Copyright Isn't Distribution

First off, I want to state that I respect the rights of copyright holders. People and businesses that create unique and new things completely deserve the right to monetize them exclusively. That said, I also believe in listening to your customers; if customers find it too difficult to obtain and/or consume your products, you should figure out how to make that easier. That's a distribution problem, not a legal one.

One way copyright holders try to curb unlimited copying of products and thus retain control of distribution is via Digital Rights Management (DRM). However, DRM usage is often in direct contradiction to how users consume media.

Why? How?

• I cannot lend files to others. I came of age in the 80s. I constantly lent and borrowed books and music from my friends. If I really liked something, I'd buy it. But with DRM-encumbered media, I can't do this. If my wife buys an ebook from [major book seller] to read on her [major e-reader brand], likes it, and wants me to read it, in most cases I have to re-purchase the book. The same applies to music. To me, this is a step backwards.
• As I said, I have a number of devices: a computer, a laptop, a tablet, an ebook reader, a smartphone. What I have on me is a matter of geography and convenience. I may start reading an ebook on my computer, but later will want to read it on my tablet during lunch, and on my ebook reader when in bed. However, most forms of DRM don't allow this sort of device shifting — especially if the devices are from different manufacturers. Those that do often have limits on how many devices may be "authorized" at any given time, or how many may access the media at any given time. Most of these schemes require an internet connection — and for those occasions when internet connectivity is unavailable, you're out of luck. Whatever happend to the doctrine of Fair Use?
• Let's be honest, digital storage fails more often than anyone likes to either admit or accept. Back-ups are essential. However, depending on the DRM scheme, this may or may not be acceptable. What happens to the media I purchased 5 years ago? What if it's no longer readable — do I need to re-purchase? Back in the day, I'd have made a few copies of an album, tape, or CD, and if the original was corrupt or destroyed, I'd still be able to listen, without any additional cost. Can I say the same for digital media?

With all these problems, why does DRM exist?

Originally the idea was to ensure that creators and distributors are getting paid for the works they produce — which is reasonable. However, with the ease of copying in the digital age, the idea is also to get paid for every format in which the work is released — the assumption is that if you're using the work on a different device, you must be a different person. This flies in the face of how many consumers actually consume digital media — as I've shown above it's not at all uncommon to have multiple devices from multiple vendors owned by a single person. The assumption that payment is required for each format is an assumption either made out of ignorance or greed. I'd argue that DRM as applied to consumer media — music, books, and video — is used primarily to circumvent the doctrine of Fair Use, plain and simple.

SOPA and PIPA are Censorship Bills

DRM is but one "solution" the entertainment industry has come up with to the "problem" of copying. I put those words in quotes as I think they're dubious at best — DRM is an imperfect solution, and copying may or may not be a real problem; I've read numerous studies that raise doubts on these points.

Another "solution" provided was the Digital Millenium Copyright Act (DMCA) of 1998. This bill basically gave copyright holders the ability to submit takedown notices to websites or Internet Service Providers (ISP) hosting alleged copyrighted materials, giving them a set time period to remove said materials or appeal the notice. The bill has both supporters and opponents, with the opponents arguing that it infringes on the doctrine of fair use, as well as circumvents due process (among other things). One thing it does get right is that it in the case of websites that allow user-submitted content, it does not hold the site responsible for policing submissions. Additionally, if you dispute the takedown notice, there are no provisions to block continued distribution of the allegedly infringing media.

However, the entertainment industry feels the DMCA doesn't go quite far enough, and has convinced legislators to propose a solution more akin to using a sledgehammer to pound a thumbtack.

The bills are called SOPA and PIPA; SOPA is the Stop Online Piracy Act put forward in the US House of Representatives, and PIPA is the "Protect IP Act" put forward in the US Senate. The basic tenets are familiar: protect the rights of US copyright and intellectual property holders.

What's different is the how.

• Unlike the DMCA, a site holding user-submitted content can be held liable for distribution of copyrighted material.
• Instead of takedown notices, court orders would require ISPs, ad networks and payment processors to suspend business with the allegedly infringing site. Additionally, search engines could be barred from displaying links to the site. In fact, any site linking to the site, or even providing instruction or tools on how to access the site, could be potentially considered infringing.
• The kicker is that none of the above requires any notification to the alleged copyright infringer, the bills provide a very, very small window for the alleged copyright infringer to dispute the allegation, and even in the case of a successful dispute, no means to re-coup any damages due to loss of revenue while the injunction was in place. Which could be many days, weeks, or even months. And during that time, you cannot circumvent any measures put in place to bar access to your site or to payment processors and ad agencies.

To my thinking, these bills completely disregard due process, rights provided in the 5th and 14th amendments of the US constitution. On top of that, they disregard the 4th amendment, which guards against unreasonable searches and seizures. Finally due to the fact that the bills would allow takedown of allegedly infringing sites, it opens the door for alleged copyright holders to censor sites with which they do not agree — violating our 1st amendment right to Free Speech. By the time a dispute is resolved, even if overturned, the victim of a takedown may no longer be able to stay in business, or may have lost its audience.

"But wait!" some supporters will say, "These bills apply only to foreign websites!" Sure — but it means (a) that we do not apply our own laws to foreigners, and (b) that we're essentially setting up censorship of foreign websites — in effect, censoring the web for US citizens. Both of these are appalling, and alone are reason enough not to support the bills. On top of this, however, is the fact that the way sites are hosted, particularly in this era of cloud hosting, the line between "foreign" and "domestic" is easily blurred, and the net result is the wholesale circumvention of constitutional rights.

This is not about the tech industry

I heard about these bills because I am an internet and technology professional, and these bills would affect my livlihood. But the bills would not only affect me, but everybody in the United States who uses the internet, and those outside the US who access US sites or have users in the US.

I was very surprised to discover that my misgivings are not about the technical underpinnings of the bills, but the human problems they present. While I'm sympathetic to copyright holders, I also think that existing solutions have a long ways to go towards satisfying Fair Use, and new solutions must be created that do not incur loss of constitutionally granted freedoms. I do not want to live in a world without a free and open internet, and the information and ideas it helps enable.

Call out SOPA and PIPA for what they really are: censorship. Contact your representatives today, and ask them if they plan to support corporate interests by enabling censorship, or if they plan to honor their vows to uphold the constitution.

Call A Spade A Spade was originally published 18 January 2012 on https://mwop.net by Matthew Weier O'Phinney.