Copyright Creep

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Excellent essay from Rasmus Fleischer on the history of copyright, and the tendency for the inability to perfectly enforce one regime to simply lead to demands for an ever-more-expansive vision of what needs to be enforced:

A very condensed version of copyright history could look like this: texts (1800), works (1900), tools (2000). Originally the law was designed to regulate the use of one machine only: the printing press. It concerned the reproduction of texts, printed matter, without interfering with their subsequent uses. Roughly around 1900, however, copyright law was drastically extended to cover works, independent of any specific medium. This opened up the field for collective rights management organizations, which since have been setting fixed prices on performance and broadcasting licenses. Under their direction, very specific copyright customs developed for each new medium: cinema, gramophone, radio, and so forth. This differentiation was undermined by the emergence of the Internet, and since about the year 2000 copyright law has been pushed in a new direction, regulating access to tools in a way much more arbitrary than anyone in the pre-digital age could have imagined. [...]

This domino effect captures the essence of copyright maximalism: Every broken regulation brings a cry for at least one new regulation even more sweepingly worded than the last. Copyright law in the 21st century tends to be less concerned about concrete cases of infringement, and more about criminalizing entire technologies because of their potential uses. This development undermines the freedom of choice that Creative Commons licenses are meant to realize. It will also have seriously chilling effects on innovation, as the legal status of new technologies will always be uncertain under ever more invasive rules.

For a long time the whole question of how we deal with intellectual property has been relegated to something like fourth-tier status, decided in backrooms by a clash of special interests with almost no public debate or understanding. At the same time, it's become cliché to observe that we're now in an "information economy" and America is more and more becoming a country that exports media, ideas, design, software, etc. than one that exports planes and cars. Consequently, it's less and less viable to think that the regulation of ideas and content is irrelevant or unimportant -- these are key economic functions, and whether or not they'll be organized to serve the narrow interests of people who current control certain channels of distribution is a huge issue.

UPDATE: Case in point this terrible bill that the House just passed to its discredit, which is supposed to step up enforcement of copyright by, among other things, establishing civil forfeiture penalties for devices that "facilitate" the violation of IP laws.

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Matthew Yglesias is a former writer and editor at The Atlantic.

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