Copyright is often claimed to be a
balance between rights-holders’ interests on the one hand and the
interests of users and society as a whole on the other hand. I only
wish things were that simple. I could take my place alongside other
rights-holders, and know that copyright law would at least be taking
the interests of creators into serious consideration.
The problem is that the
reality is quite different. With digital copyright you have
potentially 4 rights-holder groups. Even if you only
consider the interests of copyright holders, the vast majority of the
debates I have witnessed have been between and within copyright
holder groups, not between copyright holders and some other
individual or group.
Just as with previous bills,
the tabling of Bill C-32 will bring new people to the debate. Reading how I evaluate my allies and opponents may be useful as a
kick-start for those people.
Who am I
While it is true that all
creators of copyrighted works are also audiences of far more than
they create, considering yourself a creator first gives you a certain
perspective. For most creative works I am only an audience or fan,
and it is only with software and a few amateur articles like this one
where I am an author.
To put food on the table I am
an independent software author, and Internet consultant. When I say
independent, I mean independent of the big names in the software
industry such as Apple, Adobe, and other members of the Business
Software Alliance. I consider these companies to be
business competitors and political opponents.
The largest growing part of
the software sector, and which most threatens the legacy business
models of BSA members, is the Free/Libre and Open Source
Software (FLOSS) movement. I joined this multi-sectoral
movement, which includes but is not limited to commercial software
companies, in the early 1990's. Most of the policies promoted by the
BSA since the mid 1990's have been aimed at stopping or reducing the
growth of this movement. The two most active policies are software
patents and legal protection for technical measures.
While I consider copyright
infringement important, I don't consider that to be my greatest
threat. Before copyright can protect me, computer owners need to be
able to make their own software choices so that they are allowed to
choose my software. The policies of the BSA are aimed at reducing
software choice, ironic given they were behind an Astroturf campaign
they titled the Initiative for Software Choice. A prominent member
of our community launched a counter-campaign called Sincere Choice.
We can ignore software patents
for the moment as that is separate from the Copyright debate. In the
copyright debate the tool of choice is an abuse of technical
measures. The claim is that their use will reduce copyright
infringement, a claim that anyone with computer security knowledge
will disagree with.
What these misapplied
technologies offer is a subversive protection of contracting terms
that create dependencies on technology intermediaries. A few BSA
members are playing a game of Russian Roulette where the winner takes
all, and is able to control though misapplied technological
protection measures the keys to the technology which forms the means
of production in the new economy.
The reason I insist so
strongly that any legal protection for technological measures not be
in Copyright is because, if these contracting terms were exposed as
being contracting terms, then regulators and the courts would be able
to far more easily minimize the worst harm.
Obvious allies
Independent software authors
have obvious allies with other independent software authors. There
is the Open Source
Initiative, the Free
Software Foundation and the Linux
Foundation in the US, and various software user/developer
groups in Canada such as CLUE:
Canada's Association for Open Source.
If you look at the membership
for the Linux Foundation and the BSA, you may notice there are
overlapping companies between who I consider to be my most obvious
opponents and allies. This is not only true within these
associations, but within individual companies. I've observed
informal policy debates between employees of IBM, with these
different employees being as far as two individuals can be from each
other on key areas of technology policy.
This means that it isn't as
simple to assume that just because someone works for a specific
company that they hold a certain view. You can comment on the
overall policies of a company or association, without it necessarily
reflecting the views of any specific individual. This has also been
my experience with many of the business associations, creator groups
and unions. I have met many people who are members of The Writers
Union that strongly oppose the political views expressed by the
executive of that union, or Access Copyright, both which claim these
individuals as supporters.
Non-technical
allies
Outside of the software
sector, there are many lawyers who have helped protect the checks and
balances in the application of law in the all too often misunderstood
scenarios that involve digital technology. The Electronic Freedom Foundation
was founded in 1990 to help with a series of oddball court cases at
the time, and has been at the forefront of protecting human rights in
relation to digital technologies. In Canada we have the Canadian Internet Policy and
Public Interest Clinic, and individual technology law
professors like Michael
Geist.
There are other people not
primarily in a technical profession that have been allies, including
many that exist in other non-software copyright holding sectors.
Allies who act like
opponents
The most confusing aspect of
the debate has been sitting on the opposite side of the debate as
fellow creators. Most often the disagreement is not about the
ultimate goal of protecting the material and moral interests of
creators, but whether a specific policy being debated will help or
hinder that goal.
It is often the case that the
person I am claimed to be an opponent of is unaware that I am on
their side, and thinks that if I disagree with a policy that someone
has falsely claimed will help them, then I am somehow opposed to
their goals.
If you are put in a situation
to "debate" copyright with a fellow creator, they will be
focused on a higher-level "we deserve to be paid". You
need to make clear that you agree with them at that level, but do not
believe that the policy put before us agrees with that goal. This
will be hard as many individual creators are members of associations
whose executives are promoting specific harmful policies, and have
all too often become allied with the BSA and their "stronger
copyright is better copyright" misdirection.
It is important that we
disagree with the harmful policies, and not think that everyone who
is pushing harmful policies is an opponent. Think of them as someone
with a different understanding of technology and/or economics, and
the disagreement as an opportunity to have some great and hopefully
fruitful conversations.
Dying industries who
are the most aggressive opponents
There is a transition
happening in the music sector that demonstrates a critical dynamic. While music fans tend to think of the music industry as one happy
family, this can't be much further from the truth.
What is currently happening
started back a little over a hundred years ago when the music
industry was composers, performers were considered trained monkeys,
and anyone making recordings (player pianos, talking machines) were
considered pirates.
Governments legalized the
activity of recording, and performers and the makers of sound
recordings were given their own copyright called Neighbouring Rights. This means that there are 3 copyright holding groups in music. In
many countries composers weren't given any choice at all, and were
subject to a compulsory license where anyone could perform and record
their music without permission, only payment at a government set
rate.
The equipment to record was expensive, so the
recording labels quickly became a specialized banking sector to fund
the massive up-front capital costs to record and distribute
recordings. For their participation they took the lions share of the
revenues from the sales of recorded music, with musicians making only
a few pennies on the dollar.
Technology changed, as
it always does, and the equipment to record and distribute is getting
cheaper by the day. Musicians are increasingly realizing that they
can keep the copyright on their own recordings, and keep the majority
of the revenues. They can then hire the services of others for
promotion/etc, just like they would hire an accountant do to their
taxes. These jobs are not disappearing, they are just no longer jobs
at organizations calling themselves recording labels.
What this means is that the
labels are no longer necessary for an ever growing number of
musicians. The major labels are observing a decline in the portion
of the music industry that they participate in, and many are
struggling to survive. This decline is largely about competition,
even while they falsely claim it is about copyright The statistical
models they use to claim harm do not differentiate between
competition and infringement.
The major labels have allied
themselves with other old-economy entities who claim to be able to
help. Some of the members of the BSA have claimed they have this
"magic potion" that would reverse the trend in the music
industry such that musicians remain dependant on the labels.
This
magic potion is more commonly referred to as "technical
protection measures" (TPMs), or DRM. Those of us in the
independent software industry know this magic potion is actually
poison, but the major labels and most other groups claiming to
represent creators aren't listening.
This technology
protects a software and/or hardware platform in between copyright
holders and audiences. In the end this technology benefits the owners
of the platform, and creates a dependency on the platform for both
copyright holders and audiences wanting to reach each other. As they
grow, these these platform providers will have less of a need for
labels than musicians do since they act as intermediary directly
between musicians and music fans.
The BSA members
are using the labels as their public face to the political process,
just as the labels have always used specific famous musicians as
their public face. Michael Geist has suggested that the major
labels are behind the latest
Astroturf campaign, and from what I have seen I suspect
this is true.
No matter which outcome we see
in the copyright debate, recording labels will never again have the
prominence they did in the 1980's and 1990's. This is true now, and
would be true even if not a single song copyright had ever been
infringed. There really is nothing that can be done to help the
labels that won't greatly harm the interests of creators in return.
While the major labels have no
future, the future of composers and performers is uncertain. If the
people working at the labels focused on the interests of musicians,
they would be putting forward policies which would protect those
interests rather than wasting energy trying to save the the labels. It is important that we try to speak with individuals who
traditionally worked at the labels, and who really believe in the
music industry. If we can get them to focus on musicians rather than
labels, they can become allies of the future of music rather than
opponents. Do not presume they are pushing the policies they are
because they want to take money out of the pockets of creators --
many will believe that the policies they are promoting will help the
music industry.
Those of us in the technology
community need to make as many alliances with other creators as
possible. Our future in our competitive and political battles is
intimately linked with these non-software creators. We need to turn
people who at first glance appear to be opponents into being the
allies they should always have been.
---
Russell McOrmond is a self employed consultant,
policy coordinator for CLUE:
Canada's Association for Free/Libre and Open Source Software,
co-coordinator for Getting Open Source Logic INto Governments (GOSLING),
and host for Digital
Copyright Canada.
