I have been known to rant about the utter insanity of copyright enforcement/anti-piracy action, but it’s been a while. The past few days have riled me right back up. Between Aaron Swartz’s suicide, the ridiculous new ‘6 strikes’ legislation about to go into effect in the US, and the fact that virtually every music video anyone links to on YouTube is blocked by GEMA (more on them below), and of course Lionsgate’s blatant disregard for fair use, I don’t know whether to shake my fist at the heavens or hang my head in despair.  This prosecution/persecution is such a tragic waste of time, money and talent, and the human victim tally is growing. And while yes, progress has been made (or at least crisis averted, in the case of SOPA), rights holders continue to fight their corner exactly as before, blind to both the damage they are doing and the opportunities they’re missing.

Germany, as it happens, is full of great examples of how not to do things.

I live (partly) in Berlin. A guy I know manages several holiday flats around the city. All of these flats have internet connections, which accounts are in his name. About a year and a half ago, he got a letter from a law firm notifying him that he owed a €2000 fine. One of the guests in one of his flats had downloaded a torrent of a major Hollywood film, and he was being held liable. He tried fighting it, to no avail. He ended up paying the fine. He also took further precautions – basically everything that can be done with standard (affordable) consumer-grade equipment. Less than six months later, it happened again. This time, the fine was €5000. The fact is, there’s not much that one can do with a normal router that can’t be circumvented in a matter of minutes by someone who knows what they’re doing.

So what’s a guy to do? Not offering WiFi would damage his business; buying professional grade kit for each of the flats would be less costly than the fines but still prohibitively expensive; trying to pass the fines through to the offenders was impossible. He reached out to his ISP for help. They politely told him there was nothing they could do. Last I heard, he was still fighting.

Your response to this story might be, “those assholes who downloaded the content should have to pay the fines. Thieves should be punished!” However, consider this: in Germany, if you want to pay to watch a Hollywood film in its original language online, legally, you can’t. Yes, you heard me: for most Hollywood releases, there are no legal options for OV online viewing. And even if you can find a DVD rental place, laptop DVD players are routinely region-locked, so if you’re not from the EU, you still might be screwed.

Does this strike anyone else as a problem?

At the same time, we’ve got this great group called GEMA (Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte). Their job is to police the internets, blocking any musical content that hasn’t been rights-cleared for the German market. Ostensibly this is for the good of the artists who create the music, but functionally it just prevents those artists’ work from being heard (especially on YouTube). It also occasionally blocks video made by ordinary people for and with their friends, if said video happens to include a song that GEMA decides we’re not allowed to listen to.

I am all for people getting paid for the things they create. My problem is that all this nonsense isn’t really helping those people – if it’s helping anyone (which is arguable), it’s major labels and studios. Copyright law is a complex area, it’s true, and there are loads of questions to explore and answer to get it to the point where it’s fit for the 21st century, but there are some pretty clear places we could start. How about taking the money that’s currently being spent on hunting down and prosecuting illegal downloaders, and using it to make content legally available to everyone? I guarantee that will be a more sustainable (not to mention far less depressing) revenue stream.

Making “examples” of ordinary citizens – whether they’re activists like Swartz or everyday guys like my friend – is neither humane nor effective. Let’s be human about this, shall we? Please?