The Looming Battle Over Licensing

- - The Future

I’ve noticed a few stories and blog posts lately where people suddenly realize they don’t own some of the things they buy (latest one here). Licensing is nothing new to photographers, but most people assume they own the books, movies and music they bought . When they suddenly discover that they cannot freely copy and distribute it (even among devices they own), that they only bought a license, there’s usually a WTF moment. It’s really easy to understand why this licensing deal and in general, an understanding of copyright law was never properly explained to the masses. Copying and distributing books, movies and music was really difficult and expensive so there was no need to get into the details of it. Now that it’s easy to copy and distribute work, everyone is paying for the lack of attention to the subject.

So, what can those in the licensing camp do about this? Do we dig in and force consumers to understand how licensing works and let them know it’s not going away? Or do you find a business model that works without licensing, where everything is sold once?

If you agree that licensing needs to stick around for the business of photography to continue then you know that the only way to protect licenses is to plant software in devices that prevents you from doing certain things. Anyone who’s used itunes or kindle books knows how this works. You try and do something with a book, movie or song you purchased and your computer tells you it’s not allowed.

Cory Doctorow and¬†outspoken critic on licensing has argued vehemently against the software that controls the license: DRM. In a recent piece titled “The Coming War on General Purpose Computing” he takes this anti licensing and anti DRM thinking one step further by arguing that eventually everything will be controlled by software and that big brother will be upon us before we know it if we don’t address the issue of hidden software on our devices. “I’m sorry Dave, I’m afraid I can’t do that” is not some science fiction fantasy, it already exists. You’ll only freak out when you can’t open your fridge because Bloomberg put you on a diet.

If photographers agree that protecting licensing with software is a good thing then what about when the software is spying on you? I’ve heard from quite a few people that turning in your RAW files is becoming a common practice in some genre’s of photography. Companies that trade in the veracity of photographs need to know what was done to the image in post plus where and when it was taken. I can easily see a software solution to this problem where GPS, timestamps and changes to the image are all recorded. Software spying might not seems so great when that happens.

There are no easy answers to this problem but Cory Doctorow’s piece is worth reading and considering the implications to the business of photography, because there will be a battle over DRM and software used to spy on you. And, that translates to a battle over licensing.

There Are 6 Comments On This Article.

  1. Expansion of data in RAW files would push camera manufacturers to change the structure of RAW files. Doing that forces changes on readability of RAW files, and would likely push multiple standards upon our industry. Adobe may be able to gain some ground with DNG amongst some companies, but I think Canon and Nikon will not move in that direction. Just as with regular burglary and theft, a determined individual can break DRM, or bypass software safeguards.

    Regarding monitoring fears, I recall a recent quote by Oracle CEO Larry Ellison: “The big thing was the Internet. Right now, our daily lives are on the Internet or the social network. For a very long time, we’ve known how much you earn, what clothes you recently bought, because we had your credit records. That was the single most important database in the world. It tracked every consumer and everything they were doing. Now we can track not only what you’re buying, but what you’re saying about them. We know who your friends are, and what you’re saying to your friends.”
    “We suddenly have consumers instrumented, because they are willing to share their information. Consumers just tell us everything about themselves. Every time you make a comment or tweet, all of this stuff, we have all this detail of people’s lives online, which allows us to market things and sell things and service the consumers in a more insightful way.”

  2. The issue of ownership vs. licensing is not academic, though it is abstruse. In point of fact the Supreme Court will be addressing exactly this question during the current term. The idea that you don’t own a work of art which you have purchased, only a license to display and use it specified ways, will not sit well with the public. But that is the foundation of copyright.

    If the Court should rule that if you buy an iTunes song, you own it and that means you may do anything you like with it, musicians, writers, artists and photographers may as well go back to begging for patronage, because there will be no way to limit circulation if even a single copy is purchased.

    The alternative might be to jack the purchase price of a song or photo into the thousands, leaving it to the original purchaser to recoup his/her costs by resale. But of course, that won’t work either.

    Should the Court rule that licensing is the way to go, enforcement becomes a nightmare — in line with both your article and Mr. Moat’s comment above.

    I hope that our various professional organizations are aware of this imminent disaster and are already filing amicus curia briefs with the Court — but somehow I doubt it.

    Given the make-up of the current court, I shudder to think what they might decide.

  3. The confusion about copyright vs. ownership is deep and not limited to I.P.. It reflects a basic misunderstanding of the concept of property. C.B. MacPherson, in ‘Property, Mainstream and Critical Positions’, argues:

    “One obvious difficulty is that the current common usage of the word ‘property’ is at variance with the meaning which property has in all legal systems and in all serious treatments of the subject by philosophers, jurists, and political and social theorists. In current common usage, property is things; in law and in the writers, property is not things but rights, rights in or to things. We shall see that the current common usage is the product of some particular historical circumstances, and that it is already growing obsolete”

    Copyright fits perfectly into a system that views property as a set of enforceable rights to things rather than the things themselves. What this means to us in practical terms? No Idea. Just thought it was interesting

    Also, I’m not sure if or how you could apply this to photography, but Johanna Blakley makes an interesting case that fashion does just fine without copyright in this TED talk:
    http://www.ted.com/talks/johanna_blakley_lessons_from_fashion_s_free_culture.html

  4. This doesn’t mention the other side of things, though; the fact that many copyright owners are taking advantage of the change from physical copies to digital copies to change the standard licensing massively in their favor. For example, deeming licenses to be non-transferable, non-resell-able, non-inheritable.