DISQUS

I discuss some of this history in my paper "From Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and the Propertization of Copyright" (online version at http://papers.ssrn.com/sol3/papers.cfm?abstract... )

I confess that I regard very few public issues as moral issues, but I think of vouchers in exactly those terms. The members of Congress who rail against vouchers--typically Democrats--who at the same time send their kids to Sidwell Friends aren't against private schools for their kids, just for not making the same possibilities available to people with less money. I find it hard to describe that as something other than morally offensive.

Thanks for the post. If viewers would like to read a more developed version of my argument, go to

http://papers.ssrn.com/sol3/papers.cfm?abstract...

and download the paper.

Apple would have entered vertically integrated earlier; as best I can tell, vertical integration was the plan all along:

http://www.wired.com/news/mac/0,2125,64286,00.html

But when you say that it isn't a new problem, Hollywood would say that this is precisely the difference between CDs and DVDs: clunky add-on DRM for CDs, a failure or worse (see the Sony rootkit), versus planned DRM for DVDs. For the studios, the DVD with DRM was precisely about avoiding the problems with the CD.

As to the availability of free music on Grokster vs DVD ripping, note the differences. The Grokster world is one of substantial uncertainty, where the downloaded software can junk up machines in a strong way. Ripping DVDs would have few of the practical risks associated with the p2p ecosystem, and you can see how easily you would stumble into ripping and storing. The movie is due back to Hollywood Video, you haven't finished it, don't want to pay the late fees? Just rip it and store it. Entering the p2p system is much more of a discrete, noticeable step--downloading the software. It would be easy to slide into DVD ripping.

With a cheap video jukebox, what would prevent me from renting a movie at Blockbuster and immediately ripping it to my VJ? Taking my $18 per month/3 movies at a time Netflix subscription and converting into a lifetime's worth of content? The instant the red envelope would arrive, rip it and return it? I think that I am getting throttled already by Netflix, imagine what that would look like with the VJ?

As a legal matter, with the VJ in place, how would we preserve the distinction between rental--temporary access--and ownership--permanent access?

If you are interested, I have commentary on this at http://uchicagolaw.typepad.com/faculty/2006/06/...

Quick points. The "for profit" language from the 1909 Act isn't in current law, which has a unified set of rules for public performances (not tied to profit).

YouTube will clearly try to take advantage of the Section 512 safe harbor, and the line of cases regarding "passive" activities of intermediaries, such as the Netcom case and more recently in Fourth Circuit, CoStar. That will be the fighting ground should it ensue.

Do you think that the multi-cast must-carry rules pose different First Amendment issues than the prior must-carry rules blessed by the Supreme Court in Turner II?

But the definition matters if we are going to frame the debate as--today's starting point--DRM thwarts innovation. I know from reading Tim's DMCA paper that the DVD/Linux example looms large, hence the importance of whether we want to consider as innovative something that unlocks the system.

As Tim knows, I see the DMCA as a species of technological contract enforcement, and I generally favor contract enforcement. And the legal system should be designed to make contracts enforceable cheaply.

As to open vs. closed, let the market decide. Don't buy songs from iTunes and get all of your music from emusic.

And if our concern is about anti-competitive behavior, that is what antitrust is for, so Real can sue Apple if Apple has behaved anti-competitively.

Doug,

This really is a conflict as exactly you have framed it: between closed systems and open systems. The DVD setup is a closed system setup: disks go with players and patent royalties are collected on both pieces. The decision not to support Linux is a decision to keep the system closed in a particular way.

You (and I think Tim) want to label as an innovation any way around a closed system, thereby opening the system.

You are right to say that I don't regard that as innovative. The closed aspect of the system was part of the design, not a limit that arose from a lack of vision or creativity or, here's the word, of innovation.

You do define as innovative anything which opens up a closed system?

No, certainly the DVD example isn't evidence of stifling innovation. The DVD example is a choice, nothing more than that. I have little doubt that the DVD format creators could have made it possible to have DVDs played in a Linux environment.

They chose not to do so. We can decide whether that choice should be respected, but we shouldn't say that it is innovative when someone unilaterally decides not to respect that choice and tries to figure out a way around that choice. That is like saying that it is innovative to drive 70 in a 55 mph zone. Anyone can do it; the trick isn't in doing it; it is in deciding whether we want to respect the limit in the first place.

I have a different explanation and it has to do with systems competition (again). Apple is making money on the iPod, which it controls, not the music, which it doesn't control. For more, see my post:

http://uchicagolaw.typepad.com/faculty/2005/10/...