IP reform, for real
An 8-point proposal for revising the copyright system
For what it's worth, I'm not intrinsically opposed to copyright. I don't believe that there is a substantial moral component to it — that is, I don't buy the line that "creators deserve to be compensated for their work" is some kind of an ethical imperative, in the same way as I don't think the person who designed my apartment's locks deserves to be paid every time I use them.

Like all types of censorship, copyright has its place, but it must be wielded carefully. Both the directive, and the reason for its existence, are enshrined in the United States Constitution, which empowers Congress

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

In other words, the establishment of intellectual property as a boundable object that can be defended encourages people to create things. The thinking here is that, absent that right, people won't create things. This is arguable, of course; open-source software and the existence of a body of work released into the public domain or chartered under the Creative Commons stridently argues that the basic crux of the argument is unsound.

But I'm willing to stipulate that it's a good reason.

Regardless, the modern intellectual property system is fundamentally broken. Fundamentally, seriously broken. It has allowed monopolistic cartels like the RIAA to use the government as a bludgeon, and I cannot possibly imagine that copyrighting birdsong was the intent of the founding fathers. But in the past, I have confined my attacks on the IP regime to the philosophical. Let me now lay out what I see as the three practical issues.
  1. It sacrifices the public domain. There are two components to this; one of them is philosophical and one of them is practical. The philosophical component is that I find it morally wrong to exert a totalitarian claim over a creative work in perpetuity. And of course, do large companies; this is, no doubt, why Disney fought so hard to claim that a technicality in the copyright filing process had put the source material for Bambi into the public domain.

    Practically, in any case, most creative work involves borrowing and readaptation. Disney itself owes its entire existence to the vibrant public domain that, in recent years, it has promptly set about attempting to destroy. It is in our best interests to ensure that such a public domain still exists for the next generation of creative individuals.
  2. It externalizes the costs of enforcement. Consumers do not reap any of the benefit from intellectual property laws. Practically, intellectual property defence essentially serves only to limit consumer rights. The benefit accrues entirely to the owner of the work, who can wield IP censorship to guarantee their moral rights and income.

    However, the current evolution of the system shifts the burden for enforcement away from the rightsholders. It is therefore in their interest to indulge in overbroad attacks (lawsuits against IP addresses, the automatic takedowns guaranteed by the DMCA), because they are not required to pay for them. It is more difficult to contest a copyright claim than to make it in the first place. This means, however, that
  3. It disproportionately benefits large companies. Rather than a means of benefiting "Authors and Inventors," copyright has become another tool in the arsenal of large corporations. They have used this power to mitigate the otherwise revolutionary effects of the switch to a digital economy; in one of my favourite examples, because I experience it everyday, GEMA uses their overbroad authority to effectively shut down large swathes of YouTube — not just people illicitly posting music videos, but anyone with snippets of diegetic music that happens to fall under their theoretical authority. Intellectual property has become yet one more arrow in the quiver held firmly in the grasp of the so-called "1%."

With that, then, I present my 8-point copyright reform. And I'm not touching patents, because I don't even know what to do with those :/

Copyright is inherent to a work on its publication, for a 5-year term. Creators do not need to pay any fees for this protection, and it kicks in as soon as a work is published — that is, available for general access and consumption. Copyright is inherent to the work, and not to derivative works; if you want to release Star Wars 3D, you get a 5-year copyright for Star Wars 3D that does not extend the protection on distribution, adaptation or reworking of the original Star Wars.

Beginning in the 6th year, copyright can be renewed in one-year increments for a fee of $100, doubling each year. If you wish to retain exclusive rights to publish, distribute, adapt, etc. your source material, you can choose to do so. If your business depends on the licensing of such a work, you can do so for as long as retaining that exclusivity is profitable.

Format-shifting is expressly legal, as is any decryption required to do this. If you're truly buying a "license" for a work, rather than rights to the media, then you should also have the right to shift the format of that work — it doesn't make sense that you should be able to listen to something, for example, only on a specific brand of mp3 player. This is not to say that DRM is unlawful or even to be discouraged, but companies should not expect to successfully use a legal crutch to prevent people from making the best use of their products.

FRANDaptation (compulsory licensing) is a mandate. Songwriters must allow others to create "covers" of their songs. I would extend this further: to the extent that the goal of copyright is "to promote the Progress of Science and useful Arts," anyone seeking protection under the copyright umbrella must be willing to license their work for remixing and adaptation. This does not extend to wholesale copying (a new work must be substantively different from its source material), and artists must be compensated with a portion of the royalties (perhaps equal to the percent of the old work contained in the new, unless another rate is agreed upon separately between the original artist and the remixer).

The burdens of copyright-investigating action fall on the copyright holder. If you believe that YouTube or some Megaupload-like company is infringing on your work, you must bear the cost of investigating this claim yourself. If they are, in fact, infringing, then they are liable for payment of investigative costs in full in addition to any additional statutory or punitive damages. If they are not, then you eat it. This is intended to discourage blanket takedown requests and remove the ability for rightsholders to externalise the costs of protecting that right.

Deliberate malfeasance must be demonstrated for recovery of damages. Mens rea is a long-held and -understood concept in the law: it's the difference between premeditated murder and manslaughter. It's entirely reasonable for a rights-holder to be able to compel an infringer to cease infringing activity, but for damages to be claimed it must be proven that the infringer knowingly acted in violation of the law.

Claimed damages must be reasonable and reflect demonstrated harm. Rightsholders can claim damages, in addition to legal fees and the cost of investigating the infringement, of the greater of up to ten times the ordinary sale value of the work (or, for works that are not commercially available, the appraised value of the work) or up to one and one half times the value of the work multiplied by the number of copies demonstrably downloaded or sold.

Orphaned works. If a good faith attempt is made to contact the original creator of a work, and they cannot be found, then the work is to be considered in the public domain for the purposes of the single derivative work or republication making use thereof (inability to contact creator is an affirmative defense for infringement). If the creator then steps forward, the derivative work should be immediately withdrawn and treated as any other derivative work.

So there's the proposal. Look well, O wolves, at what will never, ever happen, because it's not kindly enough to the established order.
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