You're right about the brainwashing.
Ms Dale Cendali can look forward to my rebuttal of her unfounded supposition that the US constitution granted people the right to a monopoly:
"The constitutional wisdom in granting creators exclusive rights in order to encourage innovation has resoundingly proved correct"
First I should note that that although the current copyright regime is certainly destructive, I have not seen sufficient evidence to convince me there can be no workable version.
That said, I don't think we are losing.
If you focus on politics and law, this certainly seems to be the case. But power and reason don't touch heart of the matter. This is not only a war about culture: it is a war of culture.
We lost the public domain because it had no independent existence. It was merely the negative image of copyright. It had no one to care about it, possess it, take care of it - or fight for it. This is no longer the case. We have a whole generation that identifies with a more open understanding of culture. It is theirs because they make it theirs (in a very real way they contribute to it). They may not have the logic to support this, but it is woven into the everyday fabric of their lives. It is essential to them as a provider of meaning, a source of identity, and a medium for collaboration and community.
Ten years ago, this debate raged in obscurity. Today it has exploded onto the front pages of newspapers. The wording of the Economist's motion is a victory in itself. The copyfight is becoming a brand. Filesharers are accused of taking something for nothing; right or wrong, what this economic view misses is the passion many of them feel for the music, television, and so on that they share and transform. They are invested in it. I do not think the passion in the copyfight has much to do with saving a few dollars on music or TV shows. I think it has a lot to do about how people relate to their friends and their families: with the barriers being drawn between them and the things and people they care about. It is as though our opponents are trying to outlaw rock ‘n roll.
If we fight this conflict as a rational debate about efficiency, we will lose. Opposing interests will trump reason - and the fight will be on their ground (the logic of incentives, however wrong). But if we choose our own ground - the ground of identity, of community, of what culture really is and is about - I think we will win. It might take a generation, but we will win.
Our reason is still needed: to make the unthinkable thinkable, as intellectual tools to resist the brainwashing. I keep in mind that Keynes quote about the ideas of dead economists. The idea and experience of active, exuberant participation in culture are so much stronger than the sterility of forced passivity. Every day that experience continues, every day the extreme laws fail is a day we increase our numbers.
You made a very interesting point that might well be overlooked in the debates over copyright. I repeat that point here:
If we fight this conflict as a rational debate about efficiency, we will lose.
One of the things I find fascinating regarding the debate over copyright is the relative complexity of the system and the uncertainty regarding whether something is copyrighted, or not. If we look at the other elements of intellectual property, it is generally easy (though some challenge the ease of understanding English when it is written in a patent or the "difficulty" of searching for patents using the numerous free tools on the internet - but that is a separate matter) to at least know where to find the answers to what the scope of coverage is.
The problem, in my mind, is that the debate over efficiency has two aspects. Defenders of the current copyright system argue for the efficiency of their own business and interests, which is understandable. However, the efficiency of society is more than a little hindered by the current system. Even without accusations of direct copying, there are still plenty of complaints regarding fair use and small portions of works - unintentionally or not, and even though independent creation is permitted under copyright.
The current copyright system has multiple issues that are not being addressed:
- The lifetime of the system seems to be excessive given the intentions of our founders.
- There is no system to know when a copyright is in force.
- There is no system to know when a work is an "orphan work."
- Independent creation is challenged as copyright infringement too often in court.
Of course, there are the arguments, frequently discussed on Techdirt, that copyright hinders "innovation," when "innovation" is narrowly defined as bringing something to market desirable by customers. However, these arguments are less persuasive from an economic viewpoint because they value the contribution of transformers over the value of the creators, just as the current system values the contribution of creators over the work of transformers. Such arguments are non-persuasive because in an equitable system there would be a balance between both, and there has yet to be a system, copyright included, that provides such a balance.
I am sure there are other arguments that have similar benefits and weaknesses. However, the real heart of the copyright debate should not be all the side issues, but should be the balance needed to incentivize creators to create while providing improved efficiency to society. That efficiency needs to consider creation efficiency as well as transformation efficiency. Thus far, the proposals presented with respect to copyright fail to provide a balance between the interests of creators and transformers. Until a proposal is presented which is clearly fair to both, the copyright issue will continue to be debated over fairness of the current system, which will focus on fairness to the entities that benefit from the current system the most rather than fairness to society as a whole from a proper balance of interests.
A proposal has been presented which is fair to both: abolish copyright.
I finally got round to that rebuttal