Khanna on VCRs and Copyright

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This is an interesting piece by Derek Khanna, who wrote the famous memo for the House Republican Study Committee that was critical of excessive copyright and was withdrawn.

Khanna discusses the history of copyright enforcement and how it almost ended up prohibiting the VCR. This is an important story that needs to be better known outside of the copyright community. I am quite sympathetic to much of what Khanna says here and I agree with his apparent intention to move the Republican Party from its attachment to excessive copyright protection.

That said, I wonder about one aspect of his story. Khanna writes:

Legislation was reintroduced in 1983, the Consumer Video Sales Rental Act of 1983. This legislation would have allowed the content industry to shut down the rental market, or charge exorbitant fees, by making it a crime to rent out movies purchased commercially. In effect, this legislation would have ended the existing market model of rental stores.

Video stores saw the Consumer Video Sales Rental Act as an existential threat, and on October 21, 1983, about 30 years before the SOPA/PIPA protests, video stores across the country closed down for several hours in protest. . . . [T]he 1983 legislation died in committee. . . In 1984, similar legislation was enacted, The Record Rental Amendment of 1984, which banned the renting and leasing of music. In 1990, Congress banned the renting of computer software.

Khanna later in the piece suggests that the renting of music and software should not have been prohibited. But is the renting of video movies the same as renting of music and software? When one rented a video copy of a movie, one could only view the movie while one had the rental. This placed limits on how much this affected the content producer’s ability to charge for the movie. By contrast, if one could install the computer software onto one’s computer, then a single rental could give people the software permanently. Similarly, if one could copy the rented music to another disc or to one’s computer, then one could keep the music forever, even after the returning the music.

If I am right about the differences between these two types of copying technology, then it might make sense to draw a distinction between the two. In this area, one wants to provide both an incentive for people to produce the content, while at the same time not giving them excessive power to prevent people from using the content. Sadly, I believe that music copying has too significantly undermined the ability of musicians to derive monetary benefits from producing music. One wants a balance here, not an extreme.