There's been a lot of talk these days about copy protection schemes for
movies, music and other forms of copyrighted material. Centered around
this debate is the question of whether the morality of stealing creative
works changed in recent years as a result of the proclivity of such
material online. Whatever the case, many people actually believe it's OK
to watch a movie without buying it, or to download a song without paying
for it.
In finding a solution to the problem, one approach is to think of the
problem as a psychological one: stop trying so hard to prevent stealing
through ineffective copy protection schemes, and trust people to be
honest.
This is a good start, but it's incomplete because there is still the other
side of the coin that is also keeping the moral compass pointing in the
same (wrong) direction, and this is one that may catch many people off
guard: consumers' works are being stolen by companies.
This is something we all know, but haven't really appreciated because
we're not aware of its scale: consumers are now producing the same
type of works that movie studios, record labels and professional
photographers (and other artists) do, but in far more massive quantities.
And these consumers are placing these works on internet sites like Flickr,
Youtube, MySpace and Facebook, just to name a few. For just photography
alone, millions upon millions of images are uploaded daily to
various photo-sharing sites, each of whom host billions upon billions of
photos already. While you might say that most of these are really bad
snapshots of people's kids playing with a dead frog, a substantial portion
meet the same high quality standards we are used to seeing from
traditional professionals. Already we've seen high-profile cases of
consumers' photos being used by major ad agencies, Microsoft's latest
operating system, news outlets on television and on the web, and on
product packaging around the world.
But, unlike these examples of legitimate uses, there is also a huge amount
of copyright infringements by companies, creating an odd case of
role-reversal. It is the general public's creative works that is being
"stolen" by companies, though we are only now in the infant stages of it.
While most people's attitudes about their own works are usually the
opposite of the larger media companies—that is, they're ecstatic about
people looking at their works—their tune changes if it turns out that a
company used this content in one of their ads or other publications
without compensation, or even just a plain old credit line. Most just
complain about it, and in so doing, reinforces the feeling that "all
content online is and should be free."
Some savvy consumers know go to the next step, which is to file a
copyright infringement claim against these companies. But, here is where
the tables aren't exactly fair. The problem is that users who file
infringement suits have limitations in the damages they can claim unless
they have registered their works with the government's copyright office.
To illustrate, the fines that can be collected for infringements of
registered works range from $750 to $30,000 per infringement. And
there's an added $150,000 if the violation is shown to be willful. Best of
all, legal fees are paid for. These are called statutory damages
and for the most part, such violations are easy to prove: the photo is
either in the ad, or it isn't. Nothing more needs to be shown or
proven—not whether someone is a pro, not whether profits were made or
lost, or anything else. It's just a yes/no assessment of whether the
infringement took place. (There's also the caveat that the use itself is
one that isn't subject to "fair use" provisions.)
By and large, anyone that has a registered work and proof of the
infringement (such as a copy of an ad showing that work), the copyright
holder can start singing, "I have a Golden Ticket" and begin interviewing
copyright lawyers. They, in turn, would be more than happy to take the
case on contingency, because the upside is so high that their percentage
of the award would be more than what they could get in hourly fees. Though
it is still an arduous process, it is virtually risk-free and doesn't
require upfront money.
Alas, here's the reality check for most consumers: they don't register
their works with the copyright office. And for them, there's a very long
road ahead to collecting damages; worse, there's no guarantee of anything.
And since attorney's fees are not awarded, it's not worth even pursuing it
unless the potential claim can at least offset those fees, and no lawyer
will take a copyright infringement claim under these conditions without
doing so on an hourly basis.
Because companies know this, they not only register works with the
copyright office, but pursue infringements as a matter of course. While
consumers have every right to the same protections of their copyrights as
larger companies do, the question is: why don't they exercise these
rights?
And that's what brings me to my proposed solution.
The reason consumers don't know about this stuff is that no one has a
business impetus for educating people about the process, teaching them
about protections, advocating for their best interests, or anything else.
And the reason no one can build a business case is because of the one and
only barrier to entry for such a business: no one but the copyright office
("CO") can accept copyright applications on behalf of copyright holders
(with a few exceptions that don't apply to most consumers). Since the CO
is not in the business of promoting their services or educating the
public, or anything of the sort, we have what we have today: a largely
uninformed public who, because of their ignorance, are powerless to amply
protect their creative works. Sure, people can submit copyright
registrations to the CO themselves, but this is such a tiny minority of
people, that it's largely irrelevant. Because the CO is little more than
an administrative office, the only function they serve is to provide forms
that people fill out and collect a check for $45.
Normally, there would be nothing wrong with this—it's exactly the same
for most government-run agencies, such as the department of motor
vehicles, the social security administration, or the IRS. They don't need
to reach out to the public, because the public already knows about
them—they have to. If you want to drive, you know you have to go
get a license from the DMV. If you want to know about your social security
benefits, you contact that division. And I don't need to say anything
about the IRS—we all know they're there.
But few people know about the copyright office because, well, no one
really ever "needs" to know. And the CO doesn't have any incentive or
mandate to tell you that you need them.
I don't fault the system for this—before the internet, this wasn't much
of a problem. But it does illustrate a clear path to a solution, which
comes in the form of a proposal that I submitted to the copyright office a
few weeks ago, and which (I am told) has been taken under consideration
and is being passed to higher levels now.
My proposal is that the copyright office should institute a program where
private companies can become authorized, credentialed registrars who can
accept copyright submissions on behalf of the copyright office. This very
act would remove the barrier of entry for those wishing to get into the
business of providing these services, which would spawn investment,
services, promotions, and a whole new industry that never before existed.
There are two cases where government offices have done a similar thing,
each with positive results. The Post Office began allowing other companies
to sell postage generating printers, for private companies to accept mail
from consumers (such Mailboxes, Etc., and the UPS Store), and for
companies like endicia.com to allow consumers to print their own postage
stamps (even using their own photos of their kids with a dead frog). One
can even use desktop software that lets you print mailing labels with live
postage.
Another example is the Network Information Center (the NIC). It was once
the sole registrar for internet names, but the growth of the internet made
it impossible for the NIC to manage the process by itself. By allowing
other companies to act as registrars, not only was the pipeline more
efficient and capable of handling the onslaught of new internet domain
registrations, but there is now a huge, thriving industry behind it, which
itself created more awareness of the system. New services and other
features also became available where none had been before, most of which
could never have been predicted before the system opened up. Internet
domain registration is now a robust industry that equally and fairly
represents everyone from the individual to the largest company.
So, back to the copyright office: Despite how easy and inexpensive it is
to register an entire body of work, most people don't know it, and of
those who do, many misunderstand the process. But, if private industry had
financial incentive (and competition), then the word gets out quickly, and
services will instantly pop up everywhere, and the process becomes much
simpler and customized for the general consumer. Services can range from
simple copyright assistance services, to full-fledged content hosting
solutions, to even asset tracking and monitoring. Of course, many of these
services could be offered today by almost all existing companies: Flickr
could offer to register all new works that are uploaded, YouTube could to
the same for videos, MySpace for music and movies, etc. Even poetry and
creative writing sites could offer these services as well. But, without
the ability to actually accept copyright registrations, there's little
incentive to provide the other services.
Note that even if you register your works with the copyright office, it is
impossible to see what is in the registration. Try going to www.copyright.org and looking
up a name. You may get the "fact" that a registration exists, but you
can't see what was deposited. This makes it somewhat risky for those who
aren't sure if what they have might have been registered, and if so, by
whom. Private services could address this need if they could also provide
the copyright registration. (And it would be risky—perhaps to the point
of fraud—for a company to accept a consumer's word that their works have
been registered, just so they can sign up for the so-called services. It
is imperative that such services can only be offered by companies who have
been authorized to accept the copyright deposit, and the services only
apply to those works. True, there may be authorized communication
protocols and channels between authorized registrars, but this is a policy
issue that is to be discussed at another time. The broader point is that
there needs to be trust in the system that the data that is represented is
authentic and genuine.)
Once third-party registrars exist, it would yield great benefits for the
copyright office as well: much of their overhead for processing
registrations can be delegated to certified and authorized companies,
alleviating them of a great deal of manual overhead, such as having to
examine each and every submission. (The CO is about a year behind as it
is.) Instead, they would process applications that have already been
verified and authenticated by the registrars, who would be required to
perform certain checks from submissions. The CO would still be the
ultimate provider of registration certificates, but they would do so
through those external channels. All of this would help the office
streamline and automate internal processes that could allow for millions
of submissions, rather than thousands, making the office more efficient
and cost-effective.
The financial impact on the CO is also a benefit: costs would go down
substantially because they would have less to do themselves. Similarly,
their income would increase from the fees collected from companies acting
as registrars. This efficiency would also allow the cost of copyrighting
works to drop as well. In fact, the cost would be so negligible, that
content hosting companies could fold such services into their existing
business models and bundle in the copyright process without having to
charge for it separately.
Consider a hypothetical scenario where you upload a video to YouTube and,
if you're a premium services subscriber, and you provide and authenticated
verification, you can have your movie registered with the copyright
office. For an extra fee, you could be notified of uses elsewhere on the
net. For another fee still, the company could represent you in filing a
claim. The fees may add up, but this would be offset by the collections
from violators. The free market, competition and consumer demand would
eventually find the sweet spots for pricing.
As more companies get into the business of registering user-generated
content with the copyright office, the general public becomes more aware
of the benefits of copyright registration though existing advertising,
news coverage and other media channels.
So what would the fallout be in the global market for how copyrighted
works are treated? It could help change the mentality of how copyrights
are perceived. If everyone registered their works and were informed,
everyone has teeth, not just the big media companies, record labels
and movie studios. And a budding new industry would help build the very
infrastructure that would give protection for works owned by anyone.
Which brings us back to the consumer that steals. Remember that guy? Well,
he also works at a big company, and his job is to produce brochures,
advertisements and reports. Though he may sit at home and "lift" music or
movies online without a sense of moral apprehension, how might his views
change if he's also the one who's registered his own works with the
copyright office and is on the watch for infringers? Even if we don't
necessarily trust him to turn over a new leaf, there's the simple fact
that a new industry of tracking and policing would force him to be honest,
perhaps through his employer.
It's like how people's driving habits change when you are guaranteed to
have a cop at every stop sign and a radar detector on every highway. The
difference here is that it's not the government doing the policing or the
enforcement, it's individuals and private industry protecting their own
interests. And such an infrastructure is doing it for the benefit of
everyone, not just a single entity, or industry segment.
When the risk of getting sued for infringement is virtually guaranteed,
especially since the cost of legitimately licensing it is almost nil
anyway, the day could come when most copyrights are respected as a matter
of course.
Sure, my proposal is not a panacea—there will always be thievery,
especially when it comes to copying and distributing physical works in the
physical world. But if the online world is safer for copyrighted works, it
would at least keep the new digital frontier safer.
Lastly, there's something I alluded to earlier, and that's the issue of
what actually constitutes an "infringement." Even lawyers dispute whether
a certain use is an infringement, or is protected under the "fair use"
provision of copyright law. It's never going to be easy. One might think
that empowering everyone to enforce protection of their own works will
turn the world into an orgy of lawsuits, but there are stabilizing factors
here as well. Just because a photo has been used in a mash-up (which is
not copyright infringement), or if it's merely copied from one person's
MySpace page to another person's Facebook page, these aren't going to
instantly result in lawsuits. It isn't that simple, and lawyers know this.
Lawsuits involve a huge amount of overhead, not to mention time and
energy; it's not a spontaneous and impulsive act that suddenly gets out of
hand. OF course, there will be a natural increase in such cases right away
just as there are always lots of new tickets when the police finally
come out in force. But once people get used to the new landscape, this
tapers off. We'll likely end up with a case load that's not much different
than what we had back in the 1980s—before the internet came to the
consumer.
In closing, the main objective of this proposal is basically very simple:
the copyright registration process needs to open up to private industry so
that market forces can help people participate in protecting their own
creative works. Once that model is spun into motion, the industry will
take off in a new direction that may have its bumps and potholes, but the
new road will lead everyone to a better place in the end. Labels: analysis,
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