Einstein was very fond of thought experiments. Throughout the history of science, they’ve proven invaluable, specially when applied to fields where conducting actual experiments would be too difficult, too dangerous, or downright impossible. No wonder Einstein et al. found them so useful when working out the implications of general relativity. Well I would like to propose a thought experiment of my own. The United Kingdom is in the midst of creating the office of the Pirate Finder General, whose main task will be to shamelessly curtail privacy, freedom of speech, due process, innocent until proven guilty and God knows what else, just so long as it’s being done to enforce copyright law. The official reason (we’ll get to the unofficial one soon enough) for such lunacy? Proper copyright enforcement is necessary for the country to thrive in the digital economy. As them Brits say: “Bullocks!”. But let us suppose it was not. In fact, let us, for the sake of the argument, suppose—which is just really an euphemism for “pretend”—that strict copyright enforcement was the sine qua non without which, digital economies would go stale. Note that despite humongous propaganda efforts, there’s a growing body of evidence that this is indeed not the case. But bear with me. As I’ll explain below, in our ever more digital and interconnected world, an effective enforcement of such laws can not be done without striking a major blow to the freedoms and rights we routinely take for granted. But we’re going astray… sticking to the point, lets go even further, and assume that we only have a choice, as follows: either freedom (and a stale digital economy), or effectively enforced copyright—at the cost of massive surveillance—and a booming digital economy. Either one or the other. No middle ground. Which one would you choose? As I’ll argue in the remainder of this writing, freedom is the only sane choice.
All right, if you haven’t given up reading yet, then the first thing to explain is why, in this day and age, copyright simply cannot be effectively enforced without a massive surveillance infra-structure. And the answer is that, in order to ascertain whether or not a given piece of information is subject to copyright, one must, first and foremost, look at it. Whether talking about books, vinyl, CDs, or sequences of zeros and ones flowing through the wires and waves of the internet, you have to look at them to know if they are still subject to copyright. Before the internet, you could do that only to a limited extent—you couldn’t just barge into people’s houses and starting looking for signs of copyright infringement. But the entertainment industries did not care all that much, because the cost of reproducing information—copyrighted or not, but the big media only cares for the former—if significantly smaller than on past times, it was still high enough not to pose a significant threat to the established content distribution enterprises. After all, nobody wants to be buying and burning CDs ad aeternum. Not so with widespread broadband internet, and ever better and cheaper PCs (and hard drives, flash drives, etc). Now, the cost of reproducing information is not only even lower, it has become essentially non-existent! And this does pose a threat to the big content distributors, and so they’ve started to care, all that much. And so, being very much aware that in order to establish copyright infringement, you must first and foremost look at the information being exchanged, they have started chasing those who can provide first hand access to that information, other than the internet users themselves: the users’ Internet Service Providers (ISPs). Making claims like “ISPs profit from piracy”, big media lobbyists have being trying to convince the police, the courts and legislators that it should also be the ISPs job to effectively police the internet—meaning, in this case, to snoop on their clients traffic, to see what’s copyrighted. And although it is possible for IPSs to just target protocols that are the most likely to be used to exchange copyrighted information (viz. BitTorrent), once such a setup is in place, what is there to prevent it from being used to look into any other kind of traffic? Absolutely nothing. So there you go, you’ve just created a massive surveillance infra-structure—all for the sake of copyright! And the more our lives depend on the internet, the worse it will get.
Why politicians in general like this, is a twofold matter: on the one hand, big media corporations fill their pockets, in return for pushing harder legislation against “piracy”; on the other hand, the bigger the surveillance level that a government is capable of, the more power it becomes capable of yielding. And copyright—and that digital-economy-does-not-become-stale crap—provides the perfect excuse.
Actually, reality is a bit worse. Even if we keep such an overt massive surveillance from becoming commonplace—thus rendering copyright of digital information unenforceable, just the fact that copyright laws exist already places way too much power in the hands of governments. Because even if impossible to enforce, such laws nonetheless criminalize virtually everyone who uses a computer on a regular basis. Which in most countries means a pretty sizable percentage of the population. Now if a given individual or a group of individuals criticize the government, or otherwise become an annoyance to it, the government can just surveil them. And when it finds that they are copyright infringers—which will in all likelihood, be the case—then just throw them in jail, and case closed. It’s a similar situation to that of the black market in communist USSR: sometimes edible goods— i.e. food—would run short on supply, and on those occasions, the only place you could go for food would be the black market. Of course that was illegal, but everybody did it—they had to, for the alternative was to starve. The parallel with the situation I just described should be obvious: to get rid of someone, just watch the subject until he resorts to the black market, then accuse him of that and throw him in jail. QED. It is kind of ironic that strict copyright enforcement ends up creating a situation so similar to that of communism, because it was supposed to be its exact opposite, a thing only of free markets. An incentive to creative work, that blatantly lacked in communist regimes. And while it was restricted to the regulation of commercial activities, it indeed was. But trying to apply it to the private activities and communications of individuals, just turns it on its head.
Today, only very seldom will a copyright infringer end up in jail. But if the trend we’ve been watching unfold for the last decade continues, then by the end of the next one, we might be well jailing copyright infringers at will. And unlike most crimes for which people are jailed, those who breach copyright are likely to be otherwise law abiding citizens—and quite a few of them probably not old enough to vote. And by jailing them, we’ve just put them in contact with a whole new breed of law offenders—you know, those criminals that commit real crimes. Does a thriving digital economy really justifies such an abhorrent scenario? The answer here must be a resounding NO.
But as I mentioned before, today it is rare to jail those who breach copyright. It is however, increasingly common to either (1) take them to court and demand gigantic fines (ostensibly, to “set an example”), or (2) threaten to cut their internet connection. Now remember our initial assumption: freedom or digital economy, one or the other, but not both. In that scenario, would it be OK to do (1) or (2) to get the digital economy going? Choice (1) is an outrageous abuse of the legal system, that should be outlawed at once. As for (2), I think a case could be made, if it were not for one important detail: the ever more widespread and important role that digital technologies—and the internet in particular—play in our lives. From online commerce, to government services, communication with friends and co-workers, relatives, …, to searching the enormous wealth of knowledge available, quite literally, at one’s fingertips. To take all this away in an attempt to protect the digital economy is a course of action that, if adopted widely enough, would undermine and eventually ruin what it set out to protect in the first place: the digital economy, something that only became possible in the first place because of the pervasiveness the internet has achieved throughout the world.
And don’t forget that even if you can’t throw in jail anyone you so well please, you can still—by today’s laws and proposed laws—cut the internet connection of anyone you so well please. Which I’m sure a lot of guys in positions of influence would find delightful: that new form of press—viz. blogs et al.—is finally under censorship control. Again, I submit to you, that no form of economy (digital or otherwise), can possibly justify such a disaster.
I will finish by pointing out—and I can’t really stress this enough—that the assumption we started with, freedom or digital economy & copyright, is WRONG. Freedom (from copyrightish legal hindrances) will boost the digital economy, if in a completely different shape from what it had hitherto. But nonetheless, even if it was a choice between one or the other, we stand a lot more to lose forfeiting freedom than we could ever hope to win with this new digital economy. After all, kill the digital economy, and we go back two decades, at most. Kill freedom, and decades turn to centuries.