It Is Time To Stop Pretending To Endorse The Copyright Monopoly

by Stephan Kinsella on January 5, 2012

Fantastic Techdirt post by  Rick Falkvinge is the founder of the Swedish and first Pirate Party (below). He is right: if you have copyright, increasingly draconian laws, like the Stop Online Piracy Act, aka SOPA, are necessary. Copyright is the problem. Copyright is contrary to free speech, freedom of the press, and digital and Internet freedom. You cannot have both. Only a couple of quibbles: I disagree that there is a “right” to attribution, though he doesn’t think it should be a law, so it’s not really a (legal) right he’s talking about. And his comment here:

Any law must be necessary, effective, and proportionate: it must identify a real problem that needs legislation, it must solve that problem, and it must not create worse problems in the process.

presupposes that law is legislation, that legislation is the way law is or should be made. It is not. Legislation requires a (criminal) state, for one, so is for this reason alone is illegitimate. And even if you have a (minimal) state, a decentralized, court-based legal system such as the Roman law or English common law, is preferable to a legislature, for the formation and development of law. (See, on this, Another Problem with Legislation: James Carter v. the Field Codes.)

It Is Time To Stop Pretending To Endorse The Copyright Monopoly

from the but-but-piracy dept

There is a saying in the political discussion in Sweden: “Anything you say before but in a political statement doesn’t count.” We’ve seen a lot of that practice in recent years with increasingly horrendous cultural monopoly laws.

People in corporate and political suits alike are climbing on top of one another to be the most statesmanlike in stating “We are fully committed to the copyright monopoly, but these proposed enforcement laws are just nuts”, worded in all the synonyms you can find in a thesaurus.

Why? Why do people feel forced to phrase their views on policy like that?

If the enforcement laws are nuts, but still needed for the monopoly to be effective, why is the part before the “but” there — where people say they support the copyright monopoly, but are firmly rejecting the laws needed keep it in effective existence for a few more years?

For I believe that the copyright industry is actually right that these ridiculous laws are needed to sustain the copyright monopoly. General-purpose networked computers, free and anonymous speech, and sustained civil liberties make it impossible to maintain this distribution monopoly of digitizable information. As technical progress can’t be legislated against, basic civil liberties would have to go to maintain the crumbling monopoly. And these are the laws we’re seeing on the table.

There comes a tipping point when somebody says that this entire system of cultural monopolies is absurd. A tipping point where the part before the “but” is unceremoniously and collectively dropped, the part that didn’t count anyway. A tipping point where everybody just stops pretending to support it. I think it is time to create that point on the history line.

For what is the copyright monopoly, anyway? It is a set of monopolies from the era of guild-regulated commerce, when privately dictated monopolies were the norm and the expected. Specifically, the eldest tradesmen in every guild dictated what, where, and how trade happened within that craft. The copyright monopoly is a remnant from this era that should have been thrown out with the establishment of free enterprise laws in the 1850s.

Also, it is not really one single monopoly, but five quite different ones that are lumped together under a common umbrella term.

The first two types of copyright monopoly are commercial monopolies on duplication and public performance. These are the monopolies usually broken by today’s free communication, the monopolies that can’t coexist with today’s technology and sustained civil liberties.

Then, there are two kinds of moral rights – droits morals. There is the right for the creator to prevent any performance, derivation, remix, satire, etc. of a piece that they do not approve of, and there is the right for a creator to be credited as such.

(I actually support this last right — the right to credit. But does it really require legislation? The social, corporate and academic penalties for plagiarism are much higher than those of the law. Why is that particular law needed, then?)

The fifth monopoly isn’t technically part of the copyright monopoly, but is frequently called “copyright” anyway. It is the so-called “neighboring rights” that were the result of the record industry’s corporativization as IFPI in then-fascist Italy: the duplication monopoly over specific recordings. This, too, is broken by today’s free communication.

I sometimes hear the old guard say that there would be no culture if there was no copyright monopoly. That is an outrageous insult to creators all over the world today. We create not because of a monopoly, but because of who we are; we have created and shared culture since we learned to put red paint on the inside of cave walls. Today, about eight years’ worth of video are uploaded to YouTube every day.

People today create not because of the copyright monopoly, but despite it.

The second common question is how the artists shall get paid. That, too, is a red herring. First of all, it is not a policy problem, and second, it is not a problem at all.

This pretense from the old guard goes well in hand with the origins of the copyright monopoly. It was never for the artists at all. When the copyright monopoly was first created on May 4, 1557, it was a means of censorship of political dissent. It lapsed in 1695. When it was reinstated in 1709, it was at the request of printers and distributors who had gathered their families on the stairs of English Parliament to claim that no culture would be printed or distributed if they didn’t get their monopoly reinstated.

Nobody at the time thought to claim something as preposterous as the copyright monopoly being a precondition for people wanting to create culture. It never was.

On the contrary, it is a guild-era instrument. To show a parallel, buttonmakers in France in the 1600s went berserk when tailors bypassed them and made buttons out of cloth instead. They demanded the right to invade people’s homes and search their wardrobes for violations of the guild privileges. Sound familiar?

Another parallel also happened in France, where certain popular printed cloth fabrics were monopolized. People manufactured them anyway, and the nobility responded with increasingly harsh punishments for violations of their monopolies, up to and including death by torture. Even the death penalty didn’t stop that copying. How far is the copyright industry prepared to go? They never answer that question.

Any law must be necessary, effective, and proportionate: it must identify a real problem that needs legislation, it must solve that problem, and it must not create worse problems in the process. No aspect of the copyright monopoly meets these three legislative quality criteria. Therefore, I reject the concept as a whole.

I reject and oppose this monopoly that was never for the creators, but always for the distributors: a guild whose time is up and obsolete, and which has no business trampling on our civil liberties.

Let’s see more people drop that part before the “but”. If the copyright industry is right in saying that these laws are required to maintain the copyright monopoly, and I think they are, then that just underscores how we should stop pretending to endorse this guild-era monopoly, and instead say it is time for it to go.

And nobody will think the worse of you for stating that opinion. Quite the opposite. Nobody expects an honest politician or corpsuit.

Rick Falkvinge is the founder of the Swedish and first Pirate Party. Follow him as @Falkvinge on Twitter, read his private blog, or get him for a keynote.

Share

Facebook comments:

Previous post:

Next post: