The people vs. copyright: summary, response, and next steps

The debate on The People vs Copyright in openDemocracy was kicked off by Bill Thompson, James Crabtree and Paul Hilder. In their introductory article, they have described the clash over copyright issues, which currently takes place between “radicals, armed usually with clever software and too much coffee” and “copyright holders, armed with crack legal teams and four centuries of jurisprudence.” Unfortunately, as the authors point out, “these people don’t like each other much, and rarely meet outside a courtroom.”

There, in a nutshell, is the problem. The current discussion around copyright is predominantly a hysterical one, in which conflicting parties talk past one another. As a consequence of this, new developments in copyright and its regulation are rarely the outcome of conscious, informed debate. Instead, they evolve in the midst of an unhappy combination of blind idealism (the notion that petulant civil disobedience amounts to a defence of our freedoms) and blind fear (the desperation to protect vested interests in the face of new technology).

Rather than face the challenges to (and opportunities for) business posed by new technology, the entertainment industry has chosen to make criminals of its consumers, depicting them as pirates instead of thinking creatively about how to profit from their interests and activities. Legal clampdowns – and, worse, extra-legal and technological clampdowns – are being used artificially to preserve old ways of making money, in a new age of consumer behaviour. This restriction of our liberties reflects a strong current of risk aversion that runs through business today, with companies going out of their way to avoid the need to develop new business models.

Such risk aversion has its precedents. Recording artist Janis Ian points out that: “the music industry responded exactly the same way to the advent of reel-to-reel home tape recorders, cassettes, DATs, minidiscs, VHS, BETA, music videos, MTV, and a whole host of other technological advances.” In each of the examples she has given, business tried to demand of innovation that its consumer uptake be stopped but, instead, innovation ended up demanding of business that it be a bit more innovative.

Consumers are valued by industry as a source of profit, but they are also despised by industry for challenging it to innovate. This schizophrenic attitude towards the consumer is exhibited by Jack Valenti, Chief Executive Officer and Chairman of the Motion Picture Association of America, who claims that “given the choice between a legal alternative for watching movies and stealing, I believe the vast majority will choose the legitimate alternative, but only if we do not allow lawlessness to become ‘mainstream’”. A translation might be: “I trust the public enough to let them choose, but only if they are made to choose what I want them to.”

Abandoning, or using, the law?

Self-styled “last true hacker” Richard Stallman, who supposedly contributes to this debate from an opposite perspective to that of Valenti, mounts a useful critique of current trends in copyright by drawing on a broader historical context. But Stallman’s emphasis is dangerously misplaced. While he argues correctly that “new technologies have altered the consequences of the copyright bargain we struck three centuries ago,” he then asserts that “copyright in the age of the computer network is a restriction on the general public, not just on industrial regulation.”

Stallman misses the overriding point here. For good or ill, copyright has always been “a restriction on the general public”. What networked computing has done is to remind us that copyright is also supposed to be a restriction on the industry. As Michael Fraase points out: “the Internet allows ordinary citizens to exercise fair use rights in ways never imagined by the entertainment industry.” We must seize the opportunity presented by today’s technology to mount a defence of our fair use rights.

The problem with Stallman’s position is its utopianism. By arguing first and foremost that copyright needs to be overhauled, Stallman fails to defend adequately those limited parts of traditional copyright regulation that protected our interests and are now being systematically undermined. The industry may claim that it seeks only to protect traditional copyright, but in truth it is as intent on overhauling copyright as Stallman is – albeit for very different reasons.

Stallman’s argument – that “once you reject uniformity” in copyright law, “you can tailor the amount of copyright, keeping in mind the social uses of different kinds of works” – plays right into his opponents’ hands. Even where the law is unjust, and needs to be attacked, it is rarely in the interests of individual freedom to choose as your point of attack the law’s uniformity. While we live in a capitalist society, the latitude to interpret and apply laws that are not uniform belongs to those with vested interests, not to the people.

Already, the entertainment industry extols the law only selectively, where it is in its interests to do so – for instance, where it protects the right of artists to be rewarded. Elsewhere, industry either bends the law – several contributors to the debate refer to the industry’s disgraceful repeated lobbying for the extension of copyright duration – or withdraws from it, taking refuge in self-regulation and rights management technology.

This tendency to withdraw from the law is the aspect of copyright legislation which poses the greatest threat to individual freedom today. Eric Raymond mounts a wrongheaded defence of such withdrawal, arguing: “when you take things out of the hands of the law, people usually benefit.” But this argument only holds true when the power of the law is replaced by that of the people. At the moment, copyright regulation is being irretrievably put into the hands of the industry.

Self-regulation and rights management technology leave us with the most restrictive aspect of copyright law – its circumscription of fair use – and none of the legal protections that are supposed to go with it. As Richard Stallman points out, rightsholders are no longer accountable in any practical sense to copyright laws laid down by a higher authority. Instead, they “can set their own copyright terms, which have the force of law, as long as they implement them technologically.”

Making vigilance happen

The most valuable contributions to the “People vs Copyright” debate have been those which recognise not only the danger of regulation implemented technically – namely, that it cannot be properly challenged – but also the limitations of fighting technical regulation on technical terms. As Ian Kearns argues: the “widely held belief about the Internet…that it is an essentially free and ungovernable space…is flawed because it underestimates the variety of ways in which governments can exercise regulatory power.”

When you rip MP3s, when you share files peer-to-peer, when you fight encryption with decryption, you only exercise freedom under this limited assumption that the Internet is “an essentially free and ungovernable space”. Exercising freedom in such a narrow technical sense has unfortunate consequences, as Siva Vaidhyanathan explains: “…civil disobedience isn’t necessarily changing the terms of discussion or understanding. All it’s really doing is embodying and growing…negative cynicism about copyright.”

Vaidhyanathan goes on to warn us that even if we “know we don’t want oligarchy” on the Internet, nonetheless “we may get it because we’re not being vigilant.” Vigilance involves doing more than conforming to the industry stereotype that all of us are pirates. It involves sustained, informed, conscious, public debate.

Vaidhyanathan aspires to have “the sorts of discussion we haven’t yet reached because we’re so busy with screams of theft or freedom.” This stimulating debate on openDemocracy has certainly got us one step closer to having such an enlightened discussion. In late August, the publication I work for – spiked – intends to take another step in the same direction, by hosting an online debate around the question: “Is self-regulation a legitimate approach to protecting copyright on the Internet?”

I’ll see you there.