The American people have a unique thing going on. We can do just about whatever we want, just about whenever we want, just about however we want, just about where ever we want. This freedom is the foundation of our capitalist economy. This freedom, in the form of technology, is also destroying the stranglehold a handful of companies have on the entertainment industry. Sounds great right? Yay freedom, boo monopoly. The problem is, the powerful companies did not get their power over night and they are not about to give it up.
Creative businesses like Universal Studios, HBO, and representative groups like the RIAA have used Copyright law to protect their properties and make billions of dollars. Meanwhile consumers have long used technology to circumvent Copyright be it to pirate content or create their own transformative works. Over the years the cost of breaking Copyright has dropped significantly and the quality of the copy has risen at the same time. Generational loss inherent to expensive video tape formats has given way to ephemeral digital files sitting in the internet “cloud,” perfect copies that can be given away without any real cost in time or money.
What this means is we have a contest between a handful of wealthy individuals and the unwashed masses. The media giants have everything to lose, the consumers have everything to gain. In the new frontier of the internet, digital settlers have access to untold riches and freedom in a near lawless land.
It is becoming a competition between Copyright and the American Spirit.
The problem with Copyright Law in the United States is it assumes a truism that no longer exists, that only very few have access to the means of breaking Copyright. American Copyright was established in a time of printing presses, before audio recordings of any sort existed, and when individuals trained their entire lives to earn a trade like printing that required a large sum of money for start-up. Today we not only have audio recorders but also video recorders that fit in a person’s pocket. We have laser printers, capable of printing thousands of pages, that can be bought with a few day’s wages. Even more, anyone can use them. You do not need an apprenticeship in printing to hit the little printer icon on your computer. As Gasser and Ernst point out in “From Shakespear to DJ Danger Mouse: A Quick Look at Copyright and User Creativity in the Digital Age” the Internet has only made things worse for enforcing Copyright. They note the Internet’s decentralized nature as the driving force on radicalizing what it means to be a “producer.” It costs significantly less to email a two-thousand page pdf file than it does to print and bind a book. This allows anyone to be a producer, but also means anyone can be a pitch perfect pirate.
So, to stop the pirates the media juggernauts helped the Digital Millenium Copyright Act make its way through congress and into law. This law makes it illegal to circumvent DRM (digital rights management) software. It is great to be a rich media producer again. But i is a little less great to be a consumer. Arguably, the use of DRM runs counter to the Copyright concept of “free use” which allows a person to make copies of a legally aquired work for their own personal use or use a copyrighted work in a transformative piece. DRM schemes have a tendency to fail fairly quickly, systems like Macrovision, HDCP, HD DVD’s AACS encryption key have all been rendered moot. You can copy Blu-ray movies to make a funny spoof trailer or record HD movies to DVD or tape so they can be played in the car. Both of those actions are legally allowed, so long as you do not break DRM. So we have Copyright law at odds with the American spirit of “screw you, I’ll do what I want.”
Gasser and Ernst have an excelent example of Copyright vs. the American Spirit. DJ Danger Mouse’s “Gray Album” which mixed elements from rapper 50 Cent’s “Black Album” with the Beatles’ “White Album.” Truly transformative, the work was supported by the original artists, it was taken down with a DMCA notice. Today, you can still find digital copies of the “Gray Album.” Digital works are practically immortal online. But the question remains, which side will win? Copyright, or the American Spirit? Will Copyright law change to reflect the changing nature of technology, or will producers live in a legal gray area?