Threshold of the Lift Hill

The presumptive, lumpen fantasm of the internet - typically referred to as "we" - did it, folks: SOPA and PIPA are D.O.A. Following the massive online blackout that terrorized digital natives and the late majority alike, the legislative tide has swung overwhelmingly against the inoperable & draconian bills. Let the celebratory fist-pumping & occasionally smug self-congratulation begin!

But hang on a moment. For such a media-savvy throng, the triumphal netizens appear to be totally ignorant of the classic horror movie narrative dynamic. Want to know what happens next? The moment that the protagonist relaxes, having apparently dispatched the villain, said incarnation of evil is hideously resurrected, more powerful than ever before, and attacks anew!

Thus it was that the FBI shut down Megaupload yesterday and has arrested four of seven people (including the site's founder) indicted for copyright infringement and conspiracy. Almost immediately, Anonymous went beserk with retaliatory shut-downs of just about any website operated by an acronym: the DOJ, the FBI, the MPAA, RIAA, UMG, EMI, WMG, and both the American & French copyright authorities. It appears to have been Anonymous' largest online attack ever.

But believe it or not, Anonymous are late to the party. The Megaupload raid is actually the second major development regarding a copyright-related international incursion by an American agency within the past week. Last Friday, a British court decided that British undergrad Richard O'Dwyer may be extradited to the U.S. where he faces a potential 10-year prison sentence:

US customs agents are seeking his prosecution over a website O'Dwyer set up when he was 19 called TVShack, and ran until his arrest last year. This provided links to other sites hosting pirated versions of TV shows and film. It was so popular that the student earned £15,000 per month in advertising revenue, US prosecutors claim.

O'Dwyer's lawyers said the site was little different from a search engine like Google and was thus most likely not illegal under UK law.

However, Purdy noted that visitors to the site had to register, and could post their own links. He ruled that the case met the test of so-called dual liability, also dismissing arguments that extradition would be a breach of O'Dwyer's human rights.

The real story, however, comes at the tail end of the article:

Separately, the US Immigration and Customs Enforcement (ICE) agency has faced criticism for perceived over-reach, targeting websites which, like TVShack – which had servers in the Netherlands – have no direct link to America.

In July the agency's assistant deputy director told the Guardian that ICE would now actively pursue websites similar to TVShack even if their only connection to the US was a website address ending in .com or .net. Such suffixes are routed through Verisign, an internet infrastructure company based in Virginia, which the agency believes is sufficient to seek a US prosecution.

Read that last paragraph again: any website registered as either .com or .net is subject to the full extent of American copyright law because those suffixes are routed through Virginia. A website's administrators, staff, servers, even users & advertisers can all be outside of America and it doesn't matter because the suffix alone is sufficient ground for prosecution. Hell, compared to the O'Dwyer case, shutting down Megaupload must have been a slam-dunk since Megaupload actually maintains servers on American soil.

By the above legal logic, the government has the authority to shutter any file host, any private web host, any website to which material can be uploaded of which users claim ownership - in other words, everything from YouTube to Flickr, from Facebook to 4chan, from Wordpress to BoingBoing to Blogger to Twitter. This is strictly according to current law regarding copyright & intellectual property. It doesn't matter that neither SOPA nor PIPA will pass, because clearly the government doesn't need them.

Also noteworthy is that, on Wednesday, the U.S. Supreme Court ruled that Congress had the authority to remove works from the public domain. The real shocker of the 6-2 decision is that the dissenting justices, who felt the ruling was against the public interest as it discouraged the spread of knowledge, were Stephen Breyer and Samuel Alito. Yeah, Alito - appointed by Bush, condemned by the ACLU, guardian of Guantanamo and concurrent of Citizens United. Since when does Alito make decisions that would prohibit further bloating of corporate power & profit?

Anyway, the Golan V. Holder ruling allows U.S. policy to comport with the Berne Convention, a European copyright treaty first introduced way back in 1886. It can hardly be argued that the Berne Convention has been legal strangulation depriving the French, Germans, Italians, or Swedes of easy access to each other's cultural wealth. This has much to do with how liberal the Convention's language is, especially within Article 2.3:

Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work.

However, the main factor at work is the massive discrepancy between how Europe and America value the arts. Despite how fundamental art is to cultural identity, America has evermore lost sight of art's symbolic value and assigns it exchange value accordingly only to its sign value. This means that all art is subject to the whims of the market: the only art that deserves to survive is that which excites the market. This cultural Darwinism blends with a libertarian phobia of propaganda ("You know who else favoured public funding for the arts?") to ensure that the government does little, if anything, to support the arts.

This is why public-domain material is indispensable to the livelihood of orchestras, performers, publishers, and repertoire cinemas in America. Over half of the average nonprofit arts organization's income is contributed - 13% publicly and a whopping 43% privately. Art, therefore, is less a common good than a private investment, and its investors obviously want a handsome return. This means artists have to make a hit to reward their investors' faith; but creating something new is dangerous & uncharted territory, and few artists have the cash to license performances of established favourites. Therefore, it's back to scavenging the public domain for tried-and-true yet free-to-use materials. The public domain is what gives permission for orchestras to perform Stravinsky's Petruschka, for arthouse cinemas to screen Fritz Lang's Metropolis, and for publishers to print new editions of Dracula, Ulysses, or Pride and Prejudice.

So how can European artists continue to perform, screen, and publish if all the material is still protected under the Berne Convention? Public funding. European governments understand the immaterial worth of art in daily life, and so there are subsidies and grants to ensure the public's easy access & steady engagement with their and others' culture. Were similar funding available in America, then orchestras could afford to license Prokofiev's Peter and the Wolf if its copyright were renewed. But as it stands, the social dimension of art is a communist conspiracy and art is only worth something if it's for sale.

Finally, on a more prosaic note, now that Megaupload's been deep-six'd, all the various MP3 mixes I've uploaded over that past few years have been likewise erased. Would anyone like them back up? Are there any special requests for a particular mix that's missing? Does anyone give a toss?