As reader libreuniverse pointed out in forwarding this, this is big, big news: large Internet service providers, on whom millions of people depend for their Internet service, are going to start acting as copyright police:

“RIAA chief: ISPs to start policing copyright by July 12”

The short version: each ISP will maintain a database of “repeat offenders”, with gradually escalating punishments, starting with warning letters, then moving to slowing down the subscriber’s connection, and finally to cutting them off altogether.

This is going to hurt artists.  It’s going to drive unauthorized copying even further underground, onto the so-called “dark networks” where people use encryption and other forms of indirection to hide from the network provider (and therefore from everyone else except the intended recipient) what’s being copied.  Use of such techniques is already widespread, and now it will become common and normal.  This means artists don’t get credit for their popularity: it becomes more and more difficult for an artist to tell who likes them and where and why, because all of the sharing and the commenting and recommendation that goes along with it gets driven underground.  The ISPs are essentially forcing fans to hide their love of their favorite artists.

This is unfairly one-sided — the ISP holds all the cards.  There is no penalty for the ISPs when they make a mistake, so the tilt is all towards heavy-handed enforcement that will prevent all sorts of legal sharing and will inevitably punish innocent users.  I hesitate even to use the word “innocent”, since there’s nothing wrong with people sharing culture anyway, but even given  the distributor-driven bias of current law, this arrangement is unjust and will force many people to waste time fighting mistakenly-applied penalties.

This is nothing new.  The privatization of censorship has been the pattern with copyright since the very beginning, when the Stationers Company was first given a monopoly over printing in England and authorized to burn unapproved books and destroy unapproved presses.  The ISPs are now reconstituting that private sector information police force, first invented by England to combat the spread of seditious pamphlets… and later rejected by the English Parliament as being too great a restriction on freedom of speech.  Will it take us as long (thirteen decades) to come to the same conclusion?

This is what happens when media companies are also Internet service providers.  Anti-trust law typically focuses on confluences of power within the same industry, but this is a case of two mutually symbiotic industries — the management of state-granted monopolies in the form of copyright ownership, and the provision of Internet service to individual customers — that are increasingly run by the very same companies.  No one would advocate that recreational beverage companies also be put in charge of municipal water management, would they?  But that’s effectively what we get when media companies are also in charge of the pipes through which the information flows.  If ever two functions should be wholly separate, it’s these two.

On the bright side, the more people get those warnings from their ISPs, the more allies we’ll have in the fight for the freedom to share culture and to communicate without restriction.  It would be hard to imagine a more effective constituency-building measure — and even better, the ISPs are paying for it.  I’m thinking of requesting a summary of their implementation costs, so we can send them a letter of thanks and a confirmation of that amount as a donation.

Sometimes ridicule is the best, indeed the only, argument.  Kudos to Rob Reid for his brilliant and hilarious TED Talk on the exciting new field of “Copyright Math”:

(If you have any trouble viewing it in your browser, try downloading the MP4 video file instead.)

Happy New Year!  In 2012, we wish for more and more people everywhere to question copyright, and for more artists and audiences to take the plunge into freedom-based distribution.

Speaking of which, was anyone watching Al Jazeera English when QCO artist-in-residence Nina Paley’s Copying Is Not Theft Minute Meme came on?  We’d love to know more about the broadcast that this image comes from:

Someone sent it to Nina via Facebook — that’s all we know about it so far.  We hope they showed the whole thing, though!

(Anyone with further information, please leave a comment here or contact us.)

It’s dismaying enough when governments adopt the copyright industry’s PR strategy of confusing copying with counterfeiting — which are unrelated and should be treated separately, as we pointed out last year in sections (4) and (5) of our letter to the U.S.’s Intellectual Property Enforcement Coordinator.

It’s even more disappointing when independent journalism outlets like the New York Times adopt the monopolists’ framing too, apparently unconsciously.  Unfortunately, it happens so often that we can’t stop to point out every instance; however, when it’s above the fold on the front page of the New York Times, it’s worth a mention.

David Barboza’s article “One Entrepreneur’s Rival in China: The State” in the Dec 8th, 2011 New York Times is about how a state-backed company in China used design techniques “stolen” (i.e., copied in violation of contract) from a private company.  In legal terms, this is more about trade secrets and perhaps patents than it is about copyright, but the copying-vs-fraud distinction that needs to be made is conceptually the same, and the Times fails to make it:

According to Cathay [Industrial Biotech], a factory manager stole its secrets and started a rival company that has begun selling a suspiciously similar ingredient, undermining Cathay’s profits. Instead of planning to go public, Cathay is now struggling to stay in business.

 

In this counterfeit-friendly nation, employees run off with manufacturing designs almost daily. But according to Cathay, this was copying with a special twist: the new competitor, Hilead Biotech, is backed by the Chinese government.

(I don’t want to single out Barboza; in enabling this confusion, he’s simply following current house style at the Times.)

Now, we don’t advocate violating contracts, or for that matter trade secret laws.  We merely advocate thinking and talking clearly about what is what.  Unauthorized copying of industrial formulas has absolutely nothing to do with counterfeiting.  Why did the author  toss in that “In this counterfeit-friendly nation…”?  What has it got to do with the story?  Nothing at all.  It’s just that the copyright and patent industries would like you to think of unauthorized replication as being exactly the same as telling lies about a product’s provenance, because everyone knows lying is bad and therefore it is useful (to those industries) to associate certain other activities with lying — activities that, if considered on their own merits, might start to look morally neutral or even positive, such as when a poor nation manufactures important drugs cheaply in violation of someone’s patent, or infringes copyright to print educational materials its students can afford.  So the industries try to confuse these issues all the time, pretending different things are the same, until the minds of government officials and journalists go numb and they simply repeat what they’ve heard.

This is how global copyright enforcement provisions become part of the “Anti-Counterfeiting Trade Agreement” (ACTA).  The name is no accident.  The U.S. copyright and patent enforcement authorities have gotten the message, and the message is “Confuse the public as much as possible, by pretending that copying is the same as fraud.”  They may not even be aware they’re following someone else’s talking points.  To them, this is simply the language that is used to discuss these issues — it feels natural.

But the New York Times doesn’t have to play along.  They manage, on occasion and in other areas, to be properly skeptical of both corporate and government rhetoric, and it would be nice if they did so for this topic too.

Following up to our earlier article:

Public opposition to the SOPA / PROTECT-IP bills has been very strong, and the U.S. Congress is taking notice.  The bills are losing momentum, and one of the clearest voices against them has been U.S. Senator Ron Wyden. While we don’t agree with all his positions on copyright, he’s consistently opposed anything he views as interfering with freedom of speech (if only he saw how copyright interferes with freedom of speech on a daily basis — but we understand that that argument hasn’t made it to the U.S. Senate yet, because of how successfully the copyright lobby has framed it as a property issue). Senator Wyden, to his credit, is threatening to filibuster the bill if it ever comes to floor debate, and is offering to include your name in the filibuster if you’d like. To sign up, go to StopCensorship.org. I just did, and I hope you will too.