The Case for Copyright Reform (6 page)

It is indeed true that there was a sharp drop in the total network
traffic, by about 40 per cent, on the day the Ipred law came into force in
Sweden. IFPI and the other anti-piracy organizations immediately sent out
jubilant press releases saying that the Ipred law really worked. This has been
the line that they have maintained ever since.

But when we look at the graph, we see that six months later, the network
traffic was back to where it used to be. If this was a success for the
sanctions strategy against file sharing, it was a very short-lived one.

And this is how it has been all over the world. Just like IFPI told the
working group in the European Parliament, information to Internet users and
stricter sanctions have so far been unable to stem the tide of illegal file
sharing. But they still hope that more of the same will be effective.

There is nothing to suggest that their hopes have any base in reality.
The “information and enforcement” strategy simply isn’t working, no matter how
much they or anybody else would want it to.

The copyright industry just wants more, more, and more, and it doesn’t
think twice about ruining our hard-won fundamental civil liberties to prop up
their crumbling monopoly and control. When one tough measure doesn’t work
— and they never do — the copyright industry keeps demanding more.

A few centuries ago, the penalty for unauthorized copying was breaking
on the wheel. It is a term most people are not very familiar with these days,
but it was a form of prolonged torturous death penalty where the convict first
had every bone in his body broken, and then was weaved into the spokes of a
wagon wheel and set up on public display. The cause of death was usually
thirst, a couple of days later.

The copy monopoly in those days concerned fabric patterns. It was in
18th century France, prior to the revolution. Some patterns were more popular
than others, and to get some additional revenue to the Crown’s tax coffers, the
King sold a monopoly on these patterns to selected members of the nobility, who
in turn could charge an arm and a leg for them (and did so).

But the peasants and commoners could produce these patterns themselves.
They could produce pirated copies of the fabrics, outside of the nobility’s
monopoly. So the nobility went to the King and demanded that the monopoly they
had bought with good money should be upheld by the King’s force.

The King responded by introducing penalties for pirating these fabrics.
Light punishments at first, then gradually tougher. Towards the end, the
penalty was death by public torture, drawn out over several days. And it wasn’t
just a few poor sods who were made into public examples.

Swedish economist and historian Eli Heckscher writes in his standard
work
Merkantilismen
:

Of course, the attempt to stop a development
supported by a violent fashion trend, carried by the [...] influential female
kin, could impossibly succeed. The policy is considered to have cost 16,000
people their lives, through executions and armed clashes, plus the yet
uncounted who were sentenced to slavery on galleys and other punishments. In
Valence, on one single occasion, 77 people were sentenced to hang, 58 to be
broken on the wheel and 631 to the galleys, one was acquitted, and none were
pardoned. But this was so far from effective, that the use of printed calico
spread through all social groups during this period, in France and elsewhere.

Sixteen thousand people, almost exclusively common folks, died by
execution or in the violent clashes that surrounded the monopoly.

Here’s the fascinating part:

Capital punishment didn’t even make a dent in the pirating of the
fabrics. Despite the fact that most people knew somebody personally who had
been executed by public torture, the copying continued unabated at the same
level.

So the question that needs asking is this:

For how long will the politicians continue to listen to the copyright
industry’s demands for harsher punishments for copying, when we learn from
history that no punishment that mankind is capable of inventing has the ability
to deter people from sharing and copying things they like?

To get the issue of illegal file sharing off the table, we must find
another solution. But that is no problem, because such a solution exists.

Once you accept that copyright must be scaled back, a whole palette of
advantages to that scenario become apparent. Two billion human beings would
have 24/7 access to all of humanity’s collective knowledge and culture. That’s
a much larger leap for civilization than when public libraries arrived in 1850.
No public cost or new tax is involved. All the infrastructure is already in
place. The technology has been developed, and the tools are deployed. All we
have to do is lift the ban on using them.

File Sharing And Fundamental Rights –
The Bottom Line

The relationship between file sharing and fundamental rights is very
simple:

•
File sharing is here to stay.
No matter what the Pirate Party
or anybody else will or won’t do, it is not going to change this fact. In the
long run, it will become impossible to charge money for just digital copies.
This is a piece of technological history, and there is nothing more to discuss.

•
So why bother?
The copyright industry will not be able to stop
file sharing. The file sharers will find ways of protecting themselves through
anonymization, encryption, etc, as needed. No problems for them. But the
copyright industry will try to set examples by punishing random individuals in
a hard and disproportionate way.

This is not acceptable. An even bigger problem is the general
surveillance of everybody’s private communication, and the censorship and
blocking systems that the copyright industry is proposing. For this reason, we
must take the political fight to align copyright legislation with reality.

This is really all there is to it. The only way to even try to reduce
file sharing is to introduce mass surveillance of all Internet users. Even this
is not very effective, as experiences from the last decade have shown. But if
you want to fight file sharing, mass surveillance is the only way. The
copyright industry knows this.

So, even those who do think that file sharing is harmful to society and
should be eradicated, have to ask the question if they are prepared to accept
the surveillance society to achieve this. Because once the surveillance systems
have been installed, they can be used for any purpose that the ones in charge
of them see fit.

You may well feel that you have “nothing to hide” right now when it
comes to file sharing, if you are not doing it. But can you be certain that you
will always have “nothing to hide” when it comes to expressing views that
future governments may not like? How do you know that you would want to be
unquestioningly loyal to the government the next time it slips into
McCarthyism, or worse, and starts listing and blacklisting people with certain
political sympathies?

If you build a system for mass surveillance, there will be a system for
mass surveillance ready the day someone wants to use it for other purposes.
This is the bottom line in the file sharing debate.

#

The Copyright Monopoly Is A Limitation Of Property Rights The concept of
property is older than history, probably as old as mankind itself.

But the copyright monopoly is not a property right. It is a limitation
of property rights. Copyright is a government-sanctioned private monopoly that
limits what people may do with things they have legitimately bought.

All too often, we hear the copyright lobby talk about theft, about
property, about how they are robbed of something when someone makes a copy.
This is, well, factually incorrect. It is a use of words that are carefully
chosen to communicate that the copyright monopoly is property, or at the very
least comparable to property rights.

This is only rhetoric from the copyright lobby in an attempt to justify
the monopoly as righteous: to associate “the copyright monopoly” with a
positive word such as “property”. However, when we look at the monopoly in reality,
it is a limitation of property rights.

Let’s compare two pieces of property: a chair and a DVD.

When I buy a chair, I hand over money for which I get the chair and a
receipt. This chair has been mass-produced from a master copy at some sort of
plant. After the money has changed hands, this particular chair is mine. There
are many more like it, but this one is mine. I have bought one of many
identical copies and the receipt proves it.

As this copy of the chair is mine, exclusively mine, there are a number
of things I can do with it. I can take it apart and use the pieces for new
hobby projects, which I may choose to sell, give away, put out as exhibits or
throw away. I can put it out on the porch and charge neighbors for using it. I
can examine its construction, produce new chairs from my deductions with some
raw material that is also my property, and do whatever I like with the new
chairs, particularly including selling them.

All of this is normal for property. It is mine; I may do what I like
with it. Build copies, sell, display, whatever.

As a sidetrack, this assumes that there are no patents on the chair.
However, assuming that the invention of the chair is older than 20 years, any
filed patents on this particular invention have expired. Therefore, patents are
not relevant for this discussion.

Now, let’s jump to what happens when I buy a movie.

When I buy a movie, I hand over money and I get the DVD and a receipt.
This movie has been mass-produced from a master copy at some sort of plant.
After the money has changed hands, this particular movie is mine. There are
many more like it, but this one is mine. I have bought one of many identical
copies and the receipt proves it.

But despite the fact that this copy of the movie is mine, exclusively
mine, there are a number of things that I may not do with it, prohibited from
doing so by the copyright monopoly held by somebody else. I may not use pieces
of the movie for new hobby projects that I sell, give away, or put out as
exhibits. I may not charge the neighbors for using it on the porch. I may not
examine its construction and produce new copies. All of these rights would be
normal for property, but the copyright monopoly is a severe limitation on my
property rights for items I have legitimately bought.

It is not possible to say that I own the the DVD when viewed in one way
but not when viewed in another. There is a clear definition of property, and
the receipt says I own the DVD in all its interpretations and aspects. Every
part of the shape making up the DVD is mine. The copyright monopoly, however,
limits how I can use my own property.

This doesn’t inherently mean that the copyright monopoly is bad. It
does, however, mean that the monopoly cannot be defended from the standpoint
that property rights are good. If you take your stand from there, you will come
to the conclusion that the copyright monopoly is bad as it is a limitation of
property rights.

Defending the copyright monopoly with the justification that property
rights are sacred is quite like defending the death penalty for murder with the
justification that life is sacred. There may be other, valid, justifications
for defending the copyright monopoly and these limitations of property rights
— but that particular chain of logic just doesn’t hold.

But if copyright isn’t a property right, what is it and where does it
come from, and how did it become such a big thing in today’s society? To answer
these questions, we shall have a look at the history of copyright. It turns out
that it differs quite strongly from what you usually hear from the copyright
industry.