A New Copyright Exception Should Be Considered

In the past week I’ve listened to the most recent episodes of The Commandline Podcast and The Giant Bombcast. The former was a discussion of those who willingly violate copyright law as a comparison to those who violated the Volstead Act and 18th Amendment to the US constitution both of which made it illegal to sell “intoxicating liquors”. The latter had a discussion during the listener emails section that revolved around buying illegal VHS copies of movies and TV shows that have never been released on DVD (or sometimes even legitimately on VHS). (For my younger readers — VHS is a cassette tape format that held video . It was the precursor to DVDs) Together these different shows got me thinking about how copyright should deal with unreleased video.

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As part of the Digital Millennium Copyright Act (DMCA) there is an allowance for exceptions to be made every three years. For example, they might say it’s legal to jail break your cellular phone even though that would require breaking the digital locks on the phone. Or they may say it’s legal to make a personal copy of a DVD even though that would require decrypting it. I argue that, even though it wouldn’t apply to the DMCA, Congress should allow for an exception to be made for works that companies refuse to release so that people can copy and trade them without fear of retribution. Congress should allow this because the culture is harmed by the lack of releases of this material.

Our forefathers enshrined copyright into the constitution because they saw how important to culture it was to incentivize creation. So copyright is meant to say, “Hey, you! Creative guy! Why don’t you create something beneficial to our culture? In return you get to be the only one who makes money off of this (not counting first sale doctrine) for some amount of time.” Now, that has been perverted to the creative person’s lifetime plus 100 years, but that’s not the point of this essay. And I’ve ranted on that in the past. And while copyright law does not require the person to sell this cultural item, it certainly does not produce value to the culture if it is not experienced.

Most cultural works are ephemeral in nature. They are printed books which yellow and whose pages eventually disintegrate. They are celluloid film which can deteriorate and potentially catch fire. And so on. With the exception of sculpture, most of our cultural items are not made to last. The US government has recognized this and that’s why the Library of Congress collects items of cultural value. This way they can try their best to preserve our culture and find a way to let us experience it without further deteriorating the original item. In general, the more commercially successful a cultural item, the more of them that will exist among the population so that we can recover it if needed.

There are countless examples of items, particularly in the film industry that are lost to us forever. Film stock was particularly prone to catching fire back then and many original movies are lost to us forever. And it’s a huge tragedy not to be able to experience the birth of Hollywood. Or in some cases, all that survives are colorized or otherwise altered versions. This is better than nothing, but it’s certainly not the same as experiencing the original. We have also lost many of the earliest TV shows because they were shown live and people didn’t have VCRs (wouldn’t for about 30-40 years) to record the shows.

There are tons of TV shows that people have recorded onto VHS tapes that have not been released on VHS or DVD because it just doesn’t make commercial sense for the company involved. In some other cases there may be rights issues that have changed — perhaps it was OK to use music on TV but not on DVDs. This kept Daria from being released to DVD for a long time and now VHS copies with the original music are much sought-after. The problem with these shows being archived on VHS tapes is that the tapes wear with each viewing, the magnetic strip can lose information, and each copy made loses some quality. This doesn’t have to be the case now that we have digitization. Once a VHS tape is digitized, further copies do not lose quality.

However, we now have a problem — this VHS tape has been digitized to one person’s computer. This hard drive can crash or the file can be accidentally deleted. VHS tapes need to be copied to computer at 1:1 speed so it’s very time consuming to have to redo it. So, in order to preserve our culture, people should be free to share these videos. The more desktops on which they reside, the better chances that it will remain a bit of culture that can be experienced by future generations.

So, why should we allow this violation of copyright? (Not a violation if Congress allows for this exception) Well, as I stated above, the purpose of copyright is to enrich the culture. If the studios refuse to release these works into the wild in legally acquirable DVD, BluRay, etc versions, then they are essentially invalidating the very purpose of copyright. Also, they are implicitly saying that there is no money to be made with that program. And if there is no money to be made, there is no money to be lost. So, therefore, there is no hard to the corporation involved while providing a great benefit to the culture as a whole. In this way, if something were to happen to the company’s archives, we would still have these cultural items. I would also argue that the same ethics apply and should be codified legally as exist within the Anime subbing culture. That is to say, if one of these VHS programs were to finally be released in a new format — DVD, BluRay, etc, then trading of that item should cease.

If digital media did not exist, it would not be legal under our free market system to compel these companies to produce this media for the cultural good. It would cause them to undertake costs for something they may not be able to sell. But, the magic of digital goods is that they are infinitely reproducible at infinitely negligible cost, In fact, it would cost the studios nothing for these works of culture to be propagated. They might even gain from this by tracking it and seeing which works might be popular enough to warrant a legitimate release or someone seeing these unreleased works might gain an appreciation for a certain director, actor, etc that would lead to sales of those media already available for consumption.
So I think it is pretty clear that allowing for the redistribution of video media that the studios refuse to release is culturally the proper thing to do. It is even our patriotic duty to advance our culture and keep it the most vibrant one around. It should be made the legal thing to do.

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