Who’s afraid of s3804?

There’s been a lot of bad leg­is­la­tion pro­posed con­cern­ing copy­right, and it is increas­ing­ly dif­fi­cult to tell the good from the bad with­out an attor­ney inter­pret­ing every word. Blog­gers like me get up on a vir­tu­al soap­box and declare that bills will pro­tect or destroy (usu­al­ly destroy) all cre­ative thought. Usu­al­ly such dec­la­ra­tions say more about the writer’s prej­u­dices than the leg­is­la­tion. There are those who believe that copy­right is a a sacred trust and that no one should ever prof­it from the work of anoth­er, even if that oth­er has been dead for decades. There are also those who believe that any form of what we call intel­lec­tu­al prop­er­ty is evil, and an increas­ing­ly unnec­es­sary evil at that.

I tend to side with the first group, though I agree with the anti-intel­lec­tu­al prop­er­ty peo­ple on a few points. Intel­lec­tu­al prop­er­ty is not, strict­ly speak­ing, prop­er­ty. Copy­right law makes it pret­ty clear that copy­right does not pro­tect ideas, but the expres­sions of those ideas. Even patents are sup­posed to be tied to spe­cif­ic solu­tions rather than gen­er­al ideas. 

Why protect copyright?

Peo­ple ought to prof­it from the fruits of their labor whether that labor is phys­i­cal, intel­lec­tu­al, or some com­bi­na­tion. But ideas and even expres­sions of ideas become the food for oth­er peo­ple’s ideas once released into the wild. Our lan­guage and cul­ture sur­vives on the accu­mu­la­tion of idioms and phras­ing that enter the col­lec­tive understanding.

Authors (in the broad­est sense of the word) have to under­stand that if their work is suc­cess­ful, their con­trol over it will dis­si­pate, as well it should. Even peo­ple who have nev­er read 1984 under­stand what «Big Broth­er is watch­ing» means and have the right to use that idiom. It did not orig­i­nate with them, but then nei­ther did any of the quar­ter mil­lion words (in Eng­lish any­way) we choose from to con­struct our ideas and give them form.

Pub­lished work, if it is suc­cess­ful, ought to even­tu­al­ly reach the pub­lic domain. This is the nat­ur­al pro­gres­sion of the accu­mu­la­tion of human knowl­edge. At the same time, the per­son who orig­i­nat­ed the idea should have the exclu­sive right to use that idea. It’s not just self­ish­ness that pre­vents an author from pub­lish­ing every­thing he or she thinks up; cre­at­ing works of art, lit­er­a­ture, or inven­tion takes time and effort. Most of us have lim­it­ed resources to which we can ded­i­cate such endeav­ors, and we all have to eat. If cre­ative out­put does­n’t count as a con­tri­bu­tion to soci­ety from which the author is enti­tled to be com­pen­sat­ed, the author’s ener­gies will have to be turned to the task of procur­ing food and shel­ter in some man­ner soci­ety does see fit to compensate.

Since our cul­ture prof­its from these advance­ments, the exclu­sive use of the advance­ments is reserved for the author. It should­n’t last for­ev­er and there is legit­i­mate debate to be had about the cur­rent obscene­ly lengthy dura­tion of copy­right, but it’s not a nec­es­sary evil to be tol­er­at­ed. It is a social con­tract which should be celebrated.

Exclu­sive use of one’s work means that no one else is allowed to use that with­out the author’s per­mis­sion. It is one of the jobs of gov­ern­ment (and this per­haps is a nec­es­sary evil) to pun­ish those who use an author’s work with­out sanc­tion. With­out reper­cus­sions, a law is meaningless.

What about this bill?

Sen­ate bill s3804 is intend­ed to pro­vide the court with the pow­er to order Inter­net Reg­is­trars to sus­pend the reg­is­tra­tions of Web sites whose pri­ma­ry pur­pose is the unau­tho­rized redis­tri­b­u­tion of copy­right­ed works. This pow­er could be exer­cised at the request of the Attor­ney Gen­er­al when the Attor­ney Gen­er­al files an action against the infring­ing Inter­net site.

I’m gen­er­al­ly opposed to the idea of pun­ish­ment pri­or to tri­al. Asset for­fei­ture upon accu­sa­tion of a crime is an Amer­i­can mis­car­riage of the very idea of jus­tice. s3804 sounds an awful lot like this, but there are dis­tinc­tions that I think are important. 

First, copy­right is usu­al­ly a mat­ter for civ­il courts. Civ­il cas­es have dif­fer­ent stan­dards than crim­i­nal cas­es for good rea­son. If there is an alle­ga­tion of copy­right infringe­ment, it seems rea­son­able at least in some cas­es to demand the halt of what­ev­er activ­i­ty it is that is alleged to be infringe­ment, pend­ing the res­o­lu­tion of the infringe­ment action.

Sec­ond, as allud­ed to above, this does­n’t con­sti­tute a seizure of prop­er­ty but a sus­pen­sion of ongo­ing activ­i­ty. Grant­ed that such an order might well have puni­tive effects it does­n’t sound like pun­ish­ment so much as a pause while the case is sort­ed out.

So is this good or bad?

There are valid rea­sons to have reser­va­tions about this bill. It is yet anoth­er expan­sion of Fed­er­al pow­er under the umbrel­la of the Com­merce Clause in Arti­cle I of the Con­sti­tu­tion, already used to shift pow­er from the States to the Fed­er­al gov­ern­ment. But if Inter­net com­merce isn’t inter­state com­merce (and inter­na­tion­al com­merce as well) then what is? Our world is get­ting small­er and more and more every­one’s inter­ac­tions cross bor­ders. It is nat­ur­al then that more and more of our enforce­ment would fall out­side the reach of the States, even if fear of encroach­ing Fed­er­al pow­er is legitimate.

While Sen­a­tor Leahy (Demo­c­rat from Ver­mont) has come up with some stinkers when it comes to leg­is­la­tion con­cern­ing copy­right and the Inter­net, s3804 appears to be one of the decent ones.

Read­ers are encour­aged to read the text of the bill and come to indi­vid­ual con­clu­sions. I’m very inter­est­ed to hear if my read­ing of the bill is incomplete.