Intellectual Property Shark Week
So Discovery Channel is having their infamous “Shark Week” this week. I’m going to one-up them with a series of articles and posts about a very dangerous form of shark…Intellectual Property (IP) sharks. If you’re following me on Facebook/Google+/Delicious you’ll be treated to a bunch of different topics surrounding the problems we have with Copyright and Patents…or you can just ignore them.
If you’re reading this on the blog this is a bit off topic but I wanted to put it all together in one pace. You missed the fun in realtime, but here’s everything you missed all at once.
Copyright in the U.S. began with the constitution which gave the congress the power to: “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.” Once the constitution was ratified, the original Copyright Act (of 1790) set the “limited time” to 14 years with the option to renew it for another 14 years for a total of 28 years.
With the copyright term set to 14 years, authors were able to make a good amount of money on their works, as historically the vast amount of money is made immediately after release. However when the time was up, others were able to take these works and freely share them with anyone. For example, the movie “Its a Wonderful Life” was originally a terrible box-office flop. However when its copyright expired, several TV stations put it on to fill air-time around the holidays because it was free to all. Its popularity rapidly grew from there. #IPSharkWeek
In 1976, at the behest of rights holders, congress drastically lengthened the term of copyright to the life of the author plus 50 years (or simply 75 years for works created by a corporation). Then in 1998, when the copyright on the originally Mickey Mouse movies was about to expire, Disney pushed congress to again extend it. This time for the life of the author plus 70 years or 120 years for corporate works. #IPSharkWeek http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act
After the originaly 14 years of copyright was up, people were also free to take the original work and build upon it. For example Disney took the story Sleeping Beauty (published 1697) and was freely able to make it into an animated movie. (This is a common theme for Disney movies). They waited almost 300 years, but at the time they made the movie they would only have had to wait 28 years to use a story in a film. However, you can’t make a painting of a scene from Disney’s movie until 2078 (if congress doesn’t extend copyright again). #IPSharkWeek http://en.wikipedia.org/wiki/Sleeping_Beauty
Along with getting extraodinary extension to the copyright terms, the distributers of copyrighted works also decided to really jack up the penalties for unauthorized distribution. They got congress to say that you would be liable up to $150,000 per work that you copy without a license. So if I were to burn a copy of one of my CDs for my wife (retail value $8), I would be responsible for copying all 16 tracks on the CD (each one being a separate work) for a grand total of $2.4 million! Happy birthday honey #IPSharkWeek
Copyright law has not been completely corrupted to serve the interest of the publishers. There are two things that the public (which the constitution says should be the beneficiary of copyright) has on its side. The first is a limited term (which isn’t as limited as it used to be). The other is Fair Use. This allows for some (very limited) opportunity to use works that fall under copyright without permission of the publisher. Some of the ways you can use fair use are: criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. Unfortunately just because you fit into one of these categories doesn’t mean you’re in the clear to use it…there’s a bunch of other requirements too. #IPSharkWeek http://en.wikipedia.org/wiki/Fair_use
In 1998 the media distributers, mostly music and movie publishers, decided that the internet was for real, and that they didn’t want their music and movies distributed in any way besides CDs, VHS/DVD, and Cable TV. To put a stop to anyone who wanted to try other methods for selling media, they created the DMCA. A large part of this law was devoted to anti-circumvention. This means if a content producer puts encryption on their DVD (most do), then its against the law for you to use a tool to remove that encryption, and for example, copy it to your iPod. #IPSharkWeek http://www.enolsoft.com/blog/is-it-legal-to-rip-dvds/
The real crazy thing that the DMCA’s anti-circumvention clause did, other than keep people from putting the DVDs that they own onto their iPods, is enable other, non-content, companies to lock out competition. For instance, the companies that make printers and then sell the ink a huge profit margins put a bit of computer code into each ink cartridge so that they could use the DMCA to go after anyone who tried to make competing ink cartridges. Even better, there was a garage door opener company that sued another company another company under the DMCA that made universal openers which worked on their doors. Even if these lawsuits aren’t successful, just fighting it off could put an inventive startup out of business. #IPSharkWeek http://www.wired.com/science/discoveries/news/2003/09/60383
To oppose the industries unlimited power to encrypt things, and keep them from being used for fair use, congress and the register of copyrights have established several exemptions to the anti-circumevention policies. One is to allow professors to copy a DVD for use in the classroom. Another is to allow e-books to be read by screen readers for visually impaired people. Yet another allows users to jailbreak their smartphones. #IPSharkWeek http://arstechnica.com/tech-policy/2010/07/apple-loses-big-in-drm-ruling-jailbreaks-are-fair-use/
Another aspect of the DMCA (the final one I’m going to mention) allows for publishers to request that a website (youtube, wikipedia, blogger.com, etc) take down a user’s content if the publisher merely sends an accusation that the content is copyrighted by the publisher. The plus side of this, is that it absolves the websites of any responsibility for the content their users publish. The down side is that the number of times this has been abused by publishers is very un-funny. There are no checks and balances for fair use or even that the alleged copyright holder actually owns the copyright. There is no judge to decide if the take-down is legitimate, you only need to make an accusation to get the material taken down. #IPSharkWeek https://www.eff.org/wp/unintended-consequences-under-dmca/
One of those examples of publishers abusing the DMCA take-down request: A user submitted a video of birds (and their mating calls) to youtube. Then a company that licenses music for videos sent youtube a takedown request stating that his video contained some of their music and youtube took his video off the site. He tried to appeal to youtube, but when they asked the music company what was up with their request, they insisted that they owned the rights to his, clearly, original recording. #IPSharkWeek http://www.wired.com/business/2012/02/opinion-baiodmcayoutube/
The publishers of music and movies often call people who illegally copy the items they distribute “pirates” or “thieves”. But really? Is sharing your favorite song with a friend by copying it onto an ipod “stealing” anything? If I were to walk into your garage, hot-wire your car, and drive off in it, that would be stealing…one minute you had your car, the next you didn’t. This is not what happens when you copy music. No one loses their copy of it…studies have even shown that the odds are very good that your copying of one song won’t negatively affect your decision to purchase that music. #IPSharkWeek http://arstechnica.com/tech-policy/2012/04/raskally-fellows-are-copyright-infringers-pirates-and-thieves/
So the internet has been around for a few years now, and isn’t really going away. And the major content companies (mostly music and movies, but books and TV too) haven’t really gotten into the whole “online” thing. They’re really only on iTunes and Amazon. Why? They’re really afraid to change their past business model (CDs/DVDs/VHS) for something new. There’s lots of companies that have tried to innovate in this space, but they almost all get shot down by the same companies they would end up benefiting if they were successful. #IPSharkWeek http://arstechnica.com/tech-policy/2012/07/study-label-litigation-has-produced-an-innovation-wasteland/
Its one thing to illegally download a DVD from the web, but it is another thing all together to put a link to youtube on your website. The big content industries want both to be illegal, luckily the law is still on the side of the people with this one. The federal appeals court (7th circuit) recently ruled that its *not* illegal to put a link to an online video on your website. You’re not copying it! #IPSharkWeek http://arstechnica.com/tech-policy/2012/08/mpaa-embedding-is-infringement-theory-rejected-by-court/
In 2001 a smart guy named Bram Cohen developed a new internet protocol for rapidly downloading large files. It is called bit-torrent and it allows everyone who is downloading the file to pool their bandwidth so that they can all download it faster. Amazing technology. The music and movie people quickly started to oppose this technology, because it was so good that it worked well for copying movies and music too…they have (and still are) tried to demonize this technology, even though it was originally designed and is widely used for non-infringing purposes. Here’s one example of a site over 1,000,000 different *legal* files available for download with bit-torrent. #IPSharkWeek http://blog.archive.org/2012/08/07/over-1000000-torrents-of-downloadable-books-music-and-movies/
Here’s the list of what’s hot on the site: http://bt1.archive.org/hotlist.php
There’s also lots of other software available over bit-torrent, like my favorite operating system, Ubuntu: http://torrent.ubuntu.com:6969/
Not content with their current power over content, the big content industries pushed congress to create a (series of) new law(s) that would let them together with the feds shut down websites that they don’t like, even overseas. Part of this was called SOPA, and the internet wasn’t having it. On the day of January 18, 2012 tens of thousands of people called the capitol switchboard, overloading it. There was so much traffic to congresses web-servers that they went down for a while. Over six million people signed petitions against SOPA (that’s a decent percentage of the 300 million citizens in the U.S.). The amount of people who contacted their representatives this one day is more than ten times higher than any other day in history. And it worked. The next day the bill was dead. #IPSharkWeek http://www.forbes.com/sites/erikkain/2012/01/19/8-million-people-look-up-reps-in-congress-after-sopa-blackout/
The people who had pushed the SOPA bill were dismayed at the huge outpouring of support against their cause and decided to cast the blame against groups like Wikipedia (they’ve got a huge commercial motive, NOT!) and some companies like Google who had spoken against it. I’m sure that Google doesn’t make any sizable percentage of its money from this type of content either way. #IPSharkWeek http://arstechnica.com/tech-policy/2012/02/riaa-sort-of-responds-to-critics-says-copyright-offers-little-real-protection/
Blaming the organizations for the failure of SOPA isn’t even getting to the meat of the issue. It was important that organizations helped people get together and express their views, but it was the millions and millions of people that should be the important piece of the puzzle, not one company vs. another. Eric Raymond wrote a good letter to Senator Dodd (now the chair of the movie producer’s organization) explaining how this bill would have hurt the internet and all the people who use it. These are things that shouldn’t be messed with for *any* industry’s bottom line. #IPSharkWeek http://esr.ibiblio.org/?p=4155
Here’s a funny dramatization of what Chris “Rodd” wants to make into law with bills like SOPA. #IPSharkWeek http://vimeo.com/45864549
So after the Internet’s SOPA victory, the worry was that the content companies would just wait a few months for things to calm down and try the same approach again. Sooner or later they’d get luck with congress…so to take the initiative some of the people who are knowledgeable about these topics developed a “Declaration of Internet Freedom” to outline freedoms that should always be protected on the internet going forward. This should make things clear to industries who want to innovate which practices the users will and will not stand for. #IPSharkWeek http://arstechnica.com/tech-policy/2012/07/anti-sopa-veterans-issue-declaration-of-internet-freedom/
So I’m going to post my own suggestions for how to fix copyright but #IPSharkWeek still has a couple days to go…you’ll have to stay tuned. In the meantime, here’s what some other great minds think about fixing copyright. (Up next: patents) http://arstechnica.com/tech-policy/2012/02/why-wait-six-ways-that-congress-could-fix-copyright-now/
Patent time. Software patent time. The patent system has worked wonderfully for years at protecting the rights of inventors of all kinds of gadgets. However the U.S. Patent office states that you cannot patent an “Abstract Idea” or a “Rule of Nature” such as a mathematical formula. Anyone who understands how software works knows that it is just (complicated) mathematics combining ideas together., so software in general shouldn’t be patentable. Unfortunately, the courts got confused somewhere along the way, and it is. #IPSharkWeek http://en.wikipedia.org/wiki/Software_patent
The other thing about patents, is they need to be non-obvious to someone “skilled in the arts” (aka a programmer). Yet somehow Amazon managed to get a patent on a “One Click Checkout”, where you click one button next to an item and it just ships it. Basically this boils down to they’ve already stored all your billing info and don’t need to give you a page to enter it again. Not only is this obvious, but it is pretty much the definition of an abstract idea and is implemented completely in software (aka math). #IPSharkWeek http://www.patentlyo.com/patent/2010/03/amazon-one-click-patent-slides-through-reexamination.html
The problem with patents is that, unlike copyright, you can keep people from using functional things by suing them over patents. Take microsoft, they have a patent that allows a filesystem to use filenames longer than 11 characters (can I get a shout out for good-old 8.3 names?), sounds obvious *and* abstract. They then drafted this patent into their battle against the Linux operating system and started suing companies that used linux, like TomTom. That’s not really competing fairly. #IPSharkWeek http://arstechnica.com/information-technology/2009/02/microsoft-sues-tomtom-over-fat-patents-in-linux-based-device/
So Apple got a patent for using “swipe to unlock” on their iphone. Then the started seeing that Samsung was making phones that were technically far superior to the iphone and instead of releasing an iphone with a bigger screen, they sued samsung over this trivial patent, hoping that they could block sales of samsung phones in the U.S. Samsung, not being a pushover fired back with some patents of its own, and though the trial isn’t over it doesn’t look like either side will get a clean victory. They’ll probably end up settling for very little money and the only ones who will win will be the lawyers! http://www.nytimes.com/2012/07/30/technology/apple-samsung-trial-highlights-patent-wars.html?_r=1&pagewanted=all
Another thing that you can unfortunately patent that you shouldn’t be able to is life. There’s a company that found a genetic marker (has been in millions of peoples’ DNA for millennia) which indicates a elevated likely-hood for a certain type of breast cancer. So they went and patented the gene. Now if you want to get tested for that important mutation, you need to go through them. There are no other options, no second tests. #IPSharkWeek http://blogs.nature.com/news/2012/08/us-court-sides-with-gene-patents.html
So that just about wraps up #IPSharkWeek, but before I go, I want to leave a couple posts about what you can do. First, use Creative Commons licenses and media. Creative Commons is an organization that created a collection of freely available licenses that you can apply to your works (photos, writing, etc) which give others permission to use them in specific ways, without having to wait 120 years for it to enter the public domain or to get specific permission from you. Since it was created in 2001, millions and millions of works have been made available with the various Creative Commons licenses, which you are free to use yourself. http://creativecommons.org/about
Another thing you can do is to use Open Source software. This is software that is given away (usually) free of cost, but more importantly it gives its users the freedom to use it in any way they see fit or even to modify it to their liking. You may not be someone who can edit code of your favorite program to make it work better, but if you use software that has the freedom to do that, there’s a good likelyhood that someone else in the community of users (there are real communities that form around open source sofware) will have those skills. You may already even use free software. Firefox is. Libre Office (edits MS Word/Excel/Powerpoint) is. Gimp (a photo editor as good as photoshop) is. The Linux operating system (my favorite version – Ubuntu), which is a complete replacement for windows even is. All available for free. #IPSharkWeek http://www.ubuntu.com/project/about-ubuntu/our-philosophy
So people have been asking, what are my ideas for reforming IP law. Here they are: 1) Shorter copyright term, I think the original 14+14 years was fine, plenty of time to make money off your work. 2) Sane penalties for copyright infringement. If you make a copy of a $8 CD, you shouldn’t be responsible for millions in damages…something like 10 times the commercial value would be a fair punishment. 3) No patents on software, they just don’t make sense. 4) No patents on life…it was around before us, discovering something and then patenting how it works shouldn’t be something one organization can monopolize.
Thanks for reading #IPSharkWeek….tune in next week for #GlobalWarmingSharkWeek or #GovernmentSurveillanceSharkWeek…just kidding, no more rapid-fire messages for awhile.