Modern Technology and the Death of Copyright

Computers, especially with the aid of the Internet, make it especially easy to copy and exchange information. There are some, such as The Free Software Foundation's Richard Stallman, who appear to feel that ease of copying things of value is one of the primary things that makes computers and the Internet valuable to human society.

Basically, the idea is that for a normal material object, if someone takes it from you, then you don't have it anymore. It makes sense then to protect it from theft by laws, and to expect to get paid if someone wants to have it.

But according to the GNU philosophy, if you copy information through an automatic method that requires essentially no material or labor, then the person who has given the information has not lost anything, and in fact greater value is gained, because now two people have the information.

The Free Software Foundation promotes this philosophy in the software world by writing free software - but free as in Freedom, not free as in beer. It means that the software itself has freedom, and that anyone who obtains the software has the freedom to do as they please with it - to copy it, to modify it, even to sell it. But the Free Software Foundation, to promote its cause and ensure its software remains free, uses traditional copyright against the normal way of things, by puttings its software under "Copyleft". Copyleft is a copyright which permits you to modify and redistribute software and its source code as you please, but all the modifications you make, and any code you add to the original, must also be placed under the copyleft. Further, copyleft requires that anyone you give (or sell) the software to also has the right to redistribute and modify it, and they are further required to place any of their modifications under the copyleft.

Some say the GNU General Public License, a particular instance of copyleft, is "viral" in its effect, in that it has the behaviour that it takes proprietary code that touches it and makes it free. I suppose you could say that. I think it's more fair and descriptive to say that the GPL is like a snowball - one can write a small piece of free, GPL'ed software and post it on the net, and over the years others will add to it, and improve it, and more and more free software will be created.

Eventually people will take bits of code from your original work and start new programs from it, or be inspired by what you have done to create new programs of their own, and in the end a huge body of work will be created. And that's exactly what's happened. Witness, for example, the Linux phenomenon, particularly the fact that the entire Linux kernel falls under the GNU General Public License and is readily available for download from the Internet in source code form

Linux has been making a lot of headlines lately, what with the spectacular IPO's of various Linux vendors (do the investors know anyone can download Linux for free from various FTP sites?) The main reason for buying it on a CDROM is for convenience, because the distributions are quite large - but you're free to share the CD with your friends or even copy and resell it.

But over the past few years, the industries that create information content have been seeing the possibilities inherent in free copying of information, and so entertainment industry lobbied congress to pass the Digital Millenium Copyright Act.

The act did more than simply strengthen copyright laws, or bring them in line with international treaties, as was its stated purpose. It further made it a felony to create software or other devices that have the purpose of breaking copy protection. You don't actually have to violate copyright, to actually copy anything to go to prison under this law - you just have to write code that has the effect of unprotecting copy protected software, music or movies.

Here is the source of a huge controversy. The Linux community does not accept software in the Linux kernel which does not fall under the GNU General Public License.

But the new Digital Versatile Disc video format includes an encryption-based viewing restriction system called the Content Scrambling System which is purportedly there to protect DVD's from copying, but is actually designed to prevent DVD disks released in one region of the world from being played in another. That way, viewers in Europe can't purchase DVD's in the US and view them before the movies are released in Europe - and they have to pay the higher prices that movies typically cost in Europe. Similarly, US customers can't watch US or Asian movies before they are released by US distributors.

The motion picture industry requires that manufacturers of DVD players license the method to decrypt the Content Scrambling System, and licensees are required to pay substantial fees and sign very restrictive non-disclosure agreements.

Thus it is not possible to create a DVD playing program for linux which is free software, if you play by the movie industry rules. Why? Because the source code would reveal the way to decrypt the CSS.

The CSS does not actually prevent you from copying a DVD disk. You can copy the data from one DVD disk to a new one very easily. What you will get is a new disk that is still protected by CSS and is still restricted to being played in particular regions. The only thing it does is prevent you from playing it outside of the region where the distributor wants you to play it, and it also prevents you from playing it on operating systems which do not have players for DVD, such as Linux until recently, but there are others.

Recently a 16-year-old computer programmer named Jon Johanssen in Norway cracked the code to the Content Scrambling System and wrote the code necessary to do the decryption part of DVD playing in Linux. If you run Linux, you may wish to learn how to add DVD to your Linux system. What's really got the Motion Picture Association of America's dander up is a tiny program called DeCSS that runs under windows, and simply copies a DVD movie to your hard drive in a decrypted form.

Even though the CSS encryption method is laughably simple and the DeCSS program is mirrored on probably tens of thousands of websites around the world, and probably has been downloaded onto millions of computers, and the Linux DVD source code is readily available, the MPAA sued three people to take their copies of DeCSS off their web sites.

Recently Lewis Kaplan, the judge in the case, issued a preliminary injunction forcing those three people to take DeCSS down from their web sites. But importantly the injunction does not prevent them from linking to other sites where DeCSS may be found.

Most significantly, in my opinion, is that Judge Kaplan held that source code is not free speech protected under the First Amendment to the US Constitution:

As a preliminary matter, it is far from clear that DeCSS is speech protected by the First Amendment. In material respects, it is merely a set of instructions that controls computers.29 Courts that have considered the question whether program code is constitutionally protected expression have divided on the point.30

I strongly feel that it is. If the courts don't hold it to be, then we should do what is necessary to make it so.

Given that the Content Scrambling System doesn't actually protect DVD disks from copying, what does the MPAA hope to achieve with its lawsuit?

Perhaps some light is shed on the matter in Bryan Pfaffenberger's article, Linux and DeCSS: What the MPAA is Really After.

There's not just the DCMA to consider, there's also the Sonny Bono Copyright Extension Act, which extends existing copyrights, even those which were about to expire, for another twenty years, for a total of 95.

Copyright is not a constitutional right. Copyright is something that the constitution gave Congress permission to enact, for a limited period of time, "to promote the useful arts and sciences". The first copyright law enacted at the founding of our country granted copyrights for 14 years. But the Disney Corporation was about to lose its copyright on Mickey Mouse in 2004 - couldn't let that happen. Ka-ching go the campaign donation coffers and copyright is extended for twenty more years.

Eldred v. Reno is a lawsuit protesting that the Bono act is unconstitutional, as it took away the right to use material whose copyright was about to expire from online publishers such as the Eldritch Press that publishes out-of-print public-domain work.

A good discussion of the effect of the Bono Act and the DCMA is to be found in Jesse Walker's article Copy Catfight How intellectual property laws stifle popular culture. It is pointed out that there are many perfectly legitimate and in fact valuable reasons for lifting material from copyrighted work; this has been historically protected as "fair use" for such things as quoting material for reviews, satire, or academic study, but the new laws and the resulting lawsuits aim to suppress even fair use.

I don't think the MPAA, the Business Software Alliance, the Software & Information Industry Association or the Recording Industry Association of America stand a chance. I think copyright of material which can be faithfully copied in digital form is doomed. Laws might remain on the books but for all practical purposes it will cease to exist. What I suggest is that the entertainment and software industries find new means to make money from their work, means which are consisten with free copying.

Consider that a musical recording artist makes only 5-10% of the wholesale cost of a CD when you purchase it. When you buy a CD, the artist is making only 50 cents. But what if the CD were sold online for 50 cents, legitimately and with the rights of the artist respected, and the artist got nearly all of the money?

This is the direction that the recording industry is heading. The big record labels don't want you to know about or hear small groups; that would create too much work for them getting all those different titles out and recording all the different bands. What they want you to hear are the big pop stars. Similarly for the big book sellers like Barnes and Noble, Borders and Crown Books - they don't want to sell books by authors who aren't top sellers.

But freely distributable audio formats such as MP3 are good for small independent artists - like me - who would never be able to sign with a label or get their work played on a radio. Similarly the web is a huge boon to independent authors who want to just speak their minds as I do in this article without having to satisfy an editor who is beholden to a huge corporate media company. Anyone can distribute an MP3 file or publish an article or story on the web.

Independent musicians who publish some MP3's for free will find their music in much more demand in CD's or in live concert.

But the recording industry won't be getting its share. The money will be going directly from the people to the performers, with some small share going to website operators and nightclub owners, but not to record industry executives and distributors. That's what the entertainment industry is afraid of. Don't buy their arguments when they tell you artists are losing out because of MP3 or DeCSS.

What can you do about it?

Well, for one thing, print out this flyer and post it on billboards around town - coffeehouses and bookstores are good. Consider handing it out outside movie theaters. To get it to print out right, when you have the flyer open in the frame, right-click (on Windows) or Control-Click (on a Mac) and choose Open Frame in New Window. Then print the flyer at 75% to get all the text to fit on one page.

Here are some Examples of Excellent Copyright Policies

If you don't believe that copyright on digital information has become effectively meaningless, then I'm afraid you're just not informed. For example, the program Napster, the subject of a recent RIAA lawsuit, is a program that very conveniently allows the exchange of MP3 audio files in an exponentially increasing fashion. If you retrieve a song with napster, then anyone else can get that song from you as long as you're running Napster, and then anyone else can get that song both from you and the person who got it from you.

The RIAA may succeed in its suit to shut Napster down, but it is just the most visible and convenient program for trading MP3's. There are dozens of others.

To find unauthorized commercial software on the web for downloading (or to get serial numbers if you've found a copy without a serial number), just use AltaVista's advanced search and enter the names of a few commercial software products and keywords like "download" and "crack". Click here to try it out. Try entering your own keywords or restricting the search with words such as "Windows" or "MacOS". It takes a little searching to actually find software for downloading, but you don't have to search very long.

Also there are specialized programs that work similarly to Napster for trading unauthorized software. You can search for unauthorized software that may be retrieved with the programs Hotline and Carracho here. With the widespread use of highspeed internet connections such as DSL and cable modems in the home, it is easy for someone who wants to share software to run a software server for a few hours to allow a few downloads and then take the site offline before the authorities can intervene.

I plan to add a guestbook in the near future, but for now please mail comments to crawford@goingware.com

Regards,

Michael D. Crawford