Copyfighting
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[edit] The Law
[edit] Article 1, section 8 of the US Constitution
The Congress shall have power ... to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
[edit] Feist Publications, Inc. v. Rural Telephone Service Co.
The primary objective of copyright is not to reward the labor of authors, but “to promote the progress of science and useful arts.” To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.... This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.
US Supreme Court Justice Sandra Day O’Connor, 499 U.S. 340, 349 (1991)
[edit] US Code Title 17, Chapter 1, §107: Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
[edit] Quotes
All mankind is of one author, and is one volume; when one man dies, one chapter is not torn out of the book, but translated into a better language; and every chapter must be so translated....
—John Donne
You can't steal a gift. Bird gave the world his music, and if you can hear it you can have it.
—Dizzy Gillespie, defending another player who'd been accused of poaching Charlie Parker's style
[edit] Jonathan Lethem
The Ecstasy of Influence
Harper's Magazine, February 2007
http://www.harpers.org/TheEcstasyOfInfluence.html
Excerpts:
Artists and their surrogates who fall into the trap of seeking recompense for every possible second use end up attacking their own best audience members for the crime of exalting and enshrining their work. The Recording Industry Association of America prosecuting their own record-buying public makes as little sense as the novelists who bristle at autographing used copies of their books for collectors. And artists, or their heirs, who fall into the trap of attacking the collagists and satirists and digital samplers of their work are attacking the next generation of creators for the crime of being influenced, for the crime of responding with the same mixture of intoxication, resentment, lust, and glee that characterizes all artistic successors. By doing so they make the world smaller, betraying what seems to me the primary motivation for participating in the world of culture in the first place: to make the world larger.
[edit] EMusic
EMusic's pitch: Download song — and own it
USA Today, July 30, 2006
http://www.usatoday.com/tech/products/services/2006-07-30-emusic_x.htm
Excerpts:
Like Napster and Rhapsody, eMusic is a subscription service. Unlike those of its competitors, eMusic customers fully own the songs after downloading, with no restrictions. How does it do that? EMusic's songs are unprotected MP3s, which means they play on any device. Rivals sell copy-protected songs aimed at preventing unauthorized trading on file-sharing networks.
...
EMusic believes that copy-protecting files hinders sales, and that view is shared among many in the industry.
...
Consumers are responding: EMusic has quietly climbed into second place to iTunes, albeit with an 11% market share to iTunes' 67%, according to market tracker the NPD Group. The company sells monthly subscriptions, and those numbers have doubled since December, to 200,000. The company averages downloads of 5 million songs monthly.
...
Classical music label Naxos North America is eMusic's biggest seller. "ITunes exists to sell hardware," says Naxos CEO Jim Sturgeon. "EMusic is about selling music. Their primary concern is to sell content, and that's why they do so well. It's like an independent record store vs. a Wal-Mart." Naxos, which also sells music on iTunes, has no qualms about offering material without copy-protection, or digital rights management (DRM), as it's called in the industry. "The majors have caused themselves nothing but grief with DRM," says Sturgeon. "What are they protecting? Any kid can figure out how to get around it. What they are really saying is, 'I don't trust my consumer.' "
[edit] Cory Doctorow on DRM
Microsoft Research DRM talk
Cory Doctorow, June 17, 2004
http://www.dashes.com/anil/stuff/doctorow-drm-ms.html
Exerpts:
Whenever a new technology has disrupted copyright, we've changed copyright. Copyright isn't an ethical proposition, it's a utilitarian one. There's nothing moral about paying a composer tuppence for the piano-roll rights, there's nothing immoral about not paying Hollywood for the right to videotape a movie off your TV. They're just the best way of balancing out so that people's physical property rights in their VCRs and phonographs are respected and so that creators get enough of a dangling carrot to go on making shows and music and books and paintings.
Technology that disrupts copyright does so because it simplifies and cheapens creation, reproduction and distribution. The existing copyright businesses exploit inefficiencies in the old production, reproduction and distribution system, and they'll be weakened by the new technology. But new technology always gives us more art with a wider reach: that's what tech is for.
Tech gives us bigger pies that more artists can get a bite out of. That's been tacitly acknowledged at every stage of the copyfight since the piano roll. When copyright and technology collide, it's copyright that changes.
Which means that today's copyright -- the thing that DRM nominally props up -- didn't come down off the mountain on two stone tablets. It was created in living memory to accommodate the technical reality created by the inventors of the previous generation. To abandon invention now robs tomorrow's artists of the new businesses and new reach and new audiences that the Internet and the PC can give them.
[edit] Bureau of Piracy’s speech at Reboot
June 2, 2006
http://copyriot.blogspot.com/2006/06/piratbyrans-speech-at-reboot.html
Excerpts:
It is of big importance not to accept this terminology where “downloading” appears as some kind of activity completely separate from the uploading. We instead insist on talking about file-sharing as a horizontal activity. Just like the activity of breathing includes both taking in air in the body and letting it out, filesharing has the same symmetry between up and down. Taking them apart, if even only through language, can only fill the purpose of replacing open exchange with centralized control.
Talking about “downloading” obscures the fact that horizontal P2P-communication is essentialy different from vertical mass-distribution. It is not the same “content” taking different paths to the “consumer.” It is about different archives and different architectures.
There is a constant buzz, driven by mass media, about so called “legal download services” for digital movies and music, presented as an alternative to P2P networks. But the aim of “legal download services” is not primarily selling movies or music. It is rather about selling language, selling ideology, appropriating the very notion of “legal download.” In that ideology, “legal” is understood as “for payment,” and “download” as an up-down-transfer from a central server offering a limited range of so-called “content” to a consumer.
So, we are totally mistaken if we think that we are criticising the content industry by saying that “offering legal downloads is good, but DRM sucks and prices are too high...”, etc. – because with that terminology we have already swallowed the ontology of undifference.
Horizontal exchange or vertical distribution? Open and unstable archiving, or centralized and limited? Those are the fundamental questions. Much more fundamental than the questions asked in the discourses about accessibility, consumer rights, social justice or compensation.
...
The grey zone also becomes visible if we consider how arbitrary the very definition of “copying” is. How it is based upon outdated technical cathegories.
We emphasize and affirm the tendency that it is getting harder to distinguish between local transfers of data and “file sharing” between different systems, for example in wireless environments. Digital technology is built on copying bits, and internet is built on file-sharing.
Copying is always already there. The only thing copyright can do is to impose a moral differentiation between so-called normal workings and immoral.
For the copyright industry, it is of extreme importance to keep people uninformed of the real workings of networked computers. They want to make an artificial distinction between “downloading” and “streaming,” as equivalents to record distribution and radio broadcasting.
But – and we should keep insisting that – the only difference between “streaming” and “downloading” lies in the software configuration on the receiving end. However, copyright law will never be able to acknowledge that. It has to rely on fictions, on a kind of cognitive mapping, where notions valid for traditional one-way mass media are forcefully applied to the internet. We call it Mental Rights Management (and it is the very precondition for DRM).
...
Copyright was born in 18th century England in order to regulate the use of one specific machine, a machine that was expensive and few in number, that could write but not read — namely, the printing press. Ever since, copyright laws have tried with varying success to make other machines imitate the characteristics of that one-way medium.
...
I have mentioned two key points in copyright's permanent crisis, points where concepts that were evolved to handle the separated flows of one-way mass-media clashes with the reality of networked computers.
One was the fact that the very concept of copying is rather arbitrary when it comes to digital technology, as using digital information already implicates that it is copied. Another was the extreme problem with institutionalizing a producer/consumer-division inside a media technology used for horizontal communication. Both anomalies seem totally unsolvable from the perspective of copyright and indicates that the copyfight is very unlikely to cool down.
http://reboot.dk/wiki/The_Grey_Commons
