Copyfascism Watch

One of the hardest things to swallow for me is the concept that every single copyright infringement is somehow akin to theft. The copyright infringer usually expends his own resources and utilizes his own labor to produce a product that is similar or sometimes nearly identical (a copy) to an original work. There was no illegal transfer of resources from the copyright holder to the infringer. The only transfer that occurs is one of an idea or concept that is copied and made tangible. And I am of mind that ideas are not owned by anyone. People originate them, but they can never own them or gain the right to control its distribution.

Any thoughts?

TechRepublic has a list up of ten laws people could be violating right now as they sit in front of their computers and access the internet. Interestingly enough, half of the list pertains to intellectual property. The travesty that is the DMCA tops the list at number one:

#1: Digital Millennium Copyright Act (DMCA)

Most computer users have heard of this law, which was signed in 1998 by President Clinton, implementing two World Intellectual Property Organization (WIPO) treaties. The DMCA makes it a criminal offense to circumvent any kind of technological copy protection — even if you don’t violate anyone’s copyright in doing so.

In other words, simply disabling the copy protection is a federal crime. There are some exemptions, such as circumventing copy protection of programs that are in an obsolete format for the purpose of archiving or preservation. But in most cases, using any sort of anti-DRM program is illegal. This applies to all sorts of copy-protected files, including music, movies, and software. You can read a summary of the DMCA here.

If you’re a techie who likes the challenge of trying to “crack DRM,” be aware that doing so — even if you don’t make or distribute illegal copies of the copyrighted material — is against the law.

The DMCA as a law infringes on an individual's private property rights by making it illegal for the individual to tinker with his own electronic devices. How terrible is it that the mere potentiality of copyright infringement is grounds for legal action.

The Church of Jesus Christ of Latter-Day Saints are claiming that their copyright on the religious handbooks they give out to their bishops have been violated by Wikimedia Foundation's Wikileaks that published pages of the aforementioned material online. In an article published by Wikinews, the news publication arm of Wikimedia Foundation, a spokesman from Wikileaks stated:

Wikileaks will not remove the handbooks [the Church Handbook of Instructions is a two-volume set], which are of substantial interest to current and former Mormons. Wikileaks will remain a place where people from around the world can safely reveal the truth.

This a complicated issue. The LDS is attempting to stop the online distribution of its publicly and widely disseminated material. It is an exercise in futility if there is one. But there is a crucial question here: do tax-exempt religious institutions have copyright? I have seen no comparable cases where a church invoked its copyright in order to stop dissemination of its materials (with the notable exception of the Church of Scientology). Does the Catholic Church have a copyright on papal bulls, for example? Who owns the copyright to prayers? Religious songs? Is there anything that is not copyrightable? Even the Air Force has attempted to invoke its copyright going as far as sending DMCA notices to YouTube, never mind the inconvenient fact that governmental agencies do not hold copyrights! While I understand that the churches are not governmental institutions, their very public function (and historically they were the government!) should make them ineligible for copyrights.

Wendy Grossman explains the legal gray area that surrounds End-User License Agreements (EULA) that Microsoft et al slaps on every piece of software it sells to consumers:

If you did read the terms, you might be surprised. Eulas typically specify that the software's publisher is not liable if anything goes wrong. They typically specify the publisher's preferred jurisdiction for legal disputes. And some are even more restrictive: some graphics packages have been known to specify that they cannot be used in the production of pornographic images. Yet these licences are, as Hanlon complained, not really contracts: you generally cannot read them before you buy (rather than use) the software, and you can't negotiate terms.

One of the problems that needs to be resolved in the copyfight is the validity of licenses, which not only includes all EULAs, but Creative Commons and open-source licenses like the GNU as well. An argument cannot be made that the consumer and seller participated in a voluntary-exchange, when often the terms of the EULA are not agreed to prior to the purchase. How legitimate are the claims of manufacturers that consumers are merely buying the CDs and not the permission to install and use the software for which the consumer (rightly, I might add) believed he is paying?

We do not accept that Ford or American Eagle (a clothing company) has any say in how we use the products they sell us after it is sold to us. Why then do we give software companies this right?

A district court has resoundingly rejected the music industry's claim that the mere potential of copyright infringement (the "make available" theory of infringement) does not constitute infringement of distribution rights. From the Electronic Frontier Foundation:

In its order, the court delivers the most decisive rejection yet of the recording industry's "making available" theory of infringement (i.e., if someone could have downloaded it from you, you've violated copyright, even if no one ever did). Citing to the recent ruling in London-Sire v. Doe 1, the court concludes that "[t]he general rule, supported by the great weight of authority, is that infringement of the distribution right requires an actual dissemination of either copies or phonorecords." The court goes on to conclude that downloads by the recording industry's own investigator, MediaSentry, are not enough to establish distribution, at least based on the facts of this case (Mr. Howell maintains that, unbeknowst to him, the Kazaa software was sharing his entire hard drive). Finally, the court also suggests that P2P file-sharing may not implicate the distribution right at all, reasoning that what is really going on is a series of reproductions.

Unlike in Elektra v. Barker, the court in this case rejected the RIAA's claim that they can sue people for attempted copyright infringement. It is highly encouraging, as the RIAA would have no doubt feel it can starting suing people for conspiracy to commit copyright infringement.

Richard Reinhardt's copyright infringement case against digital-music distributors Wal-Mart, Apple, and Real Networks has been dismissed by a judge frustrated at Ramones drummer's illogical argument that digital files are not “manufactured or sold,” but rather transmitted or licensed.

Reinhardt argues that the license refers only to 'all forms' that are 'manufactured or sold,' and digital downloads do not fall within its purview because they are transmitted and licensed to end users rather than manufactured or sold. This argument is without merit. The distinction Reinhardt attempts to draw departs from the most reasonable reading of the contract and he therefore bears the burden of justifying this departure. Reinhardt has failed to meet this burden, particularly because he alleges that the digital recordings were sold, contradicting his own argument that digital recordings are licensed but not sold.

LINK TO NEWS ARTICLE >>

This is interesting. The judge in this case, the Honorable Judge Shira A. Scheindlin, could have ruled on the issue of licenses itself, whether or not the licenses attached to the digital files sold to consumers have any legal standing whatsoever.

Microsoft is ending its license retrieval service for its MSN Music store, burdening consumers that legally bought their DRM-saddled music from Microsoft no way to transfer their music after August 31, 2008. Yet another example of an industry that does not feel compelled to meet its contractual obligations to consumers fooled into trusting them. As with many cases like this, it is painfully apparent that consumers do not really own the DRM-saddled content they legally bought.

Customers who have purchased music from Microsoft's now-defunct MSN Music store are now facing a decision they never anticipated making: commit to which computers (and OS) they want to authorize forever, or give up access to the music they paid for. Why? Because Microsoft has decided that it's done supporting the service and will be turning off the MSN Music license servers by the end of this summer.

LINK TO NEWS ARTICLE >>

Tanya Andersen made news a few years ago when the RIAA boldly went after this single mother in their crackdown on so-called music pirates. She is in the news again, but this time she is the one on the attack:

When Tanya Andersen opens the door to her modest apartment in suburban Portland, Ore., her Maltese-terrier mix, Tazz, runs over and wags his tail in a friendly hello. The 45-year-old single mother doesn't seem like much of a fighter. She spends most of her days sitting on an overstuffed sofa with a heating pad behind her back to ease chronic pain and migraines that have kept her on disability for nearly five years. Her voice is soft and halting. Yet this woman is behind a fierce assault on the music industry and its tactics for combating music piracy on the Internet.

LINK TO NEWS ARTICLE >>

At stake is the RIAA and its copyfascist tactics:

1. Privacy breaches.
2. Illegal snooping.
3. Intimidation and extortion.

And that is what is being reported at the moment. In the guise of protecting their state-granted monopoly, the RIAA is more than willing to resort to dirty and underhanded tactics to extort money from innocent individuals.

One of the weaknesses of the copyfight is the decidedly anti-private property bent of many of the arguments made against copyright. In fact, much more could be achieved in the protection of our besieged civil liberties if the lawyers and activists insist upon the private property rights of the individual.

Unlike other “natural rights” like free speech, private property, and privacy where government action usually involves infringement of those rights, copyrights and patents hold the distinction of the only so-called “rights” that require government coercion for legitimacy. Copyrights are not practiced; copyrights are enforced. 

As such, we must view copyrights as nothing more than monopolies granted by the government to individuals and corporations. Stephan Kinsella said:

Copyright and patent grants of privilege are another form of property infringement — courtesy of the state. While they have their origins in a much earlier privilege given to “friends of the crown,” in their modern incarnation they blend in with the welfare state’s wealth-distributing impetus. Far from being “natural” property rights grounded in the common law, patent and copyright are monopoly privileges granted solely by state legislation.

There is a disturbing trend among content-creators, especially in the online medium, to view their copyright as giving them the right to not only control the distribution of their work, but also to control the potential means of distribution. This can be seen by the way the RIAA and the MPAA went after Grokster and Napster or, in a smaller example, member photographers' reaction to the photo-sharing application Flisher in Flickr. Even the potential for unauthorized distribution becomes cause célèbre for content-creators to infringe upon what is the private property of programmers, e.g. web servers and domains. In some cases, government coercion is utilized in seizing the private property of those suspected in copyright infringement. According to copyfascists, you have forfeited your right to your own computer as soon as their content resides in it.

copyfascism \'kä-pē-fa,shi-zəm\ - 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.

This is an age when innovations in information technology occur in breakneck speeds. Everything from music to books to software to full-length movies are becoming more widely and easily available. However, against this backdrop of ever growing access to information is an increasingly contentious conflict. This is the copyright social conflict or copyfight. And the copyright social conflict is now! From the halls of government to the servers of Pirate Bay, from the nation's colleges to the digital domain, the good copyfight is being fought against copyfascism.

This is Copyfascism Watch and we are copyfighting on the side of liberty.