Copyright in review
As if on cue, after last week's conclusion that the battle over crypto will never reach a settlement, the Irish Times, reports that the EU Council of Ministers has a draft council resolution demanding "lawful and targeted" access to encrypted communications. Has no one learned anything in the last four years?
Crypto was the first of a series of reviews of the most durable, intractable disputes of the last 20 years by highlighting how net.wars has written about it as the 1,000th column approaches. The second is copyright, which has been irredeemably altered by the arrival of digital technologies.
Where crypto is the same story endlessly repeated, copyright is a collection of interlinked conflicts that comprise a struggle by rightsholder industries (entertainment, music, publishing, news, software) to continue business as usual while the world changed. Loosely, these conflicts fall into three clusters: legislation, enforcement, and expansion.
New legislation beginning in the 1990s essentially sought to limit what many would see as the normal functioning of computer networks. The Digital Millennium Copyright Act (1998) in the US and the EU Copyright Directive (1996), modified in 2001 and 2019 both include banning technology that can be used to bypass copy protection. Contemporary critics pointed out that this could as easily be scissors and Liquid Paper, but the intended target was software to break digital rights management and copy protection. Today, DRM is built into ebooks and Blu-Ray discs - but also HDMI TV cables, third-party ink cartridges and even remote garage door openers.
These anti-circumvention provisions, however, have been abused to block security researchers from publishing unwanted findings, by John Deere to stop farmers from repairing their tractors, and by Apple to oppose modifying iPhones. It's also been used more creatively.
The DMCA and the EUCD are also vectors for censorship when rightsholders overreach in demanding the removal of copyrighted material or automated takedown systems make mistakes. The 2019 revision of the EUCD expects sites to pay for even small news snippets accompanying links (an old EU obsession) and filter copyrighted content at time of upload, requirements Poland has challenged in court.
Conflicts around enforcement have pursued each new method of sharing material in turn, beginning with bulletin boards and floppy disks and seguing through Usenet, Napster (2000), file-sharing, and torrents in the mid-2000s. The oft-forgotten case that originally created today's notice and takedown rules was the 1994-1995 fight between the Church of Scientology and Usenet critics that saw Scientology's secrets sprayed across the Internet. That case also heralded a period when rightsholders were decidedly hostile. The two biggest photo agencies pursued small businesses with licensing fee demands; recording companies and movie studios took downloaders to court; some rightsholders issued takedown notices against fan fiction and even knitting patterns based on Dr Who. Many of us said from the beginning that the best answer to pirate sites was building legal sites; by the 2010s this was proving correct.
The stage has shifted for both legislation and enforcement, as the US government in particular (but not solely) seeks to embed expansion of IP laws and anti-piracy enforcement in free trade agreements. In 2014, copyright was taken out of the Transatlantic Trade Investment Partnership agreement, but digital rights NGOs know they have to keep watching carefully - when they can get a look at the text.
Expansion has two forms: length and scope. Term extension means that when a song was written in 1969 its copyright would have expired in 1997, renewable until 2025 but now lasts for the author's life plus 70 years (2088, for the song I have in mind). Scope has expanded inevitably as copyrightable software becomes embedded in every physical device.
The fundamental conflict was predicted in 1996, when Pamela Samuelson published The Copyright Grab in Wired. Under "copyright maximalism", she warned, every piece of copyrighted work, no matter how small, would be chargeable, as suggested by Mark Stefik's Letting Loose the Light essay.
As Samuelson and others pointed out, until the Internet IP law only mattered to a few specialists. By opening universal distribution, the Internet turned the laws appropriate for geographically-delineated commercial publishers into laws that make no sense to consumers, as universities were the first to find out. These mismatches; many copyright revisions of the 1990s and 2000s sought "harmonization", always in the most restrictive direction. The Canadian legal scholar Michael Geist to established that these apparently distinct national initiatives had a common source.
There have been some exceptions, such as legal reviews and work to open orphan works and parody. Challenges such as 3D printing still await.
The real story, though, is the very difficult landscape for artists and creators, who lost much control over their work because of media consolidation in the 1980s and 1990s the economic shocks of 9/11 and the 2008 financial crash, and advertising's online shift. Creators seeking income are also facing floods of free blog postings, videos, music, and, especially, images. No amount of copyright shenanigans is solving the fundamental problem: how to help artists and creators make a living from their work. That is what copyright law was created to enable. Never forget that.
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Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.