Copyright and censorship • 18 January 2012 • The SnowBlog

Copyright and censorship

Today great chunks of the internet are offline as a protest against the SOPA and PIPA legislation that the U.S. Congress is soon to vote on. Like many pieces of anti-piracy legislation, it seems very happy to throw a lot of babies out with what might be a very small amount of bathwater. It contains a lot of bad ideas that have been proposed (and even partly adopted) before and will be again. The heart of the debate is "how far will we go to defend the interests of copyright holders?" If you're an author or a publisher you probably have a dog in this race. You probably don't want to make it easy for people to use your copyrighted works without your permission. And when I've mentioned this subject before I've got the impression from the comments that many visitors here are in favour of very strong protection of copyright. For instance, when I've complained about the works of dead authors being protected for fifty or seventy years after their death, some commenters have questioned whether those protections should ever expire. I mean, why should what amounts to your personal property ever pass into public ownership? But I think we need to concede that ideas are not the same sort of property as food or shoes. If I quote Shakespeare, I'm not apparently taking anything away from him; I'm helping keep his work alive. As the saying goes: "The biggest threat to your work is not piracy, it's obscurity." But if you're a living author you still might object to me 'quoting' your book in its entirety and telling you I'm doing you a favour. I think, though, we have to accept that works shouldn't be 100% protected. For instance, imagine you could copyright a really well turned phrase and collect royalties whenever anyone wished to use it. Perhaps you spent a whole year coming up with it and feel you deserve remuneration when anyone threatens to pirate it. If protection like that had existed since, say, 1800, imagine how stilted the typical novel would now be as it attempted not to pay out a fortune in well-turned-phrase royalties. Likewise if you could copyright the idea of a detective novel or a happy ending there'd only be a handful of books in most of today's more popular genres. A society that offered protections like that to authors would make a handful of friends and a vast number of enemies amongst its citizens. It would also spend a lot of money protecting the few against the majority. Somewhere along the line it became obvious that what is good for an author is not always good for authors in general or society as a whole. We don't want to protect one dead author's works at the expense of every writer who comes afterwards who wants to do something similar - and at the expense of all the readers who don't want just one version of a story, they want a whole section of the book store exploring that theme. So societies weigh the cost of protecting an author's work against the expense of that protection and the damage that protection will do elsewhere. Without any protection, perhaps all authors would stop writing (though I highly doubt it). But too much protection (as mentioned above) can throttle creativity even more surely than too little. After all, more people will write for free than will write with the threat of litigation hanging over them. In other words, protecting authors incentivises them to write (because it permits the possibility of making a living that way) but limiting that protection keeps the playing field open and level, and allows writing as a whole to flourish. Limiting protection also limits the burden on society of enforcing copyright. For scientific developments the balance is slightly shifted. If a medicine comes off patent, we can all benefit from it, but without patents there's no way to make back the huge R&D costs of developing new treatments, so society attempts to grant just enough protection to encourage future development before it turns new ideas over to the public domain. And don't forget, for many patents it's a race: lots of people are working on the same idea, but society chooses to reward only the first to finish. That's not about encouraging innovation so much as encouraging speed. And then there's the question of all the 'grandfathering' that goes on. You can get into trouble for printing unlicenced copies of a Lichtenstein or Warhol print. But those artists made their names by freely stealing and reusing other people's artwork without permission. And for all that Justin Bieber's music company wants heavyweight copyright protection, Justin himself got started making YouTube videos of other people's songs. And as the very funny TV show Community pointed out: if the schoolkids from Glee tried to sing those songs in real life, they'd be asked to pay big money for them or they'd be shut down. Many (most?) artists have made free use of every work that came before them but then they, or more likely their management companies, try to ban anyone else from doing the same. Or at least companies insist that creators of derivative works must pay for the privilege in a way that they themselves didn't. The authors of the SOPA and PIPA legislation seem to consider every YouTube homage, mashup or re-enactment as piracy but they also want to benefit from buzz and viral marketing. They want everyone to obsess over their new movie, just not in any way they might be able to charge you for. As Naomi Klein pointed out in No Logo, Disney wants your child to have a Lion King backpack, pencil case, lunchbox, video game, colouring book, duvet cover and wall poster. But they also want such tight control over their brand that you're not allowed to hang that child's drawing of Simba on a classroom wall. I mean *of course* Disney want that. The question is whether society as a whole wants to put their effort into granting and enforcing that level of control. To turn to SOPA and PIPA specifically, they attempt to enforce far-reaching copyright control by altering the technical and also the legal underpinnings of the internet. On the legal side they want copyright holders to be able to have websites taken down immediately if they are hosting pirated content. Which sounds reasonable. But 'immediately' means without having to go through a tedious court case - or even showing any evidence. It is enough simply to accuse. And there are no penalties for making a wrongful accusation. Moreover 'immediately' also means shutting down the server on which the (possibly) pirated content is hosted - even if it means taking down a dozen other websites too. That would be bad enough if we could trust copyright holders to be scrupulously honest, but under the current U.S. legislation (the Digital Millenium Copyright Act - DMCA) 'take down' notices are often used to silence critics rather than to prevent piracy. Worse still, the plan is to make the hosting company responsible for whatever their customers put on their servers. So if you upload something to YouTube that infringes copyright it's not just you who are breaking the law, it's YouTube. Once one has factored in the cost of a copyright lawyer spending a day on each YouTube video attempting to research the relevant intellectual property ownership it becomes pretty clear that YouTube would no longer be viable. Which not-exactly-incidentally would be a boon for the TV companies insisting on SOPA/PIPA - by shutting down their competition in the name of piracy-protection they could receive a commercial boost too by decimating the world of user-generated content. And that's even supposing it were possible to recognise every scrap of copyrighted video and every bar of a protected melody. Depending on one's interpretation of this legislation Google would also have to go - because hosting a link to pirated material is also punishable. And for the same reason Facebook and Twitter would be under threat. In fact if you wanted to get, say, the New York Times website taken off the internet you'd simply have to post a few links in the comments to harmless looking sites, which actually offered pirated copies of Dumb and Dumber, and then issue a 'take down' notice for repeated copyright violation. The only sensible policy in such a world is to drastically limit file hosting and the posting of comments as well as the inclusion of links to anything you don't control. Of course those demanding this level of protection (mainly the Hollywood and music industries' lobbyists) constantly fall foul of it themselves - not that they care. Illegal downloads of movies and music have been traced to computers in Congress, but presumably Congress isn't going to ban itself from the internet. And Lamar Smith, one of the Congressmen behind the SOPA legislation would have had his website taken down under the new legislation. He used a picture of some foliage as a backdrop on his site, but he didn't credit the picture's original owner as required by the photo's licence (link). If this becomes all it takes to silence someone online, the internet could get very quiet very quickly. And that's just the legal side. SOPA and PIPA also mandate some re-engineering of the internet's infrastructure. When you type a website name into your browser, your computer turns that into a string of numbers which, like the internet equivalent of a phone number, allows you to contact that website and fetch pages from it. These numbers are called IP addresses and the service that allows web names (like to be turned into IP addresses (like is called DNS. It acts like a phone directory and SOPA/PIPA would give enforcement agencies the power to edit those DNS directories (which are spread all over the web) and to delete entries that were deemed undesirable. By removing a website from DNS you'd make it impossible to find. Except that geeks have already found ways round that - but SOPA/PIPA in turn gets round that problem by making it illegal to circumvent the deletion of DNS entries. Now in countries like North Korea and Syria and China there are similar rules, but they are used principally to silence dissent, and the U.S. State Department is wholeheartedly against them. But SOPA/PIPA would introduce the same mechanisms of online information control (albeit serving corporate not dictatorial ends) and would ban the creation of any tools to circumvent that control. In other words, you wouldn't be able to find ways round internet censorship in China because that same technology might also be used to download an illegal copy of Deuce Bigalow: Male Gigolo. Moreover, building mechanisms that could be used for censorship into what has traditional been a free internet is not a development that pleases advocates of free speech. America effectively controls much of the internet because it originated much of the technology and because it has had the good sense to keep its hands off the controls. If Congress builds censorship technology into the internet it stands to lose America its position as the notional headquarters of the web - which might not be a bad thing in the long run, but it's almost certainly not what most of America wants. Even if SOPA and PIPA are defeated, this is not a debate that will go away. On the internet it's ridiculously easy to copy everything: ideas, movies, music, schematics, blueprints, personal information and leaked e-mails. And it's going to keep getting easier as computers, software and networks get more powerful. But those who stand to have their business models swept away will want to take steps to prevent the copying that threatens them. Sometimes they will have good ideas about how to do that. Sometimes they will just want to be put in charge of everything so that they can ensure no one is misbehaving - and when that happens they need to be stopped. But it's not a problem that is going to evaporate. If you want to know more about where this debate is going, I wholeheartedly recommend watching Cory Doctorow's talk on The Coming War on General Computation (link). It's really worth listening to his explanation of why this is such an important and difficult problem, but to give you a taste, he explains how we keep trying to ban people using technologies in ways we don't like by assuming it's like banning mobile phone use in cars: you can ban it and people can still use their cars. But limiting piracy on the internet is more like trying to build a car that can't be used in a bank robbery but can be used in any other way - and that's a much more difficult problem. And as Cory points out, even if you're against strong copyright controls for books and movies, you might find that you're in favour of censorship when it comes to downloading and printing out copies of the smallpox virus, for instance. So. Lots to ponder. But in the meantime, I hope Congress will bury SOPA and PIPA, that they'll give at least equal weight to their voters as to their corporate lobbyists, and that next time they'll read up on what they're planning to re-engineer. Addendum: Also, here's Clay Shirky giving a quick talk at the TED offices about the background to SOPA/PIPA as well as its implications. He's firmly against the legislation, so he's a little one-sided perhaps - that said, I think he's being accurate in what he says, plus I happen to agree with him. And he does a fun job of bringing us all up to speed: link


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