The Taking of Section 1201

I managed to catch an uncut version of the original Taking of Pelham One, Two, Three on cable the other night and stayed up to watch it despite having seen it upteen times. It’s still one of the all-time great New York movies, especially for anyone who lived in the city around that time (the less said about the 2009 version the better).

One of my favorite bits of cynically comic dialog comes about half-way through, when Walter Mathau’s transit police lieutenant character reminds Dick O’Neill’s harassed and short-tempered train master that if they don’t get all the track signals cleared soon, as the hostage takers were demanding, they would start killing the passengers on the hijacked subway car.

“Screw the passengers,” O’Neill’s character barks. “What do they expect for their lousy 35 cents–to live forever?”


I couldn’t help thinking of that classic exchange as I was reading through the responses to the Copyright Office’s written questions to participants in its DMCA section 1201 exemption proceeding, particularly those submitted by Steven Metalitz of Mitchell Silberburg and Knupp on behalf of the MPAA, RIAA and other copyright owner groups. Rejecting the Office’s proposed language for an exemption to allow circumvention of DRM used in connection with authentication servers in the event those servers are ever turned off (e.g. Wal-Mart’s music service), Metalitz practically channels O’Neill’s train master:

[W]e reject the view, which is implicit in proposed Exemptions 10A and 10B and appears to underlie your questions, that copyright owners and their licensees are required to provide consumers with perpetual access to creative works. No other product or service providers are held to such lofty standards. No one expects computers or other electronic devices to work properly in perpetuity, and there is no reason that any particular mode of distributing copyrighted works should be required to do so. To recognize the proposed exemption would surely discourage any content provider from entering the marketplace for online distribution or offering consumers the convenience of online authentication of disc-based content unless it was committed to do so — or to guarantee the ability of a third -party service to do so — forever. This would not be good for consumers, who would find a marketplace with less innovation and fewer choices and options.

In other words, “Screw the consumers. What do they expect for their lousy 99 cents–to listen forever?”

In the movie, of course, O’Neill plays his character’s misplaced self pity for it darkly comic potential. But Metalitz doesn’t seem to be in on the joke. At one point, he un-self-conciously suggests it is the copyright owners who is the injured party in need of relief.

The language floated in the Copyright Office question simply makes explicit what the exemption language crafted by the proponent is more coy about. The Office’s text purports to spell out the circumstances under which a beneficiary of the proposed exemption would be able to “provide access to works protected by the technological measures” that the beneficiary has circumvented. This describes a circumvention service and a prima facie violation of section 1201(a)(2). The Librarian has no power to immunize such a violation, and the Register lacks any authority to recommend it.
The attempt to construct an exemption in this context itself illustrates the reasons why Congress decided not to allow such exemptions in this proceeding. This is particularly true in the typical situation in which the authentication server is operated, not by the copyright owner itself, but by a third party who is licensed to distribute content in this way. The exemption would penalize a copyright owner for a service’s failure to continue operating (or to provide refunds).

Yep, it’s the copyright owner that is being put upon here, not the consumer who merely lost the ability to enjoy something she paid for. Got a beef? Take it up with Wal-Mart. Never mind that we’re the ones that insisted on server authentication in the first place.

It’s ass-backward logic like this that makes it hard to summon sympathy for the studios and record companies, even if you’re not a copyright rejectionist. No one expects computers and other electronics products to “to work properly in perpetuity?” Maybe not, but no one expects them to be remotely and arbitrarily disabled, either.

Content owners will be “discourage[d]” from “entering the marketplace for online distribution” if consumer expectations are too “lofty?” You want less lofty customers? Who runs a business that way?

I know Mr. Metalitz is a lawyer not a marketing  director, and his job is to advance and protect the legal interests of his clients. But all too often, media companies seem to allow the lawyers to drive the marketing strategy, which means protecting the companies’ legal interests goes ahead of responding to the marketplace with all its “lofty” expectations.

Metalitz actually unwittingly acknowledges as much by invoking the Digital Entertainment Content Ecosystem (DECE) initiative to argue against the need for any exemption.

Finally, although proponents base their arguments almost entirely on what they fear may occur in the future (since the problems they hypothesize have been fully dealt with thus far without resort to circumvention), in fact the need for any exemption like proposals 10A or 10B is likely to lessen, not increase, as time passes. Rightsholders are already announcing various programs that demonstrate their intent to help consumers reap the value of their investments in copyrighted works and to deal with unexpected changes in technology. For example, Warner Bros. recently announced an offer to help consumers switch from the moribund HD DVD format to Blu-ray (trade in the cover art and $5 and get a Blu-ray disc version in addition). Various industry groups, including the Digital Entertainment Content Ecosystem (“DECE”), are also working to promote best practices and otherwise to improve interoperability. The DECE aims to enable consumers to create “rights lockers” that will enable persons who purchase access to works to access those works at a time and place of the consumers’ choosing.

I won’t get into Warner’s HD DVD maneuver here, except to say that you don’t get points for cleaning up a mess of your own creation, but the DECE argument is just absurd. Nothing against any of the individuals involved (many of whom, not surprising, are lawyers) DECE, like other, similar industry initiatives (e.g. DVD managed copy) is at its core, an effort to broker a deal among the competing legal interests. It’s not a marketing plan.

You don’t need complex “rights lockers” to achieve technical interoperability. And they’re certainly not necessary to meet manifest consumer demand. They’re only necessary to achieve legal interoperability.

Moreover, DECE is 18 months behind its already belated schedule and at least some of the companies involved (those where Media Wonk has sources) are growing increasingly skeptical that anything useful will come of the initiative within a time frame to make a difference.

Again, the Copyright Office proceding is a legal proceeding, and Metalitz is legitimately seeking to protect his clients’ legal interests. It’s up to the clients to decide that “screw the consumer” is not an acceptable marketing plan.