Saturday, November 06, 2004

Laws Should Serve Us

Well they should. Why else bother with them? But it seems clear that some of our current laws do more to benefit corporations than the common good, as highlighted by a couple of excellent recent posts from Boing Boing.

First up, on brands and trademarks:
It used to be that trademarks were intended to protect "consumers" (that's us) from being tricked into buying goods under false pretenses. If it said "Coca-Cola" on the can, there had better be Coke inside, and not Pepsi or Crazy-Bob's-Discount-House-of-Soda brand. When a competitor of Coke's shipped a bottle of stuff that was misleadingly packaged or labelled, Coke's authority to sue its competition derived from its need to protect us, not its bottom line. It didn't get to sue because it owned Coca-Cola, but because it was acting as a proxy for its customers, who were being decieved by con-artists who mislabelled their goods.

That meant that Coke's trademarks couldn't be used to go after anyone except competitors and then only when they were deceiving the public. If I started the Coca-Cola Brake and Lube Shop and there was no likelihood that a customer of mine would spend his money at my premises because they thought the fine quality of Coca-Cola Beverages would be reflected in my workmanship, then I was OK.
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But as time went by, trademarks stopped being about us and started being the embodiment of brands (which, as Surowiecki points out, are on the wane and were probably never as important as we thought to begin with).

This meant that trademarks weren't just things that helped the public know what they were buying -- they are a kind of pseudo-property. Pseudo-property that could be defended on the basis that it "belongs" to a company, who need to be protected from having the value of their marks "diluted" or "tarnished."
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All these new and exciting uses of trademarks -- shutting up critics, blocking new entrants into the market, and controlling the speech of private individuals -- are justified by the importance of brands.

But if brands just aren't that valuable, maybe it's time to rethink this stuff.

And then we have internet copyright laws:
Copyright is a system for regulating technology -- it regulates technologies used to make and distribute copies. We have lots of technology regulation in the world: there are rules that govern the operation of automobiles and rules that govern the marketing of electrical appliances. This isn't per se wrong.

But when the 20 horsepower locomotive was invented, the blacksmiths weren't able to successfully lobby to have 80 horseshoes welded to each engine, despite the rule that said that every "horse" used for transport needed four shoes. When you invent a railroad, you need railroad-rules for it, not horse-and-buggy rules. The facts that the railroad doesn't need shoes, or oats, or curry-combs don't reflect bugs in railroading: they are the features of railroading.

The Internet has one overarching feature that makes it superior to the technologies that preceded it: it can copy arbitrary blobs of data from one place to another at virtually no cost, in virutally no time, with virtually no control. This is not a bug. This is what the Internet is supposed to do.
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If Canada wants to "solve" the problems of the Internet, it should be looking to find "Internet-native" solutions. Canada's Internet laws should treat copying as a feature, not a bug. It should empirically evaluate which sectors are negatively impacted by file-sharing (mounting evidence suggests that almost none of the entertainment industry's woes can be blamed on the net) and then solve those industries' problems with blanket licenses and other tools that don't seek to regulate copying, something that's impossible to do without breaking the Internet.

Solutions that approach the Internet as a problem are no solutions at all.

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