January 2001

The truth is, I thought it mattered—I thought that music mattered. But does it?

Bollocks! The RIAA had us pissing our nights away.

The funny thing was I hadn’t been thinking about the war at all. I didn’t want to pick a fight. I didn’t want to save the world. I only wanted to grasp the future. The next monster internet application—That was all I was thinking about. I was no different from anyone else during the tech bubble. I just wanted to get filthy rich building something awesome.

But there is was plain as day…

As network speeds tend toward the infinite, the number of necessary copies tends toward one.

Copyright was dead.

The mathematics were undeniable and irreversible. The thread had been cut and the sword of Damocles was coming down. Each time network bandwidth jumped… or CPUs became faster… or hard drives became larger… the sword fell a little farther and a lot faster. We were only waiting for gravity to play itself out.

All my life I’d cringed whenever someone mentioned copyright. It seemed a word always used as a weapon and one invariably aimed in my general direction.

But curiously, more often than not, copyright itself had come to my defense. Diamond Rio, Sony Betamax, Home taping… Hell! All the way back to player pianos, copyright had ridden to the aid of geeks like me.

And now copyright was dead.

Intellectually I was still struggling with the concept, but the emotional realization left me trembling in fear.

—

1999

“No you can’t rent out your own video tapes. You don’t have permission. Haven’t you ever heard of copyright? Don’t you read those FBI warnings?”

I don’t remember how the argument started. In fact I don’t even remember who it was with. Well, who it was with—this time. All I really remember is the same argument coming up over and over again with many different people. That’s not unusual with controversial topics. But with copyright it was literally the SAME argument. It was as if everyone I talked to was reading off the same script.

“But haven’t you been to BlockBuster?” I’d say. “Why do you think they haven’t been sued out of business yet?”

“BlockBuster has a licensing agreement with the movie studios!” I’d here. “Just read about it a few months ago. They pay the studios a percentage of their sales.”

It always continued, “You see, you didn’t actually purchase the movie. You purchased the right to watch the movie. The movie itself is not really yours. You just have permission to keep it in your house. It’s like a lease agreement. They still own the tape. They just let you use it.”

It was a stupid assertion that flew in the face of my entire life history. No one cared. That was their story and they were sticking to it. It seemed to make them feel good. Unfortunately, it never made me feel good. In fact it was the argument most likely to throw me into a lunatic rage.

“That’s idiotic!” I’d say. “Are you telling me I don’t own my records either? I’ve been collecting them since the 70’s. Were they licensing them then too? Wait!… Didn’t I just sell you two of my old Pink Floyd albums? What are you, some kind of music pirate?”

“You didn’t sell me the music. You sold me the right to listen to the music! Don’t you get it! It’s like a music service. That’s why there are disclaimers and warnings on every record.”

“It isn’t like a service at all!” I would rant. “If you break a record they don’t offer you a replacement. No, in that case they claim it was yours. There’s no guaranteed access. But, if you want to make your own back up copy, then suddenly it becomes theirs!”

“And by the way, their aren’t disclaimers or warnings on records,” I’d point out. “Only on movies. And the FBI warning says, “The unauthorized reproduction or distribution of copyrighted works is illegal.” Duh! That’s a tautology. Of course unauthorized activities are illegal!”

“What the FBI fails to mention is that many types of copying and distribution are explicity *authorized* by copyright law. You don’t need to ask permission. Things like recording TV programs using your VCR, then loaning the tape to your friend to watch.”

“Well, maybe you can record TV programs. I’m sure the TV stations must have a license that allows you to do that. But you can’t loan out those tapes. You don’t have permission. They are for home use only, meaning your home only…”

“Why do I bother with you!” I’d blather while they watched calmly. “Why do I insist on educating you about rights you don’t even want! I give up!”

I never won a single argument.

—

January 2001

As network speeds tend toward the infinite, the number of necessary copies tends toward one.

Our ultra-broadband future held one of two possibilities. There could be “zero” uncontrolled copies of any bit of knowledge. Or there would exist “at least one” publicly accessible copy. That was all it took. One remotely displayable copy was enough to satisfy everyone. Given sufficient bandwidth, there was never a need to make local copies.

This was a pretty harsh reality to face if you were in the business of creating and selling copies. Free and legal reading of other people’s legal copies, all made trivial through digital interconnectivity. The publishing industry as we know it was just a few moves away from checkmate.

—

But hell if you can’t win… Adjust the game!

Black: Queen to B6

White: Bishop to F4

Black: Knight to C6

White: Rook whispers to King

Black: Huh?

White: You totally walked into that. Woot! “Knight beheaded, Queen locked up on rumors of infidelity!” You really need to start thinking multi-dimensionally.

Black: Arrg!… Pawn takes… no, wait… Pawn lawsuit!

White: WTF?

Black: “Two white Bishops arrested for forking young black pawns!”

White: Wow, fast learner!

Black: You should have seen that coming…

I’d watched the war’s resurgence for more than a year now. It had been a baffling experience. I couldn’t put my finger on the change but somehow we were all playing a different game. It wasn’t that the rules were different. There never really were any rules. It was a war of persuasion. Every technique was fair game.

Even previous moves held little sway over the position from which the next was played. There was no arbiter at all. The RIAA spent years working a law through congress, then pretended they’d never heard of it. Companies simultaneously proclaimed themselves defenders of same artists who were publicly attacking them. No one ever called reality into question.

But two tapes in the drop, “Clink, thump, clink.” had given their deception away.

They’d moved the goals!

The industry had given up fighting *illegal* copying. They’d begun battling against *ALL* copies! It was brilliantly sinister.

—

Copyright law was designed to provide balance. One set of rights goes to content creators. A second set of rights goes to content consumers. The act of distributing a copy extinguishes some rights of the former and bestows extensive rights on the latter. Lawyers call this the first-sale doctrine.

These copy owner’s rights come as a surprise to most people. At least until they realize that copyright law wasn’t invented *for* publishers. It was invented *against* publishers as a mitigation of their power.

Publishers have always feared individually owned copies as their Achilles heel. They fought to restrict resale of copies—and lost. The fought to control resale prices—and lost. They fought against copy rentals—and lost. Time and time again courts have reaffirmed consumers’ control over their personal copies. Yet with each defeat the publishers saw copyright’s nobel balance as nothing more than lost sales.

—

The internet, by now, had whipped publisher’s latent fears into a frenzy. The balance was shifting towards consumers. Publishers were seeing the end game. There was panic in the ranks. Defensive lawyering had failed them repeatedly. They needed a new offensive.

Never make a copy. Never sell a copy. Never give a copy away.

They’d wage war to control *access*! Simply keep all new originals locked up on your servers. Then individually license, regulate and monitor everyone to whom you allow to see them.

Screw the pain in the ass bits of copyright law! Everyone will submit to contract law! Licenses! Paywalls! Pay-per-view!

Yes!… The past is our new future!

—

“Oh Fuck me!” I thought to myself. EULA’s… Terms of Service… Those were our inventions! Copies licensed—not sold. Non-negotiable consent. Pre-evaluation acceptance of terms.

We’d shown them the game and they’d turned the tables. They had us complaisantly returning our rights and reforging our own chains.

—

I’d been pissing my nights away. But one good tubthumping was all it took to show the RIAA’s maneuvers weren’t directed *against* us geeks at all. No, they were surreptitious street theater scripted *for* the unknowing public. For an industry that manipulates the public’s emotions for their livelihood, what better application for their skills? A public spectacle from which to indoctrinate the industry’s new media vision.

And since they went to all the trouble, why be satisfied with destroying only the future of copyright? Why not destroy its past as well?A series of cleverly crafted historical morality tails would do the trick. Public dramas authored expressly to rewrite both history and morality in the minds of the audience. Why wrestle existing rights from people, when you can persuade them to disbelieve the rights ever existed?

Who, after all, will stand in defense of privileges they don’t believe they deserve?

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