Copyright, DRM, and the Devil in the Details

On the left, Eugene Delacroix's Pieta was painted in 1850. Van Gogh painted Pieta (After Delacroix) in 1889 (right). Copyright violation, interesting interpretation, or a genuine new masterwork?

You probably don't care about copyright, patent protection and IP rights, or if you do, you may have a simple notion that the things protected by IP are ordinary property that their "owners" have the right to control for personal (or corporate) gain indefinitely. I'm going to take an unpopular position and try to convince you that:

a) This is a false view, largely based on the successful positioning and campaigning by corporate interests who control rights to music, art, literature and more general IP (patents, software, drug chemistry, etc.)

b) That IP rights are not absolute.

c) That the most recent manifestations of copy protection in the form of Digital Rights Management (DRM) are insidiously evil, and harmful to future advancement of technology, the arts, commerce and society in general.

d) That ordinary people need to speak up and be heard. It is through our inaction, and only through our inaction that corporate IP pirates and special interests will abrogate the last of our rights and expropriate our common birthright for their own gain.

e) This matters in both philosophical terms and in real losses of freedom and privilege. There is a direct economic cost to each and every one of us -- like a tax, except that it goes to corporations who are acting against our common interest as a civilization. Not only does our collective freedom as a society depend on it, but the future success of the capitalist economy that we have lived so richly from. (Most corporate interests would have you believe the opposite, but it is they who are taking apart the foundations of the free enterprise system, and killing the goose that has laid the golden egg.

Paul, you're confusing me.  What are you talking about?

This posting was inspired by Robert Scoble's recent blog entry from last week which discusses a "Channel 9" video with the WAVE (Windows Audio Video Excellence) team from several months ago while he was still at Microsoft. For some reason, the interview did not get posted at the time it was made, and has only recently surfaced. Although much of the interview is about some interesting fault tolerance features that make the user experience with Vista quite a bit superior to XP and before, there is a significant chunk in the middle which discusses Digital Rights Management (DRM). DRM is more popularly known as "anti-piracy" technology by the music and film business, a convenient term coined by the industry that paints themselves as the victims, and the rest of us, their customers, as the villains.

In his post, Robert describes the WAVE team as the "most evil team at Microsoft". He was speaking in jest, which became apparent in the firestorm of emotional commentary that followed, when he rapidly backtracked and called the team good people who are "just responding to a business request". I hear the faint distant echos of military apologists who claimed "I was just following orders."

OK, I think I know what DRM is. Why should I care again?

So, we know that DRM is about protecting copyright in various digital media, from CDs to DVDs to software to eBooks to iTunes downloads and more. Isn't this just about keeping dishonest people from stealing copies they haven't paid for? No, in fact it isn't. It is mostly about limiting honest people from exercising their "fair use" rights to things they've already paid for, but more about that in a bit.

Quick history of copyright

In America, Congress was empowered to create national copyright and patent laws by Article I, Section 8 of The Constitution which says:

[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;

Some key points here:

The purpose of copyright is to promote Progress of Science and Useful Arts. That is, by giving a limited term exclusive right to profit from creative work the intent was to balance the common good with an incentive to the create artworks and invent/discover new science.

There is a subtle, but very fundamental observation at the root of this abstract concept of IP protection. Namely, that all advances, all creativity, all technology is built on what came before. Without a wheel, we couldn't have a cart, which couldn't become a horse drawn carriage, which couldn't become a car. In art, imitation isn't just flattery, it is a long tradition that many of the greatest masterpieces drew on the work of previous art masters. Some of the most contested copyright cases, such as Eldred vs Ashcroft which challenged the constitutionality of the Copyright Term Extension Act (CTEA) passed in 1998, are at their core about this concept of the need to build on past achievements in order to have progress. CTEA was sponsored by Sonny Bono, who thought that all copyright should be forever, and was aggressively lobbied for by Disney Studios. It is therefore also known as the Sony Bono Copyright Term Extension Act, and often referred to as the Mickey Mouse Protection Act, a derogatory reference to the primary immediate beneficiary of the bill, namely Walt Disney Studios.

Mona Lisa, perhaps the most famous painting ever, was created by Leonardo da Vinci between 1503 and 1505. Mona Lisa: LHOOQ was created by scribbling a mustache and beard on a post card image of the Mona Lisa, and labelling it with the letters LHOOQ (intended to be pronounced and sound like the vulgar French expression "She is hot in the ass") as a Dada-ist parody of Mona Lisa by Marcel Duchamp in 1919. Fair use? Free speech? Or, should the artist's copyright allow him to block such "new art"?

CTEA is especially ironic in the benefit it provides to Disney at the expense of "Progress of the Useful Arts", because many of Disney's greatest animated features were drawn from the Grimm Brothers and other fairy tales in the public domain. It has been said that the purpose of CTEA is to stop anyone else from doing to Disney what Walt did to the Grimm Brothers. But the chilling effect on innovation applies equally to all areas of technology invention, pharmaceutical development, publishing, software -- in fact all of the significant areas of intellectual property.

But isn't that what the Constitutional framers intended?

NO. As a matter of fact, they didn't.

When the constitutional framers were considering protection of intellectual property, it was at a time of explosive economic growth and new theories about the free market as an engine for prosperity, freedom and our common good. Not coincidentally, it was 1776 when Adam Smith published his famous paper "An Inquiry into the Nature and Causes of the Wealth of Nations", which discussed the benefits of the "invisible hand" of the free market for the common good. Capitalism was a good thing, and it was argued that by following their own enlightened self interest, the owners of production capacity not only benefited themselves, but created increased wealth and improvements to the common welfare for their communities as well.

It was this free market philosophy and the desire to ensure that there was an economic incentive to the creators of new inventions and art that led to the inclusion of a clause in the constitution to implement exclusive Intellectual Property (IP) protections "for a "limited time". I draw attention to the limited time qualifier, because without it, you have perpetual monopoly control of IP. Where you have a monopoly, you do not have competition, and therefore you do not promote either progress or the common good. Pricing tends to be exploitive and there is no incentive to increase efficiency or reduce cost of production. Without this most basic notion of competition and free markets, we do not have a healthy capitalist system, and the constitutional framers would probably not have granted this privilege of exclusive commercial rights to IP.

An excellent paper by Dotan Oliar affirms this intent of the framers to limit both the period and Congress's ability to extend the period. Having studied the original source documents and the recorded constitutional debates and notes from the framers, he concludes that the original proposal by Madison and Pinckney to include IP protection did not have such a limitation, and that it was specifically added later with the intent to ensure that the common good was not harmed through perpetual rights to IP. Despite this, we have Congress repeatedly passing bills to extend copyright privileges for the 11th time in 40 years, culminating in the Mickey Mouse Protection Act in 1998 and the Digital Millenium Copyright Act also in 1998, both of which severely restrict the consumer's rights to use copyrighted materials that they've paid for, and effectively overreaching the limitations on term specifically proscribed in the Constitution. These extensions clearly benefit only the copyright holder and unquestionably harm the "Progress of Science and the Useful Arts".

How does a limited term to copyright serve to promote the progress of the useful arts?

Let's look specifically at art for a moment. It is a well accepted practice, with millenia of history behind it, that art imitates and changes art. The Romans freely admitted copying the Greeks and Egyptians in their sculpture, architecture and decorative arts. Famous artists learned their craft through imitation, going to the prominent galleries to copy what they saw until they understood it and could add to it, and working in the studios of the current day masters learning their techniques and rules of composition, color and form. And, we aren't just talking about imitation during their learning phase -- they carried on the practice of imitating those that went before throughout their years of accomplishment. Some prominent examples are posted here.

The image on the left is a detail from a much larger painting, Las Meninas, by Diego Velazquez in 1656, and on the right is a similarly cropped detail from Pablo Picasso's Las Meninas (after Velazquez), painted in 1957. Is Picasso's version a stylized caricature of the original, a brilliant breakthrough reinterpretation, or theft of IP?

It is no different in music, writing or R+D -- we all build on the body on knowledge that came before. Copyright lawyer and former counsel to the US House of Representatives, William Patry acknowledges this debt to the past in his blog post "In Praise of Imitation":

My college degrees are in music theory and composition, the "and" signifying that I both analyzed what the greats had done and wrote my own pieces. These two processes were, however, rarely separate: much of what I composed was an imitation of what I was studying, and I went through compositional fads related to my then-current theoretical interest. When I was infatuated with the Second Viennese School of Schoenberg, Berg, and Webern, I wrote music with twelve-tone rows, and not being original, I used one of theirs. When later I was into the avant-garde Polish music of Penderecki and Lutoslwaski, I tried to write like them.

Balancing Economic Incentive to Creators and Inventors with the Common Good

As a sidebar, it continues to amaze me how wise, insightful and forward looking the constitutional framers were in understanding subtle effects and the need for checks and balances in the design of this country's governance and legal systems. Protection for IP was almost not included in the constitution at all, yet it was recognized that providing such protection was both an adequate reward and strong incentive to create new technology and art that would power the country's economy for generations. It was a brilliant notion. On the other hand, they also recognized that monopoly power is a very dangerous thing for social systems and is contrary to the common good, and that if granted in perpetuity, it is damaging to economic, scientific and artistic progress.

With the Mickey Mouse Protection Act (OK, the CTEA) and the Digital Millenium Copyright Act, we have managed to allow commercial interests to undermine and render meaningless the balances that were intended to create progress and benefit the common good (which was the orginal reason for the clause to be added to the Consitution). Copyright protection now extends to the authors lifetime plus 70 years. This length of time is clearly beyond any reasonable limit which provides economic incentive to create novelty, and in fact, one could argue that it provides an anti-incentive to new creation. Invention and creation costs money and time and perspiration. If you have monopoly powers to exclusively milk a creation for 100 years or longer (70 years past your own death), why bother creating anything new? If competitors can't use these ideas to advance knowledge and build their own products, eventually virtually all innovation will be under lock and key, and only at the discretion of the rights holders.

Jack Valenti, bagman and lobbyist for the Motion Picture Association of America certainly understood this when arguing for extension of copyright protection. His proposal to satisfy the 'limit' provision with a term of "forever less one day" (yup, it's right there in the Congression Record, Vol. 144, page H9952) clearly demonstrates how he and the entrenched interests of the MPAA felt about advancing the common good.

In the beginning, 'limited Times' was defined as a period of 14 years, with the right to renew for one additional period of 14 years if the author was still alive. Twenty eight years of government enforced monopoly power seems more than ample to profit from an invention, even today.

Back to the Future

So, here we sit in 2006, 216 years after the first copyright law was enacted under the Constitution of the newly minted United States, faced with a copyright regimen that creates monopoly profit opportunity for up to 120 years, or almost two lifetimes, for all intents and purposes an 'unlimited Time', which completely undermines the intent of allowing copyright privileges in the first place. And, beyond that, we now have the DMCA, which further limits the honest user's rights to use materials they've legitimately and legally paid for. The recording industry not only seeks to stop you from moving it between machines (if you do it too many times -- i.e. greater than 5 in the case of an iTunes file -- the file stops working, even though you've paid to use it), but to impose injurious design standards on the machines that you play it on.

Rather than describe the implications of these myself, I am referring to two outstanding descriptions of the insidious evil that we are today faced with. The first is a presentation by Lawrence Lessig to the Open Source Software Convention (OSCON) in 2002, and the second is a manifesto written by Cory Doctorow, which was delivered as a talk to the Microsoft WAVE team discussed at the beginning of this entry. For simplicity, you may also click on the images below to view these items.

What can we learn from this?

China will win. In the beginning of copyright rules, it was the underprivileged classes, including the Scots vs London-based booksellers and US and Irish publishers who ignored English rules and assumed everything was in the public domain. Today, China is telling us that world-imposed IP protections are ridiculous, and that the billions of people earning pennies a day can't afford $5 for a single prescription pill or $379 for a single copy of an operating system. So to advance their economy and standard of living above the poverty level, they are ignoring the extant world system, and building on our advances while we sit stagnant. Where will this leave us in 20 years? 20 years behind the Chinese, and without an industrial or IP base to work with.

Consumers lose when industry lobbies government for its own selfish gain. You have progressively lost the legal right to make legitimate personal use copies of virtually everything through increasing mechanization and digitization of content and Digital Rights Management.

Industry has smarter marketers than the philosophers and end-users. Society has been hoodwinked by clever marketing and positioning. The argument was won in Washington and on the world stage when the MPAA and RIAA successfully labelled copyright protection as "anti-piracy". Why? Because pirates are bad -- they rape your women and steal your treasure and butcher ordinary people. We went along with that labelling, perceiving that only dishonest people could be tagged as pirates, but now we have allowed a walled-garden to be erected around virtually all content, and fair use of copyright material has been practically eliminated as a concept. To win this battle, we must a) fight it, and b) reposition the DRM and CTEA as plunderers of our collective heritage and our rights to continue forward technological, artistic and intellectual progress. It is the Rasputins of the "creative" industries who are pirates and thieves and who have harmed the common good that copyright was initially created to protect and promote.

Enablers may not have evil intent, but they are evil nonetheless. In the 1930s, Germans who did not actively defend Jews from persecution may not have directly harmed the Jews, but by stepping aside and allowing the Nazis to practice their immorality, they enabled it. The kind of evil that turns a blind eye, says I'm just following orders, or "if I don't do it, someone else will" is rationalizing and debasing of the human spirit. Microsoft cannot stand aside and support abrogation of our rights through enabling technology (nor should Apple, but it was Scoble's blog about Microsoft's WAVE team that raised the issue). Bill Gates is willing to go before the Justice department and the EC to fight for years on end about whether or not Microsoft is a monopoly. Why not take a moral stand about consumer rights regarding fair and legitimate use of licensed IP?

This is not an issue of left vs right. I am a capitalist and a strong free market advocate. In my view, allowing unlimited copyright and enabling technology which takes away rights that still exist under the law is anti-capitalist and anti-free market. It destroys competition and makes lawyers more important than innovators, putting a major damper on our country's ability to compete effectively in the future. It is like transnational protectionism, and just as destructive of value and earning potential, except to those who are granted special monopoly privileges. It also has a nasty way of encroaching on free speech. Those on the left side of the spectrum who value freedom, innovation, keeping jobs in America, in promoting the commons and in keeping our country strong should feel the same way.