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.