In 1998 I gave a talk at DefCon 6 titled “Copyright vs. Free Speech,” the gist of which was that in order to protect the profits of the publishing industry in the face of technology which obsoleted centralized publishing, publishers had begun to buy from congress increasingly draconian legislation to protect their obsolete business model.
They have been patient and effective, implementing a long-term program of carefully designed disinformation to turn an effective method of promoting the progress of science and the useful arts into a weapon to aid extorting profit from the people’s commons.
Due to the success of their propaganda campaigns, it bears repeating that authors have no right to profit from their works. They do not “own” ideas. They, nor their assignees, have any right to control the reproduction, reuse, or dissemination of ideas and inventions once they’ve chosen to make them public. We the people have chosen to gift them with a temporary monopoly on commercial exploitation of their inventions as a mechanism the founding fathers thought would serve to maximize the availability of freely usable ideas in the public domain; that is, to promote the progress of science and the useful arts. A premise they have utterly perverted.
Any law which expands copyright steals from the public domain and gives exclusive right to commercial exploitation to the beneficiary. The copyright industry has been incredibly successful in bribing politicians into allowing them to graze their cattle in our public parks without any additional compensation to the public. Indeed, new copyright laws don’t even pay lip service to the public good and focus entirely on maximizing profits at the expense of the public domain. These legislative disasters are prima facia unconstitutional.
A new agreement, endorsed by the White House, effectively implements the dystopian warnings I gave in my 1998 talk: ISPs will begin to directly enforce copyright, acting as the muscle for the new business model the copyright industry has turned to now that publishing is obsolete: direct shakedowns.
It was clear in 1998 that if our economy was turning to the then touted model of an “information economy” (and not making things) it would become necessary to police the flow of information to block the unauthorized exchanges of ideas lest someone freely share an idea for which a private entity has been granted a monopoly and undermine the profitability of the imaginary economy.
Aside from the loss of privacy and retarding progress and the useful arts, a problematic consequence of the monitoring necessary to ensure the exchange of ideas is taxed is that citizens must always be monitored, and now directly and intrusively by their ISPs. Monitoring has a chilling effect on free speech as people are naturally disinclined to openly dissent, to only speak privately of ideas that challenge entrenched interests. Intrusive monitoring is an effective tool of totalitarianism by destroying the privacy in which informed dissent grows strong enough to overcome the entrenched.
There is no practical way to implement an effective monopoly enforcement scheme at the ISP level without active monitoring of every digital interaction, from every website visited to every message exchanged, lest one hide a privatized bit. ISP monitoring undermines the foundations of democracy, at least the significant portion which has migrated to digital forums. This is a massive implementation of the same monitoring technology and concepts used in Syria and China to control dissidents, applied here merely to further enrich a few petty plutocrats.
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.”
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)
I wrote my representatives:
The “Combating Online Infringement and Counterfeits Act” introduced by Senators Leahy and Hatch to shut down internet sites accused of violating copyright is fundamentally unacceptable and must be blocked. It is predicated on three failed precepts.
The law would provide for expedited prior restraint of free speech based on a claim of infringement. This extends the already over-broad powers granted by the DMCA, which has been used to silence political opposition (e.g. John McCain’s DMCA takedown of a critical video on YouTube) and shut down legitimate criticism of corporate and financial interests. This bill will further erode free speech in America and thus further delegitimize democracy itself.
The bill provides for in rem actions against a web site. In rem actions have become one of the most popular mechanisms which police forces have used to enrich themselves by taking legal action against private property (e.g. USA v. $124,700 (2006)). This has lead to massive corruption and even the murder of innocent people (e.g. Donald P. Scott 1992). In rem cases should be limited to acceptable legal situations where the owner cannot be identified, not as a method of prior restraint or as an extrajudicial shortcut that effectively extorts compliance from the target by creating an excessive cost barrier to seeking real justice.
The bill promotes the fiction that copyright law is a property law. It is not. Limited monopolies on the fruits of inventions are offered to inventors to promote the progress of science and the useful arts. These monopolies are in the form of copyrights and patents. There is no constitutional basis for creating laws to protect the privilege of copyright beyond what can be proven to promote the progress of science and the useful arts. It is an offense to democracy to privilege profits over basic civil rights. American society would not suffer meaningfully without the copyright industry, but American democracy is meaningless without free speech. Unfortunately, the copyright industry leverages profits into campaign contributions and lobbyists while free speech is, by its nature, free and thus profitless. Free speech can only be defended from profiteers by patriots.
This bill must be blocked. Please stand up for democracy.
ACTA is apparently going into force this month, implementing still secret rules that will make everyone with an internet connection an international criminal in order to protect people with obsolete business models. Since the cost and value of publication, editorial review, and syndication have dropped to near zero thanks to the invention of broad direct distribution, the “recording” industry is obsolete. Why do we need an industry to make records when nobody buys records any more? The industry has changed business plans to extortion.
But the recording industry has historically made a lot of money and people with money hate giving it up and won’t do so without a fight. If the population won’t buy the recording industry’s products any more, choosing instead to shoulder the incremental cost of self-publication in a collaborative model, then the recording industry, naturally, turns to increasingly draconian efforts to preserve their revenue stream. It is far more cost-effective to co-opt the government and exploit public-funded investigatory and prosecutorial resources than to, say, pay private security to break into people’s houses and businesses: as a bonus working though the courts they can seize children’s college funds: keeping kids out of school means they won’t grow up to found competing industries. If there’s nobody left capable of innovating, there’s no point in the government enforcing that obsolete constitutional thing about “promoting the progress of science and the useful arts.”
Peer-to-peer communications and especially self-publication technologies have always been a threat to the copyright industry. The DMCA was a huge victory for a dead industry and helped preserve it well beyond any economic utility at a tremendous cost to innovation and progress. But the copyright industry may still win a losing battle by shifting the cost of prosecuting civil infringement to the public and other industries by creating a new class of crime: not optimizing copyright industry profits.
That’s the way this American experiment is supposed to work. If we’re going to export our sweaty paranoia about piracy and our over-reliance on entertainment as the key to our country’s solvency, we ought to at least counterbalance it with a respect for the underpinnings of our democracy