Monday, August 01, 2005

Copyfighters are...

Donna Wentworth over at Copyfight tries to define what "copyfighting" is and who "copyfighters" are and what is their agenda vis a vi intellectual property law. As she puts it: "the 'copyfight' is the battle to keep intellectual property tethered to its purpose, understanding that when IP rights are pushed too far, they can end up doing exactly the opposite of what they're intended to do." She links to Cory Doctorow, who defines copyfighters as those who are "fighting for reforms to intellectual property" because as he sees it global organizations like the World Intellectual Property Organization (WIPO) advocate ever greater IP rights, benefiting developed nations, which have more mature IP industries, over less well developed nations. Unfortunately, neither definition satisfies me.

Wentworth doesn't explain what she means by intellectual property's "purpose" except to caution proponents of tougher IP laws that their efforts can backfire against them if the public feels the laws enacted are too draconian. Note to Hollywood: "be careful of what you wish for." The declining music sales over the past five years in the face of well publicized legal battles over Napster and its successors by the RIAA can be seen as testament of this logic.

Doctorow with the EFF and other groups like Creative Commons do a good job of explaining what IP reforms they'd like to see, but a poor job of putting it in terms that a layman would understand. This leads to confusion and conflict between them and those who take the other side of the debate such as The Progress & Freedom Foundation. The copyfighters blame rights-maximalists for stifling technological progress and hurting the poor in Third World countries due to restrictive licensing of pharmaceutical patents and IP defenders accuse "copylefties" of being anti-capitalist and supporting widescale piracy of IP goods as typified by services like Kazaa.

To rectify this confusion it would be better to think of copyfighters as the "zoning boards" of intellectual property. Zoning boards overseeing real property evaluate and decide whether a particular use of a property by an owner is appropriate for that community in accordance with that jurisdiction's zoning ordinances. Zoning laws and building codes limit what an owner can do with his property and in effect reduce its potential value without restrictions. While an owner might want to build a factory in a residential cul de sac most zoning laws forbid it because it conflicts with the structure and values of the community. The US Supreme Court recognized in Euclid v. Ambler Realty Company (1926) and reaffirmed in Nectow v. Cambridge (1928) that zoning laws must benefit the community if property rights are to be restricted.

If zoning laws can be enacted and be accepted as a part of the bargain of owning real property, then copyfighters theorize: "Why can't IP zoning laws be enacted and be accepted as a part of the bargain of owning intellectual property?" Fair use as it is currently constituted is a vague and weak shield against an infringement claim by IP owners. While there are exceptions that allow unauthorized uses such as criticism and time-shifting, defending one's fair use rights is not cheap. As Larry Lessig, Stanford Law professor and author of "Free Culture," puts it: "fair use is the right to hire a lawyer."

If IP laws going forward are enacted with the same sort of consideration of the community impact versus the property owner's rights as zoning laws are then most copyfighters would feel that their David v. Goliath struggle is worth it.