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The Digital Millennium Copyright Act: Part Two
The Digital Millennium Copyright Act is a frontal assault on the open source ethic, both technological and social. The underlying political issue is both clear and significant: Must we depend on the creative choices and products of a handful of ferociously greedy and monopolistic corporations who have increasingly come to dominate media, culture and entertainment? Or can we define our own cultural experiences? (Read more below.)
Before the passage of this law, the answer was yes; individuals controlled at least some of their choices.
Increasingly, though, the answer now seems to be no; corporatism rules. This act directly affects individuals' consumer options and cultural choices. It also dramatically restricts the right of individual artists to have their works seen, heard and sold. That makes it a First Amendment as well as a corporate issue. One of the Net's universally shared ethics, at least among geeks, has been empowerment and choice, along with a growing open-source instinct about software and technology. But new software and hardware applications that affect entertainment, culture and information are now limited by the Digital Millennium Copyright Act.
Before DMCA, sites let users create custom playlists, creating individualized music programs. That practice has been slowed by the law's restrictions on the number of songs from a single artist or album that can be transmitted at one time.
Internet radio stations are still allowed to broadcast music, but under a completely different set of rules. The DMCA stipulates that unlike ordinary radio and TV broadcasters, Webcasters must pay royalties to record companies. Webcasts are limited to three songs from one album in any three-hour period.
This is a particularly noxious provision of the DMCA, as it sets a different standard for Net music than for offline music broadcasting. Previously, Net culture has tended to be freer than offline culture. Music, the spark for a surprising percentage of the Net's legal battles, has become a metaphor for the emerging political struggle over who defines and propagates culture on the Web and the rest of the Net.
The implications are enormous. Several years ago, the federal courts overturned not one but two efforts by Congress to police "indecent" speech on the Net: the Communications Decency Act and its equally hoary successor, the baby CDA. The federal court ruling, one of the first significant legal precedents set regarding online freedom, held that the Internet had established a tradition of free speech and free flow of ideas and opinions that was entrenched and constitutionally protected by the First Amendment. It said congressional efforts to curb that freedom were offensive as well as unconstitutional. Hopefully, that precedent will apply to the DMCA.
Judicial rejection of CDA notwithstanding, the DMCA threatens to do much more harm to freedom on the Net than the CDA ever would have. The Communications Decency Acts, however obnoxious, were both efforts at political theater, staged mostly for constituents. They were ludicrously unenforceable and vague. By contrast, the DMCA is already proving itself shockingly effective.
The Net is, in fact, redefining what content and intellectual property are. Many people of good faith are bitterly divided about that issue. Many artists and companies argue that the distributors of content have the right to be paid for the work they transmit or create, and that music downloaders are stealing, plain and simple. Others sense that music will simply be distributed and sold in freer, more diverse ways. It's a valid debate, and a necessary one. But the DMCA doesn't promote a debate on that issue; in fact, it's a back-door effort by lobbyists and politicians to circumvent debate or discussion entirely.
The law's proponents claim that the DMCA was intended to promote balance, but so far, at least, it tilts sharply towards copyright holders, not copyright challengers. It advances a principle of blind copyright protection that in no way takes into account the Net's unique nature, nor the rights and sensibilities of a generation that defines culture differently. Nor does it even acknowledge the idea of any universal right to define choice, options or personal enjoyment. This kind of pre-Net copyright protection will advance the same sort of tepid and homogeneous culture that the music and movie industries have forced on the offline world by promoting products that can generate enormous revenues, and by gobbling up independent companies and acquiring media and entertainment companies and mass-marketing (and in effect, censoring and moderating) popular culture. Corporatism isn't the same as capitalism, or corporations. It's new, bigger, more global and vastly more powerful. It has acquired most mainstream media. It is the primary contributor to the political system. It is viscerally at odds with free speech and individual expression.
Everywhere it reigns, from Wal-Mart to AOL/Time Warner to Microsoft, corporatism discourages creativity, pushes individuals to the margins and promotes conformity and control of software, hardware, intellectual content and culture.
One of the striking aspects of geek culture is that it's so far remained much freer than the mainstream. Software and hardware have enabled individuals to seek out rich, diverse and highly individualized entertainment. The ability to personalize culture in this way is unprecedented, a unique feature of life online.
But that ability is endangered. A less appealing hallmark of geek ideology is the sometimes unconscious but pronounced arrogance that comes from having so much freedom. The belief that even if laws restrict the Net, innovative software and hardware will triumph, is pervasive. The DMCA suggests that may be wishful thinking.
Although many people online pride themselves on their lack of traditional political consciousness, what they have built -- the software and hardware that runs the Net and the Web -- is intensely political, especially to corporations seeking footholds online. Geeks may be the only barrier standing between us and the rampaging corporatists drooling over profits from cyberspace.
The primary political struggle of the 21st Century -- corporatism versus individualism -- has erupted right under our noses. And with little political consciousness or response, we seem to be losing the first big battle.
The problem is, companies still trying to force the Net to fit into the old rules of economics. These rules work fine in the physical realm, because they rely on scarcity. There can only be X amount of stuff in the world/nation/whatever region at any one time. Furthermore, there is no way to increase this amount; to make one thing you must destroy something else.
The digital realm is different. While initially producing something may cost money, once that has been done it is present in the digital realm in basically infinite supply. As long as one instance of something exists, an infinite amount of instances can be created at zero cost. Because the digital realm is a zone of abundance rather than one of scarcity, new rules must be found to work with it.
The DMCA, and its silly restrictions on Net broadcasts/publishing/whatever, isn't really trying to impose a double standard. What it's trying to do is fit the old rules over a new realm. And in the end that doesn't work. The Net restrictions on broadcasting, for example, are there because RIAA sees Net radio not as a broadcast medium but as a distribution medium (in truth it is both and neither at the same time, but this isn't possible in the physical world so RIAA never realized that), and therefore lobbied for different standards.
The truth is, corporations are scared of the Net. They're afraid that it'll kill off their precious profits. The fact is it won't, but corporations have to adapt, to be willing to throw the old rules out the window for a new set which fits the digital realm.
What are those rules? I don't claim to know; I don't think the Net has yet been around long enough that one could form a set which works. The old economic laws certainly don't work; the Net itself violates even the most basic law of supply and demand (supply is essentially infinite, but demand is clearly nonzero). The Open-Source ethic might be an answer, but it also might not.
Companies don't have to worry as much as they do, not even RIAA. This is simply an economic evolution, one which they would be better off adapting to rather than resisting. If they want to pull out of the digital economy completely, the physical economy will always be there. At least, it will as long as there are physical beings, like people. But it's useless to map old economic laws onto a place which violates just about every one of them by its very nature.
I think I'm finally beginning to understand why RIAA and DVD-CCA want so badly to control the Net as they do. It's a logical fallacy of theirs, one which has become common as of late (interesting how Enlightenment philosophers seem to have gotten it better than modern ones). The idea is, simply put, that of "intellectual property" which is at best a misnomer and at worst a total myth. Before the Objectivists here start flaming me, hear me out...
Let's use art as an example. You paint a picture. Do you own the painting? Yes; you bought the materials and made the painting. You build a sculpture; do you own it? Yes; again you bought the materials and used them. But let's say you record a CD. Certainly you own the CD. But how do you own sound, even a specific configuration thereof? Or let's say you write a book; you certainly own the book, but how do you own words? You write a piece of software; how do you own thought? You build something; you own what you have built, but how do you own the concept of whatever it is you have made?
The simple fact of the matter is, you don't. You can't, any more than you could own fire. So who owns it, then? Nobody does; nobody can. This is where the patent, copyright, and trademark offices come in. The idea is to promote the distribution of these non-ownable things by stating that for a certain period of time, no one but the first person to register these may use the idea, except by permission or fair use. Each handles a different thing; trademarks cover corporate identity, copyrights cover thoughts, and patents cover devices.
Now, before someone goes to claim that I'm saying that a person has no rights to his mind, that's not what I mean. It does mean you have to view the mind from a different perspective, but it ends, as with the "intellectual property" myth, with a person keeping rights to his own mind.
Certainly you own your own body. This means that among other things, you own your brain. Your brain (at least according to generally accepted theory) houses your mind, and you own that too because it's a part of you. What does the mind do? It produces thought. I don't think anyone here will argue against the assertion that the mind is (or at least should be) sacrosanct, not something that anyone else has the right to interfere with, if only because each person owns his own mind. Because of this, you have a right to your own thoughts, just as if you did own them. The difference is only that you have no intrinsic right to sell your thoughts (the concept doesn't work anyway; if you sell your idea to someone else you lose nothing except perhaps the time it took to explain it, so it's not a fair trade).
This is why I think we really need to come up with a better phrase than "intellectual property" for this sort of thing. No doubt it was started by the corporation, because it tips the balance in their favor. But it's also a misnomer.
it is the only thing that will keeps companies honest.
In the future world where two or three mega-corps control every industry, it is only through vocal protests and real-world action that the teeny-tiny voices of indinidual consumers will ever be heard. We must speak up, we must spread the word, and when it's needed, shout from every rooftop and bitcast from every node.
People can't resist when they don't know they are fighting. It's in the established businesses best interests to keep consumers ignorant, and they'll spend a lot of money o their best interests. It won't be as much censoring what you say, but just saying so much more than you so that no one can ever hear. Or spewing forth such rhetoric, that by the time you have a chance to debate with "average joe" he has already been told 100+ times that you are a pirate, a thief, and the scum of the earth because you don't think you should pay for unnecessary services from a monopolist.
Make conscious consumer choices, make an effort to educate your friends, and don't give up. The only way to lose is to stop fighting.
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I agree that it makes sense to do some of the innovation ourselves, but we can't depend upon that for our consumer rights - we have to simply say that the Government has no right to regulate our private use of products we pay for. It doesn't derive that from anything - read up on political science theory and you'll see that our government is based upon the idea of natural rights, one of which is to do things with stuff that we pay for. That's not a libretarian-geek philosophy, which is where Katz would place it, but it's simply a standard idea in these thoughts. Read Locke or Thoreau sometime - it has to do with the core political theory upon which our government derives its power as a democracy. Esp. read Thoreau to understand what you're doing when you host your copy of DeCSS.
Partly, the DCMA applies to copying for profit of artistic works, which is where it should be applied. Not to private use - they have no right.
Uh oh - are those the UN Black Helicopters? gotta go
"The romance of Silicon Valley was about money - excuse me, about changing the world, one million dollars at a time."
Visit
1.
This is false. Radio stations - like TV stations, cable networks, etc. - need to get licenses from performing rights groups like ASCAP or BMI. Even businesses and restaurants larger than a certain size (2000 sq. ft. and 3750 sq. ft., respectively) need to get licenses. Those licenses are not free - they are bought for millions of dollars sometimes, and the money from their purchase goes to the songwriters and performers.
2.
Well, duh. All copyright laws are First Amendment issues in part. All of them. Why? Because copyright laws are inherently about what you can and cannot do and say. The DMCA is no more especially a First Amendment matter than any other copyright law.
And recognizing that there are free-speech issues involved, the DMCA (like other copyright acts) leaves intact the "Fair Use" doctrine, which permits the use of copyrighted material for criticism, comment, news reporting, teaching, scholarship, or research.
3.
First of all, calling it a "back-door effort" ignores the facts that there were lobbyists and politicians on both sides of every part of the issue, and that comments and input were solicited from the online community and libraries and computer makers. What's more, some of the Act's provisions had been discussed and debated internationally, as part of a World Intellectual Property Organization treaty - and were first publicized years and years ago. Calling it secretive or "back-door" is plain inaccurate.
4.
This is nonsensical. How is the DMCA "blind"? The point of the law, whether you like it or not, is that it does take into account the Net's unique nature, by recognizing that the Net can be used to disseminate information instantly everywhere. It isn't blind: it tries to stop some of that information from just disappearing into the ether, possibly leaving creators unpaid. What do you mean this generation "defines culture differently"? Every generation defines culture differently, and (if you'll allow me to follow your logic to its natural conclusion) every person defines culture differently. This is not a culture gap, and there is no acceptable reason for lawmakers, musicians and other copyright holders to be held hostage by people who don't want to pay for anything.
5.
Like the theory of phlogiston, your argument here sounds great. But, like the theory of phlogiston, there is not a great deal of empirical evidence to back it up. First of all, your statement about "mainstream media" is circular since you are defining mainstream media as "those media which are owned by corporations." Second, the primary contributor to the political system, in terms of money and in terms of vocal input, is the ordinary voting population; it contributes more money than any other contributing segment. In fact, even though nobody talks about this, corporations are not allowed to support candidates for federal office.
6.
O, Katz, come on. Compare the words you use for corporations (discourages, pushes, conformity, control, rampaging, drooling) with the words you use for geeks (free, diverse, individualized, unprecedented, unique). What propaganda!
Things are a whole lot more complicated than that. First of all, you refuse to admit the positive effects of the corporate control you so disdain. Thanks to AOL, 20 million people are online. Thanks to Microsoft, lots of confused non-techies are able to use these machines we take for granted. Thanks to WalMart, people have access to more and cheaper products.
How you can claim this is not capitalism is beyond me. With the exception of monopolistic behavior (the integrated-browswer debate is not worth getting into here), each of these companies is behaving as capitalist firms should - by offering products and services that consumers are drawn to.
What's more, it's ridiculous to cast corporations as an Evil Empire trying to crush the plucky, charming geeks who can see how "culture" is changing around them. Even as the Net lets people express themselves more individually, it also spreads a common culture, full of common language and terms and beliefs which can themselves become tyrannical. Before writing "Geeks," you should have sat down and read some Alexis de Tocqueville.
7.
I disagree here again. Technology is extraordinarily powerful, and right now, it is shaping the law - not the other way around. (And if you believe Lawrence Lessig, in many ways, the technology is the law.) I expect that trend will continue for several decades.
8.
First of all, to claim that "corporatism versus individualism" is the "primary political struggle" of the next century demonstrates as much a sense of history as the people who called the O.J. Simpson trial the "trial of the century." Life always ends up amazingly unlike what we had supposed.
Second, again, you are unwilling to see political activism by geeks because you are defining "geeks" circularly - as those who are not politically active. There are many people, including many people here in Washington, D.C., who share the political and technological views of geeks, and are fighting every day to prevent new dumb laws from being passed. Most people are not politically conscious - not just geeks - and that's a wonderful thing. It's a sign of our freedom and safety. The places where political cognizance is a necessary good are places like Chechnya or Somalia or Cuba or China, where a lack of political sense can land you in jail.
A. Keiper
The Center for the Study of Technology and Society
Besides, EVEN IF it can be fairly maintained that digital music is a first amendment issue, don't forget that the actual rights to the music are owned by record companies, rendering it more a commerce and copyright issue if the courts so decide.( This wouldn't be the first time an anti-free-speech law went on the books in the US, either (1798, repeatedly in the 1890s and during the Red Scare)).
And that's another problem-- the fact that these new laws, CDA, UCITA, DMCA, span so many legal categories, makes them hard to grok fully, much less fight. Your average legislature hasn't the time to parse 80 pages of text when they have 800 bills on the docket and an expert testimony in front of them that says it's okay. Of course that testimony was written by. . .
2) Do you know where staffers from Capitol Hill go when they burn out?? Across the Potomac to the Northern VA/Maryland tech corridor, where they get jobs as "legislative consultants." That's fancy talk for lobbyists. The tech companies are not stupid, they're mining the very source for legislative talent. See # 1 above, and marvel at the collusion going down.
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