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Extreme Copyright

This copyright thing has gotten out of hand in the past few years, thanks to the entertainment industry. At first, Hollywood viewed new technology as a vast new market, an endless variety of ways to invent new forms of entertainment and please you in newer and more convenient ways. You’d get to watch movies in perfect quality at home on demand. You’d read all about your favorite movies and enjoy screen savers before you went to the ultraplex. You’d buy digital books, digital television, digital music, and life would be a paradise for everyone.

That lasted right up to the moment that Hollywood figured out technology meant you might use entertainment the way you wanted and not the way it wanted you to. Napster scared the vinyl right out of the RIAA, and despite the fact that thousands of people said they’d pay for a service like Napster to access music they would not otherwise buy, the RIAA has spent years and millions of dollars trying to stop any technology or person who would dare loan a CD track to a friend.

The movie studios tried using a closed and secret process to create encryption for DVDs to keep you from doing anything but playing them on approved players. That already violated your basic media rights—you can’t buy a DVD in Japan and play it in the US. Not because it’s illegal, because it’s not—once you own a piece of media, you can use it any way you want. You just can’t copy it—that is, make duplicates or broadcast it—because that would violate the creator’s right of copying, or “copyright.” But you can view it yourself or with friends whenever, wherever, and as often as you like.

Hollywood didn’t like that idea, so it rigged DVDs to prevent it—discs encoded for one region won’t work in others. Of course, they had the right to do that (free speech), but you also have the owner rights to defeat it for your own use if you want. Of course, the DVD encryption failed because it didn’t have strong peer review, and Hollywood is now doing its best to imprison anyone who knows this, starting with the kids who figured it out, extending to anyone who spreads the message, and later to you if you use the decryption technology to preserve your ownership rights in a piece of media (not ownership rights in the content, just in the copy you purchased—there is no law that says if you move to or from Japan and buy a new DVD player that you have to repurchase all your DVDs, though Hollywood wants to force exactly that situation).

So Hollywood went to Congress, along with software producers who are always threatened by piracy (with good reason though not as good as they want you to think), and invented the Digital Millennium Copyright Act. It demands that you give up “fair use” rights to protect corporate profits, saying that legal use of entertainment products you’ve purchased aren’t legal if they’re in digital media instead of analog media. It’s “fair use” to photocopy a few sections of a magazine to show to colleagues, but DMCA makes it illegal to copy sections of a copy-protected PDF file, or to put portions of a Web page on an internal network, or to copy your own DVDs for your own use. It’s undergoing legal challenge, but Hollywood is spending lots of your box office dollars to make sure it gets new rights at the expense of yours.

Now the battle moves to TV. This week, Jamie Kellner of AOL Time Warner (head of Turner Broadcasting) reports on the latest in the SonicBlue ReplayTV lawsuit. ReplayTV is a DVR, or Digital Video Recorder, like the TiVo. Such units record television (broadcast, cable, satellite—whatever you get) to a hard disk so you can replay them later with much more flexibility than a VCR. DVRs merge the recorder with a database of upcoming programming so you don’t have to remember what to watch. You can tell such units to record every episode of your favorite shows, or to find programs that match your tastes. You see dozens of hours of programs in a nice menu without ever switching tapes, and they can record one show while playing back another. (Some can record two shows while playing back a third.)

They change TV into something you control—you don’t have to watch a program at 3AM if that’s the only time it’s on, and you don’t have to reset the VCR every day and rewind the tape to make it record. And now that you don’t have to watch TV exactly when Hollywood wants you to, they’re out to stop it. Specifically, they’ve targeted SonicBlue, and with good reason—the new ReplayTV units let you share programs with friends over the Internet. If you record something you like, you can send it to a friend by pressing a button on your remote control. That’s a pretty clear violation of copyright—you have the right to watch the program whenever you want, and maybe even to keep it since it was beamed into your home, but not to duplicate it beyond “fair use.”

Hollywood also doesn’t like that ReplayTV has a 30-second skip button that makes it trivial to skip individual ads. TiVo does as well, but it’s hidden as a back door that’s very hard to stumble across. So Hollywood is suing SonicBlue to stop the ReplayTV.

As part of discovery, a boneheaded magistrate has ordered that SonicBlue write software that ReplayTV does not currently have to collect every button ReplayTV users press on their remote controls—what programs they watch, what programs they send to friends, what ads they skip, and more. The magistrate also ordered that this information be tied to individuals, not just collected in aggregate, and turned over to Hollywood so it can feel more indignant about people ripping them off. This is like saying that if you own a VCR, then broadcasters have the right to know what you tape and what you do with the tapes. They don’t.

The entertainment companies say their position is grossly misstated because they just want the kind of information ReplayTV’s privacy policy allows SonicBlue to collect. They leave out that it doesn’t collect this information after a privacy uproar a year ago. They’re demanding the right to spy on ReplayTV users so they can prove they’re being horribly, horribly mistreated by those evil couch potatoes that watch what they want instead of what Hollywood wants to feed them.

Hollywood’s new position is that if you are a consumer of any entertainment services, you must view or experience them only as Hollywood intends. This is so egregious it should invoke Congressional investigations, but without campaign finance reform, there’s no chance of that—Hollywood spends too much money in Washington, DC.

But make no mistake about what the entertainment industry is trying to pull. Kellner’s positions that you must watch ads is like saying it’s illegal to enter a theater running a movie that you paid to see after the trailers are over, because those “ads” are part of the viewership “contract.” It’s saying you’re not allowed to skip pages in a book, or leave a movie in the middle, and it explicitly says you can’t get up and go to the bathroom during TV commercials.

The entertainment industries have had broadcast at their whim for so long, where only they control the presentation, that they now think they can’t make any money if you, a potential criminal, have any control over how you use media. They’re trying to ratchet it up with SSCPA, a new law that would mandate copy-protection in all digital devices. You wouldn’t be allowed to copy CDs or DVDs, or burn your own mix discs. You might not be allowed to keep digital recordings of TV shows for more than a day or two because you might be too tempted to copy them.

In the analog world, this would all be ludicrous. It would ban pencil and paper because you might take notes at a movie. It would require photocopiers to recognize copyrighted material and not duplicate any of it. Audio tape recorders would be all but impossible to use, not for privacy reasons but because you might record something you didn’t own.

The entertainment companies need a big slap. If they want to broadcast media to us, they have to expect us to use it as we please. If they want us to purchase physical media, we have the right to protect that media, just not to duplicate it for beyond our personal use.

Let’s see Hollywood aquiesce to the logical extension of its arguments. Do you think Jamie Kellner would agree that if you send him an E-mail, you have the right by your “contract” in creating it to force him to sit and read it in one stretch, a contract he accepted by receiving your E-mail? What about phone calls—are they required to listen to any copyrighted presentation of yours you may send over the phone lines? Or forbidden from recording it or copying that recording? What if you legally required them to destroy any letter you sent after 48 hours and forbade duplicating or filing it?

This treating of copyright like an extreme sport or a birthright has to stop. It is a copy right—the right to control how a work is copied for a limited time. You have no expectation that everything you write or say belongs exclusively to you forever, and you never have. The Sonny Bono Copyright Term Extension Act is specifically an appeasement to Disney—existing copyright on corporate works ran for 75 years after creation, and since the first Mickey Mouse cartoon debuted on November 18, 1928, Disney’s copyright on it expires on November 18, 2003. After spending lots of money, Congress extended that by another 20 years, protecting Mickey until 2023.

Copyright is a partial limitation on the First Amendment to encourage creative people to create. Without it, they couldn’t be compensated for their work, and few people could make a living at being an artist, writer, composer, musician, or actor. It’s not intended to make every act you perform a private and protected work until the end of time, or for 100 years, or to remove all rights from those who purchase your work—just to restrict their copying rights.

If we’re not careful, this will become as big a civil liberty issue as anything in the Bill of Rights. Rights you don’t exercise have this way of evaporating.

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