The internet's original sin

Just as important as what a regulation says is who it applies to.

Take financial regulation. A great idea! American could use some. But — as the cryptocurrency world forcibly reminded us — it’s not always easy to figure out when someone is doing something “financial.”

So let’s come up with a test. Here’s one: “If a transaction involves a million dollars or more, financial regulations apply to it.” Not every million-dollar transaction is “financial” but there are few enough of these that filing the “worth a million bucks, but not financial” paperwork for them won’t be a huge deal. Besides, anyone moving a million dollars around can afford professional help in navigating the paperwork.

But that could change. Let’s say that hyperinflation results in a massive devaluation of the dollar, to the point where your kid’s weekly allowance is more than a million bucks, as is the cup of coffee you buy for a friend on your lunch-break.

At that point, we’d need a new test. Getting allowance and buying a coffee are not financial. Nearly everyone involved in these transactions is unfamiliar with financial regulations and burdening them with the need to learn these rules is unfair.

Failing to adjust the test for regulatory salience isn’t just unfair, it’s unworkable. Financial regulation is complex — it has to be, because the industry it regulates is also complex. If we want people outside that industry to understand and conform it its contours dozens of times per day, we’ll have to drastically simplify its rules, until it is no longer fit for regulating finance. A failure to do this will ensure that everyday people, doing everyday things, are forever on the wrong side of the law.

Copyright is a regulation. It regulates the supply-chain of the entertainment industry. Copyright matters a lot to me, because I’m in the industry.

But unless you’re in the industry, it shouldn’t matter to you.

It’s fine to require a grasp of copyright among people who write, publish and distribute novels — but it’s bananas to require people who read novels to understand copyright.

And yet, here we are.

The test for whether copyright applies to you — for whether you are part of the entertainment industry’s supply chain — is whether you are making or dealing in copies of creative works. This test was once a very good one.

Back when every book had a printing press in its history, every record a record-pressing plant, every film a film-lab, “making or handling copies of creative works” was a pretty good test to determine whether someone was part of the entertainment industry. Even if it turned out they weren’t, the kind of person who has a record-pressing plant can afford to consult an expert to make sure they’re on the right side of the law.

But a funny thing happened on the way to the 21st Century. We started using computers for everything. And computers work by making copies.

The mere act of reading this article created dozens — if not hundreds — of copies of it. These copies flashed in and out of existence in network buffers, switches and routers, graphics buffers and RAM, in multiple content distribution network caches and in your browser’s cache.

You make a thousand copies before breakfast. That doesn’t make you part of the entertainment industry.

It’s a near-dead-certainty that much of what you do violates the black letter of copyright law. We could simplify copyright until everyone who uses the internet for anything could easily grasp its contours and stay within them. But any copyright that is made simple enough for kids doing their homework and people using a dating site to follow would be way too crude for me and the various parties in my supply chain to follow.

But that’s not what we did. Even after hyperinflation in copying rendered the test for copyright applicability obsolete, we kept it. Today, every person who touches the internet makes a copy, and therefore is regulated by copyright.

It’s the internet’s original sin.

Arguments about copyright are always about which copyright rules we should have, but we should really be arguing about who we apply copyright to.

The failure to adjust copyright’s test-for-applicability for the internet age has turned copyright into the all-purpose rule for everything we do on the internet, which is everything.

In the early 2000s, I got an email from a stranger saying, “Hey, I showed up for our date last night, but you weren’t there. Everything okay?”

I replied that I didn’t know what they were talking about and they sent me a link to a dating site where someone had stolen my identity and set up a profile with my name, details and picture.

So I figured out the phone number for the dating site and called them and explained what was going on. Sorry, they said, we don’t have any way to figure out who’s impersonating whom. If you want to get this profile removed, you should send a copyright complaint to our DMCA address, claiming that the photo is an infringing copy. That’s the only way to force us to remove a profile.

Reasonable people can disagree about how long copyrights should last and what constitutes fair use — but I don’t think there’s anyone in the supply chain of the arts who thinks that copyright should be our first line of defense against identity theft.

Remember the cop who played pop music during an encounter with a member of the public? The cop admitted that he did so in the expectation that the Taylor Swift song he was playing would trigger automatic copyright filters on major sites, preventing the video from being uploaded.

I think that it’s totally legitimate to record cops while they’re on the job (and the law is on my side here), but plenty of people who encountered that story were excited at the possibility that here, at last, was an effective privacy tool. After all, we’re decades into the twenty-first century and we still don’t have a federal privacy law with a private right of action.

But as badly needed as a federal privacy law is, copyright law is not a privacy law. Yes, everything we do on the internet — including invading someone’s privacy — involves making copies, but that doesn’t make privacy into a copyright matter.

Millions of artists are legitimately alarmed at the rise of so-called generative AI tools, because our bosses want to fire our asses and replace us with chatbots and deepfakes.

We artists have a labor dispute, but because American labor law is so weak, with most creative workers ineligible for union representation, creative workers are reaching for copyright law, arguing that making temporary copies of works and performing mathematical analysis of them is a copyright infringement.

As a legal matter, this is just wrong. Worse: it’s bad tactics: creating a new copyright that gives artists the right to decide who can make a temporary copy of a work, or subject it to mathematical analysis, will not stop our bosses from firing us and replacing us with chatbots and deepfakes (though it will create a lot of collateral damage).

By contrast, labor law is a powerful and effective way to save creative workers’ livelihood from greedy asshole bosses. The only problem is that so few of us are able to form a union.

America needs effective labor law every bit as it needs identity theft protection and privacy law, but copyright is the wrong tool for the job. Yes, you can hammer a screw into a wall with a screwdriver handle in a pinch, but you’re gonna hurt your hand — and break your screwdriver.

I depend on copyright for my livelihood. It’s precisely because of this dependency that I want copyright to be narrow, well-crafted, clear and technical. I don’t want copyright to be the all-purpose tool for everything we do with a computer — not least because all those other problems we’re trying to fix with copyright are real problems, and they deserve real solutions.

On a personal note, I’ve been writing a weekly column for Medium since May, 2021. The company’s no longer employing columnists, so this will be my last Medium-only piece.

I’ll still be publishing my Pluralistic feed here, of course, so you can keep on reading me without changing anything. I’ve mirrored all my Medium columns to my personal site, which is both paywall- and surveillance-free (the most recent ones aren’t up yet; they’re exclusive to Medium for six weeks after publication and I’ll be posting them all in the weeks to come).

I’m grateful to Medium for our years together, and to you for reading along.