DRM - Who is the "Criminal" Anyway?

Originally written in 2003

In the light of the Canadian Copyright Act (the Act), those who copy music for their own personal use (i.e. private copiers) are not criminals. It doesn't matter what the source of the material copied: Internet, radio, TV, borrowed CDs, moldy-oldy vinyl, 8-track, cassette or whatever. The Blank Audio Media Levy compensates for this copying so there is no criminal.

The Act also specifies that there are "broadcasters" who have to pay royalties and that otherwise, the copyright holder controls who can access their works.

Whether those who have purchased (or "private copied") a copy can offer their copy for copying via the Internet is a question the courts have not yet ruled on as far as I know. Are these P2P (peer to peer) "offers" publishing, broadcasting, or just a case of rapid loaning (since I can loan another individual my copy so they can make their own copy?) How is P2P different from pirating where an individual or company makes many copies of the original and offers them for sale, sometimes complete with liner notes, cover art and imprint on the CD?

What we do all seem to agree is that the pirate is a criminal. The pirate copies wholesale for a profit. The pirate is in it for the money.

Question is, is the P2P sharer in it for the money?

Nope - not that I can see. There are no P2P systems that reward the sharer in money as far as I know.

Are they in it for notches on their virtual belt? Are they rebelling against something? Or are they being altruistic?

The answer is... Yes.

The P2P sharer is doing all of the above; at least some portion of them is doing one or the other of the above. The question is, which is the dominant activity and what can (or should) be done about it?

Some of the problem is social - the guys who want to "notch" their way to stardom by hosting the most MP3s are just the latest round of anti-social phenomenon. They can't possibly listen to everything they have but instead gain some sort of notoriety from their "conquest".

Some of the problem is economic. The general population is now aware of the cost of duplication of a CD. The market that publishing works in is now different from what it was 25 years ago when duplication of music was hard, expensive and imperfect.

Some of the problem is political. It's political in the broad sense of the word, not partisan political. The P2P sharer makes a statement against the "system" by helping to change it. The problem I see is that the changes are not necessarily for the better. The recent passing of the DMCA and more recently the passing in the EU of new copyright legislation (see guardian.co.uk  for an article on this) and the threat of the Free Trade Area for the Americas (FTAA) treaty (see my rant) have pushed the rights of the creator to the point where I expect a real backlash from the purchasing public similar to that suffered by software publishers back in the days of distribution on floppy disk. Back then (not all that long ago, but many have obviously forgotten) the publishers started doing all sorts of things to stop people from being able to copy the floppy that software came on. Laser drilled holes, special software, special disk formats, and all sorts of things meant that Joe Average couldn't make a backup copy of the software he'd purchased and had to beg if the original got destroyed.

Joe Average will rebel even more - just watch. Making him criminal won't work, it will only bring down the publishers faster.

richard