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August 30, 2012
Demonstrably Insane, But Legal
This has been all over my feeds today but in case you haven't seen it yet, James Grimmelman's "Why Johnny Can't Stream" on Ars is a Copyfight must-read
. Grimmelman, a New York Law School professor, starts with the case against Aero, a company I blogged about back in March,
and uses its legal travails to show just how completely messed up current copyright precedent is, and how that mess is distorting innovation, technology, and business models.
Professor Grimmelman shows how the root of these problems is a case commonly called Cablevision, after the company known by that name. In the decision, a specific way of giving customers copies of programs was ruled legal. Unfortunately, the method used to store and supply those copies is what computer geeks like to call "pessimal" - the worst possible way to do something. In this case "worst" means most expensive and least efficient use of resources when looked at from a server/storage/recording/transmission technical point of view. However, a company that is technologically pessimal but legal stays in business where ones that have used more efficient architectures or technical solutions have been found to be in violation of copyright law and precedent, which Grimmelman repeatedly refers to as "demonstrably insane".
In his closing section "The road not taken" Grimmelman makes a plea for us all to get along, and for courts to concern themselves less with legal arcana and more with the function and purpose of the law in the first place, including issues such as fair use that never even got into the Cablevision discussion. Maybe I'm just too jaded, but after two decades of the Copyright Wars I have no hope that sanity will suddenly descend on US copyright regimes.
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