Conan versus the Copyright Lawyers

Copyright was invented to encourage the production of works of art and literature (not necessarily fine literature -- even pulp novels have their place in a society). Well, technically the original copyright law was intended as a form of censorship: it was a bribe from the British government to the book publishers guild, giving them a monopoly on books so long as they didn't publish anything that the government and church didn't like, and were vigorous in stomping hard on anybody who did. But putting that aside, modern copyright law was created with the motive to promote the useful arts and sciences. The intention is that since the creation of a work of art is of doubtful profitability, since an author could spend months or years creating a work only to have some other publisher copy it and make the profit, society as a whole is better off if we grant that author a limited monopoly on the publishing of said work. The good to society (more works of arts and sciences) was the intention, the author's profit, if any, merely the mechanism to get that good.

An admirable intention, but over the centuries, it has become corrupted by the involvement of corporate interests. Copyright law is now, de facto, treated as a method for the promotion of profit. The emphasis is on the copyright owner's profit, rather than the benefit to society. The historical record is unclear on whether copyright ever really did lead to more works being produced, but it seems clear to me that today copyright is a barrier to be overcome rather than a tool for the promotion of useful arts.

From New Zealand comes an example of how copyright law is used to reduce rather than increase the amount of useful arts available to society. Copyright law in New Zealand lasts for fifty years after the death of the author, and consequently Robert E. Howard's Conan The Barbarian stories are in the public domain. The New Zealand non-profit, all-volunteer website BrokenSea Audio produces audio dramas based on Howard's work.

Alas, the Conan stories are not in the public domain in the US, where the monopoly on Howard's work is owned by a corporation, and they see New Zealand's volunteer, non-profit Howard fan as a threat to their bottom line:

All Conan audio dramas and audio books produced by its volunteers have been removed from the website, and a major project — a production of Howard's only full length Conan novel, Hour Of The Dragon, which Mannering had adapted into a full cast audio drama script — has been cancelled.

We see this over and over again: copyright law being used to reduce the amount of useful arts produced, instead of increasing it.

Deputizing the ISPs

One of the more insidious dangers coming out of the copyright lobby is the idea that ISPs must be made responsible for enforcing copyright law on their behalf by choking off infringing material. It's a rather bizarre concept, no different from the idea that the Post Office must scrutinize every piece of mail posted for signs of illegal activities.

In practice, not only would this a huge burden on ISPs, but it's also ridiculously impractical. Since infringing bytes aren't coloured differently from non-infringing bytes, the only "solutions" are to either non-selectively cut off entire avenues of communication, or make an expensive and ineffectual attempt to analyze Internet traffic, trying to detect infringing material. That sort of censorship is ripe for abuse and prone to errors. And let's not forget the privacy implications of having your ISP actively monitoring every packet of data you send.

Such is the influence of the copyright lobby that the idea is being taken seriously, so it is good to see that British bastion of middle-class respectability, the Guardian, slam the idea:

Some internet users are irresponsible, and their behaviour may even be damaging Taylor's clients. But in seeking legislative relief for this distress, governments need to strike a balance between the wider public interest and the demands of a particular industry to defend an increasingly obsolete business model. And though the record industry is important, it's an economic minnow compared with the IT industry.

An analogy may help to illustrate the point. Millions of people use the telephone network for questionable, illegal or unethical purposes. But we would regard it as unthinkable to impose on phone companies a legal obligation to monitor every conversation.

The jazz club versus the collections agency

SGAE, the royalty collection agency that operates in Spain, recently sued a jazz club for failing to pay royalties on music played. The club responded by stating that they only played royalty-free Creative Commons music, and magistrate Luis Sanz Acosta ruled in their favour.

The royalty collections agency's evidence was poor at best. Especially noteworthy was the recording they claimed was made in the jazz club but was actually recorded elsewhere. The judge was not amused.

What is especially satisfying is that the magistrate displayed a good understanding of "música libre" and the Creative Commons -- no doubt far better than the SGAE, which stands to lose financially if significant numbers of Spanish musicians drop out of their cozy little system. Monopolies never really understand the people who opt out.

For those who are unaware of how the royalty system works, it goes something like this:

The collections agency collects royalties on the musician's behalf, based on an estimate of how many times his or her work is played. Once the money is collected from (e.g.) the radio stations and bars, once a year the agency pays it to the musician, assuming:

• The royalty is more than a certain minimum amount.


• The agency can find your bank details, and don't confuse you with somebody else and pay your royalties to them.


• You have filled out all the paper work they insist on.


• They remember to actually make the payment.

If any of those conditions (especially the last) are not fulfilled, you have to wait for the next year's pay run to see a cent. If you specifically ask, they'll offer to try harder to remember to pay you next time. In the meantime, they get to collect the interest on your money for another year.

Naturally this does not apply to musicians who can afford more lawyers than the collections agency, but since musicians generally only get into such a happy state by collecting royalties, there are far fewer of them than outsiders to the music biz usually imagine.

Buy our product or we'll sue you

Two US companies have issues cease and desist letters to Microsoft, Apple, Real Networks and Adobe, warning them to stop not using their Digital Restrictions software.

That's right. Buy our product or we'll sue.

The manufacturers of the DRM software, Media Rights Technologies (MRT) and BlueBeat.com, claim that their product makes water not wet "effectively controls access to copyrighted material", and therefore failing to use their snake-oil product is illegal under the Digital Millennium Copyright Act:

[The DMCA] makes illegal and prohibits the manufacture of any product or technology that is designed for the purpose of circumventing a technological measure which effectively controls access to a copyrighted work or which protects the rights of copyright owners. Under the DMCA, mere avoidance of an effective copyright protection solution is a violation of the act.

How's that again? If you fail to use DRM, that's the same as circumventing the DRM software that you would have used if you had used any.

(Or, to put it another way, if you give a sandwich to your friend without charging him money, you're guilty of being an accessory to theft, because your friend effectively stole from you the money he would have given you if you had asked for any, and therefore you assisted him in his crime. And if your brain hurts about now, you're not alone.)

That's a rather... unusual... interpretation of the DMCA. It's almost certainly a publicity stunt, and unlikely to go any further, but it isn't that far removed from media companies' efforts to outlaw open formats and mandate ineffective and restrictive technologies.

Copyrighting the pyramids

How crazy is this? Egypt has announced that they are copyrighting the pyramids, and intend charging royalties to anyone who copies them.

Zahi Hawass, the charismatic and controversial head of Egypt's Supreme Council of Antiquities, said the move was necessary to pay for the upkeep of the country's thousands of pharaonic sites.

"The new law will completely prohibit the duplication of historic Egyptian monuments which the Supreme Council of Antiquities considers 100 per cent copies," [Zahi Hawass] said.

...

However, the law "does not forbid local or international artists from profiting from drawings and other reproductions of pharaonic and Egyptian monuments from all eras - as long as they don't make exact copies."

"Artists have the right to be inspired by everything that surrounds them, including monuments," he said.

Asked about the potential impact on the monumental Luxor Hotel in the US gambling capital of Las Vegas, Mr Hawass said that particular resort was "not an exact copy of pharaonic monuments despite the fact it's in the shape of a pyramid".

If the copyright only applies to exact duplicates (that is, the same shape and materials inside and out) one wonders that the point of retroactively copyrighting something created more than four thousand years ago? Are there really that many people making exact life-sized duplicates of the Great Pyramid of Giza?

They make it hard to do the right thing

Studies into file-sharing patterns at American universities repeatedly show that the major factor involved is less price and more convenience. It's often been said that you can't beat free, but in fact you can: it's worth paying something for fast, reliable, good service.

There aren't a lot of television programs I watch, but there are a few. I have most of them on DVD box sets, but for the couple remaining, what to do? I for one would never Break The Law, but it gets tiresome watching the latest episode of Heroes by remote viewing: psychic powers are notoriously fickle and unreliable, and can sometimes be slow and flakey.

So I was very excited to receive an email from Amazon telling me that, as somebody who had purchased the Heroes Season One DVD, I might be interested in purchasing Season Two episodes for just ninety-nine cents. Would I ever -- with the current exchange rate, that's around the "sweet spot" that I'd be prepared to pay for Internet downloads.

Alas, it is not to be. They don't want my money:

Before you can download your Unbox video, you need to install the Amazon Unbox video player. ... Currently, the Unbox video player only works on PCs running the Windows XP operating system (see all system requirements) and is only available to our customers located in the United States (see all terms of use).

This is wrong in so many ways...

• There are standard, open formats for video that are viewable on any computer fast enough to deal with video. Your old Apple II won't make the cut, but there's no technical reason for restricting users to only people using Windows XP.


• Bittorrent and other file sharing technologies don't restrict users to those in the United States. If the studios want to compete, they better start learning that the marketplace is now global: 95% of potential viewers are not in the USA.


• Don't try to lock people into your shoddy, proprietary technology: I expect to use the browser and video player of my choice (within reasonable technical restrictions) to watch the videos.

Get with the program guys. You can compete with free, because people do want to pay for the videos they watch. You just have to make it easy for them to give you money, and provide a good service.

Why the writers are striking

Thanks to Bek for pointing this out to me:



Or go here to see it on YouTube.

I've often said that there are copyright thieves and pirates, and most of them work for the studios. I for one have all but stopped watching television. I have my DVD collection and *cough* off-site backups, and while I'm sorry that the strike will interrupt Heroes and Battlestar Galactica, I support the strike whole-heartedly.

Some snippets on file-sharing news

I haven't written about the music industry and file-sharing for a while, so this is a good time to catch up on some news.

Apple's iTunes continues to be the biggest on-line seller of music around, and Apple still refuses to licence their Digital Restrictions Management software to other companies. Nevertheless, one company has found a way to compete with Apple, and has been rewarded by becoming the second-biggest seller of music on-line: eMusic sells mp3s without DRM software. The big labels are reluctant to compete with Apple by offering unencumbered music, so eMusic concentrates on the indie and over-25s markets, and with five million sales a month, it is extremely profitable for them and the bands.

Faced with interoperability problems and consumer surveys that show that UK consumers believe that only DRM-free music is worth paying for, the music labels are rethinking their approach. EMI already sells DRM-free music on iTunes; Universal is about to offer DRM-free music (but not on iTunes); and the CTO of label Gracenote is predicting that the major labels are likely to drop DRM for downloads within six months.

Meanwhile, the RIAA's battle against file-sharing isn't going well. One cleared defendant has been awarded $68,000 to cover her legal fees; another cleared defendant has launched a class-action suit against the RIAA for malicious prosecution; and another defendant has had the lawsuit against her dismissed with prejudice.

File-sharing is, essentially, normal, in the same way that taping music off the radio or TV shows off the telly are. Even the children of Warner Music CEO Edgar Bronfman turn to the file-sharing networks to discover new music. The tide has turned, and we're far better off reforming copyright law to make sure artists remain compensated than we are trying to enforce out-dated laws.

Attempts to shut down torrent-tracking sites still fail; the Pirate Bay has just re-launched Suprnova.org with a taunting message to the executives who tried to shut them down:

"Finally, some words for non-internet loving companies: This is how it works. Whatever you sink, we build back up. Whomever you sue, ten new pirates are recruited. Wherever you go, we are already ahead of you. You are the past and the forgotten, we are the internet and the future."

Geller versus YouTube

Second-rate magician and first-rate fraudulant psychic, Uri Geller, has been using the Digital Millennium Copyright Act (DMCA) to censor skeptics who have been showing videos of his tricks on YouTube.

Clips censored by Geller include a slow-motion clip of him palming a magnet just before making a compass needle move, and his famous flop on the Johnny Carson Show when he was unable to perform when Carson provided his own spoons instead of Gellar's pre-prepared ones. (That's why I call him a second-rate magician -- a first-rate magician would have ad-libbed and done something.)

The DMCA is ripe for abuse, and leaves service providers like YouTube in the unfortunate position of being "copyright cops", removing material on no more basis than the say-so of somebody claiming to be the copyright owner.

Scratch a free-marketeer...

...and find an enemy of private property.

Stephen J. Dubner of Freakonomics recently blogged about an interesting study of the used-book market.

Or rather, Dubner thinks it might be interesting, but since it costs US$695 he hasn't actually read the report.

That sounds interesting, doesn’t it? We’ve touched on related subjects here and here; Judy Chevalier and Austan Goolsbee wrote a paper about the market for used textbooks. Even closer to home, as far as the trade publishing industry is concerned, is this paper by Anindya Ghose, Michael Smith, and Rahul Telang, which argues that — despite the publishers’ fears — the sale of used books does not cannibalize new book sales, and in fact a robust used market may help the new book market since a book, once read, retains more of its value.

But what I want to comment on is not Dubner's post itself, but one of the comments left by a reader. "GamblingEconomist" starts off with the free market party line, defending the price of the report:

Why does it seem strange that industry research would be expensive? How are those in the industry supposed to make their decisions without market research? Peer reviewed economics publications don’t always fit the bill.

but then rapidly shows his(?) true colours:

I hope that nobody sells it on ebay because the report is likely licensed to the purchaser for his/her own use and is not meant to be duplicated and/or resold.

Let's get this straight: he's not talking about copyright infringement. From context, he's talking about re-selling a physical copy of the report. He's hoping that nobody can re-sell the report -- or to put it another way, he hopes that the report is not the property of those who buy it.

He's talking about one of the most fundamental attributes of the free market, without which the concept of "private property" is meaningless: once you buy something, it is yours, to do with as you wish, including selling it.

You would think I'd be immune to this by now, but I never cease to be angered at the double-standards of so many of the supposed "free-market" proponents who are happy to gut the principle of private property by messing with the first-sale doctrine. To these people, there are two classes of individuals in the world: those who own property, and those who merely licence it.

And you can bet that in their minds, they intend to be in the first class.

Pretexting

"Pretexting" is a name for a particular type of old-fashioned fraud: it is when a person calls another party and pretends to be somebody else in order to get information under false pretenses. Morally and ethically it is fraud, but a legal gray area in some places. California was considering a bill to explicitly make pretexting illegal.

Until the MPAA stepped in and said they needed to commit fraud to protect their bottom-line.

Canadian copyright snake oil

Music publishers have attempted to smuggle a provision into Canada's copyright law which would make Digital Restrictions Management software compulsory for on-line music distributers, effectively banning DRM-free music and forcing musicians to pay good money for DRM software -- even if they don't want it.

eMusic is the second largest on-line seller of digital music, all legal, all free of Digital Restrictions Management software. If the music publishers provision became law, eMusic would have to either stop selling to Canadians, or add DRM software to the music they sell, against the express wishes of the copyright owners.

This is just insanity, but it clearly demonstrates that DRM cannot survive in a free market. It is snake-oil. Making bits uncopyable is like making water not wet. The only way DRM suppliers can stay in business selling software snake oil is to take advantage of the frightened (or greedy, or both) music producers. The producers themselves have realised that their business model is dead, made obsolete by technology. Rather than adapt to changing markets, they turn to the government to outlaw -- or at least hamstring -- competitors who have adapted to the new technology.

Egregious abuse of copyright

Here's yet another example of the blatant abuse of the law as an anti-competitive measure: a shampoo company tries to prohibit a woman from legally and legitimately re-selling shampoo she's bought by claiming copyright infringement.

Library calls for update to copyright laws

It isn't just "pirates", unwashed hippies and computer geeks who are upset at the current direction copyright law is being pushed. The national British Library, also wants copyright law to be updated.

The British Library warned that the law could easy be rendered obsolete by changes in technology, and that technologies like Digital Restrictions Management software was riding roughshod over the rights given by Copyright Law. In effect, DRM takes away rights that the law gives.

(Actually, it isn't quite that simple, since copyright law itself is based on the idea of taking away or limiting what a property owner can do with his or her own property, in order to give the creator of the work extra rights. But those rights that are left over, rights based on the fundamental right for a person to do anything they choose to do with their own property, are being rendered irrelevent and meaningless by DRM software.)

"One of the key problems is that the limitations and exceptions to copyright law are being ignored by business, which is imposing restrictive licenses on digital content," Suw Charman, executive director of the Open Rights Group, told ZDNet UK.

Charman said DRM restrictions could be particularly damaging for academic research.

The British Library also raised the issue of "orphaned works" -- copyrighted material that is locked up because nobody knows who owns the copyright. In many cases, that material exists on old film which is literally rotting away by the day. Movies from the early 20th century is going to be lost forever because nobody is legally permitted to copy it without the copyright holder's permission, but nobody knows who the copyright holder is.

Warner does deal to open up video library

And in further news, pigs have been spotted flying south for the winter.

(How many mixed metaphors can I fit in one post, I wonder?)

While Universal is suing YouTube for copyright infringement, Warner Brothers' music division have seen the writing on the wall and, instead of trying to keep the tide from coming in, have done a deal with YouTube to let their music videos roam free on the Internet.

The deal will involve Warner Brothers opening up their entire back-catalog of music videos, including those from major artists such as Red Hot Chilli Peppers and Madonna, which will be posted to YouTube. People will be allowed to download and remix the videos and repost them on YouTube.

The MPAA and RIAA, who have claimed that Internet sharing is causing the sky to fall, have apparently locked themselves in a bunker under Washington and are waiting for the world to end.

iTunes buyers vote with their wallets

The BBC is reporting that on average only 5% of the tracks on the average iPod have been bought from iTunes, with even fewer coming from other music sites. The majority are downloaded from file sharing sites or ripped from CDs.

The report cautions not to artificially divide music listeners into "pirates" and "buyers", and points out that:

[...] the only salient characteristic shared by all owners of portable music players was that they were more likely to buy more music - especially CDs.

"Digital music purchasing has not yet fundamentally changed the way in which digital music customers buy music," read the report.

This tells me that free as in beer (free of charge) is far less important to music listeners than free as in speech (free of restrictions). People are willing to pay for their music, but they aren't willing to accept lousy digital restrictions or artificial file formats that nobody but the music industry wants.

Creative Commons success story

Cory Doctorow is rightfully proud of the results from one of his Creative Commons published books:

Last week, I received the most remarkable letter from Jamie, a US Navy seaman stationed on a ship in the Mediterranean Sea. Because my novels are Creative Commons-licensed, he is able to download them and print them out onboard ship, and pass them around to his comrades. The absence of quality reading material on the ship has turned Creative Commons texts into hot items on the ship:

A couple hours later, the only noise in the place was when one of the half-dozen guys sitting around would look up and ask, "Hey, who's got page 41 of Down and Out?" It was... well, I'm not sure I can express how weird it was. These are men who aren't normally readers, much less consumers of slightly wacky science fiction, and they're now getting impatient with each other to finish chapters so they can find out what happens next.

It's starting to change the very *tone* of where I work on the ship, six hours on and six hours off: instead of the ever-present three B's of talk to pass in the time in the plant -- beer, babes, and bodily functions -- it's discussions of which novel (or short, since we've now got printouts of every piece of fiction on craphound.com stuffed into a file cabinet) we liked best, and why, and what makes this stuff cool, and where can we get more like it, and even starting to talk about the copyfight, and why that's important.

Exceptions to TPM legislation

Expect to see more from me about this topic, but for now just a quick word: the Australian Federal Government has put up their DRAFT legislation regarding exceptions to the Technological Protection Mechanism laws.

Nutshell: under pressure from the US government, out government has passed laws not just outlawing copyright infringement (which was already illegal) but making it a criminal offence to bypass technology which could be used to prevent infringement. So, hypothetically, if a music CD hijacks your computer and installs a root kit that takes over the functioning of your computer and allows viruses to break in, but by doing so it also prevents you from illegally burning copyies of the CD, it is illegal to remove that root kit.

The draft legislation can be downloaded from here.

We don't have much time to move on this -- the government is putting it up for comments only until the 22nd of September.

A quick look at the summary (not the legislation itself) makes me say -- "phew! we dodged a bullet!". The government seems to be relatively clueful, maybe, and is recommending that the offence be tied to actual copyright infringement, rather than a blanket ban on bypassing the TPM:

The scope of the scheme is limited to preventing circumvention of TPMs designed to stop copyright piracy. The scheme will not cover TPMs which are not designed to prevent or inhibit people from infringing copyright. The scheme will not apply to TPMs solely designed for other purposes, such as market segmentation (eg region coding) or the protection against competition in aftermarket goods (eg spare parts) where the TPM does not have a connection with copyright.

In other words, if you bypass the TPM in order to break copyright law, you've broken the law, but if you don't, you don't.

We know the US government really doesn't like this, and has been pushing hard to make any bypassing of TPMs illegal. The next few weeks/months will be interesting. We'll see how much of a lapdog we are to the US, or whether our government is prepared to act in our best interests instead of the RIAA and Microsoft.

Keep your fingers crossed.

Tim O'Reilly on P2P

Back in 2002, Tim O'Reilly (founder of O'Reilly Publishing, perhaps the biggest IT and computer book publisher in the world) wrote an article about piracy and copy-protection. He details four lessons he had learnt from years in the business of selling, and giving away, books, and explains why they also apply to music and video:

1. Obscurity is a far greater threat to authors and creative artists than piracy.


2. Piracy is progressive taxation.


3. Customers want to do the right thing, if they can.


4. Shoplifting is a bigger threat than piracy.

O'Reilly describes the bias of the existing distribution and advertising system, and points out that for many artists, piracy is a boon, not a problem:

For all of these creative artists, most laboring in obscurity, being well-enough known to be pirated would be a crowning achievement. Piracy is a kind of progressive taxation, which may shave a few percentage points off the sales of well-known artists (and I say "may" because even that point is not proven), in exchange for massive benefits to the far greater number for whom exposure may lead to increased revenues.

Our current distribution systems for books, music, and movies are skewed heavily in favor of the "haves" against the "have nots." A few high-profile products receive the bulk of the promotional budget and are distributed in large quantities; the majority depend, in the words of Tennessee Williams' character Blanche DuBois, "on the kindness of strangers."

[...]

I have watched my 19 year-old daughter and her friends sample countless bands on Napster and Kazaa and, enthusiastic for their music, go out to purchase CDs. My daughter now owns more CDs than I have collected in a lifetime of less exploratory listening.

Then, in 2005, O'Reilly linked on his blog to an article by The Book Standard titled Buying the Cow, Though the Milk Is Free: Why Some Publishers Are Digitizing Themselves. According to O'Reilly:

[...] free downloads can be good marketing, or in the worst cases a minor inconvenience, rather than the horror story that the copyright mafia makes them out to be.

Last month, he revisited his earlier ideas about piracy and copyright, and continues to stand by his earlier conclusions.

On a related note, Nat from O'Reilly discusses the sort of fan mail authors like to hear:

I downloaded a copy from the Net, but realising how good it is, today I will buy a copy to support your work. I do not need a hardcopy, I will continue [to use] the digital version, but I will buy a hardcopy anyway.

Can you legally play an overseas DVD?

Virtually all DVDs have "region encoding", one or more codes on the disc that tells the player where in the world you are supposed to watch the DVD.

Needless to say, consumers are split into two groups: those who don't notice region encoding, and those who hate it passionately. For example, there are millions of fans of Japanese anime across all DVD regions, but anime DVDs are typically only released on Region 2 discs, making watching them difficult in the US or Australia. Hence, there are thriving black- and grey-markets for "mod chips" and other technologies for removing region encoding.

Kim Weatherall looks at the legality of playing DVDs from other regions in Australia. Although it is a very simple question -- "Can I legally watch this legally purchased DVD from overseas?" -- the answer is not simple at all.

After looking at various laws, including the Australian Copyright Act, the Aus-US Free Trade Agreement, and various legal rulings, the conclusion is that it is legal to watch those overseas DVDs -- but only just. It assumes two factors: firstly, that the copyrights on the computer code and video on the DVD disc, in both countries, are owned by the same person, and that the amount of video copied into the DVD player's temporary memory is not "substantial" -- whatever that means.

Weatherall's conclusion is sobering:

your right to play a DVD legitimately purchased overseas rests on as slender a thread as this: if a copyright owner can prove that a substantial part of the film is embodied in RAM at some given moment, they will be able to show that you are making a temporary copy, which is not covered by the section 43B defence.

Is this likely? Well, the question is effectively open. And Sony tried quite hard to demonstrate this after the fact in Stevens v Sony, using a demonstration of how much game could be played without keeping the disk in the machine.