My new Locus column, A New Deal for Copyright, summarizes the argument in my book Information Doesn’t Want to Be Free, and proposes a set of policy changes we could make that would help artists make money in the Internet age while decoupling copyright from Internet surveillance and censorship.
There are two small policy interventions that would make a huge difference to the balance of commercial power in the arts, while safeguarding human rights and civil liberties.
1. Reform DRM law.
It should never be a crime to:
* Report a vulnerability in a DRM;
* Remove DRM to accomplish a lawful purpose.
With this simple reform, DRM would no longer turn our devices into long-lived reservoirs of pathogens (because bugs could be reported as soon as they were discovered), and would no longer give the whip-hand over publishing to tech companies (because removing DRM to do something legal, like moving a book between two different readers, would be likewise legal).
2. Reform intermediary liability.
* The DMCA “safe harbor” should require submission of evidence that the identified works are indeed infringing;
* If you file a DMCA takedown notice that materially misrepresents the facts as you know them or should have known them, you should be liable to stiff, exemplary statutory damages, with both the intermediary and the creator of the censored work having a cause of action against you, and with the courts having the power to award costs to the victims’ lawyers.
By ensuring a minimum standard of care for censorship demands, and penalties for abuse, the practice of carelessly sending millions of sloppily compiled takedowns would be stopped dead (last year, Fox perjured itself and had copies of my novel Homeland removed from sites that were authorized to host them, because it couldn’t be bothered to distinguish my novel from its TV show). Likewise, penalties for abuse with a loser-pays system of fees would give the victims of malicious censorship attempts grounds for punishing the wrongdoers who make a mockery of out the copyright holder’s toolkit to silence their opponents.
But so long as we’re making a wish-list, here’s the big policy change that would make all this stuff much less fraught: STOP APPLYING COPYRIGHT TO ANYONE EXCEPT THE ENTERTAINMENT INDUSTRY.