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The People vs Copyright - a primer

Bill Thompson Paul Hilder James Crabtree
29 May 2002

What is copyright? Copyright gives people who create books, music, plays, pictures or almost any other form of expression the right to control how their work is used, distributed or exploited commercially.

Why copyright?

Copyright is important. But it’s also like electoral reform or the origin of the universe: few people have the time, energy or inclination to think about it seriously. Until recently this attitude made sense. The basics of copyright had changed little since 1886, when its modern groundwork was established by the Berne Convention.

Unfortunately, this basis is now being worn away by the growth of digital storage and fast networks. The whole copyright edifice is shaking. Anyone who is concerned about the world’s intellectual and economic health needs to take a serious interest, before it’s too late.

Copyright is not a fundamental human right but a tool, created and modified over the years to create a balance of rights and responsibilities between those who create stuff and those who want to publish, share or benefit from it.

The deal has always been that creators get recognition, control and money, so they are encouraged to share the results of their creative activities. In return they are obliged to let others make some use of their materials – what is called ‘fair use’ – and they only get the copyright for a limited period.

Yet one in six of all Internet users – almost 100 million people – are reviled by the music industry for ‘stealing music’ through file-sharing networks like Napster. And if you buy an e-book, you can’t lend it to a friend.

In The People vs Copyright we want to take an open-minded look at the way copyright works in the network age. We know it’s in flux. We believe the time is right for a serious, open-minded debate between those trying to determine the direction of change, and those who will have to live with the results.

In the red corner, radicals, armed usually with clever software and too much coffee, are trying to tear down the current system. They have had some success, and show no sign of giving up.

In the blue corner, copyright-holders, armed with crack legal teams and four centuries of jurisprudence, are trying to consolidate the system and extend its bounds, by replacing copyright with contracts and technical barriers to copying. They too are succeeding, and they have deep pockets.

These groups don’t like each other very much, and rarely meet outside a courtroom. We want them to argue the case so that we, the people who create, use and buy ideas, books, music, films, can understand what’s going on, and make up our own minds. If you are an author or musician, but also if you have ever bought a book, borrowed a video or downloaded an MP3 from Morpheus, copyright matters to you today. Policy-makers, too, have plenty to learn.

We could choose to ignore these arguments, leave them to the lawyers and the hackers. But in five, fifteen, or fifty years time, if we’ve been using the wrong tool to cultivate the soil where our ideas, books, music and film grow, we might find our societies dying of intellectual and artistic malnutrition.

What is the future of copyright? Napsterisation of everything - or licensing? Here are some of the views....

Where will it end?

Copyright is the object of a chaotic tug-of-war, with both sides now deploying rival technological and legal strategies. In the vaunted ‘knowledge society’, it is ideas that matter; creatives stand on the shoulders of those who preceded them.

‘Intellectual property’, whether private, public, or held in common, is the raw material of this new society. But ‘intellectual property’ law is incoherent, flagrantly disregarded, varies globally and is circumvented by new technologies.

Which way will it all go? There are several possible endgames. Some talk of the ‘Napsterisation of everything’: all forms of information would be liberated from the straitjacket of copyright, to find anarchic, new (if little-remunerated) life on the net.

But at present, the ‘licensing of everything’ scenario looks more likely. When Bruce Lehman was US President Bill Clinton’s Patent Commissioner, he advocated the principle that “any licensable act should be licensed”: as books, videos and recipes go digital, and rights management technologies gain traction over their use, the reach of licensing should extend. The power given to contracts in the US Digital Millennium Copyright Act (DMCA) and the EU Copyright Directive reinforces this scenario.

There are nuances of worldview: are we protecting creators’ inalienable moral rights (as the Napoleonic, European tradition would argue) or economic rights (as the Anglo-American tradition believes)? Are they the rights of creatives or corporations? Can we separate the two?

The World Intellectual Property Organisation argues copyright is good for development, others that it retards growth and gives unfair advantages to the developed world with its deep reservoirs of copyrighted material. Who is right?

Should copyright be incrementally reformed, by a trickle or an avalanche of alterations? Do we need more rights for owners, or more rights for users? Do we need to start again and formulate a new set of guiding principles which can be written into national laws and international treaties? Do we need a new Berne?

The public debate around copyright now is like a disconsolate teenager, isolated and misunderstood. Out of mind, in the courtrooms and bedrooms of the world, trial lawyers and activists fight out a largely private feud for control over what Laurence Lessig calls “the future of ideas”. The People, the users of copyright, play no meaningful part. What will happen if the sleeping giant wakes?

As the strand editors, we are the referees and guides for The People v. Copyright. We will do our best to open up the knotty interconnections of technology and law, and call key witnesses to argue their various points of view. We will lead you through the maze of stories and experiences around copyright; our aim will be to inform, to entertain and learn.

First up: Richard Stallmann, founder of Free Software, calls for us to cut back much of the ‘overgrown’ copyright system.

This is debate without preconceptions, but with a purpose. We will make sure it is read by people with their hands on the levers of power. And as the discussion develops, we will all be judge and jury – editors, readers and contributors alike.

File-sharing is spreading like wildfire. Creatives want to get paid. But new laws prevent you from lending your e-book to a friend.

The problem: a race between law and technology

As we pointed out in our introduction, one in six of all internet users – almost one hundred million people – are hated by the music industry for ‘stealing music’. But if you buy an e-book, you can’t lend it to a friend.

These facts startle, for good reason. Technologies and laws have begun to transform the old copyright settlement we took for granted. New realities contravene what we took for common sense. Are these changes for good or bad?

1. New technology beats old law: the music-sharing ‘pirates’

Most people know something about the brief flourishing of Napster in 1999/2000. A free file-sharing service, Napster peaked at forty million users. They copied their CD collections onto their computers and made them available to each other over the Internet, for free, bypassing plastic disks and shop tills. The creators and record companies never saw a cent. Some musicians applauded, some (like rockers Metallica) went ballistic. The industry strode to the US courts, and shut Napster down.

But ‘unauthorised’ file-sharing of music is more popular today than ever before. The next generation of services – Morpheus, Kazaa, Grokster, Gnutella and many more – have together been downloaded by almost one hundred million people.

The manœuvres continue, including attempts to block file-sharing services from ISPs and university networks, and the engineering of CDs to prevent them from being played on computers. But today’s file-sharers don’t think of themselves as ‘pirates’.

There are social precedents for copying and sharing music. Most people have made tapes from their own CDs or vinyl records. This is defined in law as ‘fair use’. A lot of people have made tapes from their friends’ CDs or records. This is not ‘fair use’; but it became broadly acceptable. There’s even an argument that it introduced people to artists whose music they later bought.

The combination of file-sharing services, broadband connections, CD-burners in our living-rooms, and the social acceptability of these practices, has the music industry turning in its bed – or is that its grave?

Sales of music singles in the United States fell by fortysix per cent from 1999-2000. This isn’t just because pop music isn’t what it once was. If this trend deepens, some argue that it could shatter the music industry. (This, for some anti-copyright philosophers, would be a pleasant side-effect). But others argue that the singles market is unprofitable and dying anyway – file-sharing can and should replace the singles market as the medium for sampling and promoting longer albums.

The music industry has done little so far to embrace and harness this disruptive technology. It has made tentative experiments, including paid-for MP3 downloads, and the purchase of Napster by Bertelsmann and its relaunch as a paid-for service. And Judge Marilyn Hall Patel, who shut down the first, free Napster service, appears to be changing her mind about whether file-sharing is legal or not. The jury’s still out.

2. New law beats old law: e-books and the DMCA

Not many people buy e-books today. We don’t like reading books on-screen; our eyes glaze over, we prefer to curl up in bed with something defiantly real and ruffle its pages.

But the time is coming when we could curl up with heavy flu and the e-book of Harry Potter: The Prisoner of Azkheban and ruffle through its pages, then transform it into The Goblet of Fire without getting out of bed. When we could carry our whole collection of literature around with us in a single book. Less to pack when you’re going on a beach holiday. Perhaps, even, more forests.

E-books probably are a part of our future. But the transition to the digital format brings with it new problems and opportunities. A paperback book is a physical object, owned by its purchaser; but the content of the book – the novel or essay – is merely licensed. It is impossible to separate the two in print.

When the book goes digital, the physical object and the content are separated. It becomes possible to copy the content and distribute it at near-zero cost. Hearing this, publishers and authors may cheer or blanch; because it also means that books can be pirated at near-zero cost.

The copyright-holders saw the potential for piracy, and moved fast. The DMCA, passed in the United States in 2000, allows the owners of copyright to embed terms of their choice into the ‘use license’ for an e-book, a CD or a video.

The Act shifts the ground of copyright, making the license king in the digital realm, and circumventing existing practice (which includes provisions like fair use and lending). At the same time, it becomes a criminal offence to circumvent technical devices (like encryption) which implement those use licenses.

It’s now illegal to copy and republish my Adobe eBook, using any means whatsoever. But it’s also impossible for me either to lend it to a friend, or to copy and paste part of it to quote in my PhD thesis, without breaking the law. DVDs, CDs and MP3s are also affected by the Act.

Russian programmer Dmitri Skylarov went to an industry convention in San Francisco in 2001, and was arrested under a federal warrant for offences against the DMCA, thanks to a tip-off from Adobe. He had written a programme which broke the weak encryption on Adobe’s eBooks. Street protests followed across America, and Skylarov was released.

New laws based on the DMCA are being framed around the world – the EU Copyright Directive, which closely follows the US model, is timetabled for adoption by member states this year, and copyright legislation is spreading like wildfire around Asia (even in Hong Kong and China, formerly home to rampant piracy).

It’s hard to work out what to think about e-books and the (where copyright seems to have been effectively enlarged), just as it’s hard to work out what to think about file-sharing (where it seems to have been bypassed). It’s hard for good reason. These are new and difficult elements of our social landscape, and we will revisit them as The People vs Copyright develops. To learn more about these issues in particular, visit our interactive timeline.

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