copyright in crisis

[Don Davis]

a college friend of mine is now a law professor,
specializing in the law & economics of intellectual
property and especially copyright (he has an econ
angle, because he used to teach economics).  because
IANAL, i've been asking his informed opinion about
the crypto libertarians' claim that digital copying
makes the recording industry's copyrights and licens-
ing fees all-but-obsolete.  this post is my summary
of his reply.

he points out that throughout its history, copy-
right has constantly been faced with technology-
driven crises, just like the current one.  in
each such crisis, a copyright-protected industry
supposedly faced death, but ultimately went on to
make more money than before.  some of the examples
my friend described were familiar to me, but others
weren't:

   * player pianos:  apparently, the advent of
     automated performance was thought to undermine
     sheet music copyrights, until piano rolls came
     to be subject to the same royalties as sheet
     music;
   * musical accompaniment for silent movies:
     somehow, this stymied the sheet-music royalty-
     payments system for a while;
   * free live performances (as in nightclubs): 
     it took a while to figure out and establish
     the current royalty system, in which the
     venue owner pays an annual flat fee to each
     of the two biggest music copyright companies;
   * broadcast of recorded performances:  well-
     discussed elsewhere;
   * photocopiers: ditto;
   * home-use video recorders:  ditto;
   * video rentals:  apparently, the movie industry
     treated VHS as an early version of napster.
     the US and European courts came to opposite
     findings, yet both continents ended up with
     blockbuster franchising and a lot of money
     getting made.   who'd a thunk it?

my friend argues that apple's new $1/song model
is probably _the_ natural solution to the RIAA's
current fears.  even if it's not the right solution,
he completely dismisses, legally and economically,
the idea that the RIAA is a dinosaur whose extinc-
tion is nigh.  he says the current crisis is just
too cookie-cutter similar to past crises in the
industry's very profitable history.  i think the
main point is that there are so very many possible
ways for the entertainment industry to make money:
some are ancient, some are fairly new, but all
became well-established surprisingly quickly.

my friend said he has read pretty systematically
into the previous technical crises in copyright-
dependent industries, so i asked him for source
materials.  he said he read a lot of law review
articles analyzing these precedents,  but those
citations aren't gathered together in any easy-to-
post bibliography, because law review articles use
footnotes, not bibliographies.  he suggested three
books as accessible accounts of this history:

  * Digital Copyright, by Jessica Litman,
    (Prometheus Books 2001)
  * Copyright's Highway: From Gutenberg to the
    Celestial Jukebox (1996), by Paul Goldstein
  * The Digital Dilemma, by the Nat'l Research
    Council (2000).  Available online at:
    <http://www.nap.edu/html/digital_dilemma>

BTW, i've decided to withhold my friend's name,
because he's got enough to do without having to
teach copyright law 101 a lot of non-specialists.
this post is my rendition from memory of what he
told me over coffee a couple of days ago.  if my
summary of his remarks misrepresents the facts,
that's completely my fault, and reflects my ig-
norance and carelessness, not his.

			- don davis, boston









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