Recording broadcasts

The road from performance to copy has blurred. Taping radio onto a cassette, or a TV show onto a VHS tape, was considered fair use in the 80s. But now that satellite radio companies want to make hardware allowing perfect digital copies of satellite broadcasts, the copyright holders want more money, beyond the performance royalties they already receive.

Is it fair? On one end of the spectrum, we have TiVo - they don't have to pay those fees for in-home reproductions, even though I can tune into a music channel from cable and record the audio in perfect quality. In fact, our intellectual property system has awarded TiVo this past spring in a suit against DVR competitor EchoStar, to the tune of $73 million. (Although EchoStar has a stay on the injunction and is filing a countersuit)

On the other end, we have the Internet subscription services (Yahoo, Rhapsody, etc...) - they were forced, by the record labels, to build in digital rights management preventing easy interface with the streaming server for recording purposes, the circumvention of which may violate sections 1201 or 1202 of the DMCA. Software does exist for recording live off of the sound card (see Replay Radio and Total Recorder), and the legality of such an act done for more than noncommercial purposes is unclear.

So why is cable content not encrypted? Or conversely, why can't Internet streams be recorded directly from the streaming software application? Why the distinction in rights related to access and time-shifting depending on whether the content is delivered via cable, satellite or Internet? It's all digital content.

The law (statutes and caselaw) draws distinctions based on distribution technologies that ought not to be drawn. The core bundle of rights, such as reproduction, distribution and performance, evolved at a time when each right would be exercised through a distinct technology typically involving striking physical differences. Today, they all blur together thanks to digital networks.

The bundle of rights in the Copyright Act should be completely rewritten from the ground up to be neutral and uniform with respect to transmission technology. Such a change would save time and money for law firms, technology companies and content providers.