THE COPYRIGHT MONOPOLIES & THE ATTACK ON OUR FREEDOMS
The case for copyright reform
(an essay in 10 parts by Leflaw)

HE COPYRIGHT MONOPOLIES & THE ATTACK ON OUR FREEDOMS
an essay by Leflaw

Introduction
I. Copyright vs. cloneright - mass digitization, lobbying and litigation.
II. The battle for control of the internet.
III. Amendments to copyright law expand power over content
IV. Consolidation in the music industry
V. Deregulation and concentration of ownership in radio
VI. Digital standardization of TV
VII. The rise of open source and Linux movements
VIII The media and the war on terrorism
IX Microsoft and the media
X. Lawsuits as anticompetitive conduct

Introduction

We believe that the core American values guaranteed by the US Constitution such as freedom of speech, freedom of assembly, freedom from unreasonable searches and seizures, limited copyright and patent monopolies, right to trial by jury and freedom of thought itself, and others are being attacked by the music and entertainment industries in the name of "protecting copyrights," or "attacking piracy," or "protecting artists rights." We are witnessing an Orwellian future unfold before our eyes, orchestrated by copyright monopolies that have no allegiance to any country, let alone the US constitution. And if you are not from the United States, you should still feel threatened, because our constitutional safeguards are a model for the world, and they must survive this onslaught by the media and entertainment conglomerates who have been constantly attacking these safeguards.

We believe that we are at a point in United States history where a dangerous combination of private power and government intrusion imminently threatens our way of life. We see it in the music industry first, but it is only a harbinger of things to come, unless we act now.

The merger of entertainment and politics is not new; we have to look only to Nixon on Rowan & Martin's Laugh-In, or Ronald Reagan's governorship and presidency to see the power of the merger. The Clintons became groupies for Hollywood and rock stars early on (recall Bill Clinton and Al Gore appearing on MTV during the 1992 elections). But in the last decade, several trends have coalesced to directly threaten our constitutional freedoms, and they seem to be emanating from the music and entertainment industries.


I. Copyright vs. Cloneright:

Mass digitization of the media and entertainment industries has resulted in recent lobbying and vexatious litigation to eliminate alternative distribution channels.

Beginning in the 1980's there was a rush to digitize, or reduce to binary information, everything under the sun. Color, speech, music, sound, film, music. Obviously, once something becomes digitized, it is freely or cheaply reproducible in exact copies, whether or not in tangible form. The expenses of printing and distribution are greatly reduced or eliminated. Thus self publishing becomes a realty. New "content" becomes ubiquitous and therefore cheap. At the same time, old content, once digitized, may be freely copied and moved across computer networks, rendering traditional copyright concepts almost useless. Every computer that runs Windows and its "File \ Save" commands can copy data files effortlessly regardless of copyright. And neither Windows 95 nor 98 had security or DRM -- digital rights management. That would have been counter-intuitive to the computer industry growth mentality of the 1990s. Microsoft chose to keep the system DRM-less (and indeed, security-less) for the sake of market share and growth, and is only now turning to DRM and security in Windows XP.

Copying binary information from computer to computer goes to the essence of the concept of network computing. It is the ghost in the machine and totally antithetical to traditional notions of copyright, simply because no material objects are produced as a results of the "copy," unless output to a device such as printer or a CD-RW is specified. Even now, the Copyright Act in 17 USC 101 defines a copy as being a material object. One might argue that a hard drive is a material object, but even that is a stretch, because no one sells or distributes their hard drive -- that would require a further act of duplication. Besides, it is possible to run a server entirely with RAM and a CD-ROM or DVD-ROM. File sharing is even a more challenging analysis, since it merely results in duplicating an intangible data file onto a hard drive. Believe it or not, as recently as 1993, the courts had not yet confronted the question of whether or not copying or cloning a computer file onto a hard drive was "copying" within the meaning of the Copyright Act. In MAI v. Peek (sixth cir., 1993) the court decided that it was, but stated without discussion that "it was a case of first impression." Yet that case was utilized in 2000 by a federal court in Time-Warner et al v. MP3.com to justify one of the largest copyright awards ever.

It must be remembered that up until the 1980's it was generally considered a waste of time to copyright a computer program, since it was thought that patent protection was stronger, and that computer code was somehow different from the types of artistic "writings" in tangible form covered by copyright. After the "look and feel" cases of the early 1990's (Apple v. Microsoft and Lotus V. Borland), copyright law was generally thought to be weak protection for software, resulting in, for example, Apple's inability to stop Microsoft from building Windows operating system, though clearly based on Apple's OS.

Likewise, the Copyright Act was clearly not designed to deal with dissemination of content in the form of digital data files. Even now, the copyright office requires a film or movie or music recording to be submitted for registration in the form of material copies. Until the advent of digitization, each tangible copy was perforce inferior to the original because of the necessary analog duplication processes (tape, vinyl disk, lithograph, etc), and were relatively difficult to make or counterfeit. On the other hand, computer to computer copying is almost electrical telepathy. As we speak, computer chips which can be implanted into the brain to restore human sight are being developed and deployed. And the fundamental definition of copyright, that it protects not ideas but the expression of the idea, is challenged as biotechnology and computing draw closer to each other. As artificial machine intelligence begins to emerge, the copyright industries have decided to apply twentieth century government-sponsored monopoly principles to it.

On the other hand, as the worldwide web made the electronic cottage a reality, individuals are now connected, bypassing distribution monopolies and governments. Because of Moore's law of increased processing power, it was foreseeable by the late 1980's that the electronic cottages and digital networks, whose only real assets were their copyrighted libraries, most of which protected by US copyright laws, would threaten old-time entertainment and media conglomerates by the mid 1990's. These laws have grown progressively longer in the twentieth century, from two terms of 28 years, passed in 1909, to life of the author plus fifty years, enacted in 1976, to a 20 year extension under the Sonny Bono Copyright Extension Act of 1998, currently under review by the Supreme court in Eldred v. Reno. The last copyright decision before that was Tasini v. New York Times, in which the Supreme Court announced, much to the amazement and consternation of the New York Times and the entire media industry, that freelance writers retained rights in the digital versions of their stories. Application of traditional copyright principles to the new digital media apparently yields unpredictable consequences.

The first industry to feel the effects of mass digitization was not the film, print, nor text industry, as may be expected, but the music industry, and for two reasons. First, since 1980 the music industry has been selling compact discs that are 16 bit/44.1 mhz digital versions of the analog masters in its vaults. These compact discs have neither copy protection nor security. Second, the music industry was the first to completely digitize their product line, and their digitized unit (the "4 minute pop song" could be digitized into a 50 megabyte wav file by 1993 and moved across a network with a modem in an hour or so, even before the advent of the mp3 compressed file format.

The copyright vs. cloneright dilemma hit the music industry first because music files were smaller and thus transmitted easier than a two hour movie. Moore's law would soon catch up to the movie industry, too. However, the advent of the mp3 sound file format, which compressed the sound file to one tenth of its size, coupled with the spectre of broadband internet access, sparked the music industry into action in the 1990's.

The content industries' response was and remains complex. Some companies, such as Sony, have been heavily involved in developing and exploiting digital technology, and their history is one of acquiring content companies to expand their consumer product line. So, they emphasize the consumer's needs, such as ease of copying. AOL/Time Warner's attitude remains equally ambivalent, since expansion of copyright laws to benefit Time Warner's copyrights could increase AOL's liability as an internet service provider hosting files potentially infringing on those copyrights. Since these companies are conglomerates, there is infighting at these companies over the direction of copyright laws. Many of the large record companies are part of conglomerates who are members of DIMA, a digital media lobbying association that often opposes initiatives proposed by the music industry trade association, The RIAA.

Until the 1990's the RIAA was a little known trade organization of the recording industry. The recording industry, alas, did not enjoy the best of reputations. See, for example, http://www.mp3.com/news/227.html,[ no longer there - so see http://news.dmusic.com/article/8462 for article- ed.] a short discussion of mob involvement in the music business. Yet in the 1990's, the RIAA emerged as a sponsor of some earth-shattering legislation.


NEXT: Part 2

The battle for control of the internet

as computers advance, drawing a line anywhere will become harder and harder until human nature comes along and has them just drom the copyright, because any sort of line will become almost impossible to justify.

Ahh I wish I could be around to see the quantum computers. I want to see someone try to encrypt something that can't be broken by one of those.

Here's an interesting situation: We seem to be battling an older generation (overall) and it's laws being attacked by both our generation and the older generation too. What will we be fighting the next generation over? No doubt whatever happens now for us won't suit the generations to follow. *brain cell implodes*

Its not generational. The tension is between the monopolies and the consumer, and the monopolies are getting stronger as the consumer gets weaker. The digital era has more snakeoil than the 1890's.

The copyright holders only get stronger because the consumer gives them the power. If teenyboppers stopped buying what 45 year old businessmen sell, there'd be a lot less power in the hands of the monopolies.

The one chance to break the entire thing rests with teens, who are naturally cynical and rebellious. All one has to do is convince them that buying anything new is so unhip -

Ancecdotally, I've just recently been broadsided by my friend's 12 year old daughter. She is in a network of girls and they all share CD's, and have burn and copy parties! All on her own, with the other kids, they came up with this. Her parents don't have a clue what is going on, and in the case where she's gotten a protected disk, I've shown her how to jump the analogue gap, and record directly with her walkman headphone line out plugged into her computer. She even found an app that lets her set the breaks in the songs, so when she burns them, they can have seperate tracks! I am so proud of the kids these days.

Deb.

Good articel Leflaw. I assume the other parts will come in due time.

I'll bet there will be some law students would would like to plagarize this for one of their assignments.

Great article lef. Copyright law has been made far to difficult and complex, in some ways, seemingly, to make it inaccessible to the masses. This is just a super article Lef...
thank you!
~CodeWarrior

PS...also wanted to thank Tom Barger and George D. Ziemann. You guys ROCK
~Code

Wow... Great essay

The link to the "mob" article referenced above at MP3 doesn't work...

I know... I will get it for you ....

This has given me a serious idea. We can force a determination on whether or not an mp3 file is a material object.

Pressure the Library of Congress to accept mp3s -- via the Internet -- as the "deposit" copy for copyright registration.

If the digital files are acceptable as a tangible copy, then why can't we fill out an online form and upload an mp3 to facillitate copyright?

Currently, it takes 8 to 10 months to get a copyright form processed, from my experience, mostly because they do it by hand. Can't they put up a php site and accept it over the net?

Pushing the copyright office into the digital age (which it is decades away from) will force legal rulings on some of these issues. If an mp3 is a tangible copy under copyright law, make them accept those files.

If not... well the RIAA has some splainin' to do...

I would love permission to reprint this article and those that follow. Who do I talk to about this?
Great information!

George, great observation and idea.
Count me in on that!
~Code

thanks for the efforts Tom Barger and George D. Ziemann.. thanks for this post leflaw. We all need to be current with whats going on and be thinking about these issues. I sure as hell am.

GEORGE!!!!!!!!!!!!!!!

Feel free to reprint, folks. Just not for "commercial" use, whatever that means.

wow waht a great article... i was getting into it and now i have to wait. I hope its not like one those damn e-books where you read one chapter and for 9.95 you can buy the rest of it

You are teading on many areas of my own world essay, leflaw, either you are a intellectual property thief--or is the entire conspiracy of Mob and Patriot Act really happening'!!???

Please note, the Junior achievment Copyright program in schools makes it official, in thrir own words: "Your homework is copyrighted at the moment of concenception. How would you like it if someone stole your work?"

You talkin' to ME? YOU talking to me? You TALKIN' to me? Let 'em have my homework, I love it. Let it go forth, prolieferate and multiply.

Anyway---need to shape up your Constitutional Amendment masterpiece Lef. My own essay piece is on the way. Mighty hard to wrap everything up when shit like cancelling the Nancy Reagan PMS Hour at CBS is hold-the-presses time for me moi."It's done when it's done"--unless it's not.

leflaw wouldn't do that, You will just have to get all the chapters (all ten posts) to get the entire "book", well written leflaw. wish I had more to say, but i'm so darn tired leep:

Wonderful, Leflaw. Always enjoy reading your essays. Very informative. I have an idea for one of your sister sites: Leflaw's Online School of Copyright Law Reform. It will be a huge hit.