Is De Facto Copyright Reform Enough Without Legal Change?

-- By GavinSnyder - 31 Dec 2009

The Copyright Act is designed around a pre-computer information ecosystem where copying was hard. Likely infringers were large corporations or artists. But today, copying is not only easy, it’s impossible to avoid. People who have grown up around computers don’t treat copyright with much reverence. Instead, they have contempt for a system that levies excessive statutory damages against infringers. Digital culture has evolved to be the enemy of closed content. Digital culture prizes openness, free information exchange, remixing, and lack of hierarchical control. Opposed are the entrenched copyright holders: the movie, publishing, and music industries, and their elected supporters. They prefer top-down creation and distribution models. They think that the moral rights of artists and creators are more important than sharing.

The two sides are locked in battle, but it’s increasingly obvious that copyright reform is going to win. Ever-faster broadband speeds and Internet connectivity make it trivial to copy all types of information. Kids vote with their feet to ignore copyright. The RIAA’s recent decision to stop its campaign of lawsuits against individual file sharers is implicit recognition that the copyright industry can’t succeed in intimidating file sharers.

Essentially, copyright law is no longer enforceable. Content industries are shifting their business models. But Congress is still in their pocket; the US wants to protect copyright industries as a matter of industrial trade policy. Many people still believe that statutory monopolies are necessary to incentivize people to create. And even though the moral rights of artists have never been recognized in the US, there remains a sense that unauthorized copying is “stealing.”

Is the status quo the victory that the copyright reform movement has been looking for? Or is the final step, actually changing the Copyright Act to remove some or most of the exclusive rights of copyright holders, necessary?

Many Other Activities are Illegal but Tolerated

Institutionalized lawbreaking is common in traffic, immigration, pornography, and drugs. Society survives. For all of the talk of the sanctity of the rule of law, people are perfectly capable of discriminating between good laws and bad laws, and picking and choosing which to follow. Similarly, prosecutors have the discretion to selectively enforce laws, and they pick those that have the most congruence with our innate feeling of right and wrong. As long as there’s a shortage of law enforcement and prosecution resources, copyright infringement by individuals isn’t going to be prosecuted.

Copyright infringement is a private cause of action as well. The RIAA filesharing litigation campaign, however, has shown the folly of suing individuals. And peer-to-peer networks are being architected to be outside the control of any one organization, to avoid secondary liability.

The status quo, then, still allows traditional copyright dispute resolution over authorship, licenses, etc. Large organizations still have to follow copyright law. But individuals are free to copy to their heart’s content. In exchange, copyright holders get to intimidate remixers and university students. Lawyers act as foot soldiers, shaking down targets for protection money. These are the overhead costs to a tolerated use regime.

Statutory Reform is Unlikely in the Near Future

Congress has proven to be susceptible to capture by advocates of strong copyright. The Sonny Bono Copyright Term Extension Act and similar atrocities passed without much opposition. Because strong copyright is key to the livelihood of the copyright industries, they’re prepared to spend vast sums to lobby for its perpetuation. Conversely, the copyright reform movement is reliant on handouts for funding. And although Silicon Valley would benefit from copyright reform, it’s not as key to their success as its enactment would be to the demise of the copyright industry; cornered beasts fight the hardest.

Politicians are old, and set in their ways. Most likely, far-reaching copyright reform will have to wait for a new generation of leaders, raised in a digital world, to get power.

However, the DMCA was, in many ways, a compromise bill that, perhaps unintentionally, paved the way for mass copyright infringement. By allowing web sites like YouTube to facilitate mass infringement via user generated content, as long as they followed the “notice and takedown” scheme, the DMCA opened the floodgates to an erosion of the exclusive rights normally reserved to copyright holders. Copyright holders now have to police user generated content and ask for infringing content to be taken down. Because of the proliferation of sites and files (20 hours of video are uploaded to YouTube every minute), this is impossible without digital watermarking technologies, which are flawed because they cannot screen for fair use. Copyright holders face a Catch-22.

Copyright Activists Should Declare Victory and Go Home

The copyright landscape of 2010 is already almost all that a copyright abolitionist would want: everything of interest can be had for free on the Internet, creativity flourishes, and artists are learning to exploit alternative revenue streams. The price of copyright utopia is that everyday activities are illegal and copyright holders can harass and threaten, and occasionally get an outlandish money judgment.

Is this victory, or does true victory require the legal abolition or reform of the Copyright Act?

The incremental costs seem to be too large, and the likelihood of success so slim in the near future, that activists should quit and enjoy their pirated movies in peace. The world they worked for has arrived. Technology and culture have been launched on an unalterable trajectory that tolerates copying and noncommercial modification by individuals. And having strong copyright on books allows the open source movement to flourish around the GPL, and for institutional content creation to still happen. Fixating on legal perfection is unnecessary and wasteful when the status quo of tolerated use and ineffectual enforcement delivers freedom from copyright oppression with acceptable tradeoffs.

Of course, nobody will actually relent or shut up -- it's much too fun to debate the issues. But copyright activists should realize that the current situation isn't so bad, and is a de facto loose copyright regime.

The problem is that the copyrights industries realize that too, and are constantly pressing to mandate controls over consumer-facing technology to put the copyright system's pro-owner features beyond the reach of non-compliant human decision-making. Without the activism, pressure against these constant initiatives (in national legislation country by country, in bilateral and multilateral trade agreements, in industry standards fora, and in other venues) would be hard to maintain. You can't declare victory if the other fellow won't stop fighting.