One of the recurrent themes on Techdirt is the harm caused by intellectual monopolies – copyright and patents – to the economy in particular, and to society in general. Stephan Kinsella has raised an interesting question: which of them is worse?

There are many Types of Intellectual Property, and all of them are bad, and most of them are getting worse and expanding. The worst two by far are patent and copyright. Some say the patent system is worse than copyright, because most innovations are inevitable anyway and there is no independent inventor defense, whereas it’s unlikely someone else would independently write Romeo and Juliet (of course, Shakespeare had no copyright and he borrowed freely from previous stories, but let’s not let facts get in the way of the romanticized notion of copyright). This argument overlooks the fact that copyright prohibits not only literal copying but non-literal copying of “similar” aspects of the copyrighted work and also the making of derivative works.

Others think copyright is worse because it lasts longer, for example.

In the end, he plumps for copyright, and gives three main reasons.

Length. The patent term is about 17 years, while copyright usually lasts over 100 years (life of author plus 70 years).

It's interesting that there hasn't been the same push to lengthen the patent term in the same way as for copyright. Is that just because it needed companies like Disney with skilful lobbyists to push through legislation extending copyright, or is there some reason that people feel that the heirs of artists have a greater "right" to this protracted monopoly than the heirs of inventors?

Trends. Copyright law keeps getting worse, while patent law has been basically the same for a while now, and in fact has slightly improved–in recent years it’s more difficult to get injunctions; and the recent patent reform law, the America Invents Act, actually added a general prior commercial user defense, the first significant legislative improvement to patent law … ever.

Again, is that simply a function of corporate greed being more prevalent in the copyright industries? Or maybe it's because there is a greater concentration of power in the world of music or films, say, that makes it easier for a few corporations to exert pressure on politicians. There is no equivalent concentration in the patent world. In fact, there is a very clear tension between different sectors – the pharmaceutical industries just can't get enough patent power, whereas the computer industry is far less enthusiastic.

Taxation versus Censorship, the Police State, and Regulation of the Internet. The patent system imposes costs of at least $100 billion a year, by reducing innovation and competition. So it basically acts like a tax. It’s bad, it impoverishes us, it slows things down. But it’s just another tax.

The copyright system, by contrast, besides imposing untold billions of cost on the economy, consumers, and artistic creation, and distorting the entire domain of creative works, is also being used as an excuse by the state to increase its surveillance, warrantless searches and seizures, punitive bans of people from the Internet without due process, censorship, cutting off websites accused of piracy, and control and regulation of the Internet and related technologies. As the Internet is one of the most significant tools ever to emerge to help people battle the state and communicate and learn and spread ideas, this is very chilling. In the name of stopping copyright piracy, the state is trying to squash mankind’s greatest anti-state weapon. Taxes are bad, but killing or restricting the Internet is just horrible.

The Internet works by copying files multiple times as they are transmitted across the network. Everything we look at online is a copy. So there is a fundamental dissonance between copyright, a monopoly that seeks to stop people from copying, and the Internet, which is built on it.

This explains why previous laws to stamp out online copyright infringement have failed: it's inherent in the system. It also helps us understand why the latest iteration of those laws – E-PARASITE/SOPA – is about destroying the Internet as we know it. Turning the clock back really is the only way of preserving copyright's 18th century approach to controlling copies.

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It seems that the entertainment industry has settled on its hilarious key talking point against people who are concerned about SOPA/PROTECT IP. I've been seeing variations on this in a bunch of different places, but the entertainment industry's biggest shills are focusing on the idea that the concerns being raised by actual technologists, entrepreneurs, innovators, creators and investors are somehow "hysterical hyperbole." A key example is RIAA boss Cary Sherman's "rebuttal" posted to News.com this week, which starts out with "let's all take a deep breath," and goes on to say that passing SOPA "won't kill the internet."

That's all well and good, though no one has said it will kill the internet, but just change it in massively significant ways that the RIAA/MPAA and its ilk don't understand. Remember, these are the folks who once admitted that they were too clueless to even know how to hire a good technologist, let alone understand how a massive change to the fundamental regulatory and technological framework of the internet will impact innovation.

But, really, let's go back to a key point. In the last century or so, which industry has a habit of being hysterical and hyperbolic about copyright issues... and which has a history of being right. Let's start about a century ago, with John Philip Sousa, the composer. In 1906, he went to Congress to complain about the infernal technology industry and how it was going to ruin music:

These talking machines are going to ruin the artistic development of music in this country. When I was a boy...in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.

Yes, the tech industry was going to kill music, because of "these infernal machines."

Around that time, Thomas Edison, who tried to monopolize the entire "moving pictures" industry as both a content provider and a tech provider, freaked out over the idea of others providing machines that could show movies, claiming that if there were ten such movie "screen machines" in the US, it would kill the industry:

If we put out a screen machine there will be a use for maybe ten of them in the whole United States. With that many screen machines you would show the pictures to everyone in the country -- and then it would be done. Let's not kill the goose that lays the golden egg.

Jump forward to 1932 and that great technological innovation called "radio." Once again, fear permeated the entertainment industry, leading to calls for massive changes to the laws and complaints about how radio was killing the industry:

Tin Pan Alley is sadly aware that Radio has virtually plugged up its oldtime outlets, sheet music and gramophone discs. The average music publisher used to get $175,000 a year from disc sales. He now gets about 10% of this. No longer does a song hit sell a million copies. The copious stream of music poured out by Radio puts a song quickly to death. The average song's life has dwindled from 18 months to 90 days; composers are forced to turn out a dozen songs a year instead of the oldtime two or three.

Evil stuff. Okay. Jump forward a few years, to the rise of cable TV. Once again, the MPAA freaks out, because some cable TV stations are "rebroadcasting" network TV. The MPAA argues in court that cable TV effectively kills off copyright law, as noted in a dissent in one of the key cases concerning the legality of cable TV:

We are advised by an amicus brief of the Motion Picture Association that films from TV telecasts are being imported by CATV into their own markets in competition with the same pictures licensed to TV stations in the area into which the CATV—a nonpaying pirate of the films—imports them. It would be difficult to imagine a more flagrant violation of the Copyright Act. Since the Copyright Act is our only guide to law and justice in this case, it is difficult to see why CATV systems are free of copyright license fees, when they import programs from distant stations and transmit them to their paying customers in a distant market. That result reads the Copyright Act out of existence for CATV.

Jump forward a decade or so, and we have the infamous statement of Jack Valenti comparing the VCR to the Boston Strangler:

I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.

Around the same time, over in the UK, the British Phonographic Industry (BPI) -- the equivalent of the RIAA -- began its infamous campaign telling the world:

Home taping is killing music.

Or, in logo form: Okay, how about the DVR? The wonderful device that made TV watchable and useful again? The entertainment industry attacked that big time, focusing its legal guns on ReplayTV, who it effectively forced out of business. As part of the arguments against Replay, the entertainment industry's lawyers claimed that:

What's happening here is much more than just delaying the time in which I watch a show that I taped off the television. I'm delaying it, and watching it without commercials, and that is something that our courts have never said is acceptable.

Yes, watching TV without commercials goes against the law. Turner Broadcasting boss Jamie Kellner put it more succinctly:

People who watch TV without commercials are stealing from the entertainment producers.

Okay. MP3 players? The thing that's such a huge part of the music industry today? Cary Sherman's RIAA did everything it could to kill them in its lawsuit against the Diamond Rio. From the RIAA's filing in the case:

While the proliferation of MP3s over the Internet has been a serious problem for the recording industry, the scope of that problem has been bound by a natural limitation. MP3 files can be played only by computers, and enjoyed only while operating a computer. The introduction of the Rio devices -- and a number of anticipated look-alike devices from other vendors -- will change that by making MP3 files portable.

[....]

The growth of illicit MP3 files will injure not only the record companies and artists whose work will be pirated, but also the music publishers, musicians, background singers, songwriters and others whose existence is dependent on revenue earned by record sales.

How about the XM + MP3 device that let paying subscribers to XM radio record what they listen to -- just like you could record radio over the air or off a computer? Yeah, the record labels sued over that, claiming $150,000 in statutory damages per recorded song.

And, finally, how about Viacom's attack on YouTube, claiming it was the equivalent of a "Grokster for video." While that case is still ongoing, Viacom has argued that if the district court ruling stands, it would completely destroy the value of content:

If affirmed by this Court, that construction of Section 512(c) would radically transform the functioning of the copyright system and severely impair, if not completely destroy, the value of many copyrighted creations. It would immunize from copyright infringement liability even avowedly piratical Internet businesses.

Given this little tour through history, it's pretty damn funny to see the RIAA and MPAA and their supporters insisting that it's the tech industry who has a history of hyperbole on these subjects. As far as I can tell, there isn't a technological innovation that has come along in the last century that the entertainment industry hasn't had a hysterical negative reaction to... even as it later turned out to be a massive help to the industry.

Thus, when the entertainment industry seeks to totally overturn the basic technological and regulatory underpinnings of the internet, over its latest freakout (rogue sites! cyberlockers!), forgive those of us who have seen this hyperbolic overreaction play out before, from pointing out that (a) the entertainment industry is totally and completely overreacting and (b) rushing into broad regulatory changes without the input or help of the tech industry is a big, big mistake. As with nearly every technology discussed above, if the RIAA and MPAA would just stop freaking out and falsely believing it's a legal or enforcement issue, and recognize that it's all a business issue, then the tech industry can actually help them innovate, support new services and make more money. Instead, in typical hyperbolic overreaction fashion, they're seeking to kill the very infrastructure that is their path to solve their current financial woes.

So, when the RIAA and the MPAA insist that "something must be done!" as quickly as is humanly possible to deal with the "threat" of so-called "rogue sites" domestically and abroad, we say back to them: "let's all take a deep breath." And suggest that, perhaps it is they who are hysterically overreacting... as they've done for over a century.