May 13, 2005

Copyright Wars

I don't blog politically very often, but I guess it's time for one of my patented Blinding Flashes of the Obvious™.

As many people are aware, copyright law has become more and more stringent and restrictive over the last two decades as content creators worked hard to protect their previously produced paying properties. Laws have been passed specifically to protect Mickey Mouse from the horrid experience of having his face plastered on the top of a condom, and the rights of those who view or use copyrighted materials have dwindled into near nothingness.

Recently, the court system found that an even more onerous restriction being placed on digital television was illegal because the FCC did not have the authority to implement that restriction. So the MPAA is trying to end-run the ruling by working on giving the FCC the rights to implement the restriction.

Now the MPAA and RIAA have pretty much rubbed everyone the wrong way on a lot of things, including this. I'm not saying that the prevalence of file-sharing networks didn't deserve a response like this, but I'm going to set the P2P networks aside for a moment and come back to it later.

There are two issues that are very prevalent in minds of most people who are involved in digital media: the "First Sale" doctrine, and "Fair Use."

The "First Sale" doctrine states that if I sell you something, you can then do whatever you want with that something for your own use. You can destroy it, rip it apart, set it on fire, sell it, whatever.

"Fair Use" means that there are certain derivitave uses that are "freely allowed." For example, ripping a CD so that I can play it on my portable media center is considered "fair use." Distributing copies of those files is not considered "fair use" because it's not for my personal use. Distributing brief snippets of those files as a part of something else that is new is considered "fair use" sometimes, but it isn't spelled out exactly how.

Now, I'm all for media companies taking steps to ensure that they get paid for their work. I really am. I'm all for throwing the book at commercial pirates, those people who illegally copy works and sell them unmodified or nearly unmodified for money.

However, the media companies' steps so far have been to further restrict the abilities of the common man to extract "fair use" or exercise their "first sale" doctrine rights. Thanks to CSS, it is not easy for me to rip my DVD's to a format that can be read by my portable media center without violating the DMCA. Thanks to the prevalence of locking CD keys to computers, it is nearly impossible for me to sell versions of operating systems I am no longer using, or sell obsoleted copies of several pieces of utility software that I own.

The copyright system is built on a system of balances. In exchange for a temporary monopoly on distribution and manufacture of a work, the public receives some "fair use" rights to the work in question and receives the work in full after the expiration of the copyright period.

Over the last twenty years, more and more restrictions have been placed on the ablities of the public and more and more rights and longer terms have been granted to those who own the copyrights. As a result, people are feeling shafted. The system has never been excessively balanced, and laws such as the Sonny Bono Copyright Extension and the DMCA have caused the rights of the end user to be even further eroded.

Now for the Blinding Flash of the Obvious™: Digital theft as it is currently occuring is a direct result of these additional restrictions being placed without a similar expansion of our end user rights being implemented. Or to be vulgar, we've started stealing money out of Media's wallet on the nightstand because when Media is screwing us up the ass, Media doesn't even have the common courtesy to give us a reacharound.

Unfortunately, we don't currently have any effective advocates for our cause as end users. The EFF is willing to help, but they have to come across as full idealists in order to get any funding from the Slashdot crowd, and that hurts them in the long run. Microsoft and Intel are having to play both sides in order to stop themselves from becoming targets. Even the artists who defend the actions of end users aren't effective advocates because most of them who are coming to the end user's defense are people who don't own the rights to their own work to begin with.

Up to this point, Big Media has been able to waive off criticisms by saying that users will still be able to have their "fair use" rights with one hand while pummeling those rights down to nothingness with the other. Whenever something comes along (ala iTunes) that gives people more control over the system, Big Media tries to either destroy it with unsettlingly high royalty rates, legal challenges, and the standard "this will destroy our business" FUD that has been screamed for the last hundred years.

So I've got an idea for a long-term solution that won't be popular on any side, but let's discuss it.

Step 1: Freeze the current set of laws in it's place. Don't backdoor the system any further than it currently is to give other entities the ability to create new restrictions.

Step 2: Allow Big Media to bring to the plate new laws and restrictions. However, any new laws and restrictions that are proposed will have to come with true concessions.

For example, Big Media wants it so that if a backdoor is found in a next-generation DVD player, that all of those DVD players should be disabled. Okay, what if I say, "You can have that, but in exchange, I want to be able to rip a next-gen DVD to a portable device *and* I want to be able to use up to 5% of any footage on any next-gen disc at no cost for non-profit works"?

E-book publisher's want to restrict the number of devices an E-book can reside on. Okay, what if I say, "You can have that, but in exchange, I want your products to be able to freely parse the E-book into accessible formats such as Text-To-Speech, and I want the ability to print them with non-intrusive watermarks"?

Big Media is going to balk at anything like this. They aren't use to having to give up something for something else. Consumers are going to balk at this. Millions will find that their investments suddenly don't work.

Fact of the matter is that we're in for a hell of a decade of battles on these fronts. With the amount of P2P IP theft occuring, Big Media is able to effectively play the victim even while we bleed from below. But if we don't take a stand now, the next century will have us hamstrung with more media we can't use, whether it be music we can't listen to, movies we can't watch, or books we can't read to our children. Not because we didn't pay for it, but because we didn't pay for the right version of it for what we wanted.

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