Rasmus Fleischer's essay over at Cato Unbound on copyright is a little muddled by virtue of its ambitious scope, but it's good and you should read it. My favorite part:

A very condensed version of copyright history could look like this: texts (1800), works (1900), tools (2000). Originally the law was designed to regulate the use of one machine only: the printing press. It concerned the reproduction of texts, printed matter, without interfering with their subsequent uses. Roughly around 1900, however, copyright law was drastically extended to cover works, independent of any specific medium. This opened up the field for collective rights management organizations, which since have been setting fixed prices on performance and broadcasting licenses. Under their direction, very specific copyright customs developed for each new medium: cinema, gramophone, radio, and so forth. This differentiation was undermined by the emergence of the Internet, and since about the year 2000 copyright law has been pushed in a new direction, regulating access to tools in a way much more arbitrary than anyone in the pre-digital age could have imagined.

...

For regulations like these to be effective, it is necessary also to censor the sharing of skills that potentially can be useful for coding illegal software. The circle of prohibition grows still larger: Acoustic fingerprinting technologies, which have nothing copyright-infringing to them, but which can be used for the same feared identification of individual tracks, must probably also be restricted.

This domino effect captures the essence of copyright maximalism: Every broken regulation brings a cry for at least one new regulation even more sweepingly worded than the last. Copyright law in the 21st century tends to be less concerned about concrete cases of infringement, and more about criminalizing entire technologies because of their potential uses.

I like the texts/works/tools breakdown, but I suspect this last phase is mostly a temporary blip rather than a fundamental legislative shift. The content industry, increasingly cognizant of the inescapable technological truths Fleischer details, is thrashing around like a robot moaning "DOES NOT COMPUTE" over a logical paradox. The DMCA and WIPO's efforts to ban "circumvention devices" no longer seem to me to be a credible long-term threat. For one thing, noteworthy political opposition has mobilized in response. For another, such regulations pose a real danger to technological advancement, and thereby corporate bottom lines. If a legislative battle is between the media companies and private citizens, the media companies are a pretty safe bet. If it's between the media companies and a score of other industries, the odds shift — and I think that's exactly what has begun to happen.

Or maybe my optimism is just born of boredom over endlessly reviewing the same inescapable logic. At this point it's clear: the only way we're going to return to a scarcity-based market for mass-appeal IP is if there's some sort of global cataclysm. Which I'm not ruling out! (But which most sane people do.)

Failing that, I agree with pretty much all of Fleischer's points — except for the one about Google. I know the people behind the Pirate Bay (with which Fleischer is affiliated) don't think what they're doing is criminal. But from their choice of name — and Fleischer's essay — it's clear that they understand the confrontational, norm-busting nature of their work. They're unapologetic revolutionaries, whereas Google makes a good-faith effort to play by the rules. That's a real difference from both a legal and PR standpoint. It's dishonest to the point of counterproductivity to pretend that it's all the same.

Anyway, from what I can infer from the Cato website, Tim will have a response up later this week, which I'm looking forward to.