Copyright and Copyfight

Aram

August 16, 2012

¶ 1 Leave a comment on paragraph 1 0 From its origins, copyright has been viewed in America as a foundational mechanism for a thriving, participatory democracy. As James Madison discussed in the Federalist Papers, copyright law is one of the rare instances in which “the public good fully coincides . . . with the claims of individuals.”[1] By tapping into the power of the marketplace, legal scholar Neil Netanel argues, the Founders believed they could create a “sphere of self-reliant authorship, free from state or private patronage . . . help[ing] to ensuring the diversity and autonomy of the voices that make up our social, political and aesthetic discourse.”[2]

¶ 2 Leave a comment on paragraph 2 0 Yet, even at the dawn of the new republic, the Founders recognized that there must be some limitations on the scope of what we now call intellectual property. As Thomas Jefferson wrote in an oft-quoted letter to a Boston mill owner named Isaac McPherson:

¶ 3 Leave a comment on paragraph 3 0 It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. . . . Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.[3]

¶ 4 Leave a comment on paragraph 4 0 Thus, Jefferson viewed intellectual property as an artifice – a necessary fiction, mutually agreed upon by the state, the citizenry and the marketplace, whose value was limited to its role as an “encouragement” for the sharing of ideas. To put it another way, the marketplace was, by virtue of its plurality, understood to be a lesser of evils, a check on the government’s potential for tyranny, and thus another instrument of leverage for the citizenry to protect individual liberty and the integrity of the public sphere. It was precisely this vision that has been enshrined in the US Constitution, which paves the way for copyright by establishing Congress’ power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[4]

¶ 5 Leave a comment on paragraph 5 0 In the centuries since then, as I have discussed throughout this book, copyright law, media technology and private industry have coevolved, to the point where none remotely resembles the world known – or even anticipated – by Jefferson and Madison. Yet we have never moved beyond the original challenge at the heart of copyright law – namely, the task of striking the perfect balance between government regulation and commercial privatization, ensuring the maximal freedom of speech for the public whom both sectors ostensibly serve. Unfortunately, we now live in an age in which this détente has been compromised. Private industry has consolidated to a near singularity, with a handful of global corporations controlling the vast majority of the revenue-generating music, as well as books, movies, games, and other forms of creative expression, to say nothing of the consolidation of pharmaceuticals, software patents, and other IP-based industries. By the same token, the government has been so thoroughly penetrated by industry lobbying and other forms of corporate influence that it has largely ceased to operate as a check or balance against the excesses of the marketplace, and instead serves as an instrument of market hegemony, both domestically and abroad. The fact that international IP treaties such as ACTA and TPP have been negotiated in secrecy from the public and the news media, but with the full participation of the content industries, is one glaring example of the warped logic that now governs our policies. The recent Supreme Court ruling in Citizens United v. Federal Election Commission,[5] which establishes that the First Amendment protects the right of corporations to spend limitless amounts of money in their efforts to influence the outcome of elections, is another. As a result, the public now has little hope, or even expectation, that “the will and convenience of the society” will be addressed by copyright law, or that “freedom of speech” applies to their own activities beyond sanctioned commercial contexts.[6]

¶ 6 Leave a comment on paragraph 6 0 Given these developments, it is unsurprising that an increasing number of scholars and activists, and a growing segment of the public at large, have come to see the piracy crusade as anathema to what the Pirate Party calls “basic democracy.” But rather than the nihilistic despair and “digital barbarism”[7] some have ascribed to this budding movement, both the scholarly and the popular responses have quickly moved beyond blanket condemnations, and embraced more substantive, nuanced critiques of copyright law and IP policy. Broadly speaking, we have begun, perhaps for the first time since the dawn of the modern republics, to discuss intellectual property law as a vital human rights issue rather than as a matter best left to policy wonks and “experts” in private industry.

¶ 7 Leave a comment on paragraph 7 0 It is difficult to establish the origins of what many have come to call the “copyfight”;[8] some trace it back to the battles over analog reproduction technologies such as VCRs and photocopiers in the 1970s and ‘80s, others cite the contemporaneous hacker culture and the development of the free software movement,[9] while yet others may see the public arguments over P2P, the DMCA and copyright term extension in the late 1990s as a more appropriate origin story. Regardless of the precise lineage, by the turn of the century it was evident to many that these somewhat discrete concerns had begun to merge into a larger discourse. Scholars like Siva Vaidhyanathan,[10] James Boyle[11], Lawrence Lessig,[12] Jessica Litman[13] and Tim Wu[14] published influential books and articles reframing intellectual property law as a regulatory mechanism for public and commercial speech. Pundits like Tim O’Reilly[15] and Cory Doctorow[16] began to critique the language of the piracy crusade, celebrating the social and economic benefits of peer-to-peer culture. Filmmakers such as Brett Gaylor,[17] Benjamin Franzen and Kembrew McLeod,[18] and Andreas Johnsen, Ralf Christensen and Henrik Moltke[19] created compelling visual and narrative arguments to communicate these concepts to a broader public. And advocacy groups like Creative Commons, EFF, Public Knowledge and Students for Free Culture began to develop cohesive educational and lobbying agendas in contrast to those of the piracy crusaders.

¶ 8 Leave a comment on paragraph 8 0 Most importantly, and no doubt in part as a result of these efforts, the general public have become demonstrably more aware – and more actively engaged – with these issues in recent years. My own research has borne this out. Along with my coauthors Mark Latonero and Marissa Gluck, I fielded a survey of American adults in 2006 related to what we call “configurable” cultural practices – namely, mashups, remixes and other emerging digital forms of expression that blur the boundary between traditional production and consumption. This survey included an optional write-in response, inviting respondents to share their “general thoughts about remixes and mashups.” Analyzing the hundreds of voluntarily written responses, we discovered that respondents had adopted several new ethical frameworks to evaluate the validity of these new cultural practices (e.g. “good copying” vs. “bad copying”), and that most of these frameworks had nothing to do with the law whatsoever.[20] When we fielded a nearly identical survey to adults around the globe four and a half years later, in late 2010, we found that most of these ethical frameworks were still in place, but many respondents also explicitly critiqued copyright law as either inadequate to the task of regulating digital culture or as downright antagonistic to it.[21] In other words, in half a decade, public opinion regarding copyright (at least in a digital context) had progressed from “largely irrelevant” to “broken and possibly harmful.” Quantitative research has produced similar results, as well. For instance, Columbia University researcher Joe Karaganis recently found that “solid majorities of American internet users oppose copyright enforcement when it is perceived to intrude on personal rights and freedoms.”[22]

¶ 9 Leave a comment on paragraph 9 0 The copyfight has already yielded some interesting political effects. For one thing, this is an issue that collapses the traditional left/right binary within both American and international political arenas. Successful bills such as CISPA and PRO-IP were passed with bipartisan support. Yet CISPA’s sister bill, the Cybersecurity Act, was blocked by a Republican filibuster, and both COICA and PIPA were effectively blocked by Democratic Senator Ron Wyden. Similarly, European ACTA signatories included both leftists and conservatives, but a similarly diverse mix of politicians ultimately refused to ratify it.

¶ 10 Leave a comment on paragraph 10 0 This stubborn refusal to conform to traditionally polarized party dynamics has already become one of the hallmarks of the copyfight, making it an unusually chaotic and unpredictable element of the political landscape. There are at least three reasons why this has happened. First, the rapidity with which technology, culture and industry now coevolve has made it difficult for any legacy party to effectively integrate a consistent IP position into its platform. For instance, should a small-government, pro-business, unilateralist Republican support or reject a copyright bill that increases federal regulation, funding, and power in the name of protecting private enterprise at home and abroad? How would this same hypothetical politician feel about an international trade agreement that “harmonizes” IP law and coordinates international policing efforts under the auspices of a multi-governmental treaty organization? There is no easy answer to these questions, thus the opportunity – perhaps even the necessity – for new organizations like the Pirate Party to enter into the mix.

¶ 11 Leave a comment on paragraph 11 0 The second reason why the copyfight upends traditional party dynamics is because of its emphasis on personal liberty in contrast to institutional power. Although copyfighters don’t necessarily claim affiliation with or draw inspiration from other political movements organized around this dynamic, they “occupy a point on the political compass where [left and right] curve around to meet in a common war cry: ‘Get the bureaucrats, the plutocrats and the party hacks off our backs,’”[23] in much the same way that historical movements like anarchism and libertarianism, and contemporary ones like the Tea Party and Occupy do.

¶ 12 Leave a comment on paragraph 12 0 The third, closely related, reason for the copyfight’s lack of traditional political valence is the fact that most of the antipiracy agenda’s legislative and executive sponsors appear to be driven more by commercial interests (in the form of the lobbyist carrot and the trade sanction stick) than by strict political ideology. These policies may be justified in the name of partisan party platforms, but ultimately they are promoted and enacted by bipartisan alliances cemented with common patronage rather than common values. To be fair, corporate influence can be seen in the legislative resistance to the antipiracy agenda, as well. For instance, some of the most vocal congressional opponents to SOPA were Ron Paul, Anna Eshoo, and Zoe Lofgren,[24] a politically diverse group of politicians who also happen to be the three top recipients of campaign finance contributions from Google in the House of Representatives.[25] But this fact only further emphasizes the larger point – that traditional party politics play little or no role in the legislative process when it comes to copyright policy.

¶ 13 Leave a comment on paragraph 13 0 The copyfight has had political repercussions outside of the governmental sphere, as well. For one thing, it has galvanized the hacker community (historically, one of the sectors most critical of copyright law, dating back to its role in the privatization of computer code) in a way that few other policy matters do. Over the past decade, “hacktivism”[26] of all stripes, from relatively benign linking campaigns to more destructive activities such as denial-of-service attacks, has become an increasingly common form of protest against new antipiracy laws, treaties and policies. From local matters like SOPA in the US[27] and Sinde’s Law in Spain[28] to global ones like ACTA,[29] both government and commercial organizations have been targeted in waves of attacks whose primary purpose and effect has been to concentrate greater media attention on the implications of these laws and policies for free speech and civil liberties. Of course, as with all civil disobedience, there is an inevitable backlash as well; in the eyes of those who support the antipiracy agenda, such attacks are further proof that pirates and hackers are antisocial forces cut from the same destructive cloth.

¶ 14 Leave a comment on paragraph 14 0 Although a great many local and global groups have participated in hacktivist attacks against piracy crusaders, the unquestionable leader and focal point for such strategies is currently the amorphous hacker collective Anonymous.[30] With their theatrical reappropriation of the Guy Fawkes mask from the 2005 film “V for Vendetta” and their cryptic motto “We are Anonymous, We are Legion, We do not forgive, We do not forget, Expect us!”[31], Anonymous have captured the public imagination and served as a vital educational resource and rallying point for copyfighters and activists outside of the hacker community. In this respect, they play a role very similar to that of the Yippies and the Students for a Democratic Society during the 1960s antiwar, free speech and civil rights movements in the US.[32] Much as these groups did, Anonymous provides those beyond its ranks with a symbolic lexicon that can be applied as a kind of political shorthand for complex technology and policy matters.

¶ 15 Leave a comment on paragraph 15 0 In some cases, this symbolism has even been adopted by policymakers themselves, completing a circuit of sorts. For example, in January, 2012, days after hacktivists took down the Polish government website and replaced it with text such as “Stop ACTA!”, “Prime Minister Donald Tusk is a bad person!”, and “You won’t take away human rights!”,[33] over 30 Polish lawmakers donned Guy Fawkes masks in Polish Parliament to protest the treaty,[34] (see Figure 12) while thousands of citizens rallied in the streets (many of them wearing the masks as well). Ultimately, Tusk was compelled to abandon his pledge to sign ACTA, which was in turn a decisive factor in the broader EU rejection of the trade agreement.
 

Figure 12: Polish legislators wearing Guy Fawkes masks in Parliament[35]