CopyCanCopyCant

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The fact that there is always unequal recourse to litigation makes many discussions about the theoretical merit of copyleft and copyright a moot point. The legal mediation of intellectual property as a mass market service product is a horrifying prospect. In the case of the Creative Commons, the rhetoric simply ignores the material reality that most people can not afford and would probably never want to engage in litigation of any sort, certainly not against powerful, rich companies with armies of lawyers.

At the same time, given current distribution media and formats, copyright is practically unenforcible. Punitive enforcement of copyright law in a few highly publicised 'example' cases in which individuals are persecuted for downloading copyright material is deeply irresponsible on the part of the rights holders. Irresponsible because they must bear some responsibility for the ease with which their material is duplicated and distributed; which is an intentional strategy on their part.

Take the example of commercial software. It is in the interests of the software company for their software to be easily pirated. Many specialist software titles are hard to 'crack', but in many cases 'industry standard' applications are easily pirated. If, for example, it were impossible to pirate Adobe Photoshop, this software would not occupy the position of market leader for photo manipulation. Students, learners, tiny companies that currently find it easy to download and use pirate versions of these warez, grow up to found established companies and businesses that are no longer 'under the radar' of the copyright holders, and so buy lisences. If it were impossible to do so, they would use something else, and buy lisences for that product if and when it became necessary and profitable for them to do so. Knowing this, Adobe maintains a relatively relaxed copyright enforcement and security implementation. They do not seem to prosecute individuals, although presumably they have the right to do so.

The same logic applies on another level to music distribution. Music becomes popular in some markets because it is easily distributable. If the only way for Bulgarians to listen to Britney was for them to spend 10-12 Leva (5-6 Euros) on a CD, they would not listen to Britney. Piracy created this market and many others.

There is a harsh duplicity in the way large multinational IP owners use copyability as a publicity strategy on one hand, and then on the other bully the public into paying extortionate prices for dead media by singling out individuals and persecuting them as examples for taking the bait of copying the 'property' they have made intentionally copyable.

If, as is constantly threatened, Digital Rights Management becomes a reality and it is then impossible to buy hardware, software and media that allow the reproduction and distribution of copyrighted information, punitive enforcement of redundant copyright law on individuals will no longer be necessary, because it will simply be impossible for them to copy and redistribute this property.

Thinking again about how to articulate copyright and copyleft, there seems to be a need for a functional articulation of the reality of how this law is applied rather than the legalistic, utopian fantasy of an IP 'commons'. For this purpose I suggest the principles of 'CopyCan and CopyCant'. Simply, it is possible to copy 'CopyCan' material, and impossible to copy 'CopyCant'. No lawyers necessary. It become the responsibility of the producer to prevent the copying of their material. If this entails the implementation of DRM, fine. If it requires cyborgs to register a serial number keyed to an iris print and a cochlear implant for every piece of commercial music that they buy that prevents others from hearing the uniquely signed secure transmission of this audio unless they also buy it, fine. See how many people buy Britney's albums on these terms.

in brief

You can CopyCan things that are already copyright or copyleft - it's a functional rebuttal of any kind of copy protection or legal mediation of ownership. If you can copy it, it's CopyCan. If you can't, it's CopyCant.


notes on CopyCan:

  • anything that leaks into peer to peer networks, especially secure ones like freenet, is CopyCan
  • ideas and speech and all the things that make you wince when you hear that someone's trying to enforce copyright over have always been and remain CopyCan.
  • other examples of CopyCan things: 'leaks', gossip, things made from reverse engineered designs, everything.
  • CopyCan and CopyCant recast copyright issues as an InformationSecurity problem: Authorization, Authentication and Access Control become the important perameters, rather than legal mediation.
  • This is useful because it proposes re-casting copyright without the lawyers
  • CopyCan is potentially problematic because makes Digital Rights Management inevitable: if the onus is on companies to protect their copyright mechanistically, in a DRM like way. This needs further investigation. What's actually wrong with DRM?
  • CopyCan is potentially useful because it takes the onus off the consumer / public / individual to abide by copyright law that will be letiginously and then violently enforced on them.

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