Copyright Musings

This week I’ve had copyright law on the brain.  Nancy Sims, librarian and copyright lawyer was interviewed for a piece in the Chronicle of Higher Education on some things folks need to know about copyright law but don’t. But mostly this is on my mind because I was poking around through Andy Woodworth’s blog over on WordPress and found this vehement post against CD ripping at libraries.  This came from a longer debate that was raging on another library listserve that I just didn’t bother to read, because if it ran anything like the comments in the post then I didn’t want to bother.  Lots of people weighed in on different sides of the debate: yes, we should allow people to rip CDs but only their own; no, we shouldn’t allow anyone to rip CDs because they could be infringing copyright.  blah blah blah.

Andy, I’m sorry, but I’m not with you on this one.  And here’s why.

First off, we’re not the copyright police.  We’re often lucky that we have enough staff to open the doors, much less monitor what’s going on at people’s public computers.  No one is going to sit there any monitor patron behavior to find out if they’re illegally ripping CDs.  It’s just not going to happen.  If you actually have the time to monitor all of the activities in a computer lab you are doing your job wrong.  There are people who are the copyright police and those are the folks who hold those copyrights.  If they want to visit every public library in the United States I dare them to do so.  When our public computers log out after each session, whatever content may have been put on that machine is erased.  There is no transaction history logged.  It’s as if no one was ever there.  Which makes this issue unenforceable and untraceable.

Secondly, we offer legitimate services that for all intents and purposes approximate the same practice.  With certain downloadable media, there is no real way to monitor the DRM status of materials downloaded to an external device, be it desktop, laptop, MP3 player or iPod.  They just trust that you will delete that content from your drive when the time period has expired.  Let’s be real about this.  Who is really going to do that?  When someone discovers that their content hasn’t been wiped off their machine, they’re just going to keep it, cause really, why not?  Now you tell me, what is the difference between allowing the person who downloads an MP3 via a legitimate file sharing service that we operate, and the person who rips a Library CD?  The only difference is the legal arrangement for these different formats, and the fact that they differ at all is totally stupid.

But lets get to the more important question here.  Because this isn’t about the legality of ripping CDs at all.  This is about the state of current copyright law and rights enforcement in an era where supply has basically become infinite and demand can always be met at a moment’s notice.

This whole situation really blew things out of the water with Napster. Does anyone remember Napster?  Oh, wait, it still exists…  Just as a recap, this was one of the file sharing services that exploded in 1999, and became so amazingly popular (especially on college campuses) that the RIAA sued them for massive amounts of copyright infringement, and won, leading to the eventual shutdown and sale of the service (or really it’s name) to BMG, and then having it shuffled off to one lower level retailer after another.  Did that stop file sharing?  No.  After Napster there was Grokster, Kazaa, Limewire, etc. etc. etc. It’s just never really going to stop.

In eBook land let’s talk about the Harper Collins fiasco that came out earlier this year.  Harper Collins basically said that they would only provide an eBook DRM license allowing public libraries to share an eBook 26 times before they would kill that eBook.  This led to some hilarious YouTube videos where librarians examined the number of times physical copies of books were checked out (upwards of 40 checkouts and still in good condition on a shelf) and that some Harper Collins books even had lifetime guarantees on them.  It was a laughable moment.  Why?  Why would you treat an eBook worse than you would a physical book?  It makes no sense.  Especially since the DRM on those items from our vendor restrict the number of times it can be “checked out” for download at any given time.

Then there are television shows and movies.  I’m just going to link to this cartoon to explain my opinion on that. Oh, but let me include this video from the IT Crowd as well.  But let me just make one comment here about air time and web time.  The internet makes the original air date, the date of air for the entire world.  Over the latest memorial day weekend BBC America did not air the new episode of Doctor Who, which means that they are now out of lock stop with BBC1, where Doctor Who airs in Britain.  Yes, Memorial Day is a big holiday in the U.S., but given that people have DVRs and that Doctor Who fans in the U.S. are absolutely rabid about this show does anyone think it would make a difference?  No.  Because the lead up to this last Saturday’s mid-season finale was so intense that I will guarantee you that damn near everyone who watches Doctor Who in America went and downloaded that content from somewhere.  Will they watch it again on BBC America.  Absolutely.  But they’re going to watch it as fast as they can, because they can’t get it fast enough.

The RIAA & MPAA have been trying to pull downloadable content off the web, and sue people for millions of dollars for years.  And they’ve gotten away with it so far.  But the reality is that file sharing sites crop up all the time. And no matter how many times people pull them down, they will continue to come up again and again.  There are so many places to go that it’s impossible to even begin to try to fight it unless you have the money of these lobbyists or the backing of a federal agency.

But again, we’re asking the wrong question.  It’s not, how can I crack down on things that are violating my copyright, but  how can I profit in an era where everything is available practically all the time?  How do I change my business model to take advantage of this new behavior that is on the web?

Let’s start with CDs, since that’s where this conversation began.  Just ignore ripping CDs.  People share CDs and rip them all the time.  There is nothing that’s ever going to stop that.  We fought that battle when it came to audio cassette tapes.  Thankfully the music industry has finally gotten to the point where they can provide content online through things like iTunes or Amazon MP3 so that people can legitimately download their content for a reasonable price.  But people are still downloading music and sharing music over file sharing websites.  But then there are some bands who just give their content away for free through sites like Magnatune and Jamendo.  Before that bands were putting their tracks on MySpace and DMusic.  It’s a way to get your name out there, to spread your content and promote yourself.  Even megastars are exploring new methods of content delivery like Amanda Palmer and Radiohead giving people the option to download their music through their website at a price that they name (including nothing), and Lady Gaga releasing her new album on Amazon MP3 for $.99 and demand being so crazy that it crashed Amazon’s servers DDOS style. These are forward thinking bands.  They understand the internet and are experimenting with different sales and delivery methods, and it’s working.

Over in eBook land we have similar things going on.  Cory Doctorow has been releasing his books for free in eBook format for a long time, but he has had to negotiate and wrangle with his publishers to make that happen.  And sales of physical printed copies, as well as sales of eBooks are still good.  Seth Godin in an interview at BoingBoing discussed his new eBook venture, where they will be giving away free copies of eBooks via his publishing imprint, and selling physical copies.  And this is not just a route for famous people either.  Amanda Hocking has become the poster child for new media success, by making millions selling her books for $.99 on Kindle.

Movies and television are slowly getting there through sites like Netflix and Hulu.  Through Netflix people were able to watch the series Spartacus: Blood and Sand and its companion piece Spartacus: Gods of the Arena on the same air date.  Hulu gives you the content the day following broadcast, with commercials at certain intervals with a limited number of back episodes.  Though the Hulu Plus the low monthly fee service gives you access to a much broader backlog of shows.  These are not perfect by any means, but they are still legitimate methods of content delivery that are changing the way we deal with television and films on the internet.

We are at a point where we need to rethink the value of existing copyright laws, experiment with these new delivery methods, and find a place where artists and authors can prosper through the new media.  We are wasting our time with enforcing a system that was developed centuries ago to protect the value of a supply line.  The supply line no longer exists.  The value is on the value of the content, not the physical or virtual product.  People will pay for content that is delivered in a timely fashion at a price that makes sense to them, and when it exceeds realistic expectations they will turn to pirated media.  This is not a devaluing of an artist’s work, it is a recalibration of the market to meet a new publishing medium.  Publishers, broadcasters and other content providers need to find a way to make their content available to people legitimately or face media piracy.  If they cannot step up and deliver their content to eager users, others will do so for them and then they lose.

As a librarian am I going to show someone how to download something from a bit-torrent client?  Even if bit torrent sites weren’t blocked by our firewall, I probably wouldn’t.  I would, however, have a conversation with them about legitimate download sites, like Overdrive, and how they work.  Am I going to show someone how to rip a CD?  Absolutely, because that is a skill that is a part of every day life now.  There is no reason why I cannot instruct someone on how to convert their content to a new medium for their own personal enjoyment and turn around to load that on their phone, mp3 player, or iPod.  It is a technical skill, agnostic of the legality of the content being used for the process. It’s like teaching someone how to build a website, fill out a web based job application, create a blog, establish an email address or get on Facebook.  It’s yet another skill that we need to have in order to live in our society.  By not teaching someone who comes to the library about it we create a knowledge divide between people who have home computers and those who don’t.  People want to get media, we want to provide media.  We need to figure out how to make it happen and not how to create another digital divide.


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