Caught up in the latest battle in the content wars, I went searching for context.
I read two books last weekend that explain the history from different angles.
* Copyrights and Copywrongs, by Siva Vaidhyanation, is an erudite intellectual history of the concept of copyright, and an eloquent critique of the damage done to culture by draconian content policies.
* Digital Copyright: Protecting Intellectual Property on the Internet, by Jessica Litman is a more prosaic account of the last decade’s legal battles, by a practicing copyright lawyer who was an eyewitness and participant. What Litman’s book lacks in elequence, it makes up in tactical observation and insight.
The history provides helpful perspective on this year’s battles.
* the relationship between the federal Digital Millennium Copyright Act and the state-level bills, nicknamed SDMCA, even though the state bills say nothing about content and copyright.
* the eerie historical parallels, and critical differences, between the events in DC in the 90s, and the state-level events this past year.
* the long-term history and long-term consequences of this year’s events
Why are the state bills nicknamed “SDMCA”
The history explains the relationship between the DMCA, a 1996 addition to Federal copyright law that bans circumvention of copy protection — and the so-called S-DMCA — the state level bills that give movie companies and ISPs vast power over their customers’ use of a network connection.
The right to copy movies, music, and books is governed at the federal level, because copyright is defined in the constitution. But access to content services is regulated at the state level.
In their effort to legislate perfect control over customers’ access to content, the MPAA needs to change legislation at the state level. Hence the SDMCA.
History Repeats Itself
There were eerie similarities between the national fight last decade and this year’s efforts.
- The citizen groups were coming from behind. The movie industry developed a pro-active long-term strategy to combat the threat posed by new technology, by trying to restrict and elimiate customers’ traditional “fair use” rights. Citizen groups heard of the threat late, and scrambled to organize opposition.
In the 90s, the opposition came from national activist groups like EFF, academics, and library groups.
This time around, SlashDot and weblogs by copyfighters like Ed Feltenalerted people of the SDMCA bills coming to their states. Grass roots groups rose up in various states, and a network of grass roots groups came together.
- There is a long tradition in which content and access rights are negotiated among commercial interest groups — book publishers and writers, music publishers and the radio industry, service providers and equipment manufacturers. Consumer and citizen groups didn’t have a secure place at the table.
In 1996, there was a summit among key industry players. The citizen groups were disinvited at the last minute.
In 2003 in Texas, there was a summit called between the MPAA lobbyists, the industry group lobbyists, and the citizen group lobbyists. The citizen groups were disinvited at the last minute.
- There was an unstable alliance between telecom companies (who didn’t want to be caught between content companies trying to prosecute customers), equipment manufacturers (who didn’t want to be liable for their customers’ misdeeds), and citizen groups (who wanted to preserve the traditional rights of customers to use content and technology they’ve purchased).
Here’s where the stories diverged. Just like in the 90s, the telecom companies were “carved out” by an exemption from liability. When the American Electronics Association agreed to a carve-out exempting manufacturers and resellers from liability, it looked like the parallel was complete. Citizen groups would be the sole opposition, and go down to defeat.
This time, though, resellers and manufacturers saw beyond the liability carveout. They recognized that their market opportunity and ability to innovate were threatened by laws that let movie and cable companies micromanage customers’ use of technology — even if the manufactures and resellers were exempt from direct liability for their customers’ misdeeds.
The technology companies kept fighting the bill, and helped raise active opposition among tech-savvy legislators.
Copyright policy has been slowly swinging from a balance between publishers and public rights, toward publisher control, for a century.
The MPAA has been working on this issue for ten years, and has a long-term strategy to erode and abolish fair use and fair access.
It’s critically important for citizen groups to have a seat at the table. The Sierra Club and the National Rifle Association make their voices heard. Technologists and technology users should too. My guess is that we’re swing voters; prove that theory, aggregate our dollars and votes, and watch the power balance change.