A Libertarian Primer on the Copyright Wars

Jayel Aheram
Feb 6, 2012 at 2:21 PM

CopyfascismOn Jan. 18, the world was audience to the one of the most visible online activism yet in Internet history. Taking part in the 24-hour protest were thousands of websites and millions of Internet users going head-to-head with Hollywood to oppose a pair of anti-piracy bills — the Stop Online Piracy Act (SOPA) and Protect Intellectual Property Act (PIPA) — currently making its way through Congress.

Leading the charge were Wikipedia, Google, Craigslist and several other Internet heavyweights which blacked out their websites or otherwise called attention to the anti-piracy bills. More important than just calling attention to these bills, the many websites mobilized users to directly contact legislators’ offices.

Just how effective were the protests? According to the Los Angeles Times, 162 million people directly experienced Wikipedia’s blackout. Additionally, 8 million users looked up their representatives in Congress. Reports suggest that the online activism led to an avalanche of real-world activism as thousands took to calling their representatives’ offices.

Congressional websites slowed to a crawl as traffic spiked. Google — which had blacked out its iconic logo for the protest — reported that 7 million people had sign its anti-SOPA petition. In all, the widespread opposition to SOPA and PIPA resulted in a resounding victory for anti-SOPA protesters. As of writing, SOPA and PIPA in their current form are good as dead.

The protests represented the first time the new economy of Silicon Valley stood up to the old economy of Hollywood — represented by the Motion Picture Association of America (MPAA) and Recording Industry Association of America (RIAA) — and won. More importantly, however, it was a watershed moment for the struggle against creeping copyfascism. For the first time since its inception, the obscure copyright social conflict known as the Copyfight became mainstream.

The copyfascism of SOPA

As a photographer and as an artist, I realized early on the threat that overly restrictive copyright poses to free speech, creativity, innovation, and its assault on private property rights. It was through my opposition to copyrights and the research I undertook to inform myself of it that I became familiar with the basic tenets of private property, natural rights, and libertarianism in general.

So I am very happy to learn that Flickr, the Internet’s treasure trove of rich photography from amateurs and professionals around the world as well and home to the highly valuable and historically significant Flickr Commons, joined the blackout protest against SOPA. In their protest, they addressed what is exactly wrong with SOPA by allowing their users to censor — or as Flickr puts it, “darken” — other users’ photographs. The symbolism of that protest is representative of what is exactly wrong with the anti-piracy bills. SOPA would hand the reins of the Internet to a few corporate interests in Hollywood, allowing them the power to shutdown websites they accuse of hosting copyright infringing content. A single infringing content on a website would be reason enough to shutdown a website with millions of users — websites like YouTube, Tumblr, and Wikipedia which altogether sees millions of pieces of user-generated content uploaded daily — without due process.

It is easy to see why companies like Google and Wikipedia are rightly worried. The ability to shutdown websites is an awesome power that Hollywood is asking for and one that threatens the very existence of some of Silicon Valley’s best companies. If it were not for the anti-SOPA protests, the MPAA and RIAA would have succeeded in claiming for itself an Internet “kill-switch” to the detriment of what makes the Internet such a vital engine of economic growth. Tech Liberation Front’s Larry Downes writing at CNET weighs in on how bad SOPA really is, calling some of the language “extreme” and unnecessary.

However, the near-passage of SOPA is just another chapter in decades-long collusion between corporate interests and their legislative prostitutes to erect ever more restrictive copyright laws. This collusion an example of “copyfascism,” which I had originally defined as “the belief in a state-granted monopoly on ideas and information utilizing governmental power and coercion in breaching free speech and private property rights, and the forcible suppression of creativity and innovation.” I offer a secondary definition of copyfascism as “the collusion of corporate interests and their bought politicians in government in pursuit of increasingly restrictive copyright laws at the expense of free speech, creativity, innovation, and private property rights.” However, to really understand SOPA and the threat it posed, we must first understand:  What is copyright?

For most people, “copyright” is an abstract legal concept with little or no relation to most people’s lives. Unless you are involved in the creative industry, either in publishing or entertainment, you would have little use for it. However, most of everything that we touch or see have some sort of “intellectual property” applied to them. The movies we watch are protected by copyrights, the computers we use are crippled with patents, and the products we enjoy are almost always emblazoned with a trademark.

Of those three types of intellectual property, it is copyright and its pertinent laws that affect individuals the most. Copyright is so pervasive and reaches into so many aspects of what we do and consume, that we are inadvertently violating someone’s copyright claim everyday. Singing the copyrighted “Happy Birthday” in a birthday party constitutes a public performance and thus copyright infringement; publishing your child’s drawing of Mickey Mouse on Tumblr is copyright infringement; quoting a lyrics in a tweet or Facebook status is copyright infringement.

In fact, if it were not for Kelly v. Arriba, Facebook’s creation of those little thumbnails on status updates linking to external websites would also be copyright violations. We are an “infringement nation,” declared John Tehranian in his paper documenting how the average American is potentially liable for $4.5 billion in copyright damages annually for normal everyday activities.

So when a bill comes along like SOPA that threatens the freedom of the Internet, people tend to be surprised. Most people would think the idea that a single copyright claim could shut down an entire website is ridiculous. Of course it is ridiculous, but it should not come as a surprise: the massive infringement of rights that arises from the enforcement of ever-stricter copyright laws is an inherent feature of copyright.

A private property owner who configures (copies) his tangible resources into an arrangement similar or identical to a copyright holder’s configuration might seem like harmless copying, but in the eyes of the State, this is an infringement of that copyright holder’s copyrights. Upon the infringement of a copyrighted work, there is a transfer of ownership rights from the private property owner to the copyright claimant. All of this is done without the consent of the private property owner and enforced by the full violence of the State. This is the logic behind copyright law: “what is yours is mine as soon as a bit of my ‘copyright’ is present on your property.”

Great thinkers in this sphere — most notably Stephan Kinsella in Against Intellectual Property and Michele Boldrin in Against Intellectual Monopoly — have successfully argued that all forms of “intellectual property” are not property, but forms of state privileges. Both Kinsella and Boldrin make clear the distinctions between real, tangible property and the state-sanctioned monopoly called copyright.

Stephan Kinsella defines “copyrights” and “patents”:

Only tangible, scarce resources are the possible object of inter­personal conflict, so it is only for them that property rules are appli­cable. Thus, patents and copyrights are unjustifiable monopolies granted by government legislation.

Michele Boldrin explains what that means:

Intellectual property law is not about your right to control your copy of your idea — this is a right that, as we have just pointed out, does not need a great deal of protection. What intellectual property law is really about is my right to control your copy of my idea.

My fellow libertarians rightly oppose income taxation for it assumes that an individual does not have the right to his own wealth and that the State is the ultimate owner. Copyright should be opposed on similar grounds for it represents a massive infringement of private property rights. Copyright laws codify the assumption that an individual does not have the right to his own private property and that the ultimate arbiter of ownership is the State through its copyright system.

So to be dismissive of SOPA, as my colleague Jonathan Mellot at Young Americans for Liberty has, smacks of ignorance of what is at stake in the Copyfight. What is at stake here is not just a medium (Internet) or the right of people to download the latest episode of Glee, but the idea of private property itself. Copyright is in direct conflict with private property rights and by extension, every individual rights that we hold dear. Copyright is a state privilege granted to some; it is not a natural right. It is not exercised; it is enforced by the violence of the State.

Welcome to the Copyfight

The protests of Jan. 18 was by far the most visible salvo yet in the copyfight. Outmatched, outnumbered, the copyfascists behind SOPA were soundly defeated leading many tech observers to declare that “SOPA is dead.” Before the protests, SOPA and PIPA had 80 supporters in Congress and only 31 against. After the protests, SOPA lost 15 supporters down to 65 and gained an additional 70 opponents up to 101. In short, the protests dealt a devastating blow to the bill.

But the hugely popular “blackout” protests was immediately followed by the cyberwar of Jan. 19. Members of the notorious hacktivist outfit Anonymous retaliated against several targets online after federal agents shutdown the file-hosting website MegaUpload and arrested its leaders. Among the targets were the U.S. Department of Justice websites — which went offline due to the group’s signature “distributed denial-of-service” (DDoS) attacks — as well as the websites of Universal Music, MPAA, and RIAA. Unlike the protests of Jan. 18, the attacks were organized within hours of the news of the MegaUpload crackdown. Compared to the weeks of organization needed to make the Jan. 18 protests possible, the blazing speed with which the dark side of the copyfight reared is mysterious head and let its opposition known was breathtaking.

Both protests — the popular one that occurred on Jan. 18 and the angry retaliations that occurred on Jan. 19 — are just another chapters in the Copyfight. Players in this decades-long conflict run the gamut from Anonymous and the Church of Scientology to Wikileaks and the United States Air Force. In fact, the copyfight predates even the World Wide Web (the landmark case Universal v. Sony was in 1979). As Julian Sanchez of Cato Institute points out, SOPA is part of the entertainment industry’s “long, proud tradition of making aggressive and overbroad copyright claims that would impede speech and innovation.”

What is markedly different in this Copyfight, however, is that for the first time these fights were neither waged in a courtroom nor by cartel lawyers. These recent copyfight battles were fought and won by citizens and innovators resisting against the relentless tide of copyfascism. For an entire day on Jan. 18, the innovators withheld their participation in the economy and galvanized a new generation of copyfighters. Millions of them!

As a long-time observer of these issues, I hope that the SOPA protests and the MegaUpload crackdown will finally force people to pay attention to the copyfight. For what is at stake in this battle is not merely the ability to download an “illegal copy” of a movie, but the preservation of many things we take granted: the right to free speech, the right to privacy, the right to innovate, the right to tinker, and the right to research. Science, technology, competition, the arts, and culture itself, all of these require the free-flow of ideas unhampered by control and gatekeepers and monopolies.

If you unfamiliar with the words DMCA, DRM, SOPA, and ACTA and you do not know what exactly Fair Use, Creative Commons, or “public domain” are, I hope that this article will inspire you to educate yourself in these matters.

To make it easy, below is a compendium of links to major (or compelling) copyfight battles of the past:

1. Righthaven v. Everyone - Wired’s Threat Level has documented the notorious copyright-troll Righthaven’s numerous legal battles.
2. Jackson Browne v. Ohio GOP and John McCain - Lawsuit by an artist who disagrees with John McCain’s politics threatens political speech.
3. Frankel v. Lyons (aka Barney the Purple Dinosaur case) - The heroic Electronic Frontier Foundation (EFF) defends online parodies of Barney against spurious copyright claims that seek to silence legitimate speech.
4. Viacom v. Google - Pre-SOPA attempts to force companies to do the copyfascists’ dirty work.
5. RIAA v. Joel Tenenbaum - The RIAA goes after individuals seeking hundreds of thousands of dollars for copyright damages.
6. MGM v. Grokster - A loss for innovation and a copyfascist victory.
7. Nina Paley and “Sita Sings the Blues” - A filmmaker’s work was nearly killed because of copyrights.
8. UMG v. Veoh - A copyfascist defeat and a win for innovation in the web.

Some great thinkers and papers on intellectual property:

1. Stephan Kinsella in “Against Intellectual Property” - The libertarian primer on intellectual property (of all types).
2. Michele Boldrin in “Against Intellectual Monopoly” - Boldrin proves how monopolies harm innovation.
3. John Tehranian in “Infringement Nation” - The average American commits $4.5 billion dollars in infringement annually. The
4. Kevin Carson in “Intellectual Property: A Libertarian Critique” - “Intelectual property is theft; smash the State.”
5. Ben Depoorter in “Fair Trespass” - Unusual angle; Depoorter applies copyright law to real property.
6. Kal Raustiala and Christopher Jon Sprigman in “The Piracy Paradox: Innovation and Intellectual Property in Fashion Design” - There is one industry in the world that thrives because of piracy: the fashion industry.

A libertarian primer on the issues:

1. What is “Fair Use?”
2. An Introduction to Creative Commons
3. “Unintended Consequences: Twelve years under the DMCA” - EFF’s whitepaper documenting the list of DMCA abuses.