Copyright is Anti-Civil Liberties?

Y’know, I try to have a calm, productive Monday morning and not let anything rustle my jimmies, and then somebody on Twitter posts an article by Rick Falkvinge. And I CLICK ON IT!  And I know I shouldn’t because everything Falkvinge says is so mind-numbingly stupid that it’s only going to distract me into composing a response in my head when I ought to be focusing on something of greater value.  Okay, my ADD isn’t Falkvinge’s fault, but every time he puts finger to keyboard and presumes to give voice to what passes for thought in his myopic universe, and I stumble upon it, all I can think of is Dan Akroyd doing Point Counterpoint on SNL in the 1970s:  “Rick, you ignorant slut.”  Only I’m not joking.

In his latest offering on Torrentfreak, The Swedish Pirate rallies the troops, reminding them that the war is long, but the cause is just.  Continuing with the theme of Newspeak writ large on Times Square right now, Rick’s premise is that “the copyright monopoly cannot coexist with fundamental civil liberties.” Falkvinge states that he and his myrmidons must keep repeating this message, person by person if need be because “social change for good,” takes time.  Indeed it does, but there is another path Falkvinge and Co. could take — they could always shut up and let the artists champion social justice and civil rights just like they’ve been doing for centuries.

On paper, copyright and civil liberties have coexisted since our nation’s founding.  Of course, many civil liberties themselves have been, and continue to be, hard won against sentiments of racism, sexism, and religious zealotry; but the constancy of copyright’s incentive has played a crucial role in those battles.  When James Baldwin published The Fire Next Time, he couldn’t ride in the front of a bus in the American South, but he still enjoyed the right of copyright, without which his talents may have played no role in the greater effort toward justice.  Harvey Milk would hardly be known today by most Americans were it not for a 2008 motion picture that would not exist without copyright. And these are just two obvious examples.  The truth is that the total volume of free expression produced by creative artists is one of the greatest buffers against social injustice within democratic societies.

In one hand the artist holds the right of free expression, and in the other, he holds copyright.  Wielded together, these tools have done more social good than any politician could ever hope to achieve.  So, to say that copyright cannot coexist with civil liberty is like saying fire cannot coexist with oxygen. Copyright is a civil liberty, and if we destroy it, there is every possibility that the real monopolists win.

© 2013, David Newhoff. All rights reserved.

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  • Absolutely. Artists are usually on the forefront of ‘speaking truth to power’ and standing up for the little guy. This will become a thing of the past if we are all beholden to a corporate message. ~this song brought to you by Sunshine Feminine douche..
    FYI, if you haven’t yet, everyone should read this exchange from Ellen Seidler; between her and Sven Olaf Kamphuis:
    IMO– it gives great insight into the mind and though process of this type of person.
    “…WE own the internet…” …
    “This is the one and only all-authorative answer from his royal
    highness the price, you’ll get regarding our corporate views on this

    … and we want these people to live on inside the computer? … just what we need, machines with human emotions and mental illnesses…

  • I can’t help thinking it’s nigh-inevitable that people wax
    Orwellian when trying to frame the internet in terms of human
    rights or civil liberties – it’s simply the result of the subject
    being gloriously unsuitable for the treatment. Fundamental rights
    do have some rather specific features: such as being intrinsic and
    inalienable. These are actually rather important. Intrinsic means
    that you have them irrespective of any action by any other party;
    inalienable means you can’t be rid of them. There’s absolutely
    nothing intrinsic or inalienable about the internet. Instead, we
    have a service provided by for-profit entities – on terms
    they set. You don’t get “digital rights” – in
    the practical sense – unless you pay for them and they get taken
    away if you stop paying. Nobody seems to complain, ‘coz telcos have
    to make money too, right? Similarly, no specific use of the
    internet is intrinsic or inalienable. You can’t post videos on
    YouTube unless YouTube says they’re kosher. Porn is right out.
    Facebook too, it seems, considers some matters unfit for its pages
    – so much for freedom of online speech. I don’t really see anyone
    up in arms about these matters and I think it’s how it should be:
    after all, these are private companies, providing the kind of
    service they want to provide. If you don’t like it, you can always
    go elsewhere. That’s part of the reason, why I tend to keep
    publishing to my own platform – there, editorial control is mine.
    However, as soon as we acknowledge that private interests acting on
    the internet have a right to control the service they provide and
    frame it according to their judgement, we have to equally
    acknowledge that they bear sole responsibility for the services
    they run. It’s nobody else’s business if they can’t make it work
    financially, nor should any other segment of the economy be
    expected to subsidise these particular business models. In
    copyright terms the matter is dead simple: if you want or need
    copyrighted material to make your business work, you’ve got to be
    prepared to pay the going rate. Otherwise, find a business that
    doesn’t need copyrighted material. That goes double for users,
    since their possible use cases are determined by the aforementioned
    businesses. Having a DMCA notice shoot your video down is nothing
    compared to the fact that YouTube can take it down any time it
    feels like it, for no reason at all. It is their house.

  • The best argument I’ve ever read and probably the argument that finally made be decisively against copyright is this one by Richard Stallman. It touches on the idea if how copyright hurts civil liberties, and more importantly, and the most profound thing how copyright started to hurt civil liberties only in recent times, that it in fact, was a just law in the past. Only new circumstances turned it into the unjust and unethical system it is today.

    It’s very unlikely that copyright can be fixed in a manner that will make it compatible with information age norms without some major reform in ways that incumbent content industry players will not like.

    • David Newhoff

      Well, aside from the fact that I find Mr. Stallman’s tone needlessly paranoiac, he’s making the common mistake of looking at the issue of copyright through the eyes of a technologist and leaving out more than a few aspects of copyright along the way. There is, however, no way I’m going to respond to all of the arguments in that speech; it would take too long. So, as a simple exercise, M, how would you feel if I extrapolated just the software premises of Stallman and applied them to, say, remixing your comments? I could edit your comments to make you sound like anything from copyright’s greatest champion to a blabbering fool and still attribute them to you. Yes, you could delete them and refuse to return, but what if you couldn’t? How would you feel? What if I told you that my right of free expression includes the right to do this — to twist your meaning in your own name?

      Your premise is that copyright is a sound principle, but that enforcement inherently runs afoul of free expression — people say civil rights, but we’re mostly talking about expression — in the digital age. For starters, you can’t have it both ways; if we can’t protect a right through enforcement, then the right ceases to exist. But you say enforcement is unjust and only because of technology, which is to say that a civil right which had merit before the technology existed is no longer valid; and that sounds like pretty dangerous logic to me. Technology and personal freedom can allow a man to drive 200mph in his Porsche on the highway, and his ego may allow him to feel entitled to enjoy this moment of zeal, but there’s no getting past the fact that his right to pursue happiness is infringing on the right to pursue life of every passenger in his path. And that’s why the speed limit is still less than half what most cars can achieve. Rights and technology can coexist and must coexist. This isn’t about punishment v rights, it’s about balancing two sets of rights.

    • You are going through the philosophy of identity. I think identity is a bad thing for free expression. It forces accountability on what people say, so they are less likely to say what is on their mind or what they would rather say. Even my identity right now, a single letter, is less then ideal. It is still an identity and I can held accountable for any random thing I say in future discussions. It allows for prejudice, so someone can see my name “M” and say, “he’ll probably say something I [dis]agree with, so let me try to [pick apart/back] his arguments” before even reading it.

      I generally prefer communities that do not give its members any identity (so it becomes as difficult as possible for a common observer to attribute posts to people), eg all posts go by the same name “Visitor” or “Anonymous”. Generally if a community has an option for a default name and many people are using it, I use it also. I’m more at home without an identity, I rather focus on arguments and philosophy.

      Separating arguments from identity allow for the most purest speech in my opinion. People are basically not afraid to say what is on their mind, no matter how politically incorrect or how much it violates the current social norms. This creates cultural memes that simply would not exist otherwise. A lot, if not almost all, of the “memes” on the Internet originate from websites that don’t enforce identity, eg. 4chan. They even become the mainstream, ie. acceptable memes for identity-bearing individuals, after evolving from places like 4chan.

      It also makes prejudice impossible. I can’t know if any given Anonymous is white, black, young, old, male, female, a professor, or a homeless man in a library. Nor do I as an observer, care about his agenda. All I have to go by is quality of the content he contributes to the community, nothing else is important or even visible. It’s profoundly equalizing. If there is anything I genuinely love about the Internet, this is it.

      Or TLDR: I don’t give a shit if someone copies my posts and changes them.

      • David Newhoff

        And thus we are at a fundamental, philosophical impasse. The individual is everything, as I see it, and identity (or the unique voice) is what gives creative work its real value. Based on your view of identity, though, I understand your point of view of copyright and creative works.

      • David Newhoff

        It also must be said that 4Chan is perhaps the greatest example of what anonymity can lead to, which is a market of exchanges just this side of neanderthal. As one teenage girl I met put it, “4Chan is the armpit of the Internet,” and she hits the mark pretty well. Anonymity is a wonderful tool for knuckle-dragging, young males to use when they want to post photos of girls they know and ask someone to Photoshop them to make them appear naked, but real grown-ups who have things to say sign their names to their work because context matters. Without context, any hope for truth is lost.

      • Actually, accountability (and the ability to take credit for what one says) is one of the cornerstones of free expression. And in the real world, certain voices hold more weight than others; Stallman’s speech as Founder Of The Free Software Movement had more credibility than as an anonymous voice.

        (not to mention that one of the first arguments of the piracy movement that obscurity is worse than piracy.)

        The forced anonymity of the net doesn’t really lead to democracy as much as techno feudalism, where the cloud minders make money and no one else does.

        Finally, since your words don’t matter that much to you, what about your code, your bread and butter? Where is the movement to collectivize Google and Facebook?

      • As well, if you’re pointing to memes as some sort of meritocracy in which the survival of the meme depends on their quality… Well, there isn’t a lot of evidence for that. The memes that survive seem to be those that satisfy people’s previous prejudices rather than their veracity or value (for example, the “Sandy Hook Was Staged” meme, which violates pretty much any measure of Ockham’s Razor but satisfies a lot of people’s desire to keep their guns) Even Dawkins would likely balk at a theory of natural selection for memes.

  • 2 decades of fighting online infringement, and how much
    progress have you made? We’ve had one new law after another, and
    yet copyright infringement is at an all time high. At the same
    time, it’s illegal for me to write a F/OSS dvd/blu-ray player, back
    up my dvd collection, format-shift them into a juke-box system or
    read the e-books I buy on the e-reader of my choice. How much more
    collateral damage should society allow you to make in your (so far
    failing) attempt to fight copyright infringement? What Falkvinge is
    saying is: you’ve made too much already. While I regularly disagree
    with him, I can see where this latest column is coming

    • David Newhoff

      Two decades may seem long, Pieter, as it is roughly the entire history of the publicly-available Internet; but it is a pretty brief interval in the history of civil rights, artistic expression, and indeed professional artistic works. And this is what I mean when I say Falkvinge is myopic when he presumes to funnel that much history and complexity through the tiny aperture of a 20-year-old technological change. Moreover, the process is of course dynamic. We’re not done figuring out the balance between these technologies and various rights, privileges, and potential hazards; so it is beyond arrogant to push for policy based on unfounded predictions and overstatements about “collateral damage.” He really does remind me of our most lunatic politicians in the U.S., whose conclusions can only be accepted based on wholly unrealistic premises. As I’ve said many times, we can find far greater examples of bad policy and bad applications of law than the worst examples of copyright overreach, and yet, the fundamentals of the law in question continue to exist. I really believe Rick is just another fad politician who found a brand that works for him, and he’s sticking to it. The likelihood that he will affect policy, especially in the U.S., is pretty low. Also, on the subject of “digital rights” and freedom, I refer you to Faza’s response to this post.

      • I think we can safely say that after the DMCA and similar laws, and law proposals like SOPA, PIPA, and ACTA, these are not “unfounded predictions and overstatements” when it comes to collateral damage. Especially the DMCA has already left quite a trail in that regard. The sad part is: back in 1998 we said it wouldn’t work, and why, and what the consequences would be. Unfortunately, we were right.

        The problem remains that we don’t have a solution to copyright infringement either. Oh, we have ideas about how to increase your sales, but not on how to prevent infringement. Still, that shouldn’t disqualify us from warning you when we feel the plans you have won’t work either, and what the collateral damage of such plans will be.

        Personally, I too doubt the impact Falkvinge will have in the US, but then again: if you’d have asked me 10 years ago about the chances of a Pirate Party making it into the European Parliament I would have said 0 as well. Here in Europe, I think the biggest impact they’ve had is not so much in getting seats for themselves, but in framing the political views of the other parties.

        Oh, I know there are few legal rights we customers can rely on when it comes to these matters (as Faza described), but if you continue to screw your customers over, they will eventually have had enough. I think the reactions to ACTA, SOPA, and PIPA had quite a bit to do with that as well. Without a doubt, people in general were misinformed about these proposals, but the entertainment industry has made such a mess of things that people simply do not trust them anymore. That means you’ve got a huge PR problem on your hands when it comes to new legislation.

      • David Newhoff

        You already know that I reject the notion that SOPA was so hazardous, as does Chris Ruen, Robert Levine, and a host of legal professionals. I think it’s too easy to confuse matters like the overreaching lawsuits of the 1990s and things afoot these days, which are dramatically different. I know I’m not alone in believing enforcement should be focused on the entities profiting from mass infringement, but that behavior among users is a matter of a conversation just like any other social issue. I believe this, nearly every activist on my side of the issue believes this, and more than a few people within the big media companies believe this. But progress cannot tolerate the extremism of Falkvinge any more than it can tolerate the punitive and unwise lawsuits of the 1990s.

      • I don’t doubt that you could seriously cut down the involvement of current infringement distribution platforms by focusing your attention on them, and I might even support legislation towards that end provided it took proper care of due process (so AFTER a conviction; no ex-parte). I just seriously doubt it will have any impact on copyright infringement itself (although it may give some satisfaction to take down certain platforms). How many platforms have been taken down since the 90s already? Something new will pop up, and judging from experience it’ll be even harder to take on than the current platforms. Encrypted trackerless bittorrent comes to mind, but no doubt there’ll be plenty of others.

        Although I would support legislation to cut off e.g. the financial means to a convicted platform, I would have serious questions when it comes to placing even more legal burdens on platforms like YouTube. It’s rapidly going towards a legal environment where such platforms cannot legally exist anymore, and such platforms are way too important to too many artists and consumers alike that I would heavily protest law plans to that regard.

      • I think it’s reasonable to assume that if YouTube is truly valuable for artists, as you say, that artists will have as much interest in preserving it as they might in regulating it. Nobody reasonable wants to throw out the baby with the bathwater.

      • On the topic of SOPA: I think the idea behind it wasn’t so bad; it was just incredibly badly written, with definitions that would have excluded sites like TPB (at that time) and MegaUpload, ex-parte court orders, and legal immunity for volunteer actions by private (financial) parties. Better alternatives have been proposed to that regard already.

      • You and I have discussed this, and it is the fear campaign attacking the principle of the bills that I and others find so insidious.

      • Considering the view of companies like Viacom on YouTube, I’m afraid the big players in this debate do not feel the way we do on this. They believe that YouTube should have the legal obligation to actively monitor their services, and make sure it’s impossible for people to infringe on copyrights using them. Such requirements would destroy any chance of UGC sites to exist legally.

        With regards to SOPA, I think your statement goes for both sides of the fence. There was a lot of misinformed rhetoric on either side, and quite a bit of deliberate misinformation as well. If the reputation of the entertainment industry had been better, people might have believed them. As it is… well, you know what happened to SOPA. Then again: that’s nothing new; I can’t think of a single massive rally of the public where most people actually understood what it was all about.

        However, I got quite tired of SOPA-proponents, not hindered by any knowledge, dismissing the technological arguments of experts in the field. The DNSSEC problem was a serious one, and it was dismissed by the pro-SOPA group as if nothing was amiss. It’s things like that that get people wondering about what is happening that they’re not supposed to know about.

      • Let’s call things what they are, though. YouTube could not have grown the way it did without getting away with mass copyright infringement and being sold to an entity with enough money to fight the legal battle while the site continued to evolve. Hence, it strains my patience when Google or its defenders treat YouTube like something truly revolutionary and populist. There’s nothing ingenious or new about using other people’s stuff for personal gain, and YouTube’s revenue model is not predicated on being a proverbial “river to the people.” I remain unconvinced about the long-term value of the site as we know it. I think we’re in a period of rapid expansion of content, so much so that it’s losing value, both monetary and social. I predict, however, that as convergence continues, as creators experiment with what works and what doesn’t, as the would-be amateurs find other work to make a living, and as consumer choices and values shift, we may see a contraction. I think no matter what that there will be a finite number of investors and producers who make content a career and that the new models may look a lot like the old models, possibly with different logos.

      • I’m sorry, but I have to disagree here. Internal emails from Viacom showed that even they felt that “user generated content appears to be what’s driving YouTube’s success” and “consumption of branded content on YT is low”. I think that even without any infringement, YouTube would still have grown to similar proportions. Also, ContentID has already done a lot to reduce infringement on YouTube. It does however require rights holders to provide YouTube with the necessary information (data) in order to find these infringing clips.

      • You’re talking about the 1990s, yes?

      • I see you mentioned the DMCA and I just the whole situation hilarious. The parts of the DMCA that the entertainment industry especially lobbied for are totally ineffective.

        People are so disgusted by it, they will actively violate the anti-circumvention portions of the DMCA in a form of cyber-protest any time it’s actually used (you mentioned DVD/CSS which is great example). Even high profile people will actively and non-anonymously violate the DMCA even though it is a felony to do so. The government can’t just jail everyone, as much as some might like to happen. So in reality, the especially nasty parts of the DMCA is not worth the paper it is printed on.

        That’s one of the great things about law, it’s just paper. Just because some douchebags in suits write some unworkable crap on a piece of paper doesn’t mean anything if people aren’t going to follow it.

        That’s why you know I don’t give a crap if they let the content industry have some unworkable crap in the next copyright bill (which will end up being a compromise instead of big content just dictating their demands to Congress). Anything bullshit they imagine won’t work, because their philosophy of copyright does not work, period. But anything we put in the bill will do good overall, because it will just harmonize what is now normal behavior with the law.

  • M wrote: “…You are going through the philosophy of identity. I think identity is a bad thing for free expression. It forces accountability on what people say…
    Since when is ‘accountability a problem’? IMO the entire problem is there ISN’T any accountability.
    And your example is pathetic. That’s the crux of the internet acting like a spoiled 12-year-old child. Grow up!

  • Copyright, like capitalism, has served us (artists and society) well. Copyright established rules that facilitate a fair exchange between artists and markets that exploit artistic works. I am pro copyright. I am also an advocate of the free and open source movement. Like fire and oxygen the old rules of the game can coexist with new rules that intuit new models of doing business in a new and changed world. The FOSS crowd points to copyright as the problem. Copyright isn’t the problem. But the abuse of copyright, like the abuse of capitalism by the “corporate state,” can be a problem… and potentially a very big problem. The fact is the rules have (been) changed.

    • Except that capitalism is still here, and to collectivize one industry while the rest of the world remains capitalist is immoral.

      Lets be honest, though: there are people still getting very rich off of owning intellectual property, and they tend to be in the tech industry.

    • I don’t really think that copyright or even abuse of copyright are the real problem. The problem is that current day copyright law is almost impossible to enforce against natural persons. As such, the entertainment industry keeps asking for more powerful enforcement laws, which generally are easily circumvented by infringers, but which (would) cause huge collateral damage to our society.

      The sad part is that although it’s easy to explain why these new laws won’t help stop copyright infringement, politicians still want to introduce them, because they feel that copyright infringement is such a serious problem that something must be done. Even if that were true, that’s still no excuse for introducing bad laws even if the alternative is to do nothing. Just because something is serious still doesn’t mean that doing something stupid is better than not doing anything at all.

      • David Newhoff

        All of that is true if we accept the premise that every move to stop or mitigate infringement causes the kind of collateral damage you describe. I don’t know any copyright advocates who don’t, for instance, put free speech first. The problem is that you have to show the “huge collateral damage” and then work toward new solutions — our own register of copyright has called for the next overhaul of the law — but in order to create workable solutions, there must be agreement on certain fundamentals. For instance, you’ll say copyright’s scope keeps expanding, but I would say it is a strange expansion of the notion of free expression to suggest that downloading a bootleg file of a film is protected by this civil right. It’s fine to point to tangible flaws in a system and want to address them, but the larger precent you seem to be asserting has implications that would be destructive to the nature of law itself. As I said to M, this isn’t about enforcement (or punishment) vs rights, it’s about balancing two sets of rights. Doing that always places restrictions on any number of actions.

      • David,

        it’s very much about a balance of rights. Copyright is a regulation on entities that publish content in some form. If you don’t publish content, it’s very hard to violate copyright so copyright is simply not relevant to you just like oil industry regulations aren’t relevant to most people.

        It’s easy to balance the rights of publishers and authors when publishers are industries. It’s easy to enforce copyright in such a society which publishing power is limited some specific economic sector (printers, publishers, etc.).

        Before there were computers, there wasn’t many ways for individuals to violate copyright and the ways were minor enough that the law didn’t need to concern itself with them. So copyright worked really well, because it didn’t work on individuals.

        The problem is the rise of computer networks has produced so many publishers. You and I are publishers now. Anyone with a social media presence or an e-mail account is potentially a publisher. Suddenly, copyright becomes an issue to people it wasn’t issue for in the past.

        Because of this copyright today is balancing act between the rights of authors and the rights of almost every individual on the planet. For the first time in history, copyright became an regulation on the behavior of the society.

        I’m basically summarizing Richard Stallman here. But I mean this issue is so fundamental to why copyright suddenly stopped working, I mean, it is the reason copyright stopped working. So it deserves to be repeated and repeated until everyone understands it.

      • David, I see few people arguing that downloading a bootleg
        file of a film is or should be protected by a civil right. It’s
        copyright infringement, and I don’t support that. The problem
        begins when the industry e.g. wants to start scanning every email
        and file I send in order to check if it might contain a bootleg
        file of a film (the DPI discussion I’ve had numerous times with
        industry representatives). That’s where I feel MY rights to privacy
        are infringed. Since a lot of people feel that way, you now get the
        entertainment industry vs society. M has a point when he says this
        started (or at least took a huge leap) when computers (and the
        internet) became a household item. Now everybody is a publisher,
        and rules that prohibit us from posting our own works hurt us all.
        I think the problem lies deeper though: the very openness of the
        internet that allows any new protocol to be invented without
        permission (do you think for a minute that the telco’s would have
        given permission for Skype and Whatsapp?), and the encryption
        technology that allows us to safely communicate with our banks, the
        stores, and each other, makes it almost impossible to prevent
        copyright infringement by natural people, and any attempt to try
        will most likely involve massive monitoring of communication
        channels. People in general simply don’t care enough about
        copyright to give up those rights to privacy. They already raise
        hell when Google records unprotected WiFi information; does anyone
        really think they’ll applaud the entertainment industry for doing

      • David Newhoff

        Of course people argue that downloading a bootleg file is a civil right, even if they do it by implication. When someone like Barlow says “The Pirate Bay is speech,” that translates in the user’s mind into “file sharing is a civil liberty,” which then suggests that any effort to mitigate file sharing is a chilling of free expression. That argument is made time and again, and the perception I’m describing is quite common among users who don’t think about these things as deeply as you do.

        That aside, I’m with you on not wanting to be spied upon, but who’s reading your emails or mine at the moment looking for a film? I’m not saying the idea has never been floated, but it doesn’t make any sense to me since 1) email is no way to transfer a file much bigger than about 5mb; and 2) counter-piracy units don’t have the resources to get that granular and have no interest in your information. So, yes, I remain more concerned about companies whose bread and butter is information rather than those whose bread and butter is creating entertainment products. When Google makes an investment in trying to capture and monetize every thought, word, picture, action, etc. it is an investment in their bottom line. For media companies, counter-piracy is a cost and not an investment, which means it will never be funded enough to do more than mitigate the problem at best. Some will argue that they should give up because it can never be stopped, but you know well enough that this would change the legal precedent; and guess who’s likely to get hurt first if that happens? The small to mid-sized creator.

        It seems to me that, other than as a purely academic exercise, we are not “all publishers” simply because we use email and social media; and even as an exercise, I fail to see why it matters other than to suggest vaguely that anyone could commit infringement at any moment, but I don’t really know anyone who are about that. Your concerns sound like a lot of hypothetical without real-world examples. I don’t write code, but how does logging into my bank account put me in a position of possibly committing copyright infringement? And if what you’re saying is true, then said infringement is happening constantly, and I still don’t know of anyone who cares. I don’t care enough about copyright per se to give up my right to privacy, but nobody has demonstrated (least of all Falkvinge) how the two are incompatible; plus my expectation of privacy is frankly a joke, if I’m going to use the internet for anything more than looking up the weather. More importantly, though, I absolutely believe there is more at stake than people think — that copyright isn’t some secondary matter but is a civil right that is almost on par with the right of free expression. I would go so far as to say copyright gives free expression its teeth, and while the system may need amending in the age of networked computers, it is a component of civil rights that I am unwilling to risk losing. People like M are embracing Lanier’s dystopia in which the individual voice is consumed in a homogenous, remixed society, where context is meaningless, where the rights of the author don’t exist, all in the name of liberty and privacy, both of which would be lost along with copyright. Even more naive is the desire to see big media companies fail, while we instead deliver ourselves up to the great and powerful Google. That is so much more terrifying than all the wrongful DMCA notices ever submitted.

      • Deep Packet Inspection (DPI) regularly comes up as a means
        to fight copyright infringement, so it’s not as far fetched as you
        may think. Of course counter piracy units don’t want to get that
        granular; they think the ISPs should do it for them and if at all
        possible pay for it as well. A few years ago, the Dutch
        organisation BUMA offered a full license for people to upload and
        download music for a fairly reasonable price. If they hadn’t
        insisted on DPI to monitor everything, that proposal would probably
        have been accepted. I’m not claiming that logging into your bank
        account puts you in a position of possibly committing copyright
        infringement. What I’m saying is that the same encryption
        technology used to prevent people from monitoring your
        communication with your bank can and will be used to prevent people
        from monitoring copyright infringing communication between two
        people. That’s why I said that encrypted trackerless bittorrent
        will probably be one of the next ways people will use to infringe
        on copyrights. The right to privacy clashes with enforcing
        copyright infringement when rights holders demand the use of DPI to
        scan all traffic for infringement. The technology used for private
        communication is what will make such enforcement next to
        impossible. Sure, you can create laws that will make sites like TPB
        and MegaUpload illegal, but that might (so far that hasn’t stopped
        TPB yet after all) just help kill off these current players. The
        demise of Napster, Gnutella, Napster, Emule, etc. hasn’t really
        helped to stop infringement, and I doubt killing off the current
        generation of tools will help in that regard either. There is no
        doubt in my mind that the new Mega is meant to make lots of money
        from copyright infringement, but the problem is: it’s set up
        exactly how one would set up a legal cloud service. Any law that
        would make the new Mega illegal would also make it impossible to
        offer such cloud services. Infringers will simply move to the next
        easiest platform for infringing purposes, independent of what the
        owners of that platform would like. Hell, the most used tool for
        copyright infringement on university campus when I was a student
        was … Microsoft Network Neighbourhood…

      • David Newhoff

        Thanks for clarifying, Pieter. I recognize that it may well be impossible to write a law which makes a particular system illegal without affecting legitimate industry or even the actions of private individuals. I have my personal doubts that this is the best way to address issue, which still does not excuse the overblown, and at times downright irresponsible, statements by Mr. Falkvinge. Additionally, I am entirely uncomfortable with the precedent being established, marching one step closer to what could be technological dystopia in which man creates technological systems that make the civil rights of man irrelevant. The argument from your side is invariably that other civil rights matter more than copyright, which is true, and I encounter the fear of slippery slope every day. “Erosion of privacy,” say people like Falkvinge. “What’s next?” But my concern is that the logical extension of what you’re saying is that you’re asserting the rights of machines over the rights of humans, and I believe privacy and other natural rights would collapse along with copyright. This is in fact entirely consistent with the futurist view of Mr. Kurzweil, who is now the chief technologist at Google. Belief in a utopian technological singularity is not to be underestimated in this context because the process includes a time when machines have the same rights as humans, and what you describe sounds to me like the leading edge of this transformation. You may believe this is a good thing, or at least an inevitability. Certainly, I cannot say for sure. But for the time being, I think what you suggest, while sound and problematic, sets a dangerous precedent for civil rights in general.

      • I’m glad I could clarify it a bit, David. I’m not saying I’m happy with the future I paint either, but for the moment I don’t really see a solution here.

        I’m not sure I agree that the logical extension will be to assert the rights of machines over the rights of humans; I still see humans in control at the end. The main problem I see is that technology is always a two edged sword. Technology that allows protected communication can be used to communicate safely with banks and communication between criminals. Technology that allows anonymous speech in China (note: the West actively promotes the development of such tools to help Chinese dissidents) also allows anonymous speech here, even if such speech is used for illegal purposes. Technology that allows for cheap distribution of game data and movies can also be used for illegal distribution of multimedia. To try and kill one is to kill the other as well, so the question to be asked is: which do we find more important: having both or having none? While the big shots in the entertainment industry (and I’ve talked to a lot of them) would prefer neither, society will generally choose both.

      • David Newhoff

        All of that makes sense, Pieter, which is why I try (albeit with mixed success) to stay focused on cultural and human issues rather than simply engage in the same copyright debate over an over again. I agree that technology is a double-edged sword and that the way we develop as societies in concert with our technologies will depend on humans making conscious choices to relate to these tools in ways that still preserve the things that make us human. Of course, this may well be a quixotic hope on my part.

        Usually, history is shaped by a relatively small minority of powerful people with the majority going along for the ride. In this case, I see leading technologists like Google selling a message of civil rights while constructing a world that actually has tremendous potential to erode those rights. Kurzweil’s own evolutionary predictions imply that our concept of human rights in 2013 is a temporary illusion that will be irrelevant before the end of the century. This is consistent with the contradictory messages regarding privacy that we get from Silicon Valley. Protecting privacy is used as a PR tool to tell the public that the tech industry is on their side, but Google is, by my reckoning, in the lead on privacy invasions; and the implications of Google glass on that score are off the charts. This is a technology that can not only invade privacy but can then monetize that invasion for the world’s largest ad media seller. If my government illegally wiretaps my phone, I have recourse. But if Google sells advertising against some private moment in my life that someone else caught with their Google glass, the company gets to say, “Wasn’t us.” And thus the same, shell game used with regard to copyright infringement is played out with invasion of privacy.

      • When it comes to privacy, I’m not a big fan of companies like Google or Facebook either to be honest. I guess part of the blame lies with ourselves too though: we far too easily are willing to part with certain parts of our privacy in return for some services. That’s why I’m mostly in support of the European Parliament’s efforts to bring forth new privacy legislation. Companies opposing such legislation are Google, Facebook, but also the MPAA and RIAA, because such legislation also makes it harder to gather information on infringers. It seems we can’t win here.

      • David Newhoff

        Not to sound too much like I’m a cheerleader for one side or another, but my expectation is that the media industry may recognize that this is both futile and costly in contrast to alternatives like promoting social messages that support creator rights. But like I said yesterday, such efforts represent a cost for that industry while it is an investment for Google and Facebook. Social media’s value is predicated on various types of invasion, and indeed we volunteer information at a staggering rate with no idea what the effect of doing so will be. Perhaps we can’t “win,” but I’m always intrigued by the likelihood of unforeseen consequences, which underlies the title of this blog. If 20 million people suddenly decide to use FB 50% less than they were because they have social media fatigue or find they’re not getting enough done IRL, I imagine that could have a big impact and even a snowball effect on the whole enterprise. Certainly, we’ve seen these phenomena before.

      • I sometimes wonder what the real reason for the anti-piracy stance is for people. Is it
        – to reduce copyright infringement?
        – to increase sales?
        – to maintain/increase control over distribution?
        Note that the first two points are not necessarily the same thing. There’s a lot of research suggesting that even if copyright infringement were to drop to 0 today, that still wouldn’t truly increase sales. Money can only be spent once after all, and there’s just too much competition out there, and a terrible financial crisis at the same time.

        So which would it be for you? Assuming copyright infringement and sales were not directly linked, which would you choose: reducing copyright infringement or increase sales? In all honesty: I don’t have any lasting solutions for the first; I do see opportunities for the second.

        Personally, I seriously wonder if the third reason isn’t the main reason for the big players like the RIAA and MPAA being in this game. As I’ve noted before: I don’t believe that any of these law proposals like ACTA, SOPA and PIPA would have had a serious impact on copyright infringement, and they’re not likely to increase sales either. What they would do however is give a large portion of control over distribution to the big players. If Viacom had its way, YouTube would never have become a platform capable of rivaling them for the distribution of multimedia. Laws like SOPA would have given them a reasonable chance of stopping a site like YouTube before it got enough financial and political clout.

      • David Newhoff

        Interesting that you ask, Pieter, because I’m trying to write a succinct piece in response to the latest news coming from HBO’s programming director regarding piracy and Game of Thrones. That piece is proving difficult because there are so many parts to it, so a succinct answer to your questions would be even harder, but I’ll try…

        1) Threat to revenue is only one aspect of piracy, and my instinctive assessment is that the lion’s share of producers who exist in between the super-profitable and the nothing-to-lose startups operate on very tight margins that are more easily threatened by digital theft. I also believe since these producers tend to create works that have defined, niche audiences, that the option of free is more likely to steal actual potential customers than with something like a blockbuster movie. This problem only gets worse as the generation that is used to free stuff thinks it’s normal as they grow to become adult consumers.

        2) Piracy should be called what it is, which is exploitation of work without permission and for profit. Even if we could prove that it is revenue neutral or even a boon to promotion (and like I say, it depends case-by-case), I would argue that there is a compelling social interest in deciding whether or not we normalize exploitation of any kind. If we do, I am not alone in predicting that the only revenue stream left to creators will be a form patronage, which is a cultural step backward with regard to free and diverse expression.

        3) Precedent is important in law, as you know. If the RIAA, MPAA, and the big media companies didn’t press their rights — copyright reserves the right of distribution for all rights holders — then those rights would quickly cease to have any value, and that goes for the little guy trying to get his project sold or off the ground, too. Even if there were practical reasons to stop pursuing piracy, the legal precedent could be very damaging indeed. Copyright would cease to exist. That may be what people want, but I think this is an extremely naive view.

      • I think you’re mistaken copyright for trademarks. You can
        safely not enforce your copyright against one party, while
        enforcing it against another. You will not loose copyright due to
        not enforcing it.

      • David Newhoff

        You’re correct, Pieter. I was speaking broadly, suggesting that If those with the resources to sue for the rights ceased to press the issue, that this may threaten the strength of the law going forward. In other words, creating actual precedent a judge could consider. Sorry I wasn’t more clear, and I may be wrong about this.

  • Copyright isn’t going away any time soon. Especially in the
    USA. Intellectual Property and industries that rely on it
    constitutes one-third of our GDP and close to twice that in
    exports. You fancy having a job? For all the Kum-ba-yah about the
    ‘free’ “movement”, at the end of the day –piracy is a for
    en-devour. Open-source is fine.
    People who participate in open-source do so of their own free will.
    More power to ’em. Copyright [when enforced] protects the little
    guy FROM the corporation or business that would otherwise exploit
    without abandon. Sure, companies can benefit too.. but not on
    someone else’s back. Copyright is about choice. Sadly, some have
    gotten it into their heads that their mission in life is to keep
    musicians and other creatives as a permanent under-class, rather
    than get mad at corrupt politicians or Wall Street Bankers.
    Orwellian world where the Indie musician is “The Man” and the
    multinational mega corporations are the heros…

  • Pingback: Copyright is Anti-Civil Liberties? | independen...

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