Why Is This Hill So Steep?

by Steve Jordan

  And while these camps argued incessantly, there was another group standing outside of the camps: They were the lawyers representing the creators and publishers, and the law-makers, all of whom were patently ignoring the arguing camps while they did their usual business. The lawyers were glad to step up and do their jobs, when authors and publishers began adding DRM to their works, and pursuing individuals with the idea of suing them for damages. Beyond that, they were not interested in the details or morals of the situation. They were essentially spending their efforts on maintaining the status quo, and turning a blind eye to the real impact and ramifications of the digital era… easy to do, since it did not impact them overmuch, nor were their compatriots in other countries agitating for changes to copyright law.

  ~

  As digital documents began to flourish and proliferate, those international copyright issues were becoming increasingly highlighted. Unfortunately, the relative ease of circumventing copyright laws, added to an ongoing debate as to the nature of digital files and their need for protection under copyright law, continued to throw a shadow over every discussion. The overlying question of every overt discussion about digital copyright was, “Why should we care?”

  Naturally, the significant majority of those who discussed the matter were in the “Who cares?” camp; they represented the consumers, of which there are always significantly more of than creators in an industrial economy. Although their arguments were rarely practical, or even logical, they managed to overwhelm the more realistic arguments of the creators simply by sheer force of numbers. Perfectly reasonable explanations of why a creator deserved to be compensated for their work, and why copyright was an effective tool to provide those protections, were being constantly shouted down by the “Our needs are more important than yours” pundits. In fact, given the clear message being presented by the vast majority of consumers, it’s a wonder more creators didn’t get fed up and abandon writing for government jobs (where they could at least get a steady paycheck while feeling downtrodden and underappreciated). To listen to many of the older creators, it was clear that they hoped to reach comfortable retirement before the masses had their way.

  Of those who managed to discuss copyright more reasonably, the actual terms of copyright were usually the center of discussion, specifically: How long did a creator have a right to profit off of their work before it was released to public domain? Early copyright law often chose time periods that accounted for a significant part of the life of the author (a period of time that has extended by a few decades since then). But some argued that an author did not need to control copyright for their entire lifetime, that they should not have an “unfair” advantage of being able to (potentially) cease working after creating one profitable work; and that a significant but limited number of years, often described as anywhere between ten and fifty, should be sufficient.

  Others allowed so many years beyond the author’s death, to provide an income to the creator’s family or offspring. Although the question of how long an offspring deserved to profit off of their parent’s accumulated wealth was a subject of debate, the concept itself was considered by many to be reasonably sound. Most consumers seemed to agree, however, that once an offspring was an adult themselves, they no longer absolutely needed to profit from their parents’ works.

  Again, the consumers and the creators argued these issues incessantly, while those who would actually make policy largely ignored their concerns and maintained the status quo. So a lot of words were spent, that had almost no impact on the issue at hand.

  ~

  Much of the copyright debate was considered controversial because it was in direct opposition with the laws governing most physical property, for instance, a home or valuables. In those cases, no one questioned whether or not an adult would come to own his ancestral home (assuming it was owned outright by his parents), or the property therein, upon their parents’ death, and could continue to pass said property down through generations. The civilized world had developed chiefly around physical property rights, and those rights were considered moral, sensible and practical.

  However, written ideas, documents, etc, were not considered to be the same as physical property: They were, by definition, “intellectual property,” or IP. They were not directly quantifiable the way a single object of art, or a house, could be; a single idea could be spread to, and used by, millions. Although the ramifications of this were duly recognized by the minds of the earlier ages, they already had a way to treat intellectual property as a form of physical property, since dissemination of that IP meant inscribing it to paper. Eventually the paper the idea was inscribed upon was considered a license to access that property, controlled by establishing who had the right to print and distribute more copies of the property. The copyright laws that they wrote reflected that reality, and were used to provide a means of control. Today’s printed book distribution system is essentially based on this concept.

  The music industry had depended on the same principles of tying an item of IP (a song) to a physical product (a music book, a record, a CD). Up until the end of the twentieth century, this strategy had been very effective in controlling music rights, as illicit reproduction of copywritten music en masse was either difficult, or not widespread enough to be a significant financial loss to tolerate. But in the first decade of the twenty-first century, the development and proliferation of the MP3 file demonstrated that copyright law did not provide enough protection to prevent the replication and dissemination of copywritten works by those who did not own those rights.

  The e-book industry found itself facing the same problem, and looking to the music industry for solutions. Unfortunately, the music industry hadn’t managed to find a solution to the copyright issue by this time either, so they were no help to the e-book industry. In fact, the only thing the music industry had managed to demonstrate was how to spend a criminal amount of money on lobbying and creating organizations designed to isolate individuals who had disseminated digital music, and sue them for a fraction of a percent of what had been spent to catch them.

  ~

  While all the debate carried on, consumers were already pursuing e-books, and many found themselves torn between the desire to get digital entertainment for free, and to pay the content creators for it. The problem was, most of them knew they could find, with a minimum of searching, copies of books on illicit sites that they could download for free, and with no adverse legal impact on them whatsoever. The Anarchists had been busy over the years, and had amassed an impressive quantity of illegally-posted material that was just waiting for download.

  This reality made it hard for even the most moral of consumers to resist… and in discussions and forums, they often referenced this fact and used it to pseudo-rationalize taking content they wanted. The popular tactic was to blame the person who illicitly put the work online as being fully at fault, while they themselves could not be blamed for taking advantage of the situation… sort of blaming the bull who broke the fence, or the farmer who didn’t come and fix it, for their being able to walk onto the farmer’s property and take an apple from their tree.

  Most of those consumers also didn’t see the problem in making a copy of an e-book and sharing it with a friend, rationalizing that it was only one duplication (or a few, if it was to a few friends), and would do little real damage to a creator as far as loss of income was concerned. They pointedly ignored the possibility that their friends might further copy and redistribute the book, possibly to a website for open download, and therefore extend by any order of magnitude how far their “one duplication” could end up going. And as long as there was no way to reliably track illicit copies of an e-book, many of them took solace in the fact that a problem unquantified couldn’t be a serious problem at all…

  ~

  It would be left up to only one faction to decide on copyright: The e-book sellers.

  Faced with a public that seemed to have an unlimited capacity to rationalize not paying for boo
ks, and a government that seemed uninterested in hearing about it, many retailers resorted to implementing security measures to limit illicit copying and dissemination of works… DRM. Their goal, I’ll reiterate, was to limit… they knew that no DRM would be perfect. But they believed that the majority of the public would accept their DRM, as long as the overall process of buying and reading e-books was acceptable to them. And if the majority of the public bought their books and did not break existing copyright laws, the retailers could live with the loss caused by the rest of the consumers… the Anarchists and their uber-rationalizing brethren.

  Amazon.com may be the best example of this strategy. Their Kindle store, a combination of DRM-secured content read on a company-controlled but easy-to-use reader, is specifically designed to limit the number of people that will break copyright, therefore mitigating loss to a reasonable level. In a way, Amazon is demonstrating the time-honored pre-21st century principle of using the Kindle as the “physical packaging” to control its intellectual property, thereby (and conveniently) not having to make any changes to existing copyright law. Other methods of DRM practiced by other sellers are designed with the same basic concept, tying the document to a physical container, in mind.

  As a selling solution, it worked… but in terms of copyright law, it was a bandage on a broken bone. Its innate ineffectiveness was quickly brought to the fore when the subject of selling e-books internationally became a reality: Suddenly, companies like Amazon found that international copyright law did not allow them to sell overseas, even as they had sold physical books overseas before; and they found themselves cutting off previously-established markets from e-book selling, further angering foreign consumers who hoped, just like domestic consumers, for e-books for their collections. And of course, the DRM could still be cracked or circumvented.

  The opposite end of the spectrum was the “open license” copyright, pioneered by many individual e-book writers. The open license was essentially an “agreement” between the author and the consumer that they had the right to do anything they wanted with the e-book they’d bought, except to replicate it to other parties without express permission of the author. Unfortunately, the license had no teeth… it was a gentleman’s agreement, not much different from social DRM, and with no legal strength to back it up. Though consumers thought this was great, there was no way to tell how many such works were being replicated anyway, and no physical or legal way to stop it. It was pretend-copyright, a way of acting like the problem was not there, as many authors wished it wasn’t.

  And still, the lawmakers ignored the need to revise the laws. Copyright law remains trapped by pre-21st century concepts, unable to be reconciled with today's web-based global market until the laws are rewritten to meet the present and future realities of digital documents.

  15: Music—No, we are the future

  Many of e-books’ developmental foibles were unique unto itself. However, another electronic media format had experienced many of the same problems as e-books, and in some ways, served those who paid attention to those things as illustrating the pitfalls to avoid when trying to sell electronic formats to the public. This prescient media was, of course, digital music. And it’s worthwhile to review the history of digital music, the better to understand many of the problems faced by digital books.

  Recorded music had enjoyed a long period of mostly-compatible format-sameness, in the form of the wax and vinyl disc, or record. The first discs actually came in multiple sizes, forcing player manufacturers to eventually make and sell record players that played at least 3 different speeds to accommodate the majority of available records. The 3 common speeds were later reduced to 2 (33RPM and 45RPM), where it stayed for the duration of record history.

  But other forms of music recording and reproduction existed, specifically, magnetic tape on reels. Again, there were differing sizes of tape, and some “reel-to-reel” tape players were designed to play the multiple tape sizes, and this, too, lasted for decades. In the early sixties, a new way to package tape loops into sealed cases came into use, known as “8-track” (for the four sets of two-track outputs on each tape loop, requiring the players to switch from set to set once the end was reached, and allowing them to play continuously). It was a popular format, but it required a specially-designed playback device that could not play records or reel-to-reel tapes. Only a few years later, a smaller “cassette” of two-track tape was developed, requiring yet another unique hardware device to play. For a time, there were three distinctly different ways to buy and listen to music, all available at the same time, none of which were compatible with each other hardware-wise. Stereo manufacturers provided the bridge to all of these devices, making sure any of these music devices could play through the central receiver and out the same speakers.

  After years of domination by tape and vinyl, music manufacturers began playing with new ways of recording music digitally, instead of by analog signal. In most cases, these new digital signals could be played on existing equipment. But some formats required specialized equipment to play properly, or at all. And while many consumers were trying to figure out the digital tape formats, the industry had discovered a new way to encode music onto laser-etched disks. Believing they had a better format than the old vinyl disk, because they could encode so much more music on the new “compact disks,” the industry started promoting CDs to the consumers.

  The consumers were slow to adopt CDs, mainly because of a perception of sound quality that was inferior to vinyl (a perception that most people, in fact, were incapable of hearing), but also because of the requirement of yet another new device to play the CDs. The music industry dealt with that by ceasing production of vinyl, and releasing new music only on CDs. Eventually, even die-hard music fans were buying CDs and playing devices, simply because it was their only choice.

  ~

  Enter, a few years later, the personal computer. As computers entered the home and people sought out more and more things to do with them, they realized they could use the computers to play, and later store, the music on CDs. However, CD music files were large, and took up a lot of storage space on the early computers. Music enthusiast programmers quickly took on the challenge to encapsulate music files into something more portable for computers.

  A number of formats were developed, among them the format known as MP3. Though not necessarily the best of formats, it was very portable, easy to work with, and easy to encode from music formats. Some enthusiasts latched onto the MP3 format and started using it regularly, then exclusively. They also started sharing music files with their friends, in much the same way as they had dubbed and shared cassette tapes with each other over the years, now through e-mail attachments and computer disk swapping.

  When the first websites were created, many of them took advantage of the new web technology to share any type of files on the owners’ computers. Users quickly realized their music collections, some of which were becoming sizable as computer memory capacity grew, would be popular offerings on the websites, even garnering them a measure of fame and respect over their collections. Without a second thought, they added their music to their web groups, visitors found they could download and store them, and without fanfare, the sharing began.

  Previously, music companies had turned a blind eye to most music sharing by tape and cassette: Most sharing was time-intensive, so few people bothered to record more than one or two copies of music; the companies had decided that trying to police all of those technically illegal tapes weren’t worth the trouble or the cost, except in cases where more enterprising individuals tried to reproduce sizable volumes of music. Besides, they reasoned, the copies weren’t nearly as good as their professional recordings, and most enthusiasts would sooner or later buy the better-sounding copies. But digital music was changing the game: Not only was sound quality much better, reducing the desire to purchase professional recordings; but thanks to the websites, music files could be replicated infinitely, and distributed worldwide instantly. Suddenly, t
hey couldn’t afford to turn a blind eye to technically illegal music, their bottom lines were already suffering because of it.

  So the music industries went on a multi-pronged attack. First, they tried to convince computer manufacturers to build in copy-protection tools (music’s form of DRM), to prevent music files from being burned to new formats. But third-party tools were quickly hacked together for computers, and broke through this tactic. Next came manufacturing the CDs themselves to prevent copying… which was equally ineffective against third-party burning software. So, they went to the government regulators, and began an intensive lobbying campaign designed to give them broader authority to pursue and prosecute individuals who were caught replicating (or “burning”) and distributing music files. They based their arguments on existing copyright laws, taking advantage of the fact that they had not been updated sufficiently to deal with the new digital files.

  The Digital Millennium Copyright Act was passed—twice—as a result of the record companies’ efforts, and backed by the motion picture industry, which cleverly foresaw the same problems happening to them as soon as electronic storage capacities would be sufficient to allow users to store whole movies on their computers.

  Computer users, for the most part, were angry. For one thing, the music industry had previously given them carte blanche to copy records and tapes… why, all of a sudden, had they turned on consumers with the introduction of new formats? Consumers also felt that the music industry hadn’t been serving them that well of late, charging ever-increasing amounts for less and lower-quality music, and still somehow leaving their favorite musicians feeling underpaid and underappreciated. So consumers decided they owned nothing to the music industry, least of all customer loyalty. The music industry did little to nothing to change their attitude, being comfortable selling music on their terms, the same way they had for decades.