ACTA; war over. We win. Again

<originally a Dutch column>

According to Dutch Economics Minister Maxime Verhagen, ‘ordinary’ people have nothing to fear from ACTA. This treaty is merely designed to shut down child pornography sites. Go to the link and have another listen (in Dutch), because he really does say this!

That’s good because, although I quite like a good download, I tend to limit myself to movies and books that fall a little more within the acceptable media spectrum. However, this statement gives us a fascinating glimpse into the mind of our Minister-of-All. Apparently in the case of distribution of photographic evidence of actual child abuse he is first and foremost concerned with possible copyright infringement. Is this a professional contortion or is he simply exceptionally goal orientated? This is what journalists should be pouncing on. For the lulz.

But beauty emerges even from the surrealist farce that is modern western copyright policy. No, I’m not talking about more music, movies or books, for there is no evidence that more culture is created by fanatically prosecuting 14-year olds for downloading. However, the recent weeks have clearly shown the usefulness of a common enemy. Thanks to ACTA, more Europeans than ever are involved in a critical discussion of modern copyright law and the balance with civil liberties. That is a wonderful development. Furthermore, it now seems that ACTA is dying following the remarks of European Commissioner Viviane Reding (she senses the political climate). One European country after another is delaying signing the treaty. In the three years since the “crisis” citizens have developed a fairly sharp bullshit filter to detect the kind of neo-liberal nonsense that ACTA is full of, and they will take no more. Like Software Patents it always takes awhile for the protests to get going but once they go representatives tend to choose the side of the people who can get them in a seat by voting in a few years.

Closer to home, the Brein lawsuit against internet providers Ziggo and XS4all to block The Piratebay generated a lot of media attention, it was a marketing campaign money can’t buy. Millions of Dutch people who had never heard of the site saw it discussed for several nights on the evening news. The forbidden always tastes sweet and an increase of users will be the logical consequence. Really, has anyone realistically suffered from the blockade that BREIN fought so hard for? Anyone? Bueler? The hugely successful operation against MegaUpload made worldwide headlines and caused a dip in filesharing….. which lasted all of 48 hours. And it produced advertising for such services and concepts on a scale that even Kim Dotcom could not have financed. So thanks for that.

The only result of all that copyright industry lobbying and lawsuits over the last 15 years has been an exceptionally rapid technological innovation towards an extremely decentralized media distribution. After the most recent attack, The PirateBay compressed its entire database to 90MB. If your phone has Bluetooth 2.0, you can share that with your neighbor during a subway ride. Because sharing is caring, right? As the great politicl philosopher Princess Leia once remarked to the Empire "the more you tighten your grip, the more systems will slip through your fingers".

There is still some muttering about ‘illegal downloading’ in the media and among astro-turfers. Except that it is not actually illegal in the Netherlands, not that facts have ever been a strong point of the copyright lobbyists. So let’s permanently eliminate any misunderstanding. There are two ways to look at copyright issues: legal and moral.

The Dutch law is simple. Legally you can make a copy for personal use, regardless of both the nature of the source and of the author’s wishes or intentions. "Illegal downloading” does not exist because … (wait for it) … it is legal. It is not "theft" because we would not need copyright is it was theft. We could just apply normal property rights. The very existence of the concept copyright indicates these are not the same. Anyone who still continues to peddle such nonsense is at best uninformed or a lawyer at DLA Piper. But I repeat myself.

A moral perspective on copyright is much more complex because we also have to consider the morality of the law itself (the fact that something is the law does not make it morally right – slavery and torture were once also permitted by law). In addition, it is important to consider how these laws are set up. What ACTA has very sharply highlighted is that modern copyright law is a snake pit of international lobbies, businesses and lying politicians, and deceived MPs and citizens who are deliberately kept in the dark.

Discussing copyright from a moral perspective without including this aspect seems absurd to me. What ACTA has demonstrated is that we shall no longer be bound by a moral law that has been democratically established or debated by our representatives. We have to determine what is moral and what is not in this area because the law clearly provides no such support.

And since the copyright industry is not about to enter into a real debate the outcome is inevitable: in ten or twenty years we will have an exchange between representatives of the remnants of the entertainment industry and the descendants of The PirateBay. It will resemble the famous statement of US Colonel Summers to his Vietnamese counterpart: "You know, you never beat us on the battlefield …". Whereupon Colonel Tu said, "That may be so, but it is also irrelevant."

Just as in any guerrilla war, the "insurgents" have won, and for the same reasons: they are smarter, more flexible, have broad popular support and all the time in the world. A sensible entertainment executive would do well to read some history books and learn some lessons about the conduct of guerrilla conflicts and the consequences of losing. Hint: the US struggled for a quarter of a century with its Vietnam syndrome, and the Soviet Union did not survive defeat in Afghanistan.

War over. We win. Music anyone?