Monday, February 21, 2011

WikiLeaks and US Government, Serial Violators of Copyright

by Vel Nirtist -

Since WikiLeaks and the American government are locked in a bitter and acrimonious struggle, a claim that the two share a common underlying mentality may appear bizarre.

And yet, such is indeed the case: what unites US government and the WikiLeaks is their attitude to copyright -- or, more precisely, their respective answer to the question "do the tools of exercising the copyright belong with the copyright itself, or can they be used separately?"

WikiLeaks clearly thinks that the latter is the case -- and uses a tool of copyright, the internet, even though it has no copyright to the material itself. In WikiLeaks mind, the copyright and the exercise of its tools do not belong together; one party can have the copyright to the material, yet a different party can wield the tools to publish this material.

Which is precisely the position of the US government.

Consider this scenario. You wrote a book, and therefore have the copyright to it -- the right to publish. Unwilling to go to a publisher because he will pocket two thirds of the profit, or because you have no connections, you decide to exercise your copyright and to publish your book yourself. How do you make the book trade -- the libraries and bookstores -- aware of your newly forthcoming book? For that, you need the government's help -- you need to add it to the Library of Congress' catalog that provides subject keywords by which your book can be found by the interested parties. This is the key tool of exercising your copyright, since it makes your book visible in the marketplace.

Yet, if you publish your book yourself, the government denies you the use of this catalog, this essential tool of the copyright -- even though you actually own the copyright itself. Only the bigger third-party publishers -- the middlemen -- are permitted its use, not the actual owners of copyright -- the authors. Clearly, the government believes that the copyright and its tools do not belong together -- and thus, it fully shares the WikiLeaks position and philosophy.

Taking the tools of the copyright away from the owners of the copyright locks the latter out of the mainstream marketplace of ideas, to the detriment of us all. If all could speak, rather than merely those with the connections, perhaps many problems that surfaced in government cables leaked by the WikiLeaks would have been solved through the free and public debate. But the government doesn't want an open debate, and denies the key to the marketplace of ideas -- the tools of copyright -- to wider public. WikiLeaks, equally cavalier about the copyright, and sharing with the government the premise that tools of copyright do not belong with the copyright itself, now gave the government a taste of its own medicine -- and published what the government -- the copyright owner -- does not want published.

So, evisceration of copyright turned out to be a double-edged sword. The very same principle of separating tools of the copyright from the copyright itself produced two very different outcomes: in one case, the authors who want their work present in the mainstream marketplace of ideas cannot place their books into it; yet in the other, the authors who would rather escape the limelight, now find themselves engulfed in it.

Solution? Let the copyright be copyright, so the tools of publishing (or of exercise of the copyright, which is the same) belong together. Hopefully, the court case to which I am a party -- Overview Books v. US -- will restore the normal meaning of the copyright as the author's right to publish without a middleman -- and his or her ability to utilize all requisite tools, including the government-maintained catalog.

While the government should be able to keep its secrets, the public should also be able to do what it needs to do to function properly -- to freely discuss whatever the members of the public want to discuss. Both needs will be served by restoring to the copyright its normal function -- that of allowing authors the right to present their works to the mainstream marketplace of ideas -- or to withhold it from the public scrutiny if they wish to do so.

Vel Nirtist writes on the role of religion in fostering terrorism. He is author of “The Pitfall of Truth: Holy War, its Rationale and Folly.” His blog is at

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