The Case for Copyright Reform (3 page)

How would you revolt with all this in place, when all you said just fell
silent before reaching the ears of others, and the regime could remotely
monitor who met whom and where, and when they could kill all your equipment
with the push of a button?

The West hardly has any high moral ground from where to criticize China
or the regimes that are falling in the Arab world.

And yet, in all this darkness, there is a counter-reaction that is
growing stronger by the day.

Activists are working through the night in defeating the surveillance
and monitoring to ensure free speech by developing new tools in a cat-and-mouse
game. These are the heroes of our generation. By ensuring free speech and free
press, they are ensuring unmonitored, unblockable communications. Therefore,
they are also defeating the copyright monopoly at its core, perhaps merely as a
by-product.

Free and open software is at the core of the counter-reaction to Big
Brother. It is open to scrutiny, which makes it impossible to install secret
kill switches and wiretapping in it, and it can spread like wildfire when
necessary. Moreover, it renounces the copyright monopoly to the point where
popular development methods are actively fighting the monopoly, again making
the connection between copyright enforcement and repression. Free operating
systems and communications software are at the heart of all our future freedom
of speech, as well as for the freedom of speech for regime topplers today.

The software that is being built by these hero activists is a guarantee
for our civil liberties. Software like
Tor
and
FreeNet
and
I2P
, like
TextSecure
and RedPhone
. That criminals can evade wiretapping is a cheap price
to pay for our rights: Tomorrow, we might be the ones who are considered
criminals for subversion. These are tools used by the people revolting against
corrupt regimes today. We should learn something from that.

At the same time and by necessity, this free software makes the
copyright monopoly unenforceable, as it creates the untappable, anonymous
communication needed to guarantee our civil liberties. Mike Masnick of Techdirt
recently
noted
that “piracy and freedom look remarkably similar”.

Perhaps
Freenet’s
policy
expresses it the most clearly:

“You cannot guarantee free speech and
enforce the copyright monopoly. Therefore, any technology designed to guarantee
freedom of speech must also prevent enforcement of the copyright monopoly.”

The fights for basic freedom of speech and for defeat of the copyright
monopoly are one and the same. Therefore, the revolutions will happen using
tools that are not just outside the copyright monopoly, but actively defeat it.
The revolution will not be properly licensed.

Internet Blocking And Censorship

”Child pornography is great,”
the speaker at the podium declared enthusiastically.
”It’s great because politicians understand
child pornography. By playing that card, we can get them to act, and start
blocking sites. And once they have done that, we can get them to start blocking
file sharing sites”.

The venue was a seminar organized by the American Chamber of Commerce in
Stockholm on May 27, 2007, under the title
”Sweden
— A Safe Haven for Pirates?”
. The speaker was
Johan
Schlüter
from the Danish
Anti-Piracy
Group
, a lobby organization for the music and film industry
associations, like
IFPI
and others.

We were three pirates in the audience: Christian Engström, Rick
Falkvinge, and veteran Internet activist
Oscar Swartz
.
Oscar wrote a
column
about the seminar in Computer Sweden just after it had happened.
Rick blogged
about it
later, and
so did
Christian
.

”One day we will have a giant filter that we
develop in close co-operation with IFPI and MPA. We continuously monitor the
child porn on the net, to show the politicians that filtering works. Child porn
is an issue they understand,”
Johan Schlüter said with a grin, his whole being radiating pride and enthusiasm
from the podium.

And seen from the perspective of IFPI and the rest of the copyright
lobby, he of course had every reason to feel both proud and enthusiastic, after
the success he had had with this strategy in Denmark.

Today, the file sharing site The Pirate Bay is blocked by all major
Internet service providers in Denmark. The strategy explained by Mr. Schlüter
worked like clockwork.

Start with child porn, which everybody agrees is revolting, and find
some politicians who want to appear like they are doing something. Never mind
that the blocking as such is ridiculously easy to
circumvent in
less than 10 seconds
. The purpose at this stage is only to get the
politicians and the general public to accept the principle that censorship in
the form of ”filters” is okay. Once that principle has been established, it is
easy to extend it to other areas, such as illegal file sharing. And once
censorship of the Internet has been accepted in principle, they can start
looking at ways to make it more technically difficult to circumvent.

In Sweden, the copyright lobby tried exactly the same tactic a couple of
months after the seminar where Johan Schlüter had been speaking. In July 2007,
the Swedish police was planning to add The Pirate Bay to the Swedish list of
alleged child pornography sites, that are blocked by most major Swedish ISPs.

The police made no attempt whatsoever to contact anybody from The Pirate
Bay, which they of course should have done if they had actually found any links
to illegal pictures of sexual child abuse. The plan was to just censor the
site, and at the same time create a guilt-by-association link between file sharing
and child porn.

In the Swedish case, the plan backfired when the updated censorship list
was leaked before it was put into effect. After an uproar in the blogosphere,
the Swedish police was eventually forced to back down from the claim that they
had found illegal child abuse pictures, or had any other legal basis for
censoring the file sharing site. Unlike in Denmark, The Pirate Bay is not
censored in Sweden today.

But the copyright lobby never gives up. If they are unable to get what
they want on the national level, they will try through the EU, and vice versa.

The big film and record companies want censorship of the net, and they
are perfectly willing to cynically use child porn as an excuse to get it. All
they needed was a politician who was prepared to do their bidding, without
spending too much effort on checking facts, or reflecting on the wisdom of
introducing censorship on the net.

Unfortunately they found one in the newly appointed Swedish EU
commissioner Cecilia Malmström. In March 2010
she presented
an EU directive
to introduce filtering of the net, exactly along to
the lines that Johan Schlüter was advocating in his speech at the seminar in 2007.
As drafted by the Commission, the directive would have forced member states to
introduce blocking of sites alleged to contain child pornography.

Thanks to a lot of hard work from members of the European Parliament
from several different political groups in the Committee for Fundamental Rights
LIBE, the Commission’s attempt to force the member states to introduce
mandatory blocking was averted. The European Parliament changed the directive
to say that member states may, as opposed to shall, introduce Internet
blocking, but if they do, they must make sure that the procedure follows at
least some legal minimum standards, and that the person whose website blocked
has a right to appeal.

Since the directive does not mandate Internet blocking on the EU level,
but leaves it up to the member states, we can expect the copyright industry to
intensify their efforts to introduce Internet blocking on the national level in
the countries that don’t already have such systems in place. Although their
real goal is to get the authorities to block sites like The Pirate Bay, the
copyright industry will continue to use the child porn card wherever they judge
it is too early to start talking about the censorship they really want.

But increasingly, they are beginning to feel that they no longer have to
hide their real intentions. In the US, as this is being written in January
2012, Congress is debating a twin pair of laws called SOPA, Stop Online Piracy
Act, and PIPA, Protect IP Act.

The idea behind SOPA and PIPA is to give US authorities the possibility
to close down access to any website, hosted in any country in the world, if
rights holders accuse it of infringing copyright, or “enabling or facilitating”
copyright infringements. Just providing a link that “enables of facilitates”
infringements can be enough to have a website shut down, or to have US credit
card companies block all payments to the owner of the site. The decision will
be taken by a US court, without hearing the accused party. In order to avoid
being held liable themselves, Internet service providers and social platforms
will have to start policing their clients and shut them off at the mere
suspicion that they are doing anything that rights holders might object to.

With SOPA and PIPA, the copyright lobby is no longer using the pretext
of child abuse pictures. Both laws are quite explicitly devoted to blocking
sites on the net to protect holders of intellectual property rights.

Similar measures for Internet blocking are being proposed in Europe as
well. UK academic
Monica Horten
at Iptegrity.com
writes in January 2012:

The European Commission could ask ISPs to block content, and ask payment
providers to withhold money on demand from rights-holders, following a policy
announcement released today. The much-awaited announcement sets out EU official
policy on the Internet and e-commerce. It follows a review of the E-commerce
directive by the Commission.

The E-commerce directive to date has been the protector of the open
Internet, notably the mere conduit provision. The review sets out pivotal
changes which threaten that protecting role of mere conduit. Notably, the
Commission wants to introduce a pan-European notice and action scheme. This is
based on other ‘notice and takedown’ schemes (such as the one in the American
DMCA law) but with an important difference. The proposed EU scheme uses the
word ‘action’ instead of ‘takedown’, where action could mean asking hosts to
take down content, but also would seem to mean blocking of content by ISPs on
request:

“The notice and action procedures are those
followed by the intermediary internet providers for the purpose of combating
illegal content upon receipt of notification. The intermediary may, for
example, take down illegal content, block it, or request that it be voluntarily
taken down by the persons who posted it online.”

In addition, the Commission wants to bring payment providers into
‘co-operation’ schemes between ISPs and rights-holders. This would mean asking
the likes of PayPal, Mastercard, and Visa to block payments to websites or
content providers, at the request of rights-holders:

“Cooperation between stakeholders, in
particular internet providers, rights-holders and payment services, in the
European Union and the US, may also help to combat illegal content.”

Both the notice and action, and the payment ‘co-operation’ schemes
pre-empt another European Commission review – the IPR Enforcement
directive (IPRED). The IPRED review will consider EU-wide policy for enforcing
copyright on the Internet. It is not clear whether the payments ‘co-operation’
would be positioned within the e-commerce directive or IPRED, or both.

Both directives are under the remit of the French Commissioner Michel
Barnier, who is understood to be close to President Sarkozy.