What if we’re doing this copyright thing all wrong?
What if we’re doing this copyright thing all wrong? Well, we obviously are, but what if we acknowledged that fact? What if we acknowledged that copyright as it stands doesn’t make anyone happy or make the world a better place or actually reflect how people really behave? What if we, as New Zealand Judge David Harvey has suggested, throw out the basis and rebuild copyright on something that makes sense?
Law and technology can interact in funny ways. Take the Digital Millennium Copyright Act, which allows for those hosting material on the Internet to avoid liability for copyright infringement if they comply with requests to take down copyrighted material quickly. It motivates companies hosting material, like YouTube or Flickr, to streamline the process. Increasingly, rights holders are automating their side too, potentially leaving two scripts talking to each other to determine the destiny of media. But plenty of requests that come through aren’t valid, or are aimed at legal content. Chillingeffects.org maintains a database of requests, sensible and not, including one from 2012 where HBO attempted to take down access to its own site.
Calea is an 18-year-old wiretapping law that’s meant to give law enforcement access to communications. Of course, in 1994, most of us weren’t on the net yet, and Congress had just discovered that their secretaries were talking into the telegraph machines. Tapping was a simple affair. All the calls came into one centralized point: the telephone company. The FBI could present the telephone company with a warrant and listen in.
Note: This column was originally featured in the April issue of the magazine.
From telling Iran they shouldn’t torture quite so many bloggers to complaining about China hacking Google, America is big on pushing Internet freedom around the world these days. Even before the Arab Revolutions, ensuring Internet freedom was an official foreign policy objective. But you know what would make us more plausible advocates for a free Internet? If we had one.
Note: This column was originally featured in the Holiday 2012 issue of the magazine.
Apparently, I am an Internet child-raping fiend. How else could I be against something called the Protecting Children from Internet Pornographers Act? It's even supported by sheriffs associations and the Department of Justice, among others, and your representative may be voting on it soon (hint, hint).
In their ongoing quest to punch every puppy they can find, rights holders have turned to suing those most rapacious of pirates, professors. Academic publishers are asking a judge in Georgia for an injunction against Georgia State University for a liberal fair-use policy. What these publishers are objecting to is unapproved and unpaid-for book and article excerpts in class materials—essentially quoting and anthologizing. They want everything that can be paid for to be paid for.
Every year in much of the world, a year's worth of human creativity becomes public domain. Not in America, though, where we are in the middle of a 20-year drought of creative freedom, on account of copyright term extensions.
The public domain is that bit of human creativity that everyone and no one owns, creative work not covered by intellectual property law. Works by Shakespeare, Verne, and Dickens, all the books of Project Gutenberg, are free to download, and free to use. The public domain is completely free speech that anyone can listen to, yell at, rework, build upon, sell, or share. It's also one of the reasons we have intellectual property in the first place.
Ah, the humble End User License Agreement. You tear through them, you click “I agree,” but what exactly are you agreeing to? I don’t actually know, because like you, I never read them.
Claiming to read all your software licenses is the reverse of masturbation—90 percent admit they don’t do it, and the other 10 percent are liars. It’s hard to get through a whole day without agreeing to the occasional complex contract, we definitely couldn’t get through the day if we read them.
These days, companies claim to sell us their EULA in lieu of just selling us their software, to give themselves powers over their software the law doesn’t give them. How much power? No one exactly knows. This last-mile legislation by companies has met with mixed response when it goes to court.
I’m going to say something I don’t get to say enough: Copyright can be great. It can provide a living wage, spread knowledge, and even sometimes enhance art. It gives us Open Source, viral art, and countless creative works that would have died in the desk job. Many of the worst uses of copyright are actually misuses, deceptions, and hustles. They often trade on how confusing copyright is, giving too much power to legally worded nonsense meant to squeeze money or restrict use that’s all bark and no legal standing.
There are so many bogus claims out there, high and low. Even the notice on the White House’s Flickr stream says pictures are posted “only for publication by news organizations and/or for personal use printing by the subject(s).... The photograph may not be manipulated in any way....” It’s nice they tell you why they posted it, but they’re not telling you what you’re allowed to do with it. The license link on the same page explains that all intellectual work of the U.S. government is “not subject to copyright in the United States and there are no U.S. copyright restrictions on reproduction, derivative works, distribution, performance, or display of the work.” You’re allowed to put horns on Obama’s picture and march down the street with your derivative work claiming he turns into a lizard at night and eats janitorial staff. You’d only be violating the laws of common sense.
Elinor Ostrom recently became the first woman to win the prestigious “fake” Nobel prize for Economics, for her research on how self-governing groups successfully share resources. She spent years refuting the idea of the Tragedy of the Commons—a thought experiment dating from 1968 that basically said anything shared would get spoiled because people would only value something they owned. The man who authored the idea, Garrett Hardin, presumably observed very unruly preschoolers.
Ostrom actually looked at how people share finite resources like forests and grazing land, and found that with the right ground rules people not only did fine, they did better than companies and governments. Yipee for her and all, but why am I telling you about it in a column about digital rights and IP?
Turns out Ostrom laid the groundwork for thinking about the commons, including our very own digital commons. Her work also shows in economically solid terms how and why total monopoly rights, like copyright and patent, might not always be the best for society. Ostrom showed that, when a commons can manage itself, the proximity of the users and the governance, i.e., the two being the same thing, makes the system work more efficiently than either centralized government or strong property rights.