A New Copyright Law Could Be the End of the Internet As We Know It (Again)

Protesters outside a Trans-Pacific Partnership (TPP) meeting in Salt Lake City (photo via)

The internet used to be a peaceful realm populated exclusively by middle-aged academics and nerds of varying flavours. Then the nerds started to realise that they could circumvent some legal restrictions that usually apply IRL – namely copyright laws – to make off with a ton of free music and films. With that discovery, the internet morphed from a useful resource for computer scientists into the infinite chasm of criminality and depravity you know it as today.

Before long, the getting-stuff-for-free trick had fallen into the hands of the wider public, and the wider public couldn’t keep schtum about it. Then Sean Parker came along, pissed off Lars Ulrich and – within a couple of months – the whole world knew that instead of paying €1.50 for a CD single, you could just wait 13 hours and let your dial-up connection deliver that low quality radio rip into your downloads folder for no charge whatsoever. The internet soon became faster, people started downloading movies for free and Hollywood and the Motion Picture Association of America (MPAA) decided it was time to do something serious about their disappearing profits.

However, the basic problem when it comes to copyright is this: there are so many people infringing copyright in so many small ways on the internet that it doesn’t make sense to go after everyone who’s ever torrented a Game of Thrones episode or a cracked piece of software. So how do copyright holders enforce the rights that they hold, and/or make it harder for you to infringe them?

Copyright holders have long tried to force internet service providers (ISPs) to bear the burden of copyright enforcement. And governments lobbied by copyright holders have repeatedly tried to push laws that would make existing copyright laws easier to enforce, reducing the time and money you’d need to go after every single internet pirate in the world. They tried in the US with the Stop Online Piracy Act and in the EU with the Anti Counterfeiting Trade Agreement (ACTA), both of which were canned by their respective parliaments after huge public opposition.

So when the draft of the Trans-Pacific Partnership’s (“TPP”, a trade agreement between a number of countries in the Americas and the Asia-Pacific region) intellectual property chapter was leaked by WikiLeaks, it ignited the latest round of debate on copyright law and how it should be enforced – concerning, as it does, legislation around copyrighted online material. On one side, you have the big corporations, Hollywood and the pharmaceutical companies; on the other, digital activist groups like the Electronic Frontier Foundation; and, in the middle, the ISPs, who are taking flak from both sides and desperately trying to avoid pissing off any of their customers.

In looking for more effective ways to enforce copyright law, states and corporations have been accused of overreacting and aggressively trying to expand the rights they hold. Unsurprisingly, this hasn’t gone down well with digital rights activists – mostly because it’s inherently dodgy on freedom of expression and due process grounds. The US has publicly billed the TPP as a “free-trade agreement”, which is a pretty vague description, giving copyright holders license to a wide range of interpretations. So let’s take a look at some of the potential consequences.

A protest against TPP in Salt Lake City (photo via)

First of all, the TPP aims to make ISPs police their customers; cutting off their service after three warnings, disclosing their identities to copyright holders and filtering or blocking copyright infringing content. According to the EFF, deputising ISPs to police their customers “poses a serious threat to free speech on the internet, because it makes offering open platforms for user-generated content economically untenable. For example, on an ad-supported site, the costs of reviewing each post will generally exceed the pennies of revenue one might get from ads.”

This could theoretically lead to an internet more like television, based around fewer “channels”, with content vetted and controlled by companies that hold the copyright for the material they show.

Circumventing digital rights management (control of how a product is used once you’ve bought it) is to become illegal. Want to install Linux on your Xbox? Just make sure Microsoft doesn’t find out or they might be able to sue you. This kind of limitation could make jail-breaking (installing a different operating system) or unlocking mobile phones illegal.

It has been pointed out that the TPP could hurt the manga and hentai industries through the regulation of self-published (dojinshi) works, and Artist Kazuhiko Hachiya warned that cosplay could also be affected by the agreement. The broad yet vague powers could dictate, for example, whether or not you’re allowed to upload the Sailor Moon fan-art you’ve drawn or post the Naruto tribute video you made onto YouTube.

It’s not just new work that the TPP seeks to deal with. The US wants anyone who signs the agreement to extend their copyright terms to the life of the author, plus an extra 70 years for individual authors and 95 years for corporate-owned works. Mexico proposed extending copyright to life-of-the-author plus 100 years. That might cheer up a number of ageing rock stars, but ExtremeTech pointed out that this level of copyright would have stopped Disney from using the Brothers Grimm stories to make Snow White or Cinderella until 1958.

In its current form, the TPP also seeks to undermine the concept of “fair use“ by only allowing certain exceptions to copyright law, like short quotes in news media or educational tools. Your rights to resell something you’ve purchased and to parody, satirise or make temporary copies without the copyright holder’s permission could be under threat.

Leaders of TPP member states at a summit in 2010 (photo via)

It’s important to put all this in context. This is a debate that has been going on since the dawn of the digital age, exemplified by John Perry Barlow’s 1994 article for Wired on digital property, in which he posited that applying old copyright ideas will not work. Barlow was part of the Grateful Dead and pioneered the notion of giving away music for free. His essay is still relevant today because the old guardians of property still haven’t caught up to the digital age. He wrote that, “They are proceeding as though the old laws can somehow be made to work, either by grotesque expansion or by force. They are wrong.”

The US has reportedly been pushing very hard to get the TPP signed off by the end of the year, but after the leaks there seems to be increased concern from the US Congress – some of whom are unhappy that the fast-track process effectively bypasses their legislative oversight of the whole process.

“In its secrecy it does breed misunderstanding and alarmism,” Peter Bradwell of the Open Rights Group told me, “so it’s in the US’ interest to make it public.” While – as with SOPA and ACTA – it wouldn’t alter domestic law, if TPP was passed governments could “incentivise ISPs to monitor what customers do and take part in voluntary agreements to police customers, like in ACTA – for example by passing details to rights-holders”. While the TPP’s defenders say it’s not the same as SOPA or ACTA, Bradwell says that it has the same intention as those laws.

Thankfully, governments are displaying their usual mastery of the internet, with leaks getting the word out about TPP. Public disapproval was successful in putting a stop to the Stop Online Piracy Act (SOPA) in the US and the Anti-Counterfeiting Trade Agreement (ACTA) in the EU Parliament, so there’s every reason to believe that corporate interests will once again fail to prevail.

That outcome depends on whether the US public can successfully challenge their government on the issue, or even whether Congress can challenge the power of the executive branch and corporations that are doing the negotiating. What certainly needs to happen is a public debate on the future of copyright in the digital age. The rules of the old world no longer apply, yet 20 years after the internet went mainstream, John Perry Barlow’s criticism still applies:

“Humans have not inhabited cyberspace long enough or in sufficient diversity to have developed a Social Contract which conforms to the strange new conditions of that world… Whenever there is such profound divergence between law and social practice, it is not society that adapts.”

How are we still having this conversation?

Follow John on Twitter: @jwsal

More on internet freedom:

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David Cameron’s War on Internet Porn Lacks a Smoking Gun

The Internet Will Beat Cameron’s Porn Ban