Copyright is broken: how do we fix it?
In 2007, the US academic John Tehranian explored the legal implications of people using the Internet for everyday tasks like reading emails and forwarding items of interest to family, friends and colleagues. He found that an average law professor like himself would typically face liability for copyright infringement to the tune of $12.45 million dollars, plus criminal charges that could potentially put him behind bars. That’s per day, which means the annual liability for copyright infringement would amount to billions of dollars per person if the law were interpreted strictly.
Although the study is out of date, and referred to US laws, the situation in Europe a decade later is largely the same. Thanks to copyright, every day when you go online you break the law, perhaps hundreds of times, by casually sharing text, images and videos, just like everyone does without a moment’s thought.
Even if you are not seriously worried by the threat that you might get sued for millions of Euros, or sent to prison, everyone who cares about the rule of law should be concerned that a vast body of legislation that turns everyone online into an outlaw is being ignored routinely and repeatedly. A law that everyone flouts every day is not just a bad law, it is harmful for the rule of law.
The situation comes about because copyright has its roots in the analogue world of medieval printers. When the first modern copyright law was passed, Great Britain’s 1710 Statute of Anne, creators and publishers were rare. As a result, whether the term of copyright was 14 years—as it was originally—or lasted for the life of the creator plus an additional 70 years, as it later became, was largely irrelevant. Since you were unlikely to own a printing press, there was no way you could produce partial or complete copies of books. The arrival of the photocopier modified this slightly, but a photocopy of a book is not a real substitute for the original, just a poorer derivative.
The rise of the Internet as a mass medium in the 1990s brought dramatic changes. Now anyone with a connection could make perfect copies of any digital artefact available to millions of people anywhere in the world. Suddenly, everyone who was online became a publisher.
But they were publishers with a difference. Where traditional publishers embraced the restrictions of copyright because of the corresponding monopoly power it gave them over their own publications, the Net’s new digital publishers didn’t care about copyright. The exhilarating power of the Internet’s frictionless sharing meant that most people saw copyright as a self-evident irrelevance in the online world.
As a result, publishers and distributors of analogue materials were faced with a double threat. Not only was it easy and nearly costless to make and distribute copies of texts, images, sounds and videos, there were now millions of people—soon to be billions—who simply did not recognise that copyright’s traditional restrictions had any place in the online world, where sharing freely was the whole point.
The copyright industry responded in multiple ways. One, was by lobbying for even harsher laws. In the US, for example, the 1997 No Electronic Theft Act allowed criminal prosecution for copyright infringement even when carried out for no commercial benefit, a move clearly aimed at people sharing materials online but with no intent to “pirate” them for profit. Twenty years later, the UK passed the 2017 Digital Economy Act, which can send someone to prison for 10 years for sharing just a single file online.
The other industry approach was to add copy protection—generally termed “digital rights management“, or DRM—to the material it published. This overlooked a key aspect of the online world: that it only needed copy protection to be broken once for that version to be shared widely.
In the face of this failure, the copyright industry asked politicians to pass yet more laws. Recognising that it was technically impossible to make copy protection that was proof against ingenious circumvention, the EU Copyright Directive and the US Digital Millennium Copyright Act simply made it illegal to break copyright locks in most circumstances, no matter how easy. This turned out to have major unforeseen negative effects.
The problem arises from the fact that software is used in an increasingly wide range of everyday objects. Since software is automatically covered by copyright, if there is any kind of DRM applied to that software code, however ineffectual, it is illegal to circumvent it. That means that you are not allowed to change any protected software in devices you bought, unless you have the manufacturer’s permission—so no tinkering, no fixing problems personally or through third parties you might want to employ. In other words, thanks to copyright, and the over-reach of anti-circumvention laws, your ownership of devices that include copy-protected software is greatly diminished, since you are forbidden from engaging in a wide range of activities that until now have been key features of owning something.
The unexpected irruption of DRM into our everyday lives—made worse by the current rise of the Internet of Things—is a consequence of the fundamental problem with copyright: that it was devised three hundred years ago for a world where copying was hard. Today, the sharing of materials online is ubiquitous and reflexive. It’s time we recognised that fact, and fixed an eighteenth-century approach that is fundamentally incompatible with the 21st-century Internet. How that might be achieved will be explored by CopyBuzz in the coming months.