You share music, rip DVDs, make Hitler whine about your first world problems and much more in the course of your regular online activities — and more often than not, you do these things without giving a thought to the fact that you're actually breaking the law. Here's a look at how you're inevitably circumventing copyright law, and what you can do to protect yourself.
Why It's Almost Impossible to Avoid Breaking Copyright Law
Oz editor note: while the specific laws discussed in this article apply in the US, the general principles also apply in Australia. US and Australian copyright laws are harmonised, so while the specific penalties can vary — there's much local debate over whether net access should be cut off for copyright offences, for instance — the same basic ideas apply.
Copyright law is extremely complex. It's so complex that lawyers, lawmakers and experts heavily argue over how it's interpreted and applied. Nonetheless, if you commit a crime, you can't use ignorance as an excuse. The law doesn't (officially) offer leniency for misunderstanding or lack of knowledge. So how can you comply with convoluted copyright laws when you can't realistically understand them all? You can't, and so you may end up breaking these laws on a regular basis without ever knowing it.
To make matters worse, a spectrum of illegality makes it acceptable to break the rules in some circumstances yet not others. Experience tells us that uploading a home video to a video sharing website (e.g. YouTube) that features a copyrighted song is sometimes OK, but downloading a television episode is not. Both of these actions are similarly illegal, but the first example is regularly tolerated while the second can lead to a loss of internet connectivity, a fine or even jail time (depending on the number of offences and how often copyright holders decide to "catch" you). Just as it's easier for us to circumvent copyright law online, it's easier for copyright holders to come after us. I spoke with Derek Bambauer, Assistant Professor of Law at Brooklyn Law School, who explained this is particularly problematic because infringement is often only a byproduct of the way we communicate and bears no intention of doing anything illegal:
The tricky thing is, if you and I want to share a recipe then I photocopy it and then come over to your office and give it to you — so it's just you and me. If I want to do it online, the odds are pretty good that we're going to do it on a social network or a blog or something like that. That means that the blog is all of the sudden a choke point — something that people who want to keep us from doing this can exert control over. The way the law deals with this is with the notice of takedown under the Digital Millennium Copyright Act (DMCA), but that's just on the copyright owner's say-so. The copyright owner says "that's infringing!" and the site should take it down. You can get it back up, but you have to file a counter notice and it takes somewhere between 10 and 14 days. It's a lot of hassle. Copyright owners, through the DMCA, have a good deal of control over the way we communicate.
But because rights holders are often fickle about what they choose to have removed and what to leave alone, it's difficult to rely on the law for guidance. The result is that we — the average users and consumers of the internet — are unsure of how to proceed when dealing with copyrighted works and either have to assume we have no rights or make our best guess and hope it doesn't lead to legal consequences.
It all comes down to this reality: you will often have to circumvent or ignore copyright law to go on with your regular activities. Fortunately, there are ways to handle these circumstances better and keep yourself out of trouble. In this post, we're going to look at specific situations you encounter on a regular basis and what you can do to protect yourself.
The Ways You're Breaking the Law (and How You Can Protect Yourself)
Tolerated Action: Mix "Tapes"
The idea of the mix tape has been around for many years. It came with the invention of the compact cassette tape and the ability to record songs from the radio or other sources. This made it possible for us to create our first "playlists" of songs we liked and share them with others. With tapes, this required time and effort. Now that we have digital music files, we can throw together a mix "tape" in a matter of seconds. Initially this was a big problem because it removed the barrier of effort from sharing copyrighted music with others. While the action of making a mix tape violated copyright law, too, it was tolerated because it required a lot of effort, had a inefficient method of mass distribution, and was often an effective marketing tool. Digital files made mass distribution both efficient and easy, which led to intolerance on behalf of the Recording Industry Association of America (RIAA) and several ineffective lawsuits. Today, sharing is mostly tolerated because the problem appears to be insurmountable. The recording industry, to some extent, has found it necessary to accept the existence of music piracy and begrudgingly align themselves with online music sales and distributions services like Apple's iTunes. For the most part, consumers won the battle because they ended up with simple online purchasing methods that cost less money and music that, essentially, has no real restrictions of use.
Despite all of that, you're legally prohibited from sharing your music on a large scale. Posting the actual song files online is particularly problematic. The recording industry even fought Amazon's Cloud Drive, which allows the online storage and playback of digital music without any sharing features at all. While Amazon ultimately won that battle, you and I don't have their legal resources. If you decide to store a few songs online and share them openly with others — even if it's solely for the purpose of collective listening at a party or office environment — you run the risk of account suspension with the company hosting your files. You could even face legal action, although a DMCA takedown request asking you to simply remove the files is the most likely consequence.
While you're putting yourself at risk by uploading your music to, say, a web host, there are several services you can use to share music with others without the likelihood of retribution. Turntable.fm is one of our favourite collaborative playlist services. It allows you to upload songs online and faux-DJ with others who join your room. They can contribute songs to the playlist as well and everyone can provide live feedback about the music they're hearing. Chatting is also an option.
While there are few dire consequences nowadays when it comes to sharing music online, using a service like Turntable.fm offers a better experience than simply posting files. This kind of reasonable use is tolerated, even though it's not perfectly legal or desired by the recording industry.
Illegal Action: Downloading TV Shows and Movies
It's unlikely that anyone who's spent a moment online is unaware of the illegality associated with downloading unlicensed TV shows and movies from file sharing services. Nonetheless, it's extremely common, but the cause varies. While some are undoubtedly stealing television and film content because they simply do not want to pay, many are employing piracy because the barrier to entry is unrealistic for most consumers. Derek Bambauer explains, using HBO's Game of Thrones series as an example:
If you want to see Game of Thrones (and I do), your options are 1) subscribe to cable plus HBO, or 2) pirate. I think the series rocks, but I'm not paying $US100 a month for it. If HBO expects me to do so, it weakens their moral claim against piracy. Unconvinced? Imagine instead that HBO offers to let you watch Game of Thrones for free — but the only place on Earth you can view the series is in the Kodak theatre in Hollywood. You're located in rural Iowa? Well, you've no cause for complaint! Fly to LA! I suspect that translating costs into physical costs makes the argument clearer: HBO charges not only for the content, but bundles it with one particular delivery medium. If that medium is unavailable to you, or unaffordable, you're out of luck. Unless, of course, you have broadband, and can BitTorrent.
So what can you do? As you might imagine from Derek's example, your options are pretty limited. Although you can find many shows and movies on services like Netflix, Hulu, Amazon and iTunes, those services are often lacking in content (like Game of Thrones) that is too difficult, expensive or sometimes even impossible (e.g. if you live outside of the United States) to acquire. Although you can encrypt and anonymise your BitTorrent traffic or subscribe to a Usenet provider that offers a connection via SSL to protect yourself when downloading anything from either service, you still have no legal right to download any copyrighted content without expressed permission. For now there is little we can do to make this situation better other than encourage the film and television industries to regard piracy as competition. As iTunes has proven with music and cartoonist The Oatmeal has cleverly illustrated, when it's easier and affordable to use the legal route, that's the route most people will take.
Tolerated Action: Mashups and Other Derivative Works
Creating derivative works — the process of using copyrighted material to create something new — is illegal if you do not obtain permission from the rights holders. Nonetheless, this action is often tolerated because it often serves as a unique marketing tool for the content in use. Whether a derivative work will be tolerated or not is entirely unknown as rights holders have reacted both positively and negatively in many circumstances.
A popular example of a derivative work that has both been prosecuted and tolerated is the Downfall/Hitler Reacts meme. Despite the approval of the original film's director, the production company (Constantin Films) began serving DMCA takedown notices to YouTube for the parodies because they were seen as distasteful by one of the company heads. Many were re-uploaded to YouTube and other sites and Constantin Films gave up the pursuit after a few months. The derivative work was simply too popular to silence.
This situation is indicative of the problem you face when creating derivative works without permission. Because you are circumventing copyright law, you know you have the risk of your work being removed from the internet. You would, ideally, obtain permission before posting a derivative work you created, but that course of action is often too difficult and too expensive for the average person. Professional and political activist Lawrence Lessig aligns many derivative works with quoting and believes preventing this action stifles creativity:
Both professionals, such as the band Girl Talk or the artist Candice Breitz, and amateurs, including thousands creating videos posted on YouTube, are finding themselves the target of overeager lawyers. Because their creativity captures or includes the creativity of others, the owners of the original creation are increasingly invoking copyright to stop the spread of this unauthorised speech. This new work builds upon the old by in effect "quoting" the old. But while writers with words have had the freedom to quote since time immemorial, "writers" with digital technology have not yet earned this right. Instead, the lawyers insist permission is required to include the protected work in anything new.
Though Lessig's hopes for the future of remixes and mashups are better for creativity, for now they are just hopes. That said, you're not forced into simply posting your work online and hoping for the best. There are a few things you can do to avoid those overeager lawyers. Derek Bambauer offers a few suggestions:
- Post to smaller, niche sharing sites that don't automatically remove content that may contain (or appear to contain) copyrighted works.
- If you want to post to larger sites, mirror the content on smaller sites as well.
- Post to sites that use off-shore servers and are not subject to the DMCA.
Of course, creating a mashup or other kind of derivative work without expressed permission means you are breaking copyright law. If you profit from the work, you are absolutely putting yourself at risk. Although recent history has shown us that derivative works generally receive little more than a DMCA takedown notice, the risk is still present. Consider it heavily before you choose whether or not to proceed.
Illegal Action: Removing Copy Protection
In general, the Digital Millenium Copyright Act (DMCA) prevents the removal of any copy protection methods employed by a media publisher. In July of 2010, a few exceptions were made for various forms of media in specific circumstances. Many people took these new rules to mean you could now break copy protection schemes on legally obtained media and software. For example, many cheered on the right to rip a DVD for use on their portable media players and smartphones. The problem is that ripping a DVD for personal use still isn't permissible by law. Here are the actual exceptions:
- You can rip a DVD to obtain a portion of its contents for educational purposes or criticism, governed by fair use.
- You can jailbreak, root or unlock your phone to run legally obtained software or to use it with a different carrier.
- You can break video game encryption for security-testing purposes.
- You can crack computer programs that require hardward dongles to run only if the dongles are obsolete or unobtainable.
- You can use a computer-synthesised voice to read an ebook to you regardless of any restrictions imposed by that book or its publisher.
When it comes to reasonable personal use, the law really isn't on your side. The advantage you do have, in most cases, is anonymity. If you're breaking copy protection so you're able to use legally obtained media or software in the way that you want without sharing it, it's virtually impossible for anyone to find out. It's also very unlikely that you'd prosecuted for breaking copy protection solely for personal use, because proving damages would be difficult and not worth the cost. For the most part, you're in the clear and really only have to worry if you find yourself in the highly unlikely circumstance of having your hard drive seized during a legal investigation.
There are really only two minor concerns you'll want to be aware of. The first relates to a decision in the case of RealNetworks v DVD CCA, which decided the manufacturing of DVD ripping tools was illegal:
[W]hile it may well be fair use for an individual consumer to store a backup copy of a personally owned DVD on that individual's computer, a federal law has nonetheless made it illegal to manufacture or traffic in a device or tool that permits a consumer to make such copies.
Quote via the Electronic Frontier Foundation.
This means there is some risk of DVD ripping tools becoming unavailable. Nonetheless, this decision was made in 2009 and thus far there is no lack of available options. Your other concern may be your warranty, which is really only relevant when breaking protection schemes on smartphones. While you can do this legally, you're often going to void your warranty if you cause a problem that's clearly the result of the jailbreaking, rooting, or unlocking process. The bottom line is this: don't share files or software with copy protection you've removed and proceed with caution if you warranty is at risk. Keep those things in mind and it's unlikely you'll run into trouble.
Illegal Action: Using Software You Didn't Pay For
Pirated software is illegal, and that's something most of us know and would refute. That said, there are circumstances where you may have a legitimate reason for pirating an app or two. Here are a few examples:
- You want to try out an app before you buy it but there isn't an available demo (or the trial period is unreasonably short, such as the trial/refund availability period of 15 minutes offered by the Android Market).
- You purchased a used computer that came with used software but you didn't receive all the licences and need to reinstall the software.
- You own the software but your copy protection dongle broke or you permanently lost your registration information.
- The copy protection imposed on your legally obtained software is frustrating and prohibitive, so you use a pirated copy despite actually owning the legal software. (I'm looking at you, music production software.)
- Someone gave you free software and you were led to believe it was legal to use but, in reality, it wasn't.
While you should do the right thing and support developers by paying for their software, if you have a legitimate reason to use pirated software for a limited time (or to correct a problem with your legally-obtained copy) you should protect yourself so you're not grouped in with people who are stealing for the sake of stealing. Currently, this means either encrypting and anonymising your BitTorrent traffic or subscribing to a Usenet provider that offers a connection via SSL.
Although these routes are available to you, it's best to avoid piracy altogether. If you're considering software piracy because of the high cost of software, don't forget that there are lots of ways to get steep discounts. Ultimately there are few reasonable justifications for pirating software and the law will not be on your side.
What About Everything Else?
The above examples only scratch the surface of the various copyright issues you can run into on a daily basis, which leaves the question of "how do I communicate and share online without putting myself at risk?" While there's currently no clear answer, Derek Bambauer suggests you ask yourself one simple question: "does this feel wrong to me?" While the answer may not always guide you to a fully legal answer, as copyright law is currently comprised of so many grey areas, your own moral compass is often your most reliable guide.
A very special thanks goes out to Derek Bambauer, Assistant Professor of Law at Brooklyn Law School, for his assistance with this post. You can find his blog here. Also, thank you to my anonymous government pals who provided guidance in the early stages of writing this article. You keep me hopeful.