Commentary By Steve Effros Copyright Redux Believe me, I’m sorry to have to say this, but we’re going to have to wade into the swamp of re-doing the copyright law again. From 1909 until 1976 that law was not substantially changed. But the advent of television, then cable television, photocopying and the like finally forced the hand of Congress. The 1976 Copyright Act took eleven years of gestation to finally be born. It was a hard and messy birth. The arrival of the Internet forced a second major change 22 years later when the Digital Millennium Copyright Act was adopted in 1998. Now, just nine years has passed and it is painfully clear that copyright law has not been able to keep up with technology and the changing telecommunications marketplace. Put on your hip boots, we have to jump back in! It came as no surprise that Cablevision lost the first round of its copyright fight to provide "network DVR" service last week. That was predictable. What was not anticipated was how broadly this (admittedly lower court) decision would be drawn. The judge in the case stuck very close to prior legal precedent and didn’t really acknowledge that there was little practical difference or impact on copyright holders if a DVR, with all DVR functionality controlled by the home viewer, resided on the top of the television set or was a piece of hardware at the cable headend. From a common sense point of view, as an editorial in the Los Angeles Times pointed out Tuesday, there is no real difference between the "product" identified by the court as a DVR and the "DVR service" that Cablevision wanted to offer. The holders of copyrights were affected exactly the same way, the consumer saw and controlled exactly the same thing. But, as the court noted, looking at the DMCA and the prior court precedents, a DVR "product" is protected in the home and allowable under the "fair use" doctrine, but a DVR "service" which does the exact same thing is not. Hence Cablevision’s service offering was a violation of the current copyright laws. OK, Cablevision could appeal and we could all debate how many angels can stand on the head of the copyright pin. But that makes no real sense. I suspect long before the court cases were done there would be a deal cut between the copyright holders and the cable folks, as that is really what is going on here… it is a negotiation over who gets what "cut." The same is happening with Viacom and Google over the YouTube "fair use" issue. The real problem is that we are wasting a lot of time and effort on these cases while ignoring the underlying truth: technology has changed. The broad reading given in the Cablevision case could bleed over to lots of the new "services" that are going to be offered on the Internet: legal if done on your home computer, but illegal if done at the ISP’s server? That’s not a prescription for encouraging new technological developments. That’s a clear barrier. The courts can’t effectively eliminate that barrier, they can only do end-runs around it, and in this case the Judge decided he wasn’t going to play. Sort of like the Supreme Court in the old cable distant signal copyright cases. They acknowledged the problem, noted that the law had been written in 1909 and was out of date and then stuck to it, saying it was Congress’ job to do the swamp draining, not theirs. I think we just got that message loud and clear again.

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