Whenever anyone speaks or writes about intellectual property, I suggest you place one hand on your wallet and back away very slowly. The problem with the term intellectual property is twofold: First, it is designed to elicit a comparison to real property and personal property – which is to say actual physical things owned, at least in some cases, by flesh and blood human beings. Second, it is an intellectual shortcut – bunching together a number of dissimilar things (copyrights, trade marks, patents and trade secrets) as if they were actually similar. Both are problematic. For this reason, I’ll restrict myself to copyrights – as they are the true subject of this discussion.
Copyright is a policy tool, not some basic instrument of human right. It was created, originally, to allow the ruling elites of the time some measure of control over the process of publication. In point of fact, it was a tool of censorship. In the United States, that tool was adapted to the (far more socially useful) purpose of providing some incentive for the creators of the time (writers) to do their work. I, for one, do not have a problem with this. It’s clear that this work is difficult, and that authors need some way to receive value in return for their work.
The problem I have with the DMCA and AACS is they stretch the idea of copyright far beyond anything that the founders could have anticipated. Copyright has become effectively perpetual. The scope of derivative works has grown both broader and deeper than at any previous time. In addition, the DMCA has allowed the people behind AACS to effectively eliminate fair use – absent the work of those people developing unlawful tools of circumvention. None of these statements are new. None, at this point, are even controversial.
The DMCA, AACS, CSS, Macrovision, ARCCOS, and every other copy protection system are attempts by content providers to continue their old business models by trying ot make bits not copyable. This, unsurprisingly, will not work. Bruce Schneier wrote, some time ago, that “Digital files cannot be made uncopyable, any more than water can be made not wet.” If your business model requires a mathematical impossibility, wise people start looking for a different business model.
So, why the outrage? The outrage is not because anyone believes that creators should not be rewarded for their work. The outrage is because people feel that they are being taken advantage of. They feel that the RIAA, MPAA and other similar groups have managed to buy themselves extremely favorable legislation – and that, using that legislation, they have proceeded to hurt both their customers and the artists. They see that the cost of producing and distributing information is dropping, but the cost to acquire copies of that information is not.
When people feel angry and powerless, they tend to strike back any way they can. They tend to strike back even if they aren’t really hurting anyone but themselves. In a way, that’s just another paradoxical part of our human heritage – just like our innate human creativity. It’s not particularly juvenile – but rather a result of natural frustration, born of a belief, correct or incorrect, that the system is no longer working.
In the long run, no one wants to destroy the ability of artists to bring us new work. In the long run, the RIAA and MPAA member companies will find a new business model or be relegated to the dustbin of history. In the long run, we will see substantive copyright and patent reform. In the meantime, the important thing to remember is that both groups are basing their actions more on emotions than on facts.
In the case of the RIAA and MPAA, that emotion is fear – the fear of going out of business – of being replaced, of losing power and significance. In the case of the AACS crackers it’s a combination of fear, anger, and frustration. Anger and frustration caused by their belief that they are being ‘taken’. Anger and frustration that the political system does not appear to be working, and fear that the situation will never change.
What you are actually seeing, in the AACS key revolt, is the normal process of political change. It’s messy, ugly, loud and uncouth. It’s also very much a living and flexible system – one that, for the most part, actually works. In a republic, basic reforms only happen when enough people make enough noise that the people we send to Washington are forced to listen. The process is nasty and slow, but it’s the best system we’ve managed to figure out so far.
What this revolt is, fundamentally, is part of the political blowback from the ‘content industry’ pulling a land-grab with so called intellectual property law. They overreached, and now they are on indefensible ground. I don’t know what DMCA will be replaced by – the only thing that I know is that its days are numbered.