Wednesday, 28 November 2012

Cory Doctorow on copyright, debate in Denmark 2012

Extract of debate, transcription (by Alan Cocks, unauthorised), from Copyright debate in Denmark, 2012. Headings added by Alan Cocks

Fair compensation
We often have these debates about what the purpose of copyright is, what's it there for and there are all these different perspectives we bring to it. Some people say, copyright exists to - enrich the public domain or to serve some cultural policy goal, to incentivise creativity or some other purpose. You know, I'm a creator, a writer, I'm a publisher, and I earn my living from copyright and so for me the part that I want to talk about today and the part that I often attend to is the idea that copyright, whatever else its doing, should be ensuring equitable remuneration to all the different pieces of the value chain. It should be setting a policy framework that ensures that the different people involved in creating works are compensated fairly through the way that those works go.

Now, the problem is, I think that for the last - twenty years - the entire digital era - we've been getting this wrong. So much so, that I've actually structured a kind of - three laws - about how wrong it gets. So its Doctorow's three laws. Originally I only had one law, but my literary agent who is Arthur C Clarke's agent - I told him I'd made up a law. He said "You need three laws!" I've made up two more. So I'll talk about these three laws, and that's how I'll structure the talk.

Doctorow's First Law: Digital Locks
So the first law is about digital locks, or digital rights management technology. This has been a subject of very heated debate in technological circles, and it keeps coming up whenever we think were done with it it keeps coming back.

Digital locks are software that is installed on mobile devices, devices like this tablet, computers, set top boxes or other devices, and these check to see if you are about to do something that the copyright holder has not permitted and tries to interdict you from doing those things. So for example - say you buy a movie or an audio book or a tv show on iTunes, all those movies, audio books and tv shows on iTunes come with Apple's digital lock on them.

Now Apple would prefer that you only used their hardware to play it back. That's the whole idea - right - its that you're buying into the Apple ecosystem. They want to make sure that when you buy things, that you continue to buy their hardware to use it. So, what that means is that - every time you spend money on an Apple product you increase the cost of switching to a competitor's product, because you can't take your media with you when you switch to the competing products.

The prototype for all the digital lock laws and the template that many other places in the world have followed is the US digital lock law the Digital Millenium Copyright Act (DMCA) which came about in 1998 and the DMCA says that digital locks are so protected that its always illegal to remove them even if you are not violating copyright. Even if you are the copyright owner - right - you can't even remove a digital lock from a work that you created and hold the copyright to. Only the company that made the lock can authorise the removal of the lock.

So let's see how that works out in practice? Lets see how that plays out in the creative market place where we're concerned about creators being equitably compensated? So, say you're my audio book publisher, Random House Audio, division of Bertelsmann largest publisher in the world, and you go off and you sell a million dollars worth of audio books through the iTunes store. Which does sell 90 % of the Audio books in the market, through the iTunes store - 90 % of the audio books sold, are sold by Apple, through the iTunes store. And Apple gets 30% of that money.

Now one day Apple might turn around to Random House as various retailers have done in the past and say "We'd like to renegotiate this deal. Instead of giving you a 30/70 split, we'd like to change it to a 50 /50 split. We want 20 % more. Now I think Random House would probably be able to find someone else who'd be their preferred vendor at a 30/70 split or even a better one obviously Google is happy to compete with Apple in the mobile market place front. And that would be a great advantage for them to have - to get Random Houses audio books. But - there is one problem here - which is that the million dollar investment that Random House's customers have made in Random House's audio books means that for Random House to switch to a competitor they have to trust that their customers will abandon their libraries or maintain two separate parallel libraries in order to switch. Because only Apple, not Random House, and not the authors Random House has adapted for audio, only Apple, can authorise Apple's customers to remove the digital lock in order to move their audio books to a competing platform.

Now there's an easy policy answer to this - if you want to make a digital lock law that - respects copyright - that is in fact about ensuring equitable remuneration for all the parties here, you could just say digital locks only have the protection of law to the extent that they stop you from violating copyright. If you remove the digital lock but you don't in any other way violate copyright you're not breaking the law. That seems like a very simple answer and its so simple that its remarkable that none of the governments of the world seem to have hit on it.
The OECD, the Canadian copyright bill that's just been brought in, bill C11 - all the various national implementations, the UK copyright act, and so on, all of these acts have followed the American example of adding a special protection for digital locks. And at each turn what this has done is taken away market power from investors in the creative works and given it to a mere intermediary.

You'd think that, you know, if you've got his triangle of value added to the work, you've got the author - me - I wrote the book, you've got Random House - they invested a lot of money in recording the book, you've got Apple - who assemble the piece of skinny electronics in south east asia and loaded it onto it - that copyright's major protection should accrue to either me or the publisher and certainly not to the intermediary. We can see where this goes - right - we can see where it goes when the government says that if you buy a book from Apple you have to buy the book case and the light bulb and the easy chair from Apple too. 
What it does is it creates this increasing amount of control for the companies that serve as mere intermediaries, over the overall destiny of art. So Apple now totally controls the App Store and you're not allowed to install apps on your iOS device without Apple's permission. You have to break the break the digital lock to install an app on your iOS device. And they want a 30 % cut of any apps that are sold through the App Store and they also want a veto over the apps sold in the app store. So Mark Fiore who is a Pulitzer prize winning political cartoonist made an app of political cartoons which they rejected on the grounds that he ridiculed public figures. Subsequently they rejected an app that was made buy some anti drone activists that gave you an update every time a drone killed someone in Pakistan - a US military drone - and they rejected that for the store too.

Now I was a book seller for a long time and I worked in a book store and I only stocked the books that I liked - and I think that's fair and I don't think Apple should have to stock the titles they don't like, but I never said the Government should arrange things so that its illegal to buy books from anyone's store except mine, once you have installed the book case that can handle my books.

And I think that we can see what a good digital lock policy would do and we can see that we've arrived at the wrong digital lock policy, and that brings me to my first law - 'Doctorows first law', which is that any time someone puts a lock on something that belongs to *you* and won't give you the key, that lock hasn't been put there for your benefit.
If really those locks were there to protect copyright, copyright holders, and not intermediaries, would get the right to control them.

Doctorow's Second Law: Intermediaries, Fame and Fortune
Now the next law relates to intermediaries, this group of people who sit between creators and investors, and audiences. Intermediaries are anyone - companies, services, tools, that sit between creators and audiences - web hosting companies that host your web site, payment processors that handle your money, services like YouTube or Blogger or Twitter or Facebook, where like, creators and audiences connect - services like Google's search or Microsoft Bing - that let members of the audience find creative works. These are all contemporary intermediaries.

Now it used to be that there was a lot smaller pool of intermediaries. There were just things like distributors and retail chains and a few credit card processors, a couple of major printing houses a few theatrical exhibitor chains, just a couple of tv networks.

And at one time or another, every one of those intermediaries was captured by a cartel. You know, at one point in America if you wanted to be an actor in the films, you had to signup to one of the big studios because the big studios had taken over the theatrical exhibitors and the only way that you could be in a movie that would be shown anywhere would be to sign with one of the big studios and the big studios used that advantage to extract incredibly bad terms out of their actors.

This also happened with publishers at various times, with labels at various times, at different times we've seen that when there's a smaller number of intermediaries, they are liable to being captured by the investors the publishers the labels the studios. And that that control over the market place end up resulting in worse terms for the creators. It becomes a buyer's market for the creativity.

Now the internet has made it infinitely cheaper to be an intermediary - the 1990's you may remember that in 1990 there was a lot of loose talk that someday we would have a 500 channel universe. Someday cable tv would deliver as many as 500 channels of entertainment at one time in someone's sitting room. At the time that seemed like an unimaginably vast pool of entertainment. Well, its been put paid by the trillion channel web. I mean, we live now in a world where 500 channels seems remarkably impoverished. And when that world - when you live in a world where you have lots of lots of different channels, lots and lots of different ways where creators' work can reach an audience, it becomes exponentially harder for one of those intermediaries to work with the investors to corner the market and pay the creators worse. And give lower sums and give them worse terms.

But there is one way that that can be reversed there's one way that we can go back to those - to that era before where cartels of investors and distributors controlled the livelihoods of creators and that is by increasing the liability on intermediaries, we make it harder to be an intermediary.

If we make it more expensive to be an intermediary, we'll get fewer intermediaries and the one's that remain will be more liable to capture by the investors. So for example, In the US its a 150,000 dollars per active infringement. For hosting copyrighted material. Now, clearly there's no way that any company could make sure they don't host copy righted material - YouTube getting 72 hours of video every minute.

There aren't enough copyright lawyers remaining between now and the heat death of the universe to make even a small dent in the amount of copyrighted material YouTube gets, so instead, we try to limit that liability through things like notice and take down, where YouTube can host every thing that arrives but they're required to speedily react to notices of copyright infringement. But as you'll hear later, notice and take down is something that's under attack all over the world. It is actually impossible to keep infringement off of the network. Its impossible to stop infringement from arriving because you can't pay the lawyers to do it.

There is no business that would be able to stay afloat if all the material that everyone produced - every tweet, every blog post every video had to be reviewed a priori. The only way to make that work would be to go back to that cable universe, to that 500 channel universe where there's a limited number of channels and every channel works for publishers and distributors to make sure that all the material was vetted before its seen.

Now what would be a disaster for creators because it means that you can't make any money at all in the system until you're signed up with one of the major publishers, that has the deal that can pay the lawyers to make sure that your material doesn't infringe, create the certification, and get you into the channel. Its the world that we lived in before the internet. There's never been a time when smaller better organised more controlled marketplaces for music or books or creativity or news or any other field of creative endeavour resulted in better terms for creators - those smaller markets always resulted in worse terms for creators.

Now, its not that creators will go out on their own and usually or very often do well. Most creators who try to go out on their own do very poorly. And that is a fact of life. There are millions of would be YouTube stars for every actual YouTube star. And even being a YouTube star doesn't mean that you make any money - as many stars can tell you you can't eat "fame". Two million YouTube views and 3 pounds will get you a ride on the tube.

Converting fame into money is very hard alchemy. Most people fail but the ones that do succeed succeed in using one of about a half dozen ways that are the only ways that creative people have ever made money off of their creativity. They sell things, they come up with a product that people want to buy and price it at a price they want to pay. They ask people for donations, they perform their works, they wrap their works in advertisements they licence their works to someone else who has figured out how to make money. They take commissions, those are basically it - right - you look, you break down every creative business model since the beginning and they all look like some variation on that.

And none of that stuff works if you haven't been heard of. Nobody can give you money unless they've heard of your works, unless you can deliver your works to them. Now, right now, European governments are enthusiastic participants in American led efforts to increase intermediary liability. And that will just herd creators into the major publishers' studios' and labels' stables.

Through secretive closed door and unprecedented negotiations like the Anti Counterfeiting Trade Agreement or ACTA, and its progeny the Trans Pacific Partnership, there are stakeholder groups and governments meeting to figure out ways to make intermediary liability more punitive.

Doctorow's Third Law: Information doesn't want to be free, people do
Which brings me to my final law. And its I think the most important one its the one that relates to the slide show we saw before - which is about information. I don't think information wants anything, and I think if it does its interests should be of no particular import to us. Information is a noun not a person and its desires are irrelevant. Information doesn't want to be free, but people *do* want to be free and the policy that we create around information and around creative livelihoods has a direct impact on the freedom of people.

Nobody wants digital locks on their works. No one woke up this morning and said "You know, I want to buy some music but maybe some one out there is selling music that does less than my CDs, maybe I'll go and find those market places". And since nobody *wants* a digital lock, digital locks can only succeed if users can't remove them. If they can force users to do things. A digital lock's job, fundamentally, is to swim up out of the depths of your computer and say "I can't let you do that Dave" and that program will only work so long as there isn't an icon on your desktop labelled "hal9000.exe" if you can drag that program into the trash and the "I can't let you do that Dave" program stops running, the digital lock is neutralised.

So digital locks have to hide their existence from their owners. They have deceptive file names, they're buried in the filesystem, they're integrated with the operating system, by means of deep hooks so that they can't be readily uninstalled, you can't even find out what they are or if there running, they don't show up in the process monitor, they are indistinguishable from spyware. Because they do exactly the same thing as spyware does, they run programs that users don't want.

And its not just that they are like spyware, they create the opportunity *for* spyware. So when Sony BMG shipped 6 million audio CDs with their own drm on them, what those CDs did was they secretly updated your operating system so that there were certain programs and files that would no longer be visible if you listed out all of the programs and files running, or in a directory. And what that meant was that any virus that was hidden using the same means would be not visible to your computer. And after the Sony root kit shipped in 2005, immediately virus writers started writing their own viruses to take advantage of this scheme because once you design a facility into a computer so that it can't know or accurately report on what its doing, other people will take advantage of that facility and make it so that your computer does things that you don't want them to do.

Now that's bad enough today, its bad enough today when its just our laptops and our phones. These are, after all devices that we carry with us all the time that have cameras and microphones that know our secret thoughts that hear our little pep talks that we give to ourselves when we are driving to work that know who our friends are and know everything that we do.

Its bad enough when we start to design them that way, and to give you a sense of how bad it can get, in Lower Merion, Pennsylvania, an affluent school district outside of Philadelphia, they gave the students MacBooks and they put in software that could run without the user knowing it. And the software activated the webcam without lighting up the little green light that told you the app, the webcam, was there, and it was nominally there to stop theft. But the Administration used it to spy on students that they thought of as discipline cases.

And it was discovered when a student was brought in to his principal's office and his principal handed him a photo of the student in his own bedroom the night before and said "What are you doing in this photo, you are taking drugs" and the student said "No I'm eating a candy. And how did you get a photo of me in my bedroom?"

And this principal had taken thousands of photos of this student and thousands of photos of other students awake and asleep dressed and undressed, and so on. This is not an aberration, this is the beginning. That was two years ago.

This year the Federal Trade Commission slapped down a "rent to own" company - several "rent to own" companies and a software vendor in the united states because these "rent to own" companies which lease equipment to poor people who can't afford to buy them outright over long periods during which the total lease price ends up being several times the cost of the device, installed the same kind of software and because its more modern it could also record video and audio and plunder their keystrokes, the files on their hard drive, and so on. The FTC, in the settlement, these companies stipulated that they had recorded, secretly recorded their customers having sex, that they'd recorded their children naked and dressed that they'd intercepted confidential communications with lawyers, and with doctors, and captured their banking log and credentials, and again this gives you a sense of the risk that you're at when your computers are designed to be so you can't know what there doing. But this is just the beginning of the risk. Because we live in a world today that is made out of computers.

Your car is a computer you put your body into, the aeroplane I flew over in, is a flying solaris box in a fancy aluminium case, with a bunch of scada controllers. We put our bodies in computers all day long. Take the computers out of this building and it will be uninhabitable inside of 6 months. Not only that, but we put computers in our body. The hearing aids that I will have when I get older because I'm a member of the Walkman generation won't be bits of analogue ten plastic with a transistor in them, they will be computers that I insert into my body. And when I insert a computer into my body, and when I insert my body into a computer, I want to make sure that both of those things are designed to faithfully report what they are doing, and to let me shut down whatever they are doing that I don't want them to do. And it is never to our advantage as creators, as journalists, as people, who care about the future, to be demanding the computers be re designed so that their users *can't* know what they do.

Now that's on the computer side. On the network side its even worse.

(I'm almost done, I think I've got about 2 minutes (watching the clock)) On the network side its even worse. Viacom is of course the giant American company that is quite worried that YouTube has got a bunch of its copyrighted clips on it. And of course YouTube does have a bunch of copyrighted clips on it. They've applied to the US Supreme Court for satori to hear their case. One of their claims is that YouTube facilitates infringement by allowing people to have "private flag" videos. So YouTube - if you upload a video to YouTube you can either make it public, or you can say "only let my friends and family watch this", I use that. I live in the United Kingdom, as you heard I'm actually now technically a British citizen, although I haven't been issued my accent yet, this is why I sound Canadian, and the way that I send videos of my small daughter in the bathtub home to Canada, is not by email, because as you know, you can't attach a giant video file to an email, I put them on YouTube. I flag them "friends and family only". Now, YouTube knows, or Viacom knows, that that's one of the ways that is used, and they say that even though its used, the loss of that feature, the loss of our ability to conduct our lives in private, is a small price to pay for their being able to look at all the videos that are online to see if any of them infringe their copyrights.

When we create monitoring systems to monitor for copyright infringement - what we do first of all - is we end up intercepting everyone's communications. Because you can't stop someone from visiting unless you're looking at all the links that they enter or click, and throw away the ones that you think they shouldn't be seeing. So on the one hand we surveil 100 % of people's network traffic in order to stop them from infringing, and when that doesn't work we roll out even more draconian procedures like 3 strikes.

So 3 strikes has been rolled out in France, the UK and in New Zealand, and it says, if you're accused of 3 or more acts of copyright infringement, you and every one you live with loose your internet access. In the UK Martha Lane Fox's - Price Waterhouse Cooper study of access to the internet showed that the most vulnerable families in the UK, when they were given access to the internet for even a short time, that everything we used to measure their quality of life, improved. They had better nutrition, better education, more access to post-secondary education, more social mobility, more money. They were better informed, more likely to vote, they were more active in civic politics, and so on. All of those benefits - if you get them from the internet, you loose them when you take away the internet.

And whatever else we think about the rights of creators - and I am a creator - but I'm also a citizen of the wider world - its really important not to loose sight of things. Watching television the wrong way shouldn't be grounds for having your access to the political system, to civic engagement, to nutrition, to education, and so on, taken away from you. Let alone being *accused* of watching television the wrong way.

Now I believe Viacom can certainly make more money if they can eliminate our ability to have private discourse, I think if they enclose our whole public sphere it would be better for their business, if they have more surveillance control and censorship, I think that Viacom's bottom line will improve.

There are a lot of ways to make money in the fields of arts and news and that's one of them, but if your business model starts with censorship if it starts with surveillance, if it starts with criminalising culture you're doing "copyright" wrong.

Information doesn't want to be free, but people do, and people involved in the news media have an especial responsibility to ensure that that freedom is preserved in the information laws.

Thank you.

Transcript (by Alan Cocks, unauthorised) of Cory Doctorow's keynote speech only, from Copyright debate in Denmark, 2012.
[Section transcribed: 2 minutes 30 sec to 26 minutes]

For original information, please see
Event: Copyright debate in Denmark. Posted on November 15, 2012, Denmark's Fagfestival 2012, the largest gathering of journalists in the country. Debate with Cory Doctorow and Peter Schønning, a prominent Danish copyright lawyer, in an event hosted by Henrik Føhns.
MP3 link:

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