Rather than post a comment in a welcome wagon diary to introduce myself, I figured a better way would be to start on a diary series about issues important to me. Specifically, the “Free Culture” movement – what it is, how it came to be, what it’s doing, and why it’s important.

The Free Culture movement is a rebellion of sorts against copyright. It does not necessarily seek to destroy copyright but, rather, to subvert it and use it to encourage sharing rather than discouraging it. This is, of course, an oversimplification, but should be sufficient for the purposes of this diary, which examines the background of the movement – why it exists and why it’s important for progressives, for those tuning in late.

This diary series is going to make a lot of reference to the works and philosophies of Richard Stallman and Lawrence Lessig.

If you haven’t noticed that copyright’s been becoming more restrictive lately, you’ve either not been involved much in content production/distribution/purchasing and technology issues, or you’ve been, like most people, unaware that there were such issues. This diary’s an attempt to get you up to speed before we jump into bigger movements. I’m going to focus on copyright in the United States here – expanding the discussion even as far as Canada makes things far too complicated.

The first thing that will be of interest to you is ARL’s excellent copyright timeline. It covers all the big milestones in the development of modern copyright law. In the early years, copyright was seen as a utilitiarian thing – an incentive for authors to release their works to the public, to enrich the public life with their content in exchange for a limited-time monopoly on reproduction. Any sort of “natural right” of authors to control their works was explicitly denied, both by the law and the courts. Likewise, the notion that copyrights were somehow property was rejected. Fair use doctrine was also established in this period, and began accumulating a set of circumstances under which it was considered acceptable to violate copyright law. Even then, the seeds of the modern content companies could be seen in the “gentlemanly” price-fixing engaged in by large publishers. America’s copyright law lead to a flood of cheap, high-quality books, seriously damaging the business of these “gentlemen”.

Where things really started going bad was 1976, when the default copyright term was retroactively changed to the life of the author plus 50 years. Not only did the length of copyright terms start leaping upwards, but other things were changed as well. Suddenly, copyright was automatically applied to a work upon its creation, not just upon publication – something that has become a serious problem, and has lead to some speculation among legal minds that it may not be possible for authors to waive the rights granted to them by copyright.

Since then, the rate of increase in scope of copyright laws has been growing. In the 1990s, we saw the Sonny Bono Copyright Extension Act, which extended copyright to the life of the author plus 75 years. In the late 90s, the DMCA and the UCITA were introduced. The DMCA, among many other things, prohibits circumventing “copyright protection technologies”, and makes any device that can be used to circumvent such technologies illegal. The UCITA, a state-level law written by large software companies, was even worse, but many states have since rejected it or passed anti-UCITA measures. Last I checked, only a handful of states, including Virginia and Maryland, have passed the UCITA. The UCITA makes End-User License Agreements legally binding, and effectively outlaws Free Software – but more on that next time!

During this period, we also saw a crackdown on file-sharing services like Napster. Judges ruled – repeatedly – that technologies that allowed for or “supported” copyright violation were illegal, and creators of those technologies could be held liable for violations committed using their technology. This doctrine was even extended to linking to sites that might illegally distribute copyrighted material.

These days, you’re better of running over someone with your car or shoplifting a few hundred dollars of merchandise than committing copyright infringement – fines for a handful of violations can run into the hundreds of thousands of dollars.

In recent years, there has been a trend towards more and more comprehensive and draconian “copyright protection” technologies, the so-called “digital rights management” (DRM) schemes. These technologies not only attempt to prevent illegal reproduction, but also legal “fair use” reproduction. The first few, such as Macrovision, DVD region coding and encryption, and far too many CD-based measures to list here, were broken easily. More recent developments are more daunting. These include “secure data paths” from a computer’s hard disk to its speakers and monitor, to prevent someone from “eavesdropping” on the signal at any point and recording audio or video (or textual!) data that way, and a wide variety of DRM schemes built into Intel’s latest line of processors. Through these measures, publishers have finally found a way to achieve a goal they’ve been seeking for two centuries – elimination of fair use rights.

(As an aside, this inclusion of DRM is, sadly, probably one of the biggest factors behind Apple’s switch to Intel hardware. As you will see next time, once again, Richard M. Stallman Was Right – RMSWR)

These DRM schemes will require increasingly draconian legislation. As any security expert will tell you, hardware in the hands of “the enemy” is impossible to secure. So while this hardware may not be able to prevent copying, it will prevent most forms of casual copying, and allow for content companies to push for laws to punish those who attempt to exercise their fair use rights.

And now we need to take a few more steps back, and examine why these content companies might want to do this. After all, as anyone with even a cursory background in the economics of copying will tell you, fair use copying produces a next to negligible effect on their profits, especially when compared to mass commercial piracy.

The answer is both simple and surprising: it’s all about control of culture. Without control of culture, publishing content is a risky business – its success depends both on the quality of the content (and good quality content is expensive to produce! – copy editing alone has incredible costs) and the acceptability of that content to the culture you’re selling it in. Culture has, historically, tended to be unpredictable – a mutable, organic thing that changes based on the whims of thousands or millions of people. Unknown authors and artists whose work “speaks to people” can become smash hits overnight, and even the biggest superstar can be forgotten instead of becoming a “classic”. And while it was once really expensive to reproduce a work, technology was making it easier and easier to reproduce and distribute works (or parts thereof) every day, which made it easier for these smash hits to come from outside “normal” distribution channels.

In fact, the entire purpose of a digital computer is to copy information trivially – computers are, by their very nature, copyright circumvention devices! Thus, proper enforcement of copyright would require returning to the bargain of the founding fathers – limited, reasonable copyright laws that people want to follow.

Predictably, this gave the people whose job it was to try and predict markets fits.

So instead of trying to produce content that would sell to the market, the content companies came up with an ingenious solution. Mold the culture to fit your product. Control the creation, distribution, and consumption of content, to carefully regulate and guide the development of culture. The earliest examples of this are the manufactured pop sensations that first started appearing in the ’70s. (To my knowledge, they could have been as early as the ’60s) Recently, this has become more and more pronounced – telling people what’s popular is big business!

Of course, the upshot of this is that all copying has to be controlled by the content companies. If I can loan – or, even worse, give! – you a copy of some small work I’ve stumbled across, that throws their entire painstakingly crafted model off. Without that, I’m restricted to just telling you about it, which means you have to do work to find and purchase a copy – which slows or eliminates the propagation of undesirable content. Likewise, the production of technology, and the tools that can be used to produce and distribute it – namely, computers – need to be very tightly controlled.

The extension of copyright terms also helps by decreasing or eliminating the rate at which works move from copyright into the public domain. Historically, the public domain has been a great source of inspiration for authors and artists, as it is a pool of material they are free to learn from and “riff” on. Many of Disney’s most profitable movies, for example, have drawn from it. This is damaging to the culture control business on many levels: it encourages the unauthorized development of new works, allows people to employ the products of a company without paying, creates a pool of cheaply-redistributable works, and so on…

Why this culture control business is bad for progressives should be immediately obvious. These content companies are often owned and operated by the right wing, and have a vested interest in moving culture away from progressive ideas. Many of them also own the same news sources we love to hate, and use them as one more tool in their campaign to reshape culture.

Now we understand the source of the increasingly draconian copyright laws and technology regulation – control of culture. Next time (tomorrow or Friday), we’ll look at the roots (in my opinion) of the Free Culture movement: GNU and the Free Software Foundation.

Today’s Related Reading:

The Right to Read, by Richard Stallman.

Can you Trust your Computer? by Richard Stallman

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(Speaking of that, Boo, do you think you could tweak the allowed HTML so people can paste Creative Commons license blocks straight into their diaries? I think you should just need to allow HTML comments and the rel attribute in a tags.)