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Brito: What’s Wrong With a Copyright Alert System?
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Brito: What’s Wrong With a Copyright Alert System?

I’ve mentioned the (generally excellent) Surprisingly Free podcast before. It’s hosted by Jerry Brito of George Mason, who is refreshingly skeptical of modern patent and copyright and interviews a variety of people with varying degrees of skepticism about the system. But Brito can’t bring himself to oppose patent and copyright root and branch. As I noted in Republicans More Radical than Libertarian Copyright Moderates, Brito says things like:

“If copyright is weak, then it will provide little incentive to create. … But if it is too strong, then it will limit the public’s ability to enjoy and build on creative works, which after all is the reason why we have copyright in the first place.”

When encountering IP maximalists like Stan Liebowitz (Stan Liebowitz on copyright and incentives, who argues for perpetual copyright terms), he is admirably skeptical, but even though he is exposed to more radical IP skeptics like Tom Bell (Tom Bell on copyright reform), again, he continues to argue that copyright is basically legitimate. In a recent Reason Hit & Run blog post, for example, he writes:

I don’t take a back seat to anyone in criticizing our out-of-control copyright system. Copyrights are too long and too strong, penalties for infringement are disproportionate, and federal enforcement has gotten out of hand. Yet those of us who seek to reform copyright should keep in mind that piracy is real, and copyright holders have a legitimate interest in enforcing their rights. [What’s Wrong With a Copyright Alert System?]

No, they do not have a legitimate interest in enforcing the positive monopoly privileges the state grants them, since the state has no right to grant such rights, as such rights are incompatible with legitimate private property rights.

Brito’s post concerns the new “six strikes and you’re out” system for copyright enforcement that ISPs have adopted (Top ISPs agree to become copyright cops)—the new “Copyright Alert System”. Brito characterizes this  system as “the result of a private agreement between ISPs and the recording and movie industries”, even though it is an agreement among an industry of state-caused oligopolists and would never make sense absent state copyright law (Brito recognizes that “The agreement is nominally voluntary, although former New York Attorney General (now Governor) Andrew Cuomo strongly suggested to ISPs that they cooperate, and the Obama Administration’s IP czar Victoria Espinel helped broker the deal”).

Brito downplays concern about this system by saying it’s a “private” system that is better than “public enforcement”:

The EFF and others talk about surveillance and snooping, but in fact the monitoring in question takes place over publicly accessible networks. And while it’s true that the Copyright Alert System’s private arbitration flips the burden of proof, it’s not clear “public enforcement” is really such a great alternative.

Such nominally “private” enforcement might be less-bad than explicit state enforcement, but we get this dilemma only if we fail to consider a far better alternative—abolish copyright—which Brito rules out of court by saying that “copyright holders have a legitimate interest in enforcing their rights” and by opposing copyright abolition. If we insist that we keep copyright, we are left squabbling over who is should enforce this artificial state-granted monopoly privilege: state agencies, or private oligopolized crony capitalist corporations.

As I noted in SOPA is the Symptom, Copyright is the Disease: The SOPA Wakeup Call to Abolish Copyright:

Obviously there is a conflict between copyright and censorship and government control of ideas, on the one had, and freedom of expression and the open Internet, on the other. This is being increasingly recognized. Leo Laporte recognized this in a recent episode of This Week in Tech. You have to choose: the Internet, or copyright, he observed (opposed to technocrat Niley Patel). In the aftermath of the SOPA battle, we have people finally asking important questions. The Washington Times questions copyright abuse in its opposition to the Golan decision. The Daily Caller questions copyright’s legitimacy. Mark McKenna at Slate, in Don’t Stop at SOPA, asks: “SOPA and PIPA are (almost) dead. Now can we talk about the law that already exists?”. Glyn Moody at Techdirt asks the important question: OK, So SOPA And PIPA Are Both On Hold: Where Do We Go From Here?

And what is the answer? Some people are hinting at it, or directly suggesting it: abolish copyright. As Rick Falkvinge observes in It Is Time To Stop Pretending To Endorse The Copyright Monopoly,

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.

Falkvinge here recognizes that if you support copyright, you should support SOPA. And conversely–if you oppose SOPA, you should oppose copyright. Copyright is the problem, people.

We are at a moment in history where people who have absorbed the idea of copyright, but who are not ideologically committed to it, have seen that it conflicts with more deeply held values: freedom of expression, commerce, digital life, the Internet. They are seeking for a framework, a way to coherently express what they sense is wrong with escalated copyright enforcement. We need to let them know: the problem is copyright itself. If you have copyright of course you want to enforce it. All the problems we see are merely symptoms of the copyright mentality.

We must press our fleeting advantage to let our half-hearted allies know that their intuitions are right: censorship and SOPA and state control of private property and SOPA are wrong. And this means copyright, which is the engine behind all these things, is wrong, and must fall, or at least be radically scaled back, not strengthened.

…  the dangers of SOPA are already here.7 This is because of copyright.

The problem is that all the people opposing SOPA undercut their opposition by acknowledging the importance of copyright and IP, by condemning piracy. It is admirable that they are taking the right side of the chasm caused by their cognitive dissonance, but dissonance it is. If you support copyright, you oppose piracy, and you support the state’s existence and its attempts to enforce these “property rights.” You cannot have both copyright, and Internet freedom/freedom of speech. The threat here to property rights, to individual rights, to Internet freedom and freedom of speech and expression and the press comes from copyright itself. We must strike at the root. SOPA is just a symptom of the disease. The disease is copyright. Everyone is trying to treat the symptom–enforcement efforts like SOPA–with half-hearted treatments like labeling the response “disproportionate” or going “too far.” This is like trying to treat a brain tumor by taking Tylenol–sorry, acetaminophen–in response to the headaches caused by the tumor. All opponents of SOPA and censorship, all denizens of the web and proponents of freedom, must oppose copyright itself (and patent too).

Those libertarians8 and others who oppose SOPA and who are for copyright reform, but who are not for copyright abolition, should realize that a modest, fair, efficient, “reasonable” or “sensible” copyright system is completely impossible. Since the dawn of copyright its scope, length, penalties and enforcement have only increased, because of the relentless pressure by special interest factions like Disney, the RIAA, the MPAA, and other content providers and entrenched interests. As we can see with the pressure to adopt SOPA, PIPA, PRO-IP, DMCA, Berne, WIPO, TRIPS, COICA, Sonny Bono/Mickey Mouse Copyright Term Extension Act, ACTA, the TPP, and other measures (see The Mountain of IP LegislationDeath by Copyright-IP Fascist Police State Acronym), the Big Content interests are relentless and will not stop pressuring Congress and other legislatures to expand the war on information sharing and the Internet. Even if we had a less noxious copyright system–say, one with 10 year terms and less draconian penalties and enforcement–it would soon metastasize into what we have now, just as it has done (originally 14 years, now it is over 100). So a modest, “reasonable” copyright system is really off the table. The question that SOPA opponents have to ask themselves is: would you rather have today’s copyright system, with its draconian terms and penalties and continual pressure to expand and internationalize it, or no copyright at all? Only one of these choices is compatible with opposition to SOPA and to censorship. The only way to stop SOPA type provisions and to maintain Internet freedom, is to get rid of today’s copyright system.

Update: See Rick Falvinge’s proposals for copyright reform (most of which I agree with) in It’s Time To Go On The Offensive For Freedom Of Speech; my own proposals for copyright reform may be found inHow to Improve Patent, Copyright, and Trademark Law.

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To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.