Articles* critical of copyright enforcement "shortcuts" invariably elicit comments** like the following:
"The only people opposed to this are those who want to steal the work of other people without paying for it. If you don't rip off someone's copyright, you have nothing to worry about!"
I find this kind of comment frustrating. Why should it be so difficult to differentiate a critique of, on the one hand, the concept of intellectual property and copyright law itself (the idea that a work of authorship has economic value that can be legally protected), and, on the other hand, schemes that bypass law enforcement and tell big media companies they have more power than any government to gatekeep what is on the internet?
In an attempt to broach a dialogue with the kind of person who leaves the kind of comment above, I've come up with a pedagogical tool, a quiz, to re-situate the debate on topic and hopefully to identify the actual scope of disagreement.
Please note: the following quiz assumes it is very wrong indeed to infringe someone else's copyright. One may question the wisdom of copyright itself, but that's a different debate. The exercise here hones in on how we feel questions of infringement should be decided. Is it important for copyright policing to be subject to judicial oversight, or is it better turned over to the independent discretion of the Motion Picture Association of America?
Without further pontification, here it is. Test your respect for legal process by placing yourself at one, or between two, points in the following continuum:
Point A - Believer in Traditional Judicial Process: If you feel your copyright is infringed, you have the right to go to a court and sue the infringer. If the court finds infringement, the infringer will be liable to you for damages. There's a glitch: the alleged infringer will be presumed innocent, and you will have to meet the burden of proving infringement. Even if you win, the infringer can appeal to a higher court. This process is inconvenient and expensive to you, the copyright holder. Though you may be awarded attorneys fees by the court, if your infringer is indigent, you may never recover them.
Point B - Streamline the Process and Reverse the Presumption of Innocence: It is too expensive and inconvenient to have to chase every singal infringer in federal court. There are too many of them! If you feel your copyright is infringed, you should be able to ask the Department of Justice to blacklist the offenders and take their domains away. This process should be simpler than convicting someone of a crime; you don't want the infringers to serve time, you just want to shut down their websites. And if the government mistakenly blacklists an innocent site, well, the accused can complain to the court. Point being, the burden should be on the infringers to prove they are innocent; it's not fair to keep the onus on the copyright holders.
Point C - Vigilante Justice: If you suspect your copyright is infringed, or can't really tell but are worried that a website or group of what appear to be linked sites may be, wittingly or unwittingly, linking to servers that you think may be impacting your sales or licensing programs, you can ask Comcast, Time Warner, and other ISPs to degrade the service provided to those infringers. By throttling back bandwidth, it's less likely they can infringe your content. You and the ISPs and banks cooperating with you have some incentive to not cast too broad a net, because customers accused falsely could bring complaints. This scheme takes copyright infringement policing out of the court system and into the private sector.
Point D - Vigilante Justice Combined with Privatized Sovereign Immunity: If you suspect your copyright is infringed, or can't really tell but are worried that a website or group of what appear to be linked sites may be, wittingly or unwittingly, linking to servers that you think may be impacting your sales or licensing programs, you can ask Comcast, Time Warner, and other ISPs to cut them off entirely, and you can ask banks to stop processing payments to whoever you think may be running or profiting from those sites. You need not go to court. You don't even have to lodge a complaint with the FBI or the DOJ or the local police. And you can sleep safely at night, because, not only is the onus on the person you have shut down to figure out what you have done and come after you: that person can't even come after you. You are immune from any lawsuit or claim that person might bring, even if your suspicions were false. In fact, no court in America is allowed to hear that person's complaint.
So here are my questions to the commenter, after she has taken the above quiz. We can certainly agree that Point D is out of the question, and Point C should be, too, can't we? Our difference, if we have one, may be in whether something past Point A is necessary; or, at most, whether Point B is the edge of prudence?
Does anyone really believe that any corporation asserting a copyright should be judge, jury and enforcer of that copyright?
Photo, "Light sensitivity test," by nonattac.