A Cycle of Renewal, Broken: How Big Tech and Big Media Abuse Copyright Law to Slay Competition

As long we've had electronic mass media, audiences and creators have benefited from periods of technological upheaval that force old gatekeepers to compete with brash newcomers with new ideas about what constitutes acceptable culture and art. Those newcomers eventually became gatekeepers themselves, who then faced their own crop of revolutionaries. But today, the cycle is broken: as media, telecoms, and tech have all grown concentrated, the markets have become winner-take-all clashes among titans who seek to dominate our culture, our discourse and our communications.

How did the cycle end? Can we bring it back? To understand the answers to these questions, we need to consider how the cycle worked — back when it was still working.

How Things Used to Work

In 1950, a television salesman named Robert Tarlton put together a consortium of TV merchants in the town of Lansford, Pennsylvania to erect an antenna tall enough to pull down signals from Philadelphia, about 90 miles to the southeast. The antenna connected to a web of cables that the consortium strung up and down the streets of Lansford, bringing big-city TV to their customers — and making TV ownership for Lansfordites far more attractive. Though hobbyists had been jury-rigging their own "community antenna television" networks since 1948, no one had ever tried to go into business with such an operation. The first commercial cable TV company was born.

The rise of cable over the following years kicked off decades of political controversy over whether the cable operators should be allowed to stay in business, seeing as they were retransmitting broadcast signals without payment or permission and collecting money for the service. Broadcasters took a dim view of people using their signals without permission, which is a little rich, given that the broadcasting industry itself owed its existence to the ability to play sound recordings over the air without permission or payment.

The FCC brokered a series of compromises in the years that followed, coming up with complex rules governing which signals a cable operator could retransmit, which ones they must retransmit, and how much all this would cost. The end result was a second way to get TV, one that made peace with—and grew alongside—broadcasters, eventually coming to dominate how we get cable TV in our homes.

By 1976, cable and broadcasters joined forces to fight a new technology: home video recorders, starting with Sony's Betamax recorders. In the eyes of the cable operators, broadcasters, and movie studios, these were as illegitimate as the playing of records over the air had been, or as retransmitting those broadcasts over cable had been. Lawsuits over the VCR continued for the next eight years. In 1984, the Supreme Court finally weighed in, legalizing the VCR, and finding that new technologies were not illegal under copyright law if they were "capable of substantial noninfringing uses."

It's hard to imagine how controversial the VCR was in its day. MPAA president Jack Valenti made history by attending a congressional hearing where he thundered ,"I say to you that the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone."

Despite that unequivocal condemnation, home recording is so normal today that your cable operator likely offers to bundle a digital recorder with your subscription. Just as the record companies made peace with broadcasters, and broadcasters made peace with cable, cable has made its peace with home recording.

It's easy to imagine that this is the general cycle of technology: a new technology comes along and rudely shoulders its way into the marketplace, pouring the old wine of the old guard into its shiny new bottles. The old guard insist that these brash newcomers are mere criminals, and demand justice.

The public flocks to the new technology, and, before you know it, the old guard and the newcomers are toasting one another at banquets and getting ready to sue the next vulgarian who has the temerity to enter their market and pour their old wine into even newer bottles.

That's how it used to work, but the cycle has been interrupted.

The Cycle is Broken

In 1998, Congress passed the Digital Millennium Copyright Act, whose Section 1201 bans bypassing a "technical measure" that “controls access” to copyrighted works. The statute does not make an exemption for people who need to bypass a copyright lock to do something legal, so traditional acts of "adversarial interoperability" (making a new thing that plugs into an old thing without asking fo