SEGURIDAD E HIGIENE EN EL TRABAJO

The Betamax, today, is remembered mostly as the consumer video technology that lost out to VHS. This hardly seemed inevitable in 1984, especially because the Beta format was actually higher quality than its competitors. Both the VHS and Betamax, though, were analog technology;

a new copyright debate was sparked with the introduction of digital reproduction technologies like Digital Audio Tape (DAT), which Sony introduced in 1987. The crucial difference between DAT and analog recording, from a copyright perspective, is not its higher quality, but rather the fact

35. Carey R. Ramos, “The Betamax Case: Accommodating Public Access and Economic Incentive in Copyright Law,” Stanford Law Review 31, no. 2 (1979): 244.

that digital copies are lossless. With analog technologies like the Betamax, the industry’s fears had been mitigated somewhat by the knowledge that quality would degrade with every successive copy; DAT devices can produce unlimited numbers of copies with virtually no degradation in quality (“serial copying”). Lossless copying represented a new kind of threat to the market for music recordings. The issue eventually crystallized into a conflict between the Recording Industry Association of America (RIAA), an industry trade group that had existed since 1958, and the Home Recording Rights Coalition (HHRC), a consumer advocacy group founded in the aftermath of the Betamax decision.³⁶The debate between groups like these, and the various industry players they represented, never amounted to high profile litigation like the Betamax case. Nevertheless it was decisive in shaping U.S. copyright law, most prominently in the Audio Home Recording Act of 1992. As Blayne Haggart writes, the 1992 act should therefore be understood not as the opinion of the legislature on the correct application of copyright law to a novel technology but rather “merely the codification of agreements between the recording industry and audio equipment manufacturers.”³⁷

The act is in three parts. The first part is crucial: it stipulates that DAT technology must incorporate measures to prevent the proliferation of copied materials. Under this act, it becomes illegal to manufacture, import, or distribute a digital recording device that does not conform to an encoding system designed to prevent serial copying. Note that this element of the law is is more or less what Stephen Kroft called for in his arguments before the Supreme Court in the Betamax case (arguments that, it bears repeating, struck Justice Stevens as “extreme”). The protection schemes encoded in DAT, known then as the Serial Copy Management System (SCMS), are essentially an early form of what would later come to be known as Digital Rights Management (DRM), and which continue to proliferate today, embedded in digitally distributed MP3 files and Spotify’s Ogg Vorbis format audio files.³⁸ These are legally mandated technological obstructions

36. Blayne Haggart, Copyfight: The Global Politics of Digital Copyright Reform (University of Toronto Press, 2014), 107.

37. Ibid., 325.

38. See the Sidify product, which removes these DRM schemes: https://www.sidify.com/guide/

designed to discourage infringing behavior. 1990s SCMS was a crude form of DRM whose only real feature was that, while it allowed a user to make unlimited copies from a single master, made it impossible to produce copies from other copies (it prevented “serial copying”). This relatively modest prevention is nevertheless the model for subsequent generations of DRM, many of which are far more insidious. Apple, for example, has instituted controls on iPhones that disable certain features when a user replaces the battery with a non-Apple battery of equivalent functionality, essentially ensuring that this common repair be done at corporate rates.³⁹ HP has used DRM to prevent users from using third-party printer cartridges, but also to check the status of users’

HP ink subscriptions.⁴⁰ It is these kinds of DRM schemes that, for many critics, turn our digital files into “spies,” silently influencing the way we interact with them and reporting back to their handlers about our behaviors.⁴¹

The second and third parts of the AHRA are less consequential: the second part institutes royalties on the sale of digital reproduction technology, some of which are returned to the record companies. In the third part, it explicitly prohibits copyright infringement actions against home copying; the logic seems to be that, if the RIAA is going be allowed to extend copyright protections into the design of recording devices themselves, it should forfeit its right to prosecute people who then use those devices.⁴²

To understand the importance of the 1992 act, recall the logic behind the Betamax case.

Part of the reason the court was unwilling to declare Sony liable for contributory infringement in 1984 is that doing so would “enlarge the scope of respondents’ statutory monopolies to encompass control over an article of commerce that is not the subject of copyright protection.” It would, in other words, extend the reach of copyright protections from its original provenance, music and plays and so forth, to the design of novel technologies. The latter is traditionally subject to the

remove-drm-from-spotify.html, accessed 08-18-2019

39. See “Apple is locking batteries to specific iPhones,” in Vice, https://www.vice.com/en us/article/59nz3k/apple-is-locking-batteries-to-specific-iphones-a-nightmare-for-diy-repair

40. See “Inkjet Dystopias,” in Boing Boing, 2019. https://boingboing.net/2019/02/08/inkjet-dystopias.html 41. Samuelson, “The Copyright Grab.”

42. Haggart, Copyfight: The Global Politics of Digital Copyright Reform, 325.

related but distinct field of patent law. University City Studios had sought, on the grounds of such an expanded scope, damages for contributory infringement, as well as an injunction against the manufacture of the offending device. In the Betamax case of 1984, they were granted neither. But in the legislative compromise negotiated between the major forces of the entertainment industry that is the 1992 act, the industry as a whole is essentially given both; the scope of copyright protections is extended to the design of the recording device (they have to conform to SMCS), and certain provisions are made for royalties on the sale of such devices to be directed back to the recording industry.

This act set two important precedents not explicitly spelled out the language of the law.

First, it represents a victory for the individual user, whom it explicitly protects against certain kinds of infringement litigation. Second, and more importantly, it is an early example of the effort to embed systems of copyright control in the technology itself. While DRM technology is regarded by some as ineffective and retrogressive,⁴³it remains an important feature of contemporary digital culture, something Tarleton Gillespie calls “the technological fix.”⁴⁴ In this regard, the AHRA is an important milestone in establishing the precedent for legal home audio consumption that Spotify, as a technological solution to a legal problem, adheres to.

John Barlow, “The Economy of Ideas,” 1994

John Barlow published this influential essay in Wired in 1994. It is perhaps the first widely read articulation of the now-familiar argument that traditional intellectual property laws are fundamentally incompatible with digital culture. A polymath and countercultural libertarian who has written on a wide range of topics, Barlow was probably better known in 1994 for his work as a lyricist for the Grateful Dead than for his writing about cyberculture. Nevertheless, via his involvement in the Electronic Frontier Foundation, Barlow had achieved a certain stature in

43. E.g. by Steve Jobs, who railed against it in 2007 in an open letter posted to Apple’s website titled “Thoughts on Music”

44. Tarleton Gillespie, Wired Shut: Copyright and the Shape of Digital Culture (MIT Press, 2007), 1.

techno-utopian circles, and published over his career a number of influential articles in Wired.

“The Economy of Ideas” is not taken seriously in the legal profession, but it does give emphatic voice to ideas that resonate with many in Barlow’s generation, and which continue to have currency today: namely, the notion that copyright is fundamentally out of step with digital culture, and that nothing short of a complete overhaul of our whole notion of intellectual property will do if the legal system is ever to adjust. Barlow’s ideas are mostly familiar – a central premise, for example, is Benkler’s cited above, that information and physical property are fundamentally different types – but his language is always colorful:

Digital technology is detaching information from the physical plane, where property law has always found definition. ... It’s fairly paradigm warping to look at information through fresh eyes - to see how very little it is like pig iron or pork bellies, and to imagine the tottering travesties of case law we will stack up if we go on legally treating it as though it were.

In fact, some of Barlow’s bemoaned case law had already been stacked up in 1994, and the steady drift of U.S. copyright law away from the interests of the public was well underway.

The Clinton Administration’s 1995 white paper on IP rights (discussed below) was only a year away, and the DMCA that would enshrine the principles set out therein would soon be passed.

Whether or not you agree with Barlow that copyright is “dead,” and that the efforts to re-animate its corpse lead to legal “travesties,” he does correctly perceive the shifts taking place in legal attitudes (although he refrains from naming the relevant cases or discussing the legal issues in any detail). Not only does he pick up on and give a charismatic expression to this broader trend, but Barlow also spots its potential to return cultural production to a state of 18th century style patronage:

Before the industrialization of creation, writers, composers, artists, and the like produced their products in the private service of patrons. Without objects to distribute in a mass market, creative people will return to a condition somewhat like this, except that they will serve many patrons, rather than one.⁴⁵

45. John Perry Barlow, “The Economy of Ideas: A framework for patents and copyrights in the Digital Age.

(Everything you know about intellectual property is wrong.),” 1994, accessed August 10, 2019, https://www.wired.

com/1994/03/economy-ideas/.

This insight gives Barlow something to do besides “dancing on the grave” of copyright law. Companies in the digital age, he argues, should focus not on the delivery of products but instead on the management of “relationships” with the market. Like the Whole Earth Catalogue in general, this is an idea that mingles a libertarian screed with strategy advice from a corporate self-help guru: “The future protection of your intellectual property,” writes Barlow, “will depend on your ability to control your relationship to the market - a relationship which will most likely live and grow over a period of time.” Intellectual property protections should not – and, in Barlow’s estimation, cannot – apply to the material itself. Instead, they should apply to the mechanisms through which companies relate “swiftly, conveniently, and interactively” with their customers.

This is a prescient insight with special relevance for the case of Spotify. Following the general trend of media companies in the 21st century, Spotify has increasingly relied upon its discovery services, rather than its provision of content alone, to remain desirable to its customers.

This is, as Barlow notes, intimately connected to the lived reality of copyright protections in the 21st century; in a world where free access to 30 million tracks is no longer impressive, Spotify’s greatest asset becomes its ability to help customers navigate the glut of content, to “soundtrack your life.” And yet Spotify continues to hew to the traditional doctrine of intellectual property rights, compensating record labels and even ceding substantial portions of its stock to them. This contradiction – Spotify has imbibed Barlow’s insights in one way but totally ignored them in another – is probably the biggest single reason why it has always failed to turn a profit.