Enclosure of the Public Domain

WIPO, the World Intellectual Property Organization, has approved a broadcasting treaty which threatens the public domain. If enacted in national laws, broadcasters could gain exclusive rights to make copies of works in the public domain. In effect, this is a modern-day attempt at enclosure, and makes a mockery of the very concept of a public domain.

Now I am not a lawyer, but it seems to me that if this principle is extended, it could also attack open licensing schemes such as the GPL and Creative Commons licenses. Say the definition of “broadcast” was extended to cover certain types of software distribution (perhaps the normal way to install software in the future will be over the network, and that process is considered a broadcast). In this case, the individual downloading the software would not have a right to copy and distribute it. The GPL stipulates that if you are unable to pass on your rights to others, then you are not permitted to license the software. The upshot of which is that with such a law, GPL software could not be distributed by broadcast, placing it at a disadvantage relative to commercial software.

As it stands, copyright and other “intellectual property” laws have given publishers and distributes tremendous power compared to the authors of those works, never mind the public. This tilts the scale even farther in their favor. If we are unable to fix the laws, open content licenses like the GPL and Creative Commons offer an alternative to keeping work in the hands of creators and their audiences. This WIPO proposal is a grave danger to the continued ability of individuals to participate in the culture and ideas of their societies.


eBook DRM Turns Buying into Borrowing

I like the idea of ebooks. I like it because physical books take space – they’re heavy, they’re hard to move, and they fill the house with shelves. An ebook isn’t much good when you want to read the whole thing (although I read Free Culture that way), and it’s not very useful when you want to curl up in bed. But many of the books I keep around are ones which I have already read. I will probably never read them cover-to-cover again, but I may want to look something up. Ebooks are good for this. They’re an even better solution for rare books impossible or difficult to get any other way.

Role-playing game books are like this. For the games that interest me, the print runs are small – 2000 books might be typical – and the books that are printed disappear from stores quickly. Within a decade, such a book can double in value on eBay. So I was curious when DriveThruRPG.com opened up offering out-of-print game books for sale. Then I read about the DRM1 protections attached and my enthusiasm evaporated. Like Windows XP, these books are activated and tied to a computer. You can activate a book on up to 6 machines, but after that you have to plead your case with Adobe if you want to read a book anywhere else. I wrote the store a letter, hoping that someday the situation will improve:

I want to thank you for the free downloads. A couple of weeks ago I tried your service for the first time in order to take advantage of the free Fading Suns book. I enjoyed it so much I went out and bought the print version.

I probably won’t buy any more books though2. The problem – and I’m sure you’ve heard it before – is DRM. As I see it DRM means that any book I purchase simply won’t last. For a start, I’m likely to misplace the necessary passwords and access files. Worse, I have several computers, and I try to reinstall them once a year to keep Windows running smoothly. In order to maintain access to my own books, I would soon have to call Adobe every time I decide to reinstall.

When it comes down to it, this makes a DRM purchase more like a 2-3 year loan. And I don’t want to borrow these books. I want to buy them.

I wish you luck – I know even if you agreed with me your suppliers probably wouldn’t. But in the long run I think you and they will discover from experiences like mine that DRM-free books are a winner, both on their own terms and as drivers for paper book sales. In the mean time, thanks for the free loan.

If ebooks are to succeed, they must be lasting and useful to those who buy them. Books with DRM are not. As it is, I have only ever downloaded a handful of books, yet on two occasions I bought ones I never would have considered otherwise. Free Culture will be number three. Publishers should take this seriously: if it’s any good, the book itself is just about the best advertising you can get.


1 Digital Rights Management, which is to say sophisticated copy protection.

2 I should have said “I probably won’t actually buy any of your ebooks”.


Copyright and the Golden Age

Canada considers changing its copyright laws to prevent the free distribution of music on the Internet. Some claim that such copying is an attack on the artist; others are the middle men who fear for their incomes in a golden age of art. We have more to fear from draconian laws than from a society that joyfully immerses itself in its culture. If we enforce our copyrights too sternly, we will not only take the joy from music and film and the entertainments which make humanity unique, we will also attack the thoughts, commentary, and debate which are the lifeblood of a democratic society.

Let us start at the beginning. Copying is not inherently wrong, and it is not even legally theft. Copyright was a concept created by English censors centuries ago, and brought into the modern era by a newborn and uncertain America which wished to encourage its citizens to be makers of culture. The founders of the United States believed that copyright, while it provided a limited 14 to 28 year monopoly and violated the free market, would encourage more than it repressed. And it would repress: they understood the risk, as they understood that copyright could not and should not give eternal control to an artist.

Artists are not motivated by control1 – if they were, they would create their work and keep it locked away where no-one could see. Neither are they all motivated by money. Indeed, few can be because few become wealthy; paintings are famous for being worthless until their painter’s death. Artists – and include in their number writers of all sorts – wish to express something, to share it with their community and to influence their fellow people. I think few artists would trade recognition for wealth and consider their art a success, and for that we all benefit. We hope to right the balance so that the artists can afford to bring their gifts to the world.

Their art is based on past works. Much of the greatest art is great precisely because of what it borrows – think of the Simpsons without its references to American pop culture, or Warhol without Marilyn Monroe. All art, from electronic music with samples of old songs or the plays of Shakespeare whole stories were proudly taken from past works and in doing so created expressions in turn copied by the language. None of this copying diminished the value of art; indeed, copying often enhances is: with the right quote or tune an artist links in to the rhythms and associations of an entire culture. If it were even possible for art to stand apart, entirely original, it would be no part of culture. Cut off from the culture which it feeds, art would wither and die.

We who are not artists also depend on their work. We dance to their music, lose ourselves in their writings, and are enraged and enlightened by their commentary on the politics and workings of the society we live in. It enlivens us because we participate – we hum the lyrics and change them, we dance and the player plays. Art is created not only by the artist, but also by the audience. It is no accident that great societies go hand in hand with great artists, from the philosophers and sculptors of Athens to the painters of Florence and Paris. Only inhuman societies (the Nazis, the Soviet Union) have been dead to art. We suppress it at our own risk.

Now we have the Internet, which has brought a gallery of art into our homes. Project Gutenburg publishes great books for all to read, galleries show images of famous paintings, music downloads abound. More: the barriers to entry are erased, the middle man eliminated. Writers upload their manuscripts and increase book sales. Musicians pound away in their studios and share their work for all to see. Surely this can be no threat to art!

But that is how we have cast it. The Internet is now the villain. Fear mongers cry that if we are surrounded by music we must inevitably lose it. We must shut things down, close the window that lets in the music. It is hogwash. The artists have nothing to fear. Musicians who make a bare few percentage points on the sales of their songs have an opportunity to work without the middle man. It is he who is afraid, for it is he who has become redundant. If he cannot find a function in a world with more and varied art than ever before, then he is not needed.

Furthermore, we cannot prevent this copying. Countries with stronger laws have had no more success. If a war on drugs cannot stop our children from using substances which harm them, what hope have we of stopping the ephemeral signals which carry their birthright and the lifeblood of their culture?

This battle over piracy and copyright is not about artists starving for lack of money. Some may believe it, but the Internet will no more destroy them than the VCR or the cassette recorder before it. This simply a battle for money and control by those who neither create nor participate in our culture. Copied music may not be noble, but as Justice von Finckenstein understands when he compares the computers on the Internet to photocopiers in the library2, there is no way to stop only some of the music. The file sharers may not be right, but those who wish to stop them are certainly wrong.


1 Despite the outrageous claim of the Globe & Mail, which claims that perhaps there is a business reason to allow copying on the Internet, but that “It does not speak to the right and wrong of the situation . . . it is vital that creators and performers be given legal recourse if someone uses their work without authorization.” Then we would be in thrall to those who create our art, mute spectators forbidden to participate in our own culture. If this is right and wrong then black is white and newsprint is worth less than it used to be (The Globe & Mail, editorial, 2 April 2004).

2 This is the judge who this past week ruled that placing music on a computer and allowing others to download was like placing a photocopier in a library and hence not illegal in Canada. His ruling has been interpreted as indicating that peer-to-peer Internet music sharing is legal in Canada.

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