The Struggle Between Copyright and the Internet Feb27

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The Struggle Between Copyright and the Internet

| Glyn Moody |

January 18, 2012 may well go down as a pivotal date in the history of the Internet – and of copyright.  For on that day, the English-language Wikipedia and thousands of other websites were blacked out or modified to protest against two bills passing through the US legislative system that were designed to fight copyright infringement.  To understand why that unprecedented action took place, and what it means for the future of the Net, it’s necessary to review the history of copyright briefly. 

Copyright law has its origins in attempts by the governments of Europe to control and regulate the  Internet of its day, the printing press, then still relatively new.  In other words, copyright was originally a form of censorship.

In England, the first copyright privilege – literally a monopoly right to make copies of certain books – was granted in 1518.  During the 16th century, English printers formed a collective organisation, known as the Stationers’ Company.  It was granted the right to require all lawfully printed books to be entered into its register.  The printers were thus able to maintain their lucrative printing monopolies, and the English authorities gained a convenient central control point to regulate what could be printed.

This continued until 1694, when the monopoly of the Stationers’ Company was abolished.  In 1710, the Statute of Anne came into force; this is generally regarded as the first “modern” copyright, and lies at the root of the entire Anglo-American copyright system.

Its key innovations were stated right at the start: “An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or Purchasers of Copies, during the Times therein mentioned.”

That is, copyright was no longer a system of censorship, but was seen as encouraging learning through the business of publishing; the right of the author was recognised, as was that of the publishers (the “purchasers” in the quotation above) who acquired those rights; finally, and crucially, copyright’s monopoly was no longer perpetual, as it had been with the Stationers’ Company.  The Statute of Anne specified a term of 14 years for new books, renewable to a maximum of 28 years.

This had the important effect of creating the public domain – the body of works that could be used by anyone for any purpose without payment.  It therefore defined an implicit bargain: in return for granting creators a time-limited, government-enforced monopoly on the publication of their works, the public would at the end of that term be allowed to use those works as they wished.

The Statute of Anne established the main contours of copyright law for the next three hundred years, with two important qualifications.  First, copyright was gradually widened from just books to images, music, photographs, films, video and software, amongst others.  Secondly, the term of copyright has been extended multiple times from its original 14 years.  In most countries, including the UK and US, it now stands at the duration of the creator’s life plus an additional 70 years.  That is, copyright typically lasts for well over 100 years.

During much of the 20th century, such long copyright terms were simply a matter of extending the commercial lifetime of songs and films – in other words, purely about profit maximisation.  The fact that a contemporary work would not enter into the public domain during the lifetime of a typical person was a largely theoretical problem – after all, how many people could actually do anything with public domain works anyway?

 

The Statute of Anne was enacted in 1710 to provide for copyright and censorship.

 

But all that changed dramatically with the arrival of the Internet as a mass medium in the late 1990s.  Ordinary people started writing blogs, posting photos to Flickr and videos to YouTube.  The scale of that creativity is now unprecedented: there are around 100 million blogs, and 6 billion pictures on Flickr, while on YouTube, every minute another eight years of content is uploaded.

And that’s where the trouble starts:  for a considerable fraction of that content on YouTube and elsewhere contains pre-existing commercial material.  Sometimes it’s a fragment of a film from a DVD, posted because somebody wanted to share one of their favourites moments; sometimes it’s a hugely imaginative re-working of existing material – for example, a mash-up of words, sound and music.

It’s possible because most of our contemporary culture is now delivered in a digital format that makes it easy to copy, modify and combine – all you need is a computer and the right software, much of which is freely available as open source.  This contrasts with the analogue creations that were covered by copyright in the 18th, 19th and 20th centuries, which couldn’t be copied easily – you’d need to set up an entire printing press to reproduce or modify the text of a book.

Where before copyright’s term of life plus seventy years was not a problem, because few had the means to infringe upon it, today copyright infringement is not only universal, it is practically unavoidable.  The vast majority of content is still in copyright, which means that most of the things that many Internet users do reflexively – sharing photos and videos on Facebook, quoting large chunks of interesting articles – are probably against the law (“fair dealing/fair use” may allow material to be shared and re-used in a very limited way, but certainly not in the form of the complete copies that are commonly found online today.)

The problem the Internet brings is actually even deeper.  It is not just a question of social norms – that the younger generation ignores or is unaware of the finer legal points of copyright.  Copying is no mere epiphenomenon of the Internet: it lies at its heart.

The Internet works by making multiple exact copies of digital bits as it traverses the global network.  When you view a text or image, or listen to a song or watch a video, copies of all those artefacts are sent across the network until they arrive on your computer.  That’s true even if they are “streamed” – this just means the bits are processed as they arrive, rather than after they have all been downloaded.  And once those bits are on your computer, you can do anything with them – including making further copies, or modifying them to create derived works.

Naturally, this loss of control negates the copyright monopolies on which the film and music recording industries have been built.  In an attempt to regain control, the music, film and publishing industries have turned to what they euphemistically term “Digital Rights Management” – DRM – although this technology is not about managing your digital rights in a helpful, neutral fashion, but about restricting them.  The only way to do that is by trying to forbid your computer from making copies – essentially taking control of it, albeit in a temporary fashion.

But as the last ten years have shown, DRM can always be circumvented: there is no such thing as a perfectly unbreakable digital lock.  Finally recognising this, the copyright industries have shifted their attention away from computer code to legal code.  Through extensive lobbying in the US, and later in Europe, the film and music industries succeeded in getting the 1998 Digital Millennium Copyright Act and the 2001 European Union Copyright Directive approved.  Both seek to address the problem that DRM can always been circumvented, and thus nullified, by making it illegal to do so.

However logical that move might have been to the lawmakers, it had important negative consequences for whole classes of users.  It meant, for example, that the DRM on an e-book could not be broken to allow the visually impaired to read it with their special software, or for academics to make excerpts of works for their research.  In other words, measures designed to combat a very particular technical issue to do with copyright protection – the fact that DRM is never unbreakable – had the knock-on effect of reducing the ability of people to carry out legal activities that have been accepted as fair dealing/fair use for years.

 

Illustration by India Rose Harvey.  CC BY-NC-SA

As well as these failed attempts to lock down content, the copyright industries have gone on the attack directly, threatening to sue members of the public for alleged copyright infringment.  Faced with expensive court cases, most have settled, whether or not they were guilty, not least because the risks are high, as the US case of  Jammie Thomas-Rasset, a Native American mother of four from Minnesota, demonstrates.

She was sued in 2006 for alleged copyright infringement of 24 songs, found guilty, and fined $222,000 in statutory damages.  Thomas-Rasset appealed, but lost again, and this time was fined $1,920,000, later reduced to $54,000.  The recording companies refused to accept this sum, and a third trial led to them being awarded $1.5 million in damages.  Last year, this was reduced yet again to $54,000, but the record companies plan to appeal once more, so the final outcome is still unclear.

Not content with these levels of fines, the copyright industries have continued to push for even harsher punishment of copyright infringement.  A well-oiled lobbying machine led to the introduction last year of two US copyright bills with bipartisan support: SOPA (Stop Online Piracy Act) and PIPA (Protect Intellectual Property Act).

As drafted, these would have caused serious damage to the basic running of the Internet, and would have allowed copyright holders to call for sites to be censored without the need for a court order or even proof of infringement.  That’s because SOPA offers immunity to service providers and payment companies provided they voluntarily block users or even entire sites accused of infringing, with no judicial oversight at all.  If they don’t, they lose immunity and run the risk of being sued.

But something remarkable happened: SOPA and PIPA were put on hold because, for the first time, the Internet community came together and protested loudly and effectively against these new laws.  People woke up to the fact that this was no longer simply about file sharing by “pirates”, but about fundamental issues like free speech, the presumption of innocence, and the right to a trial before punishment.

The current struggle is not so much between big business and frustrated users, as between two different world-views, with opposing assumptions about creativity and sharing.  When the Statute of Anne was framed in the early part of the 18th century, there were very few authors and even fewer publishers.  Copyright was designed for the “encouragement of learning” – that is, to provide incentives to writers to produce books, and for publishers to take on the financial risk of publishing them.  Offering a short monopoly was a sensible way of protecting the investment of time and money by writers and publishers.

Today the situation is quite different.  Thanks to digital technologies like computers and smartphones, anyone can create text, images or videos.  Thanks to the Internet, anyone can share those materials online and potentially reach hundreds of millions of people.  Because of this high level of background creativity and the ease of distribution, there is no need for copyright’s monopoly incentive: the innate impulse of people is to create, and the Internet makes it trivial to share the fruits of that creation.

Professionals, too, are finding that they can make money even though their works are freely shared online.  The writer Paulo Coelho even went so far as to pirate his own works because he recognised that sharing them online is a kind of free marketing that can drive massive sales of physical books.

As a result, the original purpose of copyright – to stimulate a few more authors to write books, and a few more publishers to distribute them – is no longer relevant.  Copyright was designed for a world of analogue scarcity: there were relatively few books, and copying them was hard.  Today we live in a world of digital abundance, with billions of texts, images and videos that can be copied perfectly and distributed everywhere for almost zero cost.

Legislation like the DMCA  and SOPA, or the equally pernicious Anti-Counterfeiting Trade Agreement (ACTA), which brought tens of thousands of protesters onto the streets of Europe in early February, are attempts to impose an artificial scarcity on a world of abundance.  Since the Internet is a global copying machine, the only way to enforce that scarcity is if every act of copying is checked for infringement by copyright holders.  That means total online surveillance and the death of privacy in order to allow the music and film industries to impose instant censorship without judicial oversight.  Each successive wave of Internet legislation – from the DMCA to SOPA – moves us ever closer to that state of affairs, because anything less than total lockdown can always be circumvented.

This is the copyright ratchet – the fact that copyright “reform” only ever goes in one direction: towards stricter enforcement, harsher punishments and a more complete control of our online lives.  The protests of January 18 and February 11 were the Net community finally drawing a line in the digital sand and saying: ‘no further down that road of surveillance and censorship’.  But SOPA and ACTA are simply symptoms of the underlying issue: the inherent incompatibility of copyright with an open Internet.

One attempt to resolve that growing tension without drastic changes to the copyright system is the Creative Commons project.  Its licences explicitly grant extra rights to users over and above the very limited scope of fair dealing/fair use.  For example, the CC-BY licence states that any use can be made of the work – copying, sharing, modification, sale – provided the original attribution (the “BY”) is always retained.  Similarly, the CC-SA licence allows any use to be made of the work, even without attribution, but demands that users of any derived work must enjoy the same rights (“SA” stands for “sharealike”.)

Drawing up the Creative Commons licences allowed people to share works on their own, less onerous terms, and has led to a huge flowering of creativity based on sharing – there are now hundreds of millions of artefacts released under Creative Commons licences.  Welcome though that is, it fails to address the central issue that laws designed to punish infringement of traditional copyright monopolies continue to cause collateral damage to both the fabric of the Internet and to civil liberties.

The question we must ask is whether the diminishing of key freedoms is a price worth paying in order to shore up copyright monopolies online.  The content industries, of course, insist that it is, claiming that online piracy is ruining their businesses, harming creators and costing people jobs.  At first sight, that seems plausible, but a growing body of evidence paints a different picture.

The relevant statistics for the book, music, film and game industries have been gathered in a new report entitled The Sky is Rising, that is freely available from the online site Techdirt (disclosure: I am a regular contributor there).  Here’s part of the summary:

“what amazed us in going through every bit of data and research we could find, was how utterly consistent the results were: the wider entertainment industry is growing at a rapid pace (contrary to doom & gloom messages). Furthermore, more content creators are producing more content than ever before — and are more able to make money off of their content than ever before. On top of that, consumers are living in a time of absolute abundance and choice — a time where content is plentiful in mass quantities, leading to a true renaissance for them. This does present a unique challenge for some companies used to a very different market, but it’s a challenge filled with opportunity: the overall market continues to grow, and smart businesses are snapping up pieces of this larger market. The danger is in standing still or pretending the market is shrinking. Therein lies the real threat: missing out on all that opportunity. ”

What is particularly frustrating about the current confrontation between the copyright industries and Net community is that it’s unnecessary.  At worst, the sharing of copyright materials online is simply a side-effect of copyright companies seeking to create scarcity by making it hard to obtain digital versions in a timely manner and convenient form; once they are available, piracy tends to drop.  At best, sharing can drive both creativity and profitability, as Coelho and many others have discovered.

                                       Illustration by India Rose Harvey.  CC BY-NC-SA

More and more content companies understand this, and are trying to work with the Internet, rather than against it.  But the most influential players continue to seek legislative solutions to what are simply business problems – and opportunities.

Now, though, the Internet community is no longer content to accept that stubborn refusal to face facts, or the repeated attempts to impose a scarcity-based 18th-century framework on a 21st-century world of abundance.  The protests of January 18 and February 11 were the first signs of a new digital militancy in defence of the online world’s unique properties and possibilities – but they probably won’t be the last.

 

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