Ars Technica’s Nate Anderson has written an excellent history of how the content industry has fought against pretty much every technological advancement over the past 100 years for fear it would end creative expression forever. As we know this isn’t true. Rather, technology helps increase the market for these creative works (and other industries) by decreasing costs and increasing efficiency. It is much cheaper and easier to create and distribute music than it was 10 years ago, let alone 100 years ago.

Anderson profiles the content industry’s fight against the gramophone and player piano. John Philip Sousa campaigned to Congress to ban these evil machines for replacing live performances, not recognizing that home recordings might increase the demand for those live performances. This gave birth to the compulsory license system, where the government set rates sheet music must pay to songwriters, we have still to this day, though it has been vastly expanded.

Photocopiers spelled doom for the print industry, with UCLA law professor Melville Nimmer saying “the day may not be far off when no one need purchase books.” While the U.S. and its courts upheld a fair use right to copying, Canada and other countries must pay royalties to collection agencies for every copy. Canada pays the same tax on rewritable CDs and iPods because they might be used for pirated content.

Movie companies famously referred to the VCR as the “Boston strangler” as it killed the movie industry. Universal sued Sony over Betamax all the way to the Supreme Court to ban the use of home recording. Once found legal, movie companies decided to sell copies of their own movies to home viewers, a revolutionary practice that led to the multi-billion dollar home video and rental market.

Pretty much every expansion into digital media has been fought tooth-and-nail by the content industry, from Napster to DVR to the iPod.

Anderson also left out some other highlights. Cable TV, when originally introduced, featured almost exclusively pirated content from network television. This allowed cable television to expand far enough that it could afford its own programming. Even the movie industry began by fleeing New York to Hollywood to escape enforcement of Thomas Edison’s patents and the high prices he charged to anyone wanting to make movies.

Presently, the DMCA makes sure technological innovations are few and far between to help the content industry.  While CDs were released without DRM and thus able to be ripped onto computers and people’s iPods, DVDs are copy-protected and thus illegal to copy in anyway. Even though it is easy to do so, no software or hardware can be released that can take advantage of people’s massive DVD collections.  Even though the content industry claims it would never sue to ban innovation, the industry has done so several times, and won these cases, holding back technology and innovation that consumers want and could do more to help expand the content market.

Not content to learn from the 10 plus years of mistakes by the recording industry, the movie industry is stampeding its way to obsolescence.

First, Fox and Warner Bros. have joined Universal in its battle with Redbox, the successful rental kiosks found outside supermarkets and fast food joints. Redbox rents movies for $1 a day, legally purchasing the movies from wholesalers. Redbox will even sell used DVDs for about $7.

Fox, Warner Bros. and Universal have sued claiming Redbox is infringing on their copyrights and are ordering wholesalers to refuse to sell their movies to Redbox before several weeks. The studios are demanding revenue sharing from the kiosks.

Redbox is countersuing for antitrust and abuse of their copyrights.

Redbox, while relying on the movie studios, is in a stronger position. Sony and Lions Gate are backing the kiosks with their movies, recognizing that movie fans love the price and convenience. DVD sales are down 13 percent while rentals are up 8 percent.

Next, the movie studios recently won two important court cases, both likely to cause more damage to the industry rather than help.  The first was the studio’s win over Real’s DVD copying software.  This copier circumvented the DVD’s DRM, which is illegal under the DMCA, but then put new DRM in its place so users couldn’t share their movies.

Now, copying for personal use or backup is considered legal and a fair use of a copyrighted work. But because of the DMCA’s anti-circumvention laws, you can’t backup the DVD you legally purchased.

What’s silly, is Real’s copier cost $20 and used DRM making it a somewhat worthless copier, especially when there are dozens of free DVD copiers without any DRM. So by suing, the movie studios 1) promoted that people could copy movies and 2) sent them to free, DRM-less alternatives.

For their other lawsuit, movie studios won their appeal against Kaleidescape, which is basically an iPod for movies (or a DVD jukebox, if you will), but costs $10,000.  Movie studios of course feared this system would be a haven for piracy, but again, it’s $10,000. It’s for high-end movie fans with lots of DVDs who don’t want to keep switching discs. They backup their discs on Kaleidescape and then watch them on their TV. But because of the DMCA’s anti-circumvention laws, users can’t do what they are otherwise legally allowed to do. And the movie industry gets to stamp out innovation and technology that is trying to help make DVDs and movies more valuable.

How are legal remedies helping here? The movie studios are trying to crush three different companies who are trying to help make DVDs more valuable at a time when consumers are showing DVDs are less worth purchasing.

YouTube has rejected Senator John McCain’s request for the video website  to consider fair use when responding to DMCA takedown requests.

McCain posted campaign ads with clips from CBS and Fox news broadcasts. The two networks sent YouTube takedown notices, which according to the DMCA, they are legally obliged to respond to immediately in order to maintain safe harbor protections.  McCain voted for the DMCA in 1998 and now has to deal with the consequences.

This shows McCain and few in Congress truly understood the effects of the DMCA and likely the same can be said for most complex laws put on their desks.  The DMCA includes the excellent safe harbor provision that protects platforms from being liable for what users do (like YouTube shouldn’t be liable for copyright infringement of its users).  But the takedown notices have become an abused system stifling free expression and negative opinions. This is not to mention how anti-circumvention laws violate upheld fair use rights and stifle innovation.

When first passed, Congress probably thought they were protecting intellectual property. Their intentions might even have been noble. But these under-thought, one-sided laws are going to hurt innovation and creativity. And you could argue it’s hurting democracy. McCain can’t even get his own campaign ads on YouTube because the site is too scared of being sued over copyright infringement (too late).

Too often laws are passed to pander “look what I did” rather than look what we accomplished.  Did the admittedly rushed Patriot Act (which many politicians never finished reading) compromise our rights too much to keep us safe? How much is the new PRO-IP law’s Copyright Czar going to stop piracy? And when is this bailout bill going to turn my 401k into 401 million?

McCain shouldn’t be looking for special treatment from YouTube.  He wants to be president, so why doesn’t he act like a leader and champion changing a bad law? I don’t want a politician to have their own class of laws; I want them to make the laws we all have better.  We’ve got to stop and smell the roses, before we accidently ban them.

This week a french court ruled eBay had to pay $63 million to Louis Vuitton for not doing enough to prevent counterfeit goods on its website.  eBay is even liable for users selling legit products because Vuitton claims no one can resell its products.

This ruling makes eBay responsible for the actions of its users.  One of the only good parts of the United States’ DMCA are the Safe Harbors which means service providers, like eBay, cannot be held responsible for what its users do.  This allows websites and ISPs to focus on providing services and goods for users without worrying about legal responsibility if things are taken out of hand.  France doesn’t have the same protection.

The problem is somehow eBay is expected to know what’s counterfeit and what’s real.  A similar argument is being made against YouTube over copyright, claiming its too much work for copyright holders to police the site so YouTube should do it itself.  How is eBay supposed to know what’s allowed to be sold and what isn’t?

The Associated Press has been kind enough to give bloggers more a week’s worth of posts with all its antics bullying websites and charging people for quoting more than 4 words. After several instances have shown the A.P. quotes blogs (without links), the A.P. decided to quote another blog once more for old times sake. They decided to quote TechCrunch, for irony’s sake, in an article about all the brouhaha over their own anti-quoting policy.

TechCrunch’s Michael Arrington announced he sent the news wire a DMCA takedown notice and a bill for $12.50, according to the organization’s own pricing chart for quoting 22 words from his post. Arrington describe’s his actions:

Am I being ridiculous? Absolutely. But the point is to illustrate that the A.P. is taking an absurd and indefensible position, too. So I’ve called my lawyers (really) and have asked them to deliver a DMCA takedown demand to the A.P. And I will also be sending them a bill for $12.50 with that letter, which is exactly what the A.P. would have charged me if I published a 22 word quote from one of their articles.

Kudos to Arrington for standing up for bloggers and fair use.

Update 11:48 a.m. - The A.P. released a statement this morning saying the matter between it and the Drudge Retort, the original target of DMCA takedown notices, is closed.  No details about what was actually discussed.  Just move on, nothing to see here.  Let’s see how that works for them.

To promote the film Tropic Thunder, Viacom created a funny video with stars Ben Stiller, Jack Black, and Robert Downey Jr. for the obvious purpose of creating some viral buzz. Because the video was genuinely entertaining, it became popular on several video sites, including YouTube. But Viacom has a pesky $1 billion lawsuit against YouTube. So Viacom sent a DMCA takedown notice to YouTube, but left the video up on other sites, like FunnyorDie.com.

I’m no lawyer (but I play one on my blog), but Viacom may have to keep its videos off YouTube for the risk that they prove to be a good thing, not a liability like the company claims. That would explain why Viacom is letting other sites keep the video - YouTube, for the purposes of its lawsuit, is to blame for any falling revenue or profits because of its disrespect of copyrights. If it’s discovered that disrespect of copyrights helps promote other parts of Viacom’s business, Viacom’s case would be weakened.

Techdirt theorizes Viacom never wanted this lawsuit to happen - it just wanted leverage in business negotiations with Google. Unfortunately for Viacom, Google wants to fight this case to make sure precedent is set to protect itself and other websites from these silly lawsuits.

Video embedded after the jump.

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The Associated Press has released guidelines it expects bloggers and websites to follow when using its content. As I wrote about yesterday, the A.P. sent seven DMCA takedown notices to the Drudge Retort for user-generated headlines and less than 100 word quotes linking to A.P. stories. The A.P. has been helpful enough to offer a tiered system so anybody can license its content, ignoring for the moment the concept of fair use.

• 5-25 words: $12.50
• 26-50 words: $17.50
• 51-100 words: $25.00
• 101-250 words: $50.00
• 251 words and up: $100.00

Non-profits get lower pricing. How generous.

I’m not sure if each number count as a word, so I might owe the A.P. $12.50. Thankfully fair use still exists, no matter how much the A.P. likes to pretend otherwise (and benefit from for all for its articles).

The A.P. provides a helpful form for people to throw money at the not-for-profit organization (A.P. is non-profit, shocking, I know). You must paste the excerpt you wish to plagiarize, no more than 2,000 characters, and provide the URL. The A.P. wants to make sure its content is used wholesomely, so it “reserves the right to terminate this Agreement at any time if Publisher or its agents finds Your use of the licensed Content to be offensive and/or damaging to Publisher’s reputation.”

If the A.P. doesn’t like what you wrote, it can just cancel the agreement. I wonder if they give you your money back?

Last week, the Associated Press sent DMCA takedown notices to the Drudge Retort, a user-submitted news aggregator. Drudge Retort featured seven A.P. articles with headlines (often user-generated, not original), less than 100 word quotes, and a link to the original article which, according to the A.P.’s letter, did not fall under fair use.

The use is not fair use simply because the work copied happened to be a news article and that the use is of the headline and the first few sentences only. This is a misunderstanding of the doctrine of “fair use.” AP considers taking the headline and lede of a story without a proper license to be an infringement of its copyrights, and additionally constitutes “hot news” misappropriation.

The blogosphere spent the weekend lambasting the A.P. for overstepping the bounds of copyrights. The A.P.’s VP and Director of Strategy Jim Kennedy answered with a copy and paste job on dozens of blogs (I wonder who owns those comments):

We get concerned, however, when we feel the use is more reproduction than reference, or when others are encouraged to cut and paste. That’s not good for original content creators; nor is it consistent with the link-based culture of the Internet that bloggers have cultivated so well.

To further remedy the backlash, the A.P. announced today a set of guidelines for bloggers in linking to A.P. articles.

The Associated Press has been reliably archaic in evolving to the internet age. The A.P. pressured Google over its News search engine, eventually convincing Google to pay the A.P. for its stories and pictures. Google had no obligation to pay the A.P. and likely led to other newspapers suing Google for their share and encouraging the A.P. to think it can completely control its content.

Today’s New York Times quoted Kennedy recognizing their initial approach to blogs might have been “heavy-handed.” A.P. executives met to revise their strategy which will likely appear in their usage guidelines. Bloggers, just like mainstream news sources (including the A.P.), won’t accept guidelines on how to use content. The A.P. does not get to set special rules on its content, same as the MLB and ABC and any other organization. The point of fair use is that it doesn’t require permission from the copyright holder. The more companies accept these restrictions, the more other organizations will try to expand the power of their copyrights.

A.P.’s recent moves will inspire bloggers to avoid A.P. stories, instead leading traffic to competitors who want free promotion. The result will be a less influential A.P. as other news services embrace internet technology instead of fight it.

Hoping to convince people of the grave injustice or simply to fill column inches, Viacom’s general counsel Michael Fricklas wrote an op-ed in the Washington Post presenting his company’s position on their lawsuit against YouTube.

Aside from their complete insanity (isn’t sister company CBS okay with YouTube showing videos), Fricklas tries to offer a logical argument likely aware of the PR nightmare this lawsuit could cause.  Obviously I’m a little bias against him, but even while trying to have an open mind, his argument falls flat on its face.

Fricklas relies on a bizarre reading of DMCA and are warped understanding of the internet and filtering tools.  The DMCA safe harbors, which Google and YouTube are likely to use as a defense, allow for content sites to not be held responsible for what users upload as long as complaints are responded to and cannot knowingly let inappropriate content be uploaded.  Fricklas claims, wrongly, that YouTube must know about copyright infringing videos because they know about spam and porn and hate videos.  What he doesn’t notice is the “Flag for inappropriate” link that allows any user to tell YouTube when these kinds of videos are uploaded.  Users police users in this content landscape.

Of course, Viacom would be considered one of the users in this equation, and that’s what they seem to not like.  Fricklas says it’s unrealistic to expect copyright holders to police the web for copyright infringement.  Google should do it - for everyone.  This might work out better for everyone, since Viacom has shown they barely understand the copyrights they hold.  Or did Congress do aware with fair use and no one told me?

Likely Fricklas isn’t presenting Viacom’s entire legal argument.  But protecting outdated business models by suing fans doesn’t seem like a viable defense.