Error: Unable to create directory /home/demockra/public_html/wp-content/uploads/2010/09. Is its parent directory writable by the server? A Copyrighted Future

The humble videotape has taken a long, sordid ride through the 1980s and ’90s, only to be out-classed by the smaller, lighter, better, more microwaveable DVD. But in 1984, the videotape was a U.S. Supreme Court decision away from ceasing to exist. Now, with the ubiquity of disk-based storage, combined with ever-decreasing prices (1 terabyte of disk goes for $110 on Amazon.com — that’s 1,024 gigabytes or around 300,000 MP3 files), our ability to store anything digitally is approaching infinity. The definition of “anything” includes music, photos, videos, movies, and documents, some of may be copyrighted by someone else. Twenty-five years after Sony v. Universal, et al., content-providers are once again scrambling to ensure that they’re not on the short end of a decision that could either make them or cost them millions of perceived dollars.

In 1984, Sony was actually defending the Betamax, a proprietary video recording and playback technology that lost out to VHS. Betamax, like VHS, allowed a viewer to record a TV show and play it back later. Respondents Universal Studios and The Walt Disney Company objected to such a technology, arguing that such “time-shifting” was an infringement on their copyrights, since they had not explicitly authorized viewers to engage in such activities (and, realistically, there was no technological way to stop them). Respondents further argued that Sony was liable for “contributory infringement,” since it produced the machines with which viewers could infringe copyrights.

In a 5-4 decision (!), The Supremes disagreed with respondents, since people who recorded a show in order to watch it later were not in violation of copyright, since the marketability of respondents’ content was unaffected (people were still watching the same shows, weren’t they?). The Supremes also articulated a very important intellectual property doctrine that is still with us today and allows for the sale of things that could conceivably cause copyright infringement:

The sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes, or, indeed, is merely capable of substantial noninfringing uses.

Just because a device is capable of copyright infringement, that does not mean that the device must be outlawed. As long as the device has “substantial noninfringing uses,” the existence of the device does not in itself constitute a crime, and furthermore, the creator of such a device is not liable if a person uses that device to infringe a copyright.

Settled, right? Eh, not so much.

CNN is stepping into the ring this time. It alleges that Digital Video Recorders (DVRs, the most popular of which is the TiVo) infringe copyrights when they store content at a central location and then distribute that content to subscribers (this is called a Remote Storage DVR). They want to sue respondent Cablevision, a cable television provider, for copyright infringement due to the fact that Cablevision is storing CNN’s copyrighted content.

Let me tell you what this boils down to: ad revenues. CNN and other networks would love nothing more than to destroy DVRs. When viewers have DVRs, they skip past the commercials. People not watching commercials means people not buying the products advertised. No purchase, no revenue. No revenue, and the company sponsoring the ads says, “Well, why are we doing this at all?” Television makes its money from advertising, and once people stop watching that advertising, then it’s all over. I happen to feel that ads are one of the biggest canards of our age, but since they’re still there, someone must be watching them and buying all that Coors Light.

Chief Justice Roberts and Justice Alito both recused themselves from the decision to grant a writ of certiorari, ostensibly because they have financial stakes in Cablevision.

The Bush administration has requested the incoming Obama administration to weigh in on the issue, since it will be the Obama Justice Department that will ultimately have to enforce any ruling. Obama has shown an interest in technology which will hopefully translate into a decline in Justice’s doing the bidding of content providers like RIAA (Recording Industry Association of America, the big music companies’ trade association) or MPAA (Motion Picture Association of America, the big movie companies’ trade group). Justice has, in the past, been more than willing to file amicus briefs agreeing with the content providers, even when those providers want rulings that are more restrictive than what copyright law permits. Obama has shown a willingness to back off of being the content providers’ stooge (the MPAA and RIAA lobbied for legislation that would have required the Justice Department to handle the discovery process for MPAA and RIAA’s civil litigation).

What’s at stake? Possibly the existence of your DVR. Possibly your ability to watch TV without ABC, NBC, or CBS telling you how you can watch it. But it’s also about the continuing trend over the last ten years — since the Digital Millennium Copyright Act (DMCA) — for content providers to use “copyright” to (1) force you to watch their ads, (2) use only their accessories with their products (that’s antitrust, by the way), and (3) prevent you from otherwise using content you purchased in ways that are authorized by copyright law but not permitted by illegal “end user license agreements” or computer programs that don’t understand the nuance of copyright law.

Content providers also like to use the law to stifle competition and prevent innovation. They want new markets (like the Internet) to behave like old markets (like a video store) so that they don’t have to adjust the business models and supply chains into which they’ve sunk billions of dollars. Rather than get with the times, it’s much easier for them to donate a few thousand dollars here and there to influential congressmen in order to prevent Mickey Mouse from ever entering the public domain.

Twenty-five years ago, Universal and Disney were afraid that their copyrighted TV shows could be reproduced for anyone to see. But if that happened — so what? Sure, a law makes things illegal, but it doesn’t make things wrong. If lots of people engage in an illegal activity, either all of those people must be criminals, or the law must be re-evaluated. For whose interests were the laws written? According to the Constitution, Congress is empowered to create intellectual property laws “to promote the progress of science and the useful arts.” Does it promote the progress of anything if copyrighted content is never allowed to see the light of day?