Back in September, my Boing Boing co-editor Xeni Jardin blogged a photo of a Japanese Ralph Lauren store display featuring model Filippa Hamilton with her proportions digitally altered so that "her head was bigger than her pelvis". Xeni posted the image as a brief and pithy comment on the unrealistic body image conveyed by couture advertising – in other words, she posted it as commentary, and thus fell into one of the copyright exemptions that Americans call "fair use" and others call "fair dealing".
Ralph Lauren – as with many corporate giants – would prefer not to be criticised in public, so his lawyers sent our internet service provider (the Canadian company Priority CoLo) a legal threat, averring that our use was a violation of copyright law and demanding that Priority CoLo remove our post forthwith.
The story has a happy ending: Priority CoLo is a wonderful ISP and don't take these legal notices at face value. Instead, they talk them over with us, and since we all agreed that Lauren's legal analysis didn't pass the giggle test, we decided to respond by posting the notice and making fun of Lauren's insecurity and legal bullying. The story resonated with the public – who are tired of legal bullying from the corporate world – and was picked up by major news outlets around the world. Lauren apologised for his photoshoppery (but not for the spurious legal threat – and the model was fired for not being skeletal enough to appear in Lauren's campaigns). Lauren learned a thing or two about the Streisand Effect, wherein an attempt to suppress information makes the information spread more widely.
And I acquired a renewed appreciation for our ISP, Priority CoLo. You see, we weren't the only ones to post the Lauren ad, and we weren't the only ones to get a legal threat. But we were the only ones whose ISP opted to ignore the notice, despite its obvious legal flaws. Other sites, such as Photoshop Disasters, found their copies of the image were removed by their ISP, who couldn't spare the legal fees necessary to evaluate the flood of these notices they surely receive from all quarters.
It is the norm for ISPs to remove anything and everything on receipt of a legal notice. A group of Oxford internet researchers tried an experiment with this a few years ago, posting copies of John Stuart Mill's 1869 On Liberty on a variety of European ISPs' servers, and then sending notices to the ISPs purporting to come from Mill's copyright holders (Mill's copyrights are nonexistent, having returned to the public domain more than a century ago) and demanding that On Liberty be taken down. All but one of the ISPs in the study complied.
And why not? For a free hosting service such as Blogspot or YouTube or Flickr or Scribd, the lifetime profit from a given customer is likely exceeded by the cost of one call to a solicitor asking for advice on a takedown notice. Even paid services operate on such razor-thin margins that they're unlikely to seek legal advice in the face of most threats.
So, the notice-and-takedown system – a feature of copyright law the world round, thanks to the World Intellectual Property Organization (WIPO) treaties that require it – has become an easily abused, cheap, and virtually risk-free way of effecting mass censorship on the flimsiest pretence. Everyone from the Church of Scientology to major fashion companies avail themselves of this convenient system for making critics vanish.
Of course, we predicted this outcome in 1995, when the treaties were being negotiated. A system that removes checks and balances, that requires no proof before action, that replaces judges and laws with a deepest-pockets-always-wins begs to be abused. As Anton Chekhov wrote: "If you say in the first chapter that there is a rifle hanging on the wall, in the second or third chapter it absolutely must go off." Leaving naked power without consequence lying around where anyone can find it and use it is an invitation to an abuse of that power.
It's been 13 years since the WIPO treaties passed in 1996, and we have an abundance of evidence to support Chekhov, and yet we continue to repeat the notice-and-takedown mistake. Today, the entertainment industry is bent on establishing a "three strikes" system, with the enthusiastic support of Peter Mandelson, whereby someone who is accused of three copyright violations would lose his internet connection (as would all the household members who shared that connection). Even if we accept the entertainment industry's assurances that they would never abuse this power (admittedly, you'd have to be a fool to believe this), what about everyone else? What about the Ralph Laurens of this world, or the mad-dog racists who'd love to have their critics vanish from the debate, or the school bullies who want to add new torments to their victims' lives?
Yes, ISPs might get the right to investigate claims under Mandelson's anti-internet plan, but will they? Or will they act like ISPs act today when it comes to notice and takedown?
Mandelson's proposal is beyond credulous, beyond farcical. It is profoundly ignorant of the facts in evidence about how these extrajudicial self-help measures perform in the real world. It is an embarrassment for Britain, and for Labour.