Listening to the other side of the Copyright Wars

I had a similar feeling to reading one of Mr. Sookman's articles when listening to the September 19 episode of This Week in Law which included professor Douglas Lichtman as a guest. These are people where I strongly disagree with what they are often saying, but don't think of them as disagreeable people. It is as if Mr. Sookman and Lichman are nice people who simply live in a different world as their experiences are very different from my own.

There are areas where Mr. Lichman and I agree. Near the end of the show (1h 39mins) Mr. Lichman spoke about patent law and the fact that it is enormously broken. As his top priority he spoke about how the patent office is out-gunned by those filing for patents, and that the date of filing is far too early to make any judgments about a patent. He suggested that we need to stop deferring to the patent office by ending the presumption of validity when a patent becomes part of a court case.

While we seem to agree on patent law, we appear to disagree both on the importance of patent law compared to copyright law as well as many of the issues within copyright law. The impact of copyright law on our lives has been radically changed by the availability of communications technology by the general public. While copyright previously only regulated commercial interactions between commercial entities, it has now become a regulation of activities carried out by every day citizens.

Mr Lichman spoke about the key problem with this, which is credibility of the law. If the general public looses respect for one type of law, then this can greatly harm civic order by causing people to question the validity or nature of other laws as well. It is for this reason that I believe we need to prioritize fixing copyright law over fixing patent law, especially when it comes to regulations of personal/private activities (time, space, format, device shifting as one example). While patent law seems intent on bleeding into non-commercial activities (IE: information/mental process patents and personal uses of "patented" software), this is not yet at the same problem level as copyright law.

I believe it is useful to start at the pillar upon which much of Mr. Lichman's story that is sympathetic to the content industry. In the context of making content available to consumers in ways that they want, he suggest that there was no evidence that the industry wasn't going to move that way themselves. He even went as far as to suggest that it was the technology that was lagging, rather than the content industry. He seems to suggest that all the problems in the industry are someone else's fault, whether it be technology providers or consumers not willing to give them money. If a potential customer doesn't like what the content copyright holders are offering, and in the narrow format that the content copyright holders are offering, then that is the customers fault.

This is a rewriting of history that I doubt many could say out loud without giggling. Time and time again it technology moving forward, and the incumbent industries fighting against the very existence of the new technology. If they can't get the technology outlawed entirely they will then try to extract value from the technology that they don't deserve.

We only need to look to the discussions in Canada about putting a levy on communications technology to hand to major copyright holders and associations/collectives/etc. Technology providers are offering content creators new technology which lowers the costs of production and distribution, and makes entirely new markets available to them through technology in the hands of audiences. It seems obvious to me that if there should be a revenue stream between these sectors that it should be from content providers to the technology companies, and yet the content providers feel that the technology companies owe them even more than they are being offered already.

Content companies do not see things this way. While the major motion picture studios tried to outlaw the VCR, they now make approximately (depending on whose statistics you believe) about half their money on the home theater market. This is new money they wouldn't have otherwise received, with box office sales still very high.

Anyone reading my articles can tell that my experience with the majors in the content industry has been quite negative. There is content that I want to access and pay for, but very little has been made available to me. Mr. Lichtman spoke about "low hanging fruit" when speaking about the obligations he feels that YouTube should have to filter content, but I believe it is the low hanging fruit being ignored by the content industry that we should be focusing on. They should be concentrating on people like me who have money that we want to pay to creative people, but where the content isn't being offered to us in a format worthy of being paid for.

Here in Canada Television viewers can't even access Hulu which offers a limited choice of television shows on-demand. I would be happy to pay for this type of on-demand service (presuming it is DRM-free. I haven't seen it yet), but it is simply not available to me. Television copyright holders have realistically only offered me a few choices: watch on legacy television (in the limited situations that works at all), don't access the content, or infringe copyright. While my choice is to not access content in most cases, I understand why some people feel forced by copyright holders to infringe.

I find the situation is a bit better for music, as long as you are comfortable not bothering with major label music. I am a subscriber to eMusic which gives me a 40 song bundle and an audio book for about $10US each per month. I find it interesting when CRIA lobbiests fail to acknowledge eMusic given it is their choice that the major foreign labels that CRIA represents are not receiving any of that money. It was these foreign labels and not audiences that chose not to make that music available through eMusic.

That's money they are simply not interested in, and they should not be allowed to claim that the lost sales that are due to their own bad choices are because of "infringement". (For the Audio Book story, see past article: Little Brother Audio book: Audible vs eMusic vs Zipidee)

I fundamentally believe that if technology (or anything else) is locked that it must be the owner, and not any third party, that holds and/or manages the keys. I consider mandating that someone else hold the keys, and that the owner be locked out and treated as a thief, to be immoral. I hope that some day in the future that this will also be illegal. (See: Protecting property rights in a digital world)

I also believe it should be audiences, and not copyright holders, that should be enabled to chose what technology audiences use. We should not be passing laws that allow copyright holders to dictate technology brands, but should instead be passing laws to carve device and format shifting out of copyright (IE: to clearly be unregulated by copyright).

This is unfortunately not the world we live in, and a lot of content is deliberately made incompatible with a wider variety of technology. For those of us who have chosen technology that protects the rights of its owners, there are even fewer options than the limited availability of content to other Canadians.

If a copyright holder wants my money then they need to encode their content in an open and interoperable file format. I wouldn't need to be making "unauthorized" copies if they would clearly authorize the copies that I need to make in order to make the content valuable enough to be purchased.

At about the 49 minute mark, Mr Lichtman said that, "commercial-ness is not about whether you make money, but about commercial impact". This was in the context of a discussion of whether the fact someone infringes for non-commercial purposes should be treated the same as if someone were infringing copyright commercially.

This is an amusing view to take given the wide variety of studies that discuss the commercial impact (and most often lack of negative impact) of things such as unauthorized P2P filesharing. Copyright holders lobbied for statutory damages partly on the recognition than infringement doesn't necessarily have a measurable negative commercial impact, and that in some cases (and I consider music filesharing to be an example) that the infringement has an overall positive commercial impact.

These are statistics that will be very hard to get agreement on. The major label recording industry still takes all declines in revenue over the last decade and attributes the impact to infringement, pretending that no other changes have happened in the last decade. When I look at this from another angle, and look at all the changes to the marketplace over the last decade, it looks like the major label recording industry would be seeing a similar or worse decline in revenue even if there wasn't a single infringement.

I think you can get the flavor of the conversation from this. Mr. Lichman referenced Mr. Patry's book (1h 29min) as being very negative towards the industry. It may help in putting Mr. Patry's book in context by listening to and reading some of the opposing viewpoints, and see whose ideas your own experience might confirm.

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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.