Tuesday, October 07, 2008

Cory Doctorow: "Content": a disturbing view of the Internet-digital-world's future (copyright infringement phobia could ruin it for everybody)


Author: Cory Doctorow.
Title: "Content: Selected Essays on Technology, Creativity, Copyright, and the Future of the Future". The “C” in Content is printed as a copyright symbol (©).
Publication: San Francisco, Tachyon, 2008. ISBN 1-892391-81-3. 212 pages, paper, 25 essays. There is a Foreword by John Perry Barlow.

Well, the first character of the title tells you something about the book, which is a collection of about thirty short essays (not numbered as chapters). Each essay is like a blog entry, and some were speeches. This Canadian author is quite an expert on US intellectual property law. And he practices what he preaches, walks his own walk. He offers the book, inexpensive in paperback, for free with a Creative Commons license here. He believes that artists fare best if the price their work flexibly, according to what their audience is willing to pay, and that offering free content is a perfectly legitimate strategy for being found and read, without necessarily giving up rights later.

Most of the essays deal in one way or another (often with humorous satirical analogies, some set up with pseudo-poetry) with all the convolutions and contradictions inherent in the way copyright law is applied to and enforced with respect to digital media (DRM or “digital rights management”) and the Internet. The general impression is that the draconian steps inconsistently applied by copyright owners (or usually their representative associations like the RIAA and MPAA) are more about protecting turf (often as laid out by unions and guilds) than actual financial profitability. There is the repeated problem that new technology upends the business model upon which older technology is based. Older companies will first try to protect their old-fashioned practices and markets with the legal system, often to their own financial detriment, before jumping on the bandwagon.

He discusses some of the problems that occurred a few centuries ago with the printing press and Bibles, and mentions the interesting dilemma posed by the invention of the piano roll. Music publishers and concert halls feared that piano roll “recordings” would destroy their businesses; in fact the opposite was true. (Sergei Rachmaninoff was one of the most prolific users of the piano roll.)

He also makes an effective argument that many of the convolutions of DRM defeat a generally accepted principle of copyright: first sale. Generally, when someone buys a copy (an “instance”) of a work (think of a work as a “class” in the object-oriented world) he or she is free to use that instance anywhere with any device capable of rendering it. (There are well-known limitations, such as charging admission for playing to others.) But DVD’s are often unplayable on machines outside the country of purchase, and it is often illegal to circumvent the technology that makes them unplayable.

But the most serious issue arises in the essays in the middle part of the book, such as one called “How Do You Protect Artists?” That is, downstream liability for copyright infringement of users of a site or service. The Safe Harbor provision of the Digital Millennium Copyright Act (DMCA) is controversial enough, leading ISPs or other publishing services to yank material upon frivolous complaints (although the volume of such incidents is surely small compared to the “amateur” content on the Internet as a whole). Congress had intended the “Safe Harbor” (in 1998) to be an important compromise between legitimate interests of amateurs and the “establishment” as Doctorow’s discussion shows. But now we have the Viacom v. Youtube lawsuit, launched in March 2007, which claims that Youtube’s business model is predicated on encouraging copyright infringement (following the Supreme Court’s logic in MGM v. Grokster in 2005). Doctorow summarizes the situation by maintaining that Viacom wants Youtube to pre-screen all videos before posting. I do recall that Viacom has claimed in court papers that somehow YouTube is not eligible for Safe Harbor. There are also questions about why “private” or whitelisted videos were subject to the litigation. I’m not sure how slippery the slope is (that sounds like a “real physics”-calculus problem for AP high school kids, doesn’t it!) but the implication of an unfavorable outcome to Viacom could be that ISP’s and publishing services (Blogger included) would have to pre-approve everything that is published with legal due diligence. That would shut down not only free blogging services and social networking sites (unthinkable!) but even “conventional” shared hosting, as has been available to amateurs since about 1996, as well. The danger is that a jury, particularly, might have trouble grasping this – just the way the public had trouble seeing the Wall Street financial crisis coming and understanding the difference between the credit markets and the stock market. Presumably Congress understood this, sort of, in 1998 (but they perhaps didn’t understand it when they passed COPA, which has been struck down but is still on appeal). It’s possible to imagine some workouts. Maybe corporate filmmakers put digital watermarks on their videos that Youtube could check for during the upload as an unobtrusive and efficient pre-check. Maybe text content could be pre-checked with a “turnitin.com” like technique known for term papers – but his would lead to false positives well known with the spam blog problem. It seems to me, at least, that there is reason to wonder if the current Internet business models, predicated on advertising, can last forever given the current economic shocks and a number of other “existential” traps lurking in the woodwork. So far, the Viacom case (complaint seems to be “progressing” only very slowly (18 months after its filing). I wrote about this on July 4, 2008 on my main blog here, about a court order to turn over visitor activity logs about YouTube.

Doctorow offers other interesting perspectives on the attempts to control bad behavior on the Internet. AOL, he says, could easily contain spam email if it didn’t open up email to non-members, which it had to as a business practicality very early in its life. He compares the world of social networking (especially Facebook) to earlier paradigms for AOL (and perhaps its clownish competitor in the early 90s, Prodigy) and suggests that it tries to establish a kind of Machiavellian control on how people relate online and even in the real world. Far from opening up the Internet, social networking sites seem to be trying to control it. There are even sites that try to get employers to sign on to monitor and control the “online reputations”, professionally at least, of their associates.

Doctorow’s anecdote about Napster is interesting. He traces how the packaging of music has changed with technology, from old 78’s to 2-sided LP’s with designed cover jackets, to CD’s and finally to digital downloads, and that companies repeatedly have trouble producing what consumers, especially younger ones, really want and would pay a fair market price for.

He also discusses the issue of copyright and photos, and notes that some museums (especially in Britain and in Europe) do not allow photography out of fear that photographs would deter paying visitors, which he thinks is a silly idea.

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