Digital enclosures

[You can also read this on the BBC News website]

If you buy a Zune player from Microsoft then you’ll be able to share your songs with your friends using its built-in wireless link.

However Microsoft, clearly worried about what the record companies will think, have decided that you’ll only be able to listen to a transferred song three times, and that after three days you won’t be able to play it at all.

They can do this thanks to copy protection code built in to the player, whether or not the songs themselves have been protected using a digital rights management system.

And they will apply the limit to every song  or audio file that you transfer, with no check to see if the songs themselves are in copyright or protected. They will even lock songs that are released under a Creative Commons licence that explicitly allows sharing and copying.

On the Zune Insider blog Microsoft employee Cesar Menendez argues that since the player does this it doesn’t count as adding restrictions to the file itself as ‘it doesn’t impose DRM restrictions on any files that are unprotected’, but already the people behind the Creative Commons are asking awkward questions about this particular piece of hair splitting.

It’s unlikely that Microsoft will change their approach even if it does breach the licence conditions – they will probably ask people not to share Creative Commons licensed material and put the onus on users to find other ways to transfer files.

This sort of unthinking application of rigid rights management to every file, whether or not the originator wants it and irrespective of whether the material protected is in copyright poses a real danger to all of us.  It is one of the ways in which the dot.commons, the collection of material which is either outside copyright or licensed in a way that permits copying and reuse, is slowly being diminished in favour of enclosed content and rigidly managed rights.

Anyone who chooses a Creative Commons licence has said that they want their work to be available to others, and their intentions should be respected. Yet Microsoft has chosen not to honour their request, and has even decided to apply the same restrictions to  material which is out of copyright or indeed not covered by copyright at all – the contents of the public domain.

The public domain is little understood, rarely defended, and  under constant attack from those who would have all works of the human imagination kept under lock and key through a combination of perpetual copyright and technological protection measures.  Partly this is because it can  be difficult to determine whether a particular piece of work is in the public domain, and since the rules differ in different jurisdictions the status of all but the most obvious – for which read ‘older’-  works must often be considered questionable.

Despite this lack of awareness it is difficult to understate the practical importance of the public domain or to exaggerate the damage caused by recent moves to restrict its scope and stop works either dropping out of copyright or being available for use when they do.

This is  not just about music. Creative writers make use of the public domain in a wide range of contexts, from a literary novel like Sena Jeter Naslund’s Ahab’s Wife  which appropriates characters from Melville’s Moby-Dick, to the Simpsons episode Tales from the Public Domain which ruthlessly plunders The Odyssey and Hamlet for our amusement.

There would seem to be a pressing need to create, defend, grow and cultivate this space for creativity and ensure that its boundaries are drawn more widely not less, yet everywhere around us we see newly imposed limits on its scope.

Laws designed to protect the interests of rights holders allow them to wrap digital rights management systems around published material and then prosecute those who breach the DRM even if the purpose for which the material is to be used is itself perfectly permissible.

In this way copyright law is superseded, and rights which might be granted under the law are removed, replaced with far more restrictive licenses which are themselves protected by rigid legislation that allows no fair dealing defence.

DVDs are protected using a rights management system called CSS, the content scrambling system. It is therefore illegal to copy a DVD since doing so requires you to break CSS and laws like the US Digital Millennium Copyright Act protect these ‘technological protection measures’.

If you buy an e-book of Jane Austen’s Persuasion from the online shop eBookmall then you will not be able to copy and paste from it into your school essay or print it for convenient reading in the bath, whatever rights you may have under the Copyright Act,  for while copyright may expire seventy years after the death of the author the digital rights management license endures.

What use is a public domain that has a high electric fence around it, with gated entry and armed guards patrolling to ensure that nothing is taken out and exploited elsewhere?  For the key point of the public domain for a writer is that its contents can be mined, exploited, changed, abused and – through the application of creative energy and inspiration – turned into something new.

The size and usefulness of the public domain depends entirely on the limits placed on the monopoly granted to creators by copyright law, and if copyright law is strengthened or the term extended, or if copyright is gradually replaced with more restrictive contract law then this will have a direct effect on the freedoms enjoyed by creative writers.

But the real danger of enforcing copyright through technology with digital rights management systems is that it replaces the messy application of a human-made law with the rigid determinism of a rule-based system.

This may not stop the purely original artist or writer, but these are in short supply and cannot hope to furnish our world with its cultural and artistic requirements. Most of us steal unashamedly from the work of others, at least when it comes to looking for ideas and material to work with, and we need the flexibility which today’s imperfect law offers to allow us space to work, breathe and seek inspiration.

Microsoft’s inflexibility when it comes to sharing songs on Zune players shows that it prefers control over creativity, and should be a warning to us all that the time has come to argue for freedom of expression and against these modern enclosures.
Bill’s Links
Zune Insider
Creative Commons