# propositional writing

# If We Let Copyright Decide "Right" And "Wrong", The Battle For Digital Freedoms Is Lost

Philip Dorrell, 2 February 2012

- When representatives of the "copyright industry" discuss copyright, their one and only assumption is that right and wrong are a priori determined by the concept of copyright.

  These people believe in copyright, they believe in copyright as a natural right of authors, and everything else follows from that.

  As for "digital freedoms", they will hardly mention them at all.

- If copyright determines what is right and wrong, then copyright infringement is always wrong.

  This is the "war on piracy".

- If copyright determines what is right and wrong, then anything which facilitates copyright infringement is wrong.

  The war on piracy becomes the war on anything that even helps piracy. There are so many features of modern digital technology which help consumers to pirate, that the war on piracy becomes a war on all digital technology.

- If copyright determines what is right and wrong, then digital freedoms are wrong, because digital freedoms facilitate copyright infringement.

  In the war on piracy, digital freedoms are nothing more than an excuse for piracy.

  Consumers cannot be deprived of digital technology altogether, because they need the digital hardware in order to consume the copy-restricted digital content that the copyright industry wants to sell them. So instead, they must be deprived of the freedom to do anything with their digital technologies other than play "legitimate" copies of content.

- If we value digital freedoms, then we need to start from a "moral blank slate", and observe that if copyright wants to take away our digital freedoms (and copyright always will want to take away our digital freedoms), then perhaps copyright itself is wrong.

  This is a change in starting point. We don't start with copyright, and see if it's OK to have digital freedoms. Instead we start with digital freedoms, and then we see if it's OK to have copyright. (And the answer might be: "Well, actually, no, it's not OK to have copyright, because that is not compatible with digital freedoms.")

- The wrongness of copyright is not the wrongness of copyright-holders or the wrongness of the "copyright industry". It is the wrongness of the idea that the ability of content authors to receive compensation of their efforts must depend entirely on the ability of those same authors to take away all of our digital freedoms.

  Inevitably any "system" is defended by those who directly profit from that system, and any battle against the system becomes a battle against its defenders.

  But we need to look beyond those people whose fortunes are tied up in the current system, and pay more attention to the system itself as being something that acts against the interests of society as a whole.

- The major moral argument for copyright as a system of compensating authors is based on two major premises, and we need to challenge both of those premises. The first premise is that content producers have to be paid; the second premise is that payment occurs if and only if we have copyright.

  It seems reasonable that anyone who does work making something useful should be paid, but this is not how the world always works. If the cost of the effort to ensure payment exceeds the value of what is produced (or more precisely, the surplus value), then it is actually not worth making that effort.

  And as for the second premise, if it is deemed very desirable or even essential to pay certain producers of digital content, we can consider other methods of paying money to content producers.

  (Any method of forcing people to pay money for something involves some loss of freedom, and any alternative to copyright is likely to involve the imposition of a "digital tax" and some scheme for disbursing the collected tax. What matters is whether we can find a method of paying content producers which does not require loss of digital freedoms.)

- Looking for examples of bad behaviour by the copyright industry is a side issue, which won't save our digital freedoms.

  Whether we agree with it or not, copyright has come to exist as a moral principle, which exists independently of any particular advocate. You can't disprove a moral principle by imputing the morals of some particular person who advocates that moral principle, if the general public is already convinced that it is a valid moral principle. (To disprove a moral principle, you generally have to show that it conflicts with other moral principles.)

  For example, a politician who wants to fight a war against shoplifting (for example) may be corrupt, dishonest, may have shot a shoplifter at point blank range, and may even have done some shoplifting himself. But, none of that is evidence that shoplifting is morally acceptable.

  Furthermore, the politician's war against shoplifting might be motivated by his acceptance of campaign contributions from a company that manufactures shoplifting-prevention technology which is so expensive that it takes 90% of a shop-keeper's profits. But revealing that to the general public still won't prove that shoplifting is morally acceptable.

  Similar accusations are made against the copyright industry:

  - Campaign contributions to politicians who legislate anti-piracy legislation that attacks various digital freedoms,
  - Severe punishments for relatively minor infractions,
  - Punishment of alleged pirates who turned out not to have done anything at all,
  - Publishers making large money from sale of copyrighted content, but passing on much less than one might have expected to the actual "authors",
  - Distribution of software that "hacks" into consumers' computers without asking for permission, installing rootkits, or other software nasties.

  But until we make an effort to demonstrate that these behaviours are an intrinsic (and inevitable) consequence of the nature of copyright, none of these accusations will be seen as anything more than accusations made against certain individuals or organisations who just happened to decide to behave badly in some way.

  The public will blame those individuals and organisations, but they will not blame copyright itself.

- "Special exceptions" to copyright will not be enough to save our digital freedoms.

  The so-called fair use argument says that even if we accept the rightness of copyright, there are some circumstances where copyright infringement is justified.

  The problem is, none of the commonly proposed "fair use" exceptions are sufficiently important or urgent to stop our digital freedoms being taken away.

  For those who believe in copyright, fair use is only acceptable if it doesn't threaten copyright as a whole.

  For example, blind readers require access to e-books that allows them to use non-visual reading methods. Such methods would be available by default if e-books were provided without DRM, so this appears to be a good reason for not having DRM.

  But to those who believe in copyright, providing e-books without DRM is a totally unacceptable solution to the problem of how blind people can read e-books.

  The copyright industry will acknowledge the need to satisfy blind readers. And governments might even impose laws requiring provisions for disabled readers of e-books. But a way will be found for blind people to have their own special "un-free" e-books which provide for audio output, and that will solve the problem of providing access to the blind, without sacrificing the protection supposedly provided by DRM.

  Another example is: "I need to add an excerpt from a DVD into my homework presentation". Which is all very well, but probably the teacher could think of some other way for their pupils to do their homework. It's not as though anyone cares that much about school homework.

  The copyright industry will be very reluctant to accept that the ability to add excerpts of DVDs to homework presentations is more important than copy-protection, if copy-protection is what is needed to enforce copyright.

- Showing that copyright has sometimes been a bad thing in the past won't save our digital freedoms.

  Some of the costs of copyright (primarily those due to monopoly inefficiency) have always been costs of copyright.

  But the greatest cost of copyright now, and in the future, is the threat to digital freedoms. In the past, we didn't have digital freedoms, or at least not very much, because the required technology did not exist, or if it did exist, it was very expensive or very inefficient.

  If we dwell on arguments about the benefits and costs of copyright in the past, we fail to recognise the importance of how those benefits and costs have changed.

  To save digital freedoms, we need to explain that the value of digital freedoms is something which has changed. A lot.

  (And when I say "we need to explain", I mean that "we", being the people who understand digital technology, and who understand what digital freedom is all about, need to explain to everyone else why digital freedoms are valuable and why they are important, and how the development of new technologies have created these digital freedoms, and how they will be lost if copyright enforcement is regarded as more important than anything else.)

- In the long run, avoiding the confrontation between copyright and digital freedoms won't work.

  A popular refrain in the copyright versus "internet freedom" debate is something like: "I don't disagree with copyright, and I do disapprove of piracy, but please don't do such-and-such because that is going to take our freedoms away".

  The problem with this apparently "reasonable" and "balanced" approach to the debate is that agreeing with the rightness of copyright and the wrongness of piracy is only one step away from agreeing with the need to enforce copyright.

  And, if as seems likely, copyright can only be enforced by taking away all our digital freedoms – or at least most of them – then this apparently reasonable "concession" to the copyright side of the debate amounts to a full surrender of digital freedoms.

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This manifesto is a Propositional Manifesto. It is licensed under the Creative Commons Attribution-ShareAlike license.