A Political History of DRM and Related Copyright Debates, 1987-2012
Herman, Bill D., Yale Journal of Law & Technology
TABLE OF CONTENTS INTRODUCTION I. AUDIO HOME RECORDING ACT (AHRA): 1987 TO 1992 A. Legal Threats and a Legislative Compromise B. The AHRA's Effects and Political Significance II. DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA): 1995 TO 1998 A. Addressing the Looming Internet Threat B. Crafting the DMCA C. DMCA: Impact and Political Significance III. INTERLUDE: 1999 to 2002 A. The Peer-to-Peer Explosion B. Senator Hollings's Proposal C. NGOs Take a Central Role D. Scholars Step into the Spotlight IV. DMCA REFORM A. Reform Proposals B. Outcome and Significance V. BROADCAST FLAG A. Bottling Digital Broadcasts B. Lowering the Broadcast Flag C. Few Salute the Audio Flag VI. AFTER DRM: FROM THE DISC TO THE WHOLE WIDE WEB A. Boucher's Efforts End B. Domain Seizures: COICA, ICE, and SOPA/PIPA C. The Legacy of the SOPA Blackout CONCLUSION
The industries that produce and distribute copyrighted works have a long, well-documented history of fearing new media technologies. The best-known example came in a congressional hearing in 1982, when Motion Picture Association of America (MPAA) chief Jack Valenti proclaimed, "I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." (1) While not matching Valenti's hyperbole, Jason S. Berman, President of the Recording industry Association of America (RiAA), expressed the same concern in a 1990 hearing. "[F]or many years, the music industry has been gravely concerned about the devastating impact of home taping ... [which] presently displaces about one third of the industry's sales ... [at a cost of] nearly $1 billion per year." (2) Berman predicted the negative economic impacts from new digital audio tape (DAT) systems would be even stronger. (3) Even these were hardly the first protests against new media. Mark A. Lemley writes, "I sometimes suspect there was an association of monastic scriveners who protested the printing press." (4) He then ticks off several examples in the series of allegedly threatening new media technologies of the twentieth century, from the player piano and the gramophone to radio broadcasting, cable television, and the photocopier. (5)
The standard lesson from these examples is that each new technology became either a minor nuisance to the incumbent content providers or--as has been the case more often--an important development that actually expanded the market for licensed works. The more recent deluge of digital technologies, including especially the internet, may well present an exception to this rule, but along with many others, I am quite skeptical. (6) The standard lesson provides a valuable backdrop for those who contend that the internet should be allowed to grow without copyright-minded regulations; after all, if the "content industry ... has a Chicken Little problem," (7) the sky is probably not falling this time, either.
While the standard lesson about the shortsightedness of the content industries is a valuable one to draw from this history, there is another lesson as well--a story about the political trajectory of copyright that helps us in our role as political observers rather than as gladiators. Here, the lesson focuses on which of two broad fates greets each new technology: whether the law accepts each new technology into the mix, or the law becomes a tool to limit, ban, or otherwise render each harmless. Here, the recent past really is different. Until the 1980s, new technologies were either accommodated via minor changes in copyright law or begrudgingly accepted despite some marginal infringement. Phonographs and radio airplay became and remain lucrative sources of mechanical royalties for composers. TV broadcasters moaned when pioneer CATV systems retransmitted their signals, but, in the decades since, retransmission fees have …
Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: A Political History of DRM and Related Copyright Debates, 1987-2012. Contributors: Herman, Bill D. - Author. Journal title: Yale Journal of Law & Technology. Volume: 14. Issue: 2 Publication date: Spring 2012. Page number: 162+. © 2006 Yale Journal of Law & Technology. COPYRIGHT 2012 Gale Group.
This material is protected by copyright and, with the exception of fair use, may not be further copied, distributed or transmitted in any form or by any means.