Before the net, if you wanted to send a copy of something that was protected under the copyright monopoly, it was an absolute given that you could do so. You would send that copy in the mail without a single thought of repercussions. You could send copies of drawings, you could send mixtapes of music, you could send copied movies. The reason for this was simple: the right to communicate in private is a fundamental human right, and the copyright monopoly is a commercial distribution monopoly that carries significantly less weight.
The problem recently is that civil servants, not politicians, have been tasked with upholding the copyright monopoly. These people are not only unaccountable, but also easily accessible to copyright industry lobbyists, and these civil servants provide background material to the actual decision-making politicians. And if you control the background material, you also control the decision’s outcome. Long story short, these civil servants don’t care about the costs to society of enforcing the copyright monopoly in a changed communications environment: it’s literally not their job.
If the issue had been properly politicized, then politicians would be forced to look at more than just the necessary methods for enforcing today’s monopoly laws – they would also have to look at the overall cost of society to using those methods, and simply question if those laws are really worth the sacrifices required to uphold them. This is the discussion that needs to happen on the political level, and which the Pirate parties are trying to make happen.
For when I send a piece of music in an e-mail to somebody, I typically violate the copyright monopoly. When I drop a video clip in a private chat channel, same thing. If I use some other protocol, maybe BitTorrent, same thing again. If you are to enforce the copyright monopoly in the connected environment, then you cannot do that without abolishing the right to private communications as a concept. And that’s exactly what the copyright industry is trying to do.
Let me explain. If there is a list of bitpatterns that are illegal to transmit – and such a list could indeed be constructed with today’s laws – then the only way to find those bitpatterns is to eavesdrop on all the ones and zeros that leave my computer, assemble them by protocol to analyze my communications in the clear, and then sort my transmissions into “legal” and “illegal”. But you can’t do this without breaking and abolishing the postal secret. There is no way to tell one from the other without looking at them in the first place. So, out goes the postal secret, the right to communicate in private.
At this point in the discussion, the copyright industry will complain that they only take action for the illegal bitpatterns found, and that there is no infraction on the right to legal communications. And in doing so, they put themselves in the exact same spot as the old East German Stasi, which also steamed open all letters sent in the mail – but only took action on those with illegal content, just like the copyright industry describes as their preferred scenario. Stasi, too, sorted legal from illegal, and left the legal alone.
With the loss of the right to communicate in private, we also lose several other important rights. We lose reporters’ right to protect their sources (since such communication happens in the same digitized private space). We lose a large portion of the ability for attorneys to communicate in private with their clients. These are considered cornerstones in the construction of checks and balances in the powers of our society, and yet an industry of entertainment middlemen expect to strike them out with a pen in order to uphold a crumbling distribution monopoly?
It goes even further. With a loss of private communications, you lose the ability to safely confide in people – the mere suspicion of somebody else eavesdropping on your communications will lead you to stay silent, in case the communication would later be used against you. (This effect has already been observed on a large scale: over half of the population are now thinking twice whether to communicate in ways that could later be used against them by a third party, regarding everything from contacting suicide helplines to divorce counseling.) So, without the ability to confide in people, you even lose your very ability to form an identity. How are you going to come out of the closet, for example, if you can’t talk to a trusted friend first?
The bottom line is that the fight for basic civil liberties and the fight against the copyright monopoly are one and the same. They are not two identical fights; they are one and the same fight.
When our parents sent a letter in the mail, they alone determined whether they wanted to be identified as sender, and nobody had the right to open the letter in transit just to check that the contents were legal. When our parents sent a letter in the mail or placed a phone call, they had an expectation of privacy – considered a fundamental human right. It is entirely reasonable that our children get the same rights – completely regardless of whether that means that an obsolete distribution industry will go out of business or not.
Perhaps the policy of FreeNet, the darknet project, worded most clearly how a copyright monopoly on today’s level simply cannot coexist with freedom of speech (my highlights):
“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.”