Fair Use in Real Life

To say that there is a lot of discussion and debate about Fair Use in recent years would be a ridiculous understatement, yet I don't want to resort to the kind of hyperbole required to accurately describe the situation. No matter how you describe it, though, the debate usually boils down to two sides: "You can't interfere with my Fair Use rights!" and "You don't mean Fair Use, you mean PIRACY."

And for most of the 90s and some of the 2000s, the second assertion might have been fairly reasonable, as the vast majority of "DVD copying" or CD ripping had as its only purpose the sharing of the result via internet or sneakernet. Still, some idealists defended Fair Use - the right of the consumer to use purchased goods in a reasonable fashion - such as backing up or changing format - despite the fact that most of the "Establishment" dismissed them as piracy apologists. Some people intent on willful copyright infringement defended their actions thus, as well.

No one suspected that the "IP Industries" would some day insist that copying your DVD to videotape so you could play it in your daughter's TV-with-built-in-VCR would be a violation of the DMCA. Or that the RIAA would state that ripping a CD that you purchased legally so you could play it on your media player would be copyright infringement. Or that the consumer would be reduced to requesting an exemption from a ridiculously draconian and poorly-considered corporate instrument (the DMCA) so that consumers could legally encode a DVD for playback on their iPod or other portable media player - and being REFUSED the right to do so legally. We're not talking about asking for the right to rip your sister's DVD of "Gone With The Wind" for the long plane trip back to Frisco; we're talking encoding your own copy of The X Files Season Five onto your iPod so you can watch Mulder and Scully whilst pounding away on the Bicycle to Nowhere at the Gym. If you do this, you're in violation of the DMCA, and you can be arrested and fined. You are now a criminal.

Roll back the clocks 30 years or more - before the propaganda convinced America that "copyright infringement is theft" - and people would be astonished at this turn of events. Shocked that it would be illegal for them to copy their LPs to tape so they could play it in their cars. Because the propaganda had not yet had opportunity to take root and infect us with its insidious, disingenuous, deceptive nature.

You see, once upon a time, copyright infringement was, well, copyright infringement. If you copied your Kansas album and gave the copy to your cousin who couldn't afford to buy it, nobody gave a shit. Even the record labels didn't care all that much, as they didn't really lose any money; your cousin wouldn't have bought the album anyway. He'd have taped it off of the radio on one of those midnight album shows. If you copied your Kansas Album fifty times and started handing out copies on Broadway, you'd get a Cease and Desist order. If you copied it five hundred times and sold it out of the back of your Camaro - well, if you got caught, you could be stuck paying three to five times retail for every copy you sold in fines, plus court costs. And if you made five thousand copies and sold them as "The Real Thing", you would go to jail for fraud.

Then the digital age came along, followed by the age of lossy compression, and the cost of distribution dropped to, essentially, zero. The problem is that the media companies use "Cost of Distribution" as a major player in bilking the "talent" out of money that most reasonable people would have otherwise argued should be paid to the "talent". By the time a performer's work made it to the record store, most didn't make any money at all because of the multitude of costs piled onto the contract. The performers, if they were lucky, made money touring. It wasn't (and probably still isn't) uncommon for an act to make a fairly successful CD, a fairly successful tour, and finish without a dime in their pocket - in some cases, in the hole - while the record company actually made money along the way. So the low cost of production and distribution threaten the established business model - and make it easier for the average guy to "share" music.

So, like all once-incredibly-lucrative-but-now-failing-business-models, the industries turned to the Law. They decided to legislate themselves into continued - and, they hope, permanent - relevance by convincing the government to pass ridiculously draconian laws that can be used to keep the 'sharing' down to a dull roar. Rather like, say, buggy whip manufacturers lobbying Washington to require every new Ford to ship with a buggy whip in the trunk. Rather than revamp their business model to face the changes in reality, they decided to reject reality and substitute their own. That's where we got the DMCA, which makes it illegal to copy your own DVD to your own iPod if the company that produced your DVD made ANY attempt to encrypt or otherwise prevent you from doing so.

The RIAA and the MPAA don't make any bones about what they want. They want you to have to pay for each and every access of your copyrighted media. They want you to have to purchase every format separately. They want you to have to account for every copy you have; meaning they want YOU to have to prove that you aren't a 'pirate', rather than them (or law enforcement) having to prove you are. They have lobbied for laws that made it illegal to release any media without DRM - which would have effectively destroyed the future of the fledgeling indie music scene. They have a lot of money, and they are fighting for their "lives", the way they see is.

If we don't fight the idea that copyright infringement is theft at every instance, enough people will hear it enough times in enough contexts that in twenty years we may find ourselves reading about people being sent to jail for nothing more than changing the format of a piece of media they purchased legally. If you think that's an exaggeration, go ask your dad or grandfather if he ever thought people would be breaking the law by an act roughly equivalent to "copying an LP to tape so they can play it in their car." And realize that it is ALREADY ILLEGAL for you to rip that DVD to your ipod for watching on the plane.