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Failed Priesthood and a Retrospective on IP Reform: Drink With Me to Days Gone By

Thucydides predicted that future generations would underestimate the power of Sparta. It built no great temples, left no magnificent ruins. Absent any tangible signs of the sway it once held, memories of its past importance would sound like ridiculous exaggerations.
This is how I feel about the Intellectual Property (IP) Reform Movement.
If I were to describe the power of IP reform over online discourse to a teenager, they would never believe me. Why should they? Other intellectual movements have left indelible marks in the culture; the heyday of hippiedom may be long gone, but time travelers visiting 1969 would not be surprised by the extent of Woodstock. But I imagine the same travelers visiting 2005, logging on to the Internet, and holy @#$! that’s a lot of IP-related discourse what is going on here?
Of course I've copied those paragraphs almost word-for-word from the introduction to Scott Alexander's excellent New Atheism: The Godlessness that Failed. But New Atheism isn't the only early-2000s sweeping intellectual movement that utterly failed to make any appreciable impact on the world. It's just the one that seems to be succeeding anyway; IP Reform has not been so fortunate.
It would be difficult to pick a birthdate for the IP Reform Movement. Probably it was made inevitable by the invention of the printing press; if you doubt it, go read L. Ray Patterson's indispensible Copyright in Historical Perspective. Other technologies for making copies were slow to develop, but eventually, they did. Lawrence Lessig lays out the major copyright-related ones in his excellent book Free Culture, but in many ways the whole of the industrial revolution was built around getting better at making copies of various things.
That said, for a beginning, the "free software movement" (most often pegged to Richard Stallman's 1983 GNU Project and 1985 Free Software Foundation) is as good as most. Certainly a large number of anti-establishment, libertarianish "accidental revolutionaries" found themselves attracted to the development of open source software in the latter third of the 20th century. Inventing a new medium of exchange, and building the infrastructure to support it, put people like Linus Torvalds and Tim Berners-Lee and Eric S. Raymond and Steve Wozniak in position to shape the culture that emerged within that medium, at least initially. And many such figures (though not necessarily those I've named) believed something like "information wants to be free."
It was a threat certain IP-heavy corporations took seriously enough that, in 1998, Congress passed not one but two major IP reform bills: the Sonny Bono Copyright Extension Act (aka the "Mickey Mouse Protection Act"), and the Digital Milliennium Copyright Act ("DMCA"). As is often the case with federal law, both acts are complicated, and further complicated by the case law that developed in the wake of their enactment. But basically, the Sonny Bono Act extended the length of copyright protection, putting the length of corporate copyrights to about a century (depending a little on certain questions about the timing of publication). The practical effect is that you will never have a general right to copy or build on someone else's creative work, in whole or in part, if it was created during your lifetime. Meanwhile the DMCA expanded the reach of copyright law to criminalize methods of copying that do not give due deference to anti-copying efforts and technologies. That's right: even if no actual IP infringement takes place, under the right circumstances (or with a zealous prosecutor) you can go to jail simply for spreading information about how to copy things when someone has taken steps to prevent you from doing so.
The DMCA was inspired primarily on the rapid spread of personal computers. Of all the copying machines ever invented by human hands, the general purpose computing device is surely the greatest. At first they were mostly used to copy programs, i.e. they were used to copy the software that made the hardware useful to more than a handful of extremely tech-savvy or determined individuals. But those programs could be used to copy other things, especially with the addition of specialized hardware. With the right hardware and an adequate storage device, you could theoretically copy anything--books, yes, but also pictures, and songs... or, you know, entire buildings.
And then you could upload them to Napster.
Software piracy was not new, by the 1990s, but it is an interesting historical fact that the DMCA passed just one year before "peer to peer" filesharing hit the big time. Bram Cohen's 2001 invention of BitTorrent further eroded the mystifying, cliquish, weirdly meritocratic UseNet and IRC piracy networks that had been around for ages, democratizing copyright violation on a massive scale. The subsequent frenzy of lawsuits got so ridiculous it inspired Weird Al to write a song about it, though MTV refused to air the music video without censoring the names of filesharing services Morpheus, Grokster, Limewire, and Kazaa. In 2007, a fight over censorship of the AACS encryption key for HD DVDs led to a user revolt on Digg, arguably allowing reddit to permanently overtake it in the "community aggregator" webspace.
Somewhere along the way, people stopped caring.
Not entirely, of course. These fights are still being fought, though these days you may have better luck finding them on TorrentFreak than on Slashdot--where every year was the Year of the Linux Desktop, your iPod was lame because it had less space than a Zune, and information (apparently!) still wanted to be free. But the normies who began streaming into Apple's walled gardens circa 2007 only ever played the piracy game because there weren't easier alternatives, and knew nothing at all about patents or trademarks or the other realms of IP esotrica. There were still bumps in the road, but once your games were on Steam, your music was on Spotify, your videos were on Netflix, and your ISP stopped charging by the gig... well, the fact that the MPAA mostly abandoned its reign of indiscriminate and legally-dubious terror was largely irrelevant. It just became easier to pay your monthly Culture Rental Fees and get on with your life. The Wild West of the World Wide Web was tamed in absolutely record speed, no longer the playground of the rugged individualists who built it, but a grand shopping mall--for media, yes, but also for everything else.
Like its birthday, the death day of the IP Reform Movement is hard to pin down. But its last hurrah seems to be Killswitch, a film about the battle for control of the Internet. It was Lawrence Lessig's final substantial IP Reform appearance; since that time, his attention has been almost entirely devoted to election reform law (he even ran for President, briefly, in 2016). Oh, sure, Cory Doctorow would continue publishing a bit under the Creative Commons license (Lessig's brainchild), and people would get a bit indignant when Nintendo shut down a fan-made Metroid game or something. But Big Tech got Respectable; YouTube started taking takedowns seriously, Google's noble aim of digitizing and democratizing the world's information was cancelled, data piracy went back to being a risky hobby for teenagers instead of a national pasttime, and the idea that we might radically reduce copyright and patent terms, reinvigorate the public domain, start treating infringement as a legal infraction or misdemeanor rather than a felony... it all went away.
We do get isolated flare-ups, of course. Net Neutrality was a fairly big one, but of course that one pitted some parts of Big Tech against other parts. Video game streaming is another, and has become a place where people's generally poor grasp of copyright law has led them to make foolish and unsupportable pronouncements concerning the "rights" of gamers to broadcast video games without compensating the creators. Just last week, SFWA President Mary Robinette Kowal aired her ignorance of IP (and business) law in defense of Alan Dean Foster with the #DisneyMustPay hashtag, an attempt to pressure Disney into paying royalties to a work-for-hire ghost writer who feels stiffed by the way that LucasFilm sold its assets without, apparently, transferring its liabilities (a perfectly normal, though sometimes abused, business practice). In all of these cases, what we see is narrow, tempest-in-a-teapot catastrophizing (the death of the Internet! the death of gaming! the death of write-for-hire!)--and not the tiniest iota of recognition that these are problems created by bad IP laws, problems we could better avoid with sensible IP reform.
One of my favorite scholarly pieces from the halcyon days of copyright reform is law professor John Tehranian's Infringement Nation: Copyright Reform and the Law/Norm Gap. In 2007, he wrote:
To illustrate the unwitting infringement that has become quotidian for the average American, take an ordinary day in the life of a hypothetical law professor named John. For the purposes of this Gedankenexperiment, we assume the worst case scenario of full enforcement of rights by copyright holders and an uncharitable, though perfectly plausible, reading of existing case law and the fair use doctrine. Fair use is, after all, notoriously fickle and the defense offers little ex ante refuge to users of copyrighted works.
After spending some time catching up on the latest news, John attends his Constitutional Law class, where he distributes copies of three just-published Internet articles presenting analyses of a Supreme Court decision handed down only hours ago. Unfortunately, despite his concern for his students’ edification, John has just engaged in the unauthorized reproduction of three literary works in violation of the Copyright Act.
Professor John then attends a faculty meeting that fails to capture his full attention. Doodling on his notepad provides an ideal escape. A fan of post-modern architecture, he finds himself thinking of Frank Gehry’s early sketches for the Bilbao Guggenheim as he draws a series of swirling lines that roughly approximate the design of the building. He has created an unauthorized derivative of a copyrighted architectural rendering.
Before leaving work, he remembers to email his family five photographs of the Utes football game he attended the previous Saturday. His friend had taken the photographs. And while she had given him the prints, ownership of the physical work and its underlying intellectual property are not tied together. Quite simply, the copyright to the photograph subsists in and remains with its author, John’s friend. As such, by copying, distributing, and publicly displaying the copyrighted photographs, John is once again piling up the infringements.
In the late afternoon, John takes his daily swim at the university pool. Before he jumps into the water, he discards his T-shirt, revealing a Captain Caveman tattoo on his right shoulder. Not only did he violate Hanna-Barbera’s copyright when he got the tattoo—after all, it is an unauthorized reproduction of a copyrighted work--he has now engaged in a unauthorized public display of the animated character. More ominously, the Copyright Act allows for the “impounding” and “destruction or other reasonable disposition” of any infringing work. Sporting the tattoo, John has become the infringing work. At best, therefore, he will have to undergo court-mandated laser tattoo removal. At worst, he faces imminent “destruction.”
That evening, John attends a restaurant dinner celebrating a friend’s birthday. ... [H]is video footage captures not only his friend but clearly documents the art work hanging on the wall behind his friend—Wives with Knives—a print by renowned retro-themed painter Shag. John’s incidental and even accidental use of Wives with Knives in the video nevertheless constitutes an unauthorized reproduction of Shag’s work.
At the end of the day, John checks his mailbox, where he finds the latest issue of an artsy hipster rag to which he subscribes. The ’zine, named Found, is a nationally distributed quarterly that collects and catalogues curious notes, drawings, and other items of interest that readers find lying in city streets, public transportation, and other random places. In short, John has purchased a magazine containing the unauthorized reproduction, distribution, and public display of fifty copyrighted notes and drawings. His knowing, material contribution to Found’s fifty acts of infringement subjects John to potential secondary liability in the amount of $7.5 million.
By the end of the day, John has infringed the copyrights of twenty emails, three legal articles, an architectural rendering, a poem, five photographs, an animated character, a musical composition, a painting, and fifty notes and drawings. All told, he has committed at least eighty-three acts of infringement and faces liability in the amount of $12.45 million (to say nothing of potential criminal charges). There is nothing particularly extraordinary about John’s activities. Yet if copyright holders were inclined to enforce their rights to the maximum extent allowed by law, barring last minute salvation from the notoriously ambiguous fair use defense, he would be liable for a mind-boggling $4.544 billion in potential damages each year. And, surprisingly, he has not even committed a single act of infringement through P2P file-sharing. Such an outcome flies in the face of our basic sense of justice. Indeed, one must either irrationally conclude that John is a criminal infringer--a veritable grand larcenist--or blithely surmise that copyright law must not mean what it appears to say. Something is clearly amiss. Moreover, the troublesome gap between copyright law and norms has grown only wider in recent years.
Thirteen years later, nothing has changed.
And why should it? If you consider yourself an Effective Altruist, you might be thinking that this is an incredibly long post about quintessentially first world problems. Or even if you're not an Effective Altruist, maybe you're too busy worrying about stolen elections, or single-payer healthcare, or COVID-19, to be bothered with legal geekery of this kind. Or maybe you're entirely sympathetic, but pragmatically recognize the utter lack of political will on the matter: there are no elections that hinge on IP Reform, and so IP "Reform" will only happen when vested interests demand it (in their favor).
That is in some sense the only point I can think to place at the end of this post. In Scott Alexander's The Godlessness that Failed, we get a fascinating reflection on "failed hamartiology." But when I look at the history of IP Reform, not only do I see a similar pattern, I see a dramatic overlap in players. Many of the same people who were reading Slashdot in 2005 were reading Hitchens in 2008. Many of the people building open source software and the internet in 2005 are the people who found themselves being driven from their projects by the rise of sociologically-driven "codes of conduct". I don't know what it is, exactly, about IP reform that so attracted the anti-establishment, libertarianish "accidental revolutionary" type, or how it drew so many of them into the Ron Paul Revolution or, for that matter, Gamergate.
But it is difficult for me to think of any of those things in isolation. Which makes it hard to talk about them, because even beginning to understand requires knowledge of reams upon reams of historical minutiae, and pretty soon you're putting thumbtacks through strings of yarn. The reason I mention e.g. Effective Altruism is because I think, perhaps, what Scott Alexander saw was not a failed hamartiology, exactly--or at least, not only a failed hamartiology. Rather, what he saw was a symptom of a failed priesthood. The enshrinement of anti-establishment, libertarianish types was an accident of history, and so the decades during which they were calling the shots, most of the priesthood either failed to recognize what was happening, or actively shunned their role. And why wouldn't they? What sort of anti-establishment, libertarianish atheist wants to be the High Priest of Culture? It wasn't just the hamartiology that failed; it was the eschatology, too. The promise of the future--since memed into FALGSPC or whatever the acronym is--was never made legible to ordinary people. No, not even with the promise of a second season on Amazon.
Which brings us to today. Why don't more people watch The Fable of the Dragon Tyrant and realize that, given the success that throwing money at COVID-19 had in generating plausible vaccine candidates in record time... maybe we should try throwing a lot of money at killing death, too? Why don't more people listen to Peter Singer talk about effective altruism and utilitarianism and start putting their discretionary income toward difference-making causes? Why, in short, are people so irrational all the time? Failed hamartiology may be a part of it, but the bigger answer, I suspect, is that the rational made piss-poor priests.
They came so close, these anti-establishment, libertarianish atheist geeks, some of whom accidentally took control of the world for a decade or two, then either removed themselves, or were removed, possibly before they even realized what was happening. We were priests in the wilderness, preaching a digital post-scarcity heaven drawn straight from the brightest dreams of sci-fi visionaries. Then the lawyers ruined it; the egalitarians asked whether heaven would be equal-access, and the venture capitalists asked how it would benefit their bottom line, and the social justice advocates asked how we could even be thinking about boring things like IP law when there are people who have it worse, and...
...and here we are, I guess. Forgotten, but never gone; some, like Elon Musk or Peter Thiel, accumulated sufficient wealth to pursue the projects of our people on their own terms, at least for a while. The future has a way of arriving eventually, even if rarely on schedule.
But I wonder what the world would look like now, today, if the people who built the Internet had been allowed to keep it. IP Reform might seem like a strange feature of that vast world to retrospectively seize upon, but as a species that has made its greatest advancements by improving its ability to copy--things, information, culture--maybe we should be more reluctant to stop people from doing that. After all, whether we're talking about memes, genes, or the stuff laying in-between, in the end originality only counts if it can be replicated.
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