As 2021 winds down, and this blog approaches the mid-point of its tenth year, I ask the following question: Can certain folks stop trying to “fix copyright” in deference to the digital age now that the internet experiment has failed?
For over twenty years, the principal argument underlying the “copyright is broken” narrative has been that the legal framework limits the democratizing power of digital technology to improve the world through unfettered access to everything. That premise was always flawed, but it seems especially absurd today, against the backdrop of evidence that the worst consequences of the digital revolution thus far are attributable to blind faith in that utopian ideal. We can see clearly now that there is no “home of Mind,” as Barlow predicted. There is no global public square where a more enlightened civility transcends the anachronistic laws of “weary nations” through the power of information and an ethics requiring nothing more than the Golden Rule.
Like all utopian visions, tech-utopianism did not account for human nature and human folly—for instance, that emotion is stronger than evidence as a motive for action and that no amount of free access to information is going to alter that principle. It is barely controversial at this point to say that social media has been toxic for certain individuals and for whole democratic societies, specifically because of its power to commend ignorance and for that ignorance to form the nuclei of social subgroups who take harmful action.
Yet, despite the dismaying evidence that science and civility are in retreat in the U.S. and other democratic nations, various organizations and individuals still insist that more access to more content is the antidote and that it is copyright law which stands in the way of salvation. Efforts to weaken the copyright statute, as well as efforts to dilute the efficacy of the law as it is, continue unabated, even while standing in the sticky goo of the failed experiment, which subverted so many principles to that alleged virtue of “openness.”
As discussed in an earlier post, a group of academic librarians met in late March with Brewster Kahle of the Internet Archive and Senator Wyden, and with straight faces, they opined that copyright law needs to change in order to provide better eBook access as an antidote to the disinformation that results in conspiracy theory and violence like the insurrection of January 6. The lack of evidence-based thinking revealed in that conversation alone is an irony that should speak for itself. To imply that making eBook lending cheaper for libraries is any kind of solution to our disinformation problem is magical thinking indistinguishable from the conspiracy theories themselves. And that’s before we address the specific policy flaws in their proposals.
Related to that discussion are the library association-backed eBook licensing bills in New York, Maryland, and Rhode Island, which amount to state compulsory licenses (therefore, likely preempted by federal law); and again, the argument presented for these short-sighted provisions is that communities are “shut out of the marketplace of ideas.” This is rhetoric straight out of the tech-utopian bible—exaggerating the role of the library—valuable as it is—to rescue society from its current perils through more voluminous eBook lending. But as I have previously noted on this topic, the majority of people engaged in some of the most dangerous, idea-free conduct do not suffer from lack of access, and what they do suffer from, librarians surely cannot solve.
Meanwhile, the ALI Restatement of Copyright project presses onward, ignoring criticism from the some of the most respected minds in IP academia, and is another example of an effort to weaken copyright law to serve that chimeric, cultural progress enabled by digital technologies. The 2014 memo articulating the rationale for the Restatement project states, “…it falls to the federal courts to attempt to improve the fit between a mid-20th century copyright law and 21st century digital technologies.” Yes. It falls to the courts. Or to Congress to rewrite the law. But impatient with these core functions of the Republic, a small group of ideologues took it upon themselves to write an alternative copyright law. And in the service of what?
Many of these same ideologues and associated organizations inveighed against passing the CASE Act to provide a small-claim copyright remedy for independent creators. Ironically, this is an amendment to copyright law in response to the digital age—namely, a response to rampant infringement enabled by digital technologies. But the “fixers” of copyright do not support proposals for independent authors to enforce their rights. They will likely continue their opposition as the small claims board begins operating next year, and their attacks will surely reiterate those virtues of digital life which have yet to manifest.
Looking solely at the U.S., it is tough to make the case that the open floodgates on content have, on balance, had a salubrious effect on the quality of discourse. The level of rancor and vitriol, from Capitol Hill to Main Street, has already boiled over in some of the worst spectacles in our history, and it shows no sign of abating. If experiments in copyright “fixing” were a drug trial, and “information” the main ingredient used to fight virulent idiocy, we would have to conclude that the treatment has little or no mitigating effect on the disease. Yet the copyright “fixers” continue to insist that the problem is dosage—that all we need is more.
It is only in the last few years that the American public, Congress, and the press have generally soured on the tech-utopian vision. While complaints vary across the political spectrum about, for instance, the conduct of social media companies, it does seem clear that the policy of laissez-faire for all things internet is about to expire. And a major reason for this change in direction is a broad recognition that the original theory—leading to the experiment in letting everything flow and expecting the good to outweigh the bad—has proven to be deeply flawed. So, in light of the fact that the “fix copyright” agenda was largely founded on the presumed success of that experiment, maybe it’s time to put down the toolbox and take a pause.