## The Two Lies

The two big lies are:

1. Copy-control can be make to work, and keep on working, indefinitely.
2. There is no alternative to copyright: there is no other way to make content consumers pay content producers.

These two lies support each other:

- If copy-control can be made to work, there is no need to consider alternatives to copyright.
- If there is no alternative to copyright, then copy-control must be made to work, no matter what.

## Lie 1: Copy-control can be made to work

Copy control has two main components:

1. Preventing consumers from copying their purchased content into an "unlocked" form. (Unlocked content is content that can be "played" as is on any computer.)
2. Preventing "pirates" from copying unlocked content from one computer to another (so-called "file-sharing").

The failure of copy-control depends on the failure of both these two components. Both are doomed to fail, but for slightly different reasons.

### The Failure of DRM

For each item of content, DRM only has to fail once. Once, in the whole world.

DRM usually depends on either some kind of "control" builtin into the hardware which plays the content or on some form of contrived software complexity. In all cases, the control mechanism only has to be overcome once, by one person, and the DRM is broken for that content, and also for all items of content which depend on the same DRM for their "protection".

A more detailed explanation of the eventual failure of DRM is given by Cory Doctorow in his famous Microsoft Research DRM talk.

### The Failure to Control File-Sharing

The "peer-to-peer" "sharing" of data is a basic function of the Internet. An application on your computer puts data into a packet, it addresses the packet to my computer, and, hopefully, the packet is received by an application on my computer, containing exactly the same data it had when you sent it.

If follows that the notion of "controlling" or "preventing" file-sharing on the Internet doesn't make a whole lot of sense. The only way to prevent file-sharing would be to close the Internet down altogether, and replace it with something else.

In practice, when people to talk about "file-sharing", and "peer-to-peer", what they really mean is "sharing files which are illegal to share because the content is copyrighted and the copyright holder has not given permission for the files to be copied, and, sharing the files without getting caught, even if the copyright holder has access to the data as it is being routed from one computer to another".

The surprising thing about file-sharing is that people use file-sharing applications which share files with complete strangers. It's surprising, because if one of those complete strangers is the copyright-holder of the content that you are stealing, then surely you are going to get caught.

Much of the argument about "cracking down" on file-sharing comes down to whether or not ISP's are responsible for the actions of their customers, and whether or not they should release details of their customers' Internet activity when there is evidence of copyright infringement going on.

So why do people use file-sharing applications which share with complete strangers?

There are two main reasons:

- The risk of being caught is currently very low. Most file-sharing applications use encryption. This means that you get caught only if the party you are sharing with is the copyright holder. Anyone else intercepting packets as they are routed doesn't know what those packets contain.
- By not restricting in advance who they share files with, file-sharers have more direct access to more content.

Because it probably is possible in the long run for the defenders of copyright to pass new laws which force ISP's to hold customers accountable for their actions in those cases where ISP's themselves can determine that their customers are infringing copyright, the failure of file-sharing copy-control is likely to occur in several steps:

1. File sharers are held accountable for file-sharing, and they get caught when sharing files with "strangers"
2. File sharers respond by only sharing files with "friends", either offline or online
3. "Friend-to-friend" file-sharing software gets written that makes it easy to transfer files from one friend to another friend to another, etc. This software is so good that it is only slightly harder than it used to be to get hold of all the content that you want.

### The Technological Dictatorship

A more precise version of the "can-be-made-to-work" lie is not about whether or not copy-control can be make to work, but about what would be required in order for it to work. The lie is that only slight modifications to existing technologies are required to enforce copy-control, where each modification is a response to an existing form of piracy. So if people share files with complete strangers, then copy-control can be enforced by holding every Internet user responsible for any file-sharing activities that can be identified as copyright infringement. But, as explained above, this will not prevent file-sharing; it will just force file-sharers to make slightly more effort when they file-share, for example to use encryption, and to only directly share files (off-line or on-line) with people they know.

The truth is that copy-control can only be made to work if all aspects of the manufacture and distribution of computer hardware and software are completely sub-ordinated to the requirements of enforcing copyright law. This required end-state has no common name, but I like to call it the Technological Dictatorship.

It should be a politically and morally unacceptable end-state. The danger is that we will approach it incrementally, with always "just one more fix" to solve the "problem" of piracy.

## Lie 2: There is no conceivable alternative to copyright

This lie is mostly stated implicitly. Copyright issues are discussed as if there is no conceivable alternative, and there is no mention of even the possibility of an alternative.

The most common term for proposed alternatives to copyright based on copy-control is Alternative Compensation Systems, or ACS (and my own contribution on this topic is Voted Compensation).

Whether or not any alternative system can be made to work is as yet undecided – because a non-trivial effort of design and implementation would be required to set it up, and it is difficult to know how well any new and complex system of any kind is going to work until you actually try it. But the big lie is to ignore even the possibility that an alternative system could be made to work.

The "no-alternative" lie has three minor variations.

Variation 1 is to consider alternatives, but only within the framework of copyright. These alternatives include:

- Sell tee-shirts and other merchandise associated with your content
- Ask for donations
- Sell digital content, but for a much lower price
- If you are a musician or computer, make money from concerts
- Don't worry about being paid, because people will make stuff for free anyway, and the Internet makes it easy, or soon will make it easy, for unpaid amateurs to co-operate to produce high-quality material and distribute it for free.

Any of these "alternatives" may work for some content-producers some of the time, but this type of argument makes an easy straw-man for anyone on the pro-copyright side of the debate. It is easy to be skeptical about the effectiveness of these alteratives in funding the production of some of the more expensive high-quality content that we are all used to enjoying.

Variation 2 is to consider alternatives, but to consider them only as fixes to temporary deviations from the perfect operation of copy-control. Thus a media tax may be levied, but the tax is framed (I'll say more about "framing" soon) as "compensation" for the "victims" of piracy. One consequence of this framing is that the presumed victims are given control the dispersal of funds, whereas if a media tax was proposed as a compensation system in its own right, then it might seem more reasonable to give the payers of the tax responsibility for determining the dispersal of funds (which is what my Voted Compensation scheme is all about).

Variation 3 is to ignore examples where taxpayer funds are already being used to create content. There are examples of free content being produced and funded by taxes, where of course these taxes have been levied by legal coercion. For example:

- Most NASA photos and videos are "not copyrighted" (see the NASA guidelines web page). So US taxpayers are funding the costs of producing this "free content".
- The BBC supports development of an open-source video codec. So here UK taxpayers are footing the bill.
- Many other open-source software projects are developed and distributed by government funded researchers at universities and other institutions.

If you are trying to prove that coercive alternatives to copyright cannot work, then you should either not mention these examples at all, or, you should give them as examples where the production of content needs to be privatised so that the content is not given away to people who don't pay for it.

## Framing

Framing is the idea that how we choose to talk about an issue, and especially the words we use, can prejudice our thinking about the issue, and reflect unspoken assumptions.

We can counteract the effects of framing by stating these assumptions explicitly, so that they can be questioned.

Framing permeates discussions of intellectual property rights. Even the appearance of the words "property" in the expression "intellectual property" counts as an example of framing – the use of the word "property" implies that the analogy between physical property and "intellectual property" is good enough to apply our intuitions about the former to the latter.

When talking about copyright and copy-control, the word with the strongest framing effect is the word "piracy". To give an example, a typical sentence with the word "piracy" in it is:

> We need to stamp out piracy.

This sentence can be seen as analogous to:

> We need to stamp out murder.

> We need to stamp out car-jacking.

> We need to stamp out vandalism.

The analogy is a moral one – murder, car-jacking and vandalism are all "bad things". The degree of badness varies in each case, but most people would agree that they are bad.

But here are some more controversial examples:

> We need to stamp out homosexuality.

> We need to stamp out atheism.

There are people in the world today who agree with both these sentiments, but in most liberal Western democracies the first one would be regarded as highly provocative, and the second one as just silly. The right to not believe in God was decided long ago. Changes in the acceptability of homosexuality are more recent, but it would, for example, be a bad idea for even a presidential candidate in the USA to state that "we need to stamp out homosexuality".

In the case of piracy, it is not just a question of whether or not we should abandon copyright, but whether or not there should be some means for content-producers to get paid for their efforts, if it can be demonstrated that some content-consumers enjoy their content.

So we could say:

> We need to stamp out the non-payment of content producers.

This is not as catchy as talking about "piracy", but it deals more directly with what really matters, i.e. whether people who deserve to be paid for their efforts actually do get paid. And it leaves us open to the possibility of a solution that does not involve copy-control.

### Criminal Piracy

Another example of framing with the "P" word is:

> Organised crime makes money from piracy.

(Which of course is yet another reason to "stamp out" piracy.)

Applying the same substitution as my previous example, we would get:

> Organised crime makes money from the non-payment of content producers.

Unfortunately this doesn't even make sense (at least not to me), so perhaps we should go back to the original and attempt a different alteration, for example:

> Organised crime makes money from piracy within the context of copyright law.

Once again less catchy that the original, but stating assumptions more explicitly.

A further re-framing, to make it more obvious that the notion of "piracy" depends on the existence of copyright as something to be "protected" by the legal system, is:

> Organised crime makes money from copying content in a legal system where the payment of content producers depends on the enforced prohibition of content copying.

This re-framing suggests the following question:

- Would organised crime be able to make money from copying content in a legal system where the payment of content producers did not depend on the enforced prohibition of content copying?

Organised crime is endlessly creative in their ability to steal when there's something to be stolen, so there is no guarantee that they won't find ways to steal money when copyright is replaced by an alternative compensation system. But it is possible that the opportunities for criminal exploitation in an alternative compensation system would be less than what they are in the existing system. In which case we could re-frame yet again:

> Organised crime makes money from the copyright system.

Stated this way, the copyright system, far from being a "victim" of crime, turns out to be the perpetrator. Copyright itself, as an entity, is "stealing" from all those content producers who have been fed the lie that copy-control is the only possible way that they can be paid for their efforts.