Listening to the other side of the Copyright Wars

Last week I promotedWilliam Patry's book, with an obvious suggestion that Iagree with his viewpoint. I will be listeningto him talk this evening in Ottawa (He speaks in Torontotomorrow, October 14'th). We have Canadian examples of people fromthe other side of the Copyright Wars that articulate their viewswell, such as Barry Sookman. Please read WhenCreativity Goes Digital where I critiqued one ofhis articles.

I had a similar feeling toreading one of Mr. Sookman's articles when listening to the September 19 episode ofThis Week in Law which included professorDouglas Lichtman as a guest. These are people where Istrongly disagree with what they are often saying, but don't think ofthem as disagreeable people. It is as if Mr. Sookman and Lichman arenice people who simply live in a different world as their experiencesare 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 enormouslybroken. As his top priority he spoke about how the patent office isout-gunned by those filing for patents, and that the date of filingis far too early to make any judgments about a patent. He suggestedthat we need to stop deferring to the patent office by ending thepresumption of validity when a patent becomes part of a court case.

While we seem to agree onpatent law, we appear to disagree both on the importance of patentlaw compared to copyright law as well as many of the issues withincopyright law. The impact of copyright law on our lives has beenradically changed by the availability of communications technology bythe general public. While copyright previously only regulatedcommercial interactions between commercial entities, it has nowbecome a regulation of activities carried out by every day citizens.

Mr Lichman spoke about the keyproblem with this, which is credibility of the law. If the generalpublic looses respect for one type of law, then this can greatly harmcivic order by causing people to question the validity or nature ofother laws as well. It is for this reason that I believe we need toprioritize fixing copyright law over fixing patent law, especiallywhen it comes to regulations of personal/private activities (time,space, format, device shifting as one example). While patent lawseems 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 copyrightlaw.

I believe it is useful tostart at the pillar upon which much of Mr. Lichman's story that issympathetic to the content industry. In the context of makingcontent available to consumers in ways that they want, he suggestthat there was no evidence that the industry wasn't going to movethat way themselves. He even went as far as to suggest that it wasthe technology that was lagging, rather than the content industry. He seems to suggest that all the problems in the industry are someoneelse's fault, whether it be technology providers or consumers notwilling to give them money. If a potential customer doesn't likewhat the content copyright holders are offering, and in the narrowformat that the content copyright holders are offering, then that isthe customers fault.

This is a rewriting of historythat I doubt many could say out loud without giggling. Time and timeagain it technology moving forward, and the incumbent industriesfighting against the very existence of the new technology. If theycan't get the technology outlawed entirely they will then try toextract value from the technology that they don't deserve.

We only need to look to thediscussions in Canada about putting a levy on communicationstechnology to hand to major copyright holders andassociations/collectives/etc. Technology providers are offeringcontent creators new technology which lowers the costs of productionand distribution, and makes entirely new markets available to themthrough technology in the hands of audiences. It seems obvious tome that if there should be a revenue stream between these sectorsthat it should be from content providers to the technology companies,and yet the content providers feel that the technology companies owethem even more than they are being offered already.

Content companies do not seethings this way. While the major motion picture studios tried tooutlaw the VCR, they now make approximately (depending on whosestatistics you believe) about half their money on the home theatermarket. This is new money they wouldn't have otherwise received,with box office sales still very high.

Anyone reading my articles cantell that my experience with the majors in the content industry hasbeen quite negative. There is content that I want to access and payfor, but very little has been made available to me. Mr. Lichtmanspoke about “low hanging fruit” when speaking about theobligations he feels that YouTube should have to filter content, butI believe it is the low hanging fruit being ignored by the contentindustry that we should be focusing on. They should be concentratingon people like me who have money that we want to pay to creativepeople, but where the content isn't being offered to us in a formatworthy of being paid for.

Here in Canada Televisionviewers can't even access Huluwhich offers a limited choice of television shows on-demand. Iwould be happy to pay for this type of on-demand service (presumingit is DRM-free. I haven't seen it yet), but it is simply notavailable to me. Television copyright holders have realisticallyonly offered me a few choices: watch on legacy television (in thelimited situations that works at all), don't access the content, orinfringe copyright. While my choice is to not access content inmost cases, I understand why some people feel forced by copyrightholders to infringe.

I find the situation is a bitbetter for music, as long as you are comfortable not bothering withmajor label music. I am a subscriber to eMusic whichgives me a 40 song bundle and an audio book for about $10US each permonth. I find it interesting when CRIA lobbiests fail toacknowledge eMusic given it is their choice that the major foreignlabels that CRIA represents are not receiving any of that money. Itwas these foreign labels and not audiences that chose not to makethat music available through eMusic.

That's money they are simplynot interested in, and they should not be allowed to claim that thelost sales that are due to their own bad choices are because of”infringement”. (For the Audio Book story, see pastarticle: LittleBrother Audio book: Audible vs eMusic vs Zipidee)

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

I also believe it should beaudiences, and not copyright holders, that should be enabled to chosewhat technology audiences use. We should not be passing laws thatallow copyright holders to dictate technology brands, but shouldinstead be passing laws to carve device and format shifting out ofcopyright (IE: to clearly be unregulated by copyright).

This is unfortunately not theworld we live in, and a lot of content is deliberately madeincompatible with a wider variety of technology. For those of us whohave chosen technology that protects the rights of its owners, thereare even fewer options than the limited availability of content toother Canadians.

If a copyright holder wants mymoney then they need to encode their content in an open andinteroperable file format. I wouldn't need to be making”unauthorized” copies if they would clearly authorize thecopies that I need to make in order to make the content valuableenough to be purchased.

At about the 49 minute mark,Mr Lichtman said that, “commercial-ness is not about whetheryou make money, but about commercial impact”. This was in thecontext of a discussion of whether the fact someone infringes fornon-commercial purposes should be treated the same as if someone wereinfringing copyright commercially.

This is an amusing view totake given the wide variety of studies that discuss the commercialimpact (and most often lack of negative impact) of things such asunauthorized P2P filesharing. Copyright holders lobbied forstatutory damages partly on the recognition than infringement doesn'tnecessarily have a measurable negative commercial impact, and that insome cases (and I consider music filesharing to be an example) thatthe infringement has an overall positive commercial impact.

These are statistics that willbe very hard to get agreement on. The major label recordingindustry still takes all declines in revenue over the last decade andattributes the impact to infringement, pretending that no otherchanges have happened in the last decade. When I look at this fromanother angle, and look at all the changes to the marketplace overthe last decade, it looks like the major label recording industrywould be seeing a similar or worse decline in revenue even if therewasn't a single infringement.

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

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 DigitalCopyright Canada.

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