Today is a critical day in the digital entertainment wars: an updated study says copyright needs to be seriously revamped to balance the needs of the public with those of rights holders and creators; one ISP stands firm against the RIAA while another goes back to court to challenge the RIAA subpoena power under the DMCA, a senator will introduce a bill that does just that; a law professor says parents aren't responsible for what their kids do online anyway; defiance returns.

Just in time to give some balance and clarity to the digital entertainment wars now engaged on several fronts, the Free Expression Policy Project has just published a fully revised and updated edition of The Progress of Science and Useful Arts: Why Copyright Today Threatens Intellectual Freedom - a summary of the major controversies over file-sharing, fair use, the ever-receding public domain, the "Digital Millennium Copyright Act," and more:

Executive Summary

Copyright - our system for protecting and encouraging creativity - has been described as "the engine of free expression."1 But copyright can also interfere with free speech - with the public's right to share, enjoy, criticize, parody, and build on the works of others. Resolving these sometimes conflicting claims requires courts and policymakers, in the words of the Supreme Court, to strike a "difficult balance" between rewarding creativity through the copyright system and "society's competing interest in the free flow of ideas, information, and commerce."2

A critical component of this "difficult balance" is the system of free-expression "safety valves" within copyright law. Four of these safety valves - the "idea/expression dichotomy," the concept of fair use, the so-called first-sale rule, and the public domain - provide necessary breathing space for free trade in information and ideas. The free-expression safety valves keep the system in balance and prevent the monopoly control created by copyright law from becoming rigid and repressive.

But the "difficult balance" has become lopsided in recent years. With the advent of electronic communications, and in particular the Internet, the media companies that make up the "copyright industry" have adopted techniques of "digital rights management," which control the accessing and use of creative materials in ways that are often inconsistent with a free and democratic copyright system. Two federal laws, both passed in 1998, have further distorted the system by favoring the industry at the expense of the public's interest in accessing, sharing, and transforming imaginative works.

One of these laws, the "Sonny Bono Copyright Term Extension Act," extended the term of copyright protection to nearly a century for corporations and even longer for many individuals and their heirs. It consequently delayed the time when cultural products will enter the public domain and be freely available. The other law, the "Digital Millennium Copyright Act" (DMCA) made it a crime to distribute technology that circumvents the industry's electronic locks on books, films, articles, software, or songs - even though circumvention itself is not always illegal, and even though a ban on technology strikes directly at scientific research.

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