April 1, 2004 | By Donna Wentworth

The Wicked Player Piano II

Fred writes below that player pianos were the peer-to-peer file-sharing systems of their day; they spurred copyright holders to lobby Congress for what amounts to a monopoly over all machines capable of reproducing sound. Luckily for us, observes Fred, they failed -- and the modern-day recording industry was born.

Here, Cardozo law professor/Yale ISP fellow Susan Crawford sounds the same theme in a recent talk before the U.S. Copyright Office. Especially interesting is her discussion of what a number of us have come to call "permission culture" -- that is, the idea that every activity that a copyright holder does not expressly authorize is theft. As Professor Crawford notes, the idea has taken root so firmly that we now have new laws that presume to regulate not only copying itself, but also the kinds of "wicked player pianos" that consumers may use -- even to access their own, legally purchased "content."

Writes Crawford, "[The 'theft of service' bills] reach into homes to control what kinds of devices consumers may use in connection with the services they've paid for. Consumers have never needed the 'express authorization' of their cable or phone company before buying a new TV, VCR or PC. But now they may.

So, they're called 'theft of service' laws but can be understood as 'theft of copyright policy' laws. As the people who know about copyright policy know, a copyright owner hasn't in the past had the ability to proclaim what kind of machine can get access to his content. Last time I checked, it was still the law that a copyright owner's statutory monopoly will not reach a device so long as that device is 'merely...capable of substantial noninfringing uses.'"

Well, maybe.

More such food for thought @ Professor Crawford's excellent weblog.

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