Posted on Jan 14, 2017 by Rick Falkvinge

Understanding the fundamental, irreconcilable conflict between copyright enforcement and privacy of communication




Enforcement of copyright is fundamentally, conceptually incompatible with privacy of correspondence. You can't have the sealed and private letter in existence at the same time as you enforce copyright, once communications have gone digital. This is the reason you see VPN companies and other privacy advocates fight copyright enforcement and copyright law: because society has to choose between privacy and copyright, and basic civil liberties are considered more important than one particular entertainment business model.

Why is a VPN company interested in copyright law? Why does a VPN company even question copyright law expansion and enforcement? Why do the most appreciated internet operators talk back a lot to the copyright industry – and are appreciated by their customers for that very reason? Why does the net generation generally say, as a blanket statement, that copyright law just has no place in an Internet world?

Is it, as some would claim, because BitTorrent users make up a majority of the paying customers of a VPN company or an internet operator? That the net generation just wants everything for free? That the VPN company profits from protecting criminals? You know, there are people who would actually claim this with a straight face, apparently serious. The facts are clear on the matter, though: BitTorrent usage is neither a majority reason for using a VPN, nor are heavy-bandwidth users particularly profitable. And the net generation has no illusion about everything-for-free being sustainable or even desirable – but they do defend their liberty ferociously.

No, the reason successful VPN teams are critical of copyright enforcement goes deeper. Much deeper. It has to do with the basic passion for privacy that led a founder to create a VPN company in the first place, and for passionate co-workers to share the vision of privacy being a civil liberty worth defending.

There is a little-acknowledged conflict between enforcement of the copyright monopoly – which is a governmentally-sanctioned private monopoly on distribution, duplication, and transmission of certain bitpatterns – and private correspondence as a concept. When I open a digital communications channel to somebody, I can use that channel to transmit private correspondence (thoughts, ideas, feelings), for which there is a constitutional right to privacy. But I am also technically able to use this channel to transmit a piece of music, at TV show, or a movie, which would typically be illegal – a violation of the copyright distribution monopoly, and there is no shortage of people who do.

Thus, the key observation here is that the infringements of copyright used to be visible to the naked eye in a public location – they could be a printed book for sale in a bookstore, or an unlicensed concert — but the infringements have now moved into private correspondence, into the protected private sphere. An active BitTorrent is a set of ones and zeroes that arrive at and leave my computer, interspersed with all the (other) private things I do on the same computer: browse sensitive information, send mail, advise political dissidents, et cetera. I could also be using email or chat channels to violate copyright, for that matter, at the same time as I’m sending anonymous evidence of governmental abuse to a reporter on another channel. The only way to discover the illegality of a small part of the aggregate bitstream my computer is transmitting is to capture and analyze all of it. Thus, we’re now at a point where enforcement of this distribution monopoly has become irreconcilable with keeping the very concept of private communications.

There's no way to say that private correspondence is still as completely protected as it's always been, but copyright-infringing data transmissions are not. They're mixed in with each other now, mixed with each other forevermore, and the only way to tell which is which is to look at the aggregate stream, pick it apart, and analyze it. The act of sorting requires observation. At the point somebody has sorted the private correspondence into legal and illegal, it is no longer private, by definition. Thus, the only way to maintain the concept of privacy is to prevent the observation, and as a consequence, prevent the discovery of infringements of the copyright distribution monopoly. There is no middle ground. None. It’s one or the other: privacy or copyright.

This is why a privacy company fights against copyright enforcement. It follows from that company’s very existence, which in turn usually follows from a deep passion for civil liberties on behalf of the founder and co-workers.

“If I send you an e-mail, that e-mail may contain a piece of music. If we are in a video chat, I may drop a copyrighted video clip there for both of us to watch. The only way to detect this, in order to enforce today’s level of copyright, is to eliminate the right to private correspondence. That is, to eavesdrop on all the ones and zeros going to and from all computers.

There is no way to allow the right to private correspondence for some type of content, but not for other types. You must break the seal and analyze the contents to sort it into allowed and disallowed. At that point, the seal is broken. Either there is a seal on everything, or on nothing.

So we are at a crossroads. We, as a society, can say that copyright is the most important thing we have, and give up the right to talk in private. Either that, or we say that the right to private correspondence has greater value, even though such correspondence can be used to transfer copyrighted works. There is no middle ground.”

— From the book The Case for Copyright Reform

Curiously, a lot of people seem to defend the copyright distribution monopoly in a vacuum – as if there was no cost to upholding it, as if there were no bad effects down the road, only somebody making money in a vacuum. “They get to decide how the fruit of their labor is distributed. How is that a bad thing?” Well, it is a bad thing when the consequence of that principle is that nobody gets to communicate in private anymore. It is a very bad thing. And that is, indeed, its consequence. Many seem to reason along this line:

“Because I (we) make money from this legal construct, it is just and righteous, and therefore this legal construct has a right and an obligation to keep existing, no matter what else happens.”

Worse still, some take the stance that infringing the distribution monopoly is “stealing”, despite this being obviously false from moral, philosophical, economic, and legal standpoints. Yes, legal – even the U.S. Supreme Court says that infringing the copyright distribution monopoly isn’t related to stealing, and U.S. courts have grown so tired of this false rhetoric they’ve even banned the copyright industry from using such terms in court, quite an unusual and far-reaching measure.

It can be debated whether there is a tangible loss of income involved; studies show the income to artists from direct copyright is “insignificant” when taking a statistical view and comparing it to overall creator income. Regardless, and this is an important point, even if maintaining private correspondence and thereby preventing copyright enforcement does result in a loss of income for some people, it is still the right thing to do: civil liberties do not get to compete with business models, and no entrepreneur has the right to dismantle civil liberties such as privacy just because they claim they can’t make money otherwise. These two concepts – foundational civil liberties and a particular business model – are concepts that reside on completely different levels in our society.

The reason this conflict receives so little political acknowledgment most likely has to do with the two concepts being in different departments, and nobody (so far) having considered the issue important enough to do a cross-department prioritization. Copyright and other forms of Industrial Protectionism typically reside in a Department of Commerce, and basic civil liberties like privacy typically reside in a Department of Justice or similar.

So there are two sides of a scale here that are utterly, completely irreconcilable, and society must choose one of them and abandon the other. On one side of the scale is private correspondence at the conceptual level, or at least whenever it happens in a digital environment, which is increasingly all correspondence there is. On the same side, as a consequence of the right to private correspondence, are also freedoms of the press and freedoms of assembly and opinion. Meanwhile, on the other side of that scale, we find a distribution monopoly for an entertainment industry — a monopoly which enables a few centralized business models for entertainment and arts, but isn’t remotely required for the vast majority of the conceivable entertainment business models. When valuing these two sides of our scale against each other, which side has more weight and importance to society as a whole? It should not even be a matter of discussion.

Of course, there is also the issue of a law that cannot or must not be enforced. Some people claim that there’s nothing wrong with the law, just with its enforcement. But the existence of an unenforced law is not justified the first place, and serves only to undermine respect for the legal system as a whole. After all, the text of law cannot be separated from its enforcement in practice.

There are many other civil liberties that are grounded in privacy, such as freedoms of speech, expression, and assembly; also the freedom of the press. These are also at stake. The Freenet philosophy is unusually clear about this:

“Of course much of Freenet’s publicity has centered around the issue of copyright, and thus I will speak to it briefly. The core problem with copyright is that enforcement of it requires monitoring of communications, and you cannot be guaranteed free speech if someone is monitoring everything you say. This is important, most people fail to see or address this point when debating the issue of copyright, so let me make it clear: You cannot guarantee freedom of speech and enforce copyright law. It is for this reason that Freenet, a system designed to protect Freedom of Speech, must prevent enforcement of copyright.” — Freenet Project philosophy

On the other hand, once you acknowledge that privacy must take priority over today’s distribution monopoly enforcement, you can instead reap all the positive rewards of every single human being having 24-by-7 access to all of humanity’s collective knowledge and culture. Just as when libraries appeared, the effect of this is not to be taken lightly. Moreover, all the tools for this effect have already been rolled out, all the infrastructure built, everybody already trained. All we need to do is to remove the ban on using it.

In the meantime, we’re passionate about privacy and won’t let obsolete concepts come in the way of modern liberty. Your privacy ultimately remains your own responsibility.

About Rick Falkvinge

Rick is Head of Privacy at Private Internet Access. He is also the founder of the first Pirate Party and is a political evangelist, traveling around Europe and the world to talk and write about ideas of a sensible information policy. Additionally, he has a tech entrepreneur background and loves good whisky and fast motorcycles.


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2 Comments

  1. Antimon555

    I agree on the reasoning, but why hasn’t this been a “problem” in the analog world? I’m sure millions of home-recorded compact cassettes and CD:s have circulated through the physical mail back in their golden days, why didn’t the copyright industry demand that letters be checked?

    9 months ago
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    1. Skeptical

      Probably because nowadays they know they can get a lot more from the internet than they could from going through the mail by hand. Sick.

      9 months ago
      Reply