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I was delighted that my friend John Martellaro chose to continue the discussion of copyright issues that he began in his OSXFAQ editorial two weeks ago, and that I picked up in my Moore’s Views & Reviews column last Friday.

In his reply: here on Applelinks yesterday, John made a series of statements articulating his beliefs and non beliefs in this context:

Excellent! This proves that John and I are really pretty much on the same page. I can affirm all six of those points without reservation.

However, there is still some dissonence in our perspectives on file sharing. John wrote:

My own reference to “civil disobedience” was in regard to the time-honored common law aspect to the development of law, which in the context of music copyright has been recognized to some degree under the law in both Canada and the US -- not to self-serving rationalization of piracy.

Back in the ‘60s and ‘70s, before fair use laws were clarified, all those people making photocopies of book pages and music mix tapes were technically lawbreakers. Not all laws are of equal gravitas, and I cannot muster up any moral outrage against those practices, which were eventually legalized within limits.

The tradition of common law has meant that laws are changed by practise. If someone uses my land as a right of way to the berry field or beach, they are technically trespassing -- breaking the law. If this persists over an extended period of time, a common law right of right of way will be established. The same can happen in the case of registered trademarks if they become generic terms. (I’m no lawyer -- these are just offhand examples).

In a democratic polity, laws should serve to codify a set of rules that we all largely agree upon. When the law diverges from common public behavior, and large proportions of the public are made into criminals, the law is arguably in error.

Copyright holders used to insist that ANY and ALL unauthorized copying of music recordings was unacceptable, and under the law so it was at the time. The political process and acknowledgment of the reality that music was going to be copied anyway (I’m talking here about mix tapes, etc. before the MP3 issue manifested), law or no law, caused the law to be changed. It is now legal to make copies for personal use. This change in the law would not have happened without widespread civil disobedience of the former copyright legislation. Indeed, the Canadian Copyright Board has conceded that while copying any sound recording for almost any purpose infringed copyright prior to the revised private copy legislation, in practice, the prohibition in terms of private-use copying was for all intents and purposes rendered unenforceable due to new copying technologies.

The usual way for such bad laws to be changed is through a significant proportion of the population exercising civil disobedience. Any other method will likely meet with the stonewalling that those who protested the DMCA before it’s passing encountered.

My central interest in this issue is philosophy, not a defense of piracy, per se, but rather the threat to the free flow of information over the Internet that consequences of an anti piracy chill engenders. I also question conventional wisdom as to the philosophical legitimacy of copyright laws as they’re currently written in a broader context as they pertain to the public interest and to inhibition of information exchange.

Copyright laws pertaining to music are especially draconian. I am no expert, but as I understand it, even quoting a few words or a phrase from the lyrics of a copyrighted song is illegal without permission, unlike prose, where fair use can run to hundreds of words. That speaks volumes about the success of the music lobby in getting tamelegislators on side.

The notion that sounds or combinations of sounds can be private property is a nebulous one that no one should accept uncritically at face value .

Thus, rather than representing some sort of categorical moral imperative, copyright legislation is rooted in monopolism and censorship, and has, in our time, been expanded in scope far beyond its original intent. I draw yur attention to this excellent National Review article by John Bloom entitled “Right and Wrong: The copy-right infringement.” Bloom observes:

This, gentle readers, is wholesale cultural vandalism. Then there’s the inhibition of technological advancement in the name of protecting these obscenely excessive “rights.”

Why should the private interests of corporations put the kibosh on entire technologies that offer a benefit to the common public good? That is what happened with Digital Audio Tape, which had the recording interests wetting themselves in fearful anticipation of easy, unauthorized, high-quality copying of music until they successfully and selfishly lobbied in the name of copyright protection for restrictions that effectively killed the technology for widespread use, even though it would have offered many legitimate benefits that had nothing to do with piracy.

Those are the sort of things that I strenuously object to, and as I said in my column, if tolerating a degree of piracy -- even a substantial degree -- is the price that must be paid to maintain cultural freedom and technological advance, then so be it. And civil disobedience, even if some people will cynically abuse the concept to camouflage the Jolly Roger, is still the means freedom-loving people employ to overturn unjust laws and the abuse of privilege. It wasn’t *legal* to chuck that tea into Boston Harbor.

Charles W. Moore

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