Zen and the Art of Copyright Maintenance

I’ve often said that incorporated and formally organized interests (e.g., the RIAA and the MPAA–a.k.a. Big Content–in the context of Copyright) have insufficient respect for freedom, while individuals have insufficient respect for those organizations’ basic power. Another, more basic problem is that copying digital content is basically free. As any economic analysis will show you, in a competitive market (in this case, for distribution), prices paid will approach the average variable cost: $0. And, what’s more, in an efficient market, that’s the efficient price.

Cory Doctorow, one of the few and foremost individual advocates who manages to raise his voice above the obfuscating din of lobbying organizations, consistently points out that neither side has sufficient respect for the simple reality that copying is just too damn easy:

The topic I leave my family and my desk to talk to people all over the world about is the risks to freedom arising from the failure of copyright giants to adapt to a world where it’s impossible to prevent copying. Because it is impossible. Despite 15 long years of the copyright wars, despite draconian laws and savage penalties, despite secret treaties and widespread censorship, despite millions spent on ill-advised copy-prevention tools, more copying takes place today than ever before.

As I’ve written here before, copying isn’t going to get harder, ever. Hard drives won’t magically get bulkier but hold fewer bits and cost more.

Networks won’t be harder to use. PCs won’t be slower. People won’t stop learning to type “Toy Story 3 bittorrent” into Google. Anyone who claims otherwise is selling something – generally some kind of unworkable magic anti-copying beans that they swear, this time, will really work.

The core wisdom is that sharing and copying are part of what makes us happy. And because holding, obtaining, and distributing content in any form is equivalent to learning and knowing and speaking, those activities are inherently connected to our notions of freedom of speech, freedom of association, and everything else that is worthwhile and satisfying in the world. Moreover, since content is information, it can be distributed digitally with frivolous ease. And why shouldn’t it be? Overall welfare is maximized by sharing with as many people as possible because it provides the most consumer utility with no additional cost to the producer.

The problem is that the balance of interests involved in Copyright has eroded in favor of the organized interests that have been able to use the law as their means of competition. There are unintended consequences of authoritarian and controlling regimes, after all. As the Tao Te Ching put it, “The more laws that are written, the more criminals are produced.” But Big Content is run by executives beholden to the bottom lines that are examined by shareholders, who are in turn are basically blind to the concerns of consumers, and so they are unconcerned with the unintended consequences. The game is rigged to basically require these organizations to mindlessly pursue profit even if it means notoriously over-aggressive litigation with $1.92 million in statutory damages against people who download 24 songs or diminishing the ability of the Library of Congress to archive the world’s knowledge and content. Big Content is still pushing a secret treaty negotiated by Big Content but is being withheld from individual inspection on the basis of “national security” and COICA, a proposal for Internet censorship that would create a blacklist of censored domains that would give the Attorney General the power to place any website on the blacklist if infringement is “central” to the purpose of the site.

More repression and harsher enforcement does not constitute the much needed update to Copyright in light of the digital age, not just in spite of it. What we need is a scheme that balances the rights of individuals against the dangerously misguided headway that has been made by Big Content.

Copyright law today touches the lives of ordinary people in ways that were unimaginable in the 1960s because advances in computing and communications technologies have transformed how we use and access content, most of which is copyrighted automatically by law. Millions of ordinary people also are becoming authors of user-generated content, such as videos, digital photographs and blogs, which they share on Web 2.0 platforms. This makes them copyright stakeholders, although the law was not drafted with them in mind, and it does not meet their needs.

It is because of the lack of individual political engagement with the political process that concentrated interests and benefits can consistently defeat dispersed costs (more on that in a post to follow). But luckily, organizations like the Electronic Frontier Foundation and people like Cory Doctorow have started to make some real headway, as evidenced by the fact that COICA has been taken off the table for now. But if we don’t actively work to reset the balance, the creeping control over content–and ever-increasing amount of thought that should not be subject to control–2014 could look a lot like 1984.