One thing I've never understood about some civil libertarians, such as the ones you find at EFF -- they are always utterly convinced that in any situation the government will do operate in the most base, amoral and abusive manner possible, except when it comes to coordinating payment for artists. In that scenario, the government is always seen as superior to the free market. The latest manifestation of this schizophrenia has been playing itself out on the Picker MobBlog, which includes a most unfortunate perception of the so-called darknet.

The term darknet, referring to a a collection of networks and technologies used to share digital content, has come into vogue recently, but reading the 2002 paper on the subject by four Microsoft researchers shows that the principles of the darknet -- copying and sharing -- have always been with us. Yet some, like EFF's Fred von Lohmann, seem to feel that the most prominent darknet presently -- distributed computing -- somehow is a life-altering, earthshaking development that means current laws and social norms can be abandoned. On the Picker MobBlog, he suggests those wishing to ensure lawful treatment of copyrighted works "in a Darknet reality" should throw up their hands. ("It is pointless to resist, my son... If only you knew the power of the Darknet.")

But we've had various manifestations of the darknet through the millennia, and our legal systems and moral customs ("Thou shalt not steal") have survived the same millennia. The CopyLeft likes to argue that no DRM is hack-proof. True. They argue that it only takes one copy on the darknet to feed the beast. Also true. But our copyright system isn't based on the assumption that there will be no violations. It assumes there will be some, but tries to provide legal means for content producers and the federal government to target abusers. Does the darknet make it harder to locate and target abusers? Yes. But that doesn't mean abandoning protection for creation.

Of course, von Lohmann is willing to junk our existing copyright system, but he argues there's a replacement. Instead of government going after bad guys for theft, that theft would be legalized, and government would instead license goods by mandate. No longer would an artist have the opportunity to test the market and see what financial opportunities awaited. He or she would essentially forfeit the rights to the newly created work to Big Brother upon creation, and hope the government was benevolent -- and competent -- in doling out compensation.

This fits with a certain view of IP, namely that it doesn't really belong to the creator, but instead the state has the right to determine what if anything can happen with that creation. It's an odd way to look at government, especially when like EFF you're constantly suing it for other perceived transgressions.

I'm not convinced we need radical change, but if we do go that route I know von Lohmann's compulsory license route isn't the answer. A paper I did on a 118-year-old case -- a wee bit older than the current darknet -- illustrates the point pretty well. Sometimes I think advocates of compulsory licenses, many of them like von Lohmann are pretty intelligent, must know that what they're proposing is hogwash, but it wouldn't sound good to say they just want to take anything they want and not pay for it, and feel they have a right to because, after all, it's sitting right there on the darknet.

But I understand where von Lohmann is coming from. He sees the darknet as a black hole that has sucked all the light out of the market. That's because I'm willing to bet when he goes to a party, 99.9% of the people he interacts with are actively participating in the darknet. If you went to an American Legion post in Wichita, Kansas, you'd be lucky to find 0.1% participating. The rest of America I believe falls somewhere in between. But there's no reason that U.S. copyright law should be blown up so that the folks in von Lohmann's social circle can try every neat new online trick they come up with and not have to stop and ask if it is legally, or morally, wrong.