| Thursday, March 7, 2002 |
16:10 - Poisoning the Mouse's Cheese
http://www.foxnews.com/story/0,2933,47296,00.html
|
(top)  |
I'm impressed with Foxnews.com lately-- they've been running columns by bloggers, like Ken Layne, Tim Blair, and now Glenn Reynolds of InstaPundit. This time around, it's his diatribe on the unholy Hollings Axis-- the alliance between the record labels, Microsoft, Disney, CBS, and AOL/Time-Warner, among others. The group whose stated purpose is (through efforts like the SSSCA) to make it illegal-- not just illegal, but a felony-- to have on your computer any software which performs such court-assuredly legal functions as copying music CDs onto your computer, into your MP3 player, or onto a CD-R.
And the money seems to be the explanation here. A Wired article on the hearings noted that in the 2000 election cycle, the entertainment industry gave Democrats a whopping $24.2 million in contributions compared to $13.3 million to Republicans.
So championing the cause of the little guy only counts until the bidding gets high enough.
This partiality is a betrayal of principle. As such, it represents a real political opportunity for the Republicans. Democrats do like to portray themselves as the friends of the little guy and the protectors of ordinary Americans against greedy big business — as demonstrated by their posturing over the Enron collapse. But as Ken Layne pointed out last week, the entertainment industries make Enron’s management look like Boy Scouts.
"Keep your grubby laws off my computer" sounds like a pretty good slogan, and it’s one that Republicans could use against Democrats nationwide. A few smart Democrats, like Rep. Rick Boucher of Virginia, realize this. As Boucher puts it, these companies are "seeking to use their copyright not just to obtain fair compensation but in effect to exercise complete dominance and total control of the copyrighted work...I have told the heads of the major labels I think this is a major mistake that will engender a major public backlash." Unfortunately, Boucher seems to be a voice in the wilderness within the Democratic Party, which has forged a symbiotic relationship with the entertainment industries over the past few decades.
I've been a registered Democrat ever since I reached voting age; it seemed the sensible thing to do at the time, because my parents are Democrats and Clinton was in office at the time-- I liked the idea of a fun President, and fun he certainly was. Besides, to be what appeared to be the only real alternative-- a Republican-- was in many ways directly antithetical to my feelings as well. But now that I've been among many friends whose political leanings put them into neither big party (lots of Libertarians in the lot), and in light of situations like this, and because the California primary election this week saw me spending half an hour in the morning before work and another half hour in the evening afterwards trying to find the mythical "Dove Hill School" polling place (there is simply no such school at the intersection listed on my Democratic sample ballot), I'm just about ready to do my miniscule part to express my dissatisfaction with the way things are going and reconsider my affiliation.
I mean, what the hell? Democrats siding with Big Business against the rights of the consumer? Isn't that anathema to the party's premise? Or is it that they see entertainment as a form of government utility, that they must regulate and meter like water and electricity and roll out the tanks to prevent rogue civilians from "bombing the pipelines" through their P2P file-sharing and digital-lifestyle technology? What exactly is their rationale here?
In trying to get a grasp on the issues involved here, one naturally has a tendency to look for precedent, to find a context in which to cast the problem so we can be taught what to do by the actions of our predecessors. What is entertainment? What is music? Well, it's art. How does the public get access to art? Traditionally, by whatever means is most expedient, that does not allow for large-volume recopying. A person can own a book, and he can quote and excerpt it at will-- making copies is not really possible, but if he does large-volume republication, law prevents him. But there's nothing in the law to say that low-volume copying is prohibited: in fact, the law has upheld that such copying is essential for the survival of the value of what the consumer bought. See, what we have here in art is data-- not a physical object, like a book, so much as the text contained within it. The value in a book is not the pages or the cover, it's the words and ideas inside. If a person buys the right to have those words and ideas for himself, he has to be able to protect against their loss-- the vehicle that contains them (the book) can get burned or damaged, and if he hasn't made some form of backup copy, the ideas are lost. Why should the survival of thoughts be dependent upon the vulnerability of some arbitrary physical object that carries those thoughts?
And so the courts decided that it's legal to copy CDs onto tapes for the car, or to copy TV shows onto videotape, so the consumer who has the rights to those thoughts and artistic ideas can protect against their loss and can enjoy them at his convenience.
So what's so different about the digital age that's got Hollings and Eisner so worked up? Well, somewhere along the line they've got themselves into the misguided notion that low-volume copying (ripping a CD track into iTunes) is the same thing as high-volume copying (broadcasting a song file to be downloaded a million times via Napster); in other words, they're convinced, like they were in the 70s, that the ability to copy a record onto a tape would mean the downfall of the record industry's business model, that it would be tantamount to someone making millions of copies of the record free for the taking.
Look, piracy is a problem. I've said it before and I hold to that position. Software piracy needs to stop, but it won't. Music piracy is unethical, but it'll remain an issue as long as the technology is this far ahead of the mechanisms of distribution. But they do involve gray areas. Large-volume copying is the equivalent of setting up a printing press to run off your own cheap copies of someone else's book. That's problematic. But small-volume copying is the equivalent of making mix tapes from your legally owned CDs, and that's not a problem, even if the labels suddenly think it is, and even if the law is currently worded so as to support the labels' position. (And as someone-- den Beste, I think-- said, if millions of people break a law, it's the law that becomes suspect, not the people.)
So the only question that I think anyone should have, quite apart from how to punish people or prevent them from making copies in large OR small volume, is whether it's possible for large- and small-volume copying to converge. Is there a middle ground? Does the metaphor extend far enough for there to be a danger of "where-do-we-draw-the-line"-ism?
I don't think it does. As soon as you choose to use technology that enables large-volume copying, you've stepped onto a slippery and very steep slope, and the technology won't stop halfway. There is no such thing as a P2P app that is designed only to share files among a small subscribed group of friends, or something-- and even if there were, it would be quickly hacked and extended to become a large-volume duplication mechanism. Small-volume mechanisms are the way they are because of fundamental limitations. One person isn't going to have a million iPods to fill up with ripped MP3s for his friends. One copy of iTunes can't be made to broadcast its MP3 library all over the world. One person can't create loads of duplicated CDs in any kind of volume, with anywhere near the cost-effectiveness to make it remotely interesting to him. These low-volume duplication mechanisms are simply nothing that Hollings or Disney or Time-Warner need worry about. They never have been, and they never will be. If a low-volume mechanism attains the ability to be a high-volume one, it immediately enters the other category.
These two forms of copying will need to be dealt with in completely different ways, but Hollings isn't likely to want to swallow that. His Axis will continue to push his agenda, and it will probably win-- at least in the short term. But information does want to be free, and ideas will not be placed behind pay-for-play gates. The only result, as Boucher realizes, is that the consumers will cease to have any sympathy for the labels' rights, everybody will run illegal software in such volume as cannot be fought by the MP3 Police, and pretty much every piece of music anybody listens to will be gray-market at best. In short, we'll become China.
Or, of course, there's the ever-so-slight possibility that the courts will see the future and will rule that personal digital devices from iPods to cameras to phones are there to uphold the same rights to possession of ideas that the very first laws covering books and the recent cases covering CDs and tapes were designed to protect; that while high-volume broadcasting of copyrighted material is worthy of legal attention, the right of a person to enjoy art at his leisure, on his own terms, in his own formats, shall not be infringed.
|
|
