Jacques’ Brain Drain

One of the more serious problems facing us in the United States is defining the scope of government. This is not a matter of defining what the government can do, but rather what it should do. Much of the current backlash against the existing federal system – whether by marijuana advocates, (medical and other) sex educators, free speech groups, privacy groups and others is a response to a perceived change in the scope of government.
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I have been both reading and writing about computers for a long time. One thing that I’ve found lacking in a basic explanation of key “obvious” concepts which are vital to understanding many legal and moral problems in current society and politics. These are not intended to be political statements. They are neither Republican nor Democratic – Neither libertarian or fascist. These statements are, as clearly as I am able to make them, fundamental properties of the digital world.

I had an interesting copyright experience this morning.

I follow Violet Blue’s blogs—and when she went to the Forbes Web Disruptor’s conference, she recorded a panel discussion as a video feed. She mentioned in her comments that she wanted to strip it back to only audio, but the software she was using couldn’t handle a file that large. Since I usually listen to lectures and panel discussions while exercising, I stripped it, transcoded it to mp3 and loaded it on my mp3 player.

It was a good panel, and several people made interesting points, but someone else can write about that. What made me pause is that I had the file available, and could have easily made it available to whoever wanted it. Instead – I ended up putting it away in a private directory and sending her a link. Even that was technically unlawful. As things stand, I am being exposed to potential legal liability for trying to help out someone I admire who’s stuck out back of the beyond with marginal software. Somehow, I don’t think that this was what any of the lawmakers involved in copyright intended.

If damaging cooperation among people who respect each other’s work is not the intent of copyright (and I’m fairly certain that it’s not), than how can we fix the problem? That’s a much more interesting question, and answering it means taking a long hard look at how we reward people for creating works of value or beauty. In this context, that means thinking about the social nature of cooperation.

In a way, much of this gets back to some of the things Richard Stallman wrote about software. The key to his writings is a belief that people’s willingness to cooperate and share is one of the human attributes that holds society together. No matter what you have to say about his other beliefs, that basic premise is difficult to disagree with. This leads to some interesting situations—for example, the fact that Bittorrent works for infringing content, socially, says something about people. One of the things that it says is that people will continue to work together, to share things they value with each other, even in the face of personal risk. In effect, my personal benefit ends the moment I have a complete copy of whatever I am downloading – whether that’s a song, a movie, or a program. Any time I continue to stay connected to the network, I increase my personal risk without any direct personal benefit. The system continues to work because of a personal belief that I should “give back” to the community.

Law and society are interconnected systems. Changing one will, over the long term, always have an impact on the other. In situations where changes in society overturn unjust laws, or where good leadership leads to laws that promote a society that is more just – these effects can be extremely good. In other situations, such as where repressive laws have been used in an attempt to stop positive social changes or social resistance has stopped necessary legal reform, things have been less positive. In either case, it’s important to remember this effect when you look at changes in the law, whether those changes are historic or anticipated.

In the case of file sharing networks, the law and society are at odds. The question we have to ask at this point is to what extent we are willing to suppress socially beneficial behavior (sharing) to get a socially desirable benefit (compensation for media companies and, indirectly, artists). This is not a case where any of the absolutes come into play—it’s not about life and death, it’s about money. Money is important, and so are social institutions – but let’s be realistic about what we’re dealing with. Legislation is always a process of deciding to give up some of one thing to get more of something else. It is our responsibility as citizens to ensure that our government makes a good bargain, and to correct it when it fails. I don’t know what the correct balance is, but I know that the current system has failed and it’s time to reassess it starting at the beginning.

Update: She decided not to sue me

Whenever anyone speaks or writes about intellectual property, I suggest you place one hand on your wallet and back away very slowly. The problem with the term intellectual property is twofold: First, it is designed to elicit a comparison to real property and personal property – which is to say actual physical things owned, at least in some cases, by flesh and blood human beings. Second, it is an intellectual shortcut – bunching together a number of dissimilar things (copyrights, trade marks, patents and trade secrets) as if they were actually similar. Both are problematic. For this reason, I’ll restrict myself to copyrights – as they are the true subject of this discussion.

Copyright is a policy tool, not some basic instrument of human right. It was created, originally, to allow the ruling elites of the time some measure of control over the process of publication. In point of fact, it was a tool of censorship. In the United States, that tool was adapted to the (far more socially useful) purpose of providing some incentive for the creators of the time (writers) to do their work. I, for one, do not have a problem with this. It’s clear that this work is difficult, and that authors need some way to receive value in return for their work.

The problem I have with the DMCA and AACS is they stretch the idea of copyright far beyond anything that the founders could have anticipated. Copyright has become effectively perpetual. The scope of derivative works has grown both broader and deeper than at any previous time. In addition, the DMCA has allowed the people behind AACS to effectively eliminate fair use – absent the work of those people developing unlawful tools of circumvention. None of these statements are new. None, at this point, are even controversial.

The DMCA, AACS, CSS, Macrovision, ARCCOS, and every other copy protection system are attempts by content providers to continue their old business models by trying ot make bits not copyable. This, unsurprisingly, will not work. Bruce Schneier wrote, some time ago, that “Digital files cannot be made uncopyable, any more than water can be made not wet.” If your business model requires a mathematical impossibility, wise people start looking for a different business model.

So, why the outrage? The outrage is not because anyone believes that creators should not be rewarded for their work. The outrage is because people feel that they are being taken advantage of. They feel that the RIAA, MPAA and other similar groups have managed to buy themselves extremely favorable legislation – and that, using that legislation, they have proceeded to hurt both their customers and the artists. They see that the cost of producing and distributing information is dropping, but the cost to acquire copies of that information is not.

When people feel angry and powerless, they tend to strike back any way they can. They tend to strike back even if they aren’t really hurting anyone but themselves. In a way, that’s just another paradoxical part of our human heritage – just like our innate human creativity. It’s not particularly juvenile – but rather a result of natural frustration, born of a belief, correct or incorrect, that the system is no longer working.

In the long run, no one wants to destroy the ability of artists to bring us new work. In the long run, the RIAA and MPAA member companies will find a new business model or be relegated to the dustbin of history. In the long run, we will see substantive copyright and patent reform. In the meantime, the important thing to remember is that both groups are basing their actions more on emotions than on facts.

In the case of the RIAA and MPAA, that emotion is fear – the fear of going out of business – of being replaced, of losing power and significance. In the case of the AACS crackers it’s a combination of fear, anger, and frustration. Anger and frustration caused by their belief that they are being ‘taken’. Anger and frustration that the political system does not appear to be working, and fear that the situation will never change.

What you are actually seeing, in the AACS key revolt, is the normal process of political change. It’s messy, ugly, loud and uncouth. It’s also very much a living and flexible system – one that, for the most part, actually works. In a republic, basic reforms only happen when enough people make enough noise that the people we send to Washington are forced to listen. The process is nasty and slow, but it’s the best system we’ve managed to figure out so far.

What this revolt is, fundamentally, is part of the political blowback from the ‘content industry’ pulling a land-grab with so called intellectual property law. They overreached, and now they are on indefensible ground. I don’t know what DMCA will be replaced by – the only thing that I know is that its days are numbered.