Copyright as Protecting a Business Model
Apparently a cell phone company is suing to have the U.S. Copyright Office reverse a ruling that allowed people who buy cell phones to disable the software lock on the phone so that the phone could be used with other carriers. The company is called Tracfone. Many have noted that the DMCA goes well beyond classic copyright protection. I think that in some ways one could argue that as opposed to the government providing a system of incentives with all the attendant issues of intangible and nonrivalrous goods, this case shows that industries are using copyright law to protect business models not expressive works. At least one other person has said as much. The software at issue is a lock. Disabling it simply means one can use the item at issue as one wants. It seems that this sort of use (or abuse according to some) is simply a way to hinder competition and allow otherwise weak business models to survive. Whether one could argue that the changing landscape means that the classic form of the music industry is also a dying business model because of the drop in creation and even to some extent marketing prices, I leave for others to argue. Nonetheless, one could imagine a system that puts more money directly into artists’ hands and where rather than megastars we have a proliferation of more ministars who can actually earn a living as artists and indeed give up their day job. Yet it seems that copyright may have better arguments when capital is the question. If I recall correctly, Benkler (the Wealth of Networks) and Fisher (Promises to Keep), are two people who have delved into these questions and are worth reading. Even if a media industry is capital intensive and we give it copyright laws to protect it, that does not mean we are not subsidizing it, it may just mean that we have made a choice. If so, the question may be when should we subsidize an industry if at all?
In any event Tracfone’s complaint is here. Counts five and six cover the circumvention issues. The reply of the Wireless Alliance (with an assist by Stanford’s Cyberlaw Clinic) is here. It seems to be a part of what lead to the exemption that Tracfone is now opposing.