Getting right on copyright

I caught a little flak last week from a reader who complained that by including the SoundTaxi music-format converter in a round-up of useful downloads I wrote for the newspaper, I was was advocating the abuse of copyright (to recap: the music you purchase from iTunes comes encoded as m4p  files, which can only be played on your computer or on iPod digital music players; SoundTaxi creates MP3 copies of those files that can be played on generic digital music players).

My response -- Darknet, yada yada yada, peer-to-peer networks vs. broadcast models, and what about Apple's evil monopolistic business practices? -- got nowhere with the guy. His response: "A copyright is a copyright. Until the courts say otherwise. To violate that copyright for personal satisfaction doesn't make it right." Sigh.

Sadly, this is the kind of dumb copyright "debate" that we're having around the country right now, and those of us on the side of the angels are losing.

Not on the merits of our new thinking about intellectual property, perhaps, but on lobbying, on money, on attention. At the very least, we need to pay whatever attention we can right now to several developments with precedent-setting potential.

1. Twenty days ago, the U.S. Copyright Office quietly gave the Recording Industry Association of America (RIAA) a great big dirty present. It enacted regulations that require Internet radio operations to pay royalties to record companies on a prohibitive fee schedule that was -- you guessed it -- written by the RIAA. To give you some sense of the scale, an Internet radio station with an average listenership of 1,000 users would owe $134,000 in royalties for 2007, plus $98,000 in back-fees for 2006. Those rates have only one goal: Shutting down these small operators.
2. The Viacom/YouTube lawsuit. No doubt Viacom has couched its case against YouTube in apocalyptic terms (I'm guilty of the same crime on occasion). But what most observers seem unwilling to acknowledge is that, despite the rhetoric, the Viacom suit is probably little more than a formal step in an ongoing negotiation about the value of this "pirated" content. Google/YouTube has previously offered to pay Viacom for its content, an offer Viacom rejected. One suspects that, with a pricing plan acceptable to Viacom in place, this suit might just go away. But there's one other option. Perhaps the MPAA will push for a trial, driving for a precedent-setting win that could chill its new-media competitors.

To put this in a personal context, my livelihood is based on the value of intellectual content. I'm a writer and new-media content creator. Of course I want to be paid for that work.

But my interests are not the interests of the record and movie industries. And the simple fact is that these industries are attempting to extend copyright law based on 20th century media technologies to cover 21st century media developments. These new media forms have the net effect of threatening the monopolizing power of big media conglomerates.

Which is why the copyright debate isn't competition in a free market, the way libertarians like to imagine it. This is competition in the real world,  the way bacteria colonies do it. Bacteria don't just survive by out-competing rivals for resources, they survive by poisoning potential rivals before they can become threats (as Pam says, "It's all about the microbe"). In other words, this is competition by anti-competitive means, masquerading as a crusade for intellectual property rights, camouflaged as a principled stand on behalf of artists and content creators.

We could rewrite copyright laws in ways that acknowledge both the value of intellectual property and the capabilities of new and emerging technologies. In doing so we could unleash a wave of "Long Tail" creativity that would be good for the U.S. economy, our culture and people in general.

The big problem? The losers in such a system likely would be the Recording Industry Association of America and the Motion Picture Association of America. These people are spending millions of dollars every year to make sure that does not happen.

We're right. But they're funded.

Comments

[Nightwind]

I had to sit back and think a lot about this one, and there is a large gap between how I would like copyright to work and the way it technically, legally does work at the moment. Ranting up a storm about the illogic of current copyright laws is one things, but insisting they say what we want them to say when they don't is in no way constructive.

I occasionally buy music at iTunes, and that encoding crap drives me up the wall. It makes no sense to me why I shouldn't be able to play music that I have legally purchased on whatever player I choose. I own an MP3 player, but it's not an iPod.

As far as I can figure, this guy has the law wrong. If you purchase a CD in the store, ripping it is perfectly legal, so long as it is for personal use. The moment you give a copy to your friend, much less sell it, then it suddenly starts being not legal, but the act of ripping is legal, and there's many legitimate uses for ripped music. (Playing it on MP3 players, creating mixes, etc.)

It is also perfectly legal to burn CDs from iTunes-purchased music. In fact, you can burn them several times (I think they actually state seven). Which means, I would think, that you can legally rip your legally burned CDs of iTunes music. SoundTaxi, by your explanation, sounds like it simply cuts out the CD middleman.

[Pam]

"We're right. But they're funded." Geez, what a great line. I'm sticking this on the door to the lab!

[Daniel]

Part of the exchange (which I didn't post here, but is available on the Friday 5 link) was me pointing out that what this guy thinks is a copyright violation really isn't unless Apple choses to challenge the legality of SoundTaxi in court. Which, so far as I know, hasn't happened.

Which raises the question: Why not? My theory is that Apple doesn't want to file a claim because suddenly all sorts of Apple company information might be gettable in discovery. And I suspect that Apple and the record labels were in collusion to freeze out other digital music player manufacturers while giving the record labels terms that seemed favorable to their interests.

MP3 has no DRM code, so once I've got music in that format I can do all sorts of things with it, including Napster-style piracy. But the act of converting it isn't the same thing as stealing it -- in my case, I'm just taking music that I bought and converting it for use on the digital player of my choosing. That intent should be just as legal as making a mix CD out of it, a use that Apple allows.

Which is why, ultimately, that we need to rock the boat on copyright law. It's not just that it's full of contradictions, it's that those contradictions are anti-competitive and prop-up outdated media models that don't serve the interests of creators or consumers.

The alternative, of course, is that the big companies win this fight, and we go out and build a digital subculture with our own commerce and royalty rules. I can easily see myself dropping out of the media-monopoly realm and going almost exclusively open-source, pod-safe, share-alike.

[DeweyS]

Copyright law may indeed be a mess, but my major problem with the RIAA and other ilk is that they're trying to *extend* copyright law by intimidation and intentional mis-statement.

IANAL but IIRC there *is* court precedent that format conversion for personal use is *perfectly* legal. (The big money of the time didn't want it to be but the courts held that it was.) In fact, *cracking* the copy-protection on AAC files isn't against copyright law -- it's against the DMCA statute (care to guess who sponsored it?)

(If anyone is interested in the precedent I'll dig it up -- it was during the cassette tape era.)

Also, there is the established doctrine of "fair use" which they're trying to trample at every opportunity. They've demonstrated repeatedly that they're not particularly interested in obeying the law themselves.

Incidentally, before the RIAA started buying congress-critters, copyright was also a *civil* matter, not a criminal one.

So, this isn't about right vs. wrong or even about what the law is -- this is about short-sighted money-grubbing. (I call it short sighted because I don't think they're actually engaging in behavior that would yield the *most* money.)

My beef with the RIAA is they're trying muscle when they know they don't have law or precedent on their side.

(Note: I'm not talking about "illegal file sharing" -- that is clearly a violation of copy right though it's not at all clear it actually *harms* them, which was one of the precedents for a copyright judgment, again IIRC).