By Adam Gurri
Three of the big bogeymen of the copyright debate—digital rights management software, onerous and complex end-user license agreements, and content industry associations such as the RIAA that sue their own customers—are completely avoidable without resorting to any policy reform. The answer is simple: do not buy anything from any outfit that wraps its content in DRM, forces you to agree to a EULA you are uncomfortable with, or sues enormous amounts of people for copyright violations. Don’t pirate anything from them, either. Have as little to do with them as possible.
Some would argue that everyone wraps their stuff in DRM and demands you agree to a questionable EULA, and therefore it’s unavoidable—but that is hardly true. There exists a gigantic long tail of music, writing, video, art, and any sort of content you can think of. There is enough DRM and EULA free content out there for you to spend your entire life excavating and still not touch even a tiny minority of it. Some proportion of this is explicitly under a Creative Commons license; the creators voluntarily slap on a permissive license for content consumers. So the problem is not a lack of alternatives, or competition.
The problem is that all of the DRM and EULAs and RIAAs are squarely at the head of the tail, and human nature is such that we are drawn to the head of the tail like moths to the flame. No matter how noncomformist or counterculture we may think we are, at the end of the day we want to be watching and reading and listening to the same stuff as the people closest to us. To quote Seneca, “No good thing is pleasant to possess, without friends to share it.”
A desire does not translate into entitlement, however. Even if we ditched intellectual property entirely, that wouldn’t take away the right of a company like EA to wrap the stuff they sell us in DRM, if they wanted to. After EA’s DRM made the latest SimCity game unplayable for days, I’m sure many are reconsidering ever spending a penny on EA games again. They have the right to put any code they want into the games they make, including DRM. And we have the right not to be a patron to them.
DRM and EULA are not a serious problem, because we have ways of getting around them. There are alternatives, and we are free to make alternatives ourselves. The mechanisms for this are more available than ever. If you feel strongly about this, go and set up a studio that releases their films to the public domain and relies on Kickstarter to generate the revenue up front. Donate to artists who put their stuff out without DRM and on Creative Commons licences. Become the true fan to as many long tail creators as you can.
The problem is not DRM, or EULA, or lawsuits. The problem isn’t even with the insane copyright terms—again, we can simply choose not to patronize those who take advantage of them and those who lobby for term extensions. No, the problem is with the criminalization of copyright enforcement. In civil law, the cost of enforcement is largely placed on the shoulders of the party pursuing the lawsuits. Pushing enforcement into criminal law is pure rent-seeking, plain and simple.
The civil liberties violations that have come with it are atrocious. In what world is civil asset forfeiture an appropriate measure for protecting Mickey Mouse? How can anyone justify destroying a business before making any formal charges, and then never giving the businessman his day in court? Why is a federal prosecutor threatening to make a felon out of someone for downloading material in the public domain? Were legislators seriously prepared to do violence to the architecture of the web in order to stop people from downloading the latest episode of Game of Thrones?
The policy side of the copyright fight needs to be focused on beating back the increasing encroachment of criminal law into areas where it has no place sticking its nose. We need to fight the next SOPA, and we need to overturn the 2008 Pro IP act that added civil asset forfeiture to the copyright enforcement toolkit. And that’s just the beginning—criminal law has become more and more deeply interconnected with copyright for decades now; there are many more laws that need to be overturned, and many more that will need to be opposed once they are proposed.
Beyond that, we are left with personal responsibility. There is nothing forcing you to patronize any institution you consider to be unethical. By actively patronizing long tail creators whose works match your taste and who behave in a manner you consider ethical, you not only increase their odds of success, but the odds that the norms you believe in will catch on as well. It is a small increase in those probabilities, but personal responsibility often boils down to accepting the little we can accomplish as part of a much larger whole.