Friday, December 28, 2007

Reining In Big Media

As a student in the '70's, I eagerly awaited the expiration of copyright-protection on works published in the 1920's, 30's and 40's. At the time, copyright law protected works for 28 years, with the option to renew the copyright for another 28-year period. Then the work would become public domain.

Some of my favorite big-band music and old movies would begin to join the public domain in the late '70's and early '80's. I planned to purchase a high-fidelity four-track reel-to-reel tape recorder and an 8mm projector and to begin my own private collection.

In 1978 I was annoyed when the 1909 copyright law was replaced by a new law. The new law meant I would have to wait much longer for those old works to become public domain. Instead of a fixed 56-year period (28 x 2), the new law established copyrights for the life of the author plus 50 years to the author's estate, or a fixed 75 years for corporate ownership. When the law was passed, I felt my own personal property (my right to make copies of public-domain records and movies) had been taken from me. It did not seem right that congress could pass a law that would remove so much value from so many people, but no one else seemed to care. No one else complained.

I consoled myself with the new clearly-defined "fair use" provisions of the 1976 law that enabled me to proceed with my intentions to duplicate and enhance my Dad's record collection, as long as I was not selling the copies, and could justify the creation of the collection on the basis of educational use or for use in my own creative endeavors.

In the '70's, I became aware of a new reason to wish for the soon expiration of copyrights. VCR's had become available, and although I could buy a new economy car for about the same price as a new VCR, it was obvious they would become affordable within the next few years. I eagerly awaited the new 75-year expiration of some of my favorite old Jean Arthur and Jimmy Stewart movies, some of which would join the public domain in the late 1990's (instead of the late 1970's as before).

In the early 1980's, I was encouraged when Sony successfully defended the use VCR's for private use when the Supreme Court ruled that private recordings of broadcast media is protected fair use. At the time I actually considered Sony to be a champion of consumer rights!

Big Media did not accept the Supreme Court's "fair use" ruling, however. In 1983, Macrovision introduced the first copy-protection system to allow media distributors to prevent the recording of their materials by adding a series a brief flashes of light between frames. These flashes of light did not affect viewing, but it overwhelmed recorders, causing tracking errors and dim unviewable screens.

The next blow to consumer rights came in 1988 when the United States joined the international community by accepting the 100-year-old Berne Convention for the Protection of Literary and Artistic works. It took another ten years for the acceptance of the Berne Convention to affect me personally, but in 1998, we complied with the international standard of protecting an artist's estate for 70 years instead of 50 years, and corporate copyrights were extended from 75 years to 95 years.

Once again, just as my long-awaited public-domain material came within reach, it was pushed back another 20 years!

Adding insult to injury, the Digital Millenium Copyright Act effectively circumvented fair-use law by criminalizing attempts to circumvent copy-protection schemes, regardless of copyrights. In other words, even if a work is clearly in the public domain, it is a crime to copy the material if the publisher employed any form of encryption such as the standard encryption used on all DVD recordings. Now copyright expiration dates have no meaning, and effectively there can be no "public domain."

Now DRM software brazenly has taken the infringement of individual rights to new lows. I personally lost hundreds of dollars of legitimately purchased music files when my firewall software interfered with Music Match's version of DRM. Music Match never answered any of my many letters of complaint. After the intolerable experience with Music Match, I switched to Wal-Mart's online service, only to loose my investment again, when their DRM software bugged out. I was pleased to hear Wal-Mart has since repented of their ties with DRM. I'm waiting to hear about the inevitable class-action lawsuit that I can join against the music industry to reclaim the value of my stolen music files.

Microsoft made a devastating error in judgment by courting Big Media. VISTA's failure and the new Linux revolution (I've switched to Ubuntu) can be directly attributed to DRM malware embedded in their operating system. If Microsoft would renounce DRM, I would probably install VISTA the same week, and so would most former Windows users.

I'm mad. I feel my property was taken away, and I had no say in the matter.

I believe the core issue is that our laws have given too much power to Big Media companies. We should begin our reforms by severely limiting the ability of Big Media to profit from their avoidance and abuse of public domain and fair use law.

I would begin by re-establishing the principle that intellectual property inherently belongs in the public domain, but may be held for a limited period of time, by creators of intellectual property and by the creators' estates.

I would criminalize the distribution of software designed to "enforce" copyrights by deleting or disabling media files or by crippling consumer equipment. I would make criminal use of DRM malware a felony. Corporations engaged in such practices could be dissolved with assets distributed to repay consumer losses. Company officials convicted of criminal use of DRM malware would be required to repay damages to consumers, and would be prevented from ever working in the media industry again.

After criminalizing the distribution and use of DRM, I would begin copyright reforms by "grandfathering" current individual and corporate media property, locking in corporate ownership of copyrights at the current 95-year limit, and private ownership at life plus 75 years. All current penalties for violating copyrights (except for fair use) would remain.

Next, I would eliminate corporate ownership of new copyrights, replacing them with renewable licenses. Only limited trusts that exist only to own and to license a specific copyright, and individual people may own copyrights. Media corporations may purchase short-term (in the range of two years) renewable licenses to use the material. Limited trusts that exist only to own and to independently license copyrights may be formed to sponsor production of new media, but shares of these trusts may only belong to investors, and may not be directly owned by media corporations. Production companies would be hired to produce new media. Distribution companies would license distribution rights.

I would limit the term of limited-trust copyright ownership to the original (1909) once-renewable 28 year period. I would allow private authors life-time ownership of their intellectual property plus 28 years for the estate.

Next, in addition to criminalizing the use of DRM, I would prohibit the use of any copy-protection or infringement-reporting technology unless tools are provided to the public to insure "fair use" is not inhibited by the use of such technology.

I would clearly define and protect "Public Domain" material and the ability to copy and distribute it, regardless of copy-protection.

Finally, I would create a fair system for victims of DRM to reclaim the value of their DRM-stolen property at three times the original market value adjusted for inflation, plus interest at the prime rate for the period of time that legitmate consumer rights were wrongfully withheld by the software. This penalty alone would put a number of media companies out of business. That's a good thing. Stealing must never be profitable, not even for Big Media.