Say Goodbye to Radar Detectors?

CAMPUS I/T NEEDS TO PAY CLOSE ATTENTION TO THE COURT BATTLES ENTERTAINMENT COMPANIES ARE WAGING TO CURB DIGITAL COPYING

In my youth, I was a fast driver. I would zip around the Midwest at 85-95 mph in a variety of cars, including my two favorites: a 1965 red, 4-door Corvair and a yellow (with black vinyl top) 1967 Camaro. Now that the latest neurological research shows that my adult decision-making faculties were not yet developed (That apparently happens at about age 25 and I can truly flash back to a number of instances which should have killed me.) I have my excuse and I can admit the error of my ways.

I was appalled, however, when the first radar detectors came out because I could never understand how a tool that was clearly designed only to evade law enforcement could be legal. Even during the time when, one summer, I evaded an Ohio State Highway Patrol aircraft's surveillance by driving up under a pavilion and hiding out for half an hour, I refused to have anything to do with radar detectors. I do like to make digital copies of things, though . . .

Later, when I attended Michigan Law School, I learned a little more about the law permitting that kind of technology but I never really accepted it. Now, the movie and music industries, along with other entertainment industries like big-time sports, are pouring money into Capitol Hill in a concerted effort to pass legislation that might have-as an unintended consequence - the 'illegalization' of radar detectors.

You see, a line of Supreme Court decisions that are mostly represented by the case of Sony v. Universal Studios (1984), a.k.a. 'The Betamax Case', hold that so long as 'substantial commercial non-infringing uses' from a technology are possible then manufacturers are absolved of liability for the use to which consumers put their products.

In other words, Xerox is not responsible if you make fake dollar bills with their copiers and Sony is not liable if you use their tapes and VCRs to make illegal copies of movies. (In a similar analogy bit with a different line of cases, radar detector manufacturers are okay because there is at least a claimed 'safety' element to drivers using them. (It's a stretch to me, but boy the law can be strange.)

What's happened recently, of course, is that the sharing of digital information-which now can include anything that is even remotely considered entertainment-is so much easier due to the broadband connections we have over the Internet and due to the many different easy and cheap ways in which digital information can be copied and transmitted.

Sure, we all know people who made copies of VHS tapes for friends or to sell in the 1980s, but it took a substantial time and money investment to do so. Now, nearly anyone who is not homeless (and even the homeless at the local library) can duplicate thousands of copies of a lot of things and send them all over the place.

So, peer-to-peer networks and digital copying are the target of the combined might of all the entertainment industries and, even though their attack was recently blunted by the Ninth Circuit Court of Appeals in MGM v. Grokster, that case has been appealed to the U.S. Supreme Court and later this month we'll all be listening to summaries of both sides of the case on our local NPR stations.

The parallels to similar cases in the 1980s are striking and I personally hope that the arguments to change the law are rebuked by our justices. Luckily for us IT folks and IT consumers, we do have the substantial might of the technology industry out there opposing the entertainment industry.

Why are the technology companies so involved so early? After all, what's being asked is that network owners police their networks, not necessarily that changes are made to CD and DVD drives, desktops and laptops, and so forth? Basically, it's the 'slippery slope' argument: if the court reverses itself these 20 years later then it can be predicted that any technology that is capable of being used to illegally violate copyright laws must have built in safeguards against that misuse.

Here are two arguments about these legal issues:

1984, Sony v. Universal Studios (industry brief: 'Unlike cameras, typewriters and Xerox machines, whose primary market is derived from non-infringing uses, there would be little, if any, market for VTRs if they could not be used for infringing purposes. Petitioners' unwillingness to devise a technological means of preventing copying of copyrighted works makes plain that without the ability to make unconsented copies of the copyrighted motion pictures owned by respondents and amici, there would be little if any market for VTRs.'

2004, MGM v. Grokster (industry brief: 'Infringing content is the powerful magnet that draws users to respondents' services and fuels their profits.... [T]here is no evidence that these noninfringing uses would attract a single user, much less enough users to create commercially sustainable networks.'

Well, in both cases it takes only a little bit of analysis to realize that the entertainment industry would have a really, really great argument if it were not for the Fair Use Doctrine. I doubt that anyone reading this would have trouble thinking of very significant and productive uses of P2P networks and it is disingenuous for lawyers to argue such things. On the other hand, that's why they get paid the big bucks.

Why should IT folks care? Well, this is another attack on 'fair use' - which is essentially in higher education teaching and learning. Plus, do we really want to have to further police what g'es on over our networks? Do we have the money and time? And, do we want to buy, maintain, and support hardware and software that gets more and more complicated to use and keep functional because it all has built into it elaborate safeguards that essentially block a big chunk of the functionality that the stuff has in the first place? I think not.

In order to be a more informed consumer of the news that'll be coming your way about this in the next few weeks, I highly recommend browsing the informational site set up by the Electronic Frontier Foundation (EFF) here - http://www.eff.org/legal/cases/betamax/ and here http://www.eff.org/IP/P2P/MGM_v_Grokster/ . Says Fred von Lohmann of EFF: 'The copyright law principles set out in the Sony Betamax case have served innovators, copyright industries, and the public well for 20 years. We at EFF look forward to the Supreme Court reaffirming the applicability of Betamax in the 21st century.'

If not, then the folks who make and use radar detectors might as well hang it up. Sure it's a different court case and sure it's a different legal precedent, but it still hinges on the technology having some legitimate use and although I can see those legitimate uses for copying digital things, it's just not there for radar detectors. On the other hand, three years of law school and a Juris Doctor have not taught me to expect obviously logical and intuitive, sensible outcomes in legal cases ;-)

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