There’s something that annoys me about the behaviour of some (not all!) of the anti-copyright rent-a-mob found in many corners of the Internet that I can best explain through analogy.

Imagine you have a man who thinks that motorways (freeways) should have no speed limit, as used to be the case in the UK until 1965, and is still the case in Germany. And imagine that he then goes for a drive up the M1 at 85 mph per hour, 15 mph above the speed limit, and gets fined by the police.

I would expect his reaction to be something like:

“I accept that I broke the law. The limit is 70 and I was doing 85. But it’s a stupid law. The road was empty, the weather was good, my car is well-maintained and designed to drive fast, and I’m a skilled and careful driver. I don’t believe I was putting anyone in any danger.”

But I wouldn’t expect him to say something like: 

“I don’t understand why the police stopped me and fined me. I don’t see how they can argue that I was breaking any law. They said I was breaking the “speed limit” but surely the speed limit is the limit within which your speed is safe, and that is dependent on the weather conditions, the traffic conditions, the nature of the car, and the skill of the driver? Given those, I don’t think I was exceeding the limit, and the fact that they still fined me shows that this is a corrupt system!”

To which, of course, the answer is: “No, the limit is 70 mph and you were doing 85!” 

The point is that there is a very big distinction between what you think the law should be, and what the law is, and if you think a law is wrong or unfair it ill-serves your cause to totally blur the two. Now I know that copyright law is confusing, with many grey areas – but some people still manage to stand way beyond the grey and yet still argue that black is white or white black. If something is illegal and you don’t think it should be then complain about its illegality. Don’t instead try to argue that it’s legal, when it isn’t.

I came across a classic example of this yesterday, when reading some comments about the takedown of http://peanutweeter.com. This was a site that took Peanuts cartoons (minus the speech bubbles) and put in tweets that the author had come across (for humorous effect). Unfortunately/inevitably the lawyers for the Iconix Brand Group who own the Peanuts estate found out about it and sent in a DCMA takedown notice.

Many of the responses stated that this was an abuse of copyright law, in that PeanutTweeter should have been protected by two aspects of the “Fair Use” provision:

a) Because it’s parody.

b) Because it’s non-commercial.

Now I’m not a lawyer, but I’m pretty sure that neither of these apply.

Firstly, I’d say it’s not a parody. A parody is something that takes the piss out of the thing it is copying. While that might perhaps be true of Garfield Minus Garfield, I can’t see that it’s true here. It’s not taking the piss out of the Peanuts cartoons. It’s simply using the Peanuts cartoons as a building block of a new piece of art. That makes it a derivative work, and derivative works need the permission of both artists to make a copy. (If I take a painting you painted and digitally manipulate it in Photoshop, the resulting piece is part mine and part yours, and not 100% mine).

And secondly, it doesn’t matter how often people say “but they’re not making any money”, because that’s pretty much based on a myth. If you don’t have the right to copy something then you don’t have the right. Whether or not you intend to sell it is irrelevant. In fact, I believe that making copyright only apply to commercial copying is one of the things that Cory Doctorow et al want to change about copyright law.

Copyright is a hugely complex and emotive subject. I don’t myself fully agree with either copyright law as currently written nor how it is currently applied. And I very much enjoy things like Darth and Droids which are, strictly speaking, in breach of copyright. But I think the debate would be much more productive if people would distinguish between what is and what they think should be.

And at that point, having probably alienated half the Internet, I’ll shut up.  🙂