Monday, January 23, 2012

On the SOPA box: Copyrights, copylefts, and copywrongs

I don't usually politicize on this blog, it's generally counter productive, but the recent fight in Congress and on the Internet concerning the "SOPA" (Stop Online Piracy Act) law means the tech industry is in the spotlight, and I wanted to make some comments.

SOPA was proposed as the latest law updating copyright for the digital age, a process that really started with the DMCA. The DMCA had good and bad elements to it. The good was that it recognized that there was a distinction between services and users of those services, and it sought to ensure that companies that provided online services weren't penalized because some of their users violated copyright laws. The bad was a somewhat draconian law that made it illegal to "bypass an access control" - put simply, if you make your own DVD or Blu-ray disc player, you can end up in a Federal prison for up to four years. Why? Because DVDs and Blu-ray discs contain an "Access Control" system preventing the discs from being used in any way the studios don't like. In order to play the content, you need to bypass that access control. Which, if you're not authorized, is illegal.

Neither side was entirely happy with the DMCA, with the content industry feeling that it couldn't easily target services that existed specifically to help copyright violators, and the tech industry really not being happy with the "access control" system. The DMCA was also specifically a US law, and the content industry couldn't use it to go after copyright violators outside of the US.

SOPA is an attempt to address the copyright holder's issues with the DMCA. With major Internet infrastructure in the US, including ICANN, SOPA proposed methods to allow copyright holders to cut off access and funds to foreign organizations that promoted copyright abuses. The tech industry had two major problems with SOPA:

  • The law was clearly easy to abuse. While the DMCA had protected websites that in good faith hosted comments by users that violated copyrights, SOPA made it possible to shut down websites with very little oversight. For example, if I were to describe how to get hold of copyrighted material without authorization on, say, the Guardian Newspaper's forums, it would be increasingly easy for copyright holders to have the entire Guardian website removed from the Internet, the more people who posted such material.
  • The law proposed the use of technologies that would undermine Internet reliability. Specifically, the law proposed that DNS and IP routing tables within the US be changed to block foreign websites. These would leave the Internet with competing configurations in different parts of the world, and as businesses attempt to evade blocks, which would be inevitable, these configurations would have a major impact on the Internet's general reliability.
The Internet is not a single entity, and neither is the tech industry. Different entities had different concerns. Many tech titans are sympathetic to copyright holders, being copyright holders themselves, or simply seeing value in the protection copyright provides to content creators. But there's also a strong movement against copyright, at least, in its present form. Opponents of the status quo in copyright argue:
  • Copyright terms seem excessive. Few, if any, businesses plan for a product still paying for itself twenty years into the future, yet the copyright terms applied to, say, the movies released this coming Friday will not expire in your or my lifetime. Even 30 year mortgages are expected to pay for themselves within 20 years! (Compound interest, sayeth Einstein, is the most powerful force in the universe...)
  • Creatives build upon an existing body of creative work, and cannot avoid doing so if they want to create material that reflects and fits within our culture. The prevention of a vibrant public domain is damaging to creative freedom.
  • While many copyright infringers do so to save money, many are simply seeking content not available to them in other ways. In some cases, copyrighted material is too expensive, but in other cases, movies, TV shows, and (to a lesser degree today) music simply cannot be obtained via legal channels in a form the infringer finds suitable, if at all. The movie and TV industries, in particular, are extremely bad at making their content available to buy in the first place.
Because copyright law is going in the wrong direction, with copyright terms extended rather than cut, virtually any law that shores up copyrights will attract increasing opposition. 

My view is this: SOPA is the wrong approach, regardless of whether you believe copyright laws are not lax enough, or strict enough. The law put service providers in an awkward position that would have ended many legitimate online forums. The technical measures proposed by SOPA were colossally
stupid and would have caused massive disruption to the Internet.

The content industry may find it worth looking at the example of the music industry to see where its issues with piracy might be solved. The music industry went back and forth on a number of strategies, many of which were damaging to its reputation, before finally licencing its music to a variety of companies. Right now, you can listen to whatever you want whenever you want by getting a low cost subscription to Rhapsody. Or you can buy individual tracks from Amazon, Google Music, Apple, or a variety of other companies, in a format that will work on virtually any modern digital music player. And the pricing is fairly decent. Music piracy is clearly down - very few people, in my experience, talk about using P2P to download music any more. Online discussions of music almost always lead to links to an MP3 store. While piracy exists, it's very much the exception, not the rule.

Both the music industry and music lovers have benefited from this arrangement. The music industry is now getting more from MP3 sales than it is from sales of CDs - albeit the latter sales are down due to a combination of (now declining) piracy and lack of interest in physical plastic discs.  And music lovers are now finding that virtually anything they're interested in is a click away - if it isn't today, it will be soon, with around twenty million tracks already available.

How does the movie industry, for example, go forward from here? Well, the most obvious is to start cooperating with services like Netflix and Amazon and make as much material available online as possible. Traditionally, even when the movie industry has made content available to online services, those services have had a relatively poor selection available, with DRM making buying content - as opposed to just renting it - fairly undesirable.

Ironically, the industry had a chance to fix this in 2007-2008 when HD DVD and Blu-ray disc were battling it out. HD DVD started, right from the beginning, with a standardized framework that was intended to be the foundation of a standardized online digital downloads system. HD DVD wasn't DRM free, but the standardization it offered was at least was a step in the right direction. Large chunks of the movie industry chose Blu-ray disc instead, believing that BD's stricter DRM meant it was more likely to help fight piracy, and because those studios wouldn't budge, HD DVD went the way of the dinosaur, and piracy continued to blossom.

Ultimately you can't kill piracy, but it's false to argue you can't compete with free. If you sell it, they will buy. If you make content available in a legal form that's easy to obtain, people will use legal means to get it. Nobody wants to scour an obscure forum for hours on end to find a movie or TV show they're interested in, and most of us actually like supporting the content we enjoy.

The legislation we need today is legislation that legitimizes copyright by liberalizing it. And the right approach to killing piracy is to actually sell your content to those who want it.

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