The Digital Millennium Copyright Act of 1998 (DMCA) provided the major entertainment conglomerates a window of opportunity to declare war on consumers for private copying of music and movies for personal use. The DMCA is a law that prohibits the manufacture and distribution of devices designed solely to undermine technology used to protect copyrighted work. Under the entertainment industry's opportunistic interpretation of the DMCA, students sharing music files from a dorm room or mothers making a backup copy of a child's favorite animated flick are in flagrant violation of copyright law. 

Copyright law once existed to grant creators of works such as books, films, music and software exclusive rights to control copying, public distribution, performance and display in an effort to protect their right to generate money from their creations. The law also carved out public purpose limitations, broadly understood as "fair use," which enabled people to use works without prior permission or payment for purposes such as scholarship, news reporting, teaching, criticism, preservation, library lending and backing up software they have legally purchased.

On the premise that "digital is different," the DMCA gave owners of copyrighted works vast new power to control the public's access to digital works while criminalizing those who were using technology for personal use. What many of the entertainment moguls fail to recognize is a solution exists that would result in their greater financial gain, without alienating and criminalizing their loyal consumers. 

The great 1970's cable debate presents an important precedent. Once, cable companies were called parasites and accused of freeloading off the rights of television producers. The answer was not to ban cable television or prosecute operators but to establish a government-set royalty - a compulsory arrangement detailed in copyright law. This solution licensed the cable companies to deliver programming to homeowners when the cable company paid a royalty payment and that royalty cost is passed to consumers in their monthly cable bill. Rather than litigating the copyright issue, this arrangement ensured that artists were paid when their programs were shown. Without this solution, influential cable networks such as CNN may never have been developed, and the world would be deprived of cable's impacts of globalization and news on demand.

With today's debate over digital rights, the logical answer appears to be the institution of a digital copy compulsory license. A digital copy compulsory license would protect private copying of digital files, without sanctioning massive bootleg distributions. This would comply with law and benefit private users, but the big winner would be the entertainment industry. A compulsory system would generate large revenues - a billion dollars or more annually - which would offset the staggering losses the industry claims as a result of file sharing and private copies. In addition, all who market digital services, equipment, devices or software could be required to pay the royalty. This includes Internet and digital TV service providers, universities, equipment manufacturers, software companies, and retailers of blank CDs and DVDs.

There is a shared understanding that individuals who sell thousands of bootlegged copies of CDs or DVDs are hardened criminals who deserve stiff penalties under the law. But should average users such as mothers who back up copies of DVDs for personal use or students who make copies of their own CDs be treated like pirates? Now is the time for the copyright law to be changed. A digital copy compulsory license ensures fair use of protected materials and responsible private copying, while providing authors a fair return. 
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Arnold Lutzker is an attorney in private practice in Washington, D.C., specializing in copyright law and policy. He has been involved in the cable and satellite compulsory royalty proceedings for over 25 years and is the author of Content Rights for Creative Professionals: Copyrights and Trademarks in a Digital Age (Focal Press, 2002).