Friday, October 19, 2007

Intellectual Property and the RIAA

One of my regular readers brought two little tidbits to my attention regarding the RIAA's ham-fisted lawsuits.

The first is their ongoing attempts to sue anyone who dares download a file off the web.

The second is a lawsuit filed against in an apparent effort to shutdown one of the oldest discussion forums in the Internet - Usenet. Whether you find Usenet useful is open to discussion. I don't particularly, but that's not the point at all here.

The RIAA is perhaps the most illustrative case of how badly broken the legal notion of Intellectual Property has become. Yes, an organization has a legitimate right to protect its "IP" - but doesn't there seem to be something fundamentally broken when you start running around suing people left right and center - starting with your paying customers????

Sure, some people will pirate stuff all the time. That's neither new, nor particularly surprising. It's gone on for years - whether that's people tapping cable TV illegally, pirate satellite dishes or whatever.

For the most part, the claim that each pirate copy represents lost revenue is a crock. 99% of those copies are going to be sales you never had in the first place - and never will have. Let's face it, only a small fraction of music makes it onto the radio - and an even smaller fraction is something that any one individual is going to be willing to purchase. If the radio played one song an hour that I would want to own a copy of, I'd be surprised.

When you go after the very people you wish to market your product to, you've already lost. Not only will you lose your customers, you'll eventually run out of cash flow to. (I'm beginning to suspect that the RIAA's cash flow is looking bleak given the way that they are thrashing about) Worse, real piracy (the ones you should care about - those who bootleg to make money off it) is going to flourish because the serious pirates live on the "thrill of the chase" - the ever escalating war of copy protection and tools to break it will never cease. The idea you might be sued is mostly a lark to them - added danger if you will.

IP law in both Canada and the United States is badly broken. A series of legal rulings have all but destroyed the notion of "fair use", and our legislators have been unwilling to address the problems. The digital era has made it easier to make copies of material than ever before, and neither the concepts of copyright or patent really work very well in protecting the interests of those who create (or invent) new works.

The emergence of companies who exist solely to acquire patents and sue other companies is perhaps a bellweather of how broken things really are. Those companies exist to make money by exploiting a broken system.

A good example are so-called "software patents". At some level, I can agree that something truly new and innovative warrants protection. Broadly written patents that describe concepts rather than actual practical implementations are completely asinine (and they happen!). Implementation is too specific, and covered by the concept of copyright (sort of).

We need a new, and more flexible notion of IP to be brought into action. It must recognize the distinction between legitimate "fair use" of a material, and malicious infringement or piracy. We need to have a series of legal and/or review processes in place that consider the legitimacy of a request for IP recognition that considers the application and the context of the field in which it exists to decide the degree of "protection" that will be provided.

For example, our existing patent laws exist to protect physical inventions (mechanical devices, etc), and the law reflects that fairly well. The digital media world doesn't quite map into that notion of patent - it's too easy for different people to achieve similar results through recognizably different processes.

Current RIAA practices are in fact arguably damaging to key freedoms that are part and parcel of the democratic process - such as freedom of expression and communication. It's difficult to see how there is any freedom when someone is sniffing every IP packet that crosses a router.

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