This Was Inevitable: Copyright and ISP Blocking

Copyright JailIt was just a matter of time before some large-scale holder of copyright monopolies tried this in the U.S...

The American Chemical Society has asked a U.S. court to require Internet Service Providers (ISPs) to block access -- that is, refuse to carry network traffic to and from -- a site that the ACS claims is infringing its copyrights.

ISP-blocking is different, and worse, than domain seizure, and domain seizure for copyright infringement is already bad enough.  ISP-blocking asks the court to step into new and dangerous territory, in which freedom of communications and the reliability of Internet infrastructure are degraded merely to provide another tool for enforcing a controversial and limited information monopoly.  (It is by definition controversial -- just ask yourself who are all those people whom the ISP block is intended to block?  They must be people who do not agree with how copyright law restricts their access to this information.)

The ACS's request is deeply wrong, in so many ways:

It ignores the principle and the spirit of common carrier status.  ISPs are not supposed to be arbiters of acceptable comunication; they are not supposed to police content.  Their job is to carry network traffic from one place to another.  It does not take any great imagination to see why freedom of speech and of association depend on ISPs performing this job faithfully.  This was also the point of granting them the "safe harbor" provisions in the U.S. Digital Millennium Copyright Act, and the EU's "mere conduit" liability limitation in the Electronic Commerce Directive.  These were smart boundaries to draw around ISP responsibility.  The ACS's request flies in the face of this principle.

It creates a moral hazard that attracts unscrupulous plaintiffs.  If any time a complainant can get a court to agree that some site's content is illegal, ISPs must block anyone's access to that site, then we've thrown the door wide open for malicious plaintiffs seeking to use the legal system not only to harass their opponents, but to suppress even their ability to speak.  It would bring SLAPP-style abuse to a whole new level.

It damages the entire Internet by blocking access indiscriminately.  Suppose I happen to have an unauthorized copy of some copyrighted material, but you are authorized to have as many copies as you want.  If you ask me for a copy, and I give you one, there is no (additional) crime: you are not infringing any copyrights, and I'm not infringing any more than I was already.  But if I am blocked at the ISP level, then I cannot hand copies even to those who have every right to receive them.  This is not merely theoretical.  Suppose that the web site is operating in a country with different copyright laws from the U.S.  When someone in the U.S. tries to access that site, neither the ACS nor the court nor the ISP has any clue whether that person is authorized to receive copies of the copyrighted papers they are trying to access.  Maybe it's a fully paid-up ACS member.  Maybe it's a student at a school that has signed an applicable agreement with the ACS.  Maybe it's one of the paper's authors!  You just don't know.  This is why ISP-level blocking is such a dangerous thing.  It breaks Internet infrastructure for everyone equally.

It will involve collateral damage to unrelated sites.  Most web sites are co-hosted on shared servers at commercial hosting providers.  While law enforcement can target a site's name, through domain seizure, to truly effectively block network access to the site's server means also blocking access to the other, unrelated sites that just happen to use the same server (otherwise, the block is not too hard to get around).  How would you feel about law enforcement sweeps that regularly capture not only the suspect, but also ten or so random bystanders who happen to be near her when she's arrested?  That's what effective ISP blocking will do.  Once again: it breaks Internet infrastructure in ways that affect everyone, not just the target.

It is incompatible with the ACS's own mission.  "To advance the broader chemistry enterprise and its practitioners for the benefit of Earth and its people."  Enough said.

As Stephen McLaughlin was quoted as saying in the Inside Higher Ed writeup: "The very idea makes my head spin. ISP blocking happens in the U.K., Germany and several other Western countries, but the U.S. simply doesn’t do that, to my knowledge."

Yes, and let's not start now.

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2017 Plans

QCO projects

Happy New Year, copyright questioners!

As some of you may have noticed, we spent a good deal of 2016 in hibernation.  QCO is a volunteer-run organization, and sometimes those volunteers get busy with other stuff in their lives.  Hard as it may be to believe, advocating against information monopoly does not pay the bills -- we even had to pause renovation work at our global headquarters.

In 2017 we're planning to continue our Artist-in-Residence program (which was quietly running all through 2016 and receiving donations -- thank you to all who gave!) and ramp the Bookliberator project back up.  BookLiberators are still in stock, and we hope to spread them far and wide.

That's all for now.  If this is year first time here, and you came here under the impression (as we all are, at first) that the copyright system is about supporting artists, please start with this.

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Congratulations to Creative Commons on new CC-BY-NV license.

Question Copyright congratulates Creative Commons on the release of the new Creative Commons Attribution No-Value 1.0 International license, which allows covered works to be distributed freely with proper attribution, as long as no recipient derives any value whatsoever from them, including but not limited to personal pleasure, commercial gain, or artistic benefit.

CC-BY-NV

CC-BY-NV allows derivative works so long as the derivatives are also without value to anyone, but it can be explicitly combined with the No-Derivatives (NC) clause for good measure.  According to CC General Counsel Diane Peters, the new license cannot be combined with Non-Commercial (NC) clause, because lack of commercial potential is already implicit in the NV clause, but she added that "it can, however, be combined with the ShareAlike (SA) clause, not that it would do any good."

"The release of CC-BY-NV 1.0 International is the result of lawyers and other experts around the world coming together to ensure that artists who simply want to ensure that no one can experience enjoyment of their works have a place in the Creative Commons constellation too," said Creative Commons Executive Director Ryan Merkley.  "I'm enormously grateful to the entire CC team and to all the volunteers who worked so hard to get this out by the April 1st deadline."  Diane Peters noted "We already have a number of artists inquiring about applying the new license to their works."

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Czech translation of our most popular article, "The Promise of a Post-Copyright World".

IdeasBy far the most popular article on this site (over half a million views now and counting) is The Surprising History of Copyright and the Promise of a Post-Copyright World.  Courtesy of Antonín Houska, it is now available in Czech (česky): Překvapivá historie copyrightu a příslib světa po něm.

Thank you, Antonín!

It's also been translated into Chinese, Polish, Latvian, and Italian.  We're very grateful to all the translators; it's a lot of work for a piece of that length.  But the existence of these translations should also serve as a reminder of the vast amount of material in the world that would be translated if it weren't restricted by copyright monopolies -- a topic we've covered in depth before.

Happy New Year, everyone.  Let's try to have more freedom in 2016 than we did in 2015.

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Going to Town on Warner/Chappell in the "Happy Birthday" case.

Happy Birthday cupcake.We've written about the Happy Birthday lawsuit here before.  Now it seems the case has reached a turning point -- a "smoking gun" has been found, thanks to research in the files of the pro-monopoly side, Warner/Chappell: a copy of the "Happy Birthday" lyrics from 1922, that is, before the present-day copyright horizon.

The story (courtesy of Hollywood Reporter) is pretty fascinating in itself, but let's go to town on the amazing claim Warner/Chappell seems to be making in response to this new discovery.  After all, what is QuestionCopyright.org for, if not going to town on the most absurd claims of the monopoly industry?

What Warner/Chapell seems to be saying is that even if it were found that the song lyrics existed in their current form in 1922 -- that is, earlier than the current "earliest copyright horizon" -- the fact that the 1922 copy of those lyrics might have been, at that time, a possible copyright infringement (which it obviously wasn't, but we'll leave that aside in order to grant the widest possible latitude to Warner/Chapell's argument, for our own entertainment if nothing else) means that maybe the copyrights claimed later in 1935 are somehow still valid.  Or something?

But the mere existence of a version of a work before the horizon means that, even if that copy were in an copyright-infringing state at the time, whatever copyright it was infringing then must, clearly, have expired by now.  Because otherwise, the copyright horizon is not really a copyright horizon.  Unless you live in a world where time runs backwards and sideways, as Warner/Chapell perhaps does.

What this lawsuit really shows is what we've been arguing is the problem with broad information monopoly rights in general: once the state creates a monopoly, it creates a monopolist who owns it -- or in this case imagines themselves to own it -- and that monopolist will fight to the bitter end to keep it, against all reason and all evidence.  There is normally no representative of the public who has as clear and focused an interest in a given monopoly as its putative owner does; we just got lucky in this case that a filmmaker decided to take an interest in this one song.

Who will stand up for all the other songs?

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