Eyes on your copyrighted prize

Don't even think about trying to find a copy of an award-winning civil rights documentary online. The copyright cops will be waiting.

Published January 5, 2005 8:30PM (EST)

It's a new year, but when the topic is copyright violation, the song (and TV show, and movie) remains the same.

On Monday, the digital tracking and security firm BayTSP announced that it had developed technology that allows it to identify the first person who posts a pirated software file to a file-sharing system such as eDonkey or BitTorrent. CEO Mark Ishikawa says BayTSP has developed a "super-spider" -- a piece of software that crawls the Net watching for transgressors. Pirates, says Ishikawa, are finally about to be put on the defensive, because, according to him, true anonymity is not possible on the Internet. The super-spider will find you!

Just before Christmas, an article published on Wired News detailed the sad story of "Eyes on the Prize," an award-winning documentary series about the civil rights movement in the United States. It seems that it is currently illegal to broadcast or sell new copies of the series because rights to the archival footage included in the documentary have expired. (Typically documentary filmmakers operate on very tight budgets and can buy such rights only for short periods.)

The two news items offer a nice pair of brackets in which to frame the current state of copyright affairs. On the one hand, the public is denied the opportunity to view one of the most compelling histories of modern American life produced in the last 30 years because copyright restrictions make it financially unfeasible to broadcast it. On the other hand, actual copyright violation continues unabated, giving rise to an entire market niche devoted to the task of stamping it out. Is there any way to look at this situation in which it is not a complete mess?

The tragedy that a socially enriching documentary series like "Eyes on the Prize" might fall victim to a copyright snafu seems like the kind of thing that could be addressed by selective tweaking of copyright laws. Perhaps a waiver for materials deemed "educational" or a weakening of restrictions on the protections granted to archival footage. When do the benefits to society from increased access to information outweigh the financial interests of those who own the copyrights? In an ideal world, this is the kind of question that a democratic society could debate and answer to its own satisfaction.

But we do not live in an ideal world. We live in a world where lobbyists for entertainment corporations routinely get the laws rewritten to serve their own profit-seeking special interests, and where trend lines reveal that copyright protections are only increased, never weakened.

If entertainment companies had their way, we would have to pay every time we listen to a song or watch a TV show or movie. Record companies hated home taping of albums, and movie studios abhorred the VCR, but there wasn't a whole lot they could do to stop people from making their own copies, much as they tried. They plan to do better in the future, and with a quiescent Congress and weak-kneed consumer electronic manufacturers (see Cory Doctorow's recent blog post about the state of digital rights management affairs), they may well succeed.

Or they may fail, miserably. Many critics of the current state of copyright are convinced that digital rights management will never work perfectly, that someone will always figure out a way to crack the copy protections. Likewise, despite Ishikawa's protests to the contrary, some people will always be able to find a way to upload software to the Net without being caught.

But some will get caught, and if not because of BayTSP's "super-spider," then because of someone else's. Ishikawa says BayTSP's new technology is currently being used on behalf of unnamed clients (read: the Motion Picture Association of America) and that it has already identified some "pirates." No one has yet been officially charged with copyright mayhem based on the new technology, but it is under consideration, says Ishikawa. The tide of copyright violation, he says, is about to turn, as new surveillance technologies win back the ground lost to the Internet's amazing powers of distribution.

BitTorrent users are about to start feeling the heat, just as Kazaa and Napster users did over the last couple of years. Clearly, BitTorrent has come of age -- there's probably no greater validation of the success of a file-sharing protocol than when the tracking industry starts to focus on it. Subpoenas are no doubt on their way, and financial penalties will follow close behind.

But will they change anything? It is one of the defining paradoxes of the Internet age that even as, legally speaking, the power of copyright has grown in recent decades, pragmatically speaking it has only declined. Entertainment business representatives tend to point to this fact as the very reason why new laws are necessary, while ignoring the fact that much of what they are asking for includes rights that historically have never been granted and that will restrict consumer freedom more than ever.

Did the lawsuits against mp3 file-sharers result in a decrease in music file-sharing, or was it the arrival of services such as iTunes that changed the landscape? My own belief is that if the record companies could have continued to force us to buy $18 CDs at the local megastore instead of paying 99 cents for the single that we really wanted, they would have done so. It took the reality of massive music piracy to make them realize otherwise.

I don't feel a need to defend the people who are uploading hot-from-the-projectionist's-booth copies of "Alien vs. Predator" (the No. 1 pirated movie in November according to BayTSP statistics). But I do feel sympathetic to those whose only desire is to find a copy of the episode of "Alias" that they missed because their TiVo crashed or there was a power outage. And it is simply unconscionable that works of great social and historical merit are falling victim to ever more onerous copyright restrictions. Where is the iTunes store for breakthrough documentaries?

In a perfectly working capitalist economy, every social problem would be solved by treating it as a market opportunity. In theory, we should be able to see this most effectively in the technology sector. Got spam? Buy a spam filter. Plagued by viruses? Buy a virus-protection system. Pirates ripping off your software? Hire a digital tracking and security firm to hunt them down in the wilds of the Internet.

But what about when the problem is lack of access to a documentary like "Eyes on the Prize"? In whose economic interest is it to make important works of art and history more available?

The answer should be obvious. It may not be in our economic interest to do so. But aren't there benefits other than economic to be gained?

By Andrew Leonard

Andrew Leonard is a staff writer at Salon. On Twitter, @koxinga21.

MORE FROM Andrew Leonard

Related Topics ------------------------------------------

Copyright Intellectual Property