Why strict copyright enforcement is becoming obsolete

Strict copyright enforcement is popular in major copyright dependent industries right now. But here's why advancing technology is rapidly making those industries' traditional business models obsolete.

The ongoing controversies over matters of copyright enforcement and piracy are infected by virulent strains of propaganda and misunderstanding. The entire issue is commonly framed as a battle between content creators and peer to peer file sharers. Let us take the two most extreme views, and refer to them by names they often choose for themselves. At one extreme, there are the defenders of "content owners" who either believe that copyright is a basic property right imperfectly embodied in law or who just believe that treating copyright that way is an important expedient that they should defend. At the other extreme, there are the "copyfighters" who believe that copyright is an authoritarian imposition, establishing harmful monopolies, either as corrupt and immoral support for capitalist plutocrats, or as unconscionable governmental interference in markets that should be free.

The copyfighter faction favors serving the consumer, often whether a given consumer has paid for what he or she consumes or not; strong protections provided by the legal doctrine of "fair use"; and free peer to peer file sharing. They sometimes characterize their counterparts as nothing more than corrupt politicians and fatcat corporate bureaucrats making obscene amounts of money doing nothing but taking egregious advantage of the financial and legal vulnerability of both actual content creators and content consumers.

The content owner faction favors strict copyright enforcement including DRM, draconian legal penalties for copyright infringement (or even any act that could conceivably look like infringement or accidentally contribute to it), and other measures that sometimes get on the EFF's bad side. This faction typically portrays file sharers as conscienceless thieves who just want to get something for nothing. Anyone who consistently enough argues against DRM and six-figure penalties for file sharing in online discussion eventually gets accused of stealing, and using their arguments against strict copyright enforcement for no purpose other than to excuse that behavior -- regardless of whether they actually engage in any infringing file sharing at all.

Like most issues normally cast in black and white terms, the reality is much more complex than that, and these two extremes lie at opposite ends of a spectrum of opinion, with most people falling somewhere along that spectrum other than the ends. As with most such oversimplifications, a reasonable, best truth for almost any useful definitions of "best" and "truth" will involve some basic principles poached from both ends, filling in the gaps with common sense. While I have my own ideas of what is best, easily discovered to some degree by following me around in TechRepublic discussions for a little while, sharing those ideas in general is not the purpose of this article.

Regardless of your personal beliefs about what should be the state of copyright law, the reality is that advancing technology is rapidly making enforcement of traditional copyright-dependent business models essentially impossible. Old-school media organizations are facing the problem of trying to figure out how they can change their business models to stay in the game, with the inherent problem of being built around their old models, unwilling to abandon those old models entirely, and lacking the ability to substantively change those models without replacing most of their workforces and losing decades of both expertise and brand trust. Meanwhile, media prices are often perceived as unreasonably high, the old models in many ways are far less convenient for the consumer than piracy-driven media distribution regardless of price, and the cost of using the law and inherently flawed technological measures to fight piracy is spiralling out of control as network technologies improve at an accelerating rate.

Much of the current state of affairs is a direct result of the fact that powerful media distributors have grown comfortable with a very profitable business model that is rapidly becoming obsolete. That model is predicated upon assumptions developed during a time when the tools of mass production were prohibitively expensive and mass distribution cost even more. Today, mass production is a trivially employed side-effect of the way computers -- including computers some people in barely industrialized countries carry around in their pockets -- work on their most fundamental level, while mass distribution is almost automatic for computers attached to the Internet. As their assumptions are challenged by the increasing ease of copying and distributing content, the business interests invested in revenue models built on those assumptions are doing what they can to undermine and forestall the effects of those challenges.

Over time, the vested interests that support strict copyright enforcement have been fighting an uphill battle against inevitable technological advancement. As desperation grows, so does the extremity to which the desperate are willing to take their efforts. Their tactics involve attacking the doctrine of fair use, expanding the reach of copyright law, the abuse of patent law, and intensive propaganda campaigns. The result has for the most part been that those products placed in the vanguard of strict copyright enforcement end up the most-pirated or the least-purchased.

Part of the propagandizing that goes on involves inventing new terms, or misapplying old terms, to confuse the nature of copyright law in the minds of the general public. By calling copyrightable and patentable materials "intellectual property", for instance, there is a strong correlation drawn between copyright infringement and theft where no such correlation exists by nature. Contrary to the implications of terms like "intellectual property", copyright is not a matter of property law: it is a government enforced monopoly on the manufacture and distribution of copies of a particular work. The key difference lies in the fact that in the case of copyright infringement a copy is made of the original without permission, while in the case of theft the original is actually removed from its possessor. This difference is recognized in law, in the communications of the founders and constitutional framers of the United States, and in everyday life.

Removal of property from its possessor is a definitive requirement of the term "theft". As the Merriam-Webster dictionary defines theft:

the act of stealing; specifically : the felonious taking and removing of personal property with intent to deprive the rightful owner of it

Note the term removing. In case that is not clear enough, consider this visual guide, distributed under the terms of the Creative Commons BY-ND License:

The reason copyright infringement is so difficult to prevent under traditional copyright dependent business models is quite simply that the aim of preventing such infringement involves trying to keep people from making copies of what you have already given them. Preventing theft is (relatively speaking) easy; just keep your doors locked and theft becomes an extreme rarity, because you possess something and want to stop someone else from getting it. Preventing copyright infringement is another can of worms entirely, because enforcement then consists of convincing the person who possesses something to refrain from doing things with it in the comfort and privacy of his or her own home.

The advancement of technology, so far, has only served to strengthen our ability to prevent people from removing things from our homes without our permission, but at the same time the advancement of technology has only served to strengthen our ability to make copies of copyrightable content as well, and technology is not getting any less advanced. To complicate matters for distributors in copyright dependent industries, the increasing ease and decreasing cost of copying content is actually a tremendous boon to those distributors' bottom lines, because as it gets cheaper to copy content, the profit margin for each copy sold gets bigger.

Regardless of your feelings about the matter of whether copyright enforcement is justified, it makes little sense to cover our ears, close our eyes, and ignore the facts that face us. In the end, if you want to make money by providing content for others' consumption in years to come, you are going to have to start recognizing the increasing difficulty of maintaining a state of artificial scarcity enforced by copyright law. The most successful media distributors will be those who can employ a business model that does not assume users can be prevented from making copies. Give people positive reinforcement for not making copies as an inherent feature of the model or, better yet, employ a model that relies on the natural tendency people have to share what what they like when it is essentially free to copy.

The opposite approach -- assuming people cannot make copies at home, followed by trying to force that state of affairs on customers -- is a great way to burn incredible sums of money in a futile effort to counteract the advancement of technology that in many ways actually helps your own business model. Even if you think customers making copies of what you have sold is immoral, taking the position that this means the traditional business models reliant on strict copyright enforcement are not rapidly and irresistibly disintegrating around us is quickly taking on the character of an astonishing act of stupidity.

Strict copyright enforcement is not quite obsolete yet, but obsolescence is definitely nipping at its heels. If your plans for a copyright dependent business model do not include a way to transition to a model that does not rely on strict copyright enforcement, you are not really practicing business for the long term; you are just engaging in short-sighted, willful ignorance. The only way to secure your content-based business model for the future is to find a way to make money without treating copyrightable works as property that can be secured.