The copyright fiction

Cory Doctorow over at Boing Boing quotes from the Swedish "Pirate Bureau":

For the copyright industry, it is of extreme importance to keep people uninformed of the real workings of networked computers. They want to make an artificial distinction between "downloading" and "streaming", as equivalents to record distribution and radio broadcasting.

But - and we should keep insisting that - the only difference between "streaming" and "downloading" lies in the software configuration on the receiving end. However, copyright law will never be able to acknowledge that. It has to rely on fictions, on a kind of cognitive mapping, where notions valid for traditional one-way mass media are forcefully applied to the internet. We call it Mental Rights Management (and it is the very precondition for DRM).

Copyright law was invented during a period when copying was easy enough to be practical, but hard enough that not just anyone could do it. When data (e.g. books) could only be copied by hand, copying was exceedingly difficult and only those with the resources of (for example) the Roman Catholic Church was able to copy large amounts of data. Consequently, there was no call for monopoly rights, since owning a book was effectively a monopoly in and of itself.

But once technology had advanced to the point of the printing press, copying data became practical enough that scarcity of data was no longer guaranteed by the labour needed to write a copy out by hand. Copyright became a commercial decision by the government. The vast majority of people could not take advantage of the printing press directly, since they were still very expensive to build or buy. To encourage people to invest in printing presses, and therefore to invest in creating new data (books), a limited copyright was invented.

However, this is looking dangerously obsolete in the digital age. Trying to making bits uncopyable is like trying to make water non-wet. Data is no longer hard to copy, it is (essentially) impossible to not copy it. So much so that copyright law has been revised to declare certain types of copying (such as the temporary copies of data in your computer's RAM) "not copies" for the purpose of copyright.

When you download some content -- say, an image -- from a website, there is any number of copies, some transient, some not, involved. There is the "original", whatever that means. If the original is stored on a computer with hard disk that use RAID, the original may in fact be two physical collections of bits. The webserver may itself create additional copies, which themselves may be duplicated by RAID. Copies have to be made to send the data through the internet: every server between the source and the destination may create more copies. There may be caching services involved, which again duplicate the data. Your ISP itself likely caches the data, and your web browser probably does too. Then another copy is made in your computer's RAM, which in turn could be moved to the "virtual memory" on your hard drive, and back again.

In other words, in the digital age, copying is no longer hard, nor even difficult, it is natural. Content is not scarce, we are drowning in it, and much of it is of little lasting value. Far from needing to encourage people to create new content by offering them automatic monopoly rights over it, perhaps we should be thinking about reducing the incentives to create more and more crud? There are moral as well as economic issues to consider, but one thing is certain, copyright law as it exists today is based on fiction, not fact.

Link.