Cory Doctorow, a great story teller, has written an essay arguing that there was a single “they” spending forty years killing the VCR, and that in 1998 “they” succeeded. It reminded me of Greek mythology, not least of all because I lived through the time and technology he speaks of and easily can check dates.
They disinvented the VCR. You might think that the reason we don’t have VCRs anymore is because VCRs were supplanted by DVDs, PVRs and streaming, but that’s not the case. They had it in for the VCR from the very start, and they never stopped trying to kill it. Eventually, they succeeded.
When I raised chronology concerns with him on Mastodon, his answer was that he was there. He attended the meetings, he reported the broadcast flag first, he worked on Grokster at EFF.
Just to be clear: I was at EFF when we argued Grokster. I worked on the case with Fred, who argued it on appeal, and helped strategize our SCOTUS appeal.
I suppose all of that is true, which makes him a valuable source with a particular perspective. It means he was a participant. And the participant’s account is where a historian differs, because a source is a source: it records, for the position it was written from, to be compared against dated artifacts.
Doctorow’s position is even a well-known one. The EFF loudly litigated the topic for two decades. It has an activist style of libertarian counsel with a particular settled view of 1201. Their view is actually their argument, as a lobby, and a fair one. But the fair EFF argument he is making is a fairly different thing from someone giving a fair history of what happened. His whole essay presents one argument as if it is the same thing as everyone’s shared history. However, from my view, his telling diverges from history at most of the points where his essay is trying to sound the most confident about what happened.
Consider how a historian’s discipline works. Fix the chronology before trying to dig into analysis, let alone cause. Name the actors and check any shift, whether they stayed the course. Read the primary source rather than the (always suspect) summary of it. Test the story against the counterfactual the author dismisses.
I will tell you straight up, for example, his essay cites Wikipedia for a Supreme Court opinion that the Library of Congress hosts as a PDF. I mean, WTF. Wikipedia? As source? Everybody must know by now that Wikipedia is a disgrace to data integrity, with more breaches than there are ships on the floor of the ocean.
I said on Mastodon I’d post what I found, so here’s a quick list of where I found myself choking the most on his essay.
| Claim | Record | Lapse |
|---|---|---|
| VCRs were “supplanted by DVDs, PVRs and streaming, but that’s not the case” | The alternative explanation is named in the second sentence and dismissed by assertion. Pioneer’s September 2004 release expected DVD recorders to outship VCRs in Japan that fiscal year. Buyers chose the successor that also recorded. | Counterfactual |
| One “they” pursued the VCR’s destruction from 1976 to today | Sony defended Betamax, bought Columbia in 1989, co-founded the DVD Forum, then sued Napster. One firm, changing portfolio. | Agency |
| “Cable operators sued over VCRs” | The Betamax plaintiffs were Universal City Studios and Walt Disney Productions. The caption names them. | Agency |
| The VCR “hit the market under a cloud of litigation” | Betamax went on sale in the United States in 1975. Universal and Disney filed suit in November 1976. | Chronology |
| Betamax “laid the legal foundation for all the digital tools that followed since” | Argued January 1983, reargued October 1983, decided 5-4 in January 1984. The Thurgood Marshall Papers at the Library of Congress record a first conference vote to affirm the Ninth Circuit, with Blackmun assigned the majority. Grokster added inducement liability in 2005. | Source |
| 1201 in 1998 is what disinvented the VCR | 1201 created a separate offense and left Betamax standing. §1201(c)(1) preserves every defense to infringement, including fair use. Reimerdes and Corley held only that Sony is no defense to a circumvention claim. The Federal Circuit read an infringement nexus back into 1201 in Chamberlain v. Skylink (2004); the Ninth Circuit rejected it in MDY v. Blizzard (2010). Macrovision filed its copy-protection patent on 17 April 1985, fifteen months after the ruling. Format control preceded the statute by thirteen years, and §1201(k), the one subsection that names the VCR, mandated that 1985 technology in every consumer VHS recorder sold from 2000. The statute converted strategy to code. | Chronology |
| “There was still no such thing as a home DVD recorder” | Pioneer announced the DVR-1000 on 25 November 1999 and shipped it that December. DVD-RW was a DVD Forum standard, set by the consortium he says banned recording. CSS blocked copying commercial discs. It never blocked recording. | Source |
| Modifying a device “could land you in prison” | The criminal penalty sits in §1204 and requires willful violation for commercial gain. Consumer exposure is civil. Triennial exemptions cover phones, vehicles and agricultural equipment. | Source |
| Early TiVos “only worked with analog cable” and broadcast | Philips and Sony shipped DirecTV receivers with TiVo in November 2000, announced by DirecTV on 2 November 2000. They wrote DirecTV’s encrypted MPEG-2 stream straight to disk. TiVo recorded digital pay television six years before CableCARD. The DirecTV release is no longer hosted; the date rests on contemporaneous trade reporting of it. | Chronology |
| The broadcast flag forced TiVo to accept anti-features | Adopted 2003, vacated by the D.C. Circuit on 6 May 2005. It never took effect. Standalone TiVo reached digital cable through CableCARD, an FCC order of October 2003 under Section 304 of the 1996 Telecommunications Act, which forced cable open to third-party devices. Carterfone, 1968, applied to cable. Unauthorized cable descrambling had been a federal offense under 47 U.S.C. §553 since the 1984 Cable Act, fourteen years before 1201, so CableCARD was the route in, and the 2007 integration ban forced operators to use the card in their own boxes. The same order’s encoding rules capped copy restrictions and required broadcast content to remain copy-freely. The flags he lists were ceilings the FCC imposed on cable, and the D.C. Circuit vacated those too, in EchoStar v. FCC, 2013. | Chronology |
| USTR traded anti-circumvention law for tariff-free access with “every American trading partner” | The obligation arrived through the multilateral WIPO Copyright Treaty of December 1996 and, for Europe, Directive 2001/29/EC. Bilateral trade-for-DRM deals (Australia 2004, Korea 2007) are the exception. This is the load-bearing claim for his Trump conclusion and it is undocumented. | Counterfactual |
| “The fastest-adopted technology in the history of the world” | Stated twice, sourced nowhere. The Census Bureau records television in 9 percent of households in 1950 and 65 percent in 1955. Its 1992 survey found VCRs in 68.8 percent of households, seventeen years after Betamax launched. | Source |
| Judges set the rules “long before legislatures come to grips” | The Statute of Anne preceded any judicial doctrine. The 1909 Act answered piano rolls. The 1976 Act answered cable. Courts and Congress alternate. | Chronology |
Although it’s a table, for my own edification really, the sum of its parts reveals something bigger than the individual corrections. In every row the essay takes one actor only and says they are headed in one direction only. That’s suspicious on its own. Actual history is far, far more complex and interesting than this binary “good guy bad guy” perspective, with many actors moving around in many directions.
Betamax itself was decided by a Court that then flipped, they reversed on their own first vote. The DVD Forum that is said to have banned recording is who published the recordable standard. Record scratch? The broadcast flag was proposed by one arm of the government and then it was vacated by another arm of that same government. Cable was forced open by statute in 1996, and then it was held open by the FCC in 2003 and 2007, and then the D.C. Circuit vacated those FCC rules in 2013, with Congress ending the integration ban in 2014. That’s real history. Writing about the world you wish existed instead of the one we’re in is a different sort of skill.
None of the history lands as a simple and single will (bad guy) because the political landscape is a human contest. Imagine a soccer field with five teams on it and three goals. His essay writes team EFF’s view of the contest as being the whole thing, because it’s method to generate followers (e.g. subscribers, patrons).
This is where the participant versus observer framing problem returns. Doctorow is fighting for a side in the contest, calling people to adopt his view, by profession and by conviction. When a witness who fought the fight writes the history of the fight, the temptation is to record intent and defeats how it would serve one side. It’s natural to lobbyists, as that’s how they lobby. The historian is trained to watch for this exact thing, to seek a sense of balance.
What would mean balance here? It seems there’s a matter of dates. A mandate that was attempted in 2003 and vacated in 2005 reads obviously as the defeat of that mandate. There was a statute that preserved fair use in subsection (c)(1) and wrote a 1985 copy-protection scheme into subsection (k). Both of those belong in the account of VCR history.
Note what this simple observation gives the reader that a one-sided account did not. The essay tells us we are being pushed into a locked room. However, reading the artifacts tells us there were a whole bunch of big doors being opened: Carterfone in 1968 (hooray!), Section 629 in 1996, the CableCARD order and its encoding caps in 2003, the flag vacated in 2005, the integration ban in 2007. Each one of those is evidence of a regulator or a court forcing a device open over the objection of the incumbent. That’s not in the essay from the lobbyist who wants a world where the VCR can be built again. The archive already contains what we’re being told was taken away. But it’s still there.
His essay had a better place to go. Anti-circumvention law constrained formats that came after the VCR, and the industry drove us into that shit world within months of losing in court. That loss of freedom is well documented, and it is maddening, and should point us all at the remedy. While a forty-year grudge makes for excited mythology-telling to rabble-rouse (fund the EFF?) it’s not really what happened. I get the temptation to invent a battle of the gods with monsters and heroes and all that, but to be a historian is to dispense with the myths and tell the human story.
Doctorow’s memory of these years is a source for an archive, especially to show how the EFF thinks and operates. Historians are trained for a specific reason, to test the integrity of information, if not also respond and remediate the breaches. The archive as a whole usually shows something duller and more durable than any single source does: a licensing office, a standards body, a treaty annex, and similar giving us some options to work with, as boring as they are. The discipline of a historian treats Doctorow’s writing as just one source, and works to restore the whole picture based on facts, starting with a date.




