Wednesday, November 21, 2012

It's Not About Copyright; It's About Copyright Enforcement

The arguments from pro-copyright people often revolve around copyright as a concept:
  • An author should be able to make money from their work!
  • Copyright enables a market for works, and this encourages the creation of new works! (M: This is actually basically the argument for copyright that is recorded in the Constitution.)
  • Copyright is property, and a property rights are essential to a modern society!
These are typical arguments I've seen and I think most if not all pro-copyright people agree with.  The strange thing, as someone that is skeptical of copyright, I agree with them too. They are sound arguments. Someone who makes something that is useful in some way, why shouldn't they be rewarded for their work? And doesn't rewards encourage the creation of useful works? These statements are quite sensible.

So what is the problem with copyright? The problem with copyright is when you scratch beyond the surface. The surface beyond these cheerful agreeable slogans is called copyright enforcement. Lets add copyright enforcement to the mix.
  • An author should be able to make money from their work. To enforce this, I should be able to spy on everyone's private communications!
  • Copyright enables a market for works, and this encourages the creation of new works! To enforce this, we should scour the web and search for things that potentially violate copyright and shut them down without even a court order!
  • Copyright is property, and a property rights are essential to a modern society! Therefore, we should sue single mothers and students for millions of dollars when we catch them violating copyright!
Whoa. These statements look a lot similar to the ones above, all I did was add copyright enforcement to the mix. Now these statements I don't agree with, and in fact, just reading them makes me nauseated with disgust.

Some pro-copyright'ers might be like "still looks good to me". Especially the few that supported SOPA/PIPA, Hadopi and thought record companies suing random Americans into life servitude is a noble cause. But once you add copyright enforcement to the mix, naturally the support for copyright starts to fall apart.

But that is real copyright enforcement. It's incredibly ugly, and even the most ardent pro-copyright'ers don't like to talk about it very much. You won't see any of this on a pro-copyright blog:
  • If you can't audit people's private communications, you can't know if what they are doing is copyright infringing. Therefore, you can not have a healthy copyright system. France has decided that mass invasion of privacy is an essential element of copyright enforcement - and the USA is following their lead even though this violates the Forth Amendment - by taking this system private via a conspiracy of ISPs and content companies called the "Center for Copyright Information".
  • Due process, proving infringement is difficult and expensive. Therefore content creators have helped pass an oppressive law called the Digital Millennium Copyright Act (DMCA) that allows them to remove content from the web without having to prove that actual infringement occurred. There are many example DMCA gung-ho philosophy to injunctions being used to outright censor speech, even political speech, including the Democratic National Convention's live feed. Other attempted bills such as SOPA/PIPA could have extend this idea to entire websites but were narrowly defeated.
  • Copyright damages that were designed for massive scale. Fines of up to $150,000 per instance of infringement are applied on the average citizen by copyright holders. Copyright holders don't even have to prove that damages occurred under the current law to get these kinds of judgements!

Without copyright enforcement, copyright law is worth less than the paper it is printed on. And the pro-copyright'ers are always hungry for new enforcement, because the crazy amount of leverage in the law that they have today (high statuary damages, injunctions without proof, suspension of privacy rights) is not sufficient against the tide of the information age.

Problem is you can't have real enforcement without violatating basic principles of liberty and privacy that we are accustomed to (feel free to correct me, but I haven't seen it).

So with enforcement, copyright shows it's ugly side. And since copyright and enforcement can not be separated, copyright itself is ugly. Don't support copyright.

1 comment:

  1. I know this as an old post, but I only just discovered it by following a link, so I'm going to comment.

    Your points:

    To enforce this, I should be able to spy on everyone's private communications!

    One, no-one I know is actually arguing for this, and two, as from previous interactions with you, it depends on you expanding the definition of "privacy" out to mean everything anyone does online, which is just ridiculous.

    The internet is a public space — and seriously, anyone who thinks otherwise will, I think, quickly learn the error of their presumptions. I notice you sign yourself "M", suggesting that you are clearly aware of the public nature of the internet and are seeking to preserve your privacy by not linking your real name to your comments. That means this entire argument is disingenuous at best.

    Monitoring what people do in a public space is not invading their privacy, especially not when what's being monitored are commercial transactions.

    To enforce this, we should scour the web and search for things that potentially violate copyright and shut them down without even a court order!

    And when people try to set up legal structures that would deal with web sites distributing pirated product, the tech industry screams loudly, lobbies aggressively and lies through their teeth, saying any such structures would "break the internet" — and I speak as someone who was gullible enough to believe them at the time.

    So, either you think web sites should only be shut down with a court order after due process has been observed, in which case you would support setting up appropriate legal structures so the courts could issue such orders in the right circumstances, or you're just being disingenuous again.

    Therefore, we should sue single mothers and students for millions of dollars when we catch them violating copyright!

    Well, I agree with this one. What we should do is set up a graduated series of warnings followed by an escalating series of fines so only persistent and wilful offenders will actually suffer any financial loss. Oh, wait, that's the same conclusion that everyone else involved in the debate has adopted as well, including those arguing for copyright. So, by resurrecting this old over-reaction, you're just being disingenuous again.

    And you keep telling others that they're stuck in the past.

    You keep trying to pretend that piracy is just some single mothers and students sharing a few favourite songs, rather than acknowledging that it's an industrial level enterprise that is generating millions of dollars in revenue for people who aren't the creators of the material being pirated and who aren't paying the creators of the material being pirated.

    I don't think copyright enforcement requires anywhere near as oppressive a regime as you're postulating. As others have pointed out, piracy flourishes on sites that enable and financially encourage it, but doesn't on sites that don't. This suggests that focusing on websites and those who run them rather than on individual users will quite sufficient to deal with the problem.

    If I'm wrong about that, then I think closing down the big industrial level pirate sites and cyber lockers would be good start and we can deal with whatever comes along after that when it actually arrives and we know what it is and can assess it's effects.

    Until then, all you're offering are apocalyptic fantasies and they're not particularly entertaining apocalyptic fantasies. Just as well that what you write for a living is software.

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