The Case for Copyright Reform (2 page)

It must always be legal to circumvent DRM restrictions, and we should
consider introducing a ban in the consumer rights legislation on DRM
technologies that restrict legal uses of a work. There is no point in having
our parliaments introduce a balanced and reasonable copyright legislation, if
at the same time we allow the big multinational corporations to write their own
laws, and enforce them through technical means.

This is, in essence, what the Swedish Pirate Party proposes, and the
position on copyright that
the
Greens/EFA group in the European Parliament adopted
in September
2011.

The proposal is completely in line with ideas that have been voiced in
the international debate, such as Lawrence Lessig’s
Free Culture
or Yochai Benkler’s
The Wealth of
Networks
. These ideas have been thoroughly discussed for at
least a decade, both by academics and the Internet community.

”But how will the artists get paid, if file
sharing is set free?”
is the question that
always comes up in the discussion.

Well, ”how” is not really for us to say as politicians. To find a
business model that works is up to the individual entrepreneur, in the cultural
sector just as in any other industry. But we are certain that the cultural
sector as a whole will continue to do well, as demonstrated by economic
statistics from more than a decade of rampant file sharing. There is no
conflict between file sharing and the production of new culture, quite the
opposite. Our proposal is good for the artists, both from a creative and an
economic point of view.

But the issue is bigger than that. This is about what kind of society we
want.

The Internet is the greatest thing that has happened to mankind since
the printing press, and quite possibly a lot greater. The Pirate Bay,
Wikipedia, and the Arab Spring have made headlines as dedicated people have put
the new technology to work to spread culture, knowledge, and democracy, respectively.
And we have only seen the beginning.

But at this moment of fantastic opportunity, copyright is putting
obstacles in the way of creativity, and copyright enforcement threatens
fundamental rights, including the right to private communication, the right to
receive and impart information without interference by public authority
regardless of frontiers, the right to due process, and the principle of
proportionality when punishments are handed out.

We need to change the direction that copyright legislation is going in,
in order to protect our fundamental rights. No business model is worth more
than the right to private communication and freedom of information.

Copyright needs to be reformed urgently.

The Right To Talk In Private

Six years ago, when I, Rick Falkvinge, founded the Swedish and first
Pirate Party, we set three pillars for our policy: shared culture, free
knowledge, and fundamental privacy. These were themes that were heard as ideals
in respected activist circles. I had a gut feeling that they were connected
somehow, but it would take another couple months for me to connect the dots
between the right to the fundamental liberty of privacy and the right to share
culture.

The connection was so obvious once you had made it, it’s still one of
our best points:
Today’s level of copyright cannot coexist with the right to communicate
in private.

If I send you an e-mail, that e-mail may contain a piece of music. If we
are in a video chat, I may drop a copyrighted video clip there for both of us
to watch. The only way to detect this, in order to enforce today’s level of
copyright, is to eliminate the right to private correspondence. That is, to
eavesdrop on all the ones and zeros going to and from all computers.

There is no way to allow the right to private correspondence for some
type of content, but not for other types. You must break the seal and analyze
the contents to sort it into allowed and disallowed. At that point, the seal is
broken. Either there is a seal on everything, or on nothing.

So we are at a crossroads. We, as a society, can say that copyright is
the most important thing we have, and give up the right to talk in private.
Either that, or we say that the right to private correspondence has greater
value, even though such correspondence can be used to transfer copyrighted
works. There is no middle ground.

What has become clear recently is the level of understanding of this
within the copyright industry, and how they persistently try to eradicate the
right to private correspondence in order to safeguard current disputed levels
of copyright.
A cable leaked
by WikiLeaks
in December 2010 outlined a checklist given to the
Swedish government with demands from the US copyright industry,
IIPA
. The US Embassy was quite appreciative of
how the Swedish justice department was “fully on board” and had made
considerable progress on the demands against its own citizens, in favor of the
US copyright industry.

In those demands were pretty much every Big Brother law enacted in the
past several years. Data retention, Ipred, three-strikes, police access to IP
records for petty crimes, abolishment of the mere conduit messenger immunity,
everything was in there.

The copyright industry is actively driving a Big Brother society, as it
understands that this path is the only way to save copyright. It’s time to
throw that industry out of the legislative process.

One of the primary demands of the Pirate Party is that the same laws
that apply offline, should also apply online. This is an entirely reasonable
thing to demand. The Internet is not a special case, but part of reality. The
problems appear when an obsolete but powerful industry realizes that this just
and equal application of laws means that they can’t enforce their distribution
monopoly any longer.

To understand the absurdity of the copyright industry’s demands, we must
pause and consider which rights we take absolutely for granted in the analog
world. These are rights that already apply in the digital part of reality as
well, but are somehow hidden in a legal game of hide-and-seek.

Let’s look at what rights I have when I communicate through analog
channels with somebody – using paper, a pen, an envelope, and a stamp.
The same rights should apply when using a digital communications channel
instead, at least theoretically, since the law doesn’t differentiate between
methods of communication. Unfortunately for the copyright industry, the
enforcement of our rights online would mean that the copyright monopoly becomes
utterly unenforceable, so the copyright industry is now attacking these fundamental
rights on every level. But that doesn’t mean our rights aren’t there.

When I write a letter to somebody, I and I alone choose whether I
identify myself in the letter inside the envelope, on the outside of the
envelope, both, or neither. It is completely my prerogative whether I choose to
communicate anonymously or not. This is a right we have in analog
communications and in law; it is perfectly reasonable to demand that the law
applies online as well.

When I write a letter to somebody, nobody has the right to intercept the
letter in transit, break its seal and examine its contents unless I am under
formal, individual and prior suspicion of a specific crime. In that case, law
enforcement (and only them) may do this. Of course, I am never under any
obligation to help anybody open and interpret my letters. It is perfectly
reasonable to demand that this applies online as well.

When I write a letter to somebody, no third party has the right to alter
the contents of the letter in transit or deny its delivery. Isn’t it perfectly
reasonable to demand that this applies online as well?

When I write a letter to somebody, nobody has the right to stand at the
mailbox and demand that they log all my communications: who I am communicating
with, when, and for how long. Again, to demand that this applies online as well
would only be logical.

When I write a letter to somebody, the mailman carrying that letter to
its recipient is never responsible for what I have written. He has messenger
immunity. And yes, it is perfectly reasonable to demand that this applies
online as well.

All of these fundamental rights are under systematic attack by the
copyright industry. They are suing ISPs and demanding that they install
wiretapping and censoring equipment in the middle of their switching racks.
They are constantly gnawing at messenger immunity (mere conduit and common
carrier principle), they are demanding the authority to identify people who
communicate, they want the authority to deny us our right to exercise fundamental
rights at all, and they have the nerve to suggest censorship to safeguard the
distribution monopoly.

All of the above stems from the fact that any digital communications
channel that can be used for private correspondence, can also always be used to
transfer digitizations of copyrighted works – and you can’t tell which is
which without giving the copyright industry the right to break the seal of
private correspondence, which is a right the Pirate Party is not prepared to
surrender.

These are civil liberties that our forefathers fought, bled, and died to
give us. It is beyond obscene that an obsolete middleman industry is demanding
that we give up our rights to preserve an entertainment monopoly, and demanding
more powers than we are even giving the police to catch real criminals. Then
again, this is nothing new.

When photocopiers arrived in the 1960s, book publishers tried to have
them banned on the grounds that they could be used to copy books which would
then be sent in the mail. Everybody told the publishers tough luck: While the
copyright monopoly is still valid, they have no right to break the seal on
communications just to look for copyright infringements, so they can’t do
anything about it. That still applies offline. It is perfectly reasonable to demand
that it applies online as well.

The copyright industry sometimes complains that the Internet is a
lawless land and that the same laws and rights that apply offline should apply
online as well. In this, the Pirate Party could not agree more.

But unfortunately, what is happening is the opposite. Corporations are
trying to take control over our communications tools, citing copyright
concerns. Frequently, they are assisted by politicians who are also aspiring
for the same control, citing terrorist concerns or some other McCarthyist scare
word of the day. We should see this in perspective of the revolts that happened
in 2011 in the Arab world.

There is a blind trust in authority here that is alarming. The
ever-increasing desire to know what we talk about and to whom, and that desire
is displayed openly by corporations and politicians alike, is a cause for much
concern. To make matters worse, it is not just a matter of eavesdropping.
Corporations and politicians openly want – and get – the right to
silence us.

The copyright industry is demanding the right to kill switches to our
very communications. If we talk about matters disruptive enough, disruptive
according to authorities or according to the copyright industry, the line goes
silent. Just twenty years ago, this would have been an absolutely horrifying
prospect. Today, it is reality. Don’t believe it? Try talking about a link to
The Pirate Bay on MSN or on Facebook and watch as silence comes through. The
copyright industry is fighting for this to become more pervasive. So are some
politicians with agendas of their own.

While the copyright industry and repressive Big Brother politicians may
not share the same ultimate motives, they are still pushing for exactly the
same changes to society and control over our communications.

At the same time, citizens’ physical movements are tracked to street
level by the minute and the history recorded.