In a fuming blog article, David Newhoff claims that non-infringing, legal uses of copyrighted works – that is, of people’s own property – are like “aggravated rape” when made without unneeded consent of the monopoly holder. Newhoff tries to scold the crucial concept of “fair use” in copyright monopoly doctrine, the concept which explicitly says that some usages are not covered by the monopoly and therefore not up to the monopoly holder, and ends saying that if you don’t grant permission and can’t set limits, it’s “aggravated rape”. Just when you think copyright monopoly zealots can’t sink any lower, they surprise you with one of the few creativities they’ve ever shown.
The copyright monopoly, which is not property but a form of Industrial Protectionism (IP) and therefore a limitation on property rights, is subject to a constant barrage of attempted re-branding to “property” by monopolists who want to strengthen their monopoly. In many regards, copyright monopoly punditry are like religious fanatics in this regard – the idea that their monopoly is just harmful is so hard to digest, that facts and empirical observations just be damned.
But in this article, which is about “fair use”, meaning exceptions to the copyright monopoly where it just doesn’t apply – and therefore about when the copyright monopoly holder can’t set limits and doesn’t get to grant or deny permission over non-infringing uses of a creative work, Newhoff really sets a new limbo bar:
Do note here that Newhoff is not saying that copyright monopoly infringement is like aggravated rape. That would be bad enough. Newhoff is saying that taking actions that fall outside of the scope of the monopoly, without treating them as though they were monopolized and restricted anyway, i.e. doing something fully legal with your own property, is like aggravated rape.
This goes far, far beyond the usual silliness of claiming that copyright monopoly infringement “is stealing” (which, as a reminder, the U.S. Supreme Court has handed down a firm judgment saying it isn’t in any way, shape, or form).
Civil liberties activists have sometimes been poking fun at the excessive rhetoric from copyright monopolists, saying it’s not stealing but rather arson, or maybe kidnapping. In a brilliant application of Poe’s Law, which says good satire can’t be reliably distinguished from zealot fundamentalism, it seems liberties activists just can’t possibly keep up with the increasingly ridiculous – and audacious, not to mention outright revolting – things asserted by copyright monopolists.