Command Line

John Tehranian has published a short paper I’ve seen linked in many of the usual places for discussions of copyright issues and reform more generally. The paper is well substantiated and imminently readable for anyone, not just activists intimately familiar with the scope and depth of copyright law and history.

In some ways, this paper serves as a history of activism in this area. It identifies some of the same elements I mention in the introductory comments I use when running the copyright panel I have been repeatedly invited to moderate at a number of cons. Copyright reform is increasingly a less esoteric concern and more something about which everyone needs to be aware. This is a direct consequence of digital media and network technology. Despite the cries of many luddites and critics of “user generated content”, this is a situation is not only unlikely to reverse but seems to be accelerating.

Tehranian goes further, highlight how these technologies have affected our norms. Others have hinted at how our everyday, unconscious activities, such as copying substantial portions of other people’s email content in forwards and replies, are often at odds with the letter of the copyright law. He does beyond the usual treatment of these examples, constructing a worst case scenario thought experiment. He provides a running tally of the statutory damages starting with the usual email exchanges but moving through the day of a notional Law professor.

Some of the examples may seem forced. But remember that this past year has seen cases of trade associations bring suit against individuals playing their music too loudly and hence unwittingly infringing as a form of public performance. This sort of stretching by copyright maximalists is not as far fetched as it would seem.

He neatly ties this though experiment to the change to a default of permission and the way digital technology has allowed for further and further penetration of licensing and control, well beyond its original scope with traditional, analog media. This resonates strongly with Cory Doctorow’s piece How Copyright Broke that also looks at this shift from formerly non-discoverable uses to a drive to maximalism or what I have taken to referring to as perfect control. It also dove tails neatly with Lessig’s discussion of latent ambiguities, in Code 2.0, and, again, how the change to digital technologies raises previously unasked questions about the values inherent in our traditional copyright regime.

This paper was apparently the keynote for a symposium of legal experts. The conclusion, ultimately, is an exhortation to more closely consider this gap between law and norms or as he characterizes legal theory and practical reality. This is a point about which I have been frustrated for some time. I am pleased to see legal scholars tackle this particular disconnect but skeptical about how it will affect industry and legislation without a direct involvement of key legislators and judges.