Saturday, March 31, 2012

Privacy vs Copyright

Dominic from the Copyright Blog offers striking examples of how copyright and privacy are similar. On the surface, his quotations missing the word "privacy" can very much be used in the context of both pro-privacy and pro-copyright arguments. He uses this to justify the fact that if you support privacy, it really isn't much a stretch to support copyright. However, I can not ignore that the primary justification he provides for copyright, namely "it advances our culture and our knowledge, it inspires others to create more things, it moves us forward as well as entertaining and delighting people", does not make any sense for privacy rights.

I see similarity with arguments for protecting "intellectual property" without taking into account the differences in what constitutes intellectual property. The rules and philosophy between copyright, patents and trademarks are quite different.

And if you scratch past the surface, privacy rights and copyright are quite different.

Privacy is fundamentally a system to protect you from others who may find your private dealings objectionable. Even if you are perfect, someone out there will want to put you in jail, embarrass you, or threaten you if they figure out enough information about you. This could be copyright enforcers, it could be the DEA, it could be anti-abortion activists. Privacy is a protection of the individual against any kind of (state-sponsored or not) malicious harm to them. It's a check and balance against coercive power.

Copyright does not have any of these privacy attributes. It protects published work which are intended to be in the public sphere. Copyright serves as a profit incentive for publishing work to a public sphere, the goal of which is to generate revenue. This is by selling as much copies of that work as possible, with as much possible cost and government-endorsed scarcity as the market will allow. Copyright may look like privacy at a shallow level, because it's enforcement is to make information scarce or unavailable.

But the purpose behind copyright is different. The purpose of copyright it is not to make information scarce or unavailable, quite the contrary. As Dominic rightfully points out, the theory behind copyright it to use the economic powers scarcity affords to make the continued development of artistic and useful works more economically feasible, to allow new and more diverse creative works to be made available to the public. This is fundamentally different from the idea of privacy!

In fact, they are so different that privacy and copyright are diametrically opposed to one another. In the world of the information age, you have to pick between privacy or copyright. You can not have proper enforcement of both.

The problem with copyright infringement is that copying is typically done in private. Nobody wants to "publish" their legal transgressions, so copyright infringement is one of the most private of acts.

So how are you suppose to even discover copyright infringement? Simply said, you must invade everyone's privacy on a massive scale. If you want to enforce copyright, you have to gain knowledge of people's private dealings. Yes, your Internet usage, your e-mails, your file and program usage behavior on your personal computer are all things that can be used to discover copyright infringement. The problem is, they are not things you have "published" for the world to see. Allowing companies the ability to access, store and data mine this information for various purposes is an invasion of privacy.

But copyright enforcers want this information regardless. Of course you can't not opt-in or opt-out otherwise all the filesharers would opt-out from being monitored. So they want involuntary access to your private information, the purpose thereof so they can punish you for any legal transgressions they find.

To be fair technology companies on the free culture side of things, like Google, want this information too. However Google wants it for different less malicious reasons. In addition, Google doesn't need to personally identify you the way copyright holders or their enforcement apparatuses need to.

So in conclusion, copyright and privacy can not really coexist anymore. Comparisons between copyright and privacy are not so simple, and there needs to be a focus on the differences between the philosophies of privacy and copyright to understand how one can be opposed to the idea of copyright but for the idea of privacy. In fact, you can only really be for one or the other.

Tuesday, March 6, 2012

Fixing The Content Industry: Legalizing And Profiting From Filesharing

A law should be created that allows for file sharing sites (eg: torrent trackers, cyberlockers) to acquire a license that gives itself and its users some limited degree of copyright immunity.

The licensed filesharing service can permit filesharing from individuals who have "copyright immunity". Obtaining copyright immunity involves payment of a standard monthly fee (which can be paid anonymously) to a central authority. This central authority would operate a federated OpenID system filesharing websites could subscribe for verification of the user's status. We can argue about how the monthly fee would work (what would it be, would it be the same for everyone) but that's a separate concern. The only thing I feel is important is it should be high enough that it generates useful revenue for content authors, but low enough that it is affordable for almost everyone (tiered pricing based on ability to pay may be one possibility).

Implications of "Copyright Immunity":
  • No one possessing copyright immunity can be held liable for copyright infringement on works obtained from licensed filesharing services, where the intended use of the copyrighted work is non-commercial. This is regardless of the copyright status of the work shared, or the nature of the work.
  • Commercial use is permitted in case of individual commercial proprietorship. This is because too authoritarian to audit anyway. The exception is in the case where it can be proven that the individual proprietor largely does his commercial activity for one entity (ie. as a de-facto employee).
  • Derivative works (remixing) are explicitly permitted, even for fully commercial purposes. This is subject to two conditions:
    • The  derivative work is ONLY shared on licensed file sharing sites. 
    • A derivative work MUST explicitly give credit to the originator of the work in a way that is easily attributable to the originator by software (I explain why later).

The files shared on these sites could be "claimed" by a copyright holder (although NOT removed!) it would than go into a system which a third party anonymously audits how many downloads this file has, and using a formula can disperse proceeds originating from the monthly fee to the copyright holders. Derivative works will be legally permitted using a system that rewards both the originator (as listed in the remix's metadata) and the derivative.

The formula is largely auxiliary to the main point but here are some properties I'd like it to have:
  • Publicly known. IE: Not like Spotify.
  • Balanced in a way that encourages a middle class. Here is a specific idea on how to accomplish that: 
    • Individual proprietors are scored based on the popularity of their each of their works relative to similar works in the same field, summed. This score is used to place the individual proprietor along a Bell-curve scale which determines their final salary. To allow for financial stability, the score is a weighted-sum including all past scores from the last 20 years (which the further away it is from the present, the less of a component it is in the score). Even if their work suddenly becomes so last year, their payment will not decline by a massive amount. The age of the author may also have some effect on how the weighted-sum works (it can start to smooth out more), to allow for something like a retirement pension.
    • When involving corporations, they can be paid in proportion using a similar philosophy to above, but paid multiplicatively to the number of employees they have. Hey, it's also encouragement for companies to retain (hopefully good) talent!

This work takes part in the Future of Copyright Contest

The Decline of the Value in Human Endeavour and its Implications Under the Current Economic Systems

The information age, the progression of automation, globalisation and other factors have fundamentally changed societies class structure and has stratified wealth. The reason is the value of human labor itself is in a decline, especially in career endeavours that can either be easily outsourced or made redundant or difficult to maintain by machines.

The political system in place does not handle this situation very well. Layoffs for instance, are not always the product of a failed enterprise. Companies that have record profits have laid off many of their employees. This is simply because their employees are often not needed, having been replaced by more efficient business processes. This is increasing their profit while increasing the general state of unemployment. This will only continue as new software and technology makes business processes that involved lots of manual human labor easier.

The problem is in the most of the world there is no financial net. The terminology "making a living" is not metaphorical, it is literal. To survive in any sense of dignity in this age, a revenue stream is required. People have bills to pay and these bills are often high, and the consequences are huge if you do not pay them. You could lose your home and all your possessions, basically going from middle class to extreme poverty simply by being unemployed for an excessive period of time. This is happening today. All while people who are in close proximity to the machines of tomorrow get wealthier. There is nothing that I see that is reversing this trend, it seems like it has the potential to get worse.

Some people who have identified this troubling trend have decided that the problem is the machines themselves. But that's not the problem. Technology has the power to literally make the term "making a living" a thing of the past. How great would a world be where people can spend more time with their family? Or try for more lofty pursuits? This is the power of technological advancement. We can make everyone's lives easier and happier. But we must model our society in a way that respects the interests of the greater population, and that is not what is happening!

This is not an easy problem to solve and I don't have all the answers. It's something I am still learning more about. Future blog posts will try to provide more insight on the problem, and hopefully possible solutions.

Thursday, March 1, 2012

You Can't Compromise With Copyright

Mike Misnick of Techdirt fame recently wrote an article about the impracticability of balancing copyright law. It's something I totally agree with. No matter how you change copyright law (increase/decrease it's duration, increase fair use, etc.) it is not workable on a free and open Internet. This is because at the most fundamental level, the Internet has made the access to information post-scarce. On the other hand, copyright is an attempt to enforce artificial scarcity. Scarcity which looks increasingly artificial as technology makes copying ever more easier. These are fundamentally conflicting things. And because of how easy it is to copy things these days, enforcing copyright only works through widespread monitoring of people's private dealings.

Here is a comment I made on that post:

Technology has created a situation where the the sum of human knowledge and culture can be made available to anyone in the world. It's like giving everyone in the world access to a more than Library of Congress worth of knowledge and culture. You can hold and access huge body of knowledge and culture in using very small devices that you can hold in your pocket.

This is something that even if you were the richest man in the world 20 years ago, it wasn't possible. But today it is possible even for the poorest people in the world. This information age is a huge step forward for humanity.

We can provide this today. The technology exists. The only thing that stops this from happening is a law that was conceived when the printing press was the most efficient method of copying. This law is copyright law.

There is no comprising with copyright law. It is fundamentally incompatible with this vision.