The timeless folly of DRM

There is a good deal of value in reading older works, even in a field that changes as rapidly as copyright. It is a fascinating exercise, for example, to read attempts in the late 1960’s and early 1970’s to influence the direction of the “new” copyright law being considered (which was passed in 1976). L. Ray Patterson’s “Copyright in Historical Perspective” (Vanderbilt University Press, 1968), for example, or now-Justice Stephen Breyer’s 1970 Harvard Law Review article on “The Uneasy Case for Copyright,” offer an all-too-contemporary sounding warning about the doleful consequences of writing a copyright law that does not pay enough attention to users’ rights or assumes that the concerns of industry as expressed at a particular moment should be enshrined in a statute meant to function for decades.

James Lardner’s 1987 book about the development of video recording devices and the subsequent copyright consequences, “Fast Forward: Hollywood, the Japanese and the Onslaught of the VCR” (Norton) is another example of an older work from which there is still a lot to learn (my principle embarrassment in discussing the book lies in revealing yet again how often my own reading follows suggestions made by Bill Patry). As I read the book this weekend, I was struck especially by a small remark that, to me, reflected on a mistake the content industry cannot seem to stop making.

During the district court trial over the issue of whether Sony’s Betamax device created liability for its maker due to copyright infringement, the trial judge, Warren Ferguson of the Central District of California, refused to allow the attorneys for Universal and Disney to put on a rebuttal witness who would argue that the court could reasonable force Sony to adopt a technological measure that would permit the non-infringing purposes Sony (with the help of Mr. Rogers, among others) had demonstrated for the VCR while preventing unauthorized recordings of broadcast TV. A “jamming device” was suggested that could, the witness would have asserted, be incorporated into all VCRs at a (relatively) minimal cost and would block recording of programs unless the broadcast chose to permit those recordings. Sounds a lot like the “broadcast flag” argument and the recent flap over Microsoft Vista preventing the download of some NBC TV programs, doesn’t it?

We are still wedded to the idea of technological solutions to the problem of unauthorized uses, and we have now gone so far overboard as to give legal protection to such technological systems, even when the have the intent and /or the effect of prevent perfectly legal uses or of reducing access to works no longer protected by copyright. And we continue to pursue a DRM “arms race” in which each new system is seen as a challenge in the user community and few last more than a couple of weeks before keys and hacks are discovered. The wisdom of Judge Ferguson’s words in refusing to entertain this burdensome and unwise “solution” in Sony are, as yet, unheeded: “As sure as you or I are sitting in this courtroom today, some bright young entrepreneur, unconnected with Sony, is going to come up with a device to unjam the jam. And then we have a device to jam the unjamming of the jam, and we all end up like jelly.” Now that this headlong plunge into chaos has been enshrined in section 1201 of the Copyright Act, Judge Ferguson (whose original decision in the case was ultimately affirmed by the Supreme Court) seems more and more like a prophet to whom we should have listened.