How copyright is irreparably, fundamentally incompatible with privacy

Note: this article was written by Rick Falkvinge and was posted in the Private Internet Access blog.

The copyright monopoly was once created as a censorship instrument against the printing press, and later devolved to a commercial monopoly on duplicating creative works (and more). But with the advent of first the cassette tape, and later the Internet, this industrial duplication monopoly has become fundamentally incompatible with freedom of speech, freedom of the press, privacy, and the postal secret. We’re now at a crossroads where we must choose one or the other.

To understand why, we need to step back to a time before the Internet. We don’t need to step as far back as when Queen Mary I of England created copyright on May 4, 1557 in order to root out political and religious dissidents it’s enough to go back to the early 1900s. In doing so, we need to disregard private copying altogether, on the simple basis that it did not exist in the early 1900s.

Copied books and movies used to be visible to the naked eye in public

The umbrella of monopolies we know as copyright for it is a set of rather diverse monopolies that are quite unrelated to each other was long intended to be a protection against industrial-scale plagiarization of a book or movie. After all, copying equipment for books and records used to be prohibitively expensive, and moreover, you had to expose your copied product on some sort of market or in some sort of store in order to sell it.

Hence, copyright infringements were always visible to the naked eye in public. This is key. They could be a copied book for sale in a bookstore, they could be an unauthorized public concert, and so on.

Therefore, enforcing the sales monopoly in the pre-Internet era did not require intruding into somebody’s diary or private correspondence: all infringements were visible to the public, naked eye.

But times have changed, and the copyright monopoly laws did not.

Copying moved into private correspondence, and enforcement followed

Enter the Internet.

All of a sudden, everybody has access to the world’s best copying machine for anything that can be converted to ones and zeroes. Making the first copy of something now costs on the order of microcents instead of thousands of dollars, so even the world’s poorest have access to it. Moreover, such copies are transmitted as private correspondence between private individuals.

Let’s take that again, because it is the key point: copyright infringements are now taking place within private correspondence. Bits leaving one computer in a stream, arriving at another computer. Some of the stream may be mail. Some of it may be chat messages. Other pieces of the stream leaving your computer may be a fully-legal torrent. Some pieces may be whistleblowing about a governmental abuse of power to a reporter, under heavy source protection. And yet other pieces may be an illegal torrent.

Private correspondence is supposed to be secret as in not read by a third party in transit. That’s a key to privacy and is enshrined in most countries’ constitutions; it’s called the postal secret. Nobody is allowed to see who is corresponding with whom, about what, for how long, et cetera. To our parents, this was something they took for granted if they lived in the Western world the ability to send a private letter, or even an anonymous letter where they didn’t identify themselves as sender. It was their prerogative whether they chose to identify themselves or not in corresponding with someone and what they were sending.

We’ve arrived at a point where it is no longer possible to have private correspondence, at all, and enforce the copyright monopoly at the same time. It is not possible to say that some pieces of private correspondence are legal and therefore remain fully constitutionally secret, whereas others are illegal and can be freely invaded. You cannot tell one from the other without looking at all of it, and at that point, there is no longer any postal secret at all.

The act of sorting into legal and illegal requires observation.

We’ve arrived at a crossroads in the development of our society where we must make a choice between privacy, as such, and the copyright monopoly. (To be precise, it’s about the enforcement of the monopoly but it does not exist in practice without any enforcement.) If we allow private communications to exist at all, then I can use any digital communications channel to blow the whistle on governmental abuse as well as use it to send a protected movie or song to a friend. On the other hand, if the copyright monopoly is allowed to take precedence, then private correspondence ceases to exist, for both of these cases, and for every other case where something is communicated privately. There is either a seal of postal secrecy on everything, or on nothing.

(It’s noteworthy in these examples that it’s not just privacy at stake, but also freedom of the press, in the sense of an ability to protect its sources, and basic freedom of speech, in the sense of expressing yourself as you wish.)

Some have observed this fundamental underlying conflict, but the vast majority pretends it doesn’t exist and mumbles on about value on both sides of the scale the commercial copyright monopoly on one side, and the postal secrecy, freedom of the press, and freedom of speech on the other somehow being worthy of protecting, and about “striking a balance”. A “balance” here is technically and conceptually impossible, and a side must be chosen. Freenet is one of few projects that has a liberatingly unapologetic policy on this:

“The core problem with copyright is that enforcement of it requires monitoring of communications, and you cannot be guaranteed free speech if someone is monitoring everything you say. This is important, most people fail to see or address this point when debating the issue of copyright, so let me make it clear: You cannot guarantee free speech and enforce the copyright monopoly. Therefore, any technology designed to guarantee freedom of speech must also prevent enforcement of the copyright monopoly.”

This is the stance that is necessary, even if it seems brutal on the surface. When choosing one side of this scale, it is necessary to declare upfront and without apology that the other side will be completely prevented.

The copyright industry is methodically attacking privacy

It’s easy to think that the copyright industry is so old, stale, and obsolete that it doesn’t understand these two sides of the scale, doesn’t understand that its efforts are invading one of the most fundamental of constitutional liberties, and excuse it for being ignorant in an assumption of good faith. That would be a mistake, though. The efforts of the copyright industry have been very deliberate in targeting multiple aspects of privacy in order to tip the scales of the conflict between privacy and copyright enforcement in the direction of eliminating privacy.

The copyright industry has been working on three fronts to eliminate fundamental rights:

• Lobbying for direct harshenings of the copyright monopoly and its sanctions, frequently using wildly fraudulent statistics about the (ridiculously false) enormous importance of their own industry.
• Lobbying for externalizing enforcement and costs to other parties, either through putting direct costs onto them or by creating horrible liability incentives to silence free speech and privacy. The so-called notice-and-takedown is an example of both.
• Lobbying for the right to circumvent due process and rights altogether, demanding the right to interfere directly with the correspondence of private citizens and negate their privacy, sometimes demanding (and receiving!) more powers than the Police to do so.

There are many examples of this. We can begin with the current situation in Germany, where ISPs surrender the identities of the subscription behind an IP torrenting on demand from the copyright industry, negating the privacy right to communicate anonymously and due process around this. This identity release, in turn, enables speculative invoicing (what we would normally call industrialized fraud) on a large scale. Our parents would have been horrified at the postal service breaking anonymity rights and privacy rights on a large scale like this just because some private industry demanded it.

It’s noteworthy that the copyright industry had demanded and acquired this right in Sweden, even when the Police didn’t have it. Thus, the copyright industry wasn’t just a private police force circumventing due process; they had stronger powers than the Police.

This needs to be seen in combination with the hated Data Retention that the European Court of Justice struck down as utterly unconstitutional in 2014, where the copyright industry had not just demanded that everybody’s communications were logged in this manner, but also that they (as an industry) be given independent access to the correspondence log data (as in circumventing all due-process judicial access controls). This is not just negating privacy, it’s also utterly audacious.

The copyright industry is also continuously trying to remove the messenger immunity, a concept that dates back to the Roman Empire, by making ISPs liable for what their users send in the pipes. (Imagine if a mail courier would be legally liable for the contents of the sealed packages!) This takes the form of the now infamous and frequently abused notice-and-takedown, but also in the notice-and-staydown that the copyright industry keeps demanding. There are also many, many lawsuits against ISPs trying to make them liable for carried traffic.

In this attack on messenger immunity, it’s also worth mentioning that the copyright industry is happily exploiting child pornography laws. It’s a deliberate strategy to demand Internet censorship against this phenomenon, with the purpose of later extending that censorship to ordinary file sharing. This is despite the observation that actual child abuse victims are arguing against such censorship, with the soundbite that “crimes should be punished and not hidden” and thus, according to this child abuse survivor group’s argument, the copyright industry is actually defending child molesters in order to wedge in a censorship into ordinary people’s correspondence, in order to defend their business.

If that comes across as absolutely outrageous, that’s because it is.

Finally, let’s not forget that the copyright industry long lobbied for Three Strikes until a coalition of the Pirate Party and others made the practice downright illegal at the European level, from the European Parliament. This was a concept where entire households would be shut off from the Internet altogether, essentially being sent into exile from modern society, on three accusations accusations, without trial! of sharing knowledge and culture in violation of the copyright monopoly.

There are many more examples.

In summary, because of the Internet and lowered barriers to entry, neither of which are going away, privacy and the copyright monopoly have become irreparably and fundamentally incompatible with each other. There is absolutely zero gray area. Either we prioritize privacy, in which case copyright must scale back at least to where it was in the 1980s and cover physical products only, or we go with the copyright industry’s pipe dreams and dismantle several fundamental constitutional rights in order to assist the copyright industry’s business plan. To people on the Internet, the choice between these two options should be obvious.

Privacy remains your own responsibility.