Khanna on VCRs and Copyright

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who wrote the famous memo for the House Republican Study Committee that was critical of excessive copyright and was withdrawn.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.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. Devin Watkins says

    I would at least question the claim made at the end that “that music copying has too significantly undermined the ability of musicians to derive monetary benefits from producing music”.

    First looking at the market as a whole currently: “In 2012 some 34% of revenue globally (excluding revenue from live performances) was generated by digital channels including streaming and downloads, up from 27% three years earlier (see Figure 2). In addition, worldwide sales of recorded music increased in 2012 for the first time since 1999.

    Revenue from online sources including recorded music sales, streaming, online radio, subscriptions and other is increasing, both absolutely and as a percentage of overall revenue.”

    Its true that recorded music (CDs) are down like 50% in the last 10 years, but with streaming services like Pandora free but for advertising is that really that surprising?

    And studies have shown that filesharing may actually increase sales (at least in examining the effects of file sharing on just that one producer and not the market as a whole): “The coecient on the log of downloads is 0.72, which implies that a 1% increase in downloads is associated with a 0.72 percentage point increase in sales. This suggests that file sharing leads to a nearly one-to-one increase in sales.”

    Its a rather interesting area of study at the moment imo, clearly nothing I have linked to is definitive in any way, but its worth thinking about.

    Assuming this is correct, I believe it would suggest that we should be focusing on those parties which are selling copyrighted material rather then just sharing it freely. Make sure that the copyright owner is the only one that can profit from the copyrighted work rather then having absolute control over which copies are made.

  2. gabe says


    Great info! didn’t know that.

    One question: ” Make sure that the copyright owner is the only one that can profit from the copyrighted work rather then having absolute control over which copies are made.”

    How would you do that?

    take care

    • Devin Watkins says

      Make it illegal to sell or trade any copy of a copyrighted work you made without the authors permission unless you purchased it from someone else and are selling the copy you purchased. People can buy books if they want, people can sell copies of books made with the authors permission, people can resell books they purchased, people can make copies of books (or audio/movies etc) and give them away for free, if you are given a copy for free you cant re-sell that, people cant make copies of books they purchased and sell those copies.

  3. Michael P says

    I suspect software companies would quickly solve the software rental problem — for example, use an activation code that only allows the software to be used for a fixed period of time. (When an Internet connection is active, the software could check whether the system’s clock has been manipulated to avoid this.) Or require an active Internet connection while using the rented software, so that it can phone home to check for reuse. Or provide a cloud-based version of the software at a low price (as some companies have done).

    The fact that today’s software is not written for rental does not mean that it is difficult to make rentable software.

    • Devin Watkins says

      As a former software developer, other then the part at the end about a cloud based application, your wrong. There is no way to stop a determined hacker from copying any kind of off-line application. Nor is there any way to prevent a book/movie that is shown on your screen from being copied. Any kind of “activation check” can be fooled by finding the one on/off switch and flipping it (so a “failed” check allows you to use the software and a “successful” check disables it). Any kind of required internet use can be fooled by making it appear to the program that it is online, but it is really not and only talking to another application on the same computer. Even using SSL doesn’t work as the certificate public key stored in the application can be changed to a different one. The only reason online based applications works is that the end users computer doesn’t have access to any of the code/application/data to be able to do anything. But eventually the end user must be able to read/see/use the software and when that happens it can be copied.

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