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Secrets of the copyright trade

by j

Copyright. The right to decide who gets to have a copy of stuff you made. In a society that respects private property, it's an absolute necessity. You can't do without it. Sadly, there are several myths surrounding copyright. Allow me to explain them.

"Copyright doesn't involve me, since I'm not an artist."

A lot of people think this. Yet we're confronted with copyright every time we buy a book, a CD, or a DVD. Those are the obvious cases though. Less obvious is the copyrights you have to pay for when you perform a play, or play some music in a public room you own, like a dentist playing some top-40 tunes in his waiting room. Even fewer people realise that when they're in an elevator, and they hear some faint music in the background, someone had to pay copyrights for that. So even if you're not an artist, copyright has major implications in your life. You come into contact with it every single day, and pay for it more often than you think.

"Copyright is what goes back to the artist for making some music"

In a perfect world, that would be so, but in reality most artists see very little of the money you pay for a CD. That 16 USD CD you bought yesterday? Well, less than a buck goes back to the artist. And that's a best case scenario. Depending on how good a deal the artist managed to get -- which is linked to fame, and naivety -- it can be as little as a few cents per CD. The music industry is big business, and most of what you pay goes straight to the stockholders of the big media consortiums. In fact, a lot of CD's could be half the price they are, and still be profitable, with the artist earning MORE than what he gets now. You can thank the Big Five for that. You don't know the Big Five? Let me tell you about them.

The Big Five are the 5 companies that own almost all the media companies in the world that are of any importance. In the past 20 years there's been an avalanche of mergers between media companies to try to keep ahead of the competition. The consequence is that everything you see on TV, or in the movie theatre, everything you hear on the radio, or that you rent in a video store, is produced and owned by just 5 companies. They are Viacom (MTV, CBS, Paramount, ...), News Corp (FOX, The Times, lots of book publishers, even the L.A. Dodgers, ...), Vivendi Universal (Universal, MCA, Polygram, Motown, Decca, ...), AOL Time Warner (AOL, Time, Warner, CNN, HBO, Comedy Central, People, and loads more) and Walt Disney (Disney, ABC, Buena Vista, ESPN, ...). Outside of the US there is also Bertelsmann, which owns a lot of European media companies, but is not of any importance to the home market of the Big Five, the USA. If you want to see what these companies exactly own, check out this page. Together these 5 companies have almost an absolute control over all media (including the news outlets!), and if you don't play their game, you don't get to be famous. Since they produce most music and movies out there, they can dictate CD and DVD prices, which is why you're getting ripped off any time you buy a cool song or a nice movie.

And suppose someone famous manages to become an independant artist and still be successful, even though they won't get airtime anymore on the well-known radio stations or playtime on MTV. Then they'll still earn less than they should, because all the copyrights that people have to pay that aren't directly linked to the purchase of the CD have to be payed to international copyright organisations, which then redistribute everything to the copyright holders. Now, they don't know who got played where, since most copyright taxes they levy are for bars playing some radio music somewhere, or for radio stations playing songs (yes, copyrights get charged to both sides) they don't have an objective way of knowing exactly how much a specific song gets played. So, that's why they use a fixed distribution key, to split up all the earnings between the different parties involved. The thing about the key though is that it is designed in such a way that the Big Five relatively get more money than independant artists. Again, the system is skewed so most money goes directly to the shareholders.

"Copyright covers the artwork for a limited time, and after that it goes to the public."

Theoretically, this is still so. But in practice it doesn't work that way anymore. I'll explain why.

First of all, copyright law changes all the time, and always to the detriment of the average citizen. Most of the time it's to increase the length of time it covers. In some cases copyright lasts until over a century after the death of the original artist by now. Which means that for over a century after the artist's death, you have to abide by the wishes of whoever inherited the copyrights if you want to do something with the artwork. In fact, copyright law gets changed faster than it expires. Disney lobbied heavily to get copyrights extended so Mickey Mouse didn't revert to the public domain. Good old Mickey still earns them a lot of money, and they didn't want to lose the cash cow, err, mouse. So they threw some money against it and bought themselves some laws. Now Mickey won't become public domain in the next 30 years, and most likely whenever the expiration date on the copyright comes close they'll just buy another law to get it extended again.

Secondly, copyright covers more than the original artwork. It covers all the performances and translations of it. An example of this are the works of Bach. Even though the original musical scores have reverted to the public domain by now, all the performances that have a decent audio quality are still covered by copyright, so unless you're willing to play his music yourself, you can't get away from under the rule of copyrights. Another interesting example are theatre plays. You not only have to pay for the copyrights on the play itself, but also for those on the translation. You pay copyrights twice, for a single play.

Thirdly, it's no use being allowed to copy something, if you don't have a copyable version of it. This is a problem that centers around the most interesting consequence of the digital revolution, a relatively unknown law called the Digital Millenium Copyright Act, or DMCA for short.

The DMCA introduced a new aspect to copyright, apart from extending the duration of it. It has made it illegal in the US to circumvent the encryption on something to which copyright applies (which is just about anything). The most obvious explanation of what this means in real life terms is what happened with DVD's. DVD's, as you probably don't know, are encrypted using a mechanism called CSS. Whenever you want to make a player for DVD's, whether it be software or hardware, you have to get the keys to unlock the encryption. And the only way to get the keys is to get a license from the DVD consortium, which not only costs a lot of money, but also forces you to play by their rules. Their rules means that your player has to be broken on purpose in several ways.

Firstly, it has to respect the zones on a DVD. The DVD consortium cut the world up in 5 regions or zones, and you can't play a DVD bought in one zone on a player bought in another zone. This is how the Big Five destroyed the parallel import channel. People would buy movies in Japan and sell them in the US before they were available there, for example. This has now been made impossible. Why? Because the Big Five don't make as much profit on parallel import movies. They don't want a large part of the profit. They want all the profit. There is another, even more irritating, way in which DVD players are broken though.

You can't skip past commercials. On some DVD's you can, but the DVD producer (the Big Five) can mark parts on your DVD in such a way that you can't fast-forward past them. This takes away one of the more powerful reasons to go with digital mediums, being able to instantly skip to anywhere in the movie. This actually takes away something you could do with VHS tapes. So, in a way, DVD's are less functional than what they are meant to replace.

Now, that's all interesting, but you're probably wondering what this has to do with the DMCA. Well, to play a DVD you need to get past the CSS encryption system on DVD's, and there are only two ways to do that. Get a license from the DVD consortium, and receive the decryption keys in addition to a leash around your neck, or circumvent the encryption. This last thing is what is made illegal by the DMCA, meaning that the only way to make a player, is to follow the rules of the Big Five, as dictated by law. When you complain about this to the Big Five, they'll claim that they need the DMCA to make sure nobody can illegally copy movies. Ofcourse, this would be a valid defense, if it were true. The cool thing about digital stuff, however, is that it's always a string of 1's and 0's. Meaning that if you copy the entire DVD, not just the contents, you get a perfectly valid copy too, without having to decrypt the DVD. No, the true reason for the DMCA, as bought by the Big Five, is a lot more devious. Control. Absolute control over who is allowed to play DVD's, and how they have to play them. And total control over the pricing. DVD's are a lot more expensive than videotapes, even though they cost less to manufacture. Just think about it.

That the only legal way to access a DVD is through a licensed player has another interesting implication. Even when the copyrights revert to the public, you'll still not be able to make a copy of what now is considered public domain, since there will still be the access control. This means that the Big Five can keep charging people for access to the same works forever, directly opposite to the intention of copyright law. When this argument was brought against the DMCA, it's backers claimed that works would be released to the public in a copyable form when they reverted to the public domain. That's a nice promise, but there is nothing binding about it. Copyright holders are not bound by law to do this, and even if they were, their heirs could just go "not my promise" when eventually, in a hundred years, their works become public domain.

Another claim the backers of the DMCA made was that you could always use VHS tapes of movies instead of DVD's when you wanted to have the access you're allowed to by law, but the problem there is that VHS is dying. The companies that own the copyrights on the movies are the same companies that make the VHS players, and obviously the same companies that make the VHS versions of those movies. It is in their best financial interest to move people over to DVD as soon as possible, and so they will. In ten years time you will not be able to buy a new VHS player, and you will certainly not be able to buy a new VHS movie.

Currently, it's just the movies that are threatened by this process, but when you look at the developments on the horizon, it gets gloomy pretty quick. Music is planned to be migrated to DVD's. Books will become electronic. In a century free access to media, any media, might be an addendum in the copyrighted history of the planet earth, available now for rent at the low, low, price of howevermuch they will charge you for it. And the question does need to be asked: what will happen to libraries? The answer is simple, either they will become corporate slaves, or they will die. Just like the rest of us.

And if you thought that was bad, it gets even worse. Recently a number of new, rather horrible, trials have been popping up. All involving the DMCA in some way or another. They all center around someone who proved the encryption in a product sucked by breaking it, after which the company that owned the product replied not by making their product more decent, but by silencing their critic, via the DMCA. Companies don't stick to the US only with this either, they go after anyone on the globe doing things they don't like, as proved in the case of the Russian programmer Dmitri Sklyarov, who was sued by Adobe for writing a program that decrypted their PDF format without knowing the decryption key. Even though he wrote this program in Russia, and therefore shouldn't be covered by the DMCA. This has produced an international chilling effect, where research into data encryption (and therefore the circumvention of it) has seriously diminished, because the researchers have to come to the US for their livelihood, and they fear getting arrested. At least one document exposing a serious flaw in a known encryption protocol was not released because the researcher fears the US response. On another level, lobbyers are working hard to getting DMCA-style laws enacted in the entire world. They've already succeeded in Europe, where in 16 months the European Copyright Directive will be enacted in all the member states of the European Union. This is a law even more restricting than the DMCA. So soon, wherever you will go in the "free" world, you'll have to comply with the DMCA, essentially putting digital chains on most of what is written, said or done, reverting the planet to a digital version of the middle ages, where freedom of speech can be found nowhere.

Now, I don't believe people will accept this. Maybe they will for some decades, but eventually most likely a parallel circuit to the shove-it-down-your-throat variety of media selling will occur. But it's going to get worse before it gets better. Laws are being proposed as we speak to introduce copyright protection into every piece of computer hardware sold, essentially outlawing linux and the Free Software movement (because the user could disable this hardware protection if he has the source code to the operating system), and putting a nice big leash around every PC user's neck.

And the only reason they can do all this is because nobody knows. I know. And now you know. But the population in general doesn't know about this, and they are oblivious to the fact that each day they lose a little freedom. So tell them. Whenever you get the chance to explain what I told you to someone, do so. If enough people get angry about what they're doing to us, maybe, just maybe, things will be influenced for the better.


Written by: j
19 April 2002

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