COPYCENSE

Since we began publishing independently, we have railed against two things consistently: sloppy, misleading, or biased commentary about the copyright debate; and copyright propaganda disguised as “education.” (Unsurprisingly, the latter is filled with the former.) Our most recent comment about copyright education appeared last month.

Almost all of the “education” efforts we have criticized have been initiatives developed by large businesses that derive most of their revenue from copyrighted art or entertainment, or trade groups that represent those businesses. Before now, we would have thought that the court system would be above politicizing the copyright debate, or invoking egregious bias into it, because the court system and members of the judiciary must arbiter copyright disputes fairly, without a predisposition toward either the copyright owner or an alleged infringer.

Unfortunately, we have been proven wrong.

Technorati Tags: CommuniK., Copycense, K. Matthew Dames

As first reported in Wired‘s Underwire blog, the National Center for State Courts (NCSC) is in the process of publishing a graphic novel entitled Justice Case Files 1; The Case of Internet Piracy. If the sample pages in the Wired article are consistent with the publication’s overall tone and slant, our only reaction is to shake our heads in disgust. Representatives of the court system should know better than to publish such overtly partial detritus.

(As of this writing, we have been unable to review the entire publication because we have been unable to find it on the NCSC Web site. Therefore, this commentary is limited to the pages that Wired displays in its report.)

NCSC’s mission is to “improve the administration of justice through leadership and service to state courts, and courts around the world.” Its board of directors consists of several state chief judges of state court systems (including the chief justice of the state court of South Carolina; and the chief judge of Maryland’s Court of Appeals), as well as state court administrators. Its Web site states that the organization “has played a key role in the development of court administration worldwide.”

The Justice novel is set inside a courtroom, and the scene indicates a female defendant, Megan Robbins, is on trial for the state crime of theft. Robbins (note the pun) allegedly has stolen 2,000 unauthorized music files. We have several problems with NCSC’s portrayal. The plot is rife with misleading information.

First, we question whether this case would be adjudicated in a state court because of constitutional and statutory preemption. In summary, the preemption doctrine (which the Copyright Act codifies into statute in Section 301) expressly provides that in some situations, a state law or right will be preempted, leaving copyright law itself as the only applicable rule, and the federal courts as the only applicable forum. As preemption applies to Justice, it would be unusual for a state court to handle the prosecution of a person who allegedly has stolen music files because that cause of action more likely would fall under the aegis of the Copyright Act. As such, the prosecution would occur in federal court.

We concede there are others who may better opine on Section 301’s applicability to this dramatic scenario, as well as the constitutional and procedural issues the scenario raises. Still, it is presumptuous for a court administration organization to publish an “educational” tome about copyright where a central piece of constitutional and procedural reasoning could be flawed.

Second, the theft scenario also presumes that intellectual property (in the form of “2,000 unauthorized music files”) is private property. This presumption is important to note because large copyright owners have been perpetuating it for several decades. One can make an equally compelling argument that the nature, substance, and purpose of intellectual property (including copyrighted works) is fundamentally different from tangible, private property. For example, University of Iowa professor Kembrew McLeod cogently questions the “IP is private property” theory in his 2001 book Owning Culture: Authorship, Ownership & Intellectual Property Law.

Third, the presumption of the defendant’s guilt in this novel is damning given NCSC’s stated mission of “improve the administration of justice.” Note the following dialogue:

Prosecutor: Even first-time offenders such as Ms. Robbins face stiff penalties — up to 2 years in jail and $25,000 in fines. Her conviction sends a message that illegally downloading music is a crime, and anyone involved will be held accountable.

Defense Counsel: My client understands that she violated the law and is admitting her guilt. She is an honor student with no criminal record. At eighteen, she is a freshman in college with a full scholarship to a top university. She has overcome the deaths of both her parents to excel as a responsible citizen, even volunteering as a part of the campus-tutoring program.

[Emphasis in original.]

This dialogue is so egregiously propagandist that it is incredible that it is implicitly approved by an organization whose board includes officers of the court. To illustrate the dialogue’s protectionist bias, we’ll conduct a line-by-line analysis.

“Even first-time offenders such as Ms. Robbins face stiff penalties — up to 2 years in jail and $25,000 in fines.”

Already, we have discussed the theoretical problems with setting this action inside a state court because of preemption. Under federal law, a plaintiff can be tried for civil copyright infringement pursuant to Section 501, or criminal copyright infringement pursuant to Section 506. Fines and incarceration time vary, and criminal prosecution is available only where the defendant has engaged in “willful” behavior.

(As a practical matter, President Clinton’s approval of the No Electronic Theft Act in 1997 made it easier to qualify for criminal prosecution under the Copyright Act when the bill he signed amended Section 506 in a way that makes a person eligible for criminal prosecution if he copies or distributes at least one work within a six month period that has a total retail value of more than $1,000. That is an extremely low threshold to meet.)

“Her conviction sends a message that illegally downloading music is a crime, and anyone involved will be held accountable.”

At a minimum, the language in this sentence is linguistically sloppy; at worst, it is biased and misleading. According to FOLDOC, “download” is a verb that means “to transfer data from one computer to another.” Webopedia also defines download as a verb, stating it is “the process of copying a file from an online service or bulletin board service to one’s own computer …, copying a file from a network file server to a computer on the network, … [or] loading a font into a laser printer.”

The closest exclusive right to download that appears in the Copyright Act is the Section 106(3) distribution right, which says “the owner of copyright under this title has the exclusive rights to do and to authorize … [the distribution of] copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” To this end, the allegation against Robbins is that she violated the copyright owner’s exclusive distribution right.

(As an aside, we find it interesting that the sample passage does not clearly identify an aggrieved copyright owner. I guess we are to suppose that copyright is everywhere, and that every use is a potential legal violation. Practically speaking, the Berne Convention amendments — which, among other things, dispense with a registration requirement — seem to do that. Still, the unwritten specter of an unnamed copyright monster lurking somewhere in the background is a bit unsettling.)

The Section 106(3) distribution right, however, is subject to some exceptions; these exceptions are noted in the preamble, which qualifies the exclusive rights subject to the copyright exceptions in Sections 107 through 122. These sections provide examples and conditions that outline the circumstances under which certain members of the public — like Robbins — may use, access, distribute, copy, or remix copyrighted works without having to request permission, and without having to pay for the work or its use.

The emphasis on Robbins’ allegedly illegal distribution is critical: a violation of an exclusive right may be called an infringement, but that characterization has legal significance only if the copyright owner properly alleges and proves the infringement.

If we reframe this sentence to focus on Robbins’ “[alleged] illegal distribution in violation of Section 106(3),” then we also are in a better position to focus on the legal burdens the plaintiff (or prosecution) has in proving its prima facie case beyond a preponderance of the evidence. (The criminal standard, of course, is proving the case beyond a reasonable doubt.) In fact, Robbins may show as part of the evidence in her defense that she qualifies for one or more of the 16 statutory exceptions in Sections 107 through 122. Reframing this scenario into evidence and burdens of proof eliminates the presupposition that copyright infringement exists solely on the basis of an allegation that has yet to meet the procedural safeguards of the rules of evidence.

And besides, the phrasing “her conviction sends a message” seems to assume Robbins already has been found guilty. Perhaps this is merely a contextual gap due to not having the rest of the novel.

Still, we expect copyright owners to avoid explaining that they actually have to do more than fire off accusations that may have no legal, theoretical, or economic basis, and avoid fully explaining their duties and obligations in and to the American legal process. On the other hand, court administrators have no excuse for failing to explain this process.

“My client understands that she violated the law and is admitting her guilt.”

I know of few lawyers who automatically would concede their client’s guilt. The immediate concession of Megan Robbins’ liability in this scene, however, is particularly damning because (a) it takes for granted that any act of downloading, for any purpose, is illegal; and (b) there is no consideration that Robbins’ actions may be legal or proper.

Again, copyright infringement does not exist simply because one party alleges it is true. The novel’s script does not show the prosecutor’s attempt to build a case against Robbins, the prima facie case he must prove, and the evidentiary burdens he must maintain throughout the case. Instead, the script is consistent with the public relations pabulum the copyright organizations have spouted for the last decade: sue ’em, string ’em up, send ’em to jail.

We also find it interesting that defendant Robbins is a college student. Her portrayal seems to fit conveniently with the ravenous, devil-may-care monster stereotype that protectionist copyright lobbyists have built with painstaking precision in their decade-long battle against so-called “file sharing.” Again, we expect this from the copyright lobbyists, but not from court officials.

Further, we think the boldfacing in this portion of the script belies any argument NCSC could make that this novel is impartial. In the quote we are analyzing, the script highlights the following words (in bold and italic face):

understands
violated
criminal record
freshman
college
university
deaths
volunteering
campus-tutoring

There is virtually no doubt in our minds that this passage is a subliminal message to teenagers and college students about the “dangers” of music downloading. NCSC President Mary McQueen said the organization chose this topic for the first graphic novel because “[high] school and college students really don’t have much interaction with the court unless it’s for a speeding ticket. We’re saying, ‘You need to understand the role of the courts and how you are involved.'”

We dispute McQueen’s simplistic explanation. At least from the sample that appears in the article, what NCSC is saying is that teenagers or college students who download music are criminals who are not given an opportunity to be judged by their peers at a jury trial, or present evidence or legal excuses in their defense. NCSC also is saying that large copyright owners’ allegations of copyright infringement do not need to be proven in a court of law, and it is implying copyright owners are neither required to prove their prima facie case, nor meet their burdens of proof at trial.

Perhaps most unfortunately, the novel strongly implies that local prosecutors and the judiciary are ready, willing, and able to rubber stamp any accusation of copyright infringement that large, monolithic (and oddly, unnamed) copyright owners make. This attitude stands in gross contravention to the American legal process. Those who claim to “improve the administration of justice” should know better, and should be embarrassed and ashamed of this insipid, warped example of copyright agitprop.

See also:
Underwire (Wired). New Graphic Novel: Say “No” to Internet Piracy. Oct. 2, 2007.

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