Monday, 28 January 2013

How Copyright Protectionism Stifles Innovation, Kills People, And Undermines Trust In Authority

Rick Falkvinge, the Pirate Party founder, has mooted the idea of coming up with our own terms to describe our relationship with copyright. He usually uses "copyright monopoly" but now he's considering other terms. "Intellectual protectionism" is one idea but that would mean putting the word "property" in there somewhere to contextualise it and I'm not comfortable with that. Meanwhile, the problems that go with copyright and patent protectionism continue to wreak havoc, whatever we call them, and they need to be dealt with as a matter of urgency.


The truth is, the issue of rent-seeking from creative output is what's going on and that is what we need to tackle. As soon as we get the idea of ideas as property out of the debate, we'll be able to talk about this calmly and reasonably. As it is, debates are often heated because people feel protective of the possibility of making money by controlling who shares their work and aren't usually willing to consider alternatives if their opinions are set. As for the correct term, I think Mr. Falkvinge is right to bring the word "protectionism" into the equation but I'm not sure about the word "intellectual." "Creative" might be a better choice but I'm not stuck on it and am open to suggestions.

Stifling innovation


New technology always seems to upset the legacy players, particularly those on the distribution end of the equation. When tape and video recorders came out there was an uproar and cries that the music industry was threatened, which of  course it wasn't. Now with the advent of the internet the usual suspects are complaining about threats to their business despite evidence to the contrary. This time it's cyberlockers and enfant terrible Kim Dotcom is at the centre of new allegations of copyright infringements and attempts to shut his new Mega venture down sans evidence of wrongdoing.

That Mega has holes in its security encryption and Dotcom is grandstanding over it isn't helping. He's an "advisor" only, apparently, for legal reasons. Oh, and Anonymous is annoyed with him for helping to take down NinjaVideo. That was, of course, over copyright infringement. The point is, copyright is touted as a means of ensuring that authors and creators are properly and fairly compensated for their work (excuse me while I fall about laughing) and copyright protectionism is allegedly about protecting authors and creators' livelihoods.

The fact is, it's unreasonable to hold back innovation on technology to share, copy, distribute and display items of interest in case someone's copyright is infringed. No jobs are being protected, in fact, they're being destroyed. If the object of copyright protectionism is to ensure that creatives are paid, we need to find new ways to ensure that their livelihoods are not affected by changes in technology instead of holding it back to maintain obsolete business models.

Killing people


I've held back on writing about Aaron Swartz's death till I could get the whole story. Bottom line; prosecutorial overreach = suicidal man commits suicide. You know RSS? Aaron helped to make that. You know Reddit? He co-founded it. Ditto Demand Progress, the internet freedom activism website and Creative Commons, where copyright is limited to identifying the author of a work, which is then free to use. He's done so much for us that I could write a whole post about it and not even scrape the surface of what he achieved in his regrettably short lifetime. So what happened?


Prosecutors had accused him of using MIT's network to download too many scholarly articles from an academic database called JSTOR.


That's like checking out too many books from the library. Rolling Stone continues,


JSTOR chose not to pursue charges against Aaron Swartz – who not only returned all downloaded content, but also ensured it "was not and would not be used, copied, transferred or distributed." That didn't stop MIT and the feds from indicting Swartz on 13 felony charges and insisting on prison time.

Ortiz and Heymann charged Swartz under the Computer Fraud and Abuse Act, a 29-year-old law, notorious in the legal world for being broadly interpretable. They argued that Swartz accessed MIT and JSTOR computers without "authorization," despite MIT's extraordinarily open network policy and Swartz's legal access to JSTOR content.

Despite admitting that Swartz wasn't financially motivated by his act – and even after learning that the 26-year-old had battled depression – Ortiz and Heymann refused to offer a deal that didn't include at least six months of prison time and a guilty plea on all 13 charges. If Swartz chose not to label himself a felon for life, he'd risk the possibility of many years in the slammer.


The bottom line is, it was about the interference in the business of some very powerful interests who have put their monetary eggs in the copyright and IPR basket and anything that messes with that will be crushed. Aaron took his own life in fear that he would be dragged to a kangaroo court and tossed into prison for years for a non-crime. He's not the first one to pay the price for bucking the system but he really ought to be the last.

Undermining trust in authority


Being an activist whose work challenged the status quo made Aaron a target and they weren't willing to let his small act of disobedience slide. Bankers who wrecked the economy got off scot free, but then, they're the establishment and they rule the system that the likes of Carmen Ortiz run. Ars Technica put it best when they explained what's going on here:


what's at stake is nothing less than the broadest of issues: how the "justice" doled out to the powerful can differ from that dispensed to everyone else


basically, powerful interests are using the justice system to slap down people they perceive as being a threat to the way in which they make money. Why change the way you do things if you can use your power to maintain the status quo. And by "powerful interests" I mean these people. It comes to this:


"The more power and influence you have, the less accountable you are."

~ Andrew Norton, Falkvinge on Infopolicy


The worst thing about all this is that these rogue prosecutors don't think they're doing anything wrong. They're convinced that righteous zeal alone is sufficient to guard them from any wrongdoing and that's what keeps them overstepping the mark again and again because the end (death, or at the very least, long prison terms to all offenders!) justifies the means (force them to plea-bargain, however unfair the situation is) and damn it, they want their pound of flesh. Case in point:


At a conference I attended recently, I vented my preoccupation with rogue prosecutors, an ever-proliferating criminal law and the vanishing rights of the accused on a fellow attendee--a lawyer and former prosecutor. When I'd said my piece she said, "But you have to remember that nearly all of the people who are prosecuted are guilty." For half a second I thought she was joking and I started to laugh. But she wasn't joking.

~ Clive Crook, The Atlantic


When suspicion alone makes you guilty beyond all reasonable doubt in the eyes of a zealous prosecutor, what can you do? And since you might as well be hung for a sheep as for a lamb, how in the world is such an attitude going to deter crininality? It's hard to have any respect for the law when it's disproportionately applied and you can buy your way out of trouble if you're rich enough.

Needless to say, the public becomes very cynical about the officers of the law and its makers when they see that the system isn't working in their favour. Who can blame them? I've muted enough G+ threads that were on the theme of "Let's start a revolution." No way, I respect the rule of law but that law needs to be made to apply to all of us, not those who can't afford a decent defense lawyer.

What now?


Increasing numbers of people are jumping onto the copyright protectionism bandwagon and the result is a chaotic mess in which you can take ownership of all aspects of your public life and charge people for reporting on it. The TechnoViking story is a case in point. Dancer dances in public as part of a parade, artist takes video and posts it online, where it becomes a sensation (eventually). Eventually, dancer becomes annoyed with artist and demands takedowns and damages, etc. If the dancer wins this could create a messy precedent where we can't take pictures in public for fear of violating someone's copyright of their behaviour or performance in a public place. It could also create another situation in which someone takes their own life after being hauled to court for taking a picture or video of someone dancing at a parade and posting it online. It wouldn't surprise me if this happened, the way things are going. It's got to stop. The question is, are we willing to give up our perceived rights to make property of every word and deed? Because that's where the change must begin.

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