from CustomRetailer magazine July 2008:
For many years, the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA) have been attempting to override the accepted historical precedents governing the transactions enabling people to enjoy video and music. Dissatisfied with the standard understandings both customers and sellers had established through (as Carl Sagan used to say) billions and billions of sales—understandings that had been repeatedly upheld by the courts—the MPAA, in particular, as led by its now-deceased activist president, Jack Valenti, sought no longer to sell copies of music and video, but rather to license their use to customers.
A Little History
In all industries, there are those who closely analyze how its various participants generate income, with an eye toward positioning themselves as profitable suppliers to those in the chain who appear to be “onto something”—if not usurping their position altogether. Nearly 30 years ago, the phenomenon of VHS and Betamax video rentals made its appearance. A videotape with a purchase price of $60 could be rented from entrepreneurs for a mere $4 or $5 for a couple of nights. Customers reluctant to buy commercial copies of movies were perfectly happy to rent them for less than 10 percent of the typical purchase price. Video stores could rent an average cassette 20-30 times, making a three-times or better return on investment, often within just a few months.
Owing to the creation and existence of the video rental store, a critical sales mass of videocassettes was reached. Were this not the case, moviemakers might well have had to throw the whole otherwise-unprofitable venture into the trash bin of history.
Having learned that the unanticipated rental business was an essential part of a profitable home video viewing business, and potentially far more lucrative than simply making movie cassettes, the movie industry rights-holders determined to bring video rental increasingly under their control.
Some among the rights-holder camps—anticipating that various forms of Digital Restriction Management (DRM) were very likely to be thwarted—managed to make illegal not only the act of circumventing DRM, but the very making of any device which could be used to thwart DRM. The skewed logic of this has led some to note how, if this kind of law were broadly applied, the manufacture of scissors would be illegal.
Do Not Pass Go, Do Not Collect $200
Whereas prior to the DMCA (Digital Millennium Copyright Act), copyright holders generally had to bring civil lawsuits against alleged violators, the MPAA and RIAA lobbyists and their legal teams sought—ultimately successfully—to make alleged copyright violations criminal acts.
With the DMCA becoming law, alleged copyright violations have indeed become criminal matters, and implicitly enlist taxpayer-supported law enforcement to reduce copyright-holders’ potential legal expenses, expenses that they would have borne exclusively as long as rights disputes remained purely a civil matter. With this powerful cudgel added to their arsenal, the MPAA and RIAA are now filing tens of thousands of lawsuits against individuals as well as having effectively threatened many universities, coercively demanding that fees (typically $5/student) be simply handed over to the MPAA and RIAA, as protection money against their school networks potentially being prosecuted for music and video file-sharing violations. Many universities have been sufficiently intimidated and have reluctantly complied with said extortionate demands.
With their successes in suing, for example, Granny (who has a granddaughter with a laptop, whose Windows default file-sharing capabilities were not turned off and thereby was alleged to have given open access to her media files across the Internet), who cannot conceivably afford to defend herself against litigation brought by wealthy and powerful industry interests, precedents have been set that make the MPAA and RIAA seem to be an invincible juggernaut to those facing litigation, irrespective of the merit of such lawsuits. Into the settlements of such lawsuits, the RIAA and MPAA, have been able to insert language that supports their “moving target” interpretation, such as recently noted by The Washington Post, wherein a phrase such as “unauthorized copy” which once might have meant “we never wrote you a letter authorizing you to make any copies” may now be newly construed to mean “you therefore admit to these criminal acts.”
Pushing the Envelope
For someone to posit that, for example, “TiVo is illegal” or “[recording] a show to watch it later is illegal” is hard to justify—ethically, legally or substantively—inasmuch as substantial legal precedent would seem to have settled the matter to the contrary. But the lawyers representing the rights-holders—having enjoyed a significant victory with the enactment of the DMCA—are aggressively seeking to go ever further, twisting language and actions in order to make new claims about interpretations of existing law, more to their advantage, of course. But there are numerous precedents and reasonable interpretations that fall outside the RIAA and MPAA’s wished-for legal outcomes. Billions of sales transactions, for example, have transpired which would support other interpretations than those of the RIAA and MPAA. Time-shifting via video recording was litigated many years ago, and the result was an unambiguous determination that it was entirely legal.
The aforementioned transactions and what consumers have done with their purchases in their own homes—particularly, if there was no indication of their distributing copies to third parties—have not been successfully challenged.
Bullies
The sound you hear—the creak of a metaphorical bow on a figurative bowstring—is being drawn taut with a notched arrow about to fly. I don’t believe the public supports the recent intimidating manipulation of the legal system, nor supports the perhaps unintended consequences of the DMCA and other laws. I would hope the reasonable result of that lack of support would be a change in the law, one which precludes the kind of quasi-legal bullying engaged in by (particularly) the RIAA and MPAA, and would let stand the precedents of media purchases of the last 50 years; i.e., a purchaser has for decades or more legitimately shared such purchases with all under his or her roof, and taken his tape or CD or DVD, and legitimately played it in a wide array of playback devices within his home. The purchaser has, without hindrance, been able to share CDs, DVDs and books with friends, with the understanding that after a week or a month, such media will be returned to the purchaser.
Of course, no reasonable consumer should support copies of media being proliferated through a purchaser’s normal activities wherein unknown third-parties are granted access to copyrighted works outside his or her home.
But the MPAA and RIAA’s recent statements in legal documents have been construed by objective observers to mean that a user is precluded from putting a copy of such media, for example, on a hard-drive-based, home multimedia player. This line of thinking goes athwart the long-established laws concerning Fair Use that have been upheld time and again regarding media purchases.
Honest home users who are not distributing copies that would rob rights-holders of revenue should not be prosecuted for doing as they have been doing for years: making selected mixes of songs that they load onto iPods, home servers, CD-Rs, or DVD-R(W)s. Decades ago, my wife would record her favorite individual songs on a tape cassette for use as she exercised. Now it would appear the MPAA and RIAA are arguing that such people have long been criminals and need to be relieved of their life savings owing to their outrageous conduct.
Consumer intimidation via lawsuit abuse by the RIAA and MPAA must be stopped. Our legislators need to balance the reasonable, long-established interests of average consumer/taxpayers—who lack teams of expensive attorneys and lobbyists to speak for them—against the well-financed, extra-legal predations of the MPAA and RIAA. CR
http://www.customretailer.net/story/print.bsp?sid=111146&var=story
Hugo Feugen is president of CodexNovus, a manufacturer of high-definition digital media player/servers. Feugen is the former CEO of the company that developed and advanced the Flight Simulator, later sold to Microsoft, which remains Microsoft’s biggest selling software package outside of their word processing/spread sheet applications and operating systems.