Is copyright ‘fundamentally incompatible with the internet’?

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Copyright is commonly thought to have begun with the British Statute of Anne in 1710, which made it illegal to copy books without permission for 14 years after publication. The United States passed its own copyright law as early as 1790, and the length of protection was steadily extended until today’s standard of 70 years beyond the author’s life. Like length of time, the breadth of copyright has grown, from books to music to paintings to photographs to software.

But near-infinite reproducibility of digital products and frictionless web communications is stretching the limits of copyright, as tech-policy journalist Glyn Moody told me: “It is fundamentally incompatible with the internet.”

Moody is out with a new book called “Walled Culture: How Big Content Uses Technology and the Law to Lock Down Culture and Keep Creators Poor.” He writes for Ars Technica among others and in 2001 published “Rebel Code,” an influential book on the rise of open source software.

His central premise: Though copyright is argued as a defense for creators by giving them an incentive to produce and benefit from their work, it doesn’t work that way. This has consequences for tech companies that rely on software copyright and the millions of creatives who feel bedeviled by it.

Glyn Moody. (Courtesy photo)

Creators are surging. What copyright problem?

What of the surging creativity that the internet has unlocked? According to a trade report by investment firm Signalfire, an estimated 50 million people worldwide identify as “creators” now, a faddish term used to refer to the individuals who create content online, often with professional ambition on big social networks.

“There’s a myth that the arts are thriving, but really the intermediaries are making money,” Moody said. “Their works are just assets that are bundled and traded like pork bellies.”

Look no further than declining take-home pay of artists to see the problem, Moody argues.

For example, the average writing-related earnings have been sliding for years among American authors, who earned a median $6,080 in 2017, a 42% decline from 2009 according to The Authors Guild. More recently, the Union of Musicians and Allied Workers has launched a campaign challenging Spotify to raise the per-stream royalty for musicians and make their revenue data more transparent. We’re in a “superstar” economy, to borrow a phrase, Moody argues, because ”copyright acts as a concentrator.”

“When you have 10 superstars, it’s easier to generate profits than dealing with 10,000 moderate winners,” he said.

Those intermediaries Moody says are benefiting are everywhere: the big social media companies like YouTube and TikTok, the Apple and Google app stores, and other “digital monopolies” that serve as a central platform for the exchange of ideas.

One of Moody’s chapters is dedicated to Aaron Swartz, the young software programmer who became a open-web folk hero in 2013 when he committed suicide following prosecution for illegally downloading a trove of academic papers from the JSTOR database for free distribution.

Can social media posts be copyrighted?

Copyright is one of the three pillars of intellectual property law, alongside trademarks and patents. One critical component of intellectual property has defined the free world: Copyright does not protect ideas, just their expression.

Many of us have a fuzzy understanding of the exceptions, like so-called fair use and the idea that one can’t copyright facts. That’s in part why trades that especially rely on the distribution of ideas — like journalism, comedy and academic research — are the trickiest to police legally. No coincidence then that these professions also have especially strong traditions of chasing down copycats.

What about the memes that so define social media virality? As a thoughtful Vox piece asked earlier this year: Are you “hopping on a trend” or are you plagiarizing? Most internet posts can’t be protected by copyright, so, as the Vox piece put it, “plagiarism experts acknowledge that the shift about proper idea attribution needs to happen culturally.”

As Moody pointed out this summer, that cultural change happens by rewarding original creators, and has insight for how a post-copyright world might work.

“If we accept that anything digital can and will be copied, the key issue is then identifying the person who created it initially,” he wrote me in a post-interview email. “Fortunately, we have the perfect system for tracking down where something first appeared: the Internet.”

Twitter sleuths and web detectives chase down lots of misattribution — though the line between justice and mob mentality can be a fine one — and bringing more ideas into the open web would make that easier, Moody argues.

In that “Great Library,” as he calls it, society can work out the differences “between out-and-out plagiarism, which is indeed unfair and should be punished through reputational damage, and building on the work of others, and publicly acknowledging that fact.”

How would we replace copyright?

Moody argues no half-measure. Copyright is entirely irredeemable, he argues. Toss the whole system out.

“I don’t want to go forward, I want to go back,” he told me.

That means back to the patronage models that are already flourishing online — like Patreon, crowdfunding and even OnlyFans. This will sound familiar to fans of Web3 trends. Moody is cautious. Decentralized autonomous organizations and other efforts for distributed and fractional ownership are clearly powerful.

“Remarkable optimism and hope comes with new technologies, but unfortunately the shadier people … take advantage of people’s good nature,” he said.

The author is careful to say he doesn’t have the answer. Instead this can be a call to entrepreneurs and inventors.

“I want to see more artists and creators getting more money. The internet lets that happen because of the disintermediation,” Moody said. “The relationship between the artist and the fan is crucial but copyright is a barrier.”