On the Fair Use Frontlines

As anyone who reads this website is all too aware, these days legislative matters increasingly encroach upon audiophiles' ability to experience uncompromised high fidelity. Like it or not, political decisions can and do have an impact on what we listen to and how we are able to manipulate our music after we have purchased it.

One organization that John Atkinson, Jon Iverson, and I have come to rely upon—both for information and for fighting the good fight—is the Electronic Frontier Foundation (EFF), with its senior staff attorney on fair-use and intellectual property issues, Fred von Lohmann. Imagine our surprise when we discovered that von Lohmann was an audiophile and a Stereophile reader.

The lightbulb went off above our heads: Now that we knew he was one of us, why not ask Fred von Lohmann why audiophiles should care about these issues? We're glad we did, because von Lohmann connects the dots and shows us how issues that seem unrelated to those most audiophiles hold dear are, in fact, likely to set back high fidelity by decades, if not completely cripple it in the future.

Since von Lohmann had so much to say—and since we couldn't bring ourselves to cut any of it—we're presenting the conversation in two parts. This week, we offer his thoughts on threats to fair use, both legislative and self-imposed. Next week, he'll tie that into the big picture.

Fred von Lohmann:The real threat to fair use concerns new formats. I believe the worst part of the threat is that consumers could have their rights curtailed before they ever know what they could have had. That's what's pernicious about laws like HR 4861 and about DRM and cable set-top boxes, where there's no legal restriction, but the industry has cut a deal with Hollywood without talking to the consumers first.

The way things used to work was that new products and capabilities would come out and then there'd be tussling to figure out what would be permitted. That happened with the VCR, DACs, and with DAT. Today, formats get crippled on the drawing board long before a consumer ever sees them in the marketplace. Most of the time, when crippled products arrive, people never know what they're missing.

If HD radio develops according to the proposal the recording industry made to the FCC back in 2004, you'll see they're not trying to ban all home taping off the radio. They think it's fine that you tape off the radio, they just want to make sure that it's never any more convenient or useful than it was in 1976—so there has to be a human that presses the record button or the length is preset by time. You can't record specific songs or program it to only record your favorite bands. The recording has to be at least half an hour long, you're not allowed to skip from one song to the next. In one way, it's even worse than the old days—they don't want you to have an audio cue as you fast forward, which my cassette deck did back in the late '70s.

Our problem is that we can try to explain how these rules will constrain the ways people can use these products in the future, but it's hypothetical and not everybody will get it. When 39 million people have Tivo, it's easy to explain that they want to take your Tivo away; it's much harder to explain that they want to take away the next Tivo before it has even been invented. A lot of the technology that the recording industry is objecting to in the HD radio bills is technology that, as near as I can figure out, doesn't even exist yet.

As my friend [science fiction writer and Boing-Boing co-editor] Cory Doctorow likes to say, "The value of what has not yet been invented always exceeds the total value of everything that has been invented so far." We stand to lose so much if we put the brakes on inventors, and we'll never even know what they could have invented but didn't.

Wes Phillips: For example, Hollywood objected to the VCR, but now it makes more from video sales than from the box office.

FvL: Yes, but I've actually heard Hollywood executives make the case that it's because they now have the DVD. They've told me that Disney was right to sue Sony about the record button, that nobody ever had a problem with the play button. The problem with that is that there wasn't anything to play when the VCR came out in 1976. The rental market took years to build and videocassette was never a sell-through medium. People forget that the same was true with the iPod. When the iPod came out, there was no legitimate place to purchase authorized music downloads—you had to rely on fair use to jumpstart that business.

If there hadn't been fair use, there'd have never have been a consumer video market. To compound the irony, at the same time that Hollywood was pricing videocassettes at $80–$90 for sale to rental stores, it was lobbying Congress about how the video rental business was stealing from them. It was a long time before they figured out they could make a lot more money selling them at $12 each. The rental companies don't buy commercial copies of their DVDs, by the way, they have a separate deal with Hollywood about that.

Of course, it's the existence of the first-sale exception to copyright law that keeps that whole market working. [The first-sale exception (17 US copyright section 109) says that once a library—or individual—has legally acquired a copy of a work, the library or individual may distribute the copy, without the copyright holder's permission. First sale says that libraries can loan books without committing infringement.] The studios know that if they push Blockbuster or Netflix too far, they can always fall back on buying in the retail channel, and it's perfectly legal for them to do so. A lot of people don't appreciate how exceptions to copyright law really make most of our media world function. If there was no such thing as first-sale exception, there would be no libraries, because renting or loaning copyrighted material would otherwise be illegal.

If first-sale exceptions didn't exist, the studios would be able to set their own prices for video rentals, since dozens of different services wouldn't have to compete with one another. We'd have one or two major chains owned by the studios—and we'd all have to pay the price.

I think that copyright is a good system and works very well, but it only works because it has robust exceptions that balance the outcomes for consumers and creators both.

WP: Are you concerned about the ever-increasing time works are under copyright?

FvL: No, I don't see much difference between life plus 50 years and life plus 70 years. Most stuff that's copyrighted now won't survive 100 years. I'm more bothered by the fact that 75% of all the music that's ever existed is out of print and yet protected by copyright, so that no one can make any use of these works. You can't buy them and you can't copy them either.

WP: Is that because it's just the big businesses that are bugging the lawmakers about these issues?

FvL: That's a big part of it. When it comes to Congress, there are only two things that make a difference: one is money and the other is votes. Until members of Congress perceive that there's a real price to supporting [big business on] these issues, they'll see no downside to accepting big business's version. I was talking to Senator Ron Wyden (R-OR) and he said, "In all the time I have been talking issues to my constituents, I have never had one mention copyright-related concerns to me. And until legislators perceive a downside to supporting these issues, they're not going to have any reason not to support the entertainment guys."

The Consumer Electronics Association (CEA) has been carrying the torch on this. It has done more than any other industry group. The people who really deserve blame here are the Microsofts and Intels and Apples of the world. The electronics guys can only do so much—the entire CE industry isn't nearly as big as the computer industry and, frankly, less of it is American. People actually question how many American jobs are created by the Sonys of the world. The EFF has been pushing hard for Intel, Microsoft, and Apple to be much more forceful about this stuff, but those guys are too busy covering their bottom lines to risk alienating the entertainment companies—they are afraid that the entertainment industry will cut the PC platform out of the next generation format.

Next week: Part two, which includes a history lesson and some observations about the current health of the music business and how it's could be good for high-end audio.