Copyfight Fatigue: My Proposal to End a Polarizing Debate

It's because of home taping that we no longer have music. Let's not make the same mistake with books. (Photo by Martin Conway)

This Week in Copyright

This week is the all copyright, file-sharing, DRM week from hell with a sick kitty thrown in (not literally thrown in, ‘course) for good measure.

On Thursday the Canadian Government is set to introduce a new bill that will seek to address and update our copyright law.

Then on Friday I’ll be interviewing Cory Doctorow via skype from Toronto where he’ll be touring his new book, For the Win.

Then on Saturday I’ll be skyping in to Bookcamp Halifax to present a session called Simplicity and Control: Digital Potential Beyond DRM.

So, it’s a watershed week where we determine whether law, behavior and the digital landscape can coexist without litigation and acrimony.

Smart money says not a fricking chance.

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Photo by William Soo.

First Things First.

We’re going to get a new copyright bill in Canada one way or another and really, why not? Let’s just get it done and move on.

There’s been a lot of windmill jousting on all sides of the debate – thank god that analogy is in the public domain! – and I agree that it’s time for our elected representatives to put up or shut up on this.

It’s not a stretch to suggest that a lot of the pressure for this new bill to be introduced in Canada is coming from foreign politicians and from companies who desire to have their content and oil-based distribution chains protected from digital incursion.

That does not make these companies or the politicians “evil”: it makes them companies and politicians.

It is what it is.

The new bill is certainly not being put forward after a deafening hew and cry from creators in this country, though admittedly most will welcome it if only to know where they stand.

And, of course, everybody needs money: countries need money, political parties need money, creators need money, executives need money, we all need money.

I think that it’s obvious that companies with huge amounts of money invested in licensed creativity, content, product, etc… will naturally try to exert as much pressure as possible in order to protect and monetize their assets to their maximum ability.  Many of the creators in their ‘stable’ expect no less.

All of this is understood just as it’s understood that ability and willingness to change and adapt to new business models is very very low on the priority list.

Politicians want to stay in office and donations help to fund election campaigns.  Investments, locally or federally, from big companies or other countries help to make our politicians look good, to grease the economic gears, maybe create some jobs.

These kinds of influences and relationships have occurred since before the invention of fire.

Content creators/licensees want to protect their abilities to maximize their return on investment.  Politicians want to stay in power and also want to be able to fund their next election campaign.

Those are some of the fundamentals.

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Photo by Kate Black.

P2P Filesharing & Bit Torrent: A Digital Apocalypse or a Huge Opportunity?

The problem is this: creative content is worth something to the creator, the licensee, the fan and everyone else in the ecosystem that facilitates taking the product from creator’s mind to audience.

Digital innovations have created an opportunity for files – potentially carrying creative work whose copyright provisions do not allow for any kind of non-monetized electronic dissemination – to be transmitted quickly and efficiently all over the world.

P2P File Sharing Networks and Bit Torrent technologies are the most efficient distribution system we have invented for getting information – digital files containing anything from scans of a shopping list, to Shakespeare’s sonnets, to a photo of your mom in front of the Louvre, to leaks of patent pending inventions, published unpublished and unpublishable novels, songs, your wedding photographs, etc… – from one computer to other computers quickly and practically instantaneously.

Fortunately or unfortunately these tools for sharing files and data don’t care what those shared files contain.  To them it’s all just information to be transferred.

Hurt Locker or Ishtar are the equivalent of Lady Gaga, a photo of a llama, episode 3 of Rock of Love Season 2, an excel file, a scan of a Mark Danielewski novel, Twilight, whatever. It all has the same basic value.

That value is zero.

* (The zero value is based on the file itself – infinitely replicable and basically indistinct for others – and not the work that went into what the file contains. The value of creation, editorial, design, etc… is invaluable. Unfortunately, these super efficient distribution tools are not designed to monetize in a way that we traditionally link to these kinds of exchanges.)

If you wrap your digital content in a protective layer – DRM – it is easily hacked open and shared regardless.

Even though there no evidence to support the notion that downloading digital content from P2P sites equals a lost sale or in any way negatively impacts revenues for content creators or licensees that does not prevent the appearance of a general assumption that something has been lost, taken, stolen or pirated that should have been rightfully monetized.

As though the 100,000 people (random figure, possibly too low) who have downloaded and watched Iron Man 2 from a practically infinite number of torrent sites around the world would have otherwise paid money to see that movie.

Surely there’s at least a ghost of logic to that statement, right? But can we monetize based on the ghosts of logic?

Probably not.

So… to distill it down to an essence: people are experiencing kinds of content all over the world for free.  This content is being acquired via P2P file sharing sites and is being seeded and further leeched by others around the world via an impossible to track bit of perfectly legal software called Bit Torrent.

Though this content is being experienced and shared by many more people than would otherwise have experienced and shared it previously this is a problem because there’s a perceived loss of revenue attached to this file sharing behavior.

The monopolized traditional distribution chain has been subverted and the digital efficiencies are built on the same logic that brought us the “genius” of the Amazon personalized algorhythm and effectively destroyed north American independent bookstore culture but is now wreaking havoc a little further up the food chain.

Rather than see this technological development as an opportunity to develop new ways of communicating, collaborating, community building and discovering new markets through innovation and imagination our government has decided that we need to legislate protections around ineffectual digital locks.

Digital locks that even the very politicians in our ruling minority federal government admit they broken many times in the average use of their iPods and PVRs.

Digital locks that have never worked, that don’t work even for well-meaning citizens but that will potentially criminalize them regardless.

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Photo by Ben Heine.

My Proposal to End the Copyright Debate:

Like most of my favorite ideas this one is overly simplistic, possibly idealistic and probably impossible.

But here goes:

Copyright holders should lock up their content to the maximum limit if they want to.This is not mandatory, it is a conscious choice.

If copyright holders want to deprive their readers of the ability to widely share the content that they purchased or to transfer the same content between devices or whatever, that is their right.

And if the readership doesn’t like it, well then they can choose from some of the super-abundant alternative content available that doesn’t possess those same law bound restrictions.

Lock it up and throw away the key, maximize that revenue. It’s what copyright is all about, right?

The locks on this content should also not be broken and the content should not be shared on the P2P sites.

Just let it sell from the standard online channels.  Peddle it from websites and Amazon and iBooks, wherever.

If, however, you understand and are excited by the potential of these P2P sites for all of the digital benefits that they possess and you’re inclined to use other technologies like POD, paypal, skype, social media platforms, mixing tools, Adobe/Apple content creation software to augment your own stories, products or non-fiction writing then you should make that known and freely embrace the potential.

The traditional methods – paper books, vinyl records, prints, dvds, etc… – will continue to support, augment and quantify the work.

That’s it.  It’s that simple.

By taking control of the means of dissemination to build your audience, to collaborate and cross-pollinate media, to explore potentials for new markets and to reach those markets with real product you control your ability to do some really original work and to find ways to get paid that your audience agrees with.

So, pass a law if you want to. But it won’t take long before it becomes insignificant and/or irrelevant as the true creators of the present and the future go to the places that give them the maximum freedom to create and collaborate with the maximum audience and influences.

Taking ‘copyrighted’ content away from the networks won’t stop that it will only serve to create a whole other self-sustaining market based on concepts of creation, sharing, remixing that are outside our common notion of copyright.

And that’s ok.

There is nothing wrong with the traditional model and how it has helped create our current notion of what copyright is and how we should protect it.

But that notion of copyright no longer has exclusive rights to reality.

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  • http://tkbr.ccsp.sfu.ca/ John Maxwell

    Sean, it occurs to me that if I had billion$ invested in the good old copyright-maximalist way of doing business, I would not welcome the development of a parallel system that operated on participatory, free-culture rules. It might take mind-/market-share away from mine. So I’d be willing to invest lobbying and litigation monies in discouraging it.

    Witness what happened with Internet radio in the last decade — established interests crippled emerging markets who were in a position to do business according to a different set of constraints. It wasn’t about money per se; rather about control of markets and audiences.

    So I’m not sure a “non-exclusive” arrangement like you’re suggesting is quite realistic.

    Yes? No?

    • http://www.booksontheradio.ca Sean Cranbury

      Absolutely, you’re right.

      What I am saying – and I know that I wasn’t clear about this in the piece because it kept coming at me from the myriad angles – is that I think that the writing is on the wall for copyright as we know it.

      And that is fine.

      The simple truth is that copyright is a contractual agreement that becomes legally binding. It is not a law in and of itself.

      New behaviors call for new rules call for new agreements. You cannot legislate behavior so this is where the people with the billions figure out how to keep Ursula Le Guin happy and probably drive her stories toward new media revival while cutting new deals with new creatives that take these digital realities into effect.

      The creators have the power, the barrier to entry is effectively open to all kinds of new models and venture capital looks for innovation not blithe adherence to old models so the money for investment will be there.

      The new copyright bill can criminalize breaking locks all it wants but if the new rules say those locks are really unnecessary then what’s the difference?

  • http://hurpublishing.com Kathleen

    Thought provoking! The copyright debate seems unlikely to come any closer to resolution with this latest bill–especially since the last two such bills in Canada died on the table.

    In the first part of your argument you point out the key problem: the value of content is unrelated to the value of its delivery medium. We are accustomed to this concept already: the same book has a different value as mass market, trade paperback, and hardcover. What’s new is that the value of digital media is zero. It’s convenient for publishers to inflate the cost of the medium to cover the cost of the content, but that only works if the medium can only be accessed through the publisher. Movie studies have begun to combat this with 3D films, but trying to stay one step ahead of technology doesn’t work forever. Digital locks are even less effective, as you point out.

    I think what’s missing is that current copyright legislation already provides creators with the freedoms you suggest here. Traditional licensing does not, and it’s influenced by business models, not government. Although it’s pointless for laws to protect DRM, and copyright law is in serious need of reform (if only because current laws require victims of copyright infringement to prove downstream use, and this infringes on the privacy of those downstream users), copyright does not always imply DRM or even restriction of use. Those who have creative commons licenses or GPLs on their work still own the copyright, and it’s copyright ownership that gives creators the right to share–or lock up–content to their heart’s desire.

    So as I see it, there are two issues at hand. The first is best digital licensing practices, which will change to reflect business models, and business models need to change (at the behest of content creators and publishers) to reflect technology. The second issue is copyright, which I think will change in the courts. In the meantime, those of us on the producing/disseminating end of content need to figure out new ways to monetize it, like author speaking engagements or workshops and books as art objects that appeal to collectors. More importantly, we need to realize that the attitudes and behaviour of end users are not likely to change to reflect corporate interests.

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