Copyright Has Stretched So Far That It Has Broken

from the not-what-it-was-meant-for dept

Tue, Jun 10th 2008 9:35am — Mike Masnick

The Cato Institute is running a series of articles on "The Future of Copyright," a subject that the think tank has been discussing for a while now. The first piece in the series, by Rasmus Fleischer, is an absolutely fantastic read, detailing all of the reasons why those pushing for stronger copyright laws are doing so, and why copyright itself is being stretched way beyond its initial purpose. He goes over the history of copyright, and how it was really initially only intended to protect printed works, but as that coverage has expanded over the centuries, you run into some really awkward scenarios where this square peg no longer comes close to fitting into the round hole:

This change has taken place because previously distinct media are now simulated within the singular medium of the Internet, and copyright law simply seems unable to cope with it. Consider radio broadcasting and record shops, which once were inherently different. Their online counterparts are known respectively as "streaming" and "downloading," but the distinction is ultimately artificial, since the same data transfer takes place in each. The only essential difference lies in how the software is configured at the receiving end. If the software saves the music as a file for later use, it's called a "download." If the software immediately sends the music to the loudspeakers, it's called "streaming."

However, the receiver can always choose to transform a stream to a digital file. It's simple, legal, and not very different from home taping. What now fills the record industry with fear is the possibility that users could "automatically identify and separate individual tracks from digital transmissions and store them for future playback in any order." In other words, they fear that the distinction between streaming and downloading will be exposed as a big fake.

For example, Swedish company Chilirec provides a rapidly growing free online service assisting users in ripping digital audio streams. After choosing among hundreds of radio stations, you will soon have access to thousands of MP3 files in an online depository, neatly sorted and correctly tagged, available for download. The interface and functionality could be easily confused with a peer-to-peer application like Limewire. You connect, you get MP3s for free, and no one pays a penny to any rights holder. But it is fully legal, as all Chilirec does is automate a process that anyone could do manually.

So, what happens? Well, the entertainment industry that's focused on protecting its old and increasingly obsolete business model, keeps pushing for new legislation that tries to force that square peg into that round hole -- and each time, the new legislation just makes things worse. So they push for more legislation, that just makes things even worse again.

This domino effect captures the essence of copyright maximalism: Every broken regulation brings a cry for at least one new regulation even more sweepingly worded than the last. Copyright law in the 21st century tends to be less concerned about concrete cases of infringement, and more about criminalizing entire technologies because of their potential uses. This development undermines the freedom of choice that Creative Commons licenses are meant to realize. It will also have seriously chilling effects on innovation, as the legal status of new technologies will always be uncertain under ever more invasive rules.

But the situation is only going to get worse for entertainment companies that don't learn to embrace the changing market. Every attempt to legislate things back to the past will only fail -- and that failure will become even more and more profound as you follow the rather obvious trendlines of technology:

One early darknet has been termed the "sneakernet": walking by foot to your friend carrying video cassettes or floppy discs. Nor is the sneakernet purely a technology of the past. The capacity of portable storage devices is increasing exponentially, much faster than Internet bandwidth, according to a principle known as "Kryder's Law." The information in our pockets yesterday was measured in megabytes, today in gigabytes, tomorrow in terabytes and in a few years probably in petabytes (an incredible amount of data). Within 10-15 years a cheap pocket-size media player will probably be able to store all recorded music that has ever been released -- ready for direct copying to another person's device.

In other words: The sneakernet will come back if needed. "I believe this is a 'wild card' that most people in the music industry are not seeing at all," writes Swedish filesharing researcher Daniel Johansson. "When music fans can say, 'I have all the music from 1950-2010, do you want a copy?' -- what kind of business models will be viable in such a reality?"

So as the industry tries to fight this, it just keeps focusing on more and more draconian laws, that do an awful (and I do mean awful) lot more than just strengthen copyright. They chill innovation, outlaw important and useful technologies and remove important civil liberties:

Yet in the name of ISP responsibility, virtually any Internet user might be called to account by the recording industry. Here's why: In discussions about so-called ISP responsibility, it is crucial to remember that big telecom companies are far from the only existing "operators of electronic communications networks and services." This is the actual definition of an ISP, used within the European Union bureaucracy, but by this definition, you may be one, too. The U.S. Digital Millennium Copyright Act is equally vague: It defines a "service provider" as a "provider of online services or network access, or the operator of facilities therefor," leading many to wonder whether libraries, employers, or private individuals operating routers might also qualify as ISPs.

Given such a broad definition, any company or person sharing connectivity, as well as anyone hosting a blog or a web forum, could, in the name of "ISP responsibility," be obligated to register the identities of users and to deliver them to copyright enforcers on request. The range of possible abuses is enormous. Attempts to save an already broken policy will mean an ever more absurd sequence of follow-up regulations.

There's plenty more beyond those snippets here that make the entire piece worth reading. I'm looking forward to additional pieces in the series as well.

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Filed Under: broken, copyright, rethink

38 Comments

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Crosbie Fitch (profile), 10 Jun 2008 @ 9:53am

Abolish Copyright
The only rational conclusion is to abolish copyright.
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- Reactionary, 10 Jun 2008 @ 10:38am
  
  Re: Abolish Copyright
  The *reactionary* response is to abolish copyright. By your logic, the only *rational* conclusion to the oil crisis is to abolish automobiles.
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  - Anonymous Coward, 10 Jun 2008 @ 10:43am
    
    Re: Re: Abolish Copyright
    You're taking my car over my dead body. :)
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  - Vincent Clement, 10 Jun 2008 @ 11:15am
    
    Re: Re: Abolish Copyright
    That is a poor example. First, it assumes that there is an oil crisis. Second, it assumes that automobiles are to blame for the 'oil crisis'.
    
    I'm not aware of any oil crisis and I'm certain that oil is used in a multitude of products, many unrelated to the automobile.
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  - Philip, 10 Jun 2008 @ 12:31pm
    
    Re: Re: Abolish Copyright
    Electric automobiles do not consume oil. Initially, I thought this'd break your analogy, but it only serves to strengthen it.
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  - Daniel (profile), 10 Jun 2008 @ 1:06pm
    
    Re: Re: Abolish Copyright
    There is a problem with your analogy - it's pointing to the wrong conclusion.
    
    responding to the oil crisis by abolishing automobiles is more aptly likened to responding to the copyright crisis by abolishing listeners, viewers and readers. You are pointing to the consumer, not the legislation.
    
    A more apt analogy to the copyright/copyright law dilemma would be to respond to the oil crisis by abolishing laws that regulate oil - e.g. laws that ban drilling offshore or in alaska, regulations that prevent refineries from being built and regulations that make it more expensive to convert oil into gasoline.
    
    You'll notice that in THIS case, it would lessen - if not eliminate - the oil crisis.
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  - Anonymous Coward, 10 Jun 2008 @ 7:13pm
    
    Re: Re: Abolish Copyright
    The *reactionary* response is to abolish copyright. By your logic, the only *rational* conclusion to the oil crisis is to abolish automobiles.
    Huh? Not at all similar. If you're going to turf-troll for the copyright cartels, you're going to have to do better than that.
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- mike allen, 10 Jun 2008 @ 10:47am
  
  Re: Abolish Copyright
  that is to an extent logical.how would it work as far as preventing for eample saying your post was writen by someone else.
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  - SomeGuy, 10 Jun 2008 @ 11:34am
    
    Re: Re: Abolish Copyright
    how would it work as far as preventing for eample saying your post was writen by someone else.
    
    Copyright doesn't address that as it is. Especially if you're unknown, nothing prevents someone from saying they had the same idea (or even that they had it first), and you would have to prove your case first. To do that would require something like a digitally-signed and time-stamped file or (the analog equivalent) a sealed registered mail envelope with a hardcopy document inside. And *neither* relies on Copyright. The only thing that Copyright can be said to do is provide the holders with 'teeth' to enforce their claims, but it's not an absoluetely necessary system and it can be argued that it's less and less and appropriate system, especuially given the perversions and abuses we've seen. If Copyright isn't abolished then it at least needs a drastic overhaul.
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    - Patricia Shannon, 5 Dec 2008 @ 10:53pm
      
      Re: Re: Re: Abolish Copyright
      The sealed registered letter is not helpful. You wouldn't be able to prove that you didn't mail yourself an unsealed envelope, and at some later date, inserted material and sealed it then.
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      - Blaise Alleyne (profile), 6 Dec 2008 @ 12:43am
        
        Re: Re: Re: Re: Abolish Copyright
        Doesn't the post office stamp it or something? (I don't know, I'm not too familiar with snail mail.) I thought that was the point. Why would the post office stamp and deliver an empty envelope? And I assume that may even contain some sort of tracking information or something? (If not, wouldn't a fancier mailing service do that?)
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eleete, 10 Jun 2008 @ 10:50am

They needed a Tank ?
Not that anyone in government (the people who need to understand this instead of lining their pockets with industry money) will ever catch wind of this. It's very saddening that it only requires a small amount of thought to see all of this as obvious. Once again I get back to my favorite example...Why are we protecting artists only... Let's give teachers, and pilots, and janitors salaries for their entire lives, and then allow their families to will the salaries among one another once the worker is deceased. That way for 1 years work, we all pay 100+ years for the labor YEAHHHHH !!! It's asinine to believe this is the way things should be. Take a look at the figures for a movie release these days.... Hundreds of millions in the FIRST week of viewing, imagine how much it makes over the course of say... 70 years.... and THIS needs protection ?? BS. Our government needs that protection from the greed based industries that push for these crap laws, that criminalize respectful citizens for 'downloading' a song. Time to turn the tide on these people and share en masse and give them a run for their money, to take back OUR government and let them know where they can go with their 100+ years of royalties. If I don't earn it I can't pay it. No Taxation without Representation. Give me my salary for the rest of my life +70 and I'll quit my job tomorrow and enjoy the fat cat life too.

eleete
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- Anonymous Coward, 10 Jun 2008 @ 11:15am
  
  Re: They needed a Tank ?
  im glad someone said it. i completely agree.
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johnny, 10 Jun 2008 @ 11:20am

information is free
99.99....... % (add as many 9's as you think to the end)
of the information we receive is free or subsidized (commercials, banner ads, etc) and those content providers are still in business. If the RIAA cannot come up with a model that works and keeps them in business, well then, Wal-Mart (or someone else) will eventually step in and take over their market.
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Mats, 10 Jun 2008 @ 11:25am

Time for a revolution!
The record industry needs to realize that they must change or die. Set reasonable prices on music and give the artists their fair share, otherwise will we musiclovers find some other way to get our music...
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- Patricia Shannon, 5 Dec 2008 @ 10:50pm
  
  Re: Time for a revolution!
  You won't get music if songwriters and musicians can't afford to produce it.
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- Patricia Shannon, 5 Dec 2008 @ 11:21pm
  
  Re: Time for a revolution!
  I do agree music prices should be more reasonable. Charging people $15 for a CD with one song on it that is good, with the rest filler, is unfair.
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Ed, 10 Jun 2008 @ 11:29am

Sneaker Net
As for the sneaker net, I think the **IA is aware of it. That is part of the reason for AFTA. If they can't stop you from acquiring infringing content, they will create laws to spot check you for possession of it. Now they want it just at the boarders, later, you will here about "Infringer profiling", as teens are pulled over by the copyright police, and searched for infringing content. Of course by that time, Guilty until proven innocent will be the law anyway, so......
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KD, 10 Jun 2008 @ 11:39am

Crosbie had it right -- abolish copyright
Crosbie had it right in the first post. It is time to abolish copyright. A little radical? Maybe, but the situation has gotten so out of hand that I agree that is the solution we need to press for. Yes, it might be a little disruptive, but not as disruptive as most people would think.
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- Anonymous Coward, 10 Jun 2008 @ 11:41am
  
  Re: Crosbie had it right -- abolish copyright
  It will never happen. Too many powerful people have too muck stake in that particular system.
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  - Jason (profile), 10 Jun 2008 @ 1:16pm
    
    Re: Re: Crosbie had it right -- abolish copyright
    "It will never happen. Too many powerful people..."
    
    Yes it will. People inherently recoil at corny sounding irony, and The word itself is oxymoronic - an exclusive broad-sweeping restriction on the right to copy.
    
    My children's generation will be the one's to make jokes about their copy-rights being violated. Seriously, our grandchildren will laugh at us for enforcing copyrights.
    
    What am I saying; it's probably already happening. I'm at work, so can't check YouTube for it, but I guarantee there are already streaming political cartoons making fun of the ancient culture of copyrights.
    
    For the 2-19 yr olds that make up the two largest user segments of YouTube, copyfreedom is their current reality.
    
    You probably know more about who held what office in the Presidential Cabinet when you were in kindergarten than your current day kindergartner will ever know about copyrights.
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Dan Zee (profile), 10 Jun 2008 @ 11:41am

Copyright laws protect Companies not Artists
The Recording Industry likes to say that artists are being hurt by downloading, but it's really the Recording Industry that's being hurt. I haven't heard of any artists receiving any money from the "royalties" the industry is collecting from online broadcasters. The industry calls it "performance royalties," but what it is is a royalty for the "recorded" performance, i.e. the CD track owned by the record. The royalties all go to the record company. This is why the Recording Industry has been uninterested in going after bootleg live recordings. There the industry feels it's up to the artist to go after the bootleggers. Most artists don't because live recordings bring more people to their concerts, and therefore makes the artists more money.

The Recording Industry and the other media companies are afraid that their business may go the way of the dinosaur. That's why they're pushing copyright legislation so hard. Who needs to buy CDs when artists can sell their own music from their own Websites such as Prince and other artists are doing? Who needs to buy DVDs when Netflix will stream movies to you? Who needs to buy a book when you can grab it online and display it on your Kindle? Suddenly, everyone who is a "publisher" is on the endangered list.

The various "old" media industries are going to try to hold onto what they own for as long as they can. The length of copyright is now is 95 years. They're going to try to hoard their possessions while trying to battle and stifle competition from the Internet. The consumer is in the middle of this battle and the lines are being constantly redrawn. For example, it's OK to record analog TV shows on VHS, but there are no VCRs with digital tuners that allow you to record a digital TV show on VHS. The old media wants to push those boundaries back even further. To try to stop all recording.

The only salvation will come if it pushes the boundary of the law so hard that the law becomes meaningless and no one enforces it.
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- PaulT (profile), 10 Jun 2008 @ 12:18pm
  
  Re: Copyright laws protect Companies not Artists
  Not even the "recording industry" but just the major corporations. I forget the exact numbers, but if you were to count the independent music sector as a whole, it represents a higher proportion of the music industry that any of the four "majors".
  
  Remember, the RIAA != "the music industry". Non-RIAA members are generally doing quite well, overall.
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- Swampfox, 10 Jun 2008 @ 1:31pm
  
  Re: Copyright laws protect Companies not Artists
  "Most artists don't because live recordings bring more people to their concerts, and therefore makes the artists more money."
  
  Not Metallica.
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- Patricia Shannon, 5 Dec 2008 @ 11:05pm
  
  Re: Copyright laws protect Companies not Artists
  I have just sent an e-mail to a songwriter who has had several of his songs recorded by major artists, asking if he is getting royalties.
  Even if it were true that musicians and songwriters don't get broadcast performance royalties, they are being hurt because the prevalence of downloading has caused a decrease in the number of CDs sold.
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  - Patricia Shannon, 5 Dec 2008 @ 11:08pm
    
    Re: Re: Copyright laws protect Companies not Artists
    http://latimesblogs.latimes.com/music_blog/2008/12/grammy-nominati.html
    
    Sales of recorded music have been steadily declining since peaking in 1999, with a total of 1.16 billion units valued at $14.6 billion by the Recording Industry Assn. of America. At the end of last year, even with increasing digital sales pushing the number of units sold up to 1.77 billion, revenue had dropped to $10.4 billion.
    
    The story’s looking no better this year. Billboard reported that music sales were off between 10% and 30% at specialty stores and major retailers over the recent Black Friday weekend. Pali’s data indicate that the decline in total album sales for the final months of 2008 might exceed last year's record fourth-quarter drop of 21%, the worst CD sales quarter decline ever.
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  - Patricia Shannon, 5 Dec 2008 @ 11:19pm
    
    Re: Re: Copyright laws protect Companies not Artists
    http://www.iht.com/articles/2008/06/18/technology/music.php
    
    U.S. radio stations generate $16 billion in revenue every year, "largely by playing music to attract the listeners advertisers want to reach," he said. "Yet they pay artists and record producers nothing for the music that drives their business. That situation is totally unfair - it must change and I believe that it will."
    
    Last week, U.S. lawmakers considered a bill that would require radio station owners to pay artists and record labels when their songs were played on air. Free radio stations are exempted by Congress from paying royalties to performers or labels. They do pay songwriters and publishers. Satellite and Internet radio companies pay royalties to performers, labels, publishers and songwriters.
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LT, 10 Jun 2008 @ 12:43pm

I'm affraid
Copyright can be usefull for the evil people who want to "remove important civil liberties".
"It´s like piracy, terrorism, paedophilia, ..." Bla, bla, bla...
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Book lover, 10 Jun 2008 @ 12:54pm

You can't take my book
Books will never dissapear. Nothing beats the smell of a new book and much easier on the eyes then a computer screen. I don't have to worry about batteries and they look good on my wall.

Not on Draconian Music industry. I consider myself a rebel. Fight back only way us little guys can. Download as much as possible. Since our governement for the people is already in their back pockets. If you want I can point you in a the direction of a few good sites.
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Derek Kerton (profile), 10 Jun 2008 @ 2:16pm

Taxes On Sneakernet
Regarding Darknets and sneakernets, let's not forget that the recording industry ALREADY has managed to get a tax on these networks, by getting a fee for all blank media (CD-R, etc.) sold.

They are actively trying to get these extended to all new forms of storage media.
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- Mike (profile), 10 Jun 2008 @ 3:33pm
  
  Re: Taxes On Sneakernet
  Regarding Darknets and sneakernets, let's not forget that the recording industry ALREADY has managed to get a tax on these networks, by getting a fee for all blank media (CD-R, etc.) sold.
  
  Not quite true. Well, it's true in Canada, but not the US. The blank media tax in the US is very very limited, only to blank CDs that are specifically packaged as being for music. Regular CD-Rs have no levy in the US.
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Frog G Glenn, 10 Jun 2008 @ 8:08pm

"they will create laws to spot check you for possession of it."

That's what 2048 bit encryption is for, for now.
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Abdul Koroma, 11 Jun 2008 @ 12:21pm

Is it dangerous to 'rethink' copyright laws!!!
Copyright debates have always been very polarizing. I think those who are bent on continuing on the legislative path are failing to come to termes with the new realities which the internet age had brought. I think it's time these people realize that no amount of draconian measures will help their cause but rather find novel ways to modify these copyright laws that will suit the current internet arena. Of course this is in sharp constrast to what silicon valley guys like Andrew Keen is suggesting in his post: Why "Rethinking" Copyright law is a Huge Mistake ( http://www.internetevolution.com/author.asp?section_id=556&doc_id=155800&F_src=flftwo)
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Pudro, 11 Jun 2008 @ 12:40pm

follow up
"I'm looking forward to additional pieces in the series as well. "

I'm looking forward to those as well, so I would love it if Techdirt could keep up the good work and let me know when they come!

Keep up the great work.
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Abolish private property, 13 Jun 2008 @ 12:16am

abolish private property
It would be the best solution in a perfect world. So we are not in a perfect world but we can control and limit the extent of property (including intellectual property aka copyright)preventing capitalism abuses.
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pault, 17 Jun 2008 @ 12:44am

Copyright is a fraud
Copyright is just extortion. It sends out goons to extract money from people who made something with their own property and labor, but which looks like something someone else made before.

It's "thought-crime" at its worst.
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OmegaWolf747 (profile), 25 Oct 2008 @ 10:22am

Copyright must die
Copyright must die because it's just a form of censorship and control. So what if I use a few lines of someone else's work in something I write? Does that make it any less valid? If it's a blatant ripoff, call me out on it. But don't try to knock me offline just because I borrowed from someone else!

People have always borrowed from their predecessors! Ancient Greek plays were based on Ancient Egyptian mystery plays. Shakespeare then borrowed from the Ancient Greek plays for his stories. If copyright had been around back then, we wouldn't have King Lear or Romeo and Juliet!
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corodo, 12 Aug 2012 @ 4:03pm

cars
the abolish cars is not a bad solution at all
persenally i would go for ablish money as a solution
even known its imposseble to do
when you think of it
i can make a solar car but somehow none are for sale
and dont even talk about engine power
cuz a 30km/h car is availeble and it not even hard to beat at al
but that is not the only thing held back at all
the robot idea has bin around since the 70 can you even believe they are hard to make im sorry to tell you that there is no effort in making them build a house
esacially if you think they could start at level grond and build like a simple round tower

when you think of it at al you would just quit anything
it better not to and think keep doing pointless things
like going to a bar while you have plenty of drinks at home

did you know i tshirt is inside out the seemes itch your skin and the perfect smooth side is to look at

we live in a wold where having money means owning money
makes you succesfull
not trying to do so is like whaering your tshirt inside out
no wonder a milionaire is more powerfull than any politiscian and can do anything hes wonts to and that is still making more money and that will never change

sorry you need to be dumb for them to do so they keep you dumb
education is based on making you obey more than making you smart
jobs keep you buzy and nothing more

but you know what there nothing you can do about it
so close curtens in your house and start your life like everyone does afraid that a passing guy walking a dog might see that you are a human whit thought of its own
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