net.wars: Freeing the Mouse

by Wendy M Grossman | posted on 04 October 2002

There is a way of committing a crime in America, by carrying out a perfectly legal act in the UK (or Russia) - Wendy suggests we get our voices heard - and soon.

Wendy M Grossman

Another day, another chance to fax your MP, write to the Patent Office, and annoy Patricia Hewitt. Yes, we're coming into the home stretch on the UK implementation of the European Union Copyright Directive. Comments are due in at the Patent Office by October 31 (the last link summarises the key points). Or, you may like to read this handy critique by Julian Midgley of UK Eurorights.

Briefly, the directive goes something like, "Let's all live under the DMCA!" The DMCA is, of course, the 1999 US legislation known as the Digital Millennium Copyright Act, and it's the bit of law under which Russian programmer Dmitri Sklyarov was arrested. The key problem with the DMCA is that it criminalises the act of circumventing copy protection schemes, and it's this most contentious bit of the DMCA that the European Union Copyright Directive seeks to have emulated in national legislation in EU member states in the interests of harmonizing copyright law throughout the EU.

That said, nonetheless it was entertaining last week to mull over Robert X. Cringely's latest Pulpit, Steal this Column, in which he proposes civil disobedience. He also muses, among other things, upon what the value of 10 million illegally downloaded copies of Debbie Does Dallas might be, and this is a question we wish some enterprising mathematician would take on as we feel sure he would receive a just reward.

I kind of like Cringely's idea of protest, in that what he's talking about is a generation of people doing for file-sharing what the 1960s generation did for the Vietnam war: break the law, call attention to that fact, and take the consequences. You have to wonder how many file-traders really will trudge down to the local police station and ask to be arrested to prove a principle. Still, I think if people really want to pursue Cringely's idea, the way to do it, I think, is by burning the files onto physical CDs and making the world's biggest reflective pile outside some major government location. On the steps of the Lincoln Monument, perhaps, or in that nice forecourt just outside Parliament. There's a lot to be said for a heap of rebellion you can see from outer space.

But the fact is that it's a pretty weak argument to say that we oppose the change in the law because we like free music and movies. There are good reasons to oppose the entertainment industry's characterization of all file-sharing as stealing and all unauthorized copying as piracy. But that's not the big problem with either the DMCA or its pale European imitation. The big problem is that the circumvention clauses make it difficult or impossible for legitimate professionals to do their jobs: cryptographers, professional studio engineers, and so on.

In addition, the consultation document as drafted fails to protect the public interest. As Midgely points out, there are no provisions requiring the removal of copy protection mechanisms when the copyright period expires and the protected content would ordinarily come into the public domain. Of course, given the continuing extensions to copyright - which Larry Lessig will be arguing against in the Supreme Court on October 9 in the case of Eldred vs. Ashcroft - it might not anyway, but it would be nice if people at least *pretended* it would. Using technological means to lock away ideas and their expression forever is a direct violation of the principles of fair use and public domain.

Copyright, patents, and other forms of intellectual property protection are intended to give creators a period of exclusive use in which they may exploit their work. But that period was never intended to be permanent, and all intellectual property law was intended to create a balance that rewards creators while also ensuring public access to ideas. As time has gone on, however, the period of copyright, described once in the British Parliament as "a tax on the innocent pleasure of reading" has been repeatedly extended. Increasingly, the beneficiaries of this are corporations, and it's often said that copyright law in the US is extended whenever Mickey Mouse is in danger of falling into the public domain. For an analysis of what this would mean to Disney, see this article that recently appeared in Business Week.

But as the article says, Eldred isn't so much about freeing Mickey Mouse as it about is all the other, less obviously valuable, less well-known material that remains locked away in the vault because its owners see no value in it. In the same way, part of the problem with building copy protection into hardware such as DAT machines and minidisc recorders is that the people who then use them to create content may not want copy protection applied but are given no choice. In the US, one of the reasons given for the last extension of the term (sponsored by Sonny Bono, ferchrissake) was that it was necessary to bring US law into harmony with that of Europe. Now, of course, European laws have to be harmonized with US law and with each other, which I guess is how we have the EUCD and its supporting legislation. Doesn't anyone like counterpoint any more?

Wendy M. Grossman’s Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, follow on Twitter or send email to netwars(at) skeptic.demon.co.uk (but please turn off HTML).