Mon, 31 Oct 2005

'clinging to constitutional arguments'

Thoughtful and insightful commentry from Kim Weatherall on potential constitutional issues of over-aggressive para-copyright laws (summary: don't expect a deus ex constitution).

Copyright is a removal of property rights. A derivative. Not just "a negative right" in legal terms, but a real economic extraction. You can demonstrate this in many ways, chiefly that the value of this copyright is directly proportional to the value of the copies themsleves. The concentration on "a copyright" as a form of legal property has overshadowed consideration of the more mundane form of property it relies on: the book, the CD, the program, the film. So much so, that when academics lament increasing copyright powers, where do they say these powers are coming from? The ethereal "public domain". Or, to quote Kim again: the "touchy-feely lefty politics of the public domain".

And yet, if these new para-copyright powers were simply extracted from the ether, the government would have the perfect right to assign them in almost any way it desired. You might not like them mining these newly-found islands, but you can't argue direct harm.

However, giving copyright holders more power inherently means taking power away from owners; strengthening copyright law inherently weakens property law, because that's where copyright comes from. Back when we were talking about removing your right to publish copies of books you bought, and placing those rights in the hands of the author, this was all academic navel-gazing. The extraction was so small you probably didn't notice the burden: I'm guessing you don't own a printing press anyway. There's a believable argument that this small tax created better books over the long run.

The "free-money" model of longer and stronger copyright powers with noone having to foot the bill has led us to arguing about removing the right to play PlayStation games. Or DVDs, or CDs. And all future formats. (Worse, we're removing the right to create independent DVD-playing software, etc). The removal is non-trivial, burdensome and directly a result of para-copyright laws. This clearly disturbed Kirby J in Stevens v Sony .

Imagine a scenario where a remote landowner says "with the invention of the internetcar, my area is more accessible. More people are trespassing on my land: that's stealing!". So our parliament passes a law which says rural landowners can put up fences on the approaches to their land (ie. beyond their actual borders), and shoot any unauthorized person who crosses them. Now, you have a small farm, and you need to use those same approaches to play DVDsaccess your land. And that's about where we are with anti-circumvention law today.

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