Saying “Copy” Was A Screw-Up

Transamerica ReflectionWhy is a song that I play digitally or a book I read electronically subject to extensive controls that are not considered appropriate to records or books? It’s because they are subject to licenses that can’t be applied by the seller to the physical works. Why can those licences be imposed on digital works? Because the use of digital works is considered subject to copyright, whereas the use of physical works is not. Why is that? Because the act of instantiating the work for use has been described as “copying”, allowing the rules surrounding copyright to be used as a threat to back up arbitrary license terms controlling use.

When I buy a physical work, the act of selling it “exhausts” all the control over normal enjoyment of it that arises out of copyright and the entity who created it no longer has a say on how I enjoy it – they can’t demand I accept a license as a condition of use.  But with a digital work, because each act of instantiation-for-use is called “copying” rather than some other name analogous with the physical world like “wrapping” or “inserting”, we’ve created a hook for the idea that a new act controlled by copyright law has taken place after the first sale of the work.

The control of the work is thus never considered exhausted and the copyright administrators are able to absolutely and indefinitely control use, including uses that save backups, uses that involve networks, uses that involve passing the work to a friend temporarily or to anyone permanently, uses that enrich society without endangering the author. All uses you’d naturally expect from something you had bought.

Controlling Culture

This control over those enjoying and using cultural works was neither precedented nor anticipated by legislators, so the basic law involved includes no attempts to balance the needs of society and of creators of works where digital works are concerned. Instead, the only limit on the controls imposed on users is the imagination of the businesses administering copyrights. The focus of that imagination is naturally the maximisation of income and control, even to the extent of creating scarcity artificially where it does not otherwise arise, so that the maximum number of control points exist for monetisation.

But even worse, the penalties the law provides for breaching those fanciful licenses are also unbalanced. They’re intended to punish people who unlawfully mass-manufacture, not those whose cultural enjoyment breaches some unreasonable-but-legal license. As a result they unjustly — but legally — apply overwhelmingly disproportionate punishments to ordinary citizens.

The licenses so devised are complex beyond the understanding of the untrained, they include arbitrary terms and restrictions, they are frequently and arbitrarily changed. All of these dimensions happen without any need to balance the needs of culture or citizens, since neither is a stakeholder for the copyright administrator. There’s no backlash because there’s little expectation of enforcement; all the same, automated enforcement is becoming increasingly common.  When a market is controlled by unrestrained licensing rather than by statute that’s a clear DNA marker for malaise.

So where did we go wrong? We mistakenly allowed the technical term for moving bits between buffers to be assumed to be equivalent to the term used by authors and other makers for creating a new original work for sale. They simply aren’t the same act, and the laws that have accidentally bled from mass production into cultural enjoyment are simply not fit for that purpose – how could they be?  When we said “copy”, we screwed up and it’s that error that really needs fixing.

[A revised version of this was posted to ComputerWorldUK on March 7, 2013]

It’s Not Just The Hugos

DRM farces are like London buses. You wait for ever, and then several come along at once. After writing my story for ComputerWorld about the blackout of the Hugo awards by a copyright enforcement robot with no concept of “fair use”, along came an even more stunning story. Yes, the big rally to reselect Barak Obama as candidate for the upcoming US elections was hit by a shoot-first-ask-questions-afterwards bot claiming to be protecting just about every content provider imaginable.

So I’ve updated and expanded the story for InfoWorld – take a look. The key quote:

“When a technologist embodies their or their employer’s view of what’s fair into a technology-enforced restriction, any potential for the exercise of discretion is turned from a scale to a step, and freedom is quantized. That quantization of discretion is always in the interest of the person forcing the issue.”

When you assign algorithms to make subjective judgements, they can’t. Instead, they impose the biases of the people who created them. The content distributors, like UStream and YouTube have a bias, created by US law, to block anything that might turn out to be infringing, because that’s how they get “safe harbor”. Thus the technology they wrote or bought from snake-oil suppliers is imposing their bias.

We fix it not by getting the suppliers to do better bots – they can’t, algorithms are incapable of subjective judgement – but by fixing the law so it doesn’t incent the providers to have this bias.

“Fair Use” Robots Are Science Fiction

The black-out of the Hugo Awards by a “robot” that thought the clip of Doctor Who shown just before Neil Gaiman spoke was proof positive of piracy is educational. My article on ComputerWorldUK today explains why.

Bad News For The Meshed Society?

The Oracle/Google initial verdict is out in the US, and it’s bad news for the 21st century software industry. My take is on InfoWorld, but there’s still a fragment of hope – the judge could still rule that APIs are not in fact copyrightable (which would be a sensible taking-on-board of the SAS/WPL verdict in europe) and thus the jury’s finding is inapplicable.

Update: Looks like the EFF is on the same wavelength.

☝ Let The Bible Go Free!

News emerged Friday that the British government intends to send a copy of the Bible (along with some immortal words penned by Michael Gove) to every school in the country. Rather than doing that, I would prefer them to reform copyright for the digital age so that school children can quote from the Bible in their (computer-mediated) school work without breaking the law.  Read more over at ComputerWorldUK.

☝ Out Of Tune With Community

The first release of the contributor agreements created by Project Harmony were published last Monday. I participated in the Project, but I don’t endorse it. Find out why over on ComputerWorldUK.

☝ OO.o, TDF and CLAs

Yesterday I read LWN’s (paywalled but accessible from here) interview with Mark Shuttleworth, where he is quoted as saying that the formation of The Document Foundation (TDF) and its launch of LibreOffice “led Oracle to finally decide to stop OpenOffice development and lay off 100 employees.”  Mark says this in the context of his new campaign as an apologist for Contribution Licensing Agreements, about which I have written extensively.

I felt that Mark’s use of as an argument in favour of CLAs was jaw-dropping, so I wrote a response on the plane home today. You can read it now behind LWN’s paywall using my special link.

%d bloggers like this: