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Progressive Copyright: Part II – Whose Content Is It?

photo credit: makelessnoise

photo credit: makelessnoise

So in part one of this three part series I wrote about how the commercial lifetime of content is shorter than ever before (awesome). Now lets look at the equivalent bummer on the consumer side; How content delivery formats are obsolete faster than ever.

This shouldn’t come as a surprise to anyone. Just look at recent history, the venerable VHS format had nearly a thirty year run before being deposed by the “next best thing” (to say nothing of vinyl records eight decade run as king-of-the-hill for audiophiles). DVD, on the other hand (while still going strong) is less than ten years old as a widespread commercial format. Poor old UMD barely lasted three years (as a movie format, I know it’s still hanging on, sort of, as a software format). Then we look to a myriad of digital codecs and wrappers all of which are constantly evolving. Heck even a set standard like “high definition television” can barely go a few years without changing (from >480i to 720p, to 1080i, to 1080p, to 2k, to 4k…).

All of this is to say that if I ever dug out my old Iomega Zip Drive and got it running (and could find a compatible computer with a SCSI port to connect it to, and an operating system that would recognize it) I’d STILL have a hard time finding a player to handle whatever variety of RealMedia was popular ten years ago.

Consumers have been very well served for years by the provisions in various copyright legislations that allow for making “backups for personal use” (or similar) of works they have legally purchased. While these clauses were initially put in because of the unreliability of new media formats (early tape-based media was really unreliable – they’d snap all the time, so you better make sure you made a dub of your wedding before you sit down to watch your irreplaceable cassette) they instead came to serve as proxies for protecting consumer interest in maintaining the ability to view and transfer legally purchased media.

So what would a truly progressive copyright legislation do to address this?


2. Enshrine the consumers right to transfer their interest in a work they have legally purchased to any format they choose (and are able) to.

This isn’t just semantics. The “Holy Grail” for many (short sighted) content producers is to sell consumers the same product as many times as possible (hey someone bought the Beatles on LP, 8-track, cassette, MD, CD, DVD 5.1, DVD 7.1, and Beatles: Rock Band…) but this is leading us to a very scary tipping point. As I wrote, extensively in relation to bill C-61 limiting private, non-commercial usages of legally-purchased works enhances the power of the distributors and decreases the power of the content producers. This creates a situation that encourages platforms to be more closed, creators to have far less say in how their work is distributed, and the majority of the profit goes to the gatekeepers who control access to audiences, not the actual copyright holder.

Plus this type of ecosystem would encourage the creation of formats, devices, and platforms that are similarly closed and controlled, because – hey – big bucks to be had.

The prime example I usually give to explain this point is that I can, currently, sell a DVD on my website and know that it’s going to be appealing to people with DVD players, computers, iPods, PSP’s, those cool Archos player-things… in short a huge percentage of the potential video-watching market.

If audiences are restricted to only view content on the format that I deliver it to them (DVD players), I now have to negotiate a litany of deals with a number of distributors if I want to reach a similar audience (except each of those gatekeepers will want a significant cut of revenue for the privilege of access to “their” audiences).

As a content producer, I’m profoundly unconformable with the latter scenario. I don’t want to <em>have</em> to do a deal with Microsoft to sell a video to someone with an XBox. I don’t want to have iTunes being the only allowable source of media for iPods. If future platforms close for consumers, they close for creators as well – likely permanently because there’s little interest in platform owners for doing “one-off” deals (talk to any band that’s ever tried to get a <em>single </em> album on iTunes directly – they have to go through aggregators who cut bulk deals – and take an additional profit share).

By the same token this is brutal environment for customers. Why should I buy *anything* when it’s likely the format or platform is going to be obsolete within a few years? When the PlayStation4 comes out, what happens to my “Rock Band” music?

While buying a DVD of a movie doesn’t give me the right to do whatever I want with it, is it unreasonable to think I should be able to privately watch that movie a few years later? And is it unreasonable to think that I might have to port that movie into a different format or platform than the one I originally purchased it for in order to do so?

So for truly progressive copyright legislation let’s actually call a spade a spade and put that in the law. No more arguing if ripping a DVD to an iPhone constitutes “making a backup” – go ahead and make sure the consumer right to migrate their data is clear. That may mean allowing circumventing copyright protection, provided that the intent isn’t to infringe. I know producers cringe at that but they’re not seeing the real boogeyman on the other side, which is that every controlled platform is one they can’t easily access. Without this protection “buying” legitimate product becomes, essentially, a longer-term rental – and far less desirable to consumers, creating a chilling effect on all legitimate media sales.

By the same token, allowing users the right to port their content encourages platform and device makers to embrace that portability. What are you going to buy – a future media player to which you can easily import your existing songs and movies, or one where you’ll have to re-buy everything in some weird proprietary format that probably won’t be around a year from now? Open formats also encourage legitimate purchases as an investment in a library that has more than a shelf-life of a few months or years.

This is a win/win for both content creators and content audiences – and ensures that both have can benefit as platforms, formats, and delivery mechanisms continue to evolve at a breakneck pace. Sounds progressive to me.

Tomorrow – Fair whatnow?

  • Timothy Friesen

    So does this mean that I should have access in perpetuity to any Intelectual Property that I purchase?

    What happens if the original media is destroyed, stolen, or I lose it? What happens if my backups are destroyed? Can I download it from the Internet? What if all I can find on the Internet is a remastered version (ripped from CD) of the cassette tape that I purchased initially?

  • Scott Lee

    Timothy: Yes, if you purchased it, you should have access to it for as long as you own the item you purchased. If you lost it or it got stolen, sorry about your luck. That’s true with anything you purchase. When it’s gone (no matter how it happens), replace it or move on. If it was stolen, hopefully your insurance will cover it so you don’t have to re-purchase out of pocket.

    As for the “remastered CD rip” instead of a cassette tape: That’s like downloading a Blu-ray rip because you bought the DVD. It just doesn’t make sense and is a horrible example. There’s a significant difference because it’s not simply format shifting. Format shifting doesn’t (ever, in my experience) enhance the quality to a level higher than the original.

  • http://www.bradfox.com Brad

    Sorry for not responding sooner Timothy, but Scott covered most of what I was going to say. I’m not suggesting some new slew of rights be granted to audiences, rather just a clarification of rights they have in a product (physical or digital) in their possesion. Of course that doesn’t mean you have any rights to subsequent releases in subsequent formats – rather just if the technological means exists to transfer content X to platform Y – and you legally purchased (and still have) content X than that should be a legal use.

    As Scott points out you can’t “create” resolution (or fidelity). So it’s not like if I upsample my 1996 “Dark City” DVD onto a BD-R it’s going to be any kind of a substitute for a Blu-Ray. It’s going to look like my old (badly mastered) DVD. But I should have that right – the same as should I choose to watch that DVD by recording it to my laptop hard-drive (to save battery power on airplane flights), or PSP, or iPhone.

    This really isn’t the barrier to monetization that people think it is. I have the ability to encode my DVD’s to my iPhone in about three mouse clicks and a hour of processor time – and I still rent movies (movies I *own*) over iTunes. Nine times out of ten the couple of bucks is worth the convenience hands down, or I’m on the road and need to look something up.

    If your original media is destroyed (or your original digital media deleted) then you don’t have rights in anything to transfer now do you? So the point is moot.

  • Timothy Friesen

    If my access to media (CD, tape, LP, 8-track, etc…) ceases at the point in time at which the original media ceases to be readable (stolen, lost, scratched, it jsut stops being readable because it’s too old) then what happens to my rights for the format shifted media? Should I still be able to listen to “backed up” mp3 files on my iPod if the original CD is unreadable?

  • http://www.bradfox.com Brad

    The point of most copyright in anything is that what you’re buying isn’t media, it’s a license to a creative work (piece of software, movie, musical performance). So you’re not buying a DVD – you’re purchasing a personal license to watch movie “X”, you’re not buying a floppy disc – you’re purchasing an individual license to run a spreadsheet program… etc. This is important for creators as it simplifies the whole law about what rights the consumer actually has in the goods they buy (ie: you can’t publically present a movie in a theatre or a classroom without a specific license for those uses).

    All format shifting does is, as long as you can prove you – at some point – purchased a legitimate license for private viewing of a work – allows you to migrate that license through whatever legal devices you may have access to. Let’s say your have a music CD you ripped to iTunes – the same as now the right to listen to that music on iTunes is dependant on being able to prove you legally purchased that music. If your original CD gets stolen, then you no longer can prove your claim. If your original CD is obsolete however because they stop making CD players – you still have the right to port your license forwards.

    In practice this doesn’t really do anything to limit a creators right to create and sell multiple versions of their works. Convenience (and increase in features and quality) will always make modern formats more appealing than ported ones (you *could* use your Bu-ray player to just watch DVD’s, or only watch DVD’s encoded from VHS tapes, or only watch VHS tapes transfered from super8 – but why would you). On the otherside of the chain iTunes television shows are cheap, plentiful, optimized for iPods and iPhones and can be downloaded directly from the iTunes store… but that shouldn’t mean that people who shelled out for full box sets shouldn’t have the option to rip their DVD’s if they so wish.

    The important thing though is that the *license* granted doesn’t change. Format shifting doesn’t grant the user any additional useage rights (even under the existing law you can’t play both an original and a backup at the same time… nor can you watch a DVD and an iPhone rip of a movie simultaneously) but what it does do is clarify why there is an incentive to buy *anything* when format lifespans are exponentially decreasing.

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