With the Internet facilitating near-instantaneous communication, producers and publishers of intellectual property claim distress from the recent increases in information “piracy”. However, what is the cause of such anti-social behavior? Ross Kerber’s attempt to shed light on the fine line between copyright infringement and “fair-use” should warn everyone of the fact that consumer rights are continuously being eroded by publishing companies. Copyright infringement and violations are not caused by a mass of malicious minded individuals, but by the publishers themselves who have distorted the meaning of “Copyright”.
The reason for statutes of Copyright Protection was of honorable intentions, in that a creator of original works will retain exclusive rights to them, and distribute as they please until such time when the material becomes “public domain” (no longer under copyright protection). These protections ensure the integrity of said work and prevent any third parties from modifying it beyond the meaning in which the original creator has imbued. At the same time, the law allows for people to enjoy the work as dictated by the “Fair-Use” clause. However, since its creation the meaning of “Copyright” and “Fair-Use” have corroded to the point where copyright will prohibiting viewers from evading commercials on television, and users will have to “check-in” with publishers even when royalties and dues have already been paid. Granted, the majority of the population takes a very skeptical view on Richard Stallman’s battle cry that “information wants to be free”, but on the other hand the publishing companies, especially the music industry, that complain the loudest when “lost sales” are reported, are in fact pseudo-content creators.
These wolves-in-sheep-skin sign contracts with the real content creators that trade most of the rights allotted to the authors by copyright laws for the use of the publisher’s capital to produce their works. In return, the publisher hopes to recoup the costs of production from the sale of the work, while the original authors only receive a fraction of the profits as royalty fees. While this may seem to be a fair bargain to both parties, it is the authors and the consumers who suffer, and it is the publishers that are laughing all the way to the bank. The first example and the following analysis in Kerber’s article are rife with questions that beg for answers. Dutton’s Children’s Books response to Mr. Carlson’s non-profit display of copyrighted images1 is pretty much a textbook approach adopted by many publishers. The sue-them-first-and-ask-questions-later tactic, in lieu of actually investigating the nature of said “infringement”, has alienated numerous fans and enthusiasts, while slowly changing the scope of copyright. What is Dutton’s policy on non-profit reproductions of their copyrighted materials by fans that is promoting said materials to others? Is there a difference between those who take published materials and sell it without permission and those who take published materials and use it to promote it without permission? This answer to the last question should be “yes” in both utilitarian and deontological point of views. Those who sell the materials benefit themselves but do not benefit the publishers (and consequently the authors as well), and by utilitarianism this would mean one unit of happiness and multiple units of unhappiness. Similarly deontology would already state that the action is intrinsically bad. But those who promote the materials benefit themselves in the short term and benefit the publishers in the long run, which translates to multiple units of happiness as well as being an intrinsically good action. So why is copyright infringement a growing problem today? It is not because of rampant unauthorized distribution of copyrighted materials, but of the increasing greed of publishing companies.
The recent behavior of publishers does cause one to wonder, “How much is enough?” With a small army of lobbyists in Capitol Hill, these media conglomerates have succeeded in persuading lawmakers to ratify changes to copyright statues in the name of protecting the creators. The Digital Millennium Copyright Act is a prime example of such exploitations. But how does extending the length of the copyright period from 28 years from creation of work to 120 years after the author’s death benefit him/her? When the publishers gain most of the rights and profits to the works with the signing of the contract, who is benefiting from such copyright terms that prevents materials from becoming public domain? To answer these questions I will simply call attention to a real life situation that was reported as a small blurb in recent news. During the high profile trial of Napster, the file-sharing program that has become the bane of the music industry, a popular band known as Offspring attempted to release their own works in MP3 format for free to their fans2. However, this altruistic foray was nixed when their publisher, Sony Music, threatened the artists with costly legal actions. In this situation, when artists cannot distribute their own music as they see fit, should we not suspect the publisher’s motives in denying the musicians their right?
Unfortunately, the consumers fare no better than the content creators under the harsh tactics of the publishers. In its latest attempt to thwart software piracy, Microsoft Corporation released its newest operating system, Windows XP, on a very tight leash: users must activate with Microsoft first before allowed to use their purchased OS freely. While this may seem innocuous at first, any attempts to modify the computer hardware beyond their original configuration would result in users having to “check-in” with Microsoft again to obtain permission to use their software. In terms of computer enthusiasts who tinker with their systems on a continual basis, this becomes a logistical nightmare when trying to keep up with the latest and greatest in hardware and software. This brings to question of why are these consumer-unfriendly initiatives necessary? Did we need to contact Maytag when we wanted to put the leftovers into the refrigerator or do our laundry in the washing machine? Do we need Ford’s permission in order to change the tires on our Explorer? Microsoft’s justification in regards to this draconian policy is to stop “lost sales” on their flagship product. Ironically, their copyright protection scheme was defeated soon after Windows XP’s release, and information on how to bypass the “Product Activation” scheme can be easily located with your favorite search engine on the web or file-sharing utility.
Meanwhile, there are plenty of “anti-copyright” materials to be found via search engines and peer-to-peer file-sharing programs. Materials ranging from custom-made utilities to bypass copyright protection to images of software CDs (which allows for a user to write an identical CD from the image and install the software from that CD) have spread far and wide in cyberspace. Obviously, to claim legitimate use, consumers have to purchase at the supplier’s price. Whereas if one does not care for legitimacy he or she only has to spend a fraction of the cost to be able to enjoy the same standard of luxury as others who did pay the full price. For example, assuming the user already has access to a CD copier, one can pay $2 for 4 blank CDs, or $400 for Microsoft Office 2000 Professional (which is on 4 CDs). In my opinion, it is this inequity that has increased consumer awareness of the economic disparity, which is beginning to highlight the question of “what is the meaning of copyright?” What right does the publishers have to charge so much for what has cost them so little to make available to the public? Critics of this line of questioning would state that the fundamental ideals of capitalism have allowed for “charging what the market will bear”, and that since it has succeeded this far, it must be good. While I would like to refute that statement with the suggestion that those same fundamental ideals are flawed to begin with (in both utilitarian and deontological terms), to do so would be beyond the scope of this article.
As with all other ideals throughout mankind’s history, one can assume that the ideals of capitalism have changed somewhat since its inception due to the fallibility of man. By the same premise, the fundamental good of copyrights has been distorted over the past centuries, to the point where it no longer protects the creators, but benefits those who wish to profit from the distribution of these creations. These publishers, which have the most to gain, are beginning to disregard even the artists and creators that allowed for the publisher’s own existence. Because of this gradual shift of focus, we have now arrived at a point where the ideology behind “fair-use” and “public domain” is quietly brushed away by “special interest groups” sponsored by publishers. These entities have persuaded lawmakers to pass statutes that protect original works “in the name of the creator”, and condemning the growing number of enlightened individuals who dare to defy their will. This is why there are so many reports of copyright infringements and violations in the world today. At this rate of deterioration, pretty soon anything we do will be a copyright violation. Even this paper.