Copyright and You

(Disclaimer: I am not a lawyer.)

Do you download software and / or music and / or movies and / or television shows without paying for it?

Do you know what ACTA is, or aims to be?

Do you live in a country where your government wants to check what you’re doing on the Internet?

Let’s start off with ACTA: The Anti-Counterfeiting Trade Agreement is a proposed trade agreement between a large number of countries (including the USA, EU, Canada, Switzerland, New Zealand and Australia), which is aimed at reducing “global trade of counterfeit goods and pirated copyright protected works”.

There are good and bad parts in the proposed text (my argument is based on a leaked document that was released earlier this month). I’m all for reducing the amount of counterfeit goods, for a number of reasons, most of which you will share with me.

My issue is with the principle of being able to suspend a household’s Internet account by an ISP, based on suspicion of “copyright infringement”, without a warrant and without providing evidence of said infringement. What is especially stupid, is that ANYONE is allowed to suspect you of infringing their copyright. So to take it to its logical conclusion, I can suspect you of copying my material, and report you, even if you’re in another country. Your ISP will then disconnect you. What happened to your right to defend yourself? What about your right to access information via your Internet connection? What if your account was compromised? What about international law?

What ACTA wants (in part), is for someone in the USA (the MPAA or RIAA, for example – a group of Mafiosa-like individuals who do not fully represent their industries) to be able to suspend someone’s account in another country, for suspected copyright infringement.

What constitutes “copyright infringement”? According to various sources, it is the unauthorised use of material that is covered by copyright law. For electronic material, that would cover reproduction and distribution.

How does the Internet work? At its very foundation, TCP/IP (the protocol for shifting data) uses packet switching. A source device sends a packet of information to a target, which makes a copy of it. That packet may be sent on to another target, and then another. We don’t have direct connections to everything we want to look at, so we have to rely on ISPs, gateways, routers, proxy servers, and a whole lot more. That’s reproduction right there. So who’s at fault? The ISP that allows the copying of the source data? The source for allowing distribution? The target for making a copy (in, for example, the browser cache) on their local computer? The intermediate routers and gateways?

We’re really no closer to an answer as we were at the start, then. Because, by the time you get your file, there is a large number of (sometimes transient) copies of the file already, all over the Internet. That’s where “unauthorised” comes in.

Copyright is an automatically granted right to the producer of material, that says they have the right to decide how people copy their work. The whole point is right there in the name. It’s not rocket science.

Unfortunately, groups like the MPAA and RIAA, based in USA and having no legal bearing on my computer in my house in South Africa, want to tell me how to use the stuff I buy. I’m not even talking about pirated materials here.

Again, let’s use an example: I go to the shop and I buy the latest book by Stephen King. Mr King is the copyright holder of the work. He has given his publisher non-exclusive rights (it has to be non-exclusive if he wants to retain copyright) to distribute the work to me. His publisher pays Mr King royalties on every sale, which are an acknowledgement of that non-exclusive right, usually in the form of monetary compensation. He is one of the highest earning authors in the world, after all.

Now I own the book. It is mine, to do with what I please, provided I do not infringe on Mr King’s rights. I am not allowed to make copies of the book and sell or give away the copies. I am not allowed to write the same or a similar work and call it my own. I am allowed to give the book away. I am allowed to critique the work and use excerpts from it in my critique (under fair use). I am allowed to sell the book to someone else. It is a commodity, and as long as Mr King’s name is on the work, and I don’t infringe his rights, the physical book is mine, and I can do what I want with it.

Music works in a different way. I go to the shop and I buy the latest CD by Green Day. Green Day is the copyright holder of that music. They have given their publisher non-exclusive rights to distribute the work to me. The publisher pays Green Day royalties on every sale. You get the picture. Except music does not work the same way as books. You do not own the CD. If you open the plastic wrap in which the CD is sold, you automatically lose any rights to redistribute the work. What you bought was a licence to listen to it. Huh? Because music can be broadcast, and there are rules around what constitutes a public broadcast, it is not a commodity. Did you know that you are not allowed to play your music, which you bought, in a public place without permission? That’s why radio stations play the same stuff over and over again. The record companies tell them who to promote, and the radio stations pay royalties to the record company, who then pays the artist a percentage of that royalty. It’s a mess.

Let’s talk a bit more about economics. Green Day writes and produces music because they enjoy creating it, and they sign a deal with a recording house so that the general public can participate in this music. The recording house manages the distribution of the music, organises deals with radio stations, CD and DVD production and distribution, concerts, and so on.

If Green Day wants to make money out of this creation of music, they must sell merchandise. A lot of merchandise. CDs, DVDs, MP3s (through iTunes and Amazon), t-shirts, bumper stickers, bobble-head dolls, tie-ins with films and other merchandising, and so on.

So, let’s say that a CD costs $10 to buy. The artist will receive a percentage of this, in the form of royalties. It’s a very low percentage. Some megastars, like Michael Jackson, might have gotten as much as 20% per album. Maybe. The recording house uses the rest of that money to pay for marketing, production and distribution of the merchandise. The rest is profit for the recording house.

So for an artist to make it big financially, they have to sell millions of albums, and do concerts. The Rolling Stones and Madonna are respectively the biggest earning group and female artist, because they tour. If Madonna stuck to studio albums and music videos, she would be earning very little by comparison.

So what about those album sales? Gold, platinum, multi-platinum, diamond? The RIAA says an album goes gold when it sells 500 000 units. Platinum is 1 million, multi-platinum is 2 million, and diamond is 10 million. There’s a page on Wikipedia giving a list of sales, and considering the amount of artists out there, it’s not a very long list.

But how many of those artists, who sold that many albums, did not tour? How many of those album sales were a direct result of touring? Those are questions I can’t answer. One thing I am certain of, though, is that to be really successful, you don’t rely on album sales. The Rolling Stones and Madonna prove that. Album sales are only a small percentage of potential income.

Enter software. Software is intangible. I cannot touch it, I cannot pick it up. It exists as a series of 1s and 0s on my hard drive. It exists as a series of 1s and 0s on the media which I bought it on, but I need a computer to be able to view it. Even plain text files are a series of 1s and 0s. All software needs hardware to view it.

This is where it gets interesting. The very nature of viewing a file means that the hardware will create a copy in memory, to display on the screen, or in the case of music, play through some speakers or headphones. But the hardware has made a copy in the memory of the device, to permit me to make use of the software. So I’m never actually using the source, but a copy of it.

That’s important. Whereas a Stephen King book is a physical commodity that I can buy, read, sell or give away without making a copy, I am forced by the very nature of software to make a copy before I can actually use it.

So as soon as you break the shrink-wrap on music or software, the licence agreement (which you are forced into accepting by opening the wrapping) states that you no longer have the right to give it away, sell it, or get a refund. (If the physical media is damaged, you’re allowed to replace it free of charge or at cost within a certain time period). But it’s a licence agreement, not an ownership agreement. You never own that material.

So why are we talking about music and software at the same time? And who exactly is the RIAA anyway? Well, as the name says, it is the Recording Industry Association of America. So basically, a group of recording houses got together and formed an association. In the USA. They can’t make laws. They are not the government. But remember the 80%+ they’re getting from album sales? They can, however (and do) claim to represent their artists. Which is technically true.

So, claiming this representation (and using their massive profits), they lobby the US government (by way of legal bribes – that whole lobbying thing is a mess as well) to create (or change) laws to protect their artists. They are the main drivers behind ACTA. Yes, really. Along with the Motion Picture Association of America, themselves an association of movie production companies (in the USA), they are trying to change international intellectual property laws. In an ideal world, they would be crushed in a few seconds.

Unfortunately, government lobbying is effective. Money talks. Every man has his price. US politicians, who in a number of cases do not understand copyright law, are pushing through changes that will empower the RIAA and MPAA to accuse anyone who has a trade agreement with the USA, to force their ISPs to disconnect someone, without evidence, of copyright infringement. The trade agreement allows them to bypass local copyright laws, because politically speaking, most countries don’t want to lose their trade with the USA. Stupid money.

Back to me on my computer. Here’s a scenario: I run my business from home. I use the Internet extensively to pay bills, check payments, and communicate with my customers. I use VoIP because there aren’t any copper cables in the area for the telephone company to install a phone. I literally rely on the Internet to do my job and earn a living.

My mother, who lives with me, owns a number of vinyl LPs. Her turntable is broken. She cannot listen to her music. So at night, she hops onto the Internet with Vuze or Limewire, and downloads a song from one of the albums she really wants to listen to.

The RIAA, in another country, has put some software on Limewire (which is illegal in my country) to scan my IP address. They write a letter to my ISP, telling them that they suspect me of piracy. My ISP disconnects me from the Internet. My business fails. I kill my mother and then myself, because I have no more money and the creditors will take everything. Yes, that makes perfect sense.

Stop the stupidity and fight back. Law is about the “reasonable man” argument. No reasonable man would allow a trade agreement between two countries dictate what he can do in his own home with his computer. And as for ISPs, they need to fight as well. To ask them to police the network is as futile as it is expensive. Encryption and tunnelling protocols already subvert deep packet inspection. The Dark Net bypasses normal traffic with a peer-to-peer network via the Internet. ACTA will not stop people from using the Internet to copy, because there is no way to tell the difference between a legal bit and an illegal bit. The evil 1s and 0s look exactly the same as good 1s and 0s. Innocent people will get hurt. This is shoot to kill in another form, and we know how well that’s going.