Enthusiasms is an edited stream of consciousness, by Simen.

No Copyright Intended

If you want to attach “post-” to something and describe a paradigm shift in culture, which is fun sometimes, let’s say this: we live in a post-copyright era. This is a statement of fact, not of ideology or wishful thinking.

The public is hopelessly out of phase with copyright law. Not only does the public not want current copyright law, nor do they act in accordance with the law as a rule; not only that, but most people appear not to even understand the law. It varies by country, of course, but there are international standards for this kind of thing. The most important one being the Berne Convention, which has been signed by basically the entire world. This convention establishes that any authored work, or recording of a performance, is subject to copyright automatically. The author need not assert this right; it’s there automatically. And this gives the copyright holder the right to control the distribution of their work. The internet, of course, neither understands nor cares. Not only is attribution to the author more like an exception than the rule; even when given, sharing copyrighted material (basically anything you can share is copyrighted material, even a funny youtube cat video, as an authored work) without explicit permission is illegal. Even if you put “no copyright [sic, insert infringement] intended” in there.

We torrent, we share, we circulate. The special provisions for “fair use” do not apply to the majority of the internet. A serious essay giving a critique or review may share, say, a picture without permission (although not a complete blockbuster movie); a blog which simply distributes it to the masses, even if “curated”—another awful buzzword—may not.

Tumblr, as a platform, is built on copyright infringement. Tumblr wouldn’t exist without copyright infringement. When tumblelogs, the mixed-media short-form of the blog which tumbled along a series of links, short quotes, and pictures, became Tumblr, the platform which automated such sharing and eventually expanded into a social network, the crucial step was enabling easy copyright infringement. Reblogging is an automatic feature that can’t be turned off; if I share a picture I personally made, Tumblr makes no provisions for the safety of my rights to control its distribution. People could always circumvent such safety measures by simply saving my picture and reuploading it, but at least there would be some nominal protection of my legal rights. But no. Tumblr lives and dies by copyright infringement.

Up until now, I’ve written this to sound as if this is some egregious sin. As if I am a conservative supporter of the current copyright regime. This couldn’t be further from the truth. Even as a person trying to make a career out of photographs and written words—two media extremely easy to share on the internet, for free, thus devaluing my work should I try to sell it—I support radical reforms of copyright law. Exactly what form these reforms should take is still not totally clear to me; but it’s clear that when the public is so out of phase with the law, so opposed to its principles in their actions and at the same time so ignorant of them, the law is what needs to change. The laws are supposed to be made by and for the public, after all. Most of us, at least those of us who most easily and readily ignore and break copyright law, live in what are supposed to be democratic states.

I won’t propose some grand plan for how to fix this, as I think it’s a complicated issue and the only thing that’s clear is that we live in a post-copyright world, that copyright is effectively abolished in practice, and will remain so until copyright law and the masses are brought into range of each other. And it seems like this can’t be done without radical, rather than conservative, reforms. For my own part, acknowledging that I haven’t and can’t consider all factors in this complex issue, I would propose that all non-commercial sharing (such as on blogs, via torrents etc) of any work should be legal, provided the source, when not anonymous, is attributed. I believe this won’t destroy entire economies dependent on copyright; I believe services like Spotify and Netflix show people are willing to pay for convenience even if they can get the same content for free. On the other hand, we are also as a whole consuming more media than before, due to the easy availability on the internet, and so we couldn’t possibly pay what the people with the biggest economic stakes in copyright law want us to pay. But the result of imposing such prices forcefully—many copyright holders, or in hypermodern parlance, content creators, complain that they receive way too little compensation from services like Spotify—would simply be a return to illicit distribution, or a refusal to consume the more expensive media, at least not via any legal avenue.

And those economies that really would perish—most of them middlemen, not actual authors of copyrighted works—are antiquated anyway. Luddites desperately trying to use the law as a weapon against the incessant march of technology, and the possibilities and shifts in public attitudes that come with it.

Often, I will have an idea percolating in my head for a long time, and then some current event or post prompts me to finally write it down. In such cases, I’m trying to say something general and using a recent example to illustrate my point, but it may look like I’m just feeding off the most current stuff, trying to “weigh in on” current issues in a desperate attempt to get ahead in the endless stream of authored works—sorry, content—that we all consume daily. I am not. I’ve been irked by “no copyright intended” and the clear misunderstandings and misalignment between public and law that the phrase epitomizes for a long time, but never got around to writing it out.

Either way, what prompted me this time was the removal of Mark Peter Drolet’s blog, hosted on Tumblr—sorry, his tumblr, in modern parlance, although I refuse to call my own blog “a tumblr”, since that implies a certain style that is mostly unoriginal content authored works and very short and quick—allegedly for copyright infringement. MPD built up a following for being a great photo editor—in the sense of a newspaper editor, not a photoshopper—which necessarily entailed, unless he wanted to work at a pace frankly way too slow for the hyperactive modern web, and add a lot to his workload, that he shared a lot of photographers’ pictures without prior permission. There was absolutely no malicious or commercial intent behind this, and—if we can trust Wayne Bremser on this, which I think we can—he removed any infringing images he was asked to remove by its authors. If this blog was indeed removed for copyright infringement, it’s an enormous hypocrisy on the part of Tumblr.

I’ll say it again: this practice is the foundation of Tumblr. It was enabling this practice—of sharing without permission, i.e., of infringing upon copyright—that was Tumblr’s innovation, its break both from conventional blogging platforms and the older tumblelog genre, and the basis of its success. This practice is integral to the functioning of Tumblr, even if the company has taken steps over the years to lessen the impact: source attribution is now automatic, although it can be removed, and may not necessarily reflect the content author copyright holder, only the source the poster took found the work at. Text posts are now automatically reblogged as a link to the source, with the text body truncated, although this, too, can be circumvented. Yet the fact remains: the platform is built on copyright infringement. It would seem like an enormous hypocrisy, and an injustice, to bring down only a few specific instances when the entire platform is built on this practice. You may as well close down Tumblr, or at least shrink its billion-dollar worth and its user base by a conservative estimate of 90%, if this practice is grounds for forcibly closing down a blog.

I want MPD’s blog back. But Tumblr’s hands are probably tied by the law. The law its very existence spits in the face of. The unfortunate reality is that we live in a post-copyright society where everyone is a serial infringer, yet the outdated laws are still in effect, and sometimes, the copyright holders have the will and means to use those laws to punish single instances of what they, themselves, are likely doing. And what can Tumblr do? If they don’t crack down when the DMCA rains down on them, their entire platform is in danger. Despite the fact that the platform is intended for and built to enable the kind of copyright infringement which the DMCA and equivalent laws are designed to punish. Mark Peter Drolet won’t go to jail for this, but he did lose his blog archives, which contained not just his carefully edited stream of other people’s pictures, but also many of his own, photographs of which he was the legal copyright holder. And the greater public lost a great blog.

Above: unattributed picture to which I have no publishing rights. A blatant display of copyright infringement. Copyright [insert infringement] 100% intended. Somehow, I doubt the legal copyright holder minds.

The Pirate Bay was raided recently and the site taken down. The site is now up again, although not operational: it just displays a countdown over a pirate flag. But what does it matter? Almost everything I could find on The Pirate Bay was also available via other torrent trackers. Temporarily taking down the most high-profile, in-your-face torrent site was only a symbolic act in a losing war. You can’t fight the public forever. The public is currently engaged in a continual guerilla war against copyright on infinite fronts. The organizations tasked with upholding law & order in this area are surrounded on all sides. They cannot take on everyone at the same time. Copyright is dead. We’re over it as a society. We can rescue the idea of intellectual property in law only by radically altering copyright laws so that they more closely align with the public’s views on the issue. Unfortunately, we will probably continue to live in this limbo state, where copyright is like a rare mythic beast, a Sasquatch that rears its ugly head at unpredictable moments, although unlike the Sasquatch, copyright sightings are often public and well documented, frequently criticized and inciting public uproar, yet even this tangible evidence that copyright “exists” does nothing to change people’s behavior. The majority continues to act as if it doesn’t exist—it does, on a piece of paper, whose stock is just a tad above the piece of paper on which a fake Sasquatch picture is printed—at least not in any form that resembles what the law says.

Perhaps it’s a sign of deeper problems with modern states that such deep misalignments between law and behavior can continue to exist, and cannot be thwarted no matter how hard governments try. Like drugs, another war that will never be won. The problem is that there are deep-pocketed interests pushing for keeping the status quo, or even going more radically in the opposite direction of what the public, through word and action, indicates it wants. But only niche political parties are willing and able to take the fight. The public continues to vote for those parties they feel represent their overall interests well; Pirate Parties are doomed to fail because their supporters are only unified on one issue, and most who agree with their core issue, radical copyright law reform, will prefer to vote for a party which more closely represents their overall interests.

After all, it’s not like copyright is real, right? I can torrent and infringe upon copyright on tumblr, facebook, instagram, and myriad other platforms as much as I like. The law can’t do a thing. It would never happen to me. That’s like a rare instance that only happens to other people. Like a Bigfoot sighting. I probably wouldn’t believe my eyes even if Bigfoot stood right in front of me. Like copyright, he’s an urban legend.

I mean, No Copyright Intended, right?

Jan 10, 2015