The End Of Maximalist Copyright?

from the shifting-tides dept

As I noted in my first post, copyright policymaking is driven mainly by politics, self-interest and deep-seated notions of morality at the expense of actual empirical evidence. Overall, this has led to some pretty indefensible policy outcomes, such as the continued extension of copyright terms. And when one considers the Obama administration’s continued pursuit of ever-stronger copyright laws, in the United States and around the world, backed by some pretty powerful industries, it’s easy to conclude that the centuries-long trend of copyright’s expansion is likely to continue indefinitely.

I disagree. Ironically, the purely political nature of so much of copyright policymaking makes it vulnerable to potentially dramatic change. What has been politically made can be politically unmade. And perhaps sooner than we think.

The current US maximalist position on copyright and intellectual property was politically constructed through some savvy lobbying in the 1970s and 1980s by the copyright and IP industries, as documented by scholars such as Susan Sell, and Peter Drahos and John Braithwaite. Since then, US copyright policymaking has been subject to a classic case of regulatory capture, with tight linkages, for example, between the Office of the United States Trade Representative and the content industries.

That said, it’s worth remembering that the explosion of (politically relevant) public and corporate interest in user rights and the like is a very recent phenomenon. There have always been groups interested in pursuing copyright balance, but it’s only recently that the heavy hitters – Internet companies like Google, and the public at large – have begun to make themselves heard.

Remember the 1990s, when Silicon Valley made a virtue of not being interested in Washington’s political games? As recently as 2008, when I was in DC to interview people for this book, I couldn’t even find Google’s Washington lobbyist. In 2003, Google ranked 213th in terms of spending on lobbying, according to the Washington Post. In 2012, it was in second place.

You can’t win if you don’t play. Public Knowledge has become one of the most prominent voices in favor of user rights in Washington; their first submission to the Special 301 process was only in 2010, as far as I can tell. And, of course, the 2012 SOPA protests proved that millions of Americans can be mobilized on digital-copyright issues.

This is just a thumbnail sketch, but what it suggests is that it’s been less than a decade since the copyright debate got real. And while regulatory capture is a real thing, it will be difficult for any US governmental agency to ignore the potent combination of new players with cash and votes. Anyone with money and influence can play the regulatory-capture game.

I’m not arguing that a user-rights, content-is-free utopia is right around the corner. For one thing, the interests of a for-profit business like Google are very different from those of the average citizen. As a business, Google has proven to be more than willing to make private deals with copyright owners to limit user rights. Businesses, after all, crave stability over everything.

However, the interests of Google (to take only the most prominent of the digital-economy companies) on copyright are sufficiently different from those of the copyright industries currently driving Washington policy that it’s reasonable to expect that the current US copyright position is not politically sustainable in the long run. And if digital copyright remains a mainstream political issue, then the prospects of significant long-term reform – in the United States and abroad – are even greater.

Blayne Haggart (@bhaggart) is an assistant professor of political science at Brock University in St. Catharines, Ontario. His first book, Copyfight: The global politics of digital copyright reform was just published by University of Toronto Press.

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Comments on “The End Of Maximalist Copyright?”

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Anonymous Coward says:

Re: Re:

The internet has to change. How much and in what way will depend on governments internationally, but the internet cannot stay as it is. Too much legislation is at odds with the way the internet works today.

The question is what it turns into: Information collection or non-anonymous users? Right to “remove” slander or right to write whatever you want and make it easier to change identities? Prioritized speeds or preferential speeds? DRMed closed source with some IP protection or open source with clearer IP claims and better enforcement tools? Regionalized internet or supranational enforcement?

No matter what, the internet will be forced to change. The question is where it is going? Several of the changes will hurt no matter the chosen road.

John Fenderson (profile) says:

Re: Re: Re:2 Re:

“you sound like a NRA activist.”

Well, since what I share with NRA activists is a desire to improve legislation (according to how we each define “improve”), I’ll take that. But I note that this is true for all people who are politically active.

“Laws are in place to protect people, not hurt them.”

That is my underlying point exactly.

Rekrul says:

Re: Re: Re: Re:

Why does the internet have to change? Why can’t we fix the bad legislation instead?

Because the people actually in charge of fixing the laws like the status quo the way it is. Stopping a bad law from being passed is quite different from getting a bad law changed or repealed.

You can easily stop a bottle of milk from spilling if you grab it in time, but once it falls and the milk pours out over the floor, it’s a lot harder to try and get it all back in the bottle.

Anonymous Coward says:

Re: Re: Re:

You are committing the the same fallacy as the law makers, that laws govern society for the benefit of a few, such a state is only sustainable while the majority can be kept from talking to each. The book destroyed the control that the church and aristocracy had over society by spreading ideas that they could not control. But it still somewhat limited who could spread ideas via the control of publishers over what was widely published.
The Internet is having another profound impact on politics, it just what the changes will be are being worked out, but it will be a change to a more anarchistic society, in the sense that people will make more of the decisions without using the intermediaries of politicians. The Internet is removing the need for gatekeepers, whether that is publishers or politicians.

Anonymous Coward says:

Re: Re: Re: Re:

I doubt we are that close to retiring politicians. Publishers have to change a lot, no matter what. And these laws are not necessarily for “the few”.

The internet society is still a bit to the fringe side and while that will change it is not necessarily making the underlying issues irrelevant. Private people in the internet society will be hard to control. Companies? Not as much. Since almost all internet infrastructure relies on companies it should be obvious what the main target of the upcoming legislation will be. Monopolies and companies relying on limited competition are easy targets for a bit of horse-trading. Any other company has the crosshair of even more radical legislation in other areas to trade away.

No, the internet will have be forced to change in some way or another unless state-control and companies both become irrelevant in decission-making in the next short future.

John Fenderson (profile) says:

Re: Re: Re:2 Re:

“the internet will have be forced to change in some way or another unless state-control and companies both become irrelevant in decission-making in the next short future.”

We can always hope for that irrelevancy, but I fear that you’re right that it won’t happen. However, the defeatism of just accepting that “the internet will be forced to change” guarantees that outcome. Which is why I reject the notion. It’s better to die on your feet than on your knees.

Anonymous Coward says:

Re: Re: Re:2 Re:

Go look at the reformation, and the thirty years war, these were triggered by the printing press, which eventually led to various revolution and the establishment of representative democracy. This time I hope people are sensible and avoid major bloodshed. The means of enabling a more direct form of democracy, or at least the means and a requirement for politicians to consult much more widely with, and represent the electorate. The genie is well and truly out of the bottle and cannot be stuffed back in by laws that go against human nature, which is to communicate and share.

Anonymous Coward says:

Silly Humans...

What makes you think Government is here FOR the people?

THE PEOPLE have no money, they gave it ALL to the businesses.

Whoever has the money or rather (controls it) will be in power. Businesses have and control money to a degree far greater than the citizens. The citizens sit around in their ignorance and piss and moan about the problems being played against one another between the parties like fools.

“Give me control of a nation’s money
and I care not who makes the laws.”

Maximalist Copyright is never going away… we will have to forever fend off its advances, for the moment we look away… the multitudes of corporate interests will swamp us quickly.

Jay (profile) says:

Re: Re: Silly Humans...

Not gonna work…

The companies that want less copyright are too convinced of the maximalist point of view, even if it hurts their bottom line.

If Pandora, Netflix, Google, etc were to rise up against Hollywood, it would be a very tenable relation of small businesses with a large number of conflicts in hoping to minimize Hollywood’s influence.

I’d consider the copyright position to be a Game of Thrones. There’s plenty of people jockeying for position, and everyone is hoping not to be on the low end of the totem pole.

Anonymous Coward says:

Re: Re: Silly Humans...

The problem, for the corporations, is that the Internet is making them irrelevant for the distribution of culture. Google and other search engines can do the job of allowing people to find it, and small services, maybe specialized to an area of culture, can support the creators without requiring control over the works, or the major portion of any income. Blogs, and links between blogs become the marketing tools, and means by which a creator holds their audience, with social media playing a supporting role.

Anon says:

A Further Example...

Consider the most prominent content distribution company on the internet – Netflix. They may originate some content, but basically their biggest impediment is copyright. Not that they want a copyright-free world, but anything that reduces the insanity and makes it far simpler to expedite licensing will eventually simplify its business.

For example- the music included with a show like WKRP makes licensing on additional media complex and basically guts the content; and that’s not the only one. Dealing with multiple jurisdictions, world-wide marketing, finding (or bypassing) long lost copyright holders with advantages like mandatory standard licensing, etc. – all would bring sanity into a complex world. Even stupid stuff like removing the need to blur crap in documentaries by removing liability for “accidental exposure”.

Sooner or later the countries that are net consumers of content will realize they have a lot more leverage; when the leverage capability of the USA fades, so will the impetus. Plus, as the article points out – the companies that want to reduce impediments to content are on the rise – the Google, Netflix, Hulu, Areo… not to mention traditional content companies like cable – want an environment that absolves them of worry over content.

Nobody wants to be required to spend a fortune to police their iClouds or Dropboxes for content left by 100 million users; when those companies get into the lobbying game as big as the movie studios, I agree with the article – things will change.

Anonymous Coward says:

The copyright industries overreach also makes reform more likely long term

One thing that you miss here, the over reach of the dominant players in the copyright fighting also make reform with much looser copyright law more likely long term.

Things like SOPA and SOPA clones caused major backlash. Yet the same industries are still trying to backdoor SOPA or big parts of it into law. If you stir up a hornet’s nest, you’re going to get stung quite badly when the hornets all wake up.

At times the backlash from these things can take years to come into fruition. A few historical examples on this.

-Support for repealing the death penalty has reached new highs in modern times. Yet, support for repealing used to be even higher decades ago. What happened that made support for the death penalty go up? It’s the supreme court ruling that while the death penalty is constitutional the way it was being carried out was not, which turned all death penalties of everyone convicted into life sentences. So a few decades later support for repealing the death penalty still hasn’t fully recovered yet from that backlash, even though it has recovered enough to start repealing the death penalty in some states.

-Abortion and opposition to it didn’t used to get that much attention. Among religious activist groups it used to just be considered a Catholic issue by nonCatholics. Before Roe vs Wade a lot of states were moving their laws towards allowing abortion, at least in some narrow situations, which was a big change from it being outlawed in every situation. The supreme court ruling went so far that it said every state’s abortion laws weren’t liberal enough and overturned them all. Several of the judges who handed that ruling said in later years in memoir’s that in hindsight they shouldn’t have gone quite so far so suddenly in Roe vs Wade.

DB (profile) says:

I am less optimistic. Some of the changes made cannot be undone.

The best example is the extension of copyright. Nothing created in our lifetime will enter the public domain under long after we are dead. Changing that would be likely be consider a ‘taking’ by the courts, requiring compensation by the federal government. Since the future value of any specific work is unknowable and unbounded, the claims would exceed the total value of everything produced by mankind to date.

Now you might think ‘what the government grants, they certainly can take away’. But I can’t think of case where that has happened. An example to the contrary is the egregious toll that western ‘water rights’ has taken on the economy. They have been upheld, even when they were gotten fraudulently (e.g. Henry Miller claiming most of the California central valley desert was swampland) and have long since been decoupled from the land they were attached to. Now they are just the right to collect money from anyone that uses water in the state.

Anonymous Coward says:

Re: Re:

Yes, where all content-makers are serfs.

Under which rock have you been living? In the majority of cases strong copyright, along with the gatekeeper model makes serfs of creators. The Internet allow creators to directly build a fan base, and they can make a living from a few thousand fans, rather than remaining poor with ten of thousands of fans making the publishers rich. With the traditional publisher model, only those creators who win the lottery and gain hundreds of thousands of fans have a chance of becoming rich.

Anonymous Coward says:

Re: Re: Re: Re:

I can keep myself amused with legal free content thank you very much, and the decide which creators to support. Absolutely no stealing involved. I therefore have no need to engage in copyright infringement. The continual attack on piracy by the gatekeepers is their cover for destroying the Internet to remove the legal content that is destroying their business.

That One Guy (profile) says:

Re: Re: Re:2 Re:

I can keep myself amused with legal free content thank you very much, and the decide which creators to support.

And that, right there, is what terrifies them the most.

Not ‘piracy’, that is and always has been an excuse, the great big ‘boogieman’ they like to pull out, but the fact that the gatekeepers are now not only no longer needed, but actively in the way between creators and their fans, and can no longer control just who makes it and who doesn’t.

Their fear is that when people realize it, really understand just how much the gatekeepers of old are impeding things, they will revolt and kick them clean off their gilded thrones, forcing them to choose between working for the creators as enablers, providing useful services but no longer controlling the creators themselves, or die off as other unneeded businesses have.

That One Guy (profile) says:

Re: Re: Re:4 Re:

Ah good old ad hom, ‘when you can’t refute the message, attack the messenger’.

Thanks for the chuckle and the example by the way, I’d say your comment shows off that ‘fear’ I mentioned quite nicely, that which causes those with a vested interest in keeping the gatekeepers in power to lash out at anyone who points out the charade, all in an attempt to silence them or drown them out with empty insults.

John Fenderson (profile) says:

Re: Re: Re:3 Re:

Exactly right.

I do the same thing as the AC. I don’t pirate, but I also don’t (and won’t) buy anything that is being sold or represented by these maximalist companies.

There is so much excellent independent content out there that it’s not necessary — and I love knowing that all of the money I’m spending is actually going to the artists.

That One Guy (profile) says:

Re: Re: Re:4 Re:

Indeed, why would people bother to go through all the hassle of pirating when there’s more free, or reasonably priced and offered content than anyone could ever go through in their life, available?

The people that choose the pirate option may claim that the stuff they’re downloading is ‘higher quality’ or what have you, but I’d say that’s more due to ignorance of just what all is available on the free/cheap and legal side. Not to mention throwing your money at creators and companies that actually care about their fans, and see them as more than just walking wallets that occasionally get uppity and noisy should be a real selling point for that option as well.

Anonymous Coward says:

Motivating factors?

While NetFlix, Pandora, Amazon and other streaming services have licensing issues which seem like an obvious factor for reform. I’m wondering where other tech companies are getting their motivation. Google had the lawsuit with Oracle, but Microsoft and probably even Apple seem like they would be a prime candidates for copyright maximalist ideals. Is this just a case like derivative works I make are okay, but you can’t do that to my work?

NoahVail (profile) says:

It's good to respond to a corrupt system by expanding the corruption

Google helps expand government corruption by adding it’s own lobbying cash to the mountain.

But that’s OK.
Google should expand and legitimize corruption because that might unwind .0000001% of the damage it caused.

Here’s my rebuttal.
Trading Federal laws/policy for campaign contributions isn’t a good system.
It isn’t even a neutral system.
It’s an exploitative, unethical system of extortion.

The article implies that it’s fine to keep strengthening the monster that will one day victimize our grandchildren,
because there’s an off chance that we we might get back some morsel of Liberty it ripped away from us.

I don’t agree.

Seegras (profile) says:

Re: Re: Re:

Totally. I need to quote Macauley again:

“And you will find that, in attempting to impose unreasonable restraints on the reprinting of the words of the dead, you have, to a great extent, annulled those restraints which now prevent men from pillaging and defrauding the living.” — Thomas Babington Macaulay, 1841

Rikuo (profile) says:

Re: Re:

“As a computer user, I don’t really care either way.”

You should care as a computer user, since DRM, a system of technologies created by those in the copyright cartels, wrests control of your computer hardware from you. Yes, the very hardware that in any other circumstance you would own and possess full rights to modify and tinker with.
Think the Playstation 3, and George Hotz. He owned the specific consoles he worked on, and developed homebrew applications running on his machines, which Sony did not like and eventually sued him over.

Anonymous Coward says:

Re: Re: Re:

This is where my ideals get weird I guess…
DRM as a cat and mouse game, I totally agree with, but I don’t think there should be any repercussions against breaking DRM. Encryption in general is meant to be broken, it’s the lifeline of good security. Imagine a world with fake security that constantly can be overcome with script kiddies, and that is the world that the copyright industry is supporting. It certainly isn’t helping them stop copyright infringement, and it is helping the greater good by stopping any bad actors (NSA). This imho is the wild west of cyberspace, ICE breakers, Neuromancy, or what ever you want to label it. Better security will help both makers and destroyers, as the race evolves like it always has since krypt?s or the greek meaning.

Tice with a J (profile) says:

In defense of pirates

There is an idea that, in my opinion, is very important in any discussion of copyright/patent/IP. The idea is this: “Content creators deserve to get paid for each and every use of their content”. Whether that content is a song, a program, a design, or any other kind of information, the idea is that the maker of that information has a right to be rewarded for every use of that information.

This idea appeals to our notions of fairness, especially when you consider an analogous physical situation: the skilled craftsman, whom I will call “maker” because I’m a Doctorow fanboy. A very good maker has the power to make something that no one else can make, like a Stradivarius violin, and there’s no way to get a violin like that without either buying it from Stradivarius or buying it from someone else who bought one… or stealing it, of course, but we have ways of preventing theft. The point is that the maker has total control of how many copies there are of what they sell, and whenever you see a copy in the wild, you can safely assume that the maker got paid for it.

Moving back to the realm of information, we still have skilled makers, making patterns of information that no one else could have made. We value what they make, and we want them to be rewarded, just as the physical makers are rewarded… and the information makers want to get paid, so our interests line up. So far, so good.

But now we run into trouble: information, unlike physical goods, is very easy to copy. It may take a genius to write a good book, but any common scribe can copy it. And then there are the copy machines. In fact, go take a look at all the books you own, and tell me: how many of them are copies? In my case, the answer is: all of them. I don’t own any original manuscripts (unless you count my own writings, but I don’t consider my jumbled piles of scribblings to be books). If I want to read something by, say, Edgar Allen Poe, I don’t have to ask Poe to write me a fresh copy, nor do I have to deprive anyone else of their copy. I just need someone who’ll let me make a copy of their copy. And whenever I see a copy of Poe’s work in the wild, I can usually assume that Poe wasn’t paid for it, since the vast majority of existing copies (including the one on my hard drive) were made long after his death!

Now, this offends our notions of fairness! “How can someone get something for free? Someone had to have lost something!”, we think. And so we call copying “theft of intellectual property” or “piracy”, because it feels like something got stolen. But this is wrong. Nothing has been stolen. No one’s purloined a violin. Neither the maker nor the customers have lost anything when one customer makes their own copies and gives them away.

Now this is the point in the discussion where pro-copyright folks bring up sunk costs. It takes time, talent, and energy to make good content, just as it does to make a good violin. Surely the content deserves some protection, yes? But wait! Somebody moved the goalposts. “Sunk costs” didn’t even come up when we were discussing the Stradivarius. Why bring them up now?

But more generally, sunk costs are irrelevant, for 2 reasons:
1. There is no direct relation between sunk costs and quality. There’s a lot of literature on this subject, but here’s my favorite piece of evidence: going by official records, the most expensive film in history was Spider-Man 3. Whether you count inflation or not, that’s the top. Worth the investment? I didn’t think so.
2. There is no end to the amount of monopoly that we can justify by appealing to fixed costs. We could even justify slavery (The landowners put a lot of time and money into raising those negroes, so don’t they have a natural right to claim the product of the negroes’ labor?). Unless we’re trying to justify the total state, we need to do better than to appeal to costs.

In fact, let me harp on that second point some more. Sunk costs were the justification for DRM. And what is DRM? It is the loss of control of your own computer. It invades your privacy and takes over your property. Snowden’s leaks are only the latest reminder of how dangerous this sort of thing is. Crooks and elites are all too eager to gain control of our lives, and we shouldn’t be giving them any opportunity to do so. That’s why DRM is inherently bad (Why, Mozilla? Why?). I won’t let anyone try to justify it with a sob story of how much it costs to make good cinema.

Now then, if DRM can’t be justified on the basis of sunk costs, what can be justified? For the effects of copyright are in need of justification.

Remember the central idea, that content creators deserve to get paid for each and every use of their content (or at least, for every copy). The practical effect of this is to deny customers their freedom to communicate. They must either report to the creator for every copy they make and submit to a fine, or they must refrain from copying at all. This is a broad prior restraint on speech and press. Is it justified?

It gets worse. All manner of communication goes on in private, and all of it is potentially full of illicit copies. If we want to pay the creators for every copy, we’ll have to either revoke the right to privacy in order to track down the copies, or we’ll have to pass a blanket tax on private communication (in effect, assume that all people are guilty and punish them in advance). The current U.S. legal system has both the loss of privacy and the punitive tax. Are either of these justified?

In summary, the idea of getting paid for every copy is nice, but there’s no way to implement it without compromising or abandoning other nice ideas, such as free speech, privacy, presumption of innocence, and secure ownership of personal property. That’s a lot to give up, and for very questionable benefits, too.

That’s why I have no qualms with “piracy”, and I refuse to condemn the file-sharers. Not because they’re heroic or anything like that, but just because they’re doing nothing wrong. Copying, sharing, and ruining people’s business plans are natural human activities, and no one has any business trying to outlaw them.

P.S. Given the opportunity, I would download a car. Wouldn’t you?

David says:

The real problem with copyright maximalism

Purportedly the range of copyright is designed to last until the last person among his heirs who the original author might have cared for has died.

But the reverse is much more sobering: this likely means that the last person among his heirs who cared deeply for the original author and his reputation and works has died and won’t be around to sponsor events and concerts and readings once the work passed into the public domain.

Now of course an heir is free to relinquish copyright restrictions previous to that (apart from already printed editions which are contractually bound to a publisher), but that requires a lot of initiative and determination and willingness to let go of some basically no-questions-asked prospective income.

If the release into Public Domain is a fixed and unavoidable event, then it is much more likely that they will cope with it.

I know such an heir of a small composer and publisher, and basically she puts the licensing payments into the support of the rather old guy who had took up the publishing business, using old machines and stuff.

When both are gone, the works of the original composer will be in limbo for 40 more years before copyright expires and he will be forgotten. There were memorial concerts and all that stuff about a decade ago, but when nobody can pick up the scores any more…

And that’s how the big business likes it: no competition for the “fresh” composers/works that can still be published for more money.

If we have contemporaries of a dead artist pushing for his recognition after his works entered into public domain, the circulation of available copies will be much higher.

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