Unfortunate U.S. copyright developments

Copyright laws that extend too far into the future have long annoyed me, although I have written relatively little on the topic. However, as a part of a (much older) discussion of patents, I made several recommendations that are grossly violated by a suggested U.S. law*, close too passing. This included a strong focus on the author** (and the life of the author) of the work in question, limitations if the rights were sold to another party, and that the period that a copyright is valid, by law, cannot be extended.

*I draw more on a German article for my discussion, however.

**I will mostly remain with the generic term “author” below; however, in most of the relevant cases, it amounts to “recording artist”, “song writer”, “lyricist”, “composer”, or similar. I refer strictly to the author in the literal sense and not to the legal fiction implied by formulations like “for purposes of copyright law, the author of this work is XYZ”.

This suggested law could retroactively extend copyright* for some musical works to 144 (!) years, long after most of the original authors can be assumed dead**, and with no regard for transfer of rights.

*The law appears to focus strongly on “digital performance” and/or “transmission”; however, this would already cover, or could be interpreted to cover, a clear majority of all modern and copyright-relevant uses—and the proportion will grow over time. The effective difference between “digital performance” and “copyright” (in general) will likely be correspondingly small. In as far as a difference is present, virtually all of the below discussion remains valid after trivial modifications.

**Cf. calculations below; use common sense; or note that a very significant portion, possibly the majority, are dead even now—with almost fifty years to go.

The ostensible reason for this law could be seen as positive: Musical works created before 1972 have a weaker protection than works created later, based on previous changes to U.S. copyright law.

Practically speaking, this law comes too late to effectively provide the benefits it claims to provide in the majority of the cases; the time limits involved are out of proportion to newer works; and I would be very surprised if the true purpose was not to benefit the music industry, not the authors, in a highly questionable manner:

1. Works created in the span 1923–1972 will, in a blanket manner, be protected until 2067 (!), effectively implying that almost all the original authors will be dead: Even someone as young as 15 when he wrote something in 1972 would have to live to an age of 110*, in order to use up the entire time of protection. Someone who wrote a work at age 15 in 1923 would have to be 110 right now, in order to enjoy even a day’s worth of additional protection. Even our friend from 1972, if still alive, would be 61 at the time of writing—better late than never, but… Of course, the overwhelming majority of authors were not 15 and the numbers look even worse when adjusting for a more realistic age.

   *With some reservations for the exact reference point of each of the involved years.

   If the law was actually geared at protecting the authors’ interests, it should have been shaped very differently—and passed a lot earlier. (Especially seeing that the interest in a given piece of music typically diminishes rapidly over time—the author’s death being one of the very few events that can cause a major new interest… Not only will the typical sales be less counted in items, e.g. CDs, but the price per item will also typically decline.)

2. The years involved are likely based on the already hyperextended and disproportionate 95 years used for newer works: 1923 is 2018 – 95; 2067 is 1972 + 95. Now, using a number based on current rules might have been a reasonable idea, if it had been applied sensibly. A sensible application would have been to let the copyright expire in the year of the creation + 95. In other words, a works from 1972 would indeed be protected until 2067, but a work from 1923 only until 2018, a work from 1950 only until 2045, etc. The actually suggested implementation gives the owners of older works an unwarranted advantage over those of younger works.
3. The law amounts to a change after the fact. I note in particular that there is no guarantee whatsoever that 2067 will remain the upper limit. Further, that counting from 1923 implies that almost all recordings ever made will be under copyright for the foreseeable future, possibly, eventually, forever. (To boot, those recordings that were made before 1923 will be of very poor quality by today’s standards, be it through differences in recording technology or through decay over time—if they have not been lost entirely…) Continuing the age calculations, chances are that both I and half of the readers will already be dead by 2067: I, e.g., would turn 92 in that year.

   All in all, this looks suspiciously like an attempt to ensure that music without a copyright is permanently limited to a minimum.

4. The music industry is possibly the least worthy of protection of all the copyright related: The actual authors of the music are very often detached from the rights to it, and the music industry is infamous for taking unfair advantage of its musicians. Cf. e.g. [1] and the linked-to article by Courtney Love. The implication is that this law, even timing aside, would do comparatively little for the authors and a hell of a lot of for the music industry.

As an aside, I strongly suspect that the point of long copyright terms is not primarily to get royalties on older works—but to diminish the competition for newer and more lucrative ones: A rational consumer will think twice about paying top-dollars for the latest works when there are many, many quality works of old that are available for free or at a nominal cost. For instance, my own purchases of books* have diminished considerably over the years, in favour of Wikisource, Project Gutenberg, and other repositories of free readings. Note that the music industry is extremely driven by new material, new hits, new sounds, …, that rarely have what it takes to be of note even ten years later; and that it is likely the copyright industry with the most to lose from competition from older materials.

*Books, unfortunately, is one of the few areas where a sufficient quantity of copyright-free works exist, with e.g. movies and musical recordings being limited in time for technological reasons. The same principle would apply, however.)

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Follow-up: International Day Against DRM

As a brief follow-up to my recent post on DRM, a few claims* from a (German) article on a piracy study/>:

*I have not investigated the details myself, and I draw only on this source; however, the source has a very strong reputation—then, again, it is still journalists at work.

1. The EU commission ordered a study on content piracy in 2015, and later tried to suppress and misrepresent the study.
2. The found overall negative effects of piracy were small.
3. Movies saw a loss of 27 legal “transactions” (“Transaktionen”) per 100 illegal. This was dominated by block-busters. (I note, looking back at my original post, that block-busters are a prime target of organized and/or professional pirates, who are hindered far less by DRM than e.g. ordinary users wanting to make a backup copy.)
4. Music saw no impact—despite music piracy being the favorite industry target for a long time.
5. Computer games saw a gain of 24 legal transactions: An illegal download increases the chance of a legal purchase.

As for the paradoxical result for computer games, and to a lesser degree music, I would speculate that this is partially a result of an informal trial by prospective consumers: Download a product, check-it out, and then either reject the product or buy it legally. This makes great sense for games, where the total playing time often goes into weeks, sometimes even months; with a movie, many users might see no major point in re-watching even a very good movie, considering the sheer number of new releases, and more than several re-watchings are reserved for the best-of-the-best-of-the-best. Music could be somewhere in between, like the numbers suggest, and there is always the possibility of someone additionally buying other music from the same artist. I also note that in terms of “bang for the buck”, games and music usually fair far better than movies. The authors of the study, according to the above article, mention that computer-game purchases often come with additional perks, e.g. bonus levels.

International Day Against DRM

Apparently, today is the International Day Against DRM. No, I have never heard of it before either; no, I have not been able to find an official* explanation of it. At virtually the same time, the W3C has very controversial signed of on DRM on the Web. The latter is particularly disappointing, because the W3C continues its trend of prioritizing the interests of the industry over the interests of the users and the original ideals of Internet, thereby contributing to its degeneration.

*That is: I have found explanations of it from several sources (and the name is fairly self-explanatory…), but none that makes it clear that it is the originator, organizer, whatnot.

This being so, I would encourage my readers to spend some time on the topic, e.g. reading up on what the EFF has to say.

My own take is simple:

While an industry interest in DRM can to some part be legitimate, the problems for the consumers are disproportionate, often unscionable. Honest consumers see their ability to use fairly purchased products in a fair manner* restricted, while actually paying more than without DRM, because DRM costs**—and often while being exposed to security threats*** or the risk of privacy violations. Indeed, the presence of DRM is likely often what motivated an otherwise exemplary user to look for illegal copies in the first place… In addition, the (German) customer already pays compensation to the industry over other channels, notably blanket amounts added onto the price of various electronic devices and media directly or indirectly usable for copying, which are then payed out to the industry. This makes DRM at least partially**** an attempt to eat ones cake and keep it too.

*What this implies depends on the product and DRM involved, but common problems include the inability to use the product without (an otherwise unneeded) Internet connection, to move the product from an outdated to-be-retired device to a new one or to use the product non-simultaneously on more than one device, to play DVDs on a computer instead of a stand-alone player, to copy-and-paste a brief quote from a PDF file, …

**Typical costs include developing and implementing the DRM system, license cost for DRM (notably with DVDs and its infamous and useless CSS), computer resources needed to e.g. decrypt something, … Even additional hardware costs are not unheard of, cf. e.g. (the misnomer) Trusted Computing.

***Not only does DRM virtually necessitate new code that increases the risk of new bugs and new security holes, but many DRMs actually interfere with the user’s system in a dangerous and unconscionable manner. In at least one case, the methods used were indisputably illegal and caused severe security problems.

****Nominally, this is intended only to cover some legally protected uses, e.g. backups. However, firstly, the size of these additional fees and the great number of occurrences are not in, IMO, in proportion to what they nominally should cover, especially when factoring in that everyone pays them—even when never engaging in these protected uses. Secondly, a common consequence of DRM is that these legally protected uses are infringed upon, e.g. in that a backup is no longer technically possible for the average user—and might suddenly be illegal (and a lot more effort…) for the advanced user, because the mere presence of DRM illogically invalidates this right.

To boot, DRM often misses the point. Specifically, there are three main types of users that are impacted by DRM:

1. The average honest consumers, who are worse off without any benefit or compensation—definitely with no price reduction for the reduction in functionality.
2. The more-or-less professional pirates and deliberate large scale violators of other types. For them DRM is a mere nuisance—they have the knowledge, resources, and a sufficiently good cost–benefit situation that they can just work around* DRM. The actual benefit of DRM through hindering this type is very small and cannot in anyway justify the disadvantages for the average honest users. (Of course, this is the exact opposite of what the pro-DRM rhetoric dishonestly claims.)

   *“How” will depend on the details, but many DRMs are easy to get around with the appropriate knowledge. Many PDF readers, e.g., ignore DRM entirely—switch reader and presto. Many DRM keys have been cracked or leaked and are available to the pros. Tweaked software or hardware can solve much of the rest. In a worst case scenario, the latest Bluray can be played on a screen and re-captured with a camera with only marginal loss of quality—and the result is a superior product, because annoying animated menus, unskippable trailers, and other user-hostile nonsense is removed…

3. Some set of misguided people, mostly very young and/or poor, who just want to share what they have bought with their friends, e.g. through copying a CD or DVD while keeping the original. (While lending the original for two weeks and then getting it back is (still…) perfectly legal and unremarkable. Ditto just watching the DVD together.)

   The market impact of this is comparatively small to begin with, because the friends are not users who would otherwise all line up to buy the product themselves (again, the exact opposite of what pro-DRM parties claim through the calculations they present). No: Most of them will forego the product entirely, seeing that the world is drowning in other content; get the product from a professional pirate (cf. above); enjoy the one copy of the product in a legal manner (e.g. through borrowing, cf. above); or on the outside wait until the price has dropped to a more reasonable level*.

   *CDs/DVDs/… are often released at very high prices and over time drop quite considerably. The 29.99 Euro movie of today might sell for 9.99 in a years time and a fraction of that in ten years time. CDs from the 1970s are often sold five or ten at a time for 5 Euro… Calculations by the media industry seems to invariably assume that the release price is what everyone would have paid.

   For the small minority of them who would buy a given product (and many who would not), what is missing is not necessarily DRM—but often the understanding that what they do is illegal, and much of the same effect could be reached simply through better information about copyright, intellectual property, and the like.

   Again, DRM by no means brings enough legitimate benefits to outweigh the disadvantages for the average honest consumers. The problem is that the industry reaps all the benefits while the consumers bear the cost…

What do Courtney Love and Astrid Lindgren have in common?

On a first look, they seem to be diametrical opposites: The former is a rock/punk musician with a history of drug use and a criminal record; the latter was an idealistic writer of children’s book—and, at least in Sweden, was considered a third grand-mother in many families.

However, during my readings on issues relating to Internet anonymity (cf. my previous entry), I stumbled on a speech by Courtney Love criticising the music industry^e. Written ten years ago, her piece has likely been encountered by some of the readers already; but few non-Swedes will be aware of Astrid Lindgren’s 1976 story Pomperipossa in Monismania^w, which allegorically tells of how she found herself confronted with marginal taxes so high that more-or-less everything she earned went to the Swedish government—while her own after-taxes income was reduced to almost nothing.

This, interestingly, is almost exactly the story Courtney Love tells about a hypothetical group of musicians—except that the bad guys are not the 1970s Swedish Social-Democratic government, but the modern day US music-industry. They even use the same enormous-seeming figure of two millions to reach an eventual net of approximately zero (in 1976 SEK and 2000 USD, respectively).

Some claim that Lindgren’s story was instrumental in removing the Social-Democrats from power for the first time in almost half a century (the pen can be mighty indeed!). Alas, Love’s speech has not had the same impact: The unholy alliance of record industry and politicians, against consumers and artists, still has the upper hand. Even so, there is considerable hope: With the spread of the Internet and alternate channels of distribution, the old system of exploitative middle-men becomes harder and harder to justify, and is accepted to a lesser and lesser degree.

Now that the original question has been answered, I leave it to the reader to answer the next question: What do the US music-industry of today and the Swedish Social-Democrats of 1976 have in common?