Art Brodsky is communications director for Public Knowledge, a public interest group working at the intersection of information and technology policy.
The next time you plunk down your $10 (and rising) for a movie ticket, think for a minute about where the money goes. Millions go to the movie stars, directors and producers. Tens of thousands go to the people who work on the movie. But a lot of that money also helps to pay for lawyers whose job is to limit what consumers can see and do with materials they have the right to use.
The big media companies can get away with it because they played a large role in writing the laws under which they sue innovators and hurt consumers, and they have a knack for finding friendly courts to enforce them. Common sense, nor other laws, need not be applied.
The most recent case of making life inconvenient for consumers was a decision from New York. It may be hard to believe, but in this case a cable company was actually right about something and on the consumer side. Cablevision, a company that offers service in the New York City area, was sued over its digital recording service by the big movie studios (Fox, Paramount, Disney and others), TV networks and a couple of Time Warner program channels including CNN. Functionally, it’s the same thing as having a TiVo sit on top of your TV. But the big media companies sued and in a nonsensical decision, U.S. District Judge Denny Chin sided with them. He said there was a difference between a consumer doing the actual recording with a piece of equipment and Cablevision doing it for the consumer. If the company did it, the judge said, the result was a “video on demand” service violating a slew of copyright laws.
The bottom line is that a federal judge ruled that a consumer recording a show from a set-top box was legal, but a consumer recording a show using a cable service with the recording taking place in the network was not legal. In an ideal world, recording would be recording. But here we are not talking an ideal. What we are talking about instead is the big media companies' desire to shape the consumer experience of using lawfully acquired material while influencing, if not determining, which technologies are legitimate and which are not.
XM Radio is another victim of the engineering police. The company has a neat little device called the Inno, which not only receives the satellite radio signal, but stores the songs for as long as the owner is an XM subscriber. For its troubles, XM has been sued by record labels and by the piling-on publishers of music as well. Why? It’s legal to record songs for personal use, and has been since 1992 (although many people did it for years before that.) The difference is that back in the day, one recorded songs on tape, in the order they came through the ether.
The Inno, however, is a digital device. It’s not 1977, it’s 2007. The Inno, made by Pioneer, and the Helix, a similar device made by Samsung, can save songs and allow the user to arrange them as the they wish. The songs can’t be transferred off of the devices, so there’s no “piracy” involved. But much as the studios twisted the Cablevision simple recording service into something unrecognizable, the record companies (all part of the same community as the folks suing Cablevision, don’t you know) did the same with the Inno and Helix. They went to court claiming that because listeners could save songs as they liked, XM was not a radio service, but a “download service” comparable to iTunes or any of the others. And because it was a “download service,” different copyright rules apply from the legal recording of music. (Sirius, the other satellite radio company, agreed to pay the blackmail the record labels asked, and isn’t being sued.)
If those lawsuits sound familiar, it’s because they are the corollary cousins to the more well-known legal actions in recent days, such as Viacom’s $1 billion suit against Google and YouTube. The “content community” doesn’t want any bit of their product (even a 20-second clip of a football kickoff) to escape from their grasp.
There’s nothing wrong with Viacom protesting the posting of a full broadcast of the "Daily Show," and there’s nothing wrong with Viacom wanting to save full shows for their Web site. But what about one sketch? What if Viacom didn’t post or highlight the commentary Jon Stewart did on Net Neutrality. Stewart’s raising of the issue on the “Daily Show” is as much an influential opinion as any op-ed piece in a major newspaper. But Viacom would forbid the posting of even that little bit of a show. Viacom argues that YouTube is making money as a result of Viacom content on the site. There are two responses. First, most of the content is generated by everyday people, and it is the general availability of unusual and creative ideas that made YouTube into the sensation it has become. Second, what you might call “secondary monetization” exists everywhere. Websites that attract readers by reviewing new software or hardware could be said to be making money from the items on which they comment. Movie-review sites are in a similar position, to say nothing of similar writing in the traditional publishing or broadcasting world.
There are a couple of ways to start to reverse the trend. The long, slow way is to change the law, and, given the power of the big media companies, there’s no guarantee of success. It’s a worthy goal and many people are fighting for it.
The second way is to fight back if you can. There are already a handful of cases in which ordinary people sued by the Recording Industry Association of America (RIAA) for alleged copyright infringement have beaten the rap by having their lawyers send a strong letter back challenging the assertions. MoveOn.org , represented by the Electronic Frontier Foundation, is fighting a Viacom attempt to take down a satirical video, “Stop the Falsiness” that lampoons “The Colbert Report.” Brooklyn Law School professor Wendy Seltzer is engaged in a legal bout with the National Football League over her posting of the NFL’s copyright notice from the Super Bowl. To learn more about your rights, check out the Digital Freedom campaign at www.digitalfreedom.org.
If the media company lawyers are determined to earn their money by playing defense, by trying to justify these egregious violations of fair use and public comment rather than by preying on innocent people who in all probability would be better thought of as fans rather than as someone to be sued.