Copyright Has Stretched So Far That It Has Broken

from the not-what-it-was-meant-for dept

The Cato Institute is running a series of articles on "The Future of Copyright," a subject that the think tank has been discussing for a while now. The first piece in the series, by Rasmus Fleischer, is an absolutely fantastic read, detailing all of the reasons why those pushing for stronger copyright laws are doing so, and why copyright itself is being stretched way beyond its initial purpose. He goes over the history of copyright, and how it was really initially only intended to protect printed works, but as that coverage has expanded over the centuries, you run into some really awkward scenarios where this square peg no longer comes close to fitting into the round hole:

This change has taken place because previously distinct media are now simulated within the singular medium of the Internet, and copyright law simply seems unable to cope with it. Consider radio broadcasting and record shops, which once were inherently different. Their online counterparts are known respectively as "streaming" and "downloading," but the distinction is ultimately artificial, since the same data transfer takes place in each. The only essential difference lies in how the software is configured at the receiving end. If the software saves the music as a file for later use, it's called a "download." If the software immediately sends the music to the loudspeakers, it's called "streaming."

However, the receiver can always choose to transform a stream to a digital file. It's simple, legal, and not very different from home taping. What now fills the record industry with fear is the possibility that users could "automatically identify and separate individual tracks from digital transmissions and store them for future playback in any order." In other words, they fear that the distinction between streaming and downloading will be exposed as a big fake.

For example, Swedish company Chilirec provides a rapidly growing free online service assisting users in ripping digital audio streams. After choosing among hundreds of radio stations, you will soon have access to thousands of MP3 files in an online depository, neatly sorted and correctly tagged, available for download. The interface and functionality could be easily confused with a peer-to-peer application like Limewire. You connect, you get MP3s for free, and no one pays a penny to any rights holder. But it is fully legal, as all Chilirec does is automate a process that anyone could do manually.

So, what happens? Well, the entertainment industry that's focused on protecting its old and increasingly obsolete business model, keeps pushing for new legislation that tries to force that square peg into that round hole -- and each time, the new legislation just makes things worse. So they push for more legislation, that just makes things even worse again.

This domino effect captures the essence of copyright maximalism: Every broken regulation brings a cry for at least one new regulation even more sweepingly worded than the last. Copyright law in the 21st century tends to be less concerned about concrete cases of infringement, and more about criminalizing entire technologies because of their potential uses. This development undermines the freedom of choice that Creative Commons licenses are meant to realize. It will also have seriously chilling effects on innovation, as the legal status of new technologies will always be uncertain under ever more invasive rules.

But the situation is only going to get worse for entertainment companies that don't learn to embrace the changing market. Every attempt to legislate things back to the past will only fail -- and that failure will become even more and more profound as you follow the rather obvious trendlines of technology:

One early darknet has been termed the "sneakernet": walking by foot to your friend carrying video cassettes or floppy discs. Nor is the sneakernet purely a technology of the past. The capacity of portable storage devices is increasing exponentially, much faster than Internet bandwidth, according to a principle known as "Kryder's Law." The information in our pockets yesterday was measured in megabytes, today in gigabytes, tomorrow in terabytes and in a few years probably in petabytes (an incredible amount of data). Within 10-15 years a cheap pocket-size media player will probably be able to store all recorded music that has ever been released -- ready for direct copying to another person's device.

In other words: The sneakernet will come back if needed. "I believe this is a 'wild card' that most people in the music industry are not seeing at all," writes Swedish filesharing researcher Daniel Johansson. "When music fans can say, 'I have all the music from 1950-2010, do you want a copy?' -- what kind of business models will be viable in such a reality?"

So as the industry tries to fight this, it just keeps focusing on more and more draconian laws, that do an awful (and I do mean awful) lot more than just strengthen copyright. They chill innovation, outlaw important and useful technologies and remove important civil liberties:

Yet in the name of ISP responsibility, virtually any Internet user might be called to account by the recording industry. Here's why: In discussions about so-called ISP responsibility, it is crucial to remember that big telecom companies are far from the only existing "operators of electronic communications networks and services." This is the actual definition of an ISP, used within the European Union bureaucracy, but by this definition, you may be one, too. The U.S. Digital Millennium Copyright Act is equally vague: It defines a "service provider" as a "provider of online services or network access, or the operator of facilities therefor," leading many to wonder whether libraries, employers, or private individuals operating routers might also qualify as ISPs.

Given such a broad definition, any company or person sharing connectivity, as well as anyone hosting a blog or a web forum, could, in the name of "ISP responsibility," be obligated to register the identities of users and to deliver them to copyright enforcers on request. The range of possible abuses is enormous. Attempts to save an already broken policy will mean an ever more absurd sequence of follow-up regulations.

There's plenty more beyond those snippets here that make the entire piece worth reading. I'm looking forward to additional pieces in the series as well.