If all this stuff seems a little sneaky, underhanded, and even illegal to you, you're not alone. When representatives of nearly all the world's entertainment, technology, broadcast, satellite, and cable companies gather in a room to collude to cripple their offerings, limit their innovation, and restrict the market, regulators take notice.
That's why the EU is taking a hard look at HD-DVD and Blu-Ray. These systems aren't designed: They're governed, and the governors are shadowy group of offshore giants who answer to no one — not even their own members! I once called the DVD-Copy Control Association (DVD-CCA) on behalf of a Time-Warner magazine, Popular Science, for a comment about their DRM. Not only wouldn't they allow me to speak to a spokesman, the person who denied my request also refused to be identified.
The sausage factory grinds away, but today, more activists than ever are finding ways to participate in the negotiations, slowing them up, making them account for themselves to the public. And so long as you, the technology-buying public, pay attention to what's going on, the activists will continue to hold back the tide.
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Originally published as "A Behind-The-Scenes Look At How DRM Becomes Law," InformationWeek, July 11, 2007
Pirates
Lawrence Lessig
If “piracy” means using the creative property of others without their permission — if “if value, then right” is true — then the history of the content industry is a history of piracy. Every important sector of “big media” today — film, records, radio, and cable TV — was born of a kind of piracy so defined. The consistent story is how last generation’s pirates join this generation’s country club — until now.
The film industry of Hollywood was built by fleeing pirates.[1] Creators and directors migrated from the East Coast to California in the early twentieth century in part to escape controls that patents granted the inventor of film making, Thomas Edison. These controls were exercised through a monopoly “trust,” the Motion Pictures Patents Company, and were based on Thomas Edison’s creative property — patents. Edison formed the MPPC to exercise the rights this creative property gave him, and the MPPC was serious about the control it demanded.
As one commentator tells one part of the story,
A January 1909 deadline was set for all companies to comply with the license. By February, unlicensed outlaws, who referred to themselves as independents protested the trust and carried on business without submitting to the Edison monopoly. In the summer of 1909 the independent movement was in full-swing, with producers and theater owners using illegal equipment and imported film stock to create their own underground market.
With the country experiencing a tremendous expansion in the number of nickelodeons, the Patents Company reacted to the independent movement by forming a strong-arm subsidiary known as the General Film Company to block the entry of non-licensed independents. With coercive tactics that have become legendary, General Film confiscated unlicensed equipment, discontinued product supply to theaters which showed unlicensed films, and effectively monopolized distribution with the acquisition of all U.S. film exchanges, except for the one owned by the independent William Fox who defied the Trust even after his license was revoked. [2]
The Napsters of those days, the “independents,” were companies like Fox. And no less than today, these independents were vigorously resisted.
“Shooting was disrupted by machinery stolen, and ‘accidents’ resulting in loss of negatives, equipment, buildings and sometimes life and limb frequently occurred.”[3] That led the independents to flee the East Coast. California was remote enough from Edison’s reach that filmmakers there could pirate his inventions without fear of the law. And the leaders of Hollywood film making, Fox most prominently, did just that.
Of course, California grew quickly, and the effective enforcement of federal law eventually spread west. But because patents grant the patent holder a truly “limited” monopoly (just seventeen years at that time), by the time enough federal marshals appeared, the patents had expired. A new industry had been born, in part from the piracy of Edison’s creative property.
The record industry was born of another kind of piracy, though to see how requires a bit of detail about the way the law regulates music. At the time that Edison and Henri Fourneaux invented machines for reproducing music (Edison the phonograph, Fourneaux the player piano), the law gave composers the exclusive right to control copies of their music and the exclusive right to control public performances of their music. In other words, in 1900, if I wanted a copy of Phil Russel’s 1899 hit “Happy Mose,” the law said I would have to pay for the right to get a copy of the musical score, and I would also have to pay for the right to perform it publicly.
But what if I wanted to record “Happy Mose,” using Edison’s phonograph or Fourneaux’s player piano? Here the law stumbled. It was clear enough that I would have to buy any copy of the musical score that I performed in making this recording. And it was clear enough that I would have to pay for any public performance of the work I was recording.
But it wasn’t totally clear that I would have to pay for a “public performance” if I recorded the song in my own house (even today, you don’t owe the Beatles anything if you sing their songs in the shower), or if I recorded the song from memory (copies in your brain are not — yet — regulated by copyright law). So if I simply sang the song into a recording device in the privacy of my own home, it wasn’t clear that I owed the composer anything. And more importantly, it wasn’t clear whether I owed the composer anything if I then made copies of those recordings.
Because of this gap in the law, then, I could effectively pirate someone else’s song without paying its composer anything.
The composers (and publishers) were none too happy about this capacity to pirate. As South Dakota senator Alfred Kittredge put it,
Imagine the injustice of the thing. A composer writes a song or an opera. A publisher buys at great expense the rights to the same and copyrights it. Along come the phonographic companies and companies who cut music rolls and deliberately steal the work of the brain of the composer and publisher without any regard for [their] rights.[4]
The innovators who developed the technology to record other people’s works were “sponging upon the toil, the work, the talent, and genius of American composers,”[5] and the “music publishing industry” was thereby “at the complete mercy of this one pirate.” [6] As John Philip Sousa put it, in as direct a way as possible, “When they make money out of my pieces, I want a share of it.”[7]
These arguments have familiar echoes in the wars of our day. So, too, do the arguments on the other side. The innovators who developed the player piano argued that “it is perfectly demonstrable that the introduction of automatic music players has not deprived any composer of anything he had before their introduction.” Rather, the machines increased the sales of sheet music.[8] In any case, the innovators argued, the job of Congress was “to consider first the interest of [the public], whom they represent, and whose servants they are.” “All talk about ‘theft,’” the general counsel of the American Graphophone Company wrote, “is the merest claptrap, for there exists no property in ideas musical, literary or artistic, except as defined by statute.”[9]
1
I am grateful to Peter DiMauro for pointing me to this extraordinary history. See also Siva Vaidhyanathan, Copyrights and Copywrongs, 87–93, which details Edison’s “adventures” with copyright and patent.
2
J. A. Aberdeen, Hollywood Renegades: The Society of Independent Motion]Picture Producers (Cobblestone Entertainment, 2000) and expanded texts posted at “The Edison Movie Monopoly: The Motion Picture Patents Company vs. the Independent Outlaws,” available at link the link listed below. For a discussion of the economic motive behind both these limits and the limits imposed by Victor on phonographs, see Randal C. Picker, “From Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and the Propertization of Copyright” (September 2002), University of Chicago Law School, James M. Olin Program in Law and Economics,Working Paper No. 159.
http://www.cobbles.com/simpp_archive/edison_trust.htm
3
Marc Wanamaker, “The First Studios,” The Silents Majority, archived at http://free-culture.cc/notes/12.pdf.
4
To Amend and Consolidate the Acts Respecting Copyright: Hearings on S. 6330 and H.R. 19853 Before the ( Joint) Committees on Patents, 59th Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge, of South Dakota, chairman), reprinted in Legislative History of the 1909 Copyright Act, E. Fulton Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976).
5
To Amend and Consolidate the Acts Respecting Copyright, 223 (statement of Nathan Burkan, attorney for the Music Publishers Association).
6
. To Amend and Consolidate the Acts Respecting Copyright, 226 (statementof Nathan Burkan, attorney for the Music Publishers Association).
7
To Amend and Consolidate the Acts Respecting Copyright, 23 (statement of John Philip Sousa, composer).
8
To Amend and Consolidate the Acts Respecting Copyright, 283–84 (statement of Albert Walker, representative of the Auto-Music Perforating Company of New York).
9
To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared memorandum of Philip Mauro, general patent counsel of the American Graphophone Company Association).