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Posted on Techdirt - 13 April 2012 @ 12:46pm

Why Do Copyright Industry Profits Get To Be The Yardstick For Civil Liberties?

from the focusing-on-what-really-matters dept

For a long time, the copyright industry has cried foul over technical progress, and demanded taxpayer compensation for how these new developments circumvent their existing privileges. It didn't start with the internet; they've done so for well over a century, starting with complaining about the gramophone and the self-playing piano. But as they are crying over lost sales, real or imagined, why is the rest of the world accepting that this field -- the copyright industry's profits -- is the place where the debate should be playing out?

You've all seen the stories. The sky is falling, the end is nigh, music will come to an end, people sharing their knowledge and culture and thus disrespecting the copyright monopoly rips the bread out of starving artists' children's kittens' mouths, yada yada yada.

What I can't understand for my life is why this industry's profits are even being debated. Who cares how much money a particular industry makes? That is not relevant at all for the form, size and shape of our most basic civil liberties as they apply online.

Let me try an analogy. When mankind communicated privately 30 years ago, our parents sent physical letters in the mail. They wrote a message by hand or with a typewriter on a piece of paper, put the paper in an envelope and sealed it, wrote the recipient's home address on the outside of the envelope, manually affixed a stamp to pay for delivery, and put it in a mailbox. The postal service would then physically carry the envelope with the letter inside to its recipient's home, where it could be read. This delivery took a day or a couple of days, just like when we order new shiny gadgets today and things need to be physically delivered.

So, let's take a look at what rights our parents had in this scenario. First, they and they alone determined whether to identify themselves as sender - on the outside of the envelope, for the delivery services to know; on inside of the envelope, for only the recipient to know; or frankly, not at all. That was their prerogative. Nobody had the right to open letters in transit just to see that they didn't contain any illegal material, and nobody was allowed to track who was communicating (sending letters) to whom.

It is perfectly reasonable that we demand these fundamental rights of our parents' private communications to carry over into the online world, to our children's equivalent environment of life.

Now, once you say that anybody should be able to send anything to anybody on the net without interference, because that's in the civil liberties that our ancestors fought, bled and died for, the copyright industry jumps in and complains. "We can't make any money if you allow this to happen", they would say.

My response is "So what?".

The role of any entrepreneur is to make money given the contemporary constraints of society and technology. They do not get to dismantle civil liberties, even if - and perhaps especially if - they are unable to make money in the face of sustained civil liberties.

If the copyright industry can't sell their products in the face of sustained civil liberties, they get to go out of business or sell something else instead. Mustard, perhaps.

The important trap to observe here is that it's not our problem if the copyright industry's sales are slumping - whether they are or not. It is irrelevant to the debate on civil liberties online. By starting to discuss the profits issue, the copyright industry wins the framing of the debate - that they should somehow have a right to such profit; that society must be shaped so they can continue to make a profit. No entrepreneur gets that luxury.

The copyright industry is not a stakeholder in copyright monopoly legislation. They are a beneficiary. There's a difference.

The only stakeholder in the copyright monopoly legislation is the public. The copyright monopoly is a balance between the public's interest of having access to culture and knowledge, and the same public's interest of having new culture and knowledge created. That's it. Those are the only two interests that go into the legal wording of the monopoly.

The copyright industry, meanwhile, profits from the current means of achieving this balance - just like Blackwater Security (or whatever their name is this week) profits off of United States foreign policy. (You remember Blackwater, the private security firm that was playing GTA IRL on the streets of Baghdad?) Actually, let's stick with Blackwater for a while. Can you imagine what would happen if Blackwater was considered a legitimate stakeholder in US foreign policy, and whose tantrums were taken seriously when they demanded more opportunities for profits in the foreign policy, violating people's civil liberties in the process?

Can you really imagine what would happen if the concern for Blackwater's continued profits would be allowed to take center stage, ahead of people's sustained civil liberties? I'm betting we would see about the same thing that's happening to the net right now with the copyright industry's equally asinine tantrums. This is the crucial difference between a beneficiary and a stakeholder.

Just because the copyright industry has benefited from this monopoly construct in the past, that doesn't mean that they have any right whatsoever to profit from it tomorrow. That's not a concern at all in reforming the copyright monopoly. In drafting such legislation, our only concern is maximizing the knowledge and culture available to the public.

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.

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Posted on Techdirt - 10 February 2012 @ 10:33am

SOPA Strikedown Aftermath: Old Media Cannot Tell The Narrative Of One Million People

from the extra-extra-read-all-about-it dept

As the political victory from the SOPA strikedown sinks in, reflections over old media's role take its place. We know that old media -- unidirectional media such as TV, newspapers, radio -- barely covered SOPA at all. We also know that this has political reasons, as their owners didn't want to draw attention to the issue. But even at the apex of the fightback, on January 18, old media barely mentioned what was happening. This is very noteworthy in itself.

I can't see this in any other light than old media being conceptually unable to tell the narrative of millions of people fighting against a powerful few dozen. It's not just that they chose not to -- it's that their very construction makes it as impossible for them to communicate those events as it would be for a color-blind person to communicate the impressions of a blue-period Picasso.

Old media, after all, is built on the premise of large organizations competing for resources; its narrative is dependent on pitting two powerful representatives against each other to portray their respective interests and let them battle it out in public. Old media consists of large corporations that can only portray conflicts between other large organizations.

This established old media style, which focuses on the pretense of impartiality, has sometimes been called "he-said, she-said journalism," pronounced with a small but well-deserved hint of disrespect.

The copyright monopoly industries had no problems producing a trained, charismatic debater who would probably win in any televised debate against a random person of one of the millions of activists. But in the end, it didn't matter: it was the millions that made the difference and won.

To put this in context, how did we see the SOPA debate play out, we who get our news on the net? We don't get our news from one source, but from hundreds, maybe thousands. You could easily model this as the cherry-picking of a typical newspaper -- I read a couple of political blogs, some comics, a couple of current affairs, eight real-time Twitter streams, and so on. The sum of it all could be made to resemble a newspaper on an ordinary day.

But there is a crucial difference in the net's cross-communication between information sources. When all of our hundreds of different news sources start to converge around and resonate with each other on one single topic, as happened with SOPA, then all of us sense that immediately. Immediately.

Old media is not capable of communicating that sense of powerful resonance. You would not see a message of political urgency instead of your usual comics on the comic page, for instance. But on the net, that happened for us with The Oatmeal and XKCD. Old media, in contrast, have their predetermined length of news clips and page lengths, divided by topics, portraying conflicts as experts talking it out. Half a page for talking about foreign affairs, half a page for tax policy, another page for sports, then the weather. Old media can't resonate with the people when something is important.

As it turns out, one expert talking on a small allocated space cannot represent one million concerned people -- a million who are leaderless to begin with, yet very organized and efficient anyway. Therefore, any attempt to frame this event in he-said, she-said journalism just falls flat on its face.

For us, there is no such thing as a maximum length of an article. (We use recycled electrons anyway.) When we want to talk more on a subject, there are no frames and boundaries stopping us from doing so. This article, to give one example, could be the typical length of an average blog post. But it's quite a bit longer than the hard limit of an op-ed piece.

There are two important things to learn from this: We don't need old media to tell our story to succeed, and we're able to tell the story ourselves. This, if anything, is what should have old media really worried.

For not only did old media fail in narrating the story, for political reasons and for capability reasons; they also failed in keeping their audience captive and preventing the story from being narrated anyway.

Narrated by us. All of us.

When a million people talk to their friends, family, and colleagues about a subject, that wins outright over any narrative that old media is trying to portray. That collective of a million people is able to coordinate discoveries and stories between them with an efficiency that makes them run in circles against any attempt to control the available information.

(This is how most Pirate Parties operate, by the way, and this is also the basis for swarm organization theory.)

As a project manager, one thing I've learned is that you can never be reliant on an element that is completely outside of your control for your project to succeed; if so, your plan is broken. Old media, up until now, was such an element. No longer. While they can certainly assist, they are no longer necessary for saving the net and our values.

In summary, we learned that this was the first sign of old media becoming… irrelevant, is probably the right word. Irrelevant for things that really matter.

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.

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Posted on Techdirt - 5 January 2012 @ 9:47am

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.

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