First of all, let’s get one thing straight. Let’s make it perfectly clear. Copyright is a restriction on the fundamental right of free speech.

Unspool the word copyright into the sentence it represents at its fundamental level and just look at it: “You can’t say that because I am the person who gets to say that. I said it first.”

Let those words sink in for a moment and try to understand why it is that plagiarism, as it stands, is not exactly a crime. Imagine that the words in question might be an important fact impacting public safety. Imagine that the words could be an unpopular but strongly held opinion. How tight a grip do you want to have around people’s throats in those situations? And those are just a couple off the top of my head.

But I’m going to give you a new example to play with. Here is my newly created unpublished poem, “Toulouse-Lautrec”:



          is a


… and that’s (C) me, Laszlo Xalieri, right this very instant. ALL RIGHTS RESERVED (C) 2012. Explicitly stated.

From this instant on, I can write some fairly unclever software to do a search on Google and Bing and, hell, it looks like Lycos is still a going concern, so there too, and a few other places just to be frighteningly thorough, and have automatically generated DMCA take-down notices posted in comments where allowed, forwarded to page owners, site webmasters, ISPs and carriers, and mailed to the addresses of administrators and technical contacts for domains, etc., for every URL that seems to yield the result.

Also I have a bit of a conundrum. Google, et al., can produce the entire text as a search result, so they get one too. Except if I do that, I can’t find my plagiarist perps to prosecute. That’s a tough one. I’ll have to come back to that.

As a further point of note, wheeliemabobbin is a terribly obscene word, defined as “a terribly obscene word that can never be weakened by overuse or twisted into a lighthearted term of endearment, only barely permissible in serious works of art with specific cultural relevance or academic application because if it is ever expressed directly it is automatically Hate Speech and/or Fightin’ Words.”

Now let’s say you actually feel that Toulouse-Lautrec is a wheeliemabobbin. And you feel it strongly. There is no more straightforward way to express the opinion than the sentence that I have, with much labor and aesthetic care, arranged into the components of my beautiful poem that, for it to have the impact that I desire, no one is permitted to see until it appears in 2012’s third quarterly edition of Hate Speech Quarterly Literary Journal, to which I have sold six-month exclusive English-language/North American copyright and two-year non-exclusive digital syndication so they can feature it on their website, scheduled for first publication in print in Late August. My copyright allows me to obsessively squash your opinion with the might of all of the lawyers I can bring to bear, and, upon publication, the revered HSQ can join in the fight with presumably even bigger guns. They can possibly even join in early to protect the value of their $35 annual subscriptions.

How screwed up is that?

If you can point to a constitutional right, to a Fair Use clause, or, well, whatever point of precedent that favors your case, you can try to fight. But I can punish you with the fight itself, with making you find and hire your own expensive lawyers or pro bono advocates from any of a number of fine organizations, and make you pit your right to hold your repugnant opinion against my right to earn $50 for selling a crappy poem (and also six free issues with my poem in it and a promise of pro-rated residuals with all of the other creators featured in that issue if print sales top 10,000 copies or site revenues top $50,000 any month in ad sales when my content is featured) in the sawdust-choked cock-fighting pits of civil law.

Welcome to America, where the most expensive and best-fed steroid-hopped cocks always win. That’s just one of the ways justice is for sale in our fine country. There are many others.

There are no real guidelines for protecting a valid expression of opinion. There is just an overworked judge somewhere, exhausted by hypertension and the recent diagnosis of a suspicious lump, going with his gut on whether to throw out a case he personally thinks is a wheeliemabobbin in a long string of wheeliemabobbins that just won’t go away. If you’re lucky.

Imagine how it must go if content publishers have nearly unlimited amounts of money on hand to tip the scales.

The DMCA is a travesty in a setup where we desperately try to hold to the ancient principles of due process and the assumption of innocence, suppressing your right to voice an opinion and earn money on your own hard work without a judge telling you you have to stop. Malicious prosecution is rife and goes unprosecuted. SOPA/PIPA are horrendous, for the same reason. So is the secretly developed and lobbyist-bribe-greased ACTA. On the surface those things merely allegedly protect the profit-streams of content publishers, but actually it only serves to make the law firms with the contracts for prosecuting alleged copyright violations extremely wealthy so they can pay lobbyists even more to grease the tracks. Where lobbying is legal, it’s just a huge positive feedback loop dumping money on the side of the scale where things are already hugely out of balance. You can’t tell me that’s right.

Copyright is important — and I say this as a content creator — but it clearly has to be secondary to the right of free speech and other matters of public concern. It is critical that prosecution of copyright adhere to the principles of due process. It is tremendously important that we work hard to shut down every instance where justice is for sale.

It’s clear that we need to address the issue of copyright from scratch, especially since our society trades so heavily on free information exchange, so that every last person retains their fundamental rights. And I say that as a person with rights, one of which is the right of free speech.


January 28, 2012 · by xalieri · Posted in Everything Else  


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