Round Two of the Copyright Wars

Think of this as Volume 17, Number 13 of A-Clue.com, the online newsletter I've written since 1997. Enjoy.

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I have been following the copyright wars since their inception, in 1997. I watched the passage of the Digital Millenium Copyright Act (DMCA) in 1998, and the No Electronic Theft Act.

Both had a similar aim, to keep people from stealing making and re-selling copies of material subject to copyright, now that technology allowed for clean (or nearly clean) copies.

My sympathies here are purely with the Electronic Frontier Foundation (EFF) and blogs like Boingboing, which hate these laws as attacks on freedom of speech, of association, and the free exchange of ideas.

They note, for instance, that books go out of circulation fairly quickly, and that millions of “orphan works” exist that remain protected by copyright but also have no market, and thus go unread. I agree that the public domain should be expanded, not restricted, that copyright should not be immortal like Mickey Mouse is immortal, and that “intellectual property” rights, such as they exist, should be held by individuals, not corporations, as the Constitution existed before the corporate era began. I also agree that corporations should not be people under the law, although I recently created an LLC in my own name and told my stock broker it had made me a “Real Boy.”

All that said, it seems to me we're entering a second phase of the Copyright Wars with the entrance of China on the side of copyright.

China has spent the last 35 years catching up with the rest of the world, adopting free enterprise, and transforming itself from a Communist state into more of a Mandarin-directed Corporate one, in which the Party is the dominant corporation, using its economic power to maintain civil order.

It is similar to the transformation America went through in the 19^th century, one which accelerated after the Civil War ended the South's resistance of manufacturing, of machines defining productivity rather than mens' backs. If you date the end of China's internal struggle as 1978, as many in China do, you'll find that its transformation isn't unprecedented, as many American claim, but that it took place at nearly the same pace, right here, in the latter part of the 19^th century.

In fact, it happened faster here. Consider that we're now 35 years from 1978, and that by the time we came to 35 years after the Civil War it was 1900, and the American transformation into a corporate state was nearly complete.

While a lot of liberals will tell you that it was the 1886 Southern Pacific decision, which in a footnote gave corporations the rights of people under the Constitution, that was the key point in that history, I would argue that it was, rather, the Berne Convention of 1886, made into U.S. Law by the 1891 Copyright Act,  that matters more.

Until Berne, America was the world's great copyright scofflaw. Charles Dickens famously donated rights to his satirical anti-American novel, Martin Chuzzlewitt, to the U.S. at the end of his life, having protested throughout his life about how the rights of authors were basically ignored in this country. Ben Franklin didn't pay royalties in building his printing empire in the 1740s, and (as I've noted before) Samuel Slater ignored patent laws in building his textile factory in Rhode Island a half-century later. 

With all that as background, the news is that China says it will develop a version of Ubuntu, called Ubuntu Kylin, as a “national operating system” for computers. I think this is big news, because until now China has basically been getting along by pirating Windows.

This is about control, yes, but it's also about a new effort by China to respect copyright. Ubuntu hopes it will get standard desktop tools of high quality, built on Kylin, which can increase its penetration in other markets. China hopes to use Kylin to get out of the global “copyright jail” it finds itself in regarding computer software, and build a respectable software sector of its own.

The U.S. approved Berne only after it gained a positive trade in copywritten works. The novels of Mark Twain and other 19^th century authors were a tipping point in this regard. In the case of China I think the tipping point may be the movie industry, which has grown to some prominence despite widespread piracy with titles like “Shaolin Soccer” and “The Road Home” (a personal favorite). China can only capitalize on its domestic industry, and build international prominence, by respecting international copyrights.

It's a process, but Ubuntu Kylin represents, I think, a tipping point in that process. What it means is that China is going to be firmly on the side of copyright enforcement in the future, with the interests of maintaining order on behalf of the Communist Party as paramount in that, which will put a very new flavor on the global international copyright struggle.

That's because the pirates are right, on the merits. Content hoarding is just that, hoarding. Content only lives when it's actually being used. Copyright policies that aim to restrict the use of content through paywalls are injurious to progress in “science and the useful arts,” they slow progress. America's corporate state and China's Communist state are now in sync regarding the idea of slowing progress in that way, a slowdown that the Internet works against instinctively.

The copyright wars, in other words, are about to get a lot more interesting.