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“To say that a telephone subscriber may produce the result in question by cupping his hand and speaking into it, but may not do so by using a device … is neither just nor reasonable.” Hush-a-Phone v. FCC, 1956

Educators are currently requesting from the Copyright Office at the Library of Congress an exemption to the parts of the DMCA that prevent them from creating a copy of a copy-protected DVD so that they could use clips from the video in their class. Before the DMCA, this was an accepted practice, falling under the ‘Fair Use’ exemption from copyright law. After the DMCA, however, even if copyright law allows you to make a copy, if the material is copy-protected at all then you commit a criminal act by making a copy. Thus, the teachers wanting to use this material in their classes would break the law if they copied the DVD for classroom use.  The exemption the teachers are seeking is already granted to film teachers, and the teachers just seek that it be expanded to cover teachers of all subjects.

The MPAA, seemingly objecting out of habit more than for any particular cause, had an alternative suggestion for making a copy: point a camcorder at a TV. In case you think I’m joking, here’s the ‘instructional’ video:

http://vimeo.com/moogaloop.swf?clip_id=4520463&server=vimeo.com&show_title=1&show_byline=1&show_portrait=0&color=&fullscreen=1

As I read about this, I was struck by the similarity to the court cases that were brought against AT&T in the 50’s and 60’s, Hush-a-Phone and Carterfone — cases where the incumbent was fighting intensly to protect their existing business model, often to the point of absurdity.

In the early 1950s, phone service was different than it is now. Today, you can walk into a store and buy a variety of phones from a number of manufacturers, and you’re free to plug whatever phones you want into the wall, providing that they meet reasonable standards for the interface (the electrical connections made at the jack). Until 1956, however, you could only get telephone equipment from AT&T, and they could disconnect your service if you attempted to hook anything else up to your phone system — even a simple piece of plastic. In the late 40s, a company named Hush-a-Phone was selling a device of the same name, a snap-on receiver that allowed you to talk into the phone without being overheard:

It was, as the court would later note, pretty much the same thing as cupping your hand around the receiver. AT&T’s tariffs (the rules under which the service was offered) forbade attachment of any device “not furnished by the telephone company” (known informally as the foreign attachment rule), and they informed both users and vendors that the Hush-a-Phone was not allowed and that users could be disconnected if in violation. It should be noted that AT&T sold rival devices providing for Push-to-Talk and Push-to-Listen, which AT&T recommended the use of instead. After hearing from AT&T, Hush-a-Phone’s distributors stopped carrying the device and Hush-a-Phone initiated an antitrust court case against AT&T, leading to a rather reasonable decision for Hush-a-Phone in 1956 (quoted above). Much like the MPAA, AT&T didn’t seek to challenge the fact that somebody could talk in hushed tones or cup their hand — that was allowed — but using a device to do it was forbidden. The principal of fair use tells us, and MPAA agrees: making a copy of a movie should be allowed. The MPAA just doesn’t want it to be a good copy.

In the early 50’s, a Texas man named Thomas Carter saw an opportunity for oilmen and ranchers who wanted a way to be able to have a phone conversation while they were out on their property. They often had two-way radios with them, so Carter invented a device, the ‘Carterfone’, that basically connected the base station of the two-way radio to a telephone on the other end. If a Carterfone user wanted to make a call, he would radio in to the attendant at the base station and have them dial the phone, and then place the receiver down on a cradle which had a speaker and microphone.  The Carterfone user could then talk just like a normal phone call. There was actually no electrical connection between the Carterfone or radio and the phone system.

Hush-a-Phone had cleared the way for non-electric devices, but didn’t apply to electric devices. Once again, AT&T (protecting their business model) stated that this device was in violation of their tariffs and warned users that they could be disconnected if they used the Carterfone. Carter filed a complaint in 1966, it was decided in 1968. A (possibly apocryphal) story of the decision-making process goes:

Carter’s lawyer (C): “It’s acceptable to talk on the phone, isn’t it? That’s allowed by the tariff?”

AT&T expert (ATT): “Yes, of course.”

C: “And it’s acceptable to use the two-way radio?”

ATT: “That’s not my area of expertise, but yes.”

C: “And if a secretary takes a message from the phone, she can relay that message over the two-way radio?”

ATT: “Yes, that’s allowed.”

C: “And if the recipient responds over the radio, the secretary can communicate that over the phone?”

ATT: “Yes, that’s allowed.”

C: “And if this happens repeatedly, the secretary going back and forth, then a conversation could be had from the radio user to the phone caller, yes? Within the tariff?”

ATT: “Yes, that’s fine.”

C: “And if the secretary had the radio headset to one ear, and the phone to the other, just repeating what was said, that’s acceptable under the tariff?”

ATT: “Yes, that’s allowed.”

C: “And then could we just remove the secretary and just place the radio headset close enough to the phone so that they could hear each other?”

ATT: “No, not at all. That would be a violation of the tariff.”

Judge (concerned): “Excuse me?”

Once again, it was ruled that the prohibition of attaching foreign devices to the network was “unjust and unreasonable” and that “a customer desiring to use a device to improve the utility of the system should be able to do so” (slightly paraphrased, original here). Once again, we see that once you’ve decided that an act is permissible, it’s unjust/unreasonable/downright silly to limit or impair the ability to do it well — something the MPAA could take to heart.

It’s not just a question of whether it’s right or wrong — it’s also a damper on the freedom to innovate, to come up with new applications and new uses for existing content or technology. Carterfone was decided in June of ’68. By August of the following year, MCI had received the first license to compete with AT&T. In spite of AT&T’s foot-dragging over the next 10 years, a variety of other products flourished, paving the way for customer choice in phones, data communications, widely available residential modems, and even the Internet as we know it today.

The MPAA, on the other hand, agrees that copyright law allows for fair use of material but still wants to prohibit it happening in practice — limiting not only the direct use but also the ability to use the content in innovative ways.

They could allow teachers to make truly creative lessons that would have a strong impact on students… but if the MPAA has its way, the students will barely be able to make out the image on the bootleg-quality video.

I think the MPAA needs a Carterfone decision of their own.

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I used to think that “ostrich with its head in the sand” was just a colorful description of the Bush administration’s response to environmental concerns, but now I see that it’s actual policy.

That’s right: Think you’re going to get an EPA report that you don’t want to deal with? Just order your staffers not to open the email!

Next step: Not opening science textbooks…

Photo courtesy fiver13 on Flickr

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