The Kaleidescape video jukebox is a pretty simple idea: 5.5 terabytes of storage hooked up to your television. Store your DVD collection on it—up to 825 DVDs—and watch each one in an instant. No messy search for DVD boxes, a sizable fraction of which turn out to be empty (do people actually put away DVDs in your house)? A real video iPod: hundreds of selections a few clicks away. Sounds good? Not to the DVD Copy Control Association which sued Kaleidescape in late 2004. (Updated info on the lawsuit is here.)
What on earth can be the problem with storing your DVD collection on what after all is nothing more than a fancy, large hard drive? The answer tells us a great deal about tricky issues of the real business of lawyers—institutional engineering—when we are dealing with copyright and technology.
I italicized “your” for a reason, as I think everything turns on that. There is no good way for the machine to know whether the DVD that you have inserted for copying is one that you just purchased at Wal-Mart or one that just arrived in the red envelope from Netflix. The machine can’t tell whether you are an owner of the DVD, a renter or have just borrowed it from your neighbor.
Suppose that you own the DVD. Do you have a legal right to copy it to the server? I think the detailed technical legal answer is “gosh, that’s a hard one, don’t know for sure.” Under current U.S. law, you don’t have a straightforward general legal right to copy content that you own, even for private use. The Sony Betamax case which validated some private copying would have been a no-brainer if you just could make private copies willy nilly. But you can’t, and other than a handful of semi-clear private copying rights (some for music under 1008 (don’t rush to the statute) and some for libraries under 108 (ditto)) private copying usually turns on the uncertainties of fair use. That said, I suspect that no one will get worked up if you were to copy DVDs that you owned to your server in your house.
But if you have rented the DVD or borrowed it from a friend, then we have a different case. The whole premise of rental or lending is temporary access, not permanent access. If Netflix becomes the new 3Rs—rip (the envelope), rip (the DVD) and return—we will find it impossible to separate rental and sale, temporary access from permanent access.
A substantial fraction of copyright discussion, especially about the Digital Millennium Copyright Act, emphasizes particular examples. The argument takes the form of “with the DMCA, the following use can’t take place and that can’t be right, can it?” Tim Lee, whose post on this spurred this post, makes this argument in describing how the DMCA has stifled innovation.
This is an incomplete way to frame the argument. These situations are usually about sets of uses. The technology will allow us to allow A, B and C or X, Y and Z, and we are not just choosing B or Z. We are choosing among different bundles of uses. To be less abstract, we should try to define the relevant sets of uses at stake for the video jukebox. One use—a practically valid if somewhat legally uncertain use—is copying DVDs that you own to your home video server. The second use is copying rented DVDs to the box. A third use might be copying home movies that you have burned to DVDs (though presumably that content isn’t controlled by the CSS system found on commercial DVDs).
If we can build a cost-effective machine that allows uses 1 and 3 while blocking use 2, we should do so, but otherwise we are stuck with a machine that allows all three uses or none at all. And that brings with it choices about institutional structures. If rented DVDs can be ripped to the server with ease so that you keep the content, can we sustain both rental and sales markets for DVDs? When we had, briefly, a legal market in rental music, Congress responded quickly to kill it off with the Record Rental Amendments of 1984. Congress recognized that the music rental business was really rent-to-copy-to-own and we had to choose between the music rental market and the music sales market. We can’t always be sure that when Congress acts it does so out of pure motives, but, as I have suggested, I think that there are good reasons to want to sustain both rental and ownership markets in video, if we can do so, and even if we couldn’t have done so for music.
Now we face some choices. This is about how we engineer the enforcement of legal rights. We could allow the machine and look for an alternative way to enforce the legal rights trampled when rented DVDs are ripped to the machine. Spot checks on houses? Subpoenas to Netflix to see how quickly I am returning my movies? If these actions against end-users are unattractive—they certainly are to me—we are back to having to decide what to do about the machine. We will often want to design in enforcement at the front end rather than having to enforce it one-by-one at the back end, and this is exactly what the combination of the DMCA and CSS does for DVDs.
We might also consider a point about sustainable market combinations. By that mouthful, I mean the following. At least for now, we seem to be sustaining a music market with two parts: legally acquired (purchased CDs or purchased or given away online) and illegally downloaded. We have both free and fee at the same time. Some people want to comply with the law and hence just won’t participate in the free, illegal market. Others may be deterred from the illegal market by the risk of participating in that market (software viruses or the fear of legal enforcement). I don’t know that we could sustain in the music market fee/sale; fee/rental; and illegal. The 1984 music law may reflect that judgment, though do note that the ability of libraries to lend music puts pressure on this system. But libraries don’t scale, while a commercial enterprise would ramp up quickly.
For video, digital right management may help to make it possible to sustain these three markets. The darknet critique of DRM says that there will always be an illegal market. Someone will be good enough to break the scheme and put the content into the clear. Given that some people will not participate in the illegal market, we can sustain both free and fee markets. But DRM may help us sustain both fee/sale and fee/rental and that takes us back to the video jukebox.
With cheap video jukeboxes and easily copyable DVDs, my guess is that even the honest would be sorely tempted to do some copying. Haven’t quite finished the movie when it needs to be returned? Rip it and keep it just awhile longer by loading it on your video jukebox. After all, what is the real difference between having the content for six days instead of five? Many of these lines seem quite arbitrary and you could imagine a range of consumer views about the acceptability of temporary ripping.
DRM schemes prevent that. The schemes force a user to make a bigger and more transparent—to the user herself and to possible enforcers—jump in illegality. No slippery slope to illegality but instead a real choice. Critics of DRM make exactly that point—DRM turns honest users into users looking to beat the system—but we now have reached an empirical judgment about what honest users will do in the face of an irritating constraint.