney, the American Society of Composers, Authors, and Publishers (ASCAP), the American Motion Pictures Association, and others from the content industry bought the CTEA.120  They spent millions lobbying Congress in order to prevent images like Steamboat Willie (an early Mickey Mouse) from entering the public domain.121  Copyright protection is supposed to balance public and private interests but it cannot because it is impossible to quantify those interests in order to identify a balance.  Even if we could, that's not what lawmakers respond to.  Looking at this from the perspective of public choice theory, Congress' behavior is hardly unreasonable.  Public choice theory hypothesizes that lawmakers cannot balance the public and private interests in the case of copyrights.122  Even with all the available data and the knowledge of what effect this extension will have on the public domain, lawmakers will not necessarily use that information to make laws.123  Lawmakers, like most humans, respond to certain stimuli, and the money lobbyists throw at politicians to extend copyright is a strong stimulus.124  The CTEA purposefully keeps works of mass communications culture from entering the public domain on the schedule copyright provided, so their owners could hoard them for as long as their money could buy.125

  In bowing down to these corporations Congress negated the copyright bargain between the public and the private interests, and Congress is no longer promoting the progress of art and science.  It is easy to see how continued royalties is a major incentive for the content industry, but that is difficult to reconcile with the empty promises and continued higher prices the public must pay to access information that should have gone into the public domain.

  Interestingly, it is important to recognize that often it is not the artist that is benefiting from this extension.  Often, the artist signs a contract with some large corporation giving away his rights in order to be produced/published/heard.  Then the artist earns mediocre royalties while the copyright holder earns more.126  Only an artist with enough clout or importance or that brings in tons of money is able to negotiate these standard industry contracts that require the creator to sign away most, if not all, of his/her copyrights.  This is interesting because it too seems a step removed from what the framers originally intended.  No longer does copyright simply protect the creator, but instead has help create the colossal content industry we have today, which also seems removed from promoting the progress of the arts and sciences.127

  However, maybe the size and success of the content industry is reason enough to extend copyright.  An industry that generates so much revenue, supplies jobs and advances technology should simply be able to do whatever it needs in order to maintain its success. Without copyright Hollywood would not be able to make multi-million dollar films, Jack Valenti, Chairman of the Motion Picture Association of America, argues that without copyright expensive, high quality, high budget material will not get produced.128  Pat Schroeder, a lobbyist for the industry, argues that they export more goods than the car, agriculture and aircraft industries, and it deserves the same kind of protection as those other industries.129  The arguments advanced by the industry are all well and good, but they do not explain the need for the extension of copyright, and their arguments certainly do not justify the extension in order to truly serve the public, but more likely their pocketbooks, eventually negating the Constitution.

  Although both the DCMA and the AHRA seem to work in the public's favor, they still clearly are for the benefit of the content industry.  The at home recording protected by the AHRA, was already protected by the fair use doctrine.  The AHRA did not grant any new right onto the public, it merely charges them (via royalties) for what they were already entitled to do.  In order to really serve the public, the AHRA should have codified the fair use doctrine, as a right instead of as a defense to infringement like in the Copyright Act of 1976.  Had that been the case the public would be able to stand up against the DRM technology that threatens to end fair use.

  Moreover, the DMCA fails to promote the progress of arts and sciences when it denies scholars and researchers the fair use defense when conducting research on copyrighted works.130  The DMCA bans all uses for technology like ebooks, regardless if the uses are infringement or fair use.131  So, when Russian programmer, Dmitry Sklyarov created a program that allowed a user to make copies of legally purchased ebooks and read their books on more than one computer, he violated the DMCA.132  Sklyarov's criminal prosecution by the FBI was the first under the DMCA.133

C. First Amendment

  Petitioners in Eldred claimed the CTEA violated the First Amendment's free speech guarantee because it is a content neutral regulation of speech.134  There is a basic conflict between copyright laws and the freedom of speech guaranteed in the First Amendment.  Principally, copyright is good for expression and disseminating ideas, which is why it is allowed to conflict with the 1st Amendment.135  Finally, the Copyright Clause prevents people from disseminating speech.

  Judge Ginsberg, when first hearing the Eldred v. Ashcroft case (in the district court) stated that the copyright is "categorically immune from challenge under the first amendment."136  In Harper & Row Publishers Inc. v. Nation Enters137 the Court explained the relationship between copyright and the First Amendment.  "[C]opyright's idea/expression dichotomy 'strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression.'"138 Further, copyright only protects the explicit expression, a creator may not copyright ideas or facts.139  Therefore, the Court has always seen copyright as fostering the dissemination of speech, as opposed to inhibiting it.

  Erwin Chemerinsky notes the benefit of copyright to the dissemination of ideas, but explains that extending copyright protections after the speech has occurred does nothing to foster creativity or the dissemination of ideas.140  Nothing in the Court's history has ever given Copyright a blanket First Amendment immunity, and yet recently the court keeps relying on it.141

   There are First Amendment implications of the DMCA as well.  The DMCA has a fair use exemption for encryption research142, but in fact, in certain cases this provision limits fair use and places encryption researchers in the realm of infringers.143  The DMCA limits the traditional fair use doctrine because instead of applying a test to be used on a case-by-case basis, the DMCA explicitly lists which users are allowed the fair use defense.144  Many scholars will not meet the requirements necessary to be able to legally conduct research on copyright encryption.

  Essentially, the DMCA prohibits much speech regarding decrypting.  For example, professor Felten, along with some colleagues, entered a contest that invited to public to decrypt four watermark technologies for digital audio files.  After successfully cracking the code, Professor Felton was going to present what he found to the public.  The RIAA stepped in and threatened enforcement actions under the DMCA.  Although, the RIAA denied this, and Felton eventually presented his paper, he brought a cause of action against RIAA seeking a declaratory judgment that the DMCA violated the First Amendment, and the case was dismissed.  Much of the recording industry has agreed not to pursue academicians who research encryption flaws, however, the law still gives them the opportunity to pursue scholars and researchers who can show weaknesses and flaws in encryption technology.  This type of research is important for both the public and the content creators.  If a recording company relies on a weak encryption device, then it might as well not be protected.  It is very possible that researchers, not tied to the device, could better find the flaws of an encryption device, but then they cannot present their findings to each other for fear of prosecution.  A non-binding promise from the industry does not seem like enough to make an unconstitutional violation of free speech constitutional, and there is certainly no real guarantee that later prosecutions will not occur.

A. Proposed Legislation

1.  The Hollings Act

   There are several initiatives before Congress right now concerning copyright in a digital age.  Although most fit within the scope of this paper, only three are addressed.

  First is the Hollings Act.  In order to protect digital content this bill requires that digital devices include FCC-approved copyright protection standards. Similar to the DMCA, the Hollings Act prohibits circumvention of encryption devices.  Another section of the bill tries to make MP3 players illegal.145

  Critics of the bill find that it is too vague and that digital devices could encompass the entire computer industry.146  The fear is that the act would also affect p2p networks that do not distribute copyrighted material and other file distribution methods such as FTP and the Web, hard disks, Zip drives, tape drives, and floppies are all capable of reproducing digital media.147

  Another problem is that if the FCC incorporates a standard fit for digital music or film, it may neglect the software industry that can also distribute digital content.148  The software industry, in the past, tried to use encryption code to prevent copying, but has found requiring users to register their copies to be more successful.149  In trying to protect the entertainment industry's interests, the federal government would require software and hardware developers, network developers, and protocol designers to comply with a mandated security standard or risk prosecution.150

2.  Mandatory Broadcast Flags

  Another bill before Congress also requires the FCC to approve copy protections for digital broadcasting.  Essentially, the FCC would require HDTV, DVD players, VCRs and such to use broadcast flag technology.  Much of the content industry wants broadcast flag technology, but it seems that the marketplace is where that decision should be made, and not in Congress or by the FCC.  If the content industry is required to rely on an FCC standard, it may impair other protections and the development of better protections.

3.  Anti P2P file sharing measures

  A third bill would allow the content industry to take action against those sharing their copyrighted material.  The bill mainly addresses the peer-to-peer file sharing phenomenon.  The bill fails to give an individual notice if the copyright holder is hacking into their computer to see what files may have been shared, and an individual should be able to defend herself, especially if the copyright holder is wrong or has made a mistake.

4.  The Digital Media Consumers’ Rights Act

  The most consumer friendly bill introduced to Congress seeks to prevent fair use.  The Digital Media Consumers' Rights Act seeks to codify fair use and requires CDs to be labeled if they cannot be shared, especially since, the DRM technology prohibiting CD copying also prevents CD playing in certain devices.151

  The content industry is worried about the scope of this bill and being able to protect themselves because digital media are so easily copied and distributed.  Intel, Gateway, and Sun Microsystems joined a host of companies and organizations representing the IT industry are behind the bill because these companies believe that protection measures should still accommodate fair use of the content by consumers.152
 
This act modifies the DMCA, which allows the content industry to go after, not only those who distribute large amounts of copyrighted works all over the world, but the individual users.153

B. Altering the Copyright Regime

  Not everyone believes our current copyright regime is bad.  The content industry generates so much money, and deserves protection from piracy, especially Internet piracy.  Further, both consumers and copyright owners have committed offenses in this battle.154  The consumers behave as if they are entitled to free access to copyright material, or at least they do not realize they are committing a wrong, and the industry charges too much and keeps lobbying Congress for laws that impair fair use.  On the other hand, others demand change because currently Congress is drafting laws that forget about the public.155

  There are others, that believe copyright should be eliminated entirely.  The framers were motivated to include the Copyright Clause in order to help disseminate ideas.  With the Internet ideas can be widely distributed with little cost to the creator.  The creator will still have a limited time to profit solely from the creation before others pick it up, and for many going to a concert and hearing the Beatles perform Sgt. Peppers would be worth a lot more than hearing the Backbeat Boys cover the album.  Additionally, technological developments on the Internet, especially peer-to-peer networking, have made the effective enforcement of copyright a virtual impossibility.156  If copyright cannot be effectively enforced, for instance in the music industry, due to the Internet, than their should be no copyright laws and artists should find other ways of making money, recordings can be used as advertisements for their live performances etc.157  Even with DRM technology, hackers still hack and will find away around it.

  Another view suggests we treat copyrights like patents.  J.A. Lorengo argues this.  Interestingly it is points out that "to be granted a limited monopoly in the form of a patent, must prove that her invention promoted the progress of the useful arts through a showing of utility, novelty and non- obviousness."158  This seems a dangerous suggestion because who determines whether a work promotes the progress of art.  However, this scheme would justify the extra protections afforded copyright, especially to prevent Internet piracy because we are protecting more than mere words but a work that can potentially benefit society.

  Copyright was originally the grant of a temporary government-sponsored monopoly on copying a work.  Its sole purpose was to encourage the circulation of ideas by giving creators and publishers a short-term incentive to disseminate their work.  There is no reason to believe that copyright was not meeting its intended purpose when it was for a specified amount of time, and renewable once.  A specified duration of copyright allows an easier determination when something has entered the public domain, it generates a stronger incentive to create and requiring the creator to renew the copyright term allows works that are no longer commercially viable to enter the public domain.  Further, with DRM like broadcast flags the content industry is able to protect itself from infringement while it holds the copyright.
 

  Shorter copyright terms and tougher enforcement of owners' rights better serve the constitutional purposes of the copyright laws in a digital age.  The current copyright extension benefits the culture industry without looking to see how it promotes the progress of science and useful arts.  Additionally, with the new technology the content industry is protecting itself from copyright violations, with the CTEA and the DMCA the law is on their side, but before fair use is impossible Congress needs to take a step back and find a copyright regime that goes back to trying to balance both the public and the private interests.  In the past, this balance seemed to have been reached with a specified duration for copyright and a one-time renewal.

  It is time to reevaluate copyright and determine whether the content industry is about our culture and creativity or is it just another form of commerce.  Today it is the copyright holders that are controlling how we deal with copyrighted material; it is a commodity Congress has sold to the detriment of the public interest.  Although the content industry should be able to protect itself from Internet piracy, it should not be able to do it at the expense of fair use, a necessary part of the copyright regime that enables the promotion of arts and sciences.  Furthermore, the marketplace should govern which protective measures are best and most effect, especially since as hackers hack the protective measures will need to evolve to keep them out. 

1 Q. Todd Dickinson, The Costs of Internet Piracy for the Music and Software Industries, Statement before the Subcommittee on International Economic Policy and Trade of the U.S. House International Relations Committee (July 19, 2000) available at http://usinfo.state.gov/topical/econ/ipr/ipr-ectodd.htm; Although the music industry often blames Internet piracy for its losses there are other ways to account for falling sales, "the current economic slowdown, the industry's release of far fewer titles and their elimination of singles, the end of cassette production, broadcast media consolidation, and less grooming of new talent." Edward J. Black, The Internet and Intellectual Property Copyright Piracy Prevention and the 'Broadcast Flag' Congressional Testimony (March 6, 2003); It is not certain that everyone who copies music from a friend or from an on-line source would actually purchase that music were they unable to copy it.  Keeping this in mind, it may be impossible for the music industry to actually track their losses, other than by looking at something like average annual sales.
2 The content industry includes copyright holders such as movie and TV studios, record companies and book publishers.
3 Dickinson Supra note 1.
4 Unexpected Harmony, THE ECONOMIST (Jan. 23, 2003) available at http://www.economist.com/opinion/PrinterFriendly.cfm?Story_ID=1549398.
5 Independently produced same or similar works, Ideas are not copyrighted Facts and systems explained are not copyrighted.  Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2d Cir. 1980) (Author did not infringe another's copyright by using the same theory for the Hindenberg explosion); Feist Pubs., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) (Phone book entries are facts and therefore not copyrightable).
6 U.S. CONST. art. I, § 8, cl. 8.
7 17 U.S.C. §102(a) (2000).
8 Id.
9 Kevin Davis, Fair Use on the Internet: A Fine Line Between Fair and Foul, 34 U.S.F. L. REV. 129, 132 (1999).
10 Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 432 (1984) citing, Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2043, 45 L.Ed.2d 84.
11 Irini A. Stamatoudi, COPYRIGHT AND MULTIMEDIA PRODUCTS: A COMPARATIVE ANALYSIS 22 (2002).
12 Peter S. Menell, Envisioning Copyright Law's Digital Future 46 N.Y.L. SCH. L. REV. 63 (2002) (Other technology aiding infringement of digital copyrighted works are high speed Internet access and increased bandwidth, innovations in computer storage capacity, processor speed, data compression, MP3 players, CD and DVD burner); The US Internet Industry Association (USIIA), the leading North American trade association for Internet commerce, content and connectivity, challenges the motion picture industries claim that they have suffered large losses due to Internet piracy.  The USIIA does not believe that the technology is available to make downloading an entire feature film, even in digital format, worth it to the consumer.  It would take days to download, and the end result would be a dark, two inch square.  US INTERNET INDUSTRY ASSOCIATION, Hollywood's Hysteria Over The Internet: Leading Internet Trade Association Challenges (May 13, 1999) at www.usiia.org/pubs/menace.html;  Although Internet copyright infringement might not be pervasive, the USIIA negates that the technology still exists to copy DVDs, leaving the consumer with a perfect rendition to sell or give to a friend.  Therefore, digital piracy still may be a problem for the movie industry.
13 It would seem that high-speed Internet access has also aided in Internet piracy.  Individuals can get T-1 speeds through SDSL in their own homes, and even cable modems and ADSL are so much faster than dial up lines, that most users would take advantage of the ease of piracy.
14 FRAUNHOFER INSTITUT INTERGRIERTE SCHALTUNGEN, Audio & Multimedia MPEG Audio Layer-3 (last visited April 15, 2003) at http://www.iis.fraunhofer.de/amm/techinf/layer3/index.html; It is arguable that MP3 quality is inferior to CDs, and difference is apparent on almost any stereo.  This explains why most MP3 players come as portable devices, where the consumer is most likely going to accept inferior sound quality.  Black supra note 1.
15 Alan Lewine, Mudwrestling Copyright Lawyers: Napster, the RIAA and The Pig Encoder, 20 TEMP. ENVTL. L. & TECH. J. 11, (2001) ("Napster maintains on its server a directory and index of the names of MP3 music files.  Users who have downloaded Napster's free Musicshare software can access the directory and add their own files.  When the requesting user clicks on a file name, the Napster server communicates with the Musicshare programs of the requesting user and of the host user, who makes the file available for download. Note that the MP3 file is actually transmitted directly from one user to another over the Internet, although the Napster server acts as a necessary intermediary").
16 Id.
17 A & M Records, Inc. v. Napster, Inc., 284 F.3d 1091, 1096 (9th Cir.2002).
18 Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 261 (9th Cir. 1996).
19 Id.
20 Id.
21 Id.
22 McGregor McCance, Congress Takes Up File-Swaping, RICHMOND TIMES DISPATCH Jan. 12, 2003, at D-1;  "The industry plaintiffs do not own the digital distribution technology that is rendering their legacy businesses less valuable. That same technology... makes it easier for consumers to share and copy files whether or not those files contain copyrighted material The recording industry needs to drop its monopolistic lawsuits, which merely serve to lower its status in the eyes of consumers and the p2p providers, many of whom are trying to promote legitimate online services...” Lawsuits threaten music sharing: the record industry gets increasingly litigious, Internet Magazine April 1, 2003 Pg. S10.
23 Black supra note 1 (Stating that consumers will more often purchase software at reasonable prices rather than pirate it).
24 Lawrence Iser and James Toma, Battling Digital Piracy Recording Industry has Taken a Multipronged Response to Illegally Downloaded Music, NATIONAL LAW JOURNAL, January 20, at C1.
25 Id. citing Edison Media Research, National Record Buyers Study II, June 10, 2002, at www.edisonresearch.com/recordbuyersiipress.htm
26 Black supra note 1.
27 Jane C. Ginsburg, Essay -- How Copyright Got a Bad Name for Itself, 26 COLUM. J.L. & ARTS 61 (2002).
28 Vito Peaino, The Law of Increasing Returns Memo to the music industry: penalizing the consumer is the wrong answer. It's time to listen to the sound of the future WIRED, August 1999  at http://www.wired.com/wired/archive/7.08/dl_returns_pr.html.
29 The record companies, in particular, have refused to make their goods available online at prices that reflect the vastly lower costs of online distribution, or in places consumers find convenient. They have also refused to ‘unbundle’ their content to allow consumers to purchase a single song at a proportionate price rather than an entire album. Consumers are now also faced with purchasing music and visual media embedded with draconian DRM technology that threatens to become obsolete, and restrict their rights and expectations with regards to time- and space-shifting. As a result, many otherwise honest consumers have gravitated towards the flexible reproduction and distribution offered by online file-sharing networks. Black supra note 1.
30 Apple Computer Inc. recently announced an online music service allowing users to purchase a song for $0.09.  Apple Sells Net tunes for a Song: 99 Cents, CNN.com (April 29, 2003) at http://cnn.technology.printthis.clickability.com/pt/cpt?action=cpt&expire=05%2.
31 Elisa Batista, Digital Experts Swap Talk, WIRED (January 13, 2003) available at http://www.wired.com/news/business/0,1367,57181,00.html
32 Sonia Arrison, Digital Television and Copy Protection: Government Mandated Technology is a Bad Idea  (December 15, 2002) http://www.capmag.com/article.asp?ID=2226
33 Mike Godwin, Hollywood Vs. The Internet,  SYDNEY MORNING HERALD, September 21, 2002 at 8.
34 Id.
35 Id.
36 Mike Straka, DTV Is Real ... and Ready to Suck You In, FOX NEWS, July 31, 2002  at http://www.foxnews.com/printer_friendly_story/0,3566,59164,00.html
37 According to a 1999 report, prepared for the International Intellectual Property Alliance (IIPA), the core copyright industries accounted for $348.4 billion in value added to the U.S. economy, or approximately 4.3 percent of the Gross Domestic Product (GDP) in 1997. The total copyright industries accounted in 1997 for $529.3 billion in value added, or approximately 6.53 percent of GDP. Employment in the core copyright industries grew three times the rate of national employment growth between 1977 and 1997, and more than 6.9 million workers were employed by the total copyright industries, about 5.3 percent of the total U.S. work force. The core copyright industries generated an estimated $66.85 billion in foreign sales and exports in 1997 and preliminary estimates for foreign sales and exports for 1998 is $71.0 billion.  Dickinson Supra note 1.
38 William Sloan Coats, Vickie L. Feeman, David K. Boudreau, Hot Issues in Copyright and Trademark Licensing, 20 NO. 2 Computer & Internet Law. 16 (2003).
39 Straka supra note 36.
40 Eileen Rivera, Hollywood is hoping broadcast flags will help solve its copyright woes, but consumer groups claim they violate fair use TECH LIVE August 6, 2002 available at http://www.techtv.com/news/culture/story/0,24195,3394728,00.html
41 Sonia Arrison, Digital Television and Copy Protection: Government Mandated Technology is a Bad Idea (December 15, 2002) at  http://www.capmag.com/article.asp?ID=2226
42 Id.
43 McCance supra note 22; "The 'broadcast flag' as such is no more than a few bytes of information appended to a digital-television signal. It performs no work, contains no 'intelligence.' It is simply notice that tells a compliant device that the broadcast is copyrighted. The flag indicates the creator's wishes as to whether it may be copied, and how it may be used. There is no controversy as to the form or essential function of this flag, and the flag is already part of the ATSC standards for digital television.  Black supra note 1.
44 Mark F. Radcliffe and Jill Sazama Hollywood confronts the Napster challenge; the Napster battle revealed how vulnerable the music industry is to digital piracy, and the movie and TV industries could be next, MANAGING INTELLECTUAL PROPERTY, October 1, 2002 at 73.
45 The Dallas Morning News January 15, 2003, Wednesday K1846 Doug Bedell Truce reached in digital piracy battle
46 Radcliffe supra note 45.
47 Black supra note 1.
48 Id.
49 Godwin supra note 33.
50 Iser supra note 25.
51 Id.
52 Id.
53 Rachel Gader-Shafran, Confessions of a Serial Infringer: Can the Audio Home Recording Act of 1992 Protect the Consumer from Copy-Protected CDs? 21 N0. 2 INTELL. PROP. L. NEWSL. 10, 11 (2003).
54 Id.
55 James G. Neal, Copyright is dead ... long live copyright: American librarians must be concerned over threats to users' traditional rights AMERICAN LIBRARIES December 1, 2002, at 48.
56 Id.
57 Hustler Magazine Inc. v. Moral Majority Inc., C.A.9 (Cal.) 1986, 796 F.2d 1148.
58 17 U.S.C. § 107 (2000).
59 Id.
60 Id.; Single most important element in determining "fair use" under copyright law is effect of use upon potential market for or value of copyrighted work.  National Rifle Ass'n of America v. Handgun Control Federation of Ohio, C.A.6 (Ohio) 1994, 15 F.3d 559;  See Kelly v. Arriba Soft Corp., 280 F.3d 934 (9th Cir.2002) For an in depth discussion of fair use and the Internet.
61 Eldred v. Ashcroft, --U.S.--, 123 S.Ct. 769, 776, 777.
62 Now with Bill Moyers (PBS television broadcast, Jan. 17, 2003).
63 Id.
64 Id.
65 Id.
66 Id.
67 Now supra note 63.
68 Id.
69 Id.
70 Neal supra note 41.
71 Id.
72 Black supra note 1.
73 Id.
74 Id.
75 Unexpected Harmony supra note 3.
76 Black supra note 1.
77 J.A. Lorengo, What's Good for the Goose is Good for the Gander:  An Argument for the Consistent Interpretation of the Patent and Copyright Clause, 85 J. Pat. & Trademark Off. Soc'y 51 Journal of the Patent and Trademark Office Society January, (2003).
78 Id.
79 17 U.S.C. § 1201(a)(3) (1999).
80 17 U.S.C. § 1201(b) (1999).
81 17 U.S.C. § 1201(a)(2) (1999).
82 Coats supra note 38.The DMCA also keeps Internet service providers from liability for infringement that their users engage in.  However, it also creates a subpoena power that allows anyone holding a copyright that has been infringed to require the Internet service provider to give the name of the alleged infringer.  The DMCA has a direct impact on privacy, although the discussion is beyond the scope of this paper.  See In re Verizon, 240 F.Supp.2d 24 (D.D.C. 2003).
83 17 U.S.C. §§ 1001-1010 (2000).
84 Coats supra note 38.
85 Lorengo supra note 78.
86 A Radical Rethink, THE ECONOMIST, Jan. 23, 2003, available at http://www.economist.com/opinion/PrinterFriendly.cfm?Story_ID=1547223 (the Extension stopped certain images, owned by Disney, from entering the public domain).
87 17 U.S.C.A. §102(a) (2000).
88 17 U.S.C.A. § 302(a) (2000).
89 DEPARTMENT OF HEALTH AND HUMAN SERVICES, OFFICE ON WOMEN'S HEALTH, Women's Health Issues: An Overview (May, 2001), available at http://www.4woman.gov/owh/pub/womhealth%20issues/.
90 Davis supra note 9;  The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. 'The sole interest of the United States and the primary object in conferring the monopoly,' this Court has said, 'lie in the general benefits derived by the public from the labors of authors.'  Sony Corp. supra note 10.
91 Now supra note 63.
92 Id.
93 Eldred supra note 62 at 800.
94 Erwin Chemerinsky, Balancing Copyright Protections and Freedom of Speech:  Why the Copyright Extension Act is Unconstitutional, 36 LOY. L.A. L. REV. 83, (2002).
95 Id.
96 Lawrence B. Solum, Congress's Power to Promote the Progress of Science:  Eldred v. Ashcroft, 36 LOY. L.A. L. REV. 1, 9 (2002).
97 A Radical Rethink supra note 87 (the Extension stopped certain images, owned by Disney, from entering the public domain);  In fact, the content industry spent approximately $150 million in twelve years trying to buy political influence.  Now supra note 63.
98 David G. Savage, Publish, but Never Perish? 88-OCT A.B.A. J. 23 (2002).
99 Id.
100 Eldred supra note 62 at 769.
101 Discussed infra
102 Eldred supra note 62 at 775.
103 Dan T. Coenen and Paul J. Heald, Means/Ends Analysis in Copyright Law: Eldred v. Ashcroft in One Act 36 LOY. L.A. L. REV. 99.
104 Eldred supra note 62 at 775.
105 Id. at 780.
106 Reid v. Covert, 354 U.S. 1 (1957).
107 Eldred supra note 62 at 784.
108 Id at 813.
109 Id. at 800.
110 Id.
111  Eldred supra note 62 at 802.
112 Id.
113 Tom W. Bell, Indelicate Imbalancing in Copyright and Patent Law in COPY FIGHTS:  THE FUTURE OF INTELLECTUAL PROPERTY IN THE INFORMATION AGE 1-16 (Adam Thierer and Clyde Wayne Crews, Jr. eds., 2002).
114 Eldred supra note 62 at 802.
115 "The Clause exists not to 'provide a special private benefit' Eldred supra note 62 at 802 citing Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429; "TheClause exists...'to stimulate artistic creativity for the general public good'" Id. citing Twentieith Century Music Corp. v.Aiken,  422 U.S. 151, 156.
116 Eldred supra note 62 at 801.
117 Id. at 804.
118 Id.
119 Id.  "Thus, the American Association of Law Libraries points out that the clearance process associated with creating an electronic archive, Documenting the American South, "consumed approximately a dozen man-hours" per work. Brief for American Association of Law Libraries et al. as Amici Curiae 20. The College Art Association says that the costs of obtaining permission for use of single images, short excerpts, and other short works can become prohibitively high; it describes the abandonment of efforts to include, e.g., campaign songs, film excerpts, and documents exposing "horrors of the chain gang" in historical works or archives; and it points to examples in which copyright holders in effect have used their control of copyright to try to control the content of historical or cultural works. Brief for College Art Association et al. as Amici Curiae 7-13. The National Writers Union provides similar examples. Brief for National Writers Union et al. as Amici Curiae 25-27. Petitioners point to music fees that may prevent youth or community orchestras, or church choirs, from performing early 20th-century music. Brief for Petitioners 3-5; see also App. 16-17 (Copyright extension caused abandonment of plans to sell sheet music of Maurice Ravel's Alborada Del Gracioso). Amici for petitioners describe how electronic databases tend to avoid adding to their collections works whose copyright holders may prove difficult to contact, see, e.g., Arms, Getting the Picture: Observations from the Library of Congress on Providing Online Access to Pictorial Images, 48 Library Trends 379, 405 (1999) (describing how this tendency applies to the Library of Congress' own digital archives)."
120 Coenen supra note 104.
121 Now supra note 63 (Mass media conglomerates spent nearly $150 million over the last 12 years to buy influence in Washington).
122 Bell supra note 114.
123 Id.
124 Id.; Now supra note 63 (Disney and its employees contributed more than $1.2 million to federal political campaigns; film, television and music companies gave more than $16 million).
125 Now supra note 63.
126 For instance a band like Hootie and the Blowfish only sees about $1.25 per album sold.  Whereas an artist like Ani Difranco earns higher royalties on her albums, independently produced by her own record label, but she sells far fewer albums.  Letter from Ani DiFranco, recording artist and founder of Righteous Babe Records, to Marcia Ann Gillespie, Editor in Chief, Ms. Magazine (Nov. 5, 1997) at http://www.columbia.edu/~marg/ani/letter.html
127 "The content industry which consists of movies, television programming, home video, music publishing, software, and computer games, generates more revenues internationally than any other US industry. Copyright-based industries create jobs in the United States at three times the rate of any other US industry, including such giants as aircraft, agriculture, and automobiles."  Coats supra note 38;  Ginsburg supra note 28 (Copyrighted works make up a large portion of both American exports and the gross national product).
128 Now supra note 63.
129 Id.
130 Cassandra Imfeld, Playing Fair with Fair Use? The Digital Millennium Copyright Act's Impact on Encryption Researchers and Academicians 8COMM. L. & POL'Y 111 (2003).
131 Id.
132 Id.
133 Id.
134 Eldred supra note 62 at 775(2003).
135 Chemerinsky supra note 95.
136 Solum supra note 97.
137 471 U.S. 539, 105 S.Ct. 2218 (1985).
138 Eldred v. Reno, 239 F.3d 372, 375 (D.C. Cir. 2002).
139 17 U.S.C. § 102(b) (2002).  See e.g., New York Times Co. v. United States, 403 U.S. 713, 726 (1971); Hoehling supra note 5; Feist supra note 5.
140 Chemerinsky supra note 95.
141 Id.
142 17 U.S.C. 1201(c)(1)(2) (1999).
143 Id.
144 Id.
145 Lincoln D. Stein, Keep Your Laws Off My Media Player -- The Hollings Act is too broad, NEW.ARCHITECT November 1, 2002 at 56 available at http://www.newarchitectmag.com
146 Id.
147 Id.
148 Id.
149 Id.
150 Stein supra note 145.
151 Nick Hanbidge, US Lawmakers Risk Letting in the Pirates,  NEW MEDIA AGE, December 5, 2002 at 19.
152 Gretel Johnston, IT companies show support for latest DRM bill INFOWORLD DAILY NEWS, October 3, 2002 at InfoWorld.com
153 Id.
154 Ginsburg supra note 28.
155 Pamela Samuelson, Toward a "New Deal" for Copyright in the Information Age, 100 Mich. L. Rev. 1488 (2002) summarizing Digital Copyright, Jessica Litman.  Amherest, NY: Prometheus Books.  2001.
156 John Perry Barlow, The Economy of Ideas: A Framework for Rethinking Patents and Copyrights in the Digital Age, WIRED, Mar. 1994, at 84- 90, 126-29 (arguing that intellectual property rights in the digital world must be rethought because of the way information can be freely obtained and copied).
157 Aric Jacover, I Want My MP3! Creating a Legal and Practical scheme to Combat Copyright Infringement on Peer-to-Peer Internet Applications, 90 Geo. L.J. 2207, 2209 (2002).
158 Lorengo supra note 78.