Old Business versus New Technology


By: Jason Spencer

Over the past several decades, advances in technology have allowed us to consume informational and entertaining content in numerous new and exciting ways. Additionally, it has provided us with the power to easily copy, change, manipulate, and share said content with virtually anyone we would like. One would think that with all the bright minds in charge of so many industries in this country that someone would have figured out how to take advantage of this bright new world we live in. Instead, the fear-ridden executives of the multi-billion dollar industries in this country want us to remain in the dark ages and only consume content how they tell us to.

In the United States Congress there are two related bills (Protect Intellectual Property Act in the Senate and Stop Online Piracy Act in the House) that aim to tackle the issue of copyright infringement inside and outside our country. Both bills take similar positions that would allow the government to go after web sites that they deem to be guilty of copyright infringement. The problem is their definition of being guilty. The bill (at least in the House version) claims that a web site which houses functionality that could be used for copyright infringement is essentially guilty of it. This definition is similar to old fashion witch trials: since we can’t rule out that you’re NOT a witch without burning you at a stake or attempting to drown you, you’re probably a witch. So they’re going to burn or drown any websites they think are guilty without due process. There were no re-trails for accused witches… because they were dead!

When I say functionality that could be used for copyright infringement you may think file sharing, peer-to-peer, torrents or something of that sort. That is probably the most obvious form of it. However, there are less obvious cases that can be seen as a problem, particularly by the entertainment industry. Have you ever changed your Facebook picture to something like a comic book character or a cartoon? Remember when you had to check the box that says you “Agree to the Terms and Conditions?” Well one of those conditions is that you only upload photos you have the right to use! So that means just having the basic functionality of a photo upload feature counts towards enabling copyright infringement. If we break it down a step further, have you ever seen people abuse comment boxes? There are people who post things that obviously are not theirs. It could be a picture again, or it could be something like song lyrics or a quote from a news site that they didn’t cite. So user comments are potentially copyright infringement. Now think about how many websites in 2012 have the ability to interact with their users via a simple comment box. That’s probably half the net right there!

If you think this is just hyperbole or exaggerated by any means, I really don’t think that’s the case and there is precedence to think that it’s not. In the past several months several cases have come to light where members of the Motion Picture Association of America and the Recording Industry Association of America have abused their power under the Digital Millennium Copyright Act. Under said Act, if someone infringes on your copyright, then you give notice and the content has to be removed. This is why several videos are taken off of YouTube seemingly on a daily basis. The most recent example of the abuse of this power was when news broke that Universal Music Group had requested a video by MegaUpload be removed due to the use of artists in the song. However, MegaUpload had made the deals and had every right to use the featured artists. Later, in a lawsuit that followed, it was revealed that Universal Music Group had a “secret agreement” with YouTube where they could remove videos not limited to their own copyrights. Essentially, they were given their own set of keys and could do whatever they wanted to whatever videos they pleased. In a slightly different case, an independent film maker had his trailer removed from YouTube and it was later revealed that the film studios were using specialized scripts programmed to search YouTube keywords that matched a set list and if they found matches they would submit take down requests. So in other words, a robot with a limited AI setup looked at keywords only and decided that they owned something and the real author didn’t. This is clearly an abuse of power on both parties’ parts; with no real claim to the material, they decided knowingly, or unknowingly, to assert their authority as entertainment juggernauts to take down these works.

I used the term entertainment juggernauts a moment ago to verbally represent how big these companies are. These are huge companies that make a ton of money annually, probably even monthly! That’s been a major talking point in the debates on these bills, strangely on their defense. There is a claim that all the copyright infringement that takes place on the internet is costing them in the range of billions yearly. That cannot feasibly be possible. Considering the Recording Industry Association of America already was caught publically lying about its damages in its legal battle with LimeWire, I’m surprised the numbers being tossed around are not being more seriously scrutinized. For those who might have forgotten, LimeWire was brought down for copyright infringement when their peer-to-peer file sharing service became primarily used for music. When asked for an estimate of damages, the RIAA claimed they were owed $75 Trillion in damages. The judge called this “absurd” and many noted that this claim was more than the US GDP!

One key argument against these bills has pointed to the increased risk and liability that will be thrust upon existing companies and future companies. Many believe this will stifle creativity and prevent future innovations in technology. This could mean the next generation of Facebook, Netflix, Hulu, or even iTunes may never be invented. Someone used the analogy that instead of two guys in a garage you instead need 12, 2 programmers and 10 lawyers! Instead of fighting the growing use of new technologies, the RIAA and the MPAA should become more flexible, and adapt their business model to work within this new environment. People still pay money for convenience; I think iTunes has made that pretty clear. With the overwhelming popularity of Apple devices and the number of paid downloads they see, it’s hard to say that the idea of paying to download something is not possible. Also, with Netflix, users pay a fee to be able to stream content to their computer or televisions. Suddenly, all the shows that were once taken off of YouTube are back within reach, and in much better quality too! Quality does make a difference. If the content is available people tend to gravitate towards the best quality they can get. So if it’s out there and reasonably priced, chances are they’ll buy it and not steal it.

Let’s not forget about security in all of this. For some time the government has been trying to develop what is known as the Domain Name System Security Extensions (DNSSEC), which would help make data transfers more secure within the DNS helping to prevent them from being forged by those who wish to attack websites or companies. It’s a cyber-security no-brainer. With more secure channels to exchange data, it’s harder for cyber terrorist to forge a DNS, or launch other forms of attacks. SOPA/PIPA allow for entire websites within DNS to be essentially killed, which would cause massive holes of data and make it ridiculously difficult to achieve the goals of DNSSEC. Some have said if the bills pass, they will essentially not deploy DNSSEC due to the liability. So the government is perfectly fine with wasting several years of research and development to prevent real cyber security threats, all so they can get their hands on the almighty kill switch and help the big entertainment companies.

Another point that some bloggers have talked about to some detail is the fact that many of the supporters of both bills don’t even adhere to our current copyright laws. Yet these are the people we task with creating new, stricter copyright laws! Several senators were proven to have taken personal photographs from Flickr to use as background images on their Twitter accounts without notifying the owners of the photos. When contacted one person was actually offended because she is actually in the photo used, and she can’t honestly say she wants to be associated with the senator’s beliefs. Another interesting case was a senator’s web site which featured a political cartoon of a “Government Pig.” The original artwork can be found online featuring a copyright symbol followed by the artist name. Interestingly enough, the copyright symbol and artist’s name has been removed from the senator’s website and the artist claims he was never contacted about it nor did he grant permission for it to be used. Even though the personal web site of the senator doesn’t facilitate copyright infringement, twitter surely does by means of allowing photo uploads. Thus, the senators violated the very same copyright laws as the rest of us.

One area of emphasis that I don’t think is getting the attention that it should is the idea of a remix culture in our society. When people are fans of something they often want to do something with it. Sometimes they draw their favorite characters, sometimes they write fan fiction, and other times they make video tributes. None of which detracts from the original subject matter. The original person was a fan of the product. So whoever finds their derived works is probably a fan too, and isn’t going to stop being a fan and suddenly focus solely on the derived works of other fans! There needs to be revision to the copyright laws in this country. When they were originally written, the life expectancy wasn’t what it was today, and they definitely didn’t have computers, or the Internet. While the discussion has largely focused on piracy, some of the talk should also extend to derivative works whether it is written, drawn, photoshopped, or edited together. As long as it isn’t intended to undermine profits, it should be allowed.

Perhaps under new copyright laws, new technology could emerge that will once again change the way we consume our content and yet not be deemed illegal. Every time we make new advances, the same people who are crying foul today will cry foul again, until they make some major changes. You can look back and count the VCR, the Tape Recorder, CD burners, DVD burners, YouTube, and probably more that caused the entertainment industry to be turned upside down. As technology changes so should the business models of our content producers. If we’re consuming it differently, you should find different ways to deliver it.

The very bottom line in all of this really comes down to due process. Companies should have to prove that the accused has cost them something, or stolen from them. Then it should be looked at in terms of scale. Does a 30 second YouTube video honestly hurt a multi-billion dollar company? The punishment should fit the crime, and people should be considered innocent until proven guilty. That’s been a law since this country was founded. If we’re going to keep and enforce an archaic copyright system, should we not do the same to our basic rights? Think about it.







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