Slashdot Comment 2000/04/03

00:00 Mon 03 Apr 2000. Updated: 22:13 03 Dec 2006
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These were posted to a discussion about Gnutella and Freenet on Slashdot. The first section is in response to a post claiming that the networks in question are 'copyright-resistant' rather than 'censorship-resistant'. The second section replies to a response to my post that questioned the relationship between 'piracy' (which the author felt the networks discussed facilitated) and concepts such as censorship and the free and open exchange of ideas.

Initial Post

Debatable: ‘Protecting one’s copyrights’ is censorship. It can be interpreted as warranted in the interest of promoting economic reward for creative endeavors (which is actually intended to encourage creative endeavors, not economic reward per se), but it is still the suppression of someone else’s speech.

Non-debatable: ‘Protecting one’s copyrights’ has certainly been used by organizations, normally large businesses, to censor the speech of others in the case of satire, parody and so forth. The key point here is how far copyrights extend. Parodies of Mickey Mouse (including all kinds of offensive parodies that ‘most people’ wouldn’t like) are actually legally protected but despite this are impossible to defend from armies of lawyers. There are many other examples.

People tend to forget that copyright was created at a specific time with a specific purpose, and that as a legal creation is rather malleable (as has been shown by its constant extension…). /.ers should realize this, especially as it is being extended further and further by things like the DMCA.

There are two basic problems. One, as it becomes more ingrained and gathers more powerful interests behind it, copyright begins to seem a natural moral concept (not an economic incentive). This means that the idea of banning devices which could facilitate copyright violations becomes more palatable. Two, as the technology changes, violating copyright law becomes easier and easier.

All this really means is that it will be extremely difficult to maintain the status quo, and that’s what we’re seeing: large forces attempting to extend the reach of copyright so that it becomes totally ridiculous, and other forces (perhaps only intending to turn the tide a little, perhaps not) straining to render copyright utterly unenforceable.

A simple "for/against" standpoint doesn’t really work anymore, especially since copyright is a legal concept and certain players are able to change the laws in their favor. This is a point that many, including the Anonymous Coward to whom I am replying, appear to miss. Is it ‘censorship’ to say that you cannot reproduce my work now? In 5 years? In 10? 100? 1000? When does my work (which inevitably drew upon public domain ideas) become part of the public domain? Similarly, is it censorship to say that you can’t parody my work? Cite my work? Say bad things about my work? Mention my work?

It’s a matter of degree. The key point is not really about copyright ‘violations’ but rather: what do we want copyright to be? What is the best middle ground between encouraging creativity and encouraging a free and open exchange of ideas? And how do we get there?

Subsequent Post

Sure, I’ll explain the relationship.

1. What you call ‘pirating’ mp3s is actually the transmission of creative work over a certain medium.

2. In order to make the concept of ‘free speech’ meaningful in the post-Gutenberg world, ‘speech’ cannot simply mean literal speech, but the publication or transmission or dissemination or expression of concepts/ideas via any medium. Therefore, printed matter is considered (in theory, at least) as having the same protection that, for example, conversation has. On free speech grounds, at least, it’s not acceptable to rule that someone can say something but not print it. This naturally applies to digital media also; if it did not, then the concept would be useless as it would not apply to a huge part of modern communication.

3. An mp3, presumably encoding a song, is nothing but the publication of that song in a specific medium, therefore a kind of speech, entitled to the same protection as other kinds in other media.

4. A song definitely constitutes the expression of an idea or ideas.

5. The downloading of an mp3 is therefore the communication of an idea. Placing restrictions on this evidently places constraints on the free and open exchange of ideas.

6. Depending on the mp3 in question, the laws in your region, and your own opinions, the downloading of this mp3 may also be theft. It is not only theft, but, again, may constitute theft in the views of some. This does not mean that it no longer has ‘communication of idea’ status.

7. The argument I’m replying to exhibits what seems to me a fairly common fallacy: that an idea once copyrighted is no longer an idea but rather someone’s ‘property’, when it is in fact both. It’s a lot easier, in fact, to rationalize it not being property than it somehow losing its ‘idea’ status once it is copyrighted. Also, the equation of ‘copyright violation’ with ‘theft’ is problematic in the extreme, since the human concept of theft is rooted in material things. Finally, the equation of the two ignores the elastic nature of copyright; see the end of my last post for details.

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