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How different must a copy be before it is no longer a copy ?

10pm, 21st November 2006 - Geek, Rant, Interesting, Legal

Some breaches of copyright are obvious, indisputable and illegal. The rest, however, fall into some sort of legal grey area where the infringer may feel that his use is fair, the infringee may feel that the use is not fair and the courts will have a hard time reaching a decision. Unfortunately, while the courts are not influenced by large wads of cash, they are influenced by smooth-tongued lawyers and lawyers are influenced by large wads of cash. Inevitably, companies with large wads of cash tend to look enough like winning the court cases or at least bankrupting the defendant that the defendant settles out of court for a sum that takes him or her up to the point, but not over, of bankruptcy.

So where does one draw the line between what is fair and what isn't ? A lot of press recently has put the focus on what they call a "perfect digital copy" however most of the copyright infringing works found on the internet are not perfect copies. A straight copy of a digital file is a perfect copy but files are nearly always changed in some way to make them more easily distributable.

A DVD is usually decoded from it's original format and re-encoded into DivX, XviD, H.264 or one of many other formats before being posted on the internet. Shorter movies are encoded as WMV, MPG or SWF. CDs are usually found encoded as MP3s. Stock photography will mostly be transformed from large, high quality TIFF or PSD files into much smaller JPEG files.

These files, when compared byte for byte with the originals are not just "not perfect copies", they probably don't even have a single byte in common! In a file that is seven million bytes long, that's significant. So is this still the same work ? Does it not infringe because it is not a perfect digital copy ? Well, no. Even though the bytes are different, if you play the movie or view the image or listen to the music using an appropriate piece of software the experience will be almost indistinguishable from the original work. The lawyers don't seem to have much trouble in convincing the court that this situation is in breach of copyright. One can assume by extension that any software you could write that may encode a file so that it does not resemble the original in any way is still of no use in avoiding copyright laws if the file can be decoded back into something that resembles the original when experienced in the same way as the original.

Fair use rights state that it is permissable to use a small part of the original work. I'm a little fuzzy on the exact details but the general gist of it is that when writing a review of a movie, you are allowed to include a still shot, when writing an article about a band, you are allowed to use the titles of their songs. It would not be fair use to show half the movie or list the entire set of lyrics. For that, you would need permission from the copyright holder. If it is fair use to post a short clip from a movie in your review of that movie, would it be considered a breach if you posted, say, the first five minutes and another blogger posted the second five minutes ? What if another posted the third five minutes ? How many bloggers are there ? Who could be sued if the entire movie was available online in seperate five-minute clips ? What if there was a piece of software available that could aggregate all of these parts and produce an entire movie ? Is this not, in effect, what bit-torrent does ? (In practice, bit-torrent users tend to have more of the file available than what would be considered fair use.) Does this make it all legal ? Does this make it all morally sound ?

Copyright law was designed to allow artists to maintain a time-limited, exclusive right over a work so as to encourage them to make more works of art. The term artist as used here enjoys a very broad definition which includes painters, novelists, musicians, composers, poets, photographers, journalists, bloggers and, of course, movie makers. It was recognised that considerable effort went into dreaming up an idea in the first place and bringing that idea to a point where it is deemed a work of art. This is traditionally the period where a starving artist starves. If a work is successful enough that people want to copy it, then the artist should be rewarded by being granted an exclusive right to sell (or do whatever he wishes with) that work. This is traditionally the period where the starving artist falls completely into his work, so bouyed by the very people loving his work and wanting more of it that he often forgets to eat and hence continues to be a starving artist. This is acceptable however, because the artist has what he needs. He has a roof, a pen and paper, a video camera, a guitar; he can continue making works of art as the copyright law intended him to be able to do.

These days, the actual rights to the work of art are often transferred to a corporation in return for enough money that the starving artist need not starve while creating that all-important first work. The corporations often do much more than just that, such as organising and bringing together all the people that can help create the work, setting up distribution channels, seeding the work to high-profile promotional figures so that it gets the attention it deserves and handling all the sales once the artist is popular. Do they then deserve the exclusive rights and protections that copyright law originally intended for the artist ? Well, yes. They help promote the cultural well-being of this world by supporting artists and the law should help them do this.

Unfortunately, greed then takes over and the corporations start abusing the law to make them even more money and deny that money to the artists. They use their money to pay lobbyists to influence the law-makers to change the laws so that the corporations can make even more money. They use their power to create an artificial culture of hits and misses where it is impossible for an artist to become popular without gaining to support of a corporation first. Support which usually entails signing over ownership of their work and often some number of future works to the corporation.

This begs me to ask the question again: where do we stand morally when choosing to circumvent the law by depriving an amoral, greedy corporation a small amount of money for a work of art they didn't even create ? I sold my soul to make a record, dipshit,
and then you bought one.

Tool: Hooker with a penis.

As the cost of sharing popular works of art has come down, the incidence of piracy (the illegal copying and distributing of copyrighted works) has gone up. The corporations realise that their value in creating distribution channels and seeding works to induce popularity is diminishing and it has got them worried. They aren't worried about losing money to piracy, they are worried that the artists and consumers might realise that they don't need the corporations at all anymore.

Do youself a favour: find a good quality, unsigned artist and buy their work. It can be a painting, a CD or a film. Once the artists realise that they can promote themselves on the internet, distribute their works on the internet, find people with the skills to record and act in their works on the internet, sell their works on the internet and find popularity on the internet, they'll realise they don't need the middle-men at all any more.

Related posts:

Dave's rebuttal of Macrovision's response to Steve Jobs' open letter about DRM in iTunes
iPhone and Security: Spreading the FUD.
Apocalypse tomorrow
Burning water not so hot after all
Much ado about DRM


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