Keep the Pitchforks Sharp

Tuesday, January 24, 2012 

While David Pogue’s opinion piece “Put Down the Pitchforks” makes a valid point about the alliance of varied views on the utility and validity of copyright that have come together to oppose SOPA/PIPA, the differences are more subtle than his language indicates.

Everyone, even those characterized (somewhat fairly) as the “we want our illegal movies” crowd, is horrified that the United States would contemplate outright censorship of the web à la North Korea or Iran, something we actively fight quite vigorously, and with USAID and State Department support, to ensure that dissidents can circumvent similar blocking schemes.

There is no way to fix the language of the bills to rule out those abuses. Universal filling a flagrantly illegal DMCA takedown request with YouTube to censor the MegaUploads advertisement video, the pernicious use of malicious prosecution by the RIAA, and the recent MPAA/Chris Dodd bribery flap all demonstrate incontrovertibly how the entertainment industry has been utterly shameless to date and there is no basis for the belief that they would voluntarily refrain from an aggressive and likely illegal extension of whatever new powers they are offered. If anything, we need stronger legislation to discourage the current abuse of litigation and take-down powers.

Thus everyone, including those that believe that copyright needs to be extended (again, further), recognizes that the premise of SOPA/PIPA—that parts of the international internet have to be blocked in the US—are fundamentally flawed and cannot be repaired.

The differentiation between the “ignorant mechanism” and “ignorant goal” camps is, however, unfairly characterized by Pogue when he draws an analogy to shoplifting. Copyright is not a property right—it is a privilege that is granted by we the people, an exchange where we the people voluntarily relinquish our right to copy, and we gift the inventor with a temporary monopoly as an incentive to promote the progress of science and the useful arts.

It is not “stealing” to copy a movie; it may be illegal, but it is not stealing. There is no legal basis to consider such an act theft—not in natural law, not in “denial of utility.”

“If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.”

– Thomas Jefferson, 1813

(A letter that should be read in its entirety by anyone electing to weigh in on copyright.)

The basis and purpose of copyright is codified in the constitution: it is an agreement between we the people and inventors to promote the progress of science and the useful arts, it is neither a property right nor a human right. If any copyright legislation fails to advance the cause of promoting the progress of science and the useful arts it is simply prima facia unconstitutional. And not a single extension of copyright law, back to and including the Sony Bono Copyright Extension Act, has even bothered to pay lip service to the obligation to promote the progress of science and the useful arts.

The problem is that these bills retard progress by hampering important and economically relevant industries for economically irrelevant ones (regardless of how nostalgic they might be). It is fair, still, to frame copyright protections and copyright modifications with respect to the expected actual net contribution to the progress of science and the useful arts, as the constitution requires. It is unlikely that such an analysis would favor complete abolition of copyright but it is clear that only a mechanism closer to the patent model makes sense: a very limited and carefully regulated temporary monopoly granted to inventors and creators in return for fully contributing their efforts to the public domain promptly thereafter.

(Edited and enhanced by Carolyn Anhalt)

Posted at 14:42:48 UTC
Comments

One Response

  1. David Gessel says:

    My own comment stolen from facebook and reposted here, on my hardware, so I can control it.

    The register article is frustratingly ignorant. The premise is that creators have rights. They do not – well, they have the right to keep silent and thus keep their creations to themselves. Once they share their creations they have no right to control what we who have received them choose to do with what we have learned.

    Jefferson was perfectly clear about this and so too has society been until this absurd notion that one could “own” an idea was fabricated as a mechanism to enforce profitability.

    I own my mind and all my synapses and my hard disks and the magnetic orientation of every atom on them and every electron or absence in every cell of memory and nobody has a right to tell me what patterns I choose to arrange them in.

    Yet we, as society, may choose to voluntarily grant a gift of a temporary monopoly on the financial proceeds generated by a novel invention or idea if we decide that so doing will promote the progress of science and the useful arts. To be clear, we have no obligation to do so: “this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.”

    If that sounds radical, it is the words of the Nation’s first patent examiner.

    SOPA and it’s ilk are the disastrous and predictable consequence of the obsolescence of artifacts (books, acetate) as the underlying basis for the dissemination of ideas, and the rise of consumer-owned publication tools, search engines and self-publishing as a viable mechanism of content discovery. Because publishers in the physical and editorial sense are obsolete and irrelevant, they predictably struggle to remain profitable through extortion and theft. When publication and dissemination become interpersonal and direct, the only viable mechanism for enforcing toll collection is monitoring of all exchanges of ideas – a total surveillance society.

    Facile arguments that China has won the production of material goods and so the economy is dependent on increasing the profitability of so-called intellectual property are fundamentally flawed. First we do not need to cede manufacturing competence, second Chinese urban wages are starting to look pretty good these days (to workers). You may think economic relevance is “garbage” but you seem to be arguing that you should be paid. If we eliminated the copyright industry the impact would be trivial. If we eliminate the technology industry, we become a failed state and a lot of people starve.

    Jaron, makes a different mistake, the same one Simpson Garfinkle made in his tech review piece: proposing futile legislative fixes to somehow make data personally ownable in the cloud, rather than accepting the cloud for what it is: ephemeral and public (just like real clouds). Once you put your data on facebook’s servers, they own it: lock stock and barrel. You can pretend otherwise, but legally now and forever in practice, he who owns the hardware, owns the data.

    Any attempt to legislate a different reality fails in the same way the copyright industry fails. As a thought experiment, every time you hear or see a copyrighted work, you create a copy in your head, manifest in physical synaptic organization. If one can “own” an idea, how does one exercise one’s right to retrieve that property from another person’s head? With a gun? Once again, Jefferson had it right:

    “If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.”

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