Here's a remarkably cogent repost from the Pho list. It's the EFF's Fred Von Lohmann discussing the implications of the Betamax case (which established the "substantially non-infringing use" defense for technologists who are facing down media companies in court).
First off, can you be sure what people will use a new technology for? Did
Marc Andressen really know what the browser would be "predominantly" used
for? And wasn't it (and perhaps still is) predominantly used for infringing
activity, since to this day we don't have a firm grip on the copyright
status of linking, etc? What did Sony and Xerox think the VCR and
photocopier were going to be predominantly used for? Were their guesses
right? How would the execs have felt if you told them that a wrong guess
could mean and injunction and billions in statutory damages? Wouldn't they
have said — "the hell with that, let's just ask Hollywood what will placate
them and build that."And, of course, even if you guess right, how would you feel about having to
go to court and try to prove it with experts and surveys? Once you make the
question one of proportion, you make it a question that automatically gets
to a jury, which means millions in legal fees and the possibility of interim
injunction in the hands of an unpredictable judge (remember Connectix
Virtual Playstation?).How about the Diamond Rio, the Apple iPod, or the ReplayTV? Would execs have
built them differently if they faced immense damages, injunctions, and
uncertain results in court? Would they instead have built the Sony
MusicClip, the HP DE100C, and the TiVo (all including cripple-ware DRM)?
Would any tech company ever test the bounds of fair use, expanding consumer
choices with technology? Would any tech company ever even get close to the
line? (Witness the ReplayTV lawsuit.)
(Thanks, Fred!)
