A nice editorial from Cory in The University of Edinburgh’s SCRIPT-ed online journal. This excerpt will give you a flavor, but go read the whole thing.
Time was companies shipped products that sat at the intersection of the limits of engineering and what the public could be convinced to buy: jukeboxes, cable TV, radio, VCRs, MP3 players, you name it, if it was dodgy, cool and likely to freak out an entertainment exec, someone out there would offer it for sale.
Time was that copyright changed whenever some entrepreneur invented something cool and infringing and compelling and the courts or lawmakers legalized it with reforms to copyright.
Times have changed. Today, businesses shrink away from offering general-purpose technology whose suite of uses includes ones that fall outside the confines of today’s copyright — like automatic commercial-skipping in PVRs. They run screaming from businesses that are clearly infringing by today’s standards — like DVD-ripping movie jukeboxes.
And why not? After all, the penalties for guessing wrong about what the courts will find non-infringing are substantial. Shoplifting a CD might get you a slap on the wrist, but uploading one track off that disc to the Net will earn you a $150,000 penalty under the USA’s No Electronic Theft Act (NET Act). With stakes that high, who can blame a company for being a little gunshy?
Of course, that’s exactly why the penalties are as high as they are: to discourage risk-taking. That’s a raw deal for the public, but so long as all the companies are equally risk-averse, it’s not so bad for the sell-side. It’s one thing to be a conservative company offering copy-restricted digital music players in a world of open MP3 players (you’d get clobbered), but it’s another entirely to inhabit a market where every firm is part of a gentlecompany’s agreement not to roll out any really disruptive, novel, dangerous features.