A Brief History of Modern Copyright Law
Originally written March 2009
Piracy is an illness within the marketplace, NOT an illness within our legal system.
A brief history of modern copyright law:
The root of all this hubbub lies in exactly how the advent of the internet has changed the media marketplace. You see, pre-internet, most everything that has ever been bought or sold in the world can be classified as either a physical product, or a service. The nice thing about physical media is that its distribution can be controlled easily. Let's say I had three rabbits inside a fenced off pen, and you wanted one. There would be no way for you to get one from me unless I physically gave it to you, which I wouldn't do unless you had something to trade. After our deal is done, you walk away with exactly one rabbit, and I still own two. That rabbit is completely yours to do with as you choose; whether you want to lend to a friend, breed more, or sell it. This has been the underlying foundation of the entire history of human exchange systems: that each product I sell is a singular object, that sales signifies the passage of ownership, and that one has a right to do as they please with what they own.
However, this model first began to grow obsolete around the late 80's as a powerful new technology swept the nation: we could copy records. While on the surface it seemed that the rules of physical trade still applied, suddenly average consumers had the power to duplicate music into a new host record cheaply, and with a reasonable level of quality. For all history Intellectual Property has always been bound to a physical form that was un-replicable by the layman; literature was confined to print, art was confined to canvas, and music confined to record or live performance. While methods to copy and distribute these mediums -- such as the printing press -- existed, the cost involved meant that the power to do so always sat in the hands of publishing houses, who made copying and distributing material their entire businesses. Now, for the first time in history the average joe could rip music that he liked off a record, copy it to a new one, and give it to his friend to listen to. Now, an average person could make a backup disk for themselves in case they lost or broke their first one instead of buying a new one from the store. For the first time, the line between media and content could be exploited.
Fearing that allowing consumers to replicate their own music and share it with their friends would cut into the sales of their own music replication, various music publishing studios pushed for the RIAA to step in and help. The RIAA began by heavily lobbying congress to make the act of copying and sharing digital content a punishable offense. The request was refused on the grounds that citizens had the right to do as they pleased with physical media that they had purchased, and therefore physically owned. (2002 Duke L. & Tech. Rev. 0023) Not one to be easily defeated, the RIAA began a campaign where they threatened to sue any corporate entity that wanted to lobby congress to pass legislation imposing mandatory copy protection on any device or media unless that copy protection also extended to all digital recording devices. In response to the RIAA’s aggressive campaign, Congress opted to find a compromise, and the Audio Home Recording act (1992) was created, which amended the United States copyright law to require all digital recording devices sold or manufactured within the US to include the Serial Copy Management System - an early form of what would later evolve into Digital Rights Management. The act also included provisions making it illegal to try to circumvent said SCMS protection, and imposing royalties on all digital recording devices payable to the record industry.
Fast-forward four years and boom, the internet is born. If the ability to produce one's own copies caused the old model of trade to crumble a bit, the internet's advent has brought it a shattering blow. For the first time in the history of our world, Intellectual Property could exist without having a physical form -- at least, without being stored in a physical media. The very concept that one had a limited supply of valuable objects to trade no longer existed, as one could make an infinite number of copies of anything and share/sell it to/with anyone anywhere. The notion that one could own an object by barring access to your inventory no longer held once a single copy of your inventory hit market. In short, the internet empowered users to share content quickly, conveniently, between literally millions of other users, and above all, for free.
"Music has some of the qualities of a public good since it can be consumed or enjoyed jointly; its value does not diminish by use; it incurs significant fixed costs in development; and, it can be reproduced very cheaply (this characteristic is usually referred to as the ‘non-rival’ aspect of a public good). But, unlike a public good, it is possible for the creator of an expression to exclude others from using it by using a copyright, and, thereby, opening the possibility for wider commercial exploitation." (Industry Canada Paper, May 4 2007)
As you might imagine, this scared most publishing houses shitless.
To protect the copyrights of artists and publishers against piracy, publishing houses lobbied congress once more, and the Digital Millennium Copyright Act (1996) was signed into being. The DMCA built upon the Audio Home Recording act by criminalizing the production of any technology or service intended to circumvent any form of what was termed Digital Rights Management, criminalized the very act of attempting to circumvent DRM, and heightened penalties for copyright infringement on the internet. Not content that the DMCA was strict enough to subdue piracy, the RIAA (later joined by the MPAA) took the opportunity to go on the offensive, beginning a long campaign to hunt down every pirate they can find and make an example of them by suing them into the ground.
And that brings us to where we are today: the bulldogs of the content production industry are in a frenzy, hemorrhaging money in litigation as they attempt to control the market with fire and brimstone, all the while piracy continues to grow like a malignant tumor.
*My Argument:
It doesn't matter if piracy is right or wrong, or the rationale behind it. The fact is that it exists, and will always exist -- just as crime will always exist no matter what measures have been implemented to prevent it. There will always be those few who thwart the law just because they can. However, piracy can be significantly curbed by allowing this ailing market to evolve and grow on it's own merit until the very problems that push people down the path of piracy and plague it sow the seeds necessary to treat themselves.
Given that piracy will always exist so long as it is a viable alternative with more perceived value than that of using a producer's own service, the mantle of progress rests squarely on the shoulders of the content industry to decide how to move forward from here. There are two available actions for them to take:
1.) Lobby for more regulations and harsher sanctions against piracy, and stuff the lawsuit jackboot so far up the internet's collective ass that pirates will never again try to subvert their power. Effectively fighting the internet in an all out war to bring the market status quo back to a glorified "how it used to be", while actively resisting any technology or innovation in the marketplace that might potentially further empower the populace at large in a horrifically Orwellian display of litigative corruption.
2.) Shift the manner in which they do business to adapt to the new environment.
Obviously, the former is a nightmare of fascist campaigning that will rack up unsustainable legal fees, and never come even close to implementing a proverbial dam on piracy given the splinter cell-esque unstructured nature of file sharing communities.
The later has already had many great success stories. Valve, for example, has created a new model for software distribution that has seen excellent success in terms of selling product to a piracy-riddled market space. How did they do it? By implementing an experimental retail model that harnesses the very powers of software that pirates exploit -- infinite copy ability and ease with which it can be shared. Steam has no shipping fees, no logistics fees, shelving costs or anything of the kind. It costs the same to sell one copy, or a million. This allows them to run discounts, and sell games in bundles -- offering users great value, and turning a profit. Additionally they've found ways to add value to their own retail experience by overlaying their client over the games they sell and offering an entire social community that players can access any time. Netflix, Hulu, Amazon, and Apple iTunes are also great examples of companies pioneering new business strategies that have managed to turn a solid buck in market sectors otherwise drowning in customer complaints and rampant piracy.
This is natural selection at its finest. Yes, it may be unjust that the frost of winter coming across the land is causing a shortage of food, or that a particular plant necessary to your diet has now become poisonous to you. However, there is only two things one can do to survive in an ecosystem that's rapidly becoming hostile: change it back to the way you want it - requiring massive resources and power -- assuming it's even possible; or by adapting along with it.
It's the business's job to serve it's customers, not the other way around. If customers are no longer purchasing your product for any reason, whether it be because they do not like your service, or because its more convenient elsewhere; it's your job to find a way to please them, or else go bankrupt. A government exists to serve it's people, and while yes a part of that duty is keeping the social order, honestly courts are already overwhelmed with more pressing issues than this. I oppose any notion that the government ought step in either to re-enforce copyright law or to strip it. Well, on this topic anyway. For this is purely a failure of the market, not a failure of our legal system.
Survival of the fittest. Adjust your business model to provide higher value than the benchmark of piracy, or get left high and dry.
Production companies are not going to win fighting this to the end.