Tuesday, November 27, 2007

Rip, Mix and Burn: Copyright, Privacy and Participatory Culture

A recent law review article on copyright titled, Infringement Nation: Copyright Reform and the Law/Norm Gap, illustrates the way that culture infiltrates our lives and how we are all on the front line of the copyright wars.

Copyright law is playing a profound role in shaping our very identities. Copyright’s regulation, propertization, and monopolization of cultural content determine who can draw upon such content in the discursive process of identity formation.

Thus, the contours of our intellectual property regime privilege certain individuals and groups over others and intricately affect notions of belonging, political and social organization, expressive rights, and semiotic structures. In short, copyright laws lie at the heart of “struggles over discursive power—the right to create, and control, cultural meanings.”

As Madhavi Sunder has powerfully argued, we are in the midst of a “‘Participation Age’ of remix culture, blogs, podcasts, wikis, and peer-to-peer file-sharing. This new generation views intellectual properties as the raw materials for its own creative acts, blurring the lines that have long separated producers from consumers.”

In the digital age, we are all regular consumers and producers of copyrighted content. |Infringement Nation: Copyright Reform and the Law/Norm Gap|
The author uses a hypothetical to illustrate how ridiculous the claims of copyright hardliners is (or at least how it criminalizes all sorts of everyday activity).
By the end of the day, John has infringed the copyrights of twenty emails, three legal articles, an architectural rendering, a poem, five photographs, an animated character, a musical composition, a painting, and fifty notes and drawings. All told, he has committed at least eighty-three acts of infringement and faces liability in the amount of $12.45 million (to say nothing of potential criminal charges).

If copyright holders were inclined to enforce their rights to the maximum extent allowed by law, he would be indisputably liable for a mind-boggling $4.544 billion in potential damages each year. And, surprisingly, he has not even committed a single act of infringement through P2P file sharing. Such an outcome flies in the face of our basic sense of justice. Indeed, one must either irrationally conclude that John is a criminal infringer—a veritable grand larcenist—or blithely surmise that copyright law must not mean what it appears to say. Something is clearly amiss. Moreover, the troublesome gap between copyright law and norms has grown only wider in recent years.Id.
One final point, the article concludes by invoking loss of privacy as a leading enabler of the ability of the copyright holders to track down (and punish) infringement, which is an interesting combination of two seemingly disparate topics.

The loss of privacy is often mentioned in the context of criminal law or national security, but it is less often invoked in the civil damages context.

The author illustrates how copyright has embedded itself in the public imagination, unfortunately it's such an arcane topic that few seem sure of the contours of intellectual property law anymore.

As I've noted elsewhere, the fear mongering of the RIAA and MPAA seems to be intimidating quite a few people, including educators.

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