So Crazy it has to be True

Sigh. Just when I thought intellectual property issues couldn't get worse, this story passes through /. the other day. As reported, media broadcasters want you to pay to port media to different devices. This might not sound like a big deal, but this would in a sense contradict the Sony rule, and would seriously impact our ability to personalize how we consume media.

For those unfamiliar with the Sony rule, it is the Supreme court decision from the Betamax case in which Sony survived a crucial lawsuit brought on by the MPAA (the VCR's version of the RIAA). The Motion Picture Association of America sued Sony for copyright infringement, arguing that the VCR encouraged piracy. The underlying issue was also that the VCR allowed people to tape programs and thus fast foward through commercials (although I never did this with my VCR, I now start watching most TV programs 20 minutes late so I can fast foward through commercials with my DVR). In a landmark decision, the Supreme Court agreed with Sony's defense: that the primary function of the VCR wasn't copying for distribution, it was for time displacement--that is, most people were using their VCRs to watch a program when it was most convienent for them. This was deemed to be perfectly legal. And since the VCR had a legitimate primary function, it was not responsible for people using it for inappropriate activity (piracy). Thus the Sony rule: demonstrate that the primary function of your technology was not illegal and you are good as gold.

Since then, a few other digital technologies have tried to invoke this defense, and lost miserably (Napster, Grokster) since they could not demonstrate that their primary function wasn't to exchange copyrighted material. Napster tried to argue that it was a kind of spatial displacement--that people uploaded their music files to the network so they could access them anywhere. Nice try. Of course, they lost.

Way I see it, the media companies are looking to restrict, revoke, or bypass as much of the Sony ruling as possible. Lost in the piracy war is the growing restrictiveness of DRM--think of Sony's attempt to limit how many times a CD can be copied or Apple's restricting iTunes downloads to iPod players. When Sony attempted to limit CD burns, people rebelled. Sony was so disgraced by the public outrage (even if it was driven by a small, /.-segment of the population) that they scrapped the venture. While technology increasingly allows us to take culture anywhere, in any form, industry increasingly expects us to pay for the content multiple times. If I spend 50$ for Madden Football 2008, shouldn't I be able to play the game on my PS2 and my PSP? On my computer? If I purchase a DVD from Walmart, shouldn't I be able to rip it to my laptop for a long plane ride?

The media companies have become increasingly adept at climbing the ethical highground and framing DRM as a response to piracy. Blah, blah, blah. We have to counter this by arguing that 1) DRM is an unfair attempt to control media, 2) that some piracy is simply civil disobedience, and 3) that if we purchase content, then we should be free to control what platforms we use to access that content.

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