An Introduction to Copyfighting

The EFF is holding a “Blog for Freedom” Blog-a-thon where participants are supposed to blog about their personal experiences fighting for freedom online. Since I have no personal experience with fighting for freedom online (other than joining the EFF), I decided to finish up this Introduction to Copyfighting that I started a while back and post it as my first contribution to the fight.

Blog-a-thon tag:

I was surprised recently to discover that some of my friends and co-workers, an otherwise tech-savvy bunch, were unfamiliar with the concept of Copyfighting, the evil of DRM, and the ways in which our industry is being attacked. I found that it was difficult to put the motivations (or even some of the definitions) behind the copyfighting movement into words. The purpose of this entry is to do that — provide a short and simple backgrounder on this stuff and motivate people to get involved. I’ll start by clearing up some misconceptions about copyfighters, provide an overview of what’s been going on lately, then explain why you should care and what you can do about it.

What’s a Copyfighter?
I think a lot of people incorrectly assume that Copyfighters are people who believe that copyright should be abolished and that everything should be free. Copyfighters aren’t saying that all media should be freely distributed. We are saying that as consumers of media (film, television, software, literature, etc.) we have certain rights that we would like to protect. One of these rights is Fair Use. Fair Use means that you can reuse copyrighted work without permission as long as you are commenting on it, or copying/parodying the original. Fair Use is what allows you to quote song lyrics when writing a review of a new CD. Another right is First Sale. First Sale means that when you buy something, you own it and are thus entitled to sell it to someone else. First Sale is what allows you to buy a book, read it, then sell it on half.com for someone else to enjoy.

Most of all, we simply want the right to use the products we buy in the way that we see fit. We don’t want to be sued by a manufacturer for opening up a product to see how it works or sued by a media company for moving a file from one device to another. We believe that when we buy a CD, we should be able to convert it to another format to play on another device. We shouldn’t have to pay again to turn it into a ring tone.

Brief History of Modern Copyfighting
When Sony introduced the Betamax VCR for the home market, they were sued by Universal and Disney, who feared that consumers would use the device to copy movies and skip commercials. The Betamax Case determined that a device was not illegal simply because it could be used for illegal purposes. The VCR was legal because it could be used to record a legally-obtained broadcast so you could watch it later (time shifting). The VCR also enabled archiving and copying of shows (technically a copyright violation), but it was not the responsibility of the manufacturer to prevent such a misuse. An important point to note: the good guy in this case was Sony, an electronics manufacturer. One of the great frustrations of Copyfighters is that electronics manufacturers, who used to be our allies, are increasingly falling in line with the content producers, who want to restrict our rights.

When DVDs became a viable technology, content producers panicked over the “threat” of 100% perfect digital copies. Thus, commercial DVDs are encrypted using an incredibly lame algorithm called CSS. It wasn’t long before someone figured out that a couple lines of Perl code could decrypt a DVD. The guy who originally wrote that code, Jon Lech Johansen, was put on trial in 2002 and found not guilty. The interesting issue in this case was whether or not code was protected as free speech. Is it illegal to write a Perl script that can circumvent DVD encryption? At the time, I remember someone toyed with the notion that perhaps it was legal to sing the code (clearly falls under free speech) but not run the code. A law known as The Digital Millenium Copyright Act (DMCA) basically makes it illegal to circumvent copyright protection mechanisms, even incredibly trivial ones. Companies have abused this overly general law by forcing web sites to cease the dissemination of information about how to enhance or repurpose their products. They’ve even used the DMCA to force people to stop linking to such information.

In the late 1990’s, the increasing popularity of the mp3 format and, more importantly, the ease of sharing music online, ushered in the modern era of copyright debate. Most would agree that trading copyrighted music on Napster constitutes infringement. Unfortunately, the record companies responded to this infringement in three very disappointing ways — suing their customers, suing technology companies, and erecting misguided technical barriers to fair use.

The Recording Industry Association of America initially attempted to solve the file sharing problem by suing the companies behind the technologies. They sued Napster and mp3.com in 2000, arguing that these companies were openly encouraging infringement. Without going into the details of the lawsuit, these two companies were effectively shut down by the RIAA. As the world’s biggest clearinghouse for copyrighted and non-copyrighted music, the shutdown of Napster may seem like an acceptible legal outcome, but it is symbolic of the content producers’ fear of new technology and their ability to squash it. Even technologies like BitTorrent have come under fire. BitTorrent is a general-purpose content distribution tool, not specifically an infringement tool. Yet, some web hosting providers forbid their customers to host torrents — even legal ones — for fear of getting sued. Some argue that software can’t be illegal, it can just be used in illegal ways. After all, a VCR isn’t illegal, but it’s illegal to make and sell copies of movies. Which is why…

… in 2003, the RIAA began suing individual users of file sharing systems. They claimed to target the worst offenders — users who uploaded massive collections of songs. In the process, they seemed to get a distressingly high number of grandmas and poor kids. These lawsuits were arguably a wakeup call to file sharing users. They were being told that they were not anonymous, and could successfully be prosecuted, even without obtaining a warrant for wiretapping. A number of tools quickly appeared that provided increased anonymity and made it even more difficult, if not impossible, for the RIAA to find the actual user behind an uploaded file. Users who wanted to share were still able to find a place to do it.

The third response was to create technical barriers to infringement in the form of digital rights management (DRM) technology. Songs bought on the Apple iTunes music store can be played only on a fixed number of devices that you have unlocked with your iTunes ID. Sounds reasonable, but after a few system reinstalls, maybe a replaced motherboard, a change of jobs, etc., all of a sudden, you no longer have access to any of your “authorized computers” and you have to get Apple to remove them all so you can start again. You can’t play iTunes purchased music on your non-Apple portable music player and you can’t play Windows DRM files on your iPod. Consumers are supposed to understand and care about this?

The worst part is that these schemes end up only hurting the people who are trying to be good. If you use a commercial downloading service, like iTunes Music Store, it means that you have rejected the dubious legality and poor user experience of the “illegal” services. You have paid your 99 cents and been handed something that is less valuable than what you could have gotten for free. You get a file with complex and arbitrary restrictions in a proprietary format. Meanwhile, the people who decided to keep on infringing aren’t suffering — they get unrestricted files.

Effects of DRM on Consumers
As I mentioned above, one of the most frustrating aspects is the willingness of tech companies to yield to the content producers. When DRM first started showing up, I wasn’t worried. I figured that as an engineer, I’d always be able to get around it. I bought music on iTunes because it was a more pleasant experience than the file trading services. Then I burned each song to a CD and ripped it back to an non-DRM mp3 file. Or I used a tool that automated the process in a lossless way during the brief periods when Apple was unaware of such tools.

The problem is that getting around these things, even for personal non-infringing use, will soon be impossible. When I first got a TiVo, I used a widely known hack so that I could download TV shows off the TiVo box and play them on my PowerBook on the train every day. I recently upgraded to a more recent version of TiVo and it turns out that they use hardware-based encryption to make this more or less impossible. In frustration, I ditched all 4 of my TiVos and installed the free Linux-based mythtv. I shouldn’t have to do that though. I’d like to be a paying TiVo customer. But TiVo’s DRM only supports Windows.

This stuff is only getting deeper into hardware. My friend Stephen Speicher recently wrote about how the next version of Windows will intentionally cripple video output if you don’t have a monitor that supports their protected video format. The same restriction will be enforced by DVD players supporting the new HD formats. You should read about the Broadcast Flag, and how the media companies want to encode usage restrictions into content and force hardware manufacturers to babysit users to make sure they don’t violate those restrictions. When DRM becomes law, things get very scary.

Why Techies Should Care
Even if you don’t care about copying media or file formats, this stuff affects you. It restricts your right to innovate as a software developer. The Grokster case, which recently went to the Supreme Court, established that technology companies can be held liable for what consumers do with their products. What if it turns out that 90% of songs on people’s iPods are infringing? Does Apple get sued? What if I build a web site where people can easily set up their own web page and it turns out that some people are using it to post copyrighted material? Granted, the Grokster case was specifically about whether or not the company encouraged infringing use, but this seems extremely subjective — you can sue me over what you believe were my intentions?

As programmers, we come up with general solutions. It’s up the users to decide how to use those solutions. The VCR was a great idea, but I wonder if any tech company these days would have the guts to bring it to market. Sony certainly wouldn’t, unless it was bogged down with DRM. At many universities, even those known for free speech and student protest, the administration has taken to policing their students’ network usage under threat of lawsuit from the content producers.

Is it a Necessary Evil?

I’ve heard the argument made that DRM, while annoying, is necessary. Movies are expensive to produce and we can’t just allow them to be distributed without restrictions. The thing is that the evidence shows otherwise.

There is a wealth of content available under an alternative to copyright called Creative Commons. By placing items in the Creative Commons, content producers are allowed to specify which uses are or are not allowed. Creative Commons materials tend not to contain DRM. And yet, many of them make money.

I first encountered Creative Commons by reading a novel by Cory Doctorow called, Down and Out in the Magic Kingdom. Cory released this novel — his first — simultaneously in print along with a free Creative Commons licensed electronic edition. The book became a hit and launched Cory’s career as a novelist. It wouldn’t have been possible if the CC-licensed version didn’t establish a grassroots fan base.

Even for established content producers, I am inclined to believe that electronic distribution without DRM would be successful. These days, I buy all my music on iTunes because the user experience is much better than anything else out there. I strip the DRM, but I don’t share the files. Ultimately, it will be better user experiences that make people buy electronic content. DRM is just a roadblock keeping us from getting there.

Next Steps

If you’re intrigued and want to know more, the best next step is to download and watch the Copyfight Debate of the Century. This is a Cornell-sponsored debate with a panel containing a representatives from the MPAA, the RIAA, the Electronic Frontier Foundation, Universal, Napster, and a media studies professor. It is an incredibly interesting and lively discussion. The best part is that you get to hear how Cornell students feel about these issues and you get inspired by their passion.

For more details on the history of Copyfighting and the legal issues, I highly recommend reading any of Cory Doctorow’s non-fiction or listening to one of his talks. Cory succeeds in navigating the details of these issues and presenting them in a clear and humorous way.

The next thing you should do is figure out how you want to contribute. The Electronic Frontier Foundation is a good place to start. Since 1990, the EFF has been fighting for online freedoms on your behalf. On their site, you can read more about these threats and how you can help.

You can also read boingboing, a blog which (in addition to the bizarre and the interesting) posts important copyright-related stories.

Finally, you should talk to your co-workers and family about this stuff. The most shocking thing to me is that people are anything less than outraged about the slow erosion of our freedoms as consumers. When your parents call you asking why their picture gets messed up when they run their DVD player through their VCR (answer: Macrovision), tell them about DRM and tell them your want an EFF membership for your birthday.

Thanks to Doug for legal details, Steve for some counterpoints, and Cory for making me aware of this stuff.

11 Comments

  1. August 2, 2005

    Scott,
    I started a similar project myself a few weeks ago. The time has come to get the word out to people, because without education no one will realize they’ve lost their rights until it’s too late. My first entry on Free Culture Kool-Aid.

    http://mfdz.com/blog/jchris/2005/07/drinking-web-services-kool-aid.html

    Chris

  2. Tracy
    August 2, 2005

    Why is it that, according to the Grokster case, technology companies can be held responsible for what consumers do with their products, but gun manufacturers are =not= held responsible for the effects of their products?

  3. klep
    August 2, 2005

    Not to defend the Grokster decision or anything, but I believe the difference is that Grokster actually advertised its service as a way to get copyrighted music for free. I believe if gun manufacturers touted their guns’ ability to kill humans, they’d be subject to similar rulings. My friend Steve (same Steve from the original entry) wrote about Guns vs. Grokster here:

    http://www.engadget.com/entry/1234000487048930/

    I disagree with his conclusion (that software companies won’t be affected by Grokster because gun companies continue to thrive), but I think the comparison is interesting.

  4. Pierre
    August 5, 2005

    This is a great introduction to the copyfight. I’m a newbie, and it helped me a lot – to the extent that I blogged something about it.

    I locked onto the tension between the two principles you state up-front: (1) Copyfighters aren’t saying that information should be free; (2) Consumers need rights like Fair Use and First Sale. The hard question is whether both principles can be satisfied simultaneously for digital media. The very existence of the copyfight suggests that they cannot. Industry says it can’t make money without DRM, which (at best) threatens Fair Use and First Sale, and Copyfighters won’t allow a model that doesn’t support “Fair & First”.

    In the court of public opinion, it becomes a question of who bears the burden of proof. Should the Copyfighters demonstrate that, and how, both principles can hold at once, or should King Content prove that they can’t? If both can’t hold, should King Content prove that Selling Bits trumps Fair & First, or do the Copyfighters have to establish the reverse?

    As a newcomer to the issue it seems to me that both sides are in denial about the validity of the other’s non-negotiable principle.

  5. klep
    August 5, 2005

    Interesting. I hadn’t really thought of the two parts of the definition as being in-conflict like that. The thing that frustrates me is that we don’t really know if non-DRM distribution would still make money because nobody really seems willing to try it. The appearance of file sharing networks was such an affront to these media companies that their reaction was to try to make doing so impossible, not to find a way to monetize the desire for DRM-free digital content.

    There are some isolated cases where non-DRM media files have been sold. One of the most notable is emusic, which sells somewhat lesser-known music as regular old MP3’s. That they’ve stayed around this long is somewhat of an indication of success.

    It’s almost like the producers think that if they sell their content in a non-DRM format, just that one guy will buy it and then he’ll share it online with the rest of the world. I think that’s simply not true. Give me a good UI, a flexible file format, and a reasonable price and I won’t bother using eMule.

  6. klep
    September 2, 2005

    The EFF has posted a great article that rips apart the claims of “freedom” made by vendors of DRM-crippled digital music. Good stuff!

Leave a comment

Your email address will not be published. Required fields are marked *