Page 62 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

A Study on the Role of UGC Platforms in Copyright Law: Chapter 2 Copyright in the Pre-Internet Age: An Intermediary-oriented Approach
An Intermediary-oriented Approach

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the CSS. This became a part of the 1998 DMCA that is discussed in Chapter 3. However,
due to the talent of hackers and the interconnectivity of the Internet, the CSS was soon
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cracked by the decryption key, known as DeCSS. Although filmmakers won a series of
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cases prohibiting the circulation of DeCSS, DeCSS has remained widely available on the
Internet. The copyright war has continued into the Internet age, but the target has changed
from the professional, intermediate distributors to the large number of users who hold the
DeCSS.

2.3.4 A brief summary: Copyright, technology and intermediaries

Copyright regulations have historically focused on professional intermediate distributors
rather than on the end users, even when the distributors have not used the copyrighted works
themselves. In addition to the traditional proprietary copyright regime, through a class
of non-proprietary regimes the courts and Congress have reached a balance between the
producers and distributors. For example, the US system has generated the fair-use doctrine
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and a collective licensing scheme for photocopying, fair use for the home recording of
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movies via VCRs, compulsory licences for phonograph manufacturers to mechanically
reproduce musical compositions, compulsory licences for cable operators and satellite
221
222
carriers to retransmit television and radio broadcast signals, compulsory licensing for non-
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commercial educational broadcast stations to broadcast certain types of works, compulsory
224
licensing for webcasters to transmit sound recordings, ‘reasonable fee’ claims for putative
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licensees under collective licensing of musical works, a ‘maximum compensation’
threshold for filmmakers’ innocent dramatisations and levies on digital audio recording
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devices and media to cover private, non-commercial home recordings. Private copying
227
levy schemes have had a wider application in the EU for a range of devices, including

216 Ibid 181.
217 ‘DeCSS is one of the first free computer programs capable of decrypting content on a commercially produced DVD video
disc.’ DeCSS in Wikipdia < https://en.wikipedia.org/wiki/DeCSS> accessed 20 July 2019.
218 DVD Copy Control Association v. Brunner, 113 Cal.Rptr.2d 338 (Cal. App. 6 Dist. 2001).; DVD Copy Control Association,
Inc. v. Kaleidescape, 176 Cal. App. 4th 697 (97 Cal. Rptr. 3d 856, 2009).
219 See supra notes 112-113, 115-116; 17 U.S. Code § 107, 108. As Robert Merges pointed out, the collective licensing scheme
subjects the party to a non-proprietary right rather than an exclusive right regime. Robert P Merges, ‘Contracting Into
Liability Rules: Intellectual Property Rights and Collective Rights Organizations’ (1996) 84 California Law Review 1293.
220 Section 1.3.3.3; Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).
221 Section 1.3.2.1; 17 U.S.C. § 115.
222 Section 1.3.3.2; See 17 U.S.C § 111, 119, 122 (regulating cable operators and satellite carriers).
223 17 U.S.C § 118. (allowing the use of ‘published nondramatic musical works and published pictorial, graphic, and sculptural
works’).
224 Section 1.3.2.6; 17 U.S. Code § 114(d)(2).
225 See supra note 140 and accompanying text.
226 See supra notes 195-196 and accompanying text.
227 See supra notes 157; 17 U.S. Code § 1004(a)(1) & (b).

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