Copyright Legislation and Technological Change 359 easily define how all of these actors should order their interactions with one another. Putting all of them into a room and asking them not to come out until they have agreed to be bound by the same rules may be the most efficient approach to formulating law that will work well enough for each of them. The process also makes copyright revision politically feasible. If one could overcome the difficulties in educating members of Congress in a technical legal field with little publicity value, and find ways to impart enough knowledge about the complex inner workings of the myriad affected industries, one would still face daunting obstacles to coming up with enactable legislation. Every adjustment to the copyright statute will disadvantage some current stakeholder, who will be someone's constituent. Perhaps a statute might be enacted over that stakeholder's pitched opposition; but efforts to accomplish that in the past have not succeeded. If the stakeholder will instead agree to accept the disadvantage in return for an advantage conceded by another stakeholder, there will be no pitched opposition and the bill will be much more likely to go through. The need to balance concessions in order to achieve such agreement, of course, imposes constraints on the sort of legislation that is likely to emerge from the process. Unless the participants become convinced that the new legislation gives them no fewer benefits than they currently enjoy, they are likely to press for additional concessions. It must, therefore, be expected that any successful copyright legislation will confer advantages on many of the interests involved in hammering it out, and that those advantages will probably come at some absent party's expense. But nobody need take the responsibility for making difficult political choices associated with selecting the interests that the legislation will disadvantage. Indeed, the process is almost tailor-made to select those interests thoughtlessly and automatically, as a byproduct of ongoing negotiations. It is the seeming inevitability of bias against absent interests, and of narrow compromises with no durability, that makes such a process so costly. Each time we rely on current stakeholders to agree on a statutory scheme, they produce a scheme designed to protect themselves against the rest of us. Its rigidity leads to its breakdown; the statute's drafters have incorporated too few general principles to guide courts in effecting repairs. Reliance on the real copyright experts has led to Congress's en an anthology of signals for subscribers. The copyright law defines authorship broadly enough to include all of these activities within its purview. 360 OREGON LAW REVIEW (Vol. 68, 1989] actment of laws that few of its members understand.453 Nobody would quarrel with the statement that political expediency sometimes causes Congress to enact legislation its members have not thought through. The entrenched nature of the process for developing copyright legislation, however, works to foreclose any possibility that Congress will enact copyright laws that its members have framed, or at least comprehend. It would seem naive to suggest that Congress simply reclaim its legislative responsibilities and write a revised copyright statute embodying general principles instead of negotiated deals. Current stakeholders have controlled the playing board for more than eight decades, and would doubtless prefer to keep it that way. Although they squabble with one another over specifics, they have managed to unite in fierce opposition to copyright revision bills drafted without their participation.454 They are unlikely to support a movement to divest them of responsibility for drafting copyright legislation.*55 But perhaps the current stakeholders would be receptive to a cautionary note. Those involved in the process of copyright legislation complain about widespread disregard of the copyright law enacted in 1976.456 Copyright owners bemoan unenforceable statutory rights. Participants and commentators complain that courts misinterpret the bargains embodied in the statute.458 It is hardly surprising, however, that a statute too long, complex, and technical for 45) See, e.g., 1975 House Hearings, supra note 204, at 1285-95 (various witnesses); id. at 1358-60 (colloquy); id. at 1578 (remarks of Rep. Pattison); id. at 1713-14 (colloquy); id. at 1748-49 (colloquy); id. at 1753 (colloquy); 122 Cong. Rec. 31,985-86 (1976) (remarks of Rep. Drinan); 43 CONG. REC. 3853-54 (1909). See generally Litman, supra note 15, at 865-82. 454 See supra notes 119-30, 197-200 and accompanying text. 455 In any event, such a movement is unlikely to arise. The public has become increasingly cynical about the legislative process. Highly publicized criticisms in recent years have inured most constituents to the fact that the way Congress actually goes about its job diverges sharply from the model presented in high school civics courses. 456 See, e.g., Home Video Recording, supra note 2, at 3-52 (testimony of Jack Valenti, Motion Picture Ass'n of America). 457 See, e.g., Copyright and Technological Change, supra note 2, at 271, 280 (Congressional Copyright And Technology Symposium, Panel on the Administration of Rights in Copyrighted Works in the New Technologies). 458 See, e.g., Civil and Criminal Enforcement of the Copyright Laws: Hearings on the Authority and Responsibility of the Federal Government to Protect Intellectual Property Before the Subcomm. on Patents. Copyrights and Trademarks of the Senate Comm. on the Judiciary, 99th Cong., 1st Sess. 89-95 (testimony of Barbara Ringer, former Register of Copyrights); Abrams, Who's Sorry Now? Termination Rights and the Derivative Works Exception, 62 U. DET. L. Rev. 181 (1985); Adelstein & Perez, supra note 223, at 228-33; Karp, Reflections on the Copyright Revision Act, 34 J. Copyright Soc'y U.S.A. 53, 61-68 (1986); Litman, supra note 15, at 896-903; Oman, supra note 223, at 32. 35-37. Copyright Legislation and Technological Change 361 members of the Congress that enacted it to understand confounds the courts. It is even less surprising that members of the public will behave in accord with their sense of what the rules ought to be in preference to deciphering an entire volume of the United States Code. If the private parties who negotiate copyright legislation among themselves cannot come up with bills that look as if they were drafted by members of Congress to embody general principles rather than like a web of interdependent bilateral and trilateral deals, the bills they do come up with are unlikely to work very well in practice. Technology will develop, and statutory provisions will grow obsolete with breathtaking speed. Current stakeholders may prefer today's world or, indeed yesterday's world, to tomorrow's. They may, understandably, prefer a copyright law that forces tomorrow's players to order their business by today's rules. They may even be the beneficiaries of a legislative process that allows them to create a copyright law that meets that specification. They cannot, however, force time to stop. Representatives of affected interests insist that they want a workable copyright law. They could use the familiar process to produce one. They need only do what Congress seems to be unable to do for them: draft a law that balances elastic rights with comparably elastic, flexible limitations. APPENDIX 4.-TECHNICAL REFERENCE DOCUMENT FOR THE AUDIO HOME RECORDING ACT OF 1991 Introduction This Technical Reference Document is provided to facilitate the implementation of legislation relating to digital audio recording ("DAR") devices, known as the "Audio Home Recording Act of 1991" ("the_Act"). This Technical Reference Document establishes the standards and specifications that are necessary to implement the Serial Copy Management System ("SCMS") under the Act. It draws in part from specifications proposed to the International Electrotechnical Commission ("IEC") in "IEC 958: Digital Audio Interface" (First edition 1989-03) and "Amendment No. 1 to IEC 958 (1989): Digital Audio Interface, Serial Copy Management System" (Reference 84 (CO) 126 submitted on June 21, 1991) (collectively, "IEC 958"), and "IEC 60A (CO)136 Part 6: Serial copy management system for consumer audio use DAT recorders". The standards and specifications set forth herein relate only to the implementation of SCHS via digital audio interface signals, DAR devices and digital audio interface devices. The standards and specifications set forth herein, as they may be amended pursuant to an order of the Secretary of Commerce under Section 1022 (b) of Subchapter C of the Act, shall be considered determinative under the Act, regardless of any future action by the IEC or by a manufacturer or by an owner of a proprietary technology. SCHS is intended to prohibit DAR devices from recording "second-generation" digital copies from "first-generation" digital copies containing audio material over which copyright has been asserted via SCMS. It does not generally restrict the ability of such devices to make "first-generation" digital copies from "original" digital sources such as prerecorded commercially available compact discs, digital transmissions or digital tapes. Currently, the predominant type of DAR device offered for sale in the United States is the DAT recorder, which records and sends digital signals in accordance with the IEC 958 nonprofessional digital audio interface format. Additional types of DAR devices and interface formats are being or may be developed. The standards and specifications in this Technical Reference Document are not intended to hinder the development of such new technologies but require, in accordance with Section 1021(a) (1) (A)−(C) of Subchapter C of the Act, that they incorporate the functional characteristics of SCMS protection. In order for a DAR device to be "compatible with the prevailing method of implementing SCMS", to the extent DAR devices are capable of recording signals sent in a particular digital audio interface signal format, the SCMS information must be accurately received and acted upon by the DAR device so as to correctly implement the same level of SCMS protection provided by that format. "Compatibility" does not require direct bit-for-bit correspondence across every interface signal format; indeed, particular interface signal formats may be recordable by some, but not all, DAR devices. To the extent that any digital audio interface device translates and sends signals in a form that can be recorded by a particular DAR device, however, "compatibility" requires that the SCMS information also be accurately translated |