It’s Time To Go On The Offensive For Freedom Of Speech

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This week's collective action against the PIPA and SOPA bills in the United States was unprecedented and mighty. But have you noticed that we're always on the defensive? We cannot win or even maintain our rights to free speech that way.

The copyright industry is tenacious and effective in using the “Daddy, I want a pony” tactics in legislation. They go at it again, and again, and again, and again. The result is a continuous erosion of our civil rights and an entrenchment of their entitlement to taxpayer funds.

The “Daddy, I want a pony” tactic goes roughly like this:

Little girl: Daddy, I want a pony! Want pony! Want want want pony!
Dad: Uhm, no, uhm, uhm, no, how about a dog?
Little girl: No no no NO! Want pony! PONY! …Dog? Well, ok then.

At this point the dad thinks, “Phew, that was a close call!”. The little girl on the other hand thinks “Wow, that’s the easiest dog I ever got.” That’s the “Daddy, I want a pony” tactic.

You saw it with the DMCA in the United States, which severely restricted our rights to our own property, and the corresponding InfoSoc directive in the European Union. You see it right now with ACTA, which again shows this “the most offensive, repugnant may be gone” attitude, despite still being a giant leap backwards for human rights. You’ve seen it with the Data Retention Directive.

And each time, we defend and defeat the worst parts, burning our activist reserves way into the red, and then there’s another assault three years later. Plus the fact that while we’re fighting one of these evils, another 11 pass in the background.

The point is, as long as we’re just defending, we will always be on the retreat, and we will always lose. The copyright industry has the initiative and the best we can do is to delay or reduce the damages done. That’s not good enough.

It gets worse. The copyright industry has also gotten the rights to collect levies from trade with unrelated items, notably blank media but as unrelated as game consoles, because they can theoretically be used to copy in legal ways. Did you get that? It does not break the copyright monopoly to copy in these ways, and just therefore the copyright industry is compensated.

Let’s take that again.

The copyright monopoly, as wet a blanket as it may seem, does not cover every conceivable act of copying. There are many acts of copying that are fully legal and not covered. But in the industry’s sense of entitlement, they have demanded — and received — compensation for the areas where their monopoly does not extend. Compensation from taxpayer money to a private industry. For not having a monopoly. Really, can you believe this?

In this compensation scheme, they collect ridiculous amounts of money every year for doing absolutely nothing. A lot of the money goes straight towards the war on our civil rights and to collect yet more taxpayer money in new “Daddy, I want a pony” schemes. For us, it’s a vicious circle. Anybody familiar with incentives knows that it’s an absolutely terrible way of optimizing production to give money to an industry regardless of whether they’re doing the right thing, the wrong thing, or no thing at all.

So, to summarize, the copyright industry has put itself in a position where they get insane amounts of money for doing absolutely nothing, and use that money to buy laws that give them even more money and restrict our freedoms of speech. That is not just unacceptable. That is repulsive.

It comes as no surprise that I think the copyright monopoly is harmful (or at best useless) as a whole, and that creativity, business, and civil liberties would be much better off without it. Having studied the topic for six years straight, I discover more and more arrows that point in this direction.

But I’m also pragmatic enough to realize that if you shoot for the moon and insist on not doing any steps in between, you’re not only never going to the moon, but you’re also never taking a single step forward. Besides, getting a small way to the moon may be enough to give you that great view you really wanted. In the same vein, 99% of the problems with today’s copyright monopoly can be solved with a much smaller reform that is both reasonable, achievable and doable.

When it comes to large matters, after all, you can’t change all of the rules of the game overnight. So let’s shoot for a balanced, reasonable proposal that restores our civil liberties while retaining some of today’s investment incentives in culture.

I’m borrowing this blueprint from the Green group in the European Parliament (where, in turn, it came from the Pirate delegation). Let’s try this for a legislation package in Europe, the United States, Australia, and everywhere else we can:

  • It must be made absolutely clear that the copyright monopoly does not extend to what an ordinary person can do with ordinary equipment in their home and spare time; it regulates commercial, intent-to-profit activity only. Specifically, file sharing is always legal.
  • Free sampling. There must be exceptions that make it legal to create mashups and remixes. Quotation rights, like those that exist for text, must be extended to sound and video.
  • Digital Restrictions Management should preferably be outlawed, as it is a type of fraud nullifying consumer and citizen rights, but at least, it must always be legal to circumvent.
  • The baseline commercial copyright monopoly is shortened to a reasonable five years from publication, extendable to twenty years through registration of the work in a copyright monopoly database.
  • The public domain must be strengthened.
  • Net neutrality must be guaranteed.
  • Levies on blank media are outlawed.
  • Overall, it must always be clear where the line goes; “the courts will sort it out” areas are not acceptable and tantamount to outlawing.

This reasonable, balanced, achievable, and doable proposal would solve 99% of today’s problems, while still maintaining all four aspects of the copyright monopoly. It solves the witch-hunt on teenagers sharing TV series. It solves the problem with orphan works and restores our access to the cultural heritage of the 20th century. It solves the problem with the copyright industry getting taxpayer money for nothing. On the other hand it still maintains a 20-year commercial monopoly (at the most) for investments in cultural productions, defeating every argument from the copyright industry lobby that the monopoly is needed for more culture to be created.

While I don’t agree with patent monopolies, it’s a good talking point here that if pharma companies can do with a 20-year commercial monopoly (patents), then that term should certainly suffice for Disney and Elvis, too.

This, or something along these lines, is what we need to do. We need to go on the offensive for our freedom of speech.

About The Author

Rick Falkvinge is a regular columnist on TorrentFreak, sharing his thoughts every other week. He is the founder of the Swedish and first Pirate Party, a whisky aficionado, and a low-altitude motorcycle pilot. His blog at focuses on information policy.

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