Re: Consideration in a Shrinkwrap Contract

On Tue, Sep 26, 2000 at 06:14:01PM -0700, S. Martin Keleti wrote:
> I can't say I'm thrilled with the business model, but I can't say that it
> strikes me as wrong.

Oh, no doubt ASP is not illegal (that sense of "wrong"). But my question was more related to public policy, and what is our responsibility to counsel wise policy.

> Authors don't have to sell copies of their works at all. Although you might
> want to have a copy of a video, if the studios wanted to, they could simply
> limit their exploitation of their films to public performances in cinemas.
> If you want the experience of seeing a first-run movie, you pay to see it.
> If you want to re-experience it, you see it again (and pay for the
> privilege). The public is still exposed to it, and (distant--and probably
> excessively so) future generations can make derivative works based on it.

Authors need not sell their works, and they need not publish them either. They can keep their works in a drawer, but copyright now issues upon the time when the work is put into a fixed form.

But unless the work is published and eventually goes into the public domain it makes no sense to say that "future generations can make derivative works based on it."

And this is my problem with ASPs. As with encrypted eBooks, they wish to enjoy perpetual copyright, and the work effectively never enters the public domain. Even works that have already entered the public domain are now protected against access (called "circumvention") by means of the DMCA, which has been interpreted in SDNY to forbid any "trafficking" in means to circumvent--if the reader is clever enough to devise a way to "circumvent" then she may do so, but even in order to access a public domain work that has been encrypted she may not purchase any means to gain access, if that "device" also allows access to works under copyright.

> Many dramatic works are performed, but few people buy scripts to plays (and
> in many cases, they're just aren't available). Maybe that's part of the
> reason Broadway is seen on the verge of collapse (dwindling audiences and
> high production costs) and Hollywood makes money (despite huge production
> costs, they're made up for in volume, through exhibition, cable, free
> television, home video, etc.); until the advent of the VCR, were motion
> pictures any less entitled to the protection of copyright?

Motion picture studios have argued that strong copyright control on movies allows them to keep movies available to viewers. At the same time, they do not wish the movies to enter the public domain so others can make derivative works. ASPs and continued strong protection of unpublished works prevents the works from entering the public domain and means effectively perpetual copyright. Two film preservation groups are plaintiffs in the case Eldred v Reno to overturn the copyright term extension act and make "orphan" films available--the strong copyright control that studios seek cannot do that.

The particular business model of distribution in question here does not imply a particular set of copyright and patent law. It is possible for business models to adapt independently, as for example the movie studios did after introduction of home taping via VCRs.

Our policy, in my opinion, ought not to be shaped by those particular business models at one point in time. Rather, the purpose of copyright and patent law ought to be, as the Framers rightly put it, "to promote the progress of science and useful arts." The economic balancing is already there in the Copyright Clause--woe to any legislature or court that attempts to unbalance it, without a new amendment to the Constitution. This Clause sets the framework we should be discussing, not particular business models or even particular implementations of copyright law that even lawyers argue about.  

> Whether federal statutory copyright law encourages publication is
> debatable. There was a time where public performances were not deemed
> publication, so federal statutory copyright did not necessarily apply at
> all, and thus protection was perpetual under common law copyright.

As far as the debate goes, I'll take the side of encouraging publication if you'll take the other side--and if you can't be encouraged to publish your side of the debate I win by default ;-)

As far as your second point goes, can you point to a case where a playwright won a case under common law copyright?

> Ideas can spread without the reproduction and distribution of tangible
> articles embodying their expression.

Yes, but I believe there are strong public policy reasons to encourage copyright and patent under the framework of the Founders of the U.S. Constitution. I see no reason to abandon it. The question should be how to adapt copyright and patent law and policy to new technology and business models.

>Competing ASPs can come up with
> different programs to achieve the same results; if the program is kept out
> of sight, they can independently create the code.

No, because if the work is copyrighted then even independent creation can violate copyright. Registration does not require complete disclosure of the code.

Of course, if the work is not copyrighted then ASPs can still claim that any independent creation is a violation of their trade secrets-- that is in fact what DVD CCA is claiming in the California case.

> Maybe the copyright laws aren't all that you think they are.

Maybe not. Since 1976 at least it seems that we in the U.S. have gone astray from what I and many others think they are or should be. I believe it is time that the Supreme Court settled the issue of "intellectual property" law and provided a firm framework for how all of us can proceed in the coming millennium as we try to cope with new technologies and business models. I believe this list has many smart and wise members to help in this debate.

-- 
"Eric"  Eric Eldred  Eldritch Press
mailto:Eldred[_at_]EldritchPress.org
http://www.eldritchpress.org/EricEldred.vcf