Copyright wars: the center cannot hold

In the collision between the public and the centers of authority, no battleground is more savage than that over “intellectual property”:  that is, books, articles, news reports, images, movies, music.  For the last 20 years, copyright law has grown more restrictive and punitive, increasingly treating works of the mind like private property.  Since the advent of the web, conversely, the public has become used to treating creative products as free goods.

At the moment, law is at war with custom.  The casualties so far include whole industries – and an incalculable amount of innovation.

The benign explanation for the legal onslaught is that, back in the Happy Nineties, the US government aimed to foster knowledge by maximizing the value of its products.  A cynical and probably more accurate account is that established industries in Hollywood and New York out-lobbied Silicon Valley upstarts for protection in Washington.  Movie, music, and publishing companies wished to forestall the loss of valuable properties to the public domain (think Mickey Mouse); later, they sought to stay afloat in the digital flood by criminalizing tools and behaviors which threatened their business models (think Napster).

Whatever the reason, the imperial expansion of copyright protections over the last two decades has been nothing short of astonishing.  The original Copyright Act of 1790 set the term of protection at fourteen years, renewable for another fourteen if the author still lived.  In 1998, terms were extended to 95 years for products owned by corporations, and life plus 70 years for those owned by individual authors.  More to the point, the 1998 law showed that terms could be extended at will.  Yochai Benkler, author of the most lucid analysis on the subject, observes that practically “the entire stock of twentieth century culture,” including almost all video and sound recordings, will never enter the public domain under the present dispensation.

The Digital Millennium Copyright Law of 1998, or DMCL, currently supplies the legal arsenal of protection imperialists.  Beyond the apocalyptic title, the law was massive in length, unwieldy, and restrictive.  “Fair use” doctrine, which allows the partial copying of products for various purposes, was narrowed virtually out of existence.  Criminalization, formerly applied only to large-scale theft of intellectual property for profit, was extended to private copying even when no money is exchanged.  Digital platforms which hosted copyrighted material without permission were mandated, on notification, to take the offending content down.

While platforms were responsible for content posted by their users, the DMCL left open a loophole, which came to be known as the “safe haven” rule.  Prior censorship by the hosting service provider was not necessary.  It was required to act only when the legal owners of unauthorized content complained.

An attempt by Congress to close this loophole has ignited the latest pitched battle over intellectual property.

The Stop Online Piracy Act, or SOPA, now under consideration in the House, would in essence mandate digital platforms like Facebook and Twitter to pre-censor their content to prevent copyright violations.  The intent, as always, is to protect US producers of intellectual property, particularly from theft abroad.  Among SOPA’s supporters, unsurprisingly, are found the US Chamber of Commerce, the Motion Picture Association, the actors’ and musicians’ unions.  In a New York Times overview, Rebecca Mackinnon describes the new restrictions in the law:

The bills would empower the attorney general to create a blacklist of sites to be blocked by Internet service providers, search engines, payment providers and advertising networks, all without a court hearing or a trial. The House version goes further, allowing private companies to sue service providers for even briefly and unknowingly hosting content that infringes on copyright — a sharp change from current law, which protects the service providers from civil liability if they remove the problematic content immediately upon notification.

The effect, if SOPA worked as intended, is predictable.  Facebook, Twitter, YouTube, and the like would have to engage in self-censorship, Chinese style, and thus lose the vibrancy of their content – or else be sued to extinction.  The digital universe would be transformed from a wild frontier to the virtual equivalent of today’s airports, where no one enters without intrusive scrutiny by the authorities.  Only a few industries would benefit.  Many other industries, and much commercial activity, would be penalized or wiped out.  It’s a putrid law.

There is, however, the other half of the story – that of the public, riding the fifth wave of information roughshod over every boundary set by authority.

Hackers first explored the digital frontier, and the settlers who followed – the once-passive public – have embraced the hacker culture and its prime directive, “information wants to be free.”  In the new world, intellectual property has become an individual plaything, and a fetish is made of open systems, free sharing, transparency.  Perceptive thinkers, people like Clay Shirky and Jeff Jarvis, lionize an unsavory character like Julian Assange of Wikileaks because he’s a breaker of codes and revealer of secrets.  The rest of us think nothing of copying articles, mashing up music, posting movie scenes.  Our values, our sense of right and wrong, seem to have mutated in cyberspace, and our actions betray contempt for the judges established authority has set over us:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.

SOPA is a desperate maneuver to re-establish sovereignty, and the public knows it.  We watched the music industry implode after crazed efforts to prosecute its own customer base, the New York Times and the Times of London bury their shrinking audience behind porous paywalls.  We are hundreds of millions – billions.  Despite the implacable advance of copyright protections, despite the arguments of lobbyists and the threats of government agents, we feel invulnerable, and we probably are.

That’s the fatal flaw in the politicians’ wish to treat products of mind ever more like a fenced back yard.  It can’t work.  The public today is an irresistible force, while copyright law is nothing like an immoveable object.

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