CIOs should fear the IP police ... have your get-out-of-jail files ready
Let's hope nobody wins this, it's disaster either way
Opinion The powers that be in the copyright world continually push for ever-stricter copyright with longer terms. They seek to externalise the cost of enforcement onto society at large. Society at large, on the other hand, wants easier, quicker access to content with fewer restrictions. Regular businesses can easily be caught in the crossfire.
Copyright theft has become so habitual that it has
become socially acceptable. Image via Shutterstock
A big problem with copyright infringement is that in many regions, general social acceptance of copyright is completely out of alignment with the current legal landscape. In many ways, it is no different than the many and varied other Wars On Stuff which have sought to fundamentally change society's habits, preferences and beliefs.
Alcohol prohibition famously failed. Marijuana usage certainly hasn't been eradicated here in Canada. Instead, a generation of Canadians are coming of age who simply don't understand what the big deal is in the first place.
So it is with copyright. Big Content spends billions on legal sticks: extending copyright terms beyond absurdity, lobbying continually for irresponsibly disproportionate damages and now waging a protracted international war on fair use. Half a century's stubborn resistance to change – and cemented unwillingness to try the carrot – has created a massive rift between Big Content and the audience upon which the industry relies.
If the war for legal control over our culture shows no signs of abating, what does this mean for you?
Copyright infringement at work
Alcohol in the workplace in many cases isn't technically illegal, but it is likely to get you fired. Marijuana is illegal; however the law typically punishes the user of the controlled substance, not the company upon whose campus that individual happened to be at the time.
Copyright infringement exists in a less well-trodden legal space. As corporate size increases, so too do the chances of infringing material existing on a corporate campus. Smartphone and MP3 player penetration is nearly total; anyone and everyone could be walking around with 75,000 American jobs in their pocket.
Your company may not be legally liable for this infringing material if it stays in people's pockets. But what if your staff plug their smartphones into the company computer? At every company I visit, there are mini-USB cords and iThingy cables attached to USB ports. Terrible battery life means we are constantly charging our toys, even when employers might wish otherwise.
Most phones and media players can be mounted and made visible to the operating system. What do the laws in your jurisdiction say about that? Big Content's War On Its Own Customers has tried to make educational institutions, parents and ISPs liable for the traffic crossing their networks; many of those battles are still ongoing. The argument of the day is that no company or individual should be considered a "dumb pipe". Anyone with a network must ensure infringing material never crosses it.
What about that network? If merely lighting up the $4bn iPod with power doesn't make your company liable in your jurisdiction, what happens when someone copies infringing material into their home folder? What if they use your corporate network to transmit this to another employee? What if they email it with the corporate mailer, or download new material from the internet?
Region restrictions are an even greyer area. Consider the Comedy Central/Comedy Network War On Canada. Canadians who are trying to view content (South Park clips, episodes of The Daily Show, etc) that is legally available to Americans are frequently met with a rude notification that this content isn't available in our area.
If I am VPNed into an American client's network, my IP address appears to be American. If I visit one of these websites and show a co-worker a South Park clip explaining why I call some people manatees... have I broken the law? Which law, from which country? Is the company whose network I am using liable? What about the website that allows me to view the content?
Attempts to bring clarity to intellectual property concerns on an international level have been horrible, and have been met with resistance from other nations. Even after the digital provisions are pulled.
There are more prosaic IP concerns as well; something as common and everyday as photocopying may be infringement. Using a photo in a presentation or on your website may be infringement. Playing music in the office or having a television in the break room may be infringement.
Anything you or your employees duplicate – in whole or in part – where you do not have express consent of the current copyright holder (which is rarely the actual content creator!) may potentially make you liable for various legal remedies regarding copyright infringement.
Copyright infringement isn't ever going to go away, but the crackdown is going to get a lot worse before it gets better. To avoid becoming a casualty in a War On Something, corporate computer systems usage policies need to be revamped with an eye to the new reality of copyright infringement.
The only way to be sure you aren't violating copyright is to have your employees create everything on their own, without utilising external resources. Even if you manage to do that, someone probably owns the patent on how it was done.
Open Source and Creative Commons
Companies with some awareness of the pitfalls of copyright infringement frequently turn to both open source software and creative commons media. Proprietary software is traditionally viewed as expensive, overly complex and restrictive; at a minimum you probably can't install multiple copies of anything off a single licence.
Restrictions can be more complex than simply "pay for every copy you use". You may not be allowed to take that copy of an application or operating system you bought and simply move it to another machine. You may not be allowed to use it on a computer that isn't made by a given company, or inside a virtual machine (VM).
If you are allowed to use a given piece of software inside a VM, making use of templates or cloning known-good setups may be prohibited. More confusingly, taking snapshots of a VM or doing live backups could potentially be a violation; you've essentially copied the whole "computer" in a usable state, even if you don't currently have the copy actively in use.
With the pandemonium of proprietary licensing as a backdrop, open source seems welcoming. Open source, however, does not necessarily mean "free." It means you can see the source code; that's about it.
Depending on the specific licence chosen, you may be allowed to modify said source code. You may be allowed to use the application for commercial purposes free, or for a fee. You may be allowed to copy it, under various circumstances and ... well, open source simply isn't the panacea for intellectual property ills it's usually billed as.
While it frequently comes with a lower sticker price, open source software probably isn't going to lower the costs involved with navigating the copyright infringement minefield that permeates the modern business landscape. That said, depending on the particularities of the licence, it's a great hedge against the developer going bust or getting Oracled.
Creative Commons? IT means nothing to me
Would we respect copyright more if more copyright holders
were the actual content creators rather than
massive media conglomerates? Image via Shutterstock
In a similar vein, the Creative Commons licences aren't a magic wand allowing free photocopying, elevator music and PowerPoint pictures for all. Since its inception, the number of Creative Commons licences has ballooned. They can range from free for any purpose to free only for non-commercial use, attribution required – or not – and every jurisdiction has a slightly different local flavour.
"Creative Commons licensed" means absolutely nothing. What matters is the specific details of the licence variant chosen. As with any other copywritten work, the licence the current copyright holder chooses to apply determines how much trouble you're in if you use it, who you have to pay, and under what circumstances you can use the work.
Adblock and the World Wide Wait
I am fearful of the very real business costs of intellectual property compliance. Every company – no matter how small – needs an accountant in order to be compliant with innumerable tax laws. We are on the cusp of requiring IP officers with a similar distribution. Larger companies need one of their own; smaller companies probably need one on retainer.
Increased adoption of advertisement blocking techniques in the corporate landscape may fuel this trend. As the copyright behemoths flail around looking for a new business model, advertising is a critical revenue source they are unwilling (and unable) to do without. They will defend it.
Not only can you advertise on the internet, but you can stalk people on an industrial scale. (Install collusion to see for yourself.) Behavioural advertising is big money, and everyone is trying to get in on the game.
While I have been patiently waiting for Orwell's bemused corpse to crawl up out of the ground and give us a good finger-wagging, slowly but surely I am seeing adblockers pop up all over the place. Adblockers are finally going mainstream.
Unfortunately, the result of this is once more attacking the revenue of copyright holders. We've seen how they react to this; it isn't pretty. What's more, it doesn't just hurt the traditional bullies of the copyright scene who have been making all our lives miserable; it hurts anyone who relies on advertising revenue to survive, The Register included.
The business driver for adblock adoption is the desire to eliminate lag. Your sexy fibre optic internet connection is worth little if the 30 or so analytics/advertising servers embedded in websites each need to time out in turn before your staff can get at the content they need. A minor irritation in 2005, this lag costs research-heavy jobs noticeable amounts of time, and the companies that employ them very real money.
The end game
The solution to this must be something we can all live with. We can't afford another 20 or 30 years of litigation that ultimately drives the cost of doing business – let alone enjoying content – through the roof. We already have a major lawsuit against DISH networks that bridges the gap between the old copyright infringement wars and the forthcoming adblock wars.
We need to work out an open, fast, stable, reliable advertisement and analytics system for the web. It must be a system that multiple advertisers – and brokers – can use; one which doesn't impact website load times, and prevents the distribution of malware through advertising networks.
We need to work with carriers to ensure that advertisements and analytics don't count against data caps. We need to get regulators, advertisers, brokers and civil liberties organisations in a room and hammer out privacy regulations that are sane and workable for the next century. We need to harmonise these across the western world so that we don't place our small businesses at a global disadvantage by burdening them with requirements for yet more warm bodies to ensure yet another layer of compliance and install yet more bureaucracy between staff and actual productivity.
If the extant copyright cartels succeed in their current endeavours, the licensing landscape will move from legal minefield to a sadistic version of Portal created by a creatively medicated zombie M C Escher. Big Content has proven completely incapable of adapting to change. The people in charge of these companies are not capable of bringing together the kinds of diverse political and business interests with the necessary group of skilled individuals.
If the anti-copyright crowd win, then a huge chunk of the economies that underpin the western world evaporate overnight. The answer is always somewhere in the fuzzy middle. Unfortunately, increasing radicalisation from both camps combined with decades of bitter feuding means that a workable compromise in unlikely in our lifetimes.
For businesses – as well as individuals – this means prolonged uncertainty. With no hope of regulatory rationalisation in sight, companies must take a proactive stance on copyright compliance. In reality it is impossible to be certain of compliance, no matter how many bodies you hire to police it. But if you end up in front of a judge, you need to be able to point to your ongoing efforts and say "we're trying". If nothing else, demonstrating an attempt at compliance may reduce damages below the level of 2,000 times the US national debt (PDF). There's really nothing more that any of us can do. Make your best efforts, cross your fingers ... and hope you never get audited. ®