Fixing IP laws, part 3 - Copyright and Technology

Submitted by Philip Storry on

Series links:

Technology - Copyright's Bane and Boon for over a Century

Copyright has had a dependably repeating relationship with technology for over a century now.

The relationship goes like this:

  1. A new innovation comes along, which either makes copyrighted material more easily available or makes it easier to create copyrightable material without expertise
  2. The incumbents, threatened by this, complain like heck
  3. The market (and maybe the incumbents) adapt, and much money is made
  4. Something new is invented, everyone forgets history and goes back to step 1

It happened with the automatic piano player - "Musicians will go bankrupt! Who will learn musical instruments when the machine can play for them?".
It happened with the radio - "Who will pay for records if they can hear them for free?".
It happened (quite famously) with the video cassette recorder - "Who will pay for films when they can record them from the TV?"

And yet - as in each of the cases I mention there - after incumbents predict the death of their industry, they then they embrace the technology and make MUCH money from it.

Note that examples which allowed more creativity - cheaper cinefilm or video cameras, cheaper home recording, cheaper distribution - don't generate such protests. I'll let you figure out why that is yourself - but if you must have a clue, then it is the words "monopoly" and "distribution".

The trend is simple - more of what you want, when you want, for less money

Technology's trend really is as simple as that heading: It helps you get more of what you want, when you want, for less money.

The monopoly holders - large record labels, film companies, software companies - fight innovation by trying not to meet that demand, but instead by either ignoring the technology or putting out expensive, crippled products. Why do you have to sit through an unskippable anti-piracy ad when you watch a film? Wouldn't it be easier and more convenient to - *gasp* - download it?

(Incumbents usually miss the obvious and cripple their own products because they're used to monopolies and therefore don't think about customers first.)

Trying to turn the tide

Despite the historical trend for more volume and convenience at a lower price, some companies try to turn technology to monopoly's advantage - usually by a class of technology known as DRM (Digital Rights Management).

DRM is, in itself, not inherently evil. It can be as simple as a license check on startup.
It can also be incredibly inconvenient - those who remember "dongles" or "key disks" from the early days of computing will have experience of this.

However, recently over-zealous companies have been known to create DRM that is so aggressive and paranoid that it more resembles malware (viruses, trojans, rootkits) that attacks a computer rather than legitimate software. This can cause all kinds of issues, from instability to security problems and worse.

Such bad DRM gives all DRM a bad name, which is a pity as DRM can be done well.

Missing the point

Issues like DRM are, in many ways, missing the point. There is a wealth of evidence that making something available at a reasonable price will remove all but the most determined of illegal copiers.

Those that download music illegally are also those most likely to be buying large amounts of music. Markets that are thought of as bad bets for software have been made successful by pricing for local wages, not Western ones.

Much copyright infringement isn't driven by anything more than not being able to get it easily and legally somewhere. And yet companies insist on refusing to make it available and then being surprised when people find a way to get it anyway.

Convergence

It seems to me that there is some convergence here. Copyright has been stacked in favour of the holder - and increasingly so - for far too long, and the largest of those copyright holders have begun to abuse their customers because of this.

So, my suggestions for re-aligning the relationship between Copyright and Technology are pretty simple:

  • A baseline for DRM - "license check only" - beyond which the customer is legally allowed to bypass DRM
  • Moving Copyright to "use it or lose it" - if a work isn't made available at a fair market price, then copyright lapses and the work moves into the Public Domain

That may not look like much, but I believe that those suggestions are all that's needed to make things fair again.

Baseline DRM

DRM is often much more than a license check - it often attempts to restrict what you can do, and this is often an unfair removal of the customer's rights.

Therefore a "baseline DRM" specification should be as simple as this: A license check which ensures that the copy is legal.
No checking what rights the user has.
No restriction of use.
Just checking that it's a legal copy.

If the work - or the hardware/software used to access it - does more than that, then it is legal to bypass the DRM.

The idea is to push for a position where companies aren't likely to spend money on crap DRM systems that get in the customer's way, because they're legally bypassable. Then these "content companies" can start focusing on content instead of coding. I believe in business it's called a "focus on core strength"...

Use it or lose it

I don't see how a company can complain that people are copying their works illegally when they're not making those works widely available in the first place.

That happens more often than you'd think. Record companies "delete" music, making it unavailable. Some film companies have been known to only make their biggest and most famous works available occasionally, and at a premium.

So let's give copyright a three or five year term in which they have such control, and then ask the question - is it widely available? That means all common formats in the market (e.g. CD and MP3, or DVD and BluRay), and at a reasonable price compared to the prevailing market prices.

If it isn't, then the company loses the copyright. No arguments. No exceptions. Gone.

The idea here, obviously, is to push content companies to make content available. Again, that "focus on core strength" thing...

Summing up

Technology has always allowed copyright holders to make more money, despite their initial protests.

In recent years, attempts to ignore (not make available) or pervert (with DRM) technology have just created illegal markets - so called "piracy". Whenever someone has been brave enough to simply make the content available and without technological strings, profits have followed.

Copyright law should be adjusted to provide the correct incentives to make content available, without onerous technological shackles. If history is any guide, this will generate both profits and happy customers.