Differentiating allies and opponents in the Copyright debate
(First published on IT World Canada blog)
Copyright is often claimed to be a balance between rights-holders’ interests on the one hand and the interests of users and society as a whole on the other hand. I only wish things were that simple. I could take my place along side other rights-holders, and know that copyright law would at least be taking the interests of creators into serious consideration.
The problem is that the reality is quite different. With digital copyright you have potentially 4 rights-holder groups. Even if you only consider the interests of copyright holders, the vast majority of the debates I have witnessed have been between and within copyright holder groups, not between copyright holders and some other individual or group.
Just as with previous bills, the tabling of Bill C-32 will bring new people to the debate. Reading how I evaluate my allies and opponents may be useful as a kick-start for those people.
Who am I
While it is true that all creators of copyrighted works are also audiences of far more than they create, considering yourself a creator first gives you a certain perspective. For most creative works I am only an audience or fan, and it is only with software and a few amateur articles like this onewhere I am an author.
To put food on the table I am an independent software author, and Internet consultant. When I say independent, I mean independent of the big names in the software industry such as Apple, Adobe, and other members of the Business Software Alliance. I consider these companies to be business competitors and political opponents.
The largest growing part ofthe software sector, and which most threatens the legacy business models of BSA members, is the Free/Libre and Open Source Software (FLOSS) movement. I joined this multi-sectoralmovement, which includes but is not limited to commercial softwarecompanies, in the early 1990's. Most of the policies promoted by theBSA since the mid 1990's have been aimed at stopping or reducing thegrowth of this movement. The two most active policies are softwarepatents and legal protection for technical measures.
While I consider copyright infringement important, I don't consider that to be my greatest threat. Before copyright can protect me, computer owners need to be able to make their own software choices so that they are allowed to choose my software. The policies of the BSA are aimed at reducing software choice, ironic given they were behind an Astroturf campaign they titled the Initiative for Software Choice. A prominent member of our community launched a counter-campaign called Sincere Choice.
We can ignore software patentsfor the moment as that is separate from the Copyright debate. In the copyright debate the tool of choice is an abuse of technical measures. The claim is that their use will reduce copyright infringement, a claim that anyone with computer security knowledge will disagree with.
What these misapplied technologies offer is a subversive protection of contracting terms that create dependencies on technology intermediaries. A few BSA members are playing a game of Russian Roulette where the winner takes all, and is able to control though misapplied technological protection measures the keys to the technology which forms the means of production in the new economy.
The reason I insist so strongly that any legal protection for technological measures not be in Copyright is because, if these contracting terms were exposed as being contracting terms, then regulators and the courts would be able to far more easily minimize the worst harm.
Obvious allies
Independent software authors have obvious allies with other independent software authors. There is the Open Source Initiative, the Free Software Foundation and the Linux Foundation in the US, and various software user/developer groups in Canada such as CLUE:Canada's Association for Open Source.
If you look at the membership for the Linux Foundation and the BSA, you may notice there are overlapping companies between who I consider to be my most obvious opponents and allies. This is not only true within these associations, but within individual companies. I've observed informal policy debates between employees of IBM, with these different employees being as far as two individuals can be from each other on key areas of technology policy.
This means that it isn't as simple to assume that just because someone works for a specific company that they hold a certain view. You can comment on the overall policies of a company or association, without it necessarily reflecting the views of any specific individual. This has also been my experience with many of the business associations, creator groups and unions. I have met many people who are members of The Writers Union that strongly oppose the political views expressed by the executive of that union, or Access Copyright, both which claim these individuals as supporters.
Non-technical allies
Outside of the software sector, there are many lawyers who have helped protect the checks and balances in the application of law in the all too often misunderstood scenarios that involve digital technology. The Electronic Frontier Foundation was founded in 1990 to help with a series of oddball court cases at the time, and has been at the forefront of protecting human rights in relation to digital technologies. In Canada we have the Canadian Internet Policy and Public Interest Clinic, and individual technology lawprofessors like Michael Geist.
There are other people notprimarily in a technical profession that have been allies, includingmany that exist in other non-software copyright holding sectors.
Allies who act like opponents
The most confusing aspect of the debate has been sitting on the opposite side of the debate as fellow creators. Most often the disagreement is not about the ultimate goal of protecting the material and moral interests of creators, but whether a specific policy being debated will help or hinder that goal.
It is often the case that the person I am claimed to be an opponent of is unaware that I am on their side, and thinks that if I disagree with a policy that someone has falsely claimed will help them, then I am somehow opposed to their goals.
If you are put in a situation to “debate” copyright with a fellow creator, they will be focused on a higher-level “we deserve to be paid”. You need to make clear that you agree with them at that level, but do not believe that the policy put before us agrees with that goal. This will be hard as many individual creators are members of associations whose executives are promoting specific harmful policies, and have all too often become allied with the BSA and their “stronger copyright is better copyright” misdirection.
It is important that we disagree with the harmful policies, and not think that everyone whois pushing harmful policies is an opponent. Think of them as someone with a different understanding of technology and/or economics, and the disagreement as an opportunity to have some great and hopefully fruitful conversations.
Dying industries who are the most aggressive opponents
There is a transition happening in the music sector that demonstrates a critical dynamic. While music fans tend to think of the music industry as one happy family, this can't be much further from the truth.
What is currently happening started back a little over a hundred years ago when the music industry was composers, performers were considered trained monkeys, and anyone making recordings (player pianos, talking machines) were considered pirates.
Governments legalized the activity of recording, and performers and the makers of sound recordings were given their own copyright called Neighbouring Rights. This means that there are 3 copyright holding groups in music. In many countries composers weren't given any choice at all, and were subject to a compulsory license where anyone could perform and record their music without permission, only payment at a government set rate.
The equipment to record was expensive, so the recording labels quickly became a specialized banking sector to fund the massive up-front capital costs to record and distribute recordings. For their participation they took the lions share of the revenues from the sales of recorded music, with musicians making only a few pennies on the dollar.
Technology changed, as it always does, and the equipment to record and distribute is getting cheaper by the day. Musicians are increasingly realizing that they can keep the copyright on their own recordings, and keep the majority of the revenues. They can then hire the services of others for promotion/etc, just like they would hire an accountant do to their taxes. These jobs are not disappearing, they are just no longer jobs at organizations calling themselves recording labels.
What this means is that the labels are no longer necessary for an ever growing number of musicians. The major labels are observing a decline in the portion of the music industry that they participate in, and many are struggling to survive. This decline is largely about competition, even while they falsely claim it is about copyright. The statistical models they use to claim harm do not differentiate between competition and infringement.
The major labels have allied themselves with other old-economy entities who claim to be able to help. Some of the members of the BSA have claimed they have this ”magic potion” that would reverse the trend in the music industry such that musicians remain dependant on the labels.
This magic potion is more commonly referred to as “technical protection measures” (TPMs), or DRM. Those of us in the independent software industry know this magic potion is actually poison, but the major labels and most other groups claiming to represent creators aren't listening.
This technology protects a software and/or hardware platform in between copyright holders and audiences. In the end this technology benefits the owners of the platform, and creates a dependency on the platform for both copyright holders and audiences wanting to reach each other. As they grow, these platform providers will have less of a need for labels than musicians do since they act as intermediary directly between musicians and music fans.
The BSA members are using the labels as their public face to the political process, just as the labels have always used specific famous musicians as their public face. Michael Geist has suggested that the major labels are behind the latest Astroturf campaign, and from what I have seen I suspectthis is true.
No matter which outcome we see in the copyright debate, recording labels will never again have the prominence they did in the 1980's and 1990's. This is true now, and would be true even if not a single song copyright had ever been infringed. There really is nothing that can be done to help the labels that won't greatly harm the interests of creators in return.
While the major labels have no future, the future of composers and performers is uncertain. If the people working at the labels focused on the interests of musicians, they would be putting forward policies which would protect those interests rather than wasting energy trying to save the the labels. It is important that we try to speak with individuals who traditionally worked at the labels, and who really believe in the music industry. If we can get them to focus on musicians rather than labels, they can become allies of the future of music rather than opponents. Do not presume they are pushing the policies they are because they want to take money out of the pockets of creators –many will believe that the policies they are promoting will help the music industry.
Those of us in the technology community need to make as many alliances with other creators as possible. Our future in our competitive and political battles is intimately linked with these non-software creators. We need to turn people who at first glance appear to be opponents into being the allies they should always have been.
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Russell McOrmond is a self employed consultant, policy coordinator for CLUE:Canada's Association for Free/Libre and Open Source Software, co-coordinator for Getting Open Source Logic INto Governments (GOSLING),and host for Digital Copyright Canada.