There’s a difference between something being right and something being lawful. Many have made the argument that violating copyright laws is the right thing to do in many circumstances for various reasons but rarely do you hear the argument that copyright law has become unenforceable and irrelevant.

I say this because every single U.S. citizen has violated copyright and all of them will do so again. Even the most pro-copyright bulwark will commit copyright infringement several times this year and they probably won’t even realize it. Yet, despite these facts copyright law still stands unchanged and millions still believe it to be something it is not: Necessary, useful, or both.

The most compelling argument I’ve ever heard that copyright law is useful is that it protects the Linux kernel (and open source software in general) from being used in ways that violate the license (i.e. distributing your own customized version of Linux without releasing the source code). This argument is flawed because copyright is a mandatory license that Linux and Linux distributors must adhere to whereas the distribution license (the GPL) is actually a contract.

If copyright went away tomorrow contract law would still exist and the author of a work would still be able to take advantage of it. If they released their work without a license it would immediately fall into the public domain. This is actually the way it was envisioned to work with the exception that if you wanted you could opt-in to the copyright program by registering your work with the copyright office. This would entitle you to an exclusive right to distribute your work however you saw fit for 25 years. If you were still alive after that period (which was rare at the time) you could re-register for another 25.

By requiring creators to opt-in to the system the government solved two problems at once: 1) Works that had no perceived economic value would be public domain and 2) it provided a central place where people could figure out if something was copyrighted or not. Without a central location to check copyrights it is damned near impossible to determine if a work is being distributed without permission.

Copyright law is not necessary. A central place to look up distribution licenses is; for the sole reason that if a dispute occurs over whether or not a work is in the public domain you will have a place where you can look up the license. Disputes such as these can be settled in courts without statutory damages such as ”$250,000 per violation” (which is what the law lists right now—talk about the punishment not fitting the crime!).

Copyright law has also become irrelevant. Every time someone sings the “Happy Birthday” song without paying ASCAP they have violated copyright. I kid you not! How many times a day is that song sung? Tens of thousands? Hundreds of thousands? Millions? ASCAP could claim they’ve lost billions to verbal piracy!

Every day trillions of files are traded illegally on the Internet. Yet only a fraction of a percentage of these will ever be litigated against. Not only that, but the only reason why litigation is even on the table as an option is because of the ridiculous damages dictated by law ($250,000 per birthday song, per singer). Would the MPAA or RIAA sue someone if the damages were something a bit more reasonable such as, oh, the actual cost of the work times ten (say, $150 for a pirated movie or CD… as determined by a jury)? Hell no. It would cost more than that just to show up in court.

It would be worth it to take people to court who profit from piracy. The more infringement you rack up the more likely a jury is to award some serious damages. It is important to note, however, that because of the nature of the Internet, copying things is far too easy, far too anonymous, and far too global for accountability. At least not for intangible, low-value goods such as digital movies, digital songs, or even digital books. Real accountability only works for physical equivalents: DVDs, CDs, and printed books. These things are actually traceable and measurable (in a practical way). Transactions between file sharers on the Internet are not—and furthermore, it is difficult to actually prove a file was shared in the first place.

It is wildly naive at this point to think that copyright in a digital age is enforceable. Anything that can be represented as 1s and 0s can be copied effortlessly and (reasonably) anonymously over the Internet. Copyright law in its current form doesn’t benefit the public. It only serves (admittedly large and powerful) industries that have failing business models. We need to get rid of it and replace it with something else entirely. Here’s what I’d recommend:

• Expiration after distribution stops. After a work is no longer being distributed or sold in some way it should enter the public domain. I don’t care if it happens in 2 years: If Disney stops selling Snow White it should enter the public domain. A grace time of 1 year would be acceptable. The moment a work stops being distributed by its owner/creator it serves no benefit to the public for that work to be locked away in copyright jail. Works still being distributed must be both registered at some central government office and be published for sale and/or licensing in public.
• Expiration upon the death of the author. The author’s children will reap the benefits from their parent’s work in the form of their inheritance. No one should have to pay an author’s child for the privilege of using their parent’s (or grandparent’s) creation. A 10-year “family ownership” from the date of the work’s publishing would be acceptable in the event that a creator dies before they can reap the rewards of their creation.

• Works owned by corporations should have mandatory expiration of 10 years. If a business can’t recoup the cost of a work by then they are not serving the public; either by keeping a work locked away in their portfolio or by the fact that such poorly-managed businesses are not great for the economy.

  That is all that is necessary for a copyright-like law in the age of the Internet. Things like Linux will still be able to benefit from distribution licenses and corporations can make even more lucrative and restrictive contracts than they currently get now with copyright (IMHO, that would be bad for business but hey, it would be their choice!). Enforcement of these laws would fall into the hands of the owners of the works through the courts—just as it does today. Except that regular citizens would be able to use things like Bittorrent to copy works with a more realistic litigation risk (which is very, very minimal regardless).

  Copyright in its current form is not realistic and doesn’t benefit the public. It cannot be properly enforced and its theoretical implementation is not even good for society (lasting for hundreds of years, stupidly large fines, no way to verify ownership, etc). We should change it so that it has the potential to benefit the public and the potential to be accepted by the public. The current form of copyright has neither.