Often enough, in discussions about issues like orphan works, we're constantly emphasizing the fact that just about everything is copyrighted. I think it's important to revisit this idea, in the context of plans around the world to have ISPs ban users from the Internet for copyright infringement. (Current efforts include proposals in France (translation here), the UK, and Australia.)
Now, there are the more obvious objections to this, which we've raised time and time again—for instance, that deciding if an unauthorized use is lawful is often a judgment call not best made by ISPs harried by lawyers, or that the resources to do this well (a large team of lawyers) are prohibitive. And of course, machine filtering, while perhaps cost-effective, isn’t effective at all at determining how something is used—a basic question in determining lawful use.
But in this post, I want to talk about another problem that such a plan might face. That is—what copyright infringement will get enforced, and how?
Imagine the entire universe of created content you see during the course of your day. The back of a cereal box; the note you've written to yourself on the fridge; the morning TV news program and its human interest segment on funny YouTube videos; the billboard on the side of the road on the way to work. The various commercial and personal websites you visit over the course of a day. The bulletin boards and their postings; an online news article and the readers' comments below it.
Each of these bits of content is copyrighted—by whoever wrote or recorded it, or in some of the commercial cases, that person's employer. Each expression of content that goes beyond a short phrase—each email, memo, blog post, or voicemail message—is subject to copyright law. We are all copyright holders, and we are all, arguably, copyright infringers.
Professor John Tehranian, for instance, has outlined a hypothetical, typical day for a law professor, in which that professor, without downloading a single P2P file or engaging in activities that would ring any normal person's alarm bells, can rack up 83 acts of infringement with liability exposure of $12.45 million.
Yet we don't go through our day with a copyright lawyer looking over our shoulders to advise us on whether or not we can photocopy a map, or cut and paste from a blog post to an email. Online and offline, we live in a world where our words and actions can fall under the jurisdiction of copyright, either as creators or infringers, but the overwhelming majority of us don't view each of our actions as potential vehicles for generating lawsuits.
Nor should we. It's ludicrous to think that each and every action we take with text, with audio, images, or video should be governed by a copyright cop. It would be practically impossible to function if we spent our entire lives checking each action for copyright implications, or the potential infringement of each others' emails.
And no one should have the power to use these omnipresent, technical “violations” to exercise legal control over our actions.
Like vagrancy laws that can be selectively enforced against particular “undesireables,” copyright laws can be used to target only particular people—those who are infringing the copyrights of particular interests, or whose particular infringements rouse the ire of the copyright holder.
This can already be a problem with lawsuits and procedures like DMCA takedown notices, but the problems could easily be worse in a 3-strikes system. If the ISP has to make a determination about the legality of a download, and then implement the punishment, what are the customer's choices for appeal and redress? If, as the proposals seem to indicate, this is supposed to happen on a large scale, who is going to be making the countless decisions about who gets to use the Internet and who doesn't, and who is going to deal with those who have been mistakenly or falsely cut off?
If technical and billing snafus aren't enough to overwhelm customer support and create an exercise in frustration for you now, wait until you have the additional onus of being branded a pirate by the ISP when you call the help line.
And since each of us produces copyrighted material—as I've done by writing this blog post—there's no shortage of potential plaintiffs who could game the system to bar all Internet access to their enemies, opponents, or competitors. Or will the complaint system be more selective—more discriminating—than to let anyone other than established copyright holders from making use of it?
Obviously, there are examples of copyright infringement that are deliberate and should be deserving of recompense and damages. But even these infringements don't, and shouldn't, prohibit someone from participating in society. A student caught photocopying a textbook isn't banned from reading, or from using a copy shop. To do so would prejudge all his future reading or copying activities, and cut him out from a great deal of necessary and useful participation in society.
But this is what banning someone from the Internet for infringement would do. All the myriad uses of the Internet would be denied to someone just because they had the bad judgment to illegally download a song; or the bad luck to be mistaken for someone who had; or the misfortune of disagreeing with an ISP on what is and isn't permitted by copyright law. Sending a bad check, wrong as that may be, does not bar someone from using the postal system.
And, as I've noted, since everything each of us writes or records is copyrighted, those pushing for these regulations, like the International Federation of Phonographic Industries (IFPI), don't represent the totality of copyright holders on the Internet. Are all those bloggers and commenters and social networkers who also have their works online also looking for ways to kick others off the Internet?
But this goes just beyond the proportion of IFPI's copyrights to all copyrighted works on the Internet. The Internet is a global means of communication, used for any number of applications and vital purposes. It serves as a conduit for civic involvement, a source of news and entertainment for millions. It allows for personal expression and professional contact. It allows for commerce, charity, and frivolity, too. It does all of these things in addition to being used to transmit top 40 songs, yet somehow just one of these uses, in the eyes of the IFPI and some legislators, gets to trump all of the others. To them, the Internet is just a potential infringement machine, and those who use it against their particular interests have no rights to any of its other benefits. A small portion of users of a small portion of uses should not have that veto power over speech.