Up until recently, I had rather arrogantly assumed that a lot of people were either terribly ignorant about world affairs or were telling lies on purpose. However, ever since the run-up to the war on Iraq, I have been troubled by a much more worrying possibility. In the first few months of this year, I read a number of short articles containing references to the appeasement of Hitler in the 1930s which, from the context, caused me to suspect that my internet connection was in some way dragging in material from a parallel universe; one in which the USA entered the Second World War in 1939 as a pre-emptive measure rather than 1941 in response to an attack. It just began to seem more plausible explanation than to assume that so many people were making precisely the same error.
“Ed Felten”:http://www.freedom-to-tinker.com/archives/000414.html points to an interesting aside in a recent Richard Posner “opinion”:http://www.ca7.uscourts.gov/op3.fwx?submit1=showop&caseno=02-4125.PDF on a lower court injunction against Aimster. The interesting nugget is mostly irrelevant to the case at hand: Posner argues that if someone videotapes a TV show and fast-forwards through the commercials, they’re breaking the law.
bq. commercial-skipping, [amounts] to creating an unauthorized derivative work …, namely a commercial-free copy that would reduce the copyright owner’s income from his original program, since “free” television programs are financed by the purchase of commercials by advertisers.
This may seem like so much legal pie-in-the-sky. Even if Posner’s opinion were to become the accepted interpretation of the law, nobody expects the copyright-police to come knocking on the door asking about your video-watching habits. But it actually touches on some important issues for owners of digital video recorders (such as TiVo).
As happy TiVo owners testify, one of the joys of the machine is that it allows you to speed through obnoxious ads with alacrity. TiVo owners (myself included) wax evangelical on the subject. There’s even an “undocumented hack”:http://www.bigmarv.net/how/tivo30secondskip.html that allows you to skip through the ads 30 seconds at a time. But ad-skipping threatens to eat TV networks’ revenues. One of TiVo’s competitors was sued by various networks for including a more advanced ad-skip option on its boxes; the case was never decided, because the company went bankrupt. The new manufacturer has “dropped the feature”:http://www.adage.com/news.cms?newsId=38045, most likely in order to cosy up to the content providers. TiVo itself isn’t being sued – but it’s also keeping rather quiet about some of the more advanced features of its product. If a Posnerian view of the law prevails in future cases, it’s fair to expect nifty ad-skip features and their like to be declared illegal, unless they have substantial non-infringing uses.
Larry Lessig “talks up a storm”:https://www.crookedtimber.org/archives/000074.html about how copyright law and restrictive content management systems hobble artistic creativity. And he’s doing a good job of it. But the war is as much about consumption as production. Important set-battles are being fought over our TV remote controls, digital video recorders, and DVD players (those bloody “unskippable commercials”:http://www.washingtonpost.com/wp-dyn/articles/A17791-2003Jun20.html?nav=hptoc_tn on new DVDs). I suspect that more and more people will get upset about this, as these technologies spread, and as content providers become ever greedier. Couch potatoes of the world unite. You have nothing to lose but your chains.
Update: “Larry Solum”:http://lsolum.blogspot.com/2003_07_01_lsolum_archive.html#105784887890316026 has a good take on the technical misunderstandings behind Posner’s aside – it hinges on the difference between a performance and an unauthorized derivative work. Convinced me in any event. But does Posner’s interpretation apply to digital video recorders? I invite TiVo owning IP lawyers and former IP lawyers (yes Michelle, that means you) to comment.
Update 2: “Derek Slater”:http://blogs.law.harvard.edu/cmusings/2003/07/10#a258 has a good critique of Posner’s argument.
Larry Solum’s Legal Theory Blog is one of the jewels of the blogosphere. One of his most recent posts is a discussion of the tangled notion of “legitimate state interests” in the US legal system. Here’s his specification of the project:
What makes some state interests “legitimate” and others “illegitimate”? That thorny question is the topic of this post. Here is my strategy. We shall begin with a bit of history, discussing the historical origins of the phrase “legitimate state interest” in jurisprudence from the turn of the century, the New Deal, and the modern era. Next, we shall take a closer look at Lawrence, investigating in depth the idea that the state lacks a legitimate interest in promoting morality. Then, we shall back up and interrogate the concept of “legitimacy.” In the end, we will ask the question: does the notion of a “legitimate state interest” do any useful work in constitutional law?
Brian’s post on Nozick (immediately below) prompted a certain kind of reaction in me. I felt rather like the boy in the class who wants to interrupt with “But sir…, but, but …” The reason I have this reaction is, I think, not because I believe Nozick to be right (I don’t) but because I’ve always found Anarchy State and Utopia to be a challenging and stimulating book, and not one to be too lightly dismissed.
Nozick was certainly a great writer among philosophers, but also one with an eye to the good thought experiment which could discomfit his complacent leftie readers by taking their intuitions and working with them to produce unwelcome conclusions. The Wilt Chamberlain parable is one good example of this as are the immediately following paragraphs on the socialist entrepreneur. His use of the public entertaiment system example to undermine the Hart-Rawls principle of fair play (ASU 90-95) is another. To be sure, Nozick rarely has the kind of knock-down argument for his premises that we might like. But in the dialectical context, he doesn’t need to have, since he’s appealing to intuitions we already share (for whatever reason).