Nearly a century ago, the music industry argued that its future was threatened by a new method of creating and distributing multiple copies of a performed song.

The new technology? The player piano roll.

Two decades ago, the movie industry fought against an innovative device that it claimed was as dangerous as the Boston Strangler: Sony's Betamax videocassette recorder.

Throughout history, new technologies -- from the Gutenberg printing press to Napster -- have posed a threat to the owners and creators of music, movies, books and other artistic works. Those publishers, writers, artists and other owners of copyrighted work have always responded with lawsuits and calls for stronger laws. Through time, congressional action and judicial decisions have shaped and reshaped copyright law.

Now a bill introduced last month in Congress, which attempts to protect copyrights in the age of CD burners and online file sharing, could break significant new ground.

The bill, if enacted, would be a major departure in the way copyright law has evolved because instead of trying to control how people use the technology,

the proposal focuses on controlling the technology itself, said intellectual property attorney Robert P. Andris.

"It's always been a balancing test between the rights of the authors and the way (their

work) is being used," said Andris, a partner in the Redwood City law firm Ropers Majeski Kohn & Bentley.

Other experts say the bill could go beyond copyright protection.

"This would set a precedent that the government may dictate decisions about how equipment should be manufactured," said Allen Hammond, a professor at the Santa Clara University School of Law's High Tech Law Institute, which specializes in intellectual property law. "Do you really want that kind of constraint and interference in the development of software and equipment?"

The Consumer Broadband and Digital Television Promotion Act of 2002, introduced by Sen. Ernest Hollings, D-S.C., would give the entertainment and technology industries up to 18 months to agree to a technological standard that would halt the spread of unauthorized copying of digital video and audio.

The bill would require this on any "digital media device" -- any hardware or software that reproduces, converts, retrieves or accesses copyrighted works in digital form. Penalties for altering the standard would be $200 to $2,500 per violation.

The bill is backed by media powerhouses such as Walt Disney Co. and News Corp., which say there is an urgent need to change U.S. copyright laws to stem the spread of digital piracy of their works, because the Internet, desktop computers and CD and DVD burners have made it easier for consumers to copy and exchange high-quality digital music and videos.

Rep. Adam Schiff, D-Pasadena, will introduce a similar bill in the House of Representatives later this year.

Hollings said his bill will allow content owners -- Hollywood studios, record labels and broadcasters -- the confidence to offer the kind of digital content that will give consumers a reason to buy broadband services and high definition digital TV sets.

Sen. Dianne Feinstein, D-Calif., one of the bill's co-authors, said in a statement to The Chronicle that she had "hoped the entertainment industry and high-tech industry could come together on an agreement without legislation, but they have not."

Peer-to-peer file-sharing programs like Morpheus allow "you to almost instantly copy a movie or compact disc. This is such a violation of patent rights that it could destroy the entire recording and movie industry unless there is some copyright protection involved," she said.


The bill is opposed by technology industry giants Intel, Dell, IBM and Hewlett-Packard and lobbying organizations such as the Consumer Electronics Association. Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, has vowed he will not allow such a law to pass this year.

"This pending legislative mandate is one of the most serious threats the high-tech industry has ever had to deal with," said Donald Whiteside, Intel's vice president of legal and government affairs. "We want government support of solutions we think are workable, not for government constructing a guillotine over our heads."

Critics say the bill threatens consumers' rights to use the technology in legal ways, under the fair use legal doctrine of copyright law. They fear the bill would stifle innovation and reduce the effectiveness of any device capable of playing or displaying entertainment content, from PCs to PDAs.

And technology always finds a way to advance faster than Congress. "Copyright law doesn't lend itself to a lot of hard and fast rules, because the situations change, the facts change," attorney Andris said.

The U.S. Copyright Act of 1790, signed by President George Washington, gave Congress the power to "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," but only gave the authors of books, maps and charts ownership of their work for up to 28 years.

The act was expanded in 1831 to include musical compositions. Ten years later, the fair use doctrine was born when a Massachusetts judge, in Folsom vs.

Marsh, a case involving artist rights, ruled that an author had the right to use letters Washington wrote to a friend as the basis for a fictionalized biography. The ruling found that the first president's letters had been transformed but not directly copied into the new work.

In 1908, another key point in copyright history, the Supreme Court ruled in a copyright infringement suit by White-Smith Music Publishing, publishers of sheet music, against Apollo Co., maker of player piano scrolls. At issue was whether the scrolls -- long rolls of paper with holes that activated the keys of a player piano to duplicate the performance of a song -- constituted a copy of the music itself.

The Supreme Court ruled that the scrolls were not copies and did not infringe. A year later, Congress amended the Copyright Act to include new technologies like piano rolls and sound recordings.

The act was amended in 1976, formalizing the fair use doctrine and setting a four-part standard for determining what is fair use of copyrighted material.

Even before Congress could act, Sony Corp. had introduced a new technology that would transform home entertainment -- the Sony Betamax home videocassette recorder.

Entertainment firms like Disney and Universal eventually sued to stop sales of the Betamax on grounds that taping broadcast films violated copyright laws. Jack Valenti, head of the Motion Picture Association of America, once said the "VCR is to the American film producer and the American public as the Boston Strangler is to the woman alone."

In 1984, the Supreme Court ruled in favor of Sony, holding that the device could be used for infringing uses, but was allowable because it also was capable of substantial non-infringing uses such as time-shifting, or taping a TV show to watch at a later time.

The landmark ruling also came into play in 1998, when the Recording Industry Association of America failed in its bid to block sales of the then- revolutionary Diamond Rio MP3 digital audio player, and in 2001, when members of the association won court rulings forcing Redwood City's Napster Inc. to shut down its online song-swapping program.

Also in 1998, Congress passed the Digital Millennium Copyright Act, meant to bring U.S. law in line with international copyright rules and protect the work of writers, performers and artists from piracy in the digital age.


Critics contend that the rise of Napster and CD burners after the digital millennium law was passed were two indications that the legislation was already out of date.

One provision that makes it a criminal act to circumvent technology used to protect copyrights is being challenged in a high-profile case that landed Russian computer programmer Dmitry Sklyarov in jail.

"Consumers have fair use rights, but the trend with the DMCA and the Hollings bill is that it takes that fair use out of the jurisdiction of the courts and legislators and allows publishers using technology to dictate how we can and cannot use their media," said Jonathan Watterson, a digital freedom organizer for the advocacy group Free Software Foundation.

"This represents an incremental power grab on the part of these media companies," he said. "It threatens to make all free and open-source software efforts criminal."

The Hollings bill may be the catalyst that forces Silicon Valley and Hollywood into compromise. But Andris warns that the bill is wishy-washy on fair use rights.

"The question consumers have to worry about is what is going to happen to their existing technology," he said. "Are they going to have to go out and buy new hardware in order to run the new CDs that are put out on the market? Are they going to have to buy new DVD machines for watching new DVDs?"

All people know, he said, is that "the entertainment industry is going to have a stronger lobby than the consumer side."


-- Circa 1455 -- Johannes Gutenberg invents the first movable-type printing press, which made it possible to publish many copies of a single work at one time.

-- 1790

Congress enacts the first federal copyright law, protecting "only maps, charts and books."

-- 1831

U.S. copyright protections are expanded to cover musical compositions.

-- 1908

U.S. Supreme Court rules that player-piano rolls based on copyrighted music are not a copyright violation but a piece of machinery.

-- 1909

Congress adopts new copyright act to extend protections to player-piano rolls and the phonograph.

-- 1975

Sony introduces the Betamax videocassette recorder. Universal Studios and Walt Disney Productions subsequently sue Sony, alleging that recording movies and TV programs off the air is copyright infringement.

-- 1976

Congress expands copyright protections, eliminating registration requirements,

extending copyright to unpublished works and codifying aspects of the fair use doctrine.

-- 1984

The U.S. Supreme Court, siding with Sony, rules that private home videotaping does not constitute copyright infringement.

-- 1992

The Audio Home Recording Act restricts use of digital-recording tools and requires makers of blank tapes and other copying devices to contribute to a royalty pool for musicians. People taping albums at home are not affected.

-- 1998

The Digital Millennium Copyright Act affirms copyright protection for digital forms.

-- Dec. 7, 1999

The Recording Industry Association of America, a trade group representing big record companies such as Universal, Sony, Warner Bros., Arista, Atlantic, BMG and RCA, sues Napster. .

Source: Chronicle research