13. How Copyright Broke

(Originally published in Locus Magazine, September, 2006)

The theory is that if the Internet can't be controlled, then copyright is dead. The thing is, the Internet is a machine for copying things cheaply, quickly, and with as little control as possible, while copyright is the right to control who gets to make copies, so these two abstractions seem destined for a fatal collision, right?

Wrong.

The idea that copyright confers the exclusive right to control copying, performance, adaptation, and general use of a creative work is a polite fiction that has been mostly harmless throughout its brief history, but which has been laid bare by the Internet, and the disjoint is showing.

Theoretically, if I sell you a copy of one of my novels, I'm conferring upon you a property interest in a lump of atoms -- the pages of the book -- as well as a license to make some reasonable use of the ethereal ideas embedded upon the page, the copyrighted work.

Copyright started with a dispute between Scottish and English publishers, and the first copyright law, 1709's Statute of Anne, conferred the exclusive right to publish new editions of a book on the copyright holder. It was a fair competition statute, and it was silent on the rights that the copyright holder had in respect of his customers: the readers. Publishers got a legal tool to fight their competitors, a legal tool that made a distinction between the corpus -- a physical book -- and the spirit -- the novel writ on its pages. But this legal nicety was not “customer-facing.” As far as a reader was concerned, once she bought a book, she got the same rights to it as she got to any other physical object, like a potato or a shovel. Of course, the reader couldn't print a new edition, but this had as much to do with the realities of technology as it did with the law. Printing presses were rare and expensive: telling a 17th-century reader that he wasn't allowed to print a new edition of a book you sold him was about as meaningful as telling him he wasn't allowed to have it laser-etched on the surface of the moon. Publishing books wasn't something readers did.

Indeed, until the photocopier came along, it was practically impossible for a member of the audience to infringe copyright in a way that would rise to legal notice. Copyright was like a tank-mine, designed only to go off when a publisher or record company or radio station rolled over it. We civilians couldn't infringe copyright (many thanks to Jamie Boyle for this useful analogy).

It wasn't the same for commercial users of copyrighted works. For the most part, a radio station that played a record was expected to secure permission to do so (though this permission usually comes in the form of a government-sanctioned blanket license that cuts through all the expense of negotiating in favor of a single monthly payment that covers all radio play). If you shot a movie, you were expected to get permission for the music you put in it. Critically, there are many uses that commercial users never paid for. Most workplaces don't pay for the music their employees enjoy while they work. An ad agency that produces a demo reel of recent commercials to use as part of a creative briefing to a designer doesn't pay for this extremely commercial use. A film company whose set-designer clips and copies from magazines and movies to produce a “mood book” never secures permission nor offers compensation for these uses.

Theoretically, the contours of what you may and may not do without permission are covered under a legal doctrine called “fair use,” which sets out the factors a judge can use to weigh the question of whether an infringement should be punished. While fair use is a vital part of the way that works get made and used, it's very rare for an unauthorized use to get adjudicated on this basis.

No, the realpolitik of unauthorized use is that users are not required to secure permission for uses that the rights holder will never discover. If you put some magazine clippings in your mood book, the magazine publisher will never find out you did so. If you stick a Dilbert cartoon on your office-door, Scott Adams will never know about it.

So while technically the law has allowed rights holders to infinitely discriminate among the offerings they want to make -- Special discounts on this book, which may only be read on Wednesdays! This film half-price, if you agree only to show it to people whose names start with D! -- practicality has dictated that licenses could only be offered on enforceable terms.

When it comes to retail customers for information goods -- readers, listeners, watchers -- this whole license abstraction falls flat. No one wants to believe that the book he's brought home is only partly his, and subject to the terms of a license set out on the flyleaf. You'd be a flaming jackass if you showed up at a con and insisted that your book may not be read aloud, nor photocopied in part and marked up for a writers' workshop, nor made the subject of a piece of fan-fiction.

At the office, you might get a sweet deal on a coffee machine on the promise that you'll use a certain brand of coffee, and even sign off on a deal to let the coffee company check in on this from time to time. But no one does this at home. We instinctively and rightly recoil from the idea that our personal, private dealings in our homes should be subject to oversight from some company from whom we've bought something. We bought it. It's ours. Even when we rent things, like cars, we recoil from the idea that Hertz might track our movements, or stick a camera in the steering wheel.

When the Internet and the PC made it possible to sell a lot of purely digital “goods” -- software, music, movies and books delivered as pure digits over the wire, without a physical good changing hands, the copyright lawyers groped about for a way to take account of this. It's in the nature of a computer that it copies what you put on it. A computer is said to be working, and of high quality, in direct proportion to the degree to which it swiftly and accurately copies the information that it is presented with.

The copyright lawyers had a versatile hammer in their toolbox: the copyright license. These licenses had been presented to corporations for years. Frustratingly (for the lawyers), these corporate customers had their own counsel, and real bargaining power, which made it impossible to impose really interesting conditions on them, like limiting the use of a movie such that it couldn't be fast-forwarded, or preventing the company from letting more than one employee review a journal at a time.

Regular customers didn't have lawyers or negotiating leverage. They were a natural for licensing regimes. Have a look at the next click-through “agreement” you're provided with on purchasing a piece of software or an electronic book or song. The terms set out in those agreements are positively Dickensian in their marvelous idiocy. Sony BMG recently shipped over eight million music CDs with an “agreement” that bound its purchasers to destroy their music if they left the country or had a house-fire, and to promise not to listen to their tunes while at work.

But customers understand property -- you bought it, you own it -- and they don't understand copyright. Practically no one understands copyright. I know editors at multibillion-dollar publishing houses who don't know the difference between copyright and trademark (if you've ever heard someone say, “You need to defend a copyright or you lose it,” you've found one of these people who confuse copyright and trademark; what's more, this statement isn't particularly true of trademark, either). I once got into an argument with a senior Disney TV exec who truly believed that if you re-broadcasted an old program, it was automatically re-copyrighted and got another 95 years of exclusive use (that's wrong).

So this is where copyright breaks: When copyright lawyers try to treat readers and listeners and viewers as if they were (weak and unlucky) corporations who could be strong-armed into license agreements you wouldn't wish on a dog. There's no conceivable world in which people are going to tiptoe around the property they've bought and paid for, re-checking their licenses to make sure that they're abiding by the terms of an agreement they doubtless never read. Why read something if it's non-negotiable, anyway?

The answer is simple: treat your readers' property as property. What readers do with their own equipment, as private, noncommercial actors, is not a fit subject for copyright regulation or oversight. The Securities Exchange Commission doesn't impose rules on you when you loan a friend five bucks for lunch. Anti-gambling laws aren't triggered when you bet your kids an ice-cream cone that you'll bicycle home before them. Copyright shouldn't come between an end-user of a creative work and her property.

Of course, this approach is made even simpler by the fact that practically every customer for copyrighted works already operates on this assumption. Which is not to say that this might make some business-models more difficult to pursue. Obviously, if there was some way to ensure that a given publisher was the only source for a copyrighted work, that publisher could hike up its prices, devote less money to service, and still sell its wares. Having to compete with free copies handed from user to user makes life harder -- hasn't it always?

But it is most assuredly possible. Look at Apple's wildly popular iTunes Music Store, which has sold over one billion tracks since 2003. Every song on iTunes is available as a free download from user-to-user, peer-to-peer networks like Kazaa. Indeed, the P2P monitoring company Big Champagne reports that the average time-lapse between a iTunes-exclusive song being offered by Apple and that same song being offered on P2P networks is 180 seconds.

Every iTunes customer could readily acquire every iTunes song for free, using the fastest-adopted technology in history. Many of them do (just as many fans photocopy their favorite stories from magazines and pass them around to friends). But Apple has figured out how to compete well enough by offering a better service and a better experience to realize a good business out of this. (Apple also imposes ridiculous licensing restrictions, but that's a subject for a future column).

Science fiction is a genre of clear-eyed speculation about the future. It should have no place for wishful thinking about a world where readers willingly put up with the indignity of being treated as “licensees” instead of customers.

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