Copyright Free Riders

There is movement at the copyright station. The word has passed around that the digital content ‘colt’ has ‘got away’. The movie, music and publishing industries are sending their top lawyers to rein it in. In spite of their having convinced government and the legislature that the fences should be stronger, higher and locked with new technological protection measures, the colt has escaped. Many potential ‘free riders’ are more than pleased.

Since digital technology enabled all forms of expression to be digitised as ones and zeros that could be transmitted anywhere in the world to anyone with an internet connection, the incumbents of the copyright industries have been aware of the threat to their businesses. They have known that digital technology and ever cheaper access to the internet were likely to result in their content being copied without permission or payment and that this presaged the loss of control of the market for commercial content.

Their response was to call ‘Pirate’ and ‘Theft’. The industry bodies representing the American content industries lobbied national and international law makers to strengthen copyright law and to extend the period of copyright protection to seventy years after the death of the author for individual works or ninety-five years from publication for corporate (Disney)-owned works. Jack Valenti, CEO of the Motion Picture Association of America (MPAA), who was for many years the spokesperson for the Hollywood movie industry, embarked on a campaign to demonise the internet as an economic and moral threat. Basically, his argument was that if the law were not changed to better protect American content, the internet would destroy the movie industry (and the billions of dollars it brought to the economy) and become the lucrative lair of pornographers and organised crime.

According to some critics, Valenti was almost single-handedly responsible for the construction of file-sharing as theft, making what might have been seen as a new cultural phenomenon into a legal issue about the protection of personal property. The recording industry attached itself to his coat-tails, and the Record Industry Association of America (RIAA) started its own anti-file-sharing campaign. First it sued Napster, a file-sharing technology (which was closed down) and then 20,000 of its customers, most of whom paid a hefty fine rather than pay even heftier fees to a lawyer to defend them. The book-publishing industry jumped on the piracy bandwagon. They may have been unsure of the effect of digital copying on books (who wants to read a book on a computer?) but they were very certain of the threat it posed to scientific and academic journals from which they made huge profits. With much rhetoric, if little action except to offer huge discounts to supermarkets to move large print runs of bestsellers, to offer even less palatable contracts to midlist authors and to increase the price of subscriptions to rarely read journals, they willingly joined the copyright maximilists in the fight to keep control of the print marketplace. If copyright is good, they seemed to think, then more copyright must be better.

The reaction of the content industries was understandable. Since the 1710 UK Act of Anne, the producers and distributors of content have been well protected by copyright law. At that time, they were granted a monopoly to exploit the works they controlled for a period of fourteen years, with the possibility of extending the protection for another fourteen years. The time limit was imposed to ensure that there was a balance between their interests in being rewarded for their enterprise and investment and the public’s interest in having access to works as they moved out of copyright and into the public domain.

Ostensibly to also reward and provide an incentive for authors (who of course had no power unless they had a contract or a deal with a publisher), this balanced regime worked reasonably well while there was a distinction between accessing, using and copying a work. The law could be adapted to include new rights such as translation, abridgement and serial rights. Within the analogue world, it could even, at a stretch, accommodate new technological media such as photographs, tape recorders and CDs.

As these new products were tangible and their reproduction was both visible and expensive, most copying could be controlled most of the time. Thus books owners could not ‘copy’ their books but they could read, lend, scribble on and even resell them without breaking the law. Not so in the digital world of intangible zeroes and ones, where every access and use is arguably a form of copying. To access the image of a work on a computer is to access a reproduction or a copy. E-mailing it to a friend involves copying the copy. Browsing, borrowing, sharing, reading, downloading, printing—all involve a reproduction and, under the prevailing principles of copyright law, every one of those activities becomes a potential breach of the law.

A decision might have been made, at what copyleft writer Siva Vaidhyanathan calls the ‘digital moment’, to view digital reproduction as qualitatively different from analogue reproduction. New laws could have been devised to preserve a balance between the rights of the copyright owner and the rights of the user. Because digital works are intangible and non-rivalrous (that is, the use by one person does not prevent use by another) and because the ease of digital reproduction turns ‘supply and demand’ economics upside down, policy-makers might have conceived a different approach based on a different notion of economics and the public good. At its simplest level, this might have been an intuitive system based on distinguishing between commercial works and non-commercial works. Or it might have involved the delineation of what Jessica Litman calls a ‘free-use zone’, an area of use for which individuals don’t need to ask for permission to creatively repurpose and reuse digital works. A place where they could lawfully ‘rip, mix and burn’, as Apple briefly encouraged its users to do with ipods. But the decision was made instead to strengthen copyright law. Law- and policy-makers determined that if content providers were to be attracted to the new digital environment, the law should be modified to offer at least the same level of copy protection for digital works as it had for analogue works.

In the countries that are signatories to international copyright agreements, this new level of copyright includes such long periods of protection that no copyright works being created now will enter the public domain in any of our lifetimes. When they eventually do, and providing the period of protection is not again extended when Mickey Mouse is next due to become copyright free, users may still not be able to access them, even for ‘fair use’ or ‘fair dealing’ purposes. This is because they may also be protected by Digital Rights Management (DRM) systems that technologically encrypt or ‘lock’ the works. Under what are called ‘anti-circumvention provisions’, the international legal regime now makes it a criminal offence to break the locks or to manufacture or sell any device that could be used to break the locks, even for non-commercial or educational purposes.

Dmitry Sklyarov, a Russian PhD student and employee of Elcomsoft, found this out the hard way when he gave a paper at a 2001 conference in the United States. His topic was Adobe’s e-book security systems and when he had presented his paper, the FBI arrested him, presumably at the behest of Adobe. He was charged under the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) with distributing a product designed to break Adobe’s anti-piracy code. The charges against him were eventually dropped but not before he was obliged to provide US$50,000 bail to secure his release from custody.

Tarleton Gillespie, a fellow at the Center for Internet and Society at Stanford Law School, says that this encryption is a dramatic intervention into communication and culture. He says it allows film and music distributors to govern not only whether we copy a work, but also our private uses as well. DRM can stop users from reading, borrowing and sharing locked works, even if they own them. Ask anyone who has tried to play a region coded American DVD that simply wont ‘read’ on an Australian DVD player.

What we have now is a copyright system that has drastically disturbed the balance between protecting the property of content owners and allowing reasonable access by users to a public domain of new works. Lawyer James Boyle, among others, has noted a parallel between this situation and the privatisation of the agricultural commons during the agrarian enclosure movement, where common land was appropriated and fenced off for the exclusive use of its owners. This first enclosure movement of common land took centuries to effect. The ‘second’ enclosure movement of the intellectual commons has been effected in the last twenty years. Pitted against this enclosure movement is an array of organisations and individuals who have argued that it is time we rethought copyright law. Some are concerned at the monopoly control of the content owners and its impact on society—especially on free speech and democracy. The Electronic Frontiers Foundation, for example, has been at the forefront of legal battles to defend free speech and users’ rights in the digital environment. Richard Stallman, an early software programmer, was appalled when the early computer software sharing community was commercialised and software was no longer a tool to be shared for the common good. Often referred to as the ‘father’ of the free software movement, he developed what he called a ‘copyleft’ licence, an ‘all rights reversed’ system that allows software to be used and adapted, providing any new adaptation is also released free to the public. Similarly, the Open Source software movement, which relies mainly on the unpaid contributions of developers, makes software source code available to the general public with few copyright restrictions. Others critics focus on the ‘chilling effects’ of copyright law on creativity and innovation—which are now so much more dependent on permission and payment to the owners of privately owned and ‘locked’ copyright works, including software. In response to what he saw increasingly as a ‘permission’ society, Lawrence Lessig founded ‘Creative Commons’ (CC). It is a flexible licensing system that operates within copyright law but which offers a choice of CC licences that provide a range of protections and freedoms for creators, including making their work available in the public domain. Forty-three countries have their own CC licences: millions of websites and creative works of scholarship, music, film, photography, literature and courseware are now available under the CC licensing system.

Others despair at the law itself, which they say is arcane, anachronistic and no longer respected by the millions of people who continue to download music and movies from the internet. Australian authors surveyed in 2007 admitted that they knew almost nothing of the provisions of the 560-page Australian Copyright Act. They certainly did not understand the anti-circumvention provisions. Not that it mattered much. None of them could afford the $5000 or so to pay a lawyer to take legal action.

But perhaps the most interesting objections come from those who have looked at the economics of the current copyright regime. They point to significant changes since the digital moment. Cory Doctorow, a Canadian blogger and science fiction writer, has trodden the path of numerous musicians who have put their work online, for free. Like many of the musicians, he found readers downloaded his work, but sales of his books also increased. And he was offered much more money to write and to make public appearances. Turning conventional supply and demand economics on its head, he pointed out that on the internet it is obscurity, not piracy, that is the problem. The better known you are, the better chance you have of using some of the new internet business models to sell your work.

Rupert Pollock, an academic at Cambridge University, undertook a study in 2007 of what he calls ‘optimal copyright’. He used a theoretical model to establish the optimal period of copyright protection and found, first, that it falls as the costs of production go down, as they have with digital technology. Second, by studying new and existing data on recordings and books, he asserted that the optimal term for the greatest rewards was about fourteen years. This ironically, is the term of protection originally offered to copyright holders under the first copyright law in 1710!

It is also nine years longer than the term recommended by the Swedish Pirate Party, a political party formed in 2006 to reform copyright law. Their platform, which has gained considerable support in Scandinavia and other countries, suggests that a five year term is appropriate for copyright protection. Founder of the party Rick Falkvinge says this allows for a period for commercial exploitation of new works, which can then move into the public domain and form the basis of ‘the greatest public library ever’. He points out that the commercial life of cultural works is staggeringly short in today’s world and he questions why anyone needs to make money seventy years after their death.

None of this carries much sway with today’s copyright owners who have most to lose by reforms to the law that loosen their control of the still profitable entertainment and information markets. And it does not appeal very much to intellectual property lawyers, nor to copyright organisations such as the Australian Copyright Council (ACC) and Copyright Agency Ltd (CAL). When public hearings were held into the effects of the intellectual property provisions that Australia would be obliged to adopt under the Australia–US Free Trade Agreement, ACC and CAL were vocal in their support for strengthening copyright laws and extending the period of protection.

But as philosopher and lawyer Eben Moglen says, our current copyright laws are ‘impossibly burdened’. And there are now several generations of what Axel Bruns calls ‘produsers’, people who have actively engaged in creative collaboration, file-sharing and social networking on the internet. Many of them are still idealistic about the potential of digital technology to contribute to a more democratic society and a richer culture. Many of them have a more universal sense of ownership of knowledge and information goods than their print-based counterparts. It is possible that their values and practices—often outside the commercial marketplace—will force a change to our inherently contradictory copyright laws that aspire to serve the public good through a system based on private gain. In the meantime, they live in a parallel creative universe where file-sharing, far from being a moral and economic threat, is a predictable reaction to the serious imbalance introduced by twenty-first-century copyright laws. It is not surprising that digital natives might see free-riding on the escaped content colt as a reasonable cultural and economic response.