First off, this post is in honor of the EFF Blogathon. Read all about it. I’m hoping that by writing this series, people who haven’t been aware of these issues become more aware, and understand the stakes involved.
In the first part of this series, I talked about my perspectives on open source software, and it’s position in the whole intellectual property debate of our times. The second post was about the evil of patents. This third post, I want to talk about the issues of intellectual property and creative work.
First, though, some background on my own "vested interests" (or, more honestly, lack thereof.) Although I am a published poet and author (that’s a stretch – I’ve written some articles that have been published in edited volumes, journals and a magazine few have heard of,) and I occasionally make music (that’s a real stretch,) I’ve never made a dime off of my creative work. I have made many dimes from my creation of software, but that was part one. So, for some, this does not make me one who should say much about copyright of creative work. But, I’m going to plunge in anyway.
And, also, in internet parlance, IANAL (I Am Not A Lawyer). I am fascinated by the law, and read about the law, but I’ve never been to law school. Copyright law is a pretty obtuse field, and I don’t even begin to pretend I know it. What I’m going to talk about, though, is broad brush issues. What does the current landscape in copyright law look like, what are the issues arising, and who benefits from the current system, and who could benefit from a system that is more open.
Right now, creators of creative works are protected by copyright for their lifetimes, plus 70 years. So many works will be protected for 100 years or more. (Most work that was created prior to 1923 is in the public domain.) Copyright means that no one can take the work, whole or in part, and reproduce it without the consent of the copyright holder. Also, no one can produce derivative works without the consent of the copyright holder. Copyright is granted automatically when a work becomes tangible – but it is up to the holder of copyright to enforce copyright. (Some links are at the end of the article.) There are exceptions, called "Fair Use."
So what’s up now? Why is this such a huge issue, and what’s at stake? Very simply, technology. It all started with the Xerox machine, the audio cassette deck, and the VCR. These technologies, and the technologies that have followed (computers, scanners, DVD recorders, MP3 players, software for ripping CDs, etc.) have made copying creative works trivial. At this very moment, if I wanted to, I could find (and download) most of the music that has been recorded in the last 20 years or so, most of the movies, quite a number of books (text or audio), etc., and pay not a dime, except the cost of bandwidth and storage, which is minimal, compared to the cost of buying all of that content.
Of course, I’d be infringing on the copyright of all of those copyright holders, which, for the most part, are record companies, publishers, and movie studios, all of whom have big bucks, and all of whom are extremely unhappy at the current state of affairs.
Now I’m sure some of you reading this remember the brou-ha-ha about cassette tapes, and how that was going to spell the end of the music industry. Didn’t happen, did it? And VCRs were going to spell the end of the movie industry. Not hardly.(In the end, they benefitted from it mightily.) Now, of course, Napster’s progeny (currently named bittorrent) will spell the doom of both the music and movie industry. I have my doubts about that, too.
But they are very busy making their case that they will be done in by this technology, and, because they have all sorts of money on their side, they are getting heard in Washington (as well as Silicon Valley – more on DRM later.) The most important law that bears upon this is called the DMCA (or Digital Millenium Copyright Act.) This was a very broad law, that basically criminalizes production of technology that makes it easier to infringe on copyright, and increases the penalties for copyright infringement on the net.
There is a fascinating example of the new ways in which technology can be used to create and disseminate content in ways that, although violates present copyright laws, in fact hurts no one (and might be argued would help the owners of the copyright.)
In 2004, an artist named DJ Dangermouse created a mix of the Beatle’s "White Album", and rapper Jay-Z’s 2003 "Black Album," to create an album called the "Grey Album." It was only available as a bootleg, since he didn’t get permission from anyone to do a mix. The result was amazingly creative, and critically acclaimed. Although DJ Dangermouse violated the copyrights of varied owners, it would really be difficult to argue that the resulting work would in any way damage those owners of copyright. EFF has a good review of the legal issues.
Now some people realize that the internet could provide a really great vehicle for disseminating creative work. (Wow, really? Took them a while.) Enter ITMS (iTunes Music Store) and the reborn Napster. These two sites have different models (ITMS you download a file, and are free to do certain limited amount of things with it, Napster is a subscription service. Let the subscription lapse, and your music library goes silent.) What they have in common, though, is called DRM, or Digital Rights Management. One of these days, I’ll actually spend some time to write about DRM, because the concept and technology are interesting, and there are ongoing arguments as to whether it could work at all. But what the folks who are allowing you to download content for a cost are doing is hobbling that content in various ways to control your access to it.
This is a lot like commercial software. You don’t really own it, and you are told specifically how you can use it. Who does this benefit? Like software, it’s basically the big, powerful people who already have lots and lots of money. Most musicians and authors, like software developers, make a living (actually, many don’t), and that’s about it. Some do better, many never make a living.
So, as the content industry (record companies, movie studios and publishers) move in the direction of disseminating content electronically, but in ways that strictly control how you can enjoy it, there is another movement, that is a combination of people who’ve learned lessons from open source software, musicians that have always been friendly to music copying, and content creators who would like to more directly be in control of their own creative content.
This movement is made up of small, independent music distributors that allow you to download, sample and/or buy MP3s (sans DRM) online and creative authors licensing their work with open source-like licenses, allowing you to create derivative works from their own work. Let me talk about why I think this model, rather than the model being fostered by the RIAA and MPAA works in everyone’s interest (er, except for people who want to make oodles of money off of other people’s work.)
1) Creators of content can choose how and when to disseminate their creative work – they can choose someone to help them promote it, or not.
2) As happens often, word-of-mouth and freely released copies of content and derivative works actually increase the interest (therefore revenue generated) in the creative work. Here’s a new example. And here’s another, from a sci-fi author.
3) Consumers of creative work get maximal control of how they can use the content they have obtained (either for a fee, or for free).
4) Authors of creative work can be inspired to create new work based on the work of others, taking it in directions that are unpredictable, and potentially very interesting (like the Grey Album, except in this scenario, DJ Dangermouse won’t get ceast-and-desist letters.)
I think this is a much better model than the model that only lets you play music you bought on pre-approved devices, only read a book you bought on your desktop computer, and not also on your laptop and palmtop, and continue to pay a fee for music, and if you stop paying, you lose the music. I can’t believe that most consumers will put up with this for a long time (although I have been amazed before about what consumers will put up with when it comes to technology.) It will be interesting to see how things finally shake out.
Links:
- basic copyright FAQ
- wikipedia entry on copyright
- EFF on DMCA
- ALA’s guide to the DMCA
- Creative Commons
Blog-a-thon tag:
EFF15
