DVD Rippers and Tolerated Use
July 16th, 2008 | by bballou | Published in Facebook, Future of the Internet | 1 Comment
A new study by Future Source Consulting reports that 1/3 of US residents have copied a DVD in the past six months. This number, high as it is, might not be surprising. What is surprising is how little action the television and film industries (at least in comparison to the recording industry) have taken in response to such commonplace copyright infringement.
Why might this be? Why would content producers fail to enforce their legal right to prevent most of this ripping and sharing? It’s unlikely that film and television producers are unaware of or unconcerned by DVD ripping. Rather, they probably think that this sort of infringement is too hard to prosecute, and that the individual infringers are too “low value” to worthy any sort of extensive legal action. Content producers also probably recognize that at least some of these infringing uses actually add value to their products: ripping a DVD to post clips on an Internet fan page, or sharing a DVD with a friend who becomes an addict of the show might actually increase legal viewership.
What we’re seeing here is the emergence of what Professor Tim Wu calls “tolerated use.” This is use that is not legal, but that content creators take only occasional action to prevent. In this way the specific case of DVD ripping is like Internet users posting copyrighted content onto YouTube, or fans of Lost posting the transcripts of the show on Lostpedia. These sorts of infringing uses are generally hard to prosecute, involve low value targets, and occasionally create marketable opportunities for the original content creator or distributor. Theoretically the content creators could swoop down at any time and stop the unlawful infringement, but for the most part it just isn’t in their interest to do so.
Is tolerated use a good thing? Maybe. In general consumers get to continue to use their technologies in the ways that they want, and content creators get to maintain ultimate control over their products. However, the situation with tolerated use is analogous to the situation with the Facebook API. While coders on Facebook can in theory create most any kind of product they want, Facebook reserves the right to block or impose charges for the product at any point. The coders are free as a matter of fact, but not as a matter of law.
The same situation is going on with DVD rippers and tolerated use. People can rip DVDs, share those DVDs with a few friends, and post clips on YouTube. But they can’t do so “resiliently.” That is, their use could be blocked or controlled at any moment.
This sort of fragility in action almost certainly deters innovation and deprives individual users of a sense of autonomy. In a choice between total technological lock-down and tolerated use, tolerated use is certainly superior. But to the extent that innovation and autonomy are things we value, tolerated use is only a partial solution to over-broad copyright laws; it is not an ideal.
-Brendan Ballou
July 23rd, 2008 at 8:32 pm (#)
Can’t judges consider that too little efforts to deter “tolerated use” might extend marginally to things further away from the core of fair use? Isn’t that incertitude a long-term looser to gain a short-term word-of-mouth?