politicsor, the many people who said movies like Coyote v. Acme that were killed for a tax write-off should be forced into the public domain were right, and here’s why
Copyright is busted, now what?§
A healthy system of creative rights, including a balanced form of copyright, is a reciprocal arrangement between creators, consumers, and the commons. Creators are granted some temporary exclusive rights by the government over qualifying intellectual work in order to incentivize creativity. These privileges are granted in exchange for creating valuable new information — the existence of which is a contribution to the public good — and for providing it in such a way that others will be able to build on it in the future. It’s an incentive for providing a specific social good, one which the market alone might not reward otherwise. Fortunately, this is actually how US copyright was designed; see You’ve Never Seen Copyright.
The takeaway from that, though, is not just that there’s a fair version of copyright, but that copyright must look like that fair model. The fact that such a thing as “good copyright” exists as a sound philosophy is not a broad defense of the word “copyright” itself, it’s an imperative requirement for the legitimacy of any system of power that claims to enforce copyright. The soundness of the philosophy doesn’t legitimate the system of power that shares its name, it damns it for failing its requirements.
When they invoke the philosophy of copyright to justify thuggery, it matters that they’re wrong.
The requirements for reciprocity intrinsic in copyright are how the system must work, but it’s not what actually happens today. In practice, corporations regularly violate the fundamental principles of creative rights — both in letter and in spirit — and use copyright protections to profit without showing the required reciprocity.
I can’t possibly list all the stories of what these violations look like. Seriously, just the thought of me having to give a representative sample of companies abusing IP law made me dread writing this series, it’s such a prolific problem. But I have shown a sample: Nintendo using copyright to kill new creative work, Apple using trademarks to keep competitors from conducting trade at all, book publishers trying to destroy the idea of buying and selling books… they’re all examples of how companies do everything they possibly can to get out of fulfilling their side of the bargain.
Case studies are fun, but just listing out a bunch of horrors isn’t what I set out to do; that’s just groundwork for thinking about the problem. What’s important is that they’re a representative sample of a kind of behavior. With all that established, you can read this with the knowledge that yes, they violate the purpose of the law as written and yes, violations are so regular they seem to define the practice.
So what does it all add up to?
Here’s what I say: If you want out of the deal, so be it. When someone won’t participate constructively — if they don’t work in good faith, or at least begrudgingly accept the limits the system of copyright puts on them — we stop respecting their claim to special privileges within it as legitimate, and understand it as the double-dealing overreach it is.
As self-evident as it sounds when I say it out loud, this argument is my nuclear option. This is what I would have to say if it ever got this bad; if, between the two of them, the courts and the corps ever broke the system beyond my last bit of tolerance. And I’ll be damned if they haven’t done just that.
Legitimacy§
In You’ve Never Seen Copyright, I talked about how the word “copyright” can refer to two very different things: either a philosophical basis that justifies copyright as a legal doctrine, or the system of power that describes how copyright is actually enforced, what enforcement looks like, and who it benefits.
But the fact that the power structure has diverged from the original philosophical intent doesn’t just create a communication issue. Yes, it becomes increasingly unclear what people who say “copyright” are talking about, but the legitimacy of the power structure depends entirely on being an implementation of a sound legal doctrine.
If power isn’t grounded in a specific, coherent philosophy, we get the Machiavellian power scramble we see today. Instead of power being rooted in doctrine, it’s continually extended and redesigned without regard for its design, and so it diverges from the design in ways that benefit whatever parties can wield immediate political power. This is a bad thing.
But what does that divergence look like? It looks like ways the system has drifted so far that it’s flipped entirely, and now enforcement seems to directly oppose the purpose of the power in the first place.
Rights require reciprocity§
Copyright is a quid pro quo arrangement. Because it serves the public good to incentivize creation, there has to be a mechanism to pay creatives for their work. While it is a social contract rather than a literal contract, the extra rights granted to creators are incentives for engaging constructively with the system. Even though the requirements to claim them are very loose,1 the incentives for creation are a trade, not a gift.
In our system of copyright within capitalism, that incentive is a temporary monopoly. For copyright, it’s a temporary, exclusive-but-licensable right to sell new reproductions, for patents it’s a temporary, exclusive-but-licensable right to use the invention.
But that right is compensation for a specific societal good: the general creation and circulation of new art and information. Copyright’s exclusivity period is limited, after which the work must fall back into the public domain for others to freely build on. Patents are even stricter: in addition to the limited lifespan, patents require the rightsholder to publish sufficient information to enable anyone to reproduce the same invention. This lets them start competing when the patent expires, but it also lets them immediately start learning from the ideas that were published. This is the reciprocity: you have to pay into the system to earn the special benefits from it.
Holding parties responsible§
When we know there’s ongoing abuse at play, we have to have some sort of mechanism for dealing with it. When corporations and other bad actors act in ways that violate the rights of others, those violations obligate them to consequences that necessarily follow.
This series is not just about how broken the current system is, but rather how individual actors within the system (namely corporate rightsholders) still bear responsibility for their actions. The abuses can be understood as a whole, but also understood individually: specific actors violating specific principles. We shouldn’t just shrug our shoulders and weather the abuse, we should hold bad actors accountable. And accountability means recompense that matches the crime: restitution for the damage done in addition to a penalty.
You can’t take both shares§
In the case of creative monopolies, the quid-pro-quo agreement is that creators produce and share information with the public. Information — whether art or science — is considered a general public benefit, and producing it creates value that the market by itself might not sufficiently reword, especially if it’s easy to copy and distribute. So, for participating in a societal system that ultimately makes new art and discoveries public, we grant creators a temporary period of private monopoly, as a specific incentive.
Like all similar arrangements, violating the terms of the contract must revoke you of the special benefits it gives you.
But for powerful corporations, or in the case of any abusive behavior that’s been normalized to the public, that remediation generally just doesn’t happen. Bad actors abuse the system as a standard practice, and the regulatory agencies and courts generally fail to police them.
This is the classic problem of regulatory capture within capitalism. Profit incentives are the whole game, and while copyright is supposed to align the profit incentive with social goods, when wealthy parties get outsized political power, they use it to subvert this. Companies have found that instead of taking the deal, it’s often more profitable for them to short-circuit the incentive system, break the regulatory system, and make off as bandits. They choose, deliberately, to reject the system and profit off violating it instead.
That’s where we find ourselves now; I’ve spent this series evidencing that already. But what do we do about it?
Rejecting the sweet deal§
“The System” is already a low bar§
Intentionally acting outside the scope of copyright protection is particularly egregious today, because our idea of copyright is absurdly generous to rightsholders. To reject it is to be offered the sweetest deal you could imagine at the negotiating table, and then just rob the other party instead.
The baseline of the system is already eroded to the bone. To show how sweet the deal is, let’s look at just one facet of copyright: transferability beyond the lifetime of the creator.
The current baseline copyright term — which I previously capped at a theoretical maximum of the entire life of the author — is life plus 70 years2. That’s a whole extra 70 years of creativity-stalling protection that cannot benefit the creator or the commons in any way; it just collects profit for whatever corporation bought the rights.
Still rejecting the sweet deal§
So that’s the standing offer: an absurdly one-sided, already questionably legitimate gift from the government to rightsholders. Meet the scant requirements — tick a few boxes — and you can print money.
Now, here’s my generosity of a saint: I’m not even counting that as the violation. I’m willing to put my finger on the scale so as to call the deal reasonably balanced. Regardless of how far3 the goalposts have moved, that’s where they are now.
When I talk about copyright abuse here, I’m talking about companies who already have the best deal anyone could ask for, but for whom even that isn’t enough.
Trading their legitimacy§
What I’m not doing is complaining about “companies that ultimately prioritize profit”, because that applies to all corporations, by definition. Companies don’t care about copyright, they care about profit. Copyright is just a tool they use occasionally toward that end. The culprits here are the ones who, in an effort to prioritize profit, choose to violate the terms of the agreement and attack the system instead of working within it. And it worked! They achieved regulatory capture, massively expanded their rights, and made accountability for abuse almost impossible.
But they did it at the cost of their own legitimacy. It’s a high price, and although they haven’t finished paying it, they choose to make that trade. And they’ve stayed the course.
What’s more, they are the ones who depend so entirely on this bargain. The foolishness of cutting out the floor from beneath themselves like they’ve done cannot be overstated: it’s a ludicrous mistake.
So how do you respond when someone looks at the system of creative rights and says “No, I don’t want that. I don’t want any part in a system that might not exclusively benefit me.” Case like Nintendo using copyright to kill new creative work, or Apple using trademarks to keep competitors from conducting trade at all, or book publishers trying to destroy the idea of buying and selling books?
How do we handle the case where, in an attempt to maximize personal profit beyond, someone goes beyond what the system allows in a way that violates the premise of giving them special privileges?
Well, the first step is to expect the government to work. You need the system (composed of corporations, courts, congress, regulatory agencies, etc) to self-police.
Failure of the system to self-police§
It doesn’t, though. Surprise!
At this point I was going to talk about what “acceptable remediation” would look like in a functional copyright system, but there’s really no point. We already know what the system should look like; we covered that at the very start! A functional system is one that looks like that model and enforces it, and ours does neither.
We can take a page from the economics textbook and let the computing machine that is the Market give us our answer for us. We know the existing systems to discourage abuse are insufficient because companies judge abuse to be encouraged and rewarded, and find they are correct. Again, we don’t have to do a detailed analysis of the internals of the system, because companies have done the cost-benefit analysis themselves and have all independently come to the conclusion that the system is so broken they can keep on as-is without any prohibitive consequence.
The failure of remediation§
Things only got this far because the systems of power are unwilling to check themselves, so I see little point in describing how they could start checking themselves now. “Do what you already know you have to do and filter all the evil behavior out of the market”, is the answer. Like I said, I’m very tempted to write out a framework for what that would look like, but there’s no point, because the existing power structures will never want to.
Remediation is the process of remedying damages. When a harm is done, even before we consider punitive punishment, the bare minimum is for the offender to remedy the harm they did to the extent possible. That could look like repairing a broken item, or returning stolen property, or anything that directly restores what was lost. A right is only a right if you have a right to remedy when it’s violated.
But because remediation in the case of overaggressive copyright abuse is broken, given the choice between copyright and indiscriminate territoriality, companies have every reason to choose the latter and reject the former, because we’re still giving them all the benefits of copyright even when they reject it.
This system is no system at all. It doesn’t run by rules or internal logic. It’s just people in power who take everything they can get away with at every turn, and spend what they take to make “what they can get away with” more, next time.
Replying to giovan_h:Sat Mar 25 01:01:10 +0000 2023Intellectual property is a specific legal and philosophical doctrine. If your goal is "only I get any rights, and I get all the rights forever", that's not copyright, that's just thuggery. In fact, IP has an ACTIVE DUTY to ostracize those actors, not protect them.
Replying to giovan_h:Sat Mar 25 15:20:36 +0000 2023@giovan_h i'm not holding my breath for corporations to relinquish a doctrine of 'only i get any rights forever - you only get the right to pay me money' or for the law to uphold anything besides those interests or for them to not call this what IP is about
So how do you operate when there’s a machine already in the room that was designed to solve the problem, but refuses to? The answer is usually “try to fix it”, which has failed.
So what’s next?
Voiding the rights: the fallback case§
How do you deal with a bad actor dangerously using their privileged status to commit further abuse? The contractual structure of copyright gives us a natural answer: violating the deal has to revoke the special privileges it affords.
In these cases of abuse, where there are not just incidental infractions but whole business models predicated on abusing copyright, the offender’s claim to the privileges they refuse to pay for is illegitimate, and so it must ultimately be treated as such.
Here’s what that would look like: whatever rights you try to abuse, you should lose. If you try to use copyright to shut down reporting you don’t like, not only is the abuse not allowed, you also lose the rights to whatever you tried to use to perform the attack. If you try to use copyright to prevent others from publishing their own legitimate work, you lose exclusive rights over that work. If you try to file a bogus patent, that idea goes into the public domain.
Enforcement should be “infectious” in both directions. Right now, copyright is only infectious in one direction: violating copyright by including a reproduction without the rights to use it puts the whole work in legal jeopardy. But this dynamic should also apply in the other direction: violating copyright by trying to leverage a right you don’t have the right to leverage should put the basis of that claim — whatever it was — in legal jeopardy.
If you act outside of legitimacy, the privilege you tried to abuse get revoked. It’s a simple, powerful idea.
It’s appropriate§
Copyright cannot be disconnected from the requirements that legitimate it without consequence. If a corporation claims copyright as the source of their authority and then violates its principles, they have made their power illegitimate by the standard they used to justify it.
They have traded away a system of claims and boundaries that benefits them and others alike in favor of an immediate profit at others expense. But now their claims to protection are gone too. They called the deal off, so the deal is off.
It’s not because corporations are rich, or big, or noisy. It’s because they took the offer and then broke it. To consistently act in ways that are willful, flagrant, bad-faith abuse is to reject the very framework offering them the incentive. That explicit rejection is what disqualifies them, not some general “badness”.
If you take on a debt and then refuse to pay it back, you’ve gone bankrupt. It doesn’t mean you get to keep the money, it means your creditors get to liquidate you.
The authority to evaluate§
If we know the system is wrong (for instance, if its internal workings, as well as the outcomes it produces, are demonstrably incorrect according to its own specification) we shouldn’t let its rules taint your ethical evaluation.
If you think the system is performing within an acceptable margin of error, it’s OK to cede your judgment to it. But if you don’t, it’s not.
The failure of all the relevant institutions to self-regulate means the affected people have to take the initiative to regulate the abuse ourselves. The wrongs are still happening, they’re just not being responded to justly. This is the “those who make peaceful revolution impossible will make violent revolution inevitable” scenario.
We have to base our moral decisions on the real legitimacy of the thing. We should be able to rely on institutions for that, instead of having to evaluate it ourselves, but we don’t have them. There is not a safe institution to fall back on that we can trust to eventually remediate the offense. In an environment where the system is known to not work, “trusting the system” isn’t propriety, it’s suicide.
In this political moment, the propriety that “the right people” are the ones regulating the system stops mattering. “The right people” are just the representatives of the public, and now that they’ve failed, the responsibility falls back to the public.
Notions of propriety, ownership, and entitlement can’t be relied on because every institution whose purpose is to ensure them have failed. This is not a system where taking the moment-to-moment justifications for thuggery as “rule” that you should subject yourself to is a principled stand.
So while the authorities are still culpable for their failures, their corruption doesn’t make the need for remedy disappear, nor does it mean no one can address the problem. Instead, it means we all have to demand that the wrongs are remedied, or else they will not be.
Good faith§
But I still say we have an obligation to operate in good faith until proven wrong. And I think a large margin of grace is appropriate here. Anything that falls within the range of reasonableness4 should be considered fair play, or a reasonable error. Anything that could be part of a good-faith approach shouldn’t be considered grounds for an extreme response. You’re protected by default until you actively decide to go bad.
But if you switch into an offensive mode, when bad faith actions that constitute abuse becomes your standard operating procedure, your claim then becomes illegitimate.
Companies who commit these persistent violations, who base their business models around intentionally refusing to participate in the system, have opted out of the civil system. The persistent intent matters: once is happenstance, twice is coincidence, the third time is enemy action.
We still have to treat people as acting in good faith unless they explicitly move themselves into the “bad faith actor” category. Violating the real rights of good actors is still wrong! But when Harper-Collins or some other known delinquent comes up with some story about how piracy is wrong because they’re such strong believers in copyright, the only acceptable response is to laugh in their face and say “no”.
Further (as I often argue in many contexts) ignorance is a failing, not an excuse. If a party proves that they’re not acting in good faith, and cannot be given the benefit of the doubt, they’ve revealed they’re bad faith in nature. If we still extend them the benefit of the doubt even after that, we’re not only wrong, we’re actively at fault for enabling them.
Results of the moral framework§
So, if we understand a claim as illegitimate, and only enforced through an unjust application of power, what does that actually change?
I think, most immediately, that this is a moral argument. Agreeing with this logic doesn’t change the external world, but it affects your internal world. It won’t magically negate a phony DMCA complaint, but it provides a tool you can integrate into your moral framework for evaluating what actions are just or unjust. And you apply that not only to actions you see others take, but to potential responses you can choose to take yourself.
Piracy§
Yes, cases where corporations don’t have a legitimate claim to a copyright means “piracy” can be robustly justified. You don’t have to be an anarchist. There’s an ordered, structured way to evaluate legitimacy. The system should do it, but it’s failing, so the burden falls back to us.
Is all piracy automatically justified, even when artists are acting in good faith? No, it’s not. By default, you still have an obligation to pay people for their work. Unless you know you’re dealing with a bad actor, buy indie games, buy music on Bandcamp, pay people what they ask for their work.
A rule of thumb I use a lot is if people are selling the thing you want at all, you usually have a responsibility to pay them for it. Often they’re not — I don’t want a license to stream something, I want a real, ad-free copy — but if Bandcamp will sell me real mp3s, and Humble will sell me real epubs, and itch.io will sell me real games, I’m going to pay for them.
Sat Feb 03 01:09:01 +0000 2024i know the big corps would spend billions to avoid this happening, but laws seriously need to pass that say something like
"if you dont make your copyrighted material available for PURCHASE at a reasonable price, it automatically enters the public domain. streaming doesnt count"
There are iffy cases, where it’s not clear if someone is enough of a bad actor for the axe to drop. Is someone asserting every copyright claim they can, habitually, just to preserve their power? Are they doing things like trying to enforce copyright on things that aren’t copies, like characters or fanwork? Did they issue a takedown notice on a work without analyzing to see if it was fair use? That’s not good faith. That’s not playing by the rules to compensate you for your work, that’s trying to be a landlord. Does that behavior deserve your respect? Maybe not.
But then there are the obvious cases. If some rightsholder is trying to memory-hole it because it makes them look bad, or destroy it for a tax write-off, or whatever the hell crunchyroll is doing, that’s not good-faith participation in the system, that’s just chicanery. Theftsploitation.
Fri Jul 12 23:20:04 +0000 2024Universal Pictures just tried to claim my Evan Hansen review & monetize it for their own profit. It's so bold-faced like in the part where they're supposed to put which timestamps belong to them they just put the entire runtime of my review. Evil stuff
These are gross examples of bad-faith action, people not playing by the rules. And you’re kidding yourself if you think pretending today’s set of demands is a set of rules you can play by is doing anybody any good.
I’d say shelved movies are a prime example of creative production not happening but company still being rewarded for it. To the many, many people who said those films should be required to go into the public domain, I say this: you’re right, and here’s the moral framework that agrees with that outcome.
When the question of “what are my acceptable options for sourcing this media from a corporation that hates me” comes up, the appropriate response is not “I couldn’t offend my good friend Nintendo, from Capitalism”, it’s “no, they’ve lost the right to dictate that. Once they get their shit sorted out, then they get to speak again.” Taking someone’s work without paying for it is wrong, but so is aiding a company in their pursuit to do the same.
This isn’t all that shocking a conclusion. Don’t treat false claims as legitimate, don’t reward your offenders for attacking you, but do do right by people.
Your moral evaluation matters§
But who are you to make judgements for yourself? Isn’t this supposed to be the domain of The Law? Isn’t making your own decisions about what’s right and wrong crossing a line?
The answer is no, and the reason is the same as before. The law should do this. Reasonable metrics should be written into law, and remedying harm done in cases of abuse should be standard practice.
But every person still deserves to be done right by, even in the absence of a functional system. I’d rather have a good system, personally — a lack of consensus can get chaotic! — but making decisions about right and wrong for yourself is better than leaving it to a system you know returns mostly wrong answers.
If some party won’t respect your intellectual property rights, you shouldn’t have to respect theirs. It fixes the incentive problem. It prevents and remedies damages. It’s simple and fair, even if the results are radical. Violating IP must revoke your rights, and until the law recognizes this we are obligated to do the work ourselves, or else we reward the act of abuse itself.
Without merit the only right abusive corporations have to demand is force, same as any crook with a knife. And when you know they’re just a crook, you shouldn’t give them what they want.
Getting this moral concept wrong leads to individual people, not just corporations, doing real harms because their sense of right and wrong has been completely hijacked by corporate propaganda.
Reject the false ways. Keep your standards locked to the truth and hold the world to it.
Keep your heart filled with light and close to God Related Reading§
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There’s no requirement that each individual expression is beneficial to society, for instance: we just grant that creation is constructive in general. ↩
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Or, in the case of corporate authorship, 95-120 years. See copyright.gov Circular 15a, Duration of Copyright. ↩
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Besides, the exact length of the period is a quantitative conflict, not a qualitative one, so it can be background for this without necessarily invalidating copyright by default. The goalpost have moved, but they’re still goalposts. ↩
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…and isn’t part of a specifically unreasonable campaign. I’ve talked about this before, in how a series of actions can each be reasonable in isolation, but when understood together as part of a larger campaign have to be understood as part of the campaign, which can definitely count as evidence of abuse. ↩