Note: I’m not a lawyer and this isn’t meant to be legal advice of any sort. This post references United States copyright law only, except where otherwise noted. Copyright law in other countries is generally similar (in the UK, for instance), but it does differ.

Copyright law is difficult(ish). By that I mean it’s not difficult to understand, but it’s very easy to break, and very bad if you get caught. I’ve spent 14 years with two copyright lawyers as parents (loved every minute of it, in case they read this). I have slightly more than a basic understanding (but only slightly), so of course I’ve taken it upon myself to figure out how to save copyright in the technology world. I don’t really expect it to work.

Copyright started in the Constitution. Article 1, Section 8 says:

The Congress shall have power…To promote the progress of science and useful arts, by securing for limited time to authors and inventors the exclusive right to their respective writings and discoveries.

It’s not exactly detailed, but it’s pretty clear. Personally, I wish they had further defined “useful” arts, but they probably weren’t thinking about rap at the time. Title 17 of United States Code was created to fulfill that Constitutional right. As it stands today, you own any “work” (sound recording, video, book, essay, etc.) that you create. You don’t even have to put a copyright notice on it to make it official. You can register a copyright if you want more protection for a modest price. (At the time, by the way, science was considered to be knowledge in general and useful arts are what we would consider a patent).

The difficulty comes with songs and movies. Artists create them and people decide they don’t want to pay 99 cents for the song, so they pirate it in any number of different ways. It’s basically the same with movies. I have very little patience for this type of crime. In fact, I have no patience. It is stealing and it is illegal. It is stealing just as much as people who steal TVs or cars. While the price of the individual download is not worth as much as a nice plasma, the sheer magnitude of the downloads cuts profits for artists as well as studios by quite a bit.

But that’s boring piracy. It’s clearly illegal and while those who only download aren’t generally caught (uploaders are the ones the RIAA and MPAA go after) it’s boring because there’s no gray area or middle ground. There are other scenarios that are more interesting.

So let’s suppose that I love The West Wing (which has the rare quality of also being true) and I have the whole season on DVD (also true). I can’t take my laptop everywhere, so I want to put it on my iPhone, my computer, back it up to an external hard drive, and I’d love to send season two, episode twenty-two to my friend because it’s just that good. I figure that I own the DVDs, so I download Handbrake and rip the whole series to my computer. (Let’s pretend my computer has enough free space for that). And then I realize that 17 U.S.C. 1201 says:

No person shall circumvent a technological measure that effectively controls access to a work protected under this title…

So it turns out that I should have paid closer attention to the little FBI warning that the beginning of the episode. I usually wind up being the copyright police at my school and everyone asks me why they can’t copy movies that they own to other devices. The answer is that the license granted in buying the DVDs is only for a DVD player and it is illegal to break technological protection. If it wasn’t, then that would completely do away with a rental model for iTunes and low prices for TV shows, songs, and movies. Even if technological protection didn’t exist, users would still have to contend with copyright law.

And it’s even harder for the independent podcaster who wants to play a clip of Yael Naïm’s “New Soul” on their podcast. They’re probably hoping it’s covered by fair use (17 U.S.C. 107), but probably not. They’re likely infringing on Ms. Naïm’s copyright. If her record label finds out, your friendly neighborhood podcaster would probably be better off playing the Law & Order theme song.

The thing that all of these scenarios have in common is that they hurt the artist and they hurt the recording studio even more. It is simply too easy to upload something and have it downloaded 100,000 times before the end of the hour. That’s 100,000 profitable transactions lost.

So this is what needs to happen. People need to stop pirating and they’re not going to do it unless there’s another easy way to do what they can do with piracy. Ultimately, it’s not going to be free, so there will always be some infringement, but we can reduce the number of people pirating works by changing the way people watch and listen things. The old music industry model is pretty much dead. With the advent of technology, artists don’t have to go through big recording studios who take most of their profit, they can go through smaller studios and even do it on their own because distribution is easier. The movie industry is trying to adapt by working on ad supported models such as Hulu and rental models through services like iTunes. That makes it quick and easy for people to watch things without having to pay a whole ton of money.

So that (sort of) solves the problem of The West Wing fan who wants to watch it on their iPod. They can just download one of the first four seasons from iTunes. It doesn’t solve the problem of the avid podcaster who wants to play “New Soul” shortly before the Law & Order theme song. The answer to that is making licensing easier. Right now licensing is difficult. You have to ask the right holder and pay them a fee that can be quite hefty. For podcasters, they either infringe the copyright just because it’s easier or they don’t use the song at all, depriving the studios and artists of good money.

It needs to be as easy as going online, finding the work you want to license, paying a set fee based on what you’re trying to use it for, downloading it, and using it. I finally found out about the PodSafe Music Network which is trying to do just that. You get the song and then you can use it in a podcast. The only other thing PodSafe needs is more participation. And I think there are only two obstacles to that happening.

The first one is easy. Every recording studio would want to have their own licensing service instead of outsourcing it to a centralized licensor. It doesn’t make it impossible for people who want to license the work, it just requires a bit more research.

The second is a little more complicated. Right holders want to control what their works are being used for. Yael Naïm and her record label don’t want “New Soul” showing up as background music for a porn video (not going to find a link for that one). Having this type of easy licensing makes it impossible to evaluate each individual request so that scenario could come true. So the only other way to make the easy licensing work would be to evaluate each person who wants to license a work, rather than evaluate each licensing request. This would work basically like Google AdSense. A person makes a request to be approved to license works, an employee of the licensing company checks out the podcast (or other type of digital media, I suppose), verifies that it’s not in violation of the licensor’s policies, then approves the person so that they can license whatever they want.

I think that we’re not too far away from that sort of set-up, as the introduction of PodSafe indicates. And the video industry has shown signs that they’re able to adapt quickly enough so they won’t be in the same situation as the music industry in ten years.

In the meantime, I think we’re all watching the slow demise of recording studios and the dawning of a new age where artists and writers don’t have to go through studios because we have the technology to cut out the need for a middle man. There may be a day when I can play whatever I want on View from a Farley!