Alternatives to the piracy crusade

Aram

August 20, 2012

¶ 1 Leave a comment on paragraph 1 0 The bulk of this book has focused on debunking the arguments at the heart of the piracy crusade, and documenting the social and political costs of the antipiracy agenda. Yet I would be remiss if I did not devote at least a part of my final chapter to discussing some of the alternative ideas that have emerged in response to these policies. But before I review these ideas, it makes sense to begin with a few “first principles.” What are the social benefits of intellectual property? What problems does it exist to solve, and how well does it do so? Only by keeping these ends in sight can we evaluate the different means that have been proposed to achieve them.

¶ 2 Leave a comment on paragraph 2 0 As I discussed earlier, one of the primary functions of copyright, patents, and other species of IP is to incentivize creators to share their ideas with the world. A second, related function is to provide such creators with a means to capitalize on their innovations. In addition to providing creative incentives, this also speaks to a basic expectation of fairness that is commonly invoked in capitalist societies – creative work, like all other forms of labor, should be remunerated.[1] A third function has to do with the reputational economy, rather than financial remuneration: copyright allows creators to take credit for their work, which has social and psychological benefits in addition to financial ones. A fourth function of copyright is to grant creators some degree of control over how their work is used by third parties. For instance, the late Adam Yauch (a.k.a. MCA) of the Beastie Boys has used his copyrights in the band’s repertoire to posthumously prevent the songs from being used “for advertising purposes,”[2] a stipulation in keeping with his lyrical pledge not to “sell my songs for no TV ad.”[3] A fifth function, which I mentioned earlier in this chapter, is to provide the citizenry with a mechanism for checks and balances against both governmental and commercial encroachment on free speech. A sixth function of copyright is to incentivize industrial organizations to exploit creative work, thereby both spreading new ideas and generating new wealth for the economy. This is a hefty load for one law (more precisely, one set of laws and policies) to carry. Inevitably, in the shaping and execution of these policies, one function must be weighed, and privileged, against another. As I hope I have demonstrated in this book, the problem with the piracy crusade isn’t copyright per se, but rather the fact that it overwhelmingly privileges the sixth function, often to the detriment of the first five.

¶ 3 Leave a comment on paragraph 3 0 One of the earliest modern efforts to reprioritize the functions of copyright came in the form of free software licenses (sometimes used interchangeably with the term “open source”).[4] In what has now become the stuff of geek legend, computer hacker Richard Stallman pioneered this new breed of legal instrument in the 1980s with the development of the GNU General Public License (GPL).[5] Stallman had been frustrated when the de facto public domain that had characterized the software coding community from its earliest days began to be privatized; not only was code being copyrighted, but commercial interests were shipping software without granting purchasers access to the “source code,” which would allow them to make their own edits and amendments. As a result, much of the code that Stallman and his peers had written, with the expectation that it would remain publicly available to the hacker community, was being integrated into commercial projects and essentially locked behind digital bars. Stallman’s solution to this problem was a stroke of genius: He would turn copyright inside-out (or backwards; this solution is often referred to as “copyleft”), using a license of his own devising to force anyone who used his code to make it available to third parties on the same terms.[6] The GPL has become a canonical text within the hacker community, and today it and dozens of similar licenses have been used to establish openness for millions of works, including some of the world’s most popular software programs and web destinations.

¶ 4 Leave a comment on paragraph 4 0 More than a decade after Stallman’s revelation, law professor Lawrence Lessig recognized that culture at large faced challenges similar to those Stallman had identified in the field of computer code. Between copyright term extension, the DMCA, and other elements of the budding piracy crusade, Lessig worried that the cultural “commons,” or the shared knowledge and experience of our society, was being increasingly encroached upon by private interests – even as new digital communication networks were providing us with the power to share ideas on a scale hitherto unimaginable. Lessig foresaw that the combination of stronger copyright and more powerful networks would soon turn virtually everyone into “pirates” by default, so he set out to create a legal inoculation in the form of an open license for creative expression.[7] The resulting legal instrument, which is called a Creative Commons (CC) license,[8] is similar to the GPL in that it gives musicians, authors, artists and other creators the opportunity to use their copyrights as a means to encourage, rather than discourage, the reuse and redistribution of their work. One of its most important innovations is that it gives the author herself the ability to prioritize between copyright’s various functions; for instance, while one breed of CC license allows any kind of use as long as attribution is granted to the original creator, another only allows noncommercial uses, and yet another prohibits derivative works. In the decade since the CC license was developed, hundreds of millions of works have been released under its terms, including the White House website, Wikipedia, music by popular artists including Nine Inch Nails, Beastie Boys and Snoop Dogg, and this book.[9]

¶ 5 Leave a comment on paragraph 5 0 While open licenses like the GPL and CC attempt to address the shortcomings of copyright by augmenting it contractually, others have proposed simply abolishing intellectual property law altogether and replacing it with a new regulatory system. For instance, Dutch researchers Marieke van Schijndel and Joost Smiers have proposed that all creative works be immediately absorbed into the public domain (a legal concept that describes information that cannot legally be propertized, although the authors explicitly synonymize it with the commons).[10]

¶ 6 Leave a comment on paragraph 6 0 Van Schijndel and Smiers envision three possibilities for creators under this solution. For those in relatively low-investment, low-risk fields (such as musical performers), the authors suggest that a “first-mover advantage” will allow innovators to benefit, simply by virtue of being reputationally and economically associated with the new ideas they promote. True, performers can’t expect royalties from recordings, they argue, but the loss of these typically meager sources of revenue will be offset by increased income from other sources, such as live performances. For creators in higher-investment or higher-risk fields (such as cinema, book authorship and music composition), the authors suggest an usufruct, a legal instrument that predates copyright by millennia. In the present context this term means that although the creator doesn’t technically own a work, she retains the exclusive right to exploit it commercially for a limited period of time (the authors suggest a year). This is a less radical proposal than it may seem; in its emphasis on temporary rights of exploitation rather than permanent rights of property, the Jeffersonian and constitutional approach to copyright more closely resembles such an usufruct than it does modern copyright law (a fact the authors fail to mention due to the fact that they are Dutch, rather than American). Finally, van Schijndel and Smiers suggest that works that may be difficult to exploit commercially can be subsidized by the government, further justifying their public domain status. Again, this proposal is hardly radical; even in America, the land of free enterprise and low taxes, we currently spend over $150 million per year on the National Endowment of the Arts, one of many public sources of funding for creative works.

¶ 7 Leave a comment on paragraph 7 0 While ideas such as open licenses and the usufruct system have emerged from outside of traditional government and policy circles, alternatives to the piracy crusade have been proposed by lobbyists, legislators and regulators, as well. In the US, the Pirate Party advocates reducing copyright terms from their present length (an author’s life plus 70 years, or 95 years for a commercially-funded work-for-hire) to the original 14 year term that existed when copyright was first introduced in this country.[11] The party has also advocated for the abolishment of the DMCA (hence the title of its recent publication, No Safe Harbor), and for the expiration of unproductive patents after four years.[12]

¶ 8 Leave a comment on paragraph 8 0 Members of traditional political parties have also proposed their own solutions. For instance, Republican Congressman Darrell Issa has advocated strongly for a “Digital Citizen’s Bill of Rights” to guide IP- and communications-related law and policy. This approach strikes a very different balance than the antipiracy agenda, establishing “freedom,” “openness,” and “equality” as its first three principles, and relegating “property” to the tenth, and final place. Together with Democratic Senator Ron Wyden, he has promoted legislation called the Online Protection and Enforcement of Digital Trade (OPEN) Act in both houses of Congress as an explicit alternative to SOPA, PIPA and similar legislation. In an effort to deliver on the spirit of the legislation and to highlight its contrasting values with the lobbyist-driven antipiracy agenda, Issa has also made drafts of the law available for public comment on a dedicated website.[13]

¶ 9 Leave a comment on paragraph 9 0 Government-driven alternatives to the piracy crusade have begun to emerge elsewhere around the world, as well. Like those in the US, they run the gamut from flat-out rejection of the antipiracy agenda to more conciliatory approaches apparently aimed at furthering industry interests while forestalling the kind of activist backlash spurred by SOPA, PIPA and ACTA. In the UK, a series of studies released in 2012 by the government’s Intellectual Property Office have identified the music industry as a primary example of the mismatch between copyright law and digital commerce and culture. The reports suggest that an independent, industry-funded “digital copyright exchange” be established in order to “streamline and simplify” the process of using copyrighted material in a variety of contexts, ranging from educational to religious to commercial settings. This solution is presented as a quid pro quo deal for the content cartels in their efforts to develop ever stronger copyright enforcement:

¶ 10 Leave a comment on paragraph 10 0 If the creative industries ensure that they have done all they can to make licensing and copyright work easier for rights users and therefore consumers, then the ball is firmly at the feet of the politicians to ensure appropriate measures are in place to reduce the incidence of copyright infringement on the web.[14]

¶ 11 Leave a comment on paragraph 11 0 Other examples abound, from Europe to Asia to South America. A Dutch government directive instituted in 2006 prevents enforcement authorities from pursuing criminal prosecution for online “piracy.”[15] In 2011, the Swiss government announced it would not pass stronger IP laws, and would allow unlicensed downloading for personal use to remain legal, because “its priority was to avoid limiting access to information through copyright regulations.”[16] In Brazil, despite the “maximalist approach to copyright protection that currently dominates”[17] its laws and policies, there have been several government-driven efforts to mitigate the effects of the piracy crusade. Most notably, musician Gilberto Gil, who served as Minister of Culture from 2003-2008, established a relationship between Brazil and Creative Commons that included placing government websites under an open license and initiating unprecedented open public debates on the social and economic impact of copyright legislation (in 2011, incoming Minister of Culture Ana de Hollanda issued an order to remove the CC license from government websites).[18] Brazil has also recently introduced some intriguing copyright reform proposals, including a bill that would have issued penalties and sanctions against companies that used DRM to prevent fair use or access to the public domain,[19] and a 2010 policy rejecting DMCA-style notice-and-takedown policies and instead requiring a court order for infringing material to be removed from the internet at the behest of rights holders.[20]

¶ 12 Leave a comment on paragraph 12 0 In India, the government has spent the past few years in a sustained court battle with multinational pharmaceutical conglomerate Novartis over its 2006 decision to reject a patent for life-saving antiretroviral (ARV) drugs that battle AIDS and related diseases. Novartis argues that, under the TRIPS agreement, India is obliged to grant the patent. The Indian government argues that the drug in question is minimally differentiated from existing compounds, and therefore that granting the patent would only serve the function of building Novartis profits while inflating the cost of these life-saving drugs beyond a price point that most infected people can afford.[21] Given the fact that about 2.4 million Indians are currently living with HIV, it is no exaggeration to say that millions of lives hang in the balance. At the time of writing, the Indian Supreme Court is preparing to hear final arguments in the case.

¶ 13 Leave a comment on paragraph 13 0 In short, the alternative to the antipiracy agenda isn’t simply lawlessness, anarchy, or socialism, as its proponents routinely suggest. Independent researchers and international governments alike have proposed, and in some cases enacted, a diverse array of alternate laws and policies that strike a different balance between copyright’s competing mandates, privileging such values as freedom of speech, access to knowledge and quality of life over the profit motives of the cartelized industries that lobby for, and disproportionately benefit from, maximalist copyright and IP laws. The fact that so many independent sovereignties have challenged the piracy crusade on their own terms, according to their own needs, and in spite of the threats of trade sanctions and other diplomatic and market pressures I described in Chapter 8, lends credence to the point of view that “harmonization,” far from providing a convenient and mutually beneficial one-size-fits-all platform for international IP enforcement efforts, can best be understood as an instrument of American industrial hegemony.

¶ 14 Leave a comment on paragraph 14 0 From this, we can draw two conclusions. First, resistance to the antipiracy agenda shouldn’t be interpreted as a de facto attack on American interests, capitalist values, or the rule of law. To the contrary, in almost all cases it amounts to a political argument in support of basic human rights and equal opportunity in both the political and commercial spheres – which are themselves foundational American values. Second, the fact that no single “solution” emerges in contrast to the antipiracy agenda shouldn’t be taken as evidence of a lack of viable alternatives. A key fallacy of the piracy crusade is the notion that a single set of laws and policies should govern all uses of information, by all people, in all social contexts, in every nation around the globe. As its more astute critics routinely observe, a better approach is a multiplicity of approaches, granting governments, markets and societies the leeway to regulate information sharing on their own terms, in response to the unique challenges and value systems that inhere to their particular spheres. Simply speaking, why should Hollywood set the terms by which the other 7 billion people on the planet can communicate?