The things we all know and won’t say about copyright laws

We argue at length about all sorts of issues- time shifting, format shifting, sharing with friends, remixing, fair use, file sharing, blah blah blah. I get questions all the time in person and in mail, about points of IP law. I try and head them off quickly with the IANAL1 declaration, but usually it turns out I do know the answer. Most people’s questions regarding copyright law are pretty simple and settled issues. (Not all. Sometimes I know the answer, but it’s “Nobody knows!”. Points of copyright law are much like subatomic physics in that way, in that they exist in probabilities more than realities until they get interpreted by a court.)(That’s one of my surefire metaphors. Explaining “A ninth circuit decision collapses the Schr√∂dinger wavefunction of a law!” really clarifies things, don’t it?)

The problem is there’s a big difference between telling you what’s illegal and telling you what not to do. Unlike most criminal law, IP law requires that the holder of the right go to the trouble of initiating a suit. If they don’t want to sue, you can “LA LA LA!” to their tune on national TV, wearing their trademarks over your naughty bits, while building their patented bicycle, selling it and encouraging everyone else to do it, too, without ever having a spot of trouble with the authorities. All those things are still illegal, highly illegal, but nobody is going to do anything to stop you.

This leads to a cultural dissonance. Is it illegal to rip your DVD of the Aristocats? You betcha. Is it wrong? Fuck, I don’t know or even care, to be honest. Is anyone going to sue you over it? No, no, no.

The truth about most copyright questions is this: no one cares if you break the law. This is not an answer lawyers can give you, and for the most part people aren’t sure enough of the law themselves to say it. I can, though. Include a picture in your high school report, rip your DVDs, give audiobooks to friends (while keeping a copy, you scoundrel!) or put up your first, horrific, 20 song Michael Jackson mashup on your website. You don’t need settled law because no one is ever ever going to sue you. Even the RIAA suits, already more rare than dying in a catastrophic freak accident2, were never directed at downloaders. Let me be redundant here- No one was ever sued by the RIAA for downloading any amount of music. That’s because they know these things, too. Some copyright violations are simply too ingrained to ever be pursued. Outlawing music sharing between friends is like outlawing the blowjob… good luck with that.

This is why copyright law is so icky these days- it’s totally disconnected with the culture. It’s not even really oppressive much of the time. It has this feel of thought crime because it’s so pervasive and so easy to break by just normally using a computer. But it’s not really Orwellian because you’d have to be totally Orwellian to enforce it universally and nobody actually wants to be that Orwellian about it. Better to be confusing and guilt inflicting, more Jewish mother than totalitarian state, with the occasional financially crucified single mom or college kid, so corporate rights holders can claim they really mean it this time.

We like to think of our laws meaning something, having teeth, and being right. We like to think of our laws as guides to good behavior, the blueprint for a polite and functional society that protects the weak and enables opportunity for all. Current copyright law, like all unreasonable law, undermines all of that. The real answer to your copyright questions is ignore the law when it doesn’t matter, and obey it when it does. How can you tell? You can’t! Isn’t this fun?

Nevertheless for the most part this is what we’re all doing these days. Most people have a good idea of when it’s really mean and harmful to infringe and don’t do it, or try to find other ways to compensate creators. People that can’t pay don’t, but then, they couldn’t pay, so no loss there. Some people really believe there should be no IP law at all, but even they are for creative people finding ways to make a living. Even the people for copyright maximalism at the total sacrifice of privacy and convenience aren’t actually for total enforcement, at least in part because they know they would be drawn and quartered. (I don’t mean in a bad press sense.) So we’re stuck with laws that not only don’t reflect reality, but in some cases actively conflict with physical realities of digital technology. We must obey them and enforce them internationally, except when we don’t at all. And their violation reflects a huge loss of money, except when that money never existed in the first place, and they limit our speech, except when they don’t because no one is bothered¬† about a particular work’s inclusion elsewhere anyway. Keep whistling and averting your eyes.

1. I am not a lawyer.
2. This is not my usually egregious hyperbole. If you google around, you will find various analysis from different years of the chance of being sued by the RIAA vs various weird forms of death.a

    a. But it is my usual form of laziness, given I don’t want to find all the links right now.