Everything Is Infringement

by Reihan Salam

Joe Karaganis, vice president of the American Assembly and a leading authority on “copy cultures,” argues that technological innovation challenges our rickety, outdated approach to copyright enforcement. On the one hand, it is much easier to copy copyrighted content, and the domain of what can be copyrighted has expanded enormously. As a result, virtually all of us are, according to the most stringent standards, engaging in copyright infringement every day, e.g., when we forward email messages. On the other hand, we have technological tools that can turn virtually every personal electronic device into a vehicle for copyright enforcement. This will tend to limit the usefulness of these devices, but of course this is immaterial to many owners of intellectual property. 

Karaganis identifies two broad approaches we could take to fixing copyright enforcement:

The first is to view copyright as an incomplete system of regulation, and then to complete it. Doing so would mean ensuring that computers couldn’t copy or exchange files without verifying permissions and that users couldn’t find infringing material online. Digital surveillance would be a cost of the system, as would damage to legitimate speech and activity when software proved bad at navigating the tangle of rights, limitations, and exceptions that defined our copyright law. It would be a paradise of property rights, or a nightmare of litigation, depending on your perspective.

The second path is to change our copyright laws to ensure that more of what we value doing with digital culture is legal and to expand rights to reuse and remix copyrighted works in non-commercial contexts. We should think carefully, too, about appropriate and proportionate enforcement that minimizes harms to freedom of speech and individual liberty. The recent suicide of Aaron Swartz, who faced charges of 50 years in prison for unauthorized downloading of academic journal articles, brings the problem of excessive punishment into sharp relief.

The price of the first path is our privacy and at least some of our emerging cultural agency — our right to be producers and users as well as consumers. The price of the second path is disruption of the kind we have seen in the music industry and are beginning to see with TV, film, and publishing. Piracy is part of this disruption, but it is a symptom, not the cause. The cause is simply the declining cost of copying, storing, and distributing digital culture. The cause is computers. That is our new “natural condition” (to update Thomas Jefferson) of speech and expression.

Karaganis makes the case for the second path, and he offers thoughts on how Democrats and Republicans might respond to the emerging politics of copyright reform. He closes on a note that will be of particular interest to Agenda readers:

How would an Internet politics emerge in the Republican party? Given the decades of rhetorical entrenchment around property rights and law enforcement, it would probably require the recasting of intellectual-property rights as government monopoly, of SOPA-style bills as crony capitalism, and of Internet enforcement as part of a digital-surveillance state.

Such views in favor of recasting IP rights already have a home on the right, and are supported by congressmen such as Darrell Issa and Jason Chaffetz. Tactical considerations alone could produce Republican-led majorities on these issues, galvanized by the prospect of wounding the Democrats’ Hollywood money base or splitting Silicon Valley libertarians.

From such tactics we might get better laws or at least fewer bad ones, but we probably wouldn’t get a stronger Republican party — or a bigger one. For that, the transformation needs to be broader. The Republican party has an opportunity to take ownership of these issues by embracing the better impulses of the libertarian Right: opposition to monopolies and cronyism, and support for innovation and privacy protections. A majority of Americans endorse these principles already. A strong majority of young ones do. To be sure, it is a soft majority that has not yet consolidated its positions or allegiances. That’s what political leadership is for.

One of my goals is to commission an article — from a brilliant but recalcitrant and slow-moving expert on the subject, and yes, I am passive-aggressively sub-blogging at this person — on the politics of privacy.

The Agenda

NRO’s domestic-policy blog, by Reihan Salam.