The copyright laws have always lagged behind technology, from way back in the eighteenth century, when the Statute of Anne was enacted to first protect rights-holders from the unauthorized making of copies of books – this more than two hundred years after the invention of printing. The law is still lagging behind today, but the technology is a lot more sophisticated (though some would say the law is not).

Primitive DRM

When I was a teenager, my prize possession was a radio-tape recorder that allowed me to record songs from the radio. Israel’s Reshet Gimmel, the newly inaugurated radio music channel, had all its announcers trained to talk over a significant part of every song so as to prevent kids like me from recording entire songs instead of going out and buying the record (vinyl, of course – this was the decade in which Elton John was famously begging Kiki Dee not to go breaking his heart and Smokey were suffering from no longer living next to Alice with nobody interjecting rude comments about who Alice might be). This was a primitive, and fairly effective, form of protection without formal digital rights management.

Walking Out of the Store without Paying

A colleague recently met told me he uses the supermarket analogy to explain to his children why content piracy is wrong– just as everything is sitting there on the supermarket shelves for the taking, you are not allowed to take it and walk out of the store without paying; so too with music and TV content on the internet. The problem with this is that, as far as music and content are concerned, this is a generation that is walking out of the store without paying. There are all sorts of reasons (excuses?) offered for this, some of them philosophical (“creativity should be free”), some semi-political (“the music industry / software companies shouldn’t be so greedy”, or “I don’t download songs by local artists because I want to support them but I don’t care about the others”), but mostly simply self-serving: it’s there; it’s freely available; nobody is going to catch me. I’m not getting into the moral issue here – I’m just an IP lawyer.

Catching up with technology has taken various forms over the years, from Reshet Gimmel’s constant chatter, through allowing recording for personal purposes but adding a tax to the cost of the recording media, such as the Israeli copyright law response to video-taping, or imposing broad anti-circumvention provisions under the legal canopy of copyright, my feelings about which may be summarized by quoting Helene Hanff, who wrote, “Somewhere along the way I came upon a mews with a small sign on the entrance gate addressed to the passing world. The sign orders flatly: 


The more you stare at that, the more territory it covers. From dirtying the streets to housebreaking to invading Viet Nam, that covers all the territory there is.” (You haven’t read 84 Charing Cross Road and The Duchess of Bloomsbury Street? You should.)

A Moral Issue after All?

I don’t pretend to know how the gap between copyright laws and technology can be bridged. Another colleague told me he thought a combination of the reasonable pricing now being offered by iTunes and “freemium” software models might do the trick. I’m skeptical. While the law is running full speed to catch up with technology, most people are just walking out of the store without paying. Maybe the problem is that most legislators are not tech-savvy. Maybe it’s a moral issue after all.