How Copyright Laws Are Broken,
and Why It Matters

I am an editor of an online Canadian science fiction magazine that publishes its content under a Creative Commons license, and a refugee from the print publishing industry who found a home in the software industry. So naturally when Cory Doctorow talks about copyright laws and the way they have evolved in the age of the Internet, it is very relevant to my interests. Not everyone is convinced by Doctorow’s perspective, but (to paraphrase his promise in the introduction to Information Doesn’t Want to Be Free), even if he’s wrong, it’s in a well-informed and thought-provoking way.

I am an editor of an online Canadian science fiction magazine that publishes its content under a Creative Commons license, and a refugee from the print publishing industry who found a home in the software industry. So naturally when Cory Doctorow talks about copyright laws and the way they have evolved in the age of the Internet, it is very relevant to my interests. Not everyone is convinced by Doctorow’s perspective, but (to paraphrase his promise in the introduction to Information Doesn’t Want to Be Free), even if he’s wrong, it’s in a well-informed and thought-provoking way.

Information Doesn’t Want to Be Free is a distillation of several things that Doctorow has been saying for years about copyright and intellectual property. The book is nominally built around “Doctorow’s Three Laws,” though I didn’t find the structure — short snippets of blog-length content with frequently abrupt transitions between them — particularly compelling, and the laws themselves, as they are formulated, lack the punch of their Clarkean inspiration. Still, there are two major themes woven through the work that are worthy of notice.

The common perception is that copyright laws exist primarily to protect content creators and secondarily to serve those entities that Doctorow calls “investors”: publishers, record labels, movie studios, and the like, without whom creators would have a much harder time finding an audience. The first important theme is that the current prevailing copyright laws do nothing of the sort, for a reason that is not immediately obvious. Doctorow traces the seminal moment to the WIPO Copyright Treaty (WCT) of 1996. The WCT is reflected in the copyright laws of its signatory countries, the most infamous of which is the United States’ Digital Millennium Copyright Act (DMCA). The significant provision of the WCT is the one about anti-circumvention, making it illegal to get around any technological barrier to making digital copies of a copyrighted work.

On the face of it this doesn’t seem like such a big deal. It’s already illegal to make infringing copies of creative works and DRM exists to prevent the making of copies that aren’t authorized by the rights holders, right? The problem is that these “digital locks” aren’t under the control of the creator, or often even of the publisher. Instead, they put the power in the hands of distributors. Doctorow gives an example of how DRM enabled Amazon to lock customers into its Kindle platform and used it as a weapon in a contract dispute with Hachette, one of the Big Five publishing houses. Amazon had disproportionate leverage against Hachette due in large part to the fact that Kindle content isn’t easily (or, more to the point, legally) transportable to another platform, giving the publisher little recourse when the retailer shut their books out of their eBook ecosystem.

There is ample evidence that DRM is not only ineffective at preventing piracy but even encourages it by putting up barriers to non-infringing activities. (It turns out that people generally want to reward the people who create the content they enjoy; the trick is mainly in making it as simple as possible to do so.) Yet Big Content keeps doubling down on these tactics, with potentially disastrous results. This is because of the second important theme, which is the rise of general-purpose computers. When the U.S. Supreme Court handed down the Betamax ruling in 1984, it was about the use of VCRs. Today almost all appliances are built on top of general-purpose computers rather than machines built for a specific use, and this means the arena is no longer limited to specific media-playing devices but now encompasses all computers. As we become increasingly dependent on computers of all kinds, the precedent of putting software controls on them that silently subvert the user’s wishes when they conflict with the interests of a third party (such as the entertainment industry) — and then making it illegal to circumvent those controls — is a disturbing one.

More recently, proposed laws like the Stop Online Piracy Act (SOPA) and Protect-IP Act (PIPA) in the US, and treaties like the Trans-Pacific Partnership (TPP) and Transatlantic Free Trade Agreement (TAFTA) that are currently under negotiation seek to expand the scope to the Internet itself. These initiatives propose measures that are just as fallible as DRM (with just as little benefit to creators), only they have the potential to cripple what Doctorow calls the “nervous system of the twenty-first century,” just because it could also be used to violate copyright.

In sum, legislation being pursued in the name of copyright has become increasingly misguided and has strayed farther and farther from the interests of creators and their investors. These laws now affect activities far beyond the creation and consumption of creative content. So even if you’re not a content creator yourself, and have never been tempted to step outside the bounds of DRM controls, you should care about the wacky world of intellectual property law.

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