theinforager

The Inforager went deep into a discussion about copyright infringement and discovered…it’s a really, really big can of worms!

The journey I took started with a lecture posted by Lawrence Lessig called “Free Culture” back in 2002. In it, he rails against the culture of creative repression and control created by today’s draconian copyright laws, lawyers and big corporations.

Lessig’s talk was aimed at developers and the concept of free sharing of code; and it was designed to garner support to counterbalance the intrusion of legal and legislative forces in ways that stifle creativity, competitiveness and progress. His extrapolations about the need to make all creative work more freely available are rooted in net culture and carry the polemic weight of all those who believe in both free speech and the EFF’s mission: “Defending Freedom In the Digital World”

EFF

Lesig’s argument is built from a historical perspective—inscribing an arc that extends from the 1700’s to modern times—from a tradition of limited copyright protection and free sharing of information to the 21st century which he calls “the most restrictive in history” in terms of creative freedom. He draws on interesting, historical case law and uses as an example of creative freedom the Walt Disney Corporation’s foundation: Steamboat Willie was a rip and everything from Snow White to Pinnochio was produced because the stories were in the public domain.

He assumes that a more permissive copyright environment promotes creativity by allowing derivatives, parodies and copying. Because, after all, “creativity and innovation always builds on the past” .

In his talk Lessig asserts about the early 20th century:

“It was culture, which you didn’t need the permission of someone else to take and build upon”

He doesn’t define build upon, but one assumes that the next creative leap forward stands on the shoulders of the previous work and so on.

But what separates intention? How to anticipate who might “build upon” or “share” through parody, derivation or even simple distribution, from those who are going to PROFIT from those same actions.

That’s where I lost the plot and start thinking about THE OTHER SIDE.

Here’s how copyright is defined by the copyright office.

copyrightlaw

Lessig is right. It’s about CONTROLLING the work. It grants to the person who owns it the right to determine how it’s used. This in and of itself isn’t a bad thing—unless of course the controller levees egregious and stifling regulation, fees, etc. which many artists and copyright holders do. And he argues that copyrights have been extended from an original intention of 14 years to life of the author, plus 70 years. In his view, today’s copyright laws this unfairly create an “ownership culture” that inhibits the natural process of building upon the past. He also delves deeply into restrictions on fair use, especially regarding the internet where “everything is a copy”.

One man’s restriction though is another man’s right to circumvent publishing royalties.

Copyrights are being attacked as unnecessarily restrictive by professors—who want freedom to print long passages from books rather than have students buy them.

textbooks

“Professors are making material available free rather than requiring students to buy $100 textbooks. While faculty members from Harvard University to the University of Pennsylvania complain of a restricted flow of ideas, publishers say they must protect $3.35 billion in annual U.S. college textbook sales.”

Presumably they are talking about being free to distribute materials from books OTHER than their own.

“Like the music and film industries, which are fighting unauthorized copying and file sharing, book publishers are taking on a generation of students and younger faculty members raised on free Internet content.”

Mr. Lessig and a legion of bloggers, posters and opinion makers who deplore the very nature of copyrighting work assert that the motion picture and other industries inflate their estimates of damages by a factor of 5 then claim that 5% of the massive total dollar volume is lost….

Yet the numbers are staggering. Again, it’s all in which spin you look at and which data you believe.

But what’s more interesting is the basic argument wherein both sides claim justification and the higher ground.

articleexcerpt

(excerpt from answers.com: is this a violation? )

“Copyright holders and pro-copyright organizations commonly release statistics showing their estimated losses due to copyright infringement in an attempt to deter the activity. For example, the MPAA estimates the global cost of the unauthorized copying of films in 2002 to be $3.5 billion.[3] Many, including some engaged in copyright infringement, have been critical of these figures, arguing that it is unreasonable to assume that every download of a film represents a lost movie ticket or DVD purchase: a person who downloads a film may not necessarily have gone to the theater or have purchased a DVD had the download not been available. Furthermore, there are instances of films benefiting from the exposure, particularly independent and cult films.

In general, there are a number of rationales used by people making unauthorized copies of works to morally justify their actions, though not all engaged in the activity do so. Copyright advocates generally dismiss the validity of these claims.

* In the case of not-for-profit file sharing, some see the entire concept of copyright restrictions as absurd. They argue that since sharing a copy of their data costs nothing, it would be unethical to not share when someone else asks for a copy.
* Copyright infringement is sometimes claimed as a form of boycott. For example, selective copying of music published by major record labels can be used to protest the low percentage of total record sales that is paid back to artists.
* With the try before you buy mentality, if a downloaded album, film or piece of software is deemed useful the person will then buy it, otherwise it is deleted.
* Conversely, some choose to download only those products which they would otherwise be unable to afford, reasoning that in so doing they do not damage any company’s profits.
* Many legitimate products are unavailable in parts of the world, as they are often too expensive for most of the local population to afford. In much of the third world, even people who could normally afford to buy legitimate products can’t do so, as unauthorized versions are the only versions available.
* The free spread of media stimulates the industry both by creating new artists and exposing new people to current artists.
* Musicians tend to make the bulk of their profits from concerts, rather than the exploitative low percentages of sales given to them by their recording companies. Increased exposure is likely to lead to more people going to see live music and therefore, indirectly, piracy might lead to greater profits for the actual artists.”

Is posting and co-opting content and other people’s work as your OWN a parody or rip off? The gigantic lawsuit filed against Youtube and Yahoo will be a landmark struggle between services and portals who argue they can’t control what their members do and those who are on the side of more restrictive copyright protection.

lawsuit

Aside from the moral and financial issues, Lessig seems most outaged by the current climate of copyright restriction because not only is it stifling creativity, it is quickly turning into an economic weapon.

And here he is on solid ground. Here is where I flip BACK to his side.

When the idea of copyright protection shifts from “defensive to offensive” the whole argument shifts direction. He quotes Bill Gates:

“Let’s talk about software patents. There’s a guy, Mr. Gates, who’s brilliant, right? He’s brilliant. A brilliant business man; he has some insights, he is even a brilliant policy maker. Here’s what he wrote about software patents: ‘If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents, the industry would be at a complete standstill today…… The solution is patenting as much as we can. A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high. Established companies have an interest in excluding future competitors.’”

So now patents and copyrights aren’t protections, they are weapons.

Is this an example of give an inch take a mile: the law and lawyers move in to protect artists and their work, then do some legal ju-jitsu and bam, suddenly the same laws are offensive weapons.

That’s the nature of competition and, apparently law. But where’s the opposing force; where are those who do not want to see an industry where small players are locked out and ownership is purchased rather than protected? And that’s the question he pounds home.

It’s a good one: what ARE we doing to counteract this and many, many other incursions by government, watchdogs, industry groups and lawyers?

Lessig then brings it all home with a discussion of attacks on p2p net (peer to peer networks) by industry groups who have the power to unleash a destructive virus to stop unauthorized copyright violators—BEFORE the alleged actions are reviewed or tried by law.

This blogster and others are not particularly keen on that:

blogster excerpt

The “copyrighter” calls RIAA the “sultans of spin” , includes lots of articles on copyright and current culture and cites a study detailing how much content on YouTube is really “infringing” . In other words, he could be a fanboy of EFF or an independent thinker. Who knows, but there is a lot of material here to consider.

The discussions are heated; the posters and bloggers are legion and the battle lines are drawn—the voices of freedom vs. the voices of commerce and control. Who wins? In this debate—we all do.