"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U.S. CONST., art. 1, § 8.
The Founders granted Congress the power to create a system to promote the continued development and innovation of American authors. It is important to remember the purpose of this power. Unfortunately, just as the Commerce Clause has mutated under the direction of Congress, so too has the Copyright power. Unfortunately this morphing, fueled by special interests, hurts the consumers.
The damage goes deeper than our wallets. It deprives future generations of seminal works, historical pieces and inspiration from past works. The long-term damage will come not from P2P, but from the legislative butchering of the Copyright system.
Our Past: Unpreserved In Nitrate
Motion pictures created before the 1950s used nitrate-based film. For those who have never seen nitrate, it's amazing. Even pictures that are over fifty years old have a magical effect; the picture jumps off the screen (I am lucky to have seen many of the original silent films thanks to a film class at UCLA and the work of the UCLA Film and Television Archive.) But nitrate's downsides or more plentiful than its benefits. Nitrate film is highly flammable and is susceptible to the elements. The nitrate in the film reacts with air, forms nitric acid, and turns the film into a pile of brown dust. As a result, nearly 90% of the world's first motion pictures are lost forever. (Silent Era lists a number of the films believed to be lost.) On top of the missing films, there are countless newsreels containing the first moving images of our nation's past, either lost or slowly disintegrating.
What does this have to do with copyright?
Under early copyright law, films could not even receive a copyright (until concessions made between 1910-1912). Prior to the changes, the ingenious Mr. Edison and his production company found a loophole: they registered their films as photographs (which could be receive copyright protection) instead. Each movie was transferred to printed paper and registered as a series of photographs. At the time, copyright law also required registration: a copy of the work had to be sent along with the application. (See Film Preservation - Saving America's Movies.) The Library of Congress currently retains some 3,000 printed copies of films made and copyrighted from 1894-1915.
Many of the originals are lost because early filmmakers saw their movies as products. There was little interest in re-releasing a movie after it lost its original glamor. The originals were either stored improperly, lost, or destroyed to make room for newer, better motion pictures. Format changes, the introduction of the sound, color and other technological advances left most people looking to the future instead of preserving the past. In addition it would have been impossible for an individual to archive his favorite films: an average citizen had no means to copy (or even view) a film on his own.
Fast forward to present day. The Betamax has been replaced by the VCR, the VCR by the DVD. And the Internet offers the ability to trade and transfer digital media faster than you can say "recipe!"
While some of us are busy searching for the latest songs on the iTunes Music Store, others are feverishly looking for a bootleg pre-release copy of Flying Daggers. And elsewhere, money is being spent attempting to restore our classics. American Movie Classics (AMC) spends somewhere between $30 thousand to $300 thousand restoring and old film. The Library of Congress attempts to do the same, though with a budget that has been slashed over the past 20 years. Independent investors, historians and movie buffs are throwing in their share, too.
The Sony Bono Copyright Extension Act, however, introduced a serious wrinkle. Suddenly, a number of films set to go into the public domain hit a snag. Silent Era specifically warns would-be restorationists about these changes. "Any film under an active copyright is protected from unauthorized copying and selling (in duplicate film print, home video, or digitized forms, in whole or part), and from unauthorized public exhibition."
As a result, there is even less incentive the invest in the restoration of a film of unknown origin or copyright status. Do so is a bad business decision. Not only might one be subject to criminal or civil penalties, any possibility of public exhibition (or income derived therefrom to pay for the restoration) could be lost. So the waiting game continues while film continues to rot away. The Library of Congress points out that even when it restores a film from the only remaining copy--in its vaults--the copyright owner controls access to the restored films and must get his own copy. So taxpayer money may be used to restore a film that was not properly preserved by its owner, and that very same owner reaps the benefits of our investment. From the Motion Picture Conservation at the Library of Congress (emphasis added):
[T]he federal government . . . has realized that it cannot singlehandedly pay for the preservation of all aspects of the national heritage, which by definition grows with the passing of time. The search for partners in this preservation enterprise has been directed toward businesses, charities and wealthy private individuals. These groups, however, are now besieged by requests for funds, and more and more require an identifiable commercial benefit or need to see a tangible result from their generosity, such as media attention, before allocating resources.
In case the result is not obvious: there is little incentive to try and preserve our past. The retroactive copyright term extensions remove the little incentive that once existed.
Not everything rots as a result of chemical processes, however. The extensions keep a number of works purposely "lost" from public access. Disney, for example, refuses a recent re-release Song of the South (This 1946 classic, including the Oscar Winning "Zip-a-Dee-Doo-Dah" melody we grew up with, was last sold on video in 1986). John Wayne's estate won't allow The High and the Mighty (1954) to be released on video. The list goes on.
Copyright's Current Problem
These changes to the copyright law and the resulting stockpiling of intellectual property do nothing to promote the progress of the useful arts in the United States. Despite the wealth of protection offered by current law, many content creators believe that copyright law does not do enough. Or, at least, current law cannot be enforced to the extent needed for the protection works in the digital realm. In the end the only group that suffers--We, The People--is also the group that remains unrepresented at the copyright conference table.
The Constitution did not intend to grant long term monopoly over IP. Instead, it sought to provide limited protection and encourage continued production. This limited protection has been far exceeded. Instead, the content lobby has effectively gained a lifetime+ monopoly. In the event that works are not properly managed, we lose access to them forever when the originals are lost or destroyed. The Constitution intended that Americans have access to the intellectual creations after a limited period of time. This is how we document our history. This is how we remember the past. This is how we inspire the future.
Enter DRM, Stage Right.
As if lifetime-plus protection was not enough, the content industry is concerned the current copyright law is not being effectively enforced. Their stronghanded efforts to kill Napster served only to open a Pandora's box of unmanageable P2P networks. Hollywood and the RIAA, understandably, want these threats minimized. It can't be done easily. In an effort to wrangle control back to content providers, we are beginning to see the growth of Digital Rights Management (DRM) technologies.
Whether they are embedded in digital music, transmitted as a digital watermark or broadcast flag, or built into new computing technologies, DRM seeks to limit the ability of users to duplicate protected works. A song or movie might die after a single use. Or it could be crippled to prevent duplication. It could limit playback to select devices. Maybe it will save content... but there is a hidden danger in DRM.
We might lose our content forever.
As time goes on and businesses go under, we run the risk that the keys to unlock our current works will be unavailable for future generations. Coupled with the fact that copyright protection no longer requires registration, our new digital works lack one of the things that saved many of the works from the Nitrate-era: well preserved copies locked away in protected vaults in the Library of Congress.
Certainly format changes result in lost (or unusable works). It's tough to find an 8-track, even if you have a tape. The VCR is getting harder to find. However, between generations there was the possibility to convert the work to the next media. Likewise, it is technically possible to build an 8-track player to retrieve content from old tapes.
With DRM, however, this is not the case. Even if a future generation were able to rebuild a MiniDisc player, iPod, etc., the DRM'd files could not be played. (Sure, it can be argued that the DRM may be crackable, but it hasn't happened yet, and there is not reason to doubt that stronger encryption technologies are on the way. Microsoft, for example, is developing secure computing technologies that would lock you, your hardware, software and all content under the control of the All Powerful.)
There is a danger, especially if the original works are lost, that the copies in the wild will be unusable. Instead of bits of brown dust, we will have nothing but unusable bits of 1s and 0s.
As a solution, it is essential that we change copyright law.
It's time to move backward on the copyright timeline. We must attempt to return a system intended by the Founders.
First, require copyright registration. As a part of this process, require that an unencrypted "original" be filed with the copyright office or Library of Congress. If media is released with DRM technologies, require that a master "key" or algorithm be filed in a similar fashion. Guarantee that, once protected works fall into the public domain, they can be unlocked (even if the keyholder now loger exists). Write legislation that will prevent the overthrow of copyright law with click-wrap and contract agreements.
Second, re-limit copyright terms. Disney stole its ideas from past works. Heck, even Shakespeare borrowed a few concepts. It's how we grow as a society. We look at works like It's Pat: The Movie and realize our past mistakes. No law professor can write an article without using the ideas of his predecessors. Judges can't write new law.
It's time to return to the concept of granting limited protection along with re-registration (including increasing re-registration fees). This renewal system will ensure that there is a valid contact should someone desire to license content It would serve as a means to know, for sure, when a work becomes part of the public domain.
Third, enforce the law. Tommy O'Reardon is not alone in the belief that copyright law should be enforced. But we need to make sure that the laws are appropriate and fairly enforced. Ensure that there are no strong-arm tactics used against alleged infringers. Punish those who mass distribute copyrighted items. Encourage payment and licensing of protected works. Protect fair use. Encourage legal, limited sharing of content: we grow as a result.
It is essential to ensure that We, The People, have access our history as the Forefathers initended. They wanted to protect us from the "letters patent" that granted monopoly powers at the hands of a monarch. We need protection from the looming threat of the Content Monarchs and their control over the copyright process.
History belongs to each and every one of us, and we have a right to the use of past works. We must learn to respect the works of the content owners, and they must learn to respect their fans and the American people.
We must ensure that a record of our past is not lost forever, because "[t]hose who cannot remember the past are condemned to repeat it." (George Santayana).