Sunday, February 21, 2010

American copyright law

I recently finished watching an excellent short course on American copyright law (particularly as it relates to technology) given by
Keith Winstein.

It's an introduction to American copyright law and Keith has a great sense of humor as he explains the intricacies of copyright, from historically important copyright cases to the modern DMCA and important technological changes along the way.

Armed with a full 8 hours of lectures on American copyright law I feel abundantly qualified to provide some insights on what's wrong with copyright.

I think the first big problem facing copyright right now is that it's very complex and resolving a conflict in court takes a ludicrously long time (years or longer, particularly if, as often happens for complex cases, appeals go to the supreme court etc.). This means that these cases cost enormous amounts of money to litigate and are often resolved long after technology renders a particular decision moot anyway. Additionally, there is very few legal remedies against a copyright holder for bringing unreasonable copyright claims against someone. This ends up giving a lot of power to large publishers who can afford the time and money for these sorts of cases and could easily lead to unfair settlements simply because a party cannot afford the legal fight. Keith notes that many publishers will decline to allow an author to quote from another source without an agreement from the source publisher, even if the use is obviously fair use, simply because the possible legal consequences are too great. He also mentions from long ago (1996) which had a plan to allow consumers to stream their CDs over the internet to other locations (like listen to your music at work). Before creating the service they got legal advice and were told that it was not likely to be considered infringing. Turns out the courts viewed it differently, which sucks for the investors (although now that I can fit all my CDs on an iPod it's less of an issue). The lack of legal certainty and complex and expensive legal cases means that fair use is much more restricted than it seems in legislation because everyone wants to stay away from possible edge cases and no one wants their business to become embroiled in a copyright case. The murky legal environment impedes innovation. The SCO vs. the world
is probably the clearest example of a (mostly) copyright case that almost everyone agrees has no merit yet has created legal problems for the Linux community for over 7 years.
I'm not sure how you could solve these problems. Copyright cases are expensive partly because copyright law is complicated, it's hard to define exactly what "fair use" means, particular when new, disruptive technologies emerge raising completely new issues (for example, copyright law has a special exemption that loading a computer program into memory does not constitute making a copy for legal purposes). I think it would be hard to make copyright law simple by writing a newer or better version of the law, the issues are inherently complex.

One approach might be to recognise that copyright exists (as defined in the US) to provide an incentive for creators (i.e. writers, movie studios etc.). The US congress has, in the past, changed the copyright law to encourage technological innovation (radio stations get a really good deal for instance, as a historical accident when congress was trying to encourage the development of radio). The problem with the current approach is that congress tries to write a law and then as technologies come along the law is interpreted by the courts, often requiring them to interpret the law for situations the writers could not have possibly predicted (the last major revision the the US copyright act was 1976, things have changed). Instead of using a (hopefully forward-thinking) static law interpreted by the courts, perhaps an agency would be a better approach, like the FCC or the reserve bank that has broad powers to adjust copyright as necessary to both incentivise creators and encourage technological innovation etc. If I had a business idea I can check with the agency if it's an infringing use, if they say it isn't then I can have legal confidence for my investors. It won't happen, but it's my idea. A real world problem would be that copyright laws are already written by lobbyists (with literally billions of dollars at stake) so the agency is likely to stuggle to maintain impartiality.

Some other things that I learned from the course (anything obviously wrong is my mistake, not Keith's). Consumers can get away with a lot because nobody wants to sue individual consumers. In the lawsuits over video tape recorders, MP3 player and more recently online file-sharing, mostly copyright holders want to find a nice, big entity like a company and sue them, it's pretty troublesome to sue individuals (this is why decentralised file sharing is such a big deal). I learned that copyright is "man-made," copyright is not like "Thou shalt not steal." If I make a copy of your song or play your movie in my restaurant this is obviously not the same as breaking into your house and stealing your piano. Copyright was made to promote progress of the arts and sciences and over American history a lot of changes and exceptions have been added to fit that purpose (like radio stations being allowed to play records for a minimal fee). So when copyright holders make out that it's "obviously wrong" to allow a particular technology or use, that claim really needs to be evaluated, it's not necessarily "obviously wrong" in the same way that stealing someone's piano is. Ideally, we should go back to what actions will encourage progress in the arts and sciences, I think that's a really noble reason for copyright.

Other miscellaneous thoughts:

DRM is often being used to stop me doing things that I could probably legally do, lend my movie to you, rent a movie out etc. These things are actually legal uses of a movie.

The "FBI" warning on movies is not by the FBI and actually make claims which are probably not legally enforceable. Maybe the FBI could sue the movie companies for trademark infringement.

As much as we don't like movie studios etc. they are probably somewhat right to be afraid of technology. Almost everyone I know has at some point downloaded a song or movie etc. from Bittorrent or friends. Now, obviously movie companies would help if they had more credible legal online offerings (things like Hulu, Amazon on Demand, iTunes etc.) and priced them better (it's currently nearly half the price for some shows to buy the DVD than on iTunes in Australia). But, at the end of the day, they are competing with a price of 0. That's pretty hard to beat. The should be worried. DRM is misguided and making things worse (now the Bittorrent version of your show is both cheaper and easier to use).

The DMCA is just evil, making it illegal to break DRM won't stop file-sharers (they're already infringing copyright), but it does made it almost impossible to watch movies on Linux legally, criminalise people who make book readers for blind people etc. It's crazy that showing that you used or intented to use your DRM breaking for copyright infringement is not required to make breaking DRM illegal. Legislation cannot fix the fundamental problem that DRM can't work.

MIT open courseware and friends are fantastic. A lot of uni's put up special lectures, but I think the ability to "sit in" on whole courses is great, is a fantastic way to learn a little about a topic. Where is Australia's open courseware? I'd like to do the Ozzie (or commonwealth) version of this course.

[I'm not a lawyer. This post does not constitute legal advice (may God have mercy on your soul if you thought otherwise).]

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