Rather than post a comment in a welcome wagon diary to introduce myself, I figured a better way would be to start on a diary series about issues important to me. Specifically, the “Free Culture” movement – what it is, how it came to be, what it’s doing, and why it’s important.
The Free Culture movement is a rebellion of sorts against copyright. It does not necessarily seek to destroy copyright but, rather, to subvert it and use it to encourage sharing rather than discouraging it. This is, of course, an oversimplification, but should be sufficient for the purposes of this diary, which examines the background of the movement – why it exists and why it’s important for progressives, for those tuning in late.
This diary series is going to make a lot of reference to the works and philosophies of Richard Stallman and Lawrence Lessig.
If you haven’t noticed that copyright’s been becoming more restrictive lately, you’ve either not been involved much in content production/distribution/purchasing and technology issues, or you’ve been, like most people, unaware that there were such issues. This diary’s an attempt to get you up to speed before we jump into bigger movements. I’m going to focus on copyright in the United States here – expanding the discussion even as far as Canada makes things far too complicated.
The first thing that will be of interest to you is ARL’s excellent copyright timeline. It covers all the big milestones in the development of modern copyright law. In the early years, copyright was seen as a utilitiarian thing – an incentive for authors to release their works to the public, to enrich the public life with their content in exchange for a limited-time monopoly on reproduction. Any sort of “natural right” of authors to control their works was explicitly denied, both by the law and the courts. Likewise, the notion that copyrights were somehow property was rejected. Fair use doctrine was also established in this period, and began accumulating a set of circumstances under which it was considered acceptable to violate copyright law. Even then, the seeds of the modern content companies could be seen in the “gentlemanly” price-fixing engaged in by large publishers. America’s copyright law lead to a flood of cheap, high-quality books, seriously damaging the business of these “gentlemen”.
Where things really started going bad was 1976, when the default copyright term was retroactively changed to the life of the author plus 50 years. Not only did the length of copyright terms start leaping upwards, but other things were changed as well. Suddenly, copyright was automatically applied to a work upon its creation, not just upon publication – something that has become a serious problem, and has lead to some speculation among legal minds that it may not be possible for authors to waive the rights granted to them by copyright.
Since then, the rate of increase in scope of copyright laws has been growing. In the 1990s, we saw the Sonny Bono Copyright Extension Act, which extended copyright to the life of the author plus 75 years. In the late 90s, the DMCA and the UCITA were introduced. The DMCA, among many other things, prohibits circumventing “copyright protection technologies”, and makes any device that can be used to circumvent such technologies illegal. The UCITA, a state-level law written by large software companies, was even worse, but many states have since rejected it or passed anti-UCITA measures. Last I checked, only a handful of states, including Virginia and Maryland, have passed the UCITA. The UCITA makes End-User License Agreements legally binding, and effectively outlaws Free Software – but more on that next time!
During this period, we also saw a crackdown on file-sharing services like Napster. Judges ruled – repeatedly – that technologies that allowed for or “supported” copyright violation were illegal, and creators of those technologies could be held liable for violations committed using their technology. This doctrine was even extended to linking to sites that might illegally distribute copyrighted material.
These days, you’re better of running over someone with your car or shoplifting a few hundred dollars of merchandise than committing copyright infringement – fines for a handful of violations can run into the hundreds of thousands of dollars.
In recent years, there has been a trend towards more and more comprehensive and draconian “copyright protection” technologies, the so-called “digital rights management” (DRM) schemes. These technologies not only attempt to prevent illegal reproduction, but also legal “fair use” reproduction. The first few, such as Macrovision, DVD region coding and encryption, and far too many CD-based measures to list here, were broken easily. More recent developments are more daunting. These include “secure data paths” from a computer’s hard disk to its speakers and monitor, to prevent someone from “eavesdropping” on the signal at any point and recording audio or video (or textual!) data that way, and a wide variety of DRM schemes built into Intel’s latest line of processors. Through these measures, publishers have finally found a way to achieve a goal they’ve been seeking for two centuries – elimination of fair use rights.
(As an aside, this inclusion of DRM is, sadly, probably one of the biggest factors behind Apple’s switch to Intel hardware. As you will see next time, once again, Richard M. Stallman Was Right – RMSWR)
These DRM schemes will require increasingly draconian legislation. As any security expert will tell you, hardware in the hands of “the enemy” is impossible to secure. So while this hardware may not be able to prevent copying, it will prevent most forms of casual copying, and allow for content companies to push for laws to punish those who attempt to exercise their fair use rights.
And now we need to take a few more steps back, and examine why these content companies might want to do this. After all, as anyone with even a cursory background in the economics of copying will tell you, fair use copying produces a next to negligible effect on their profits, especially when compared to mass commercial piracy.
The answer is both simple and surprising: it’s all about control of culture. Without control of culture, publishing content is a risky business – its success depends both on the quality of the content (and good quality content is expensive to produce! – copy editing alone has incredible costs) and the acceptability of that content to the culture you’re selling it in. Culture has, historically, tended to be unpredictable – a mutable, organic thing that changes based on the whims of thousands or millions of people. Unknown authors and artists whose work “speaks to people” can become smash hits overnight, and even the biggest superstar can be forgotten instead of becoming a “classic”. And while it was once really expensive to reproduce a work, technology was making it easier and easier to reproduce and distribute works (or parts thereof) every day, which made it easier for these smash hits to come from outside “normal” distribution channels.
In fact, the entire purpose of a digital computer is to copy information trivially – computers are, by their very nature, copyright circumvention devices! Thus, proper enforcement of copyright would require returning to the bargain of the founding fathers – limited, reasonable copyright laws that people want to follow.
Predictably, this gave the people whose job it was to try and predict markets fits.
So instead of trying to produce content that would sell to the market, the content companies came up with an ingenious solution. Mold the culture to fit your product. Control the creation, distribution, and consumption of content, to carefully regulate and guide the development of culture. The earliest examples of this are the manufactured pop sensations that first started appearing in the ’70s. (To my knowledge, they could have been as early as the ’60s) Recently, this has become more and more pronounced – telling people what’s popular is big business!
Of course, the upshot of this is that all copying has to be controlled by the content companies. If I can loan – or, even worse, give! – you a copy of some small work I’ve stumbled across, that throws their entire painstakingly crafted model off. Without that, I’m restricted to just telling you about it, which means you have to do work to find and purchase a copy – which slows or eliminates the propagation of undesirable content. Likewise, the production of technology, and the tools that can be used to produce and distribute it – namely, computers – need to be very tightly controlled.
The extension of copyright terms also helps by decreasing or eliminating the rate at which works move from copyright into the public domain. Historically, the public domain has been a great source of inspiration for authors and artists, as it is a pool of material they are free to learn from and “riff” on. Many of Disney’s most profitable movies, for example, have drawn from it. This is damaging to the culture control business on many levels: it encourages the unauthorized development of new works, allows people to employ the products of a company without paying, creates a pool of cheaply-redistributable works, and so on…
Why this culture control business is bad for progressives should be immediately obvious. These content companies are often owned and operated by the right wing, and have a vested interest in moving culture away from progressive ideas. Many of them also own the same news sources we love to hate, and use them as one more tool in their campaign to reshape culture.
Now we understand the source of the increasingly draconian copyright laws and technology regulation – control of culture. Next time (tomorrow or Friday), we’ll look at the roots (in my opinion) of the Free Culture movement: GNU and the Free Software Foundation.
Today’s Related Reading:
The Right to Read, by Richard Stallman.
Can you Trust your Computer? by Richard Stallman
This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 License.
(Speaking of that, Boo, do you think you could tweak the allowed HTML so people can paste Creative Commons license blocks straight into their diaries? I think you should just need to allow HTML comments and the rel attribute in a tags.)
That wound up being a bit longer than I’d hoped. Oh well. Hopefully, people will still read it. It’s a complicated issue, but an important one.
This kind of diary is why I come here – an excellent well-researched review of a vital issue.
I believe that existing copyright fee collection systems wil never recover from the onset of the endless perfect regeneration of digital files – whether music, text, movies, or in fact anything that can exist as a coded structure. I would be so bold as to suggest there are ultimately NO effective steps that file owners can take to prevent copying. Every single method so far has been hacked.
What is needed is a totally new approach to the protection of creators’ rights in some cases, and, in others, that a new way of rewarding creators (at the moment of creation) is needed.
Think about this: restaurants can’t patent a meal, however creative it is. Restaurants survive by offering something else – service, ambience, taste, pleasure, accessibility. There may be another restaurant serving the same stuff down the street, but the one with better service etc will make a better profit.
For 50 years the record companies have been exploiting music buyers. They deserve to die – and indeed they will, because one of the main functions of the Web is to remove the middleman. Once you have peer-to-peer or creator-to-consumer, you no longer need the middleman. It means the ad agencies, record companies, car dealers and politicians (Yeah!) will disappear in the end. Distributors came about because of logistic demands. Politicians came about because you can’t put a 100,000 people in the same room. We don’t need any of these ‘arbiters’ any more.
What about the artist? I’d prefer a system where 10,000 people got 1000 bucks to one in which one idiot got 10 mill. If the record companies disppear, music isn’t going to stop being made or listened to. People LOVE making music and listening to it. There are 1000s of people out there making music every single day for NO MONEY – just because they love what they do – they have something to say and communicate.
I had a long lunch today with a TV honcho – we were talking about video blogging. There are millions of digital video cams out there – and an equal number of edit software programs. OK, people are amateurs – but they learn real fast! Everyone is media savvy these day. It just takes a little practice – like here in Bootrib, where many people have NEVER written in their lives – then they lurk, then they make a tentative comment, then they post a diary. They discover that writing is not so difficult if you are motivated. Maybe not everyone can write to order on any subject (as I have to do professionally) but everyone can learn to express themselves.
Back to copyright…I don’t have any real answers. All I know is that if people want to communicate and other people want to be communicated to (and the roles may change) then they will always find a mutually acceptable way to do it. Maybe the money systems are not yet in place to reward creativity, but they will be soon.
‘Ownership’ of creativity is a crucial issue – that is why this diary is so great. Perhaps the world could be a better place if noone ‘owned’ creativity? Perhaps the whole world could be Open Source?
The Native Americans had no concept of land ownership. How could you ‘own’ nature? That is why they got screwed by the ‘Possessors’ for whom the ‘claim’ was nine tenths of the law.
‘Ownership is theft’ said the communists. And I’m beginning to think they were right.
As I said, I have no answers. So maybe some of you bright sparks would like to chip in with your thoughts?
To be accurate, the web still has a place for middlemen – Google, for example, is a middleman. It’s just a different kind of middleman. It demands transparent, lightweight middlemen, instead of the domineering, controlling sort we’ve had in recent history. But you’re right about the impact of digital systems – that’s why these companies are working so hard to “perfect” a DRM system and force it on everyone. I really should’ve mentioned the broadcast flag in this diary… I’ll have to mention that when I get to Lessig.
The key to copyright, I think, is to roll back the last thirty years or so of changes. The original idea of copyright in America (European conceptions aren’t worth speaking of – there, the purpose was to censor those who the government disagreed with by denying them publication) was that it was a contract between the author and the public. The author was encouraged to release works he/she had authored, in exchange for having, for a limited time, certain rights granted. In exchange, the public domain was enriched by that author’s works.
These days, things like the term “Intellectual Property” are chosen to reinforce the idea that authors have inalienable rights to control what is done with their work. These are then used as a justification for copyright terms of ever-increasing length and penalties of ever-increasing severity.
The other thing that’s necessary is respect. There has to be a social climate that encourages people to pay for works they like. And for that to happen, both viewers/readers/listeners and authors/artists need to feel that they are respected and given a fair shot. Knowing what you (presumably) do about the activities of record companies and moving companies, and how they treat their employees and artists, how do you feel about giving money to them? I know I feel extremely reluctant!
Once you have peer-to-peer or creator-to-consumer, you no longer need the middleman.
I’m not fan of music companies, but it occurs to me that they do provide a value. Although I’m not sure this is good or not.
But the downside of the web is there’s SO MUCH out there. There’s no way I’d have the time to sift through everything to find out what’s good and what’s bad. And, face it, most of what you’ll hear is going to be at the least, not to your liking, at worst, bad.
So in that sense, record companies and radio (and satellite, now) stations serve a purpose. They go through all the crap and find some gems. And someone like Sirius plays it and then I go d/l the CD from iTunes.
That said, because music companies are interested in the quick buck, they give us N’Sync. So it’s not a perfect system.
What we basically need there is better tools. What we also have to be very, very careful of there, from a social point of view, is better tools.
With the Internet today, there’s already a tendency for people to be “self-reinforcing”. Most people – including, probably, everyone that reads this site, myself included – tend to seek out things that reinforce their existing beliefs, because those things are comfortable. (You can, arguably, see this on both sides of the Great Pie Debate, I should note.) Any kind of tool that helps people find “good content” as they define it will, seemingly by necessity, reinforce this tendency. Which leads, in turn, to increased clique formation, increased ignorance of other points of view, and increased conflict when two cliques come into contact. (Again, very visible in the Great Pie Debate – DailyKos was actually large enough that, apparently, two separate communities were able to coexist with each other without being aware of the others’ existence!)
This is also very noticeable in places like Slashdot, say, or LiveJournal.
What we really need is not just tools that help people sift through content to find good content, but which help people to sift through content and find good content that they know they’ll like and new content that challenges their preconceptions.
If you manage to work out how that can be done, drop me a line.
Good job…looking forward to more on this topic. This is an area that our culture needs to work out, especially politically. I hope Dems get on the right side of the issues.
I’ll play devil’s advocate on a couple of things (although keep in mind I am a believer in Creative Commons, Fair Use, etc):
DRM — there is a need for DRM. Say the DNC wants to publish a strategy memo, but only wants the Dem Leadership to see it. How can that be done? It’s a challenge, because, as you stated, there’s nothing that cannot be cracked if it’s in the hands of someone who wants it.
Stealing music — lots of the talk about Free Culture is about downloading music. Here’s something that I don’t agree with — I buy all my music. I think everyone should.
That said, it’s really the music industry/corporations that have screwed this one up. Hunting down 12 year olds is no way to get people to support you.
Wilco’s approach to music and the net is a model that others should emulate. They put their last album on their website for everyone to listen to (streaming) about a month before the it came out. That’s a good use of technology, makes fans happy and helps increase record sales AND ticket sales for their shows.
DRM And the Memo – Still no need for DRM in this circumstance. Conventional encryption and security techniques and processes work perfectly well there. The problem with DRM, from a technical point of view, is that you want to control what the person who decrypts the “message” can do with it. In the case of this strategy memo, and most sensitive documents for that matter, you have to assume that you can trust your recipients… Because if you can’t, you’re already screwed.
Intercepting and cracking that kind of thing (and preventing interception/cracking) also turns into a more conventional cryptography problem. And those are, as far as we know, mostly solvable.
Stealing music – Problematic. My reaction to that is that downloading without purchasing is wrong. Downloading with the intent to preview is fine, in my eyes… But again, Creative Commons has things right here, in that that should be a negotiation between the artist and the fans. I’m hoping to get around to them in #3, as I think I really need to touch on the Free Software Movement in depth first. As this whole free culture thing is, really, RMS’ fault.
As an aside, the iTunes Music Store is apparently the second most popular source of both legal and illegal downloads right now. This supports the stances of most Free Culture people.
In the case of this strategy memo, and most sensitive documents for that matter, you have to assume that you can trust your recipients
It’s not that easy. I can trust you enough to believe you won’t send the strategy memo to Ken Mehlman. But how do I know that you’ve locked down your PC, installed a personal firewall and turned off the share to “everyone” on your c drive?
Or, more likely, how do I know your 14 year old kid won’t find it on your PC?
I think there is a need for DRM to ensure stuff you want to keep secret stays that way. You just can’t do that with PGP.
Question: how is iTunes supporting illegal downloads? Like I d/l an album and then burn a CD (to lose Apple’s DRM!) and then hand it out? Just curious where that stat comes from.
DRM doesn’t work that way, unfortunately. That’s all part of the trust issue I was talking about. As Bruce Schneider, I believe, says regularly, security is a process. No software is going to be able to solve the problems you mention. It’s simply impossible. That’s where the process comes in – your recipients have to be educated in the security process. They have to know to secure their PC against unauthorized access.
This is no different from security at any point in history. The most complicated cypher or most secret missive is totally useless if you leave the decrypted version sitting out on your dining room table when you invite company over. Heck, this was even a problem with early cryptography machines! Enigma wasn’t cracked because of the technical or espionage prowess of the UN. It was cracked because German units botched their security processes and did things like transmitting two messages together with the same key, or transmitted things that were also available in the clear, like weather reports. The minds at Bletchley Park spotted this and quickly capitalized on it.
As for iTunes, I think I worded my statement badly. Take all music downloads, legal and illegal. Count the number performed with each service. iTunes winds up at #2, with only the most popular illegal service (I can’t remember which one) ahead of it. In other words, easy access to music has beaten out without-cost access to music.
I agree about security. And I read Schneier regularly. You’re correct, in any system, the failure point will likely be human error.
With the technology we have today, DRM’s not possible. I was more pointing out the need for it. I think that in the future we have a better chance of building something that works better, with newer technologies (PKI, Federated Identity). But nothing’s foolproof.
In any case, we both agree what passes for DRM today sucks and is misguided.
Thanks for clearing up the iTunes thing. 🙂
I think I agree with Schneider that that kind of technology simply can’t exist. People will always be able to leave the king’s missive lying out on the dining room table, as it were. Now, there’s certainly plenty of room to improve computer security practices – there’s some very nifty work going on right now on intrusion detection systems, for example. But it still, ultimately, comes down to process and the human element. And DRM simply can’t work there, I don’t think.
Well, that’s not entirely true. I suppose it could. But at that point, it would have to have complete and comprehensive understanding of copyright law, at which point we could simply replace lawyers with it.
BoingBoing co-blogger Cory Doctorow gave/published a what seemed to me (non-engineer) to be a very enlightening (and amusing) talk to Microsoft engineers on DRM last year (text version here). His theses:
The essay very detailed, but the bottom line of point 1 is:
Exactly. And even if you try to hide it in hardware, that hardware is in enemy hands. And with the Internet, all that’s necessary is one person getting their hands on the digital plaintext, and it’s game over – everyone has it.
The RIAA has taken to snooping on people’s computer habits and even crashing the computers of copyright infringers.
Yup. And Senator Hatch (I think…) tried to introduce legislation a few years back that would have allowed them to do physical damage to the computer systems of suspected copyright violators.
It didn’t pass, but it was still scary.
As a sometime artist, I understand the primal urge to say “Hey! I created that! Where’s my name?”.
But like so many other primal urges (sugar & fat, anyone?) the human drive for immortality gets exploited by industry until the outcome bears no relationship to the artist’s real desires.
Families inheriting rights to “protect the intent” of the creator is bullshit. Once the artist is dead, no one can truly say what they would have wanted, not even thier child or spouse. I want my work to belong to the world, not just my kids. Especially not to the corporation who bought the rights from my dead son’s spouse in order to sell more shoes.
And I think this all ties in to the whole “corporations are treated as persons under the law” fiasco that we find ourselves in today. That strange “Santa Clara Country vs. Southern Pacific Railroad” (1886)case from whence the evil flows. Damn activist 19th century judges.
Attribution’s not as closely related to copyright as people think. As I’ll get into with later diaries, all modern “Free Culture” licenses that I can think of require attribution to the original creator.
The problem comes from the notion that the creator has some kind of intrinsic right to permanently control what is done with their work – that they have some kind of “intellectual property” fence built around it. This leads to the idea that the author should be able to control reproduction of that work indefinitely, and should be able to prevent people from creating derivative works based on it, no matter how remotely.
Which, as anyone remotely familiar with the process of creativity will tell you, is silly. There’s no such thing as “original”, everyone’s building on what came before.
I’m a visual artist, which does carry different copyright issues than recorded media. And yes, art definitely is always inspired by the work of others. But I do own my images, and what is done with them without having sold the rights. There is a large grey area legally of how much manipulation is required on an artwork before it is a new work, and I think this needs to be clarified. I have no problem with most derivative work I encounter, as such. But I have found my work on other people’s websites, being sold under someone else’s name, and I think I should have legal my recourse against that, always. This is my livelihood, and my work, after all.
At what point do you believe an artist should relinquish control over their work? I’m honestly curious, not trying to be snarky at all.
There’s a difference between control and attribution. Many authors and artists seem to believe that a work needs to be protected by copyright in order for them to get credit for it. This is very much not the case. Unless the artist explicitly waives the need for attribution, it is, to the best of my knowledge, permanent.
I also believe that, as those nuts that founded that tiny little country called America eventually agreed, copyright is a necessary compromise. Jefferson, among others, detested the idea of copyright, and had to be persuaded very carefully to even not oppose writing the possibility of copyright into the constitution. I do not believe an author has any intrinsic rights over their work other than the right of attribution. Even if it employs your original imagery, you are employing techniques and ideas learned from a long history of artists stretching back towards the dawn of time, social influences, etc. The work is yours in that you gave it form, but it is not yours in that you somehow own it or the ideas contained within. However, some sort of compromise is necessary in order to convince artists to enrich the public domain, and copyright is that compromise.
Was that clear enough?
The best diary I have read here so far. Of course, I have only been here 3 days. But there have been a lot of good diaries nonetheless. In the long, long term, this is probably the current development that will be the most influential, and I can now try to understand it. My beginning point is academics, my knowledge of Marx specifically. He said that the mode of production determined the relations of production. I translate that as the present developments in technology are going to remake society, big time. I had thought that the computer revolution, the way that information is really nowhere, intangible, was going to completely change our whole notion of property, which is historically based on land and gold, things people can touch. But from what you say it looks like the capitalist system might be able to stymie this development. It certainly sounds like they are trying.
Information doesn’t want to be free. Information is free, in the sense of both cost and freedom. Computers can reproduce and transform information so cheaply that there is pretty much no scarcity. Which is a big problem for industries that have, historically, been built around the difficulty of reproducing and transforming information.
I’m going to be trying to focus on the positive in the next couple diaries. Hopefully, I’ll be able to write the second today…
This is the diary I’ve been itching to write; thank you!
I’d like to link to a talk given by Prof. Lawrence Lessig at the OSCON conference back in ’02: there are files here. The Flash presentation has the slides he showed during the talk, while the mp3 is merely the audio. Either way, it’s a half-hour commitment, but well worth it. (Prof. Lessig also has a blog here.)
I look forward to the next part(s)!
Thanks SO MUCH for the Lessig flash presentation link – truly mindblowing
This is a funny subject, for me, as we (wife & I) earn our living in the Intellectual Property field. And I don’t much like patents and I especially do not like what it is doing to scientific research.
In the middle to late 70’s Univ. of California at San Diego was issued a patent for their Pascal development system. This system had be funded with Federal monies at, and the time, created a minor stink. Up until that point researcher funded with public monies had not filed for patents. After that it became common for Universities to protect all research.
During the middle to late 80’s the USPTO (United States Patent and Trademark Office) starting issuing patent for basic laboratory techniques because the examiners were not familiar with the revolution in genetics that had taken place.
Then Intellectual Property protection was extended to “Look and Feel” and now we’re in a mess.
Science only proceeds by the free flow of ideas, experimental reports, the free access (within reason) of experiment data, and the recapitulation of experiments. When this process is blocked, through greed, this process ends. When this process ends we can kiss detached investigation good bye.