I’m not ashamed to admit that I’m confused by copyright in the US right now. I’m a child of the 80′s — an era where magnetic tapes time-shifted anything and everything, from song mixes for would-be lovers to Thursday night’s episode of Hill Street Blues. It turns out that all these tapes were a product of an agreement between Sony and Big Tape Makers, and Sony got a kickback for every Maxell or BASF time-shifting product I purchased. It apparently wasn’t that making mix tapes was OK, it was that Sony looked the other way because of the kickback. Not a perfect system, but it helped produce joy on many an acne-stained face in the Reagan, Bush, and early Clinton eras.
We never even thought about copyrights back then, we just freely did what came naturally. Why? Because this was the 80′s, and technology had given us a new era where we could watch TV shows later (and fast forward through the commercials). No longer were we slaves to the networks’ insane scheduling and fascination with USA Baby’s advertising dollars. We could, in good conscience, get a second shift job somewhere and still be able to see Alf when we got home. Oh, what a world. We also broke free from slavery to the record companies by being able to create tapes that combined the good songs from many different artists, rather than having to fast forward past the inevitable “filler” to get to the good stuff. It was like the impossible-to-copy vinyl of the 70′s never existed, and that was a good thing. And people wonder why I call the 80′s the greatest decade ever.
This copyright paradise could have lasted forever if not for the advent of the music CD. All of a sudden, large-scale copying got easy. And fairly exact. And Sony had no kickback agreement for CDs, at least at first. This led to the first of many “Copyright Freakouts” starting in the late 90′s, where record companies banded together illegally (let’s be honest here — the RIAA is a classically illegal monopolistic organization where competition is undermined for the sake of making everyone involved more money) to fight a multi-tentacled attack on their customers. They sued Napster, a song-sharing program with a centralized database, and won. They sued Kazaa and other song sharing programs without centralized databases, and still won. They got William Jefferson Clinton to sign the DMCA, a draconian and blatantly anti-consumer piece of copyright legislation, which pretty much struck the concept of “Fair Use” from US law (unless you happen to be a library, which nobody is). They sued old ladies and little kids and college students under the DMCA (at $250,000 a song!), and got a bunch of settlements that served to scare file-sharers into purchasing music with money they didn’t have. Somehow, even after all this rampant suing, their customer base left and never returned. In retrospect, it may have been a mistake to pretend that anyone who downloads music without paying is a criminal. That may have engendered some resentment among the youth. But record execs are obviously smarter than me, so they probably know what would have happened if they just let Napster exist (or take it over), sell ads on it, create a legal site to download high-quality mp3′s (or, even better, develop your own compression scheme like Microsoft did), still sell CD’s to old people, and save ALL THOSE LEGAL COSTS. They’re right, that probably would have been a disaster.
Today, in 2010, we seem to be turning a corner on copyright. The Big Companies are winning, mainly by getting former employees installed in government positions. The DMCA has been unconstitutional for 12 years and isn’t going away. Fair use is pretty much a thing of the past. If I rip a CD to my computer, I can be prosecuted as if I were a shoplifter or black-market CD salesmen. The world has gone insane. I wonder: Why even have a constitution if we can’t stop the DMCA? Why even have a Congress if they’re going to listen to big business instead of their constituents all the time?
I’m being vague and bombastic here, I realize, but this isn’t an essay. It’s a blog post. I want to concentrate on the concept of fair use for a second, because it’s important. If we’re going to have copyright law, we need exceptions to that law. Copyright law is here to protect creativity; fair use is its necessary counterpart, and is there to protect innovation. Without fair use, there’s nothing to stop those that create content from controlling every instance and portion of that content to the fullest extent possible. That may not seem so bad until you realize exactly who we’re dealing with here. If networks/record companies/movie studios/ book distributors had their way, time-shifting would not be an option unless they deemed it ok — they would want to control the when, where, and how of your television-watching. Also, making a backup copy of a song you purchased would not be possible. If your hard drive crashed, you’d have to purchase the song again. If someone broke into your car and stole all your CD’s, you wouldn’t be able to make new ones from a backup. If a husband and wife liked the same CD and wanted to listen to it in different places at the same time, they would have to purchase a second copy. I promise you I’m not making this up. This is what these big companies are aiming for, and in some cases, they have already succeeded.
Which is why we need to come to a societal consensus on fair use. We can’t just strike it from our society because some people abuse it. This is art we’re talking about, and if we’re going to experience innovation in art, we’re going to have to protect consumer rights so that people will create new ways of delivering content. Would P2P technolgies like BitTorrent have been created and explored if not for indifference to copyright? Oh, wait. That’s right. We WERE creating and exploring BitTorrent, but then US ISP’s (already providing terrible service and bandwidth compared to the rest of the world) were strong-armed into “throttling” torrent bandwidth. Bye-bye, possible innovation. Hello, terrible data rates and complaining about net neutrality*.
By now you probably see why I’ve been hesitating to write anything on copyright. It’s a huge diamond of an issue with a crap-ton of facets. So let’s get back to fair use. On the one side of the spectrum, you have blatant copyright violations that everyone besides criminals would see as illegal — stuff like making a copy of a DVD and setting up a stand in front of Best Buy selling them for 5 bucks a pop. That’s obviously bad. On the other side, you have obviously private stuff that the government has no business making laws about — stuff like lending a DVD set to your cousin so he doesn’t have to purchase the whole thing, recording a tv program so you can watch it later, and backing up the music on your drive to an external drive or an iPod. In the middle somewhere is making a mix CD for a friend. There’s a legitimate debate as to where fair use ends. I don’t mean to suggest that copyright be abolished, just that other rights be seen as just as important. Keep your laws off my CD collection, Obama.
* Oddly enough, a chief complainer has been the usually innovation-minded Mark Cuban, who seems to think that net neutrality would tax US bandwidth to the point that it would affect the megabits-per-second of people who aren’t using their bandwidth to play internet games or download P2P files. If that is true, the solution is not punishing people for using the internet access they’ve paid for, it’s getting ISP’s to pay for infrastructure to alleviate any slowdowns. What the non-neutralists want is a tiered system where those who use more bandwidth would pay more. This would stifle any innovation that requires a constantly-working internet connection, because consumers wouldn’t want to pay for it. It would be a constant boondoggle. Net Neutrality forces ISPs to provide a fair product for a competitive price. Bandwidth isn’t a product; nor is it a commodity (though Enron tried to make it one). It’s just speed of access, that’s all. Paying more for speed makes sense. Paying for amount of data transfered does not. If we’re having trouble transferring data at the promised speeds, then those ISPs need to get some more switches and wires. This is 2010, for Pete’s sake. Let’s get some routers up in here.
