COPYCENSE

William Patry, author of The Patry Copyright Blog, has been en fuego the last few days, writing mostly about proposed U.S. copyright legislation, H.R. 4279 in particular. In addition to suffering the dreaded acronym disease that has plagued legislation since the USA PATRIOT Act in 2001, H.R. 4279 (the Prioritizing Resources and Organization for Intellectual Property Act, or “PRO IP Act”) would increase penalties for copyright infringement, among other things.

(In our most recent edition of Clippings, we focused on the legislation’s proposal to create a Cabinet-level intellectual property czar with a starting budget of $25 million.)

Anyone remotely concerned about balanced copyright should be concerned that Congress is considering this bill, especially with a presidential election and the end of a Congressional term approaching. Candidates on both sides of the aisle recognize they need the support of the entertainment industries that support H.R. 4279, and will be willing to accommodate them. (That is why the Copyright Alliance’s open lobbying campaign of presidential candidates last month was significant.) These industries have prior success in getting bills passed (usually within larger omnibus budget bills) as the Congressional term winds down to zero.

(Lest citizens characterize PRO IP as another Republican plot for world takeover, we note for the record that PRO IP support is bipartisan. Also, let us not forget that the legislation that arguably began this streak of progressively tighter copyright laws, the Digital Millennium Copyright Act, was signed by a Democratic president working with a Democratic Congress.)

But back to Patry, and his points about the legislative process. In the second of two posts, Patry commends the Canadian approach to the legislative process, noting along the way that University of Ottawa law professor Michael Geist was able to gather more than 10,000 Canadians to protest the country’s recent foray into DMCA-like legislation. “How Canada deals with the substantive issues is of importance, obviously, but for those of us in the U.S., how the Canadians have dealt with the process of having their voices heard is instructive indeed,” Patry wrote. “There is much we have to learn from Canada. I cannot think of a better place to start than with H.R. 4279.”

Patry’s summarizes his opinion of the PRO IP bill in the final paragraph of his first post:

So this it: a Zero Tolerance approach to a civil, economic tort, copyright infringement. The dangers in the new Zero Tolerance to copyright go far beyond the individuals swept within its net, although that is bad enough: the Zero Tolerance approach threatens respect for law itself. People do not obey laws they abhor, and there is much to abhor in H.R. 4279. Copyright owners have proved themselves incapable of understanding their customers and the public’s outrage over the direction copyright has taken; perhaps they delude themselves into thinking that the opprobrium comes from those who don’t respect law anyway; but it doesn’t: it also comes from those like Sir Hugh and I who love copyright law and who have devoted our professional careers to it. If section 104 and the civil forfeiture provisions of H.R. 4297 pass, there will be many others.

I, too, love copyright. Perhaps unlike Patry, my involvement in copyright from the legal perspective is relatively recent compared to my involvement with copyright as a creator of words, music, and art. I believe in “promot[ing] the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” (Emphasis mine.)

I create, and I get paid for my creations. I like and expect to be paid for my creations. I expect my creations will be protected by the law. Everything on Copycense is subject to Copyright Act of 1976 — rights and exceptions all — and we will not hesitate to file a DMCA takedown notice against any Web site that dares to scrape and re-post this site’s contents whole or without attribution.

Despite my strident criticisms of the lobbies such as RIAA and MPAA, no one ever has read in these pages that we do not believe in copyright or copyright protection. But, like Patry, I believe U.S. copyright has gone almost irreconcilably askew. There are a variety of reasons for this problem, but I want to focus on one. And I’ll begin with a story.

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My father is responsible for me being interested in copyright. When I was a young boy, I used to fancy myself an MC. Nothing that would threaten Rakim or even the Cold Crush Brothers, but decent enough stuff for a youth. I wrote a rap about Melville’s Moby Dick with my man Mike T. as a school project. My father insisted I register the piece with the U.S. Copyright Office so I would have it protected. (In his view, the urban legend of the “poor man’s copyright” — mailing it to yourself and keeping it sealed — was insufficient.) We found the forms, Dad gave me $10 and off to Washington went “The Moby Rap.”

Needless to say, my father is not ignorant of copyright.

Last week, I was discussing with him my research into the rhetorical frame of “piracy.” My basic premise is “piracy” is an intentional, but linguistically slippery frame that RIAA, MPAA and others use to justify increasingly restrictive copyright. I got worked up about it. And I went about framing analysis, meanings in the Black’s Law Dictionary, and etymology. And after about 3 minutes, I noticed the other end of the line had gone silent.

My father then said simply to me, “Son, I hear what you’re saying, but that’s too hard to understand.”

His immediate point was it was taking me too long to explain this theory, and even he, a father interested in his son’s arcane line of work, was losing patience. His broader point was all things copyright — the law, the debate, the legislation, the cases — have become so complicated in the U.S. that people roll their eyes and fail to pay attention. Even if copyright affects them (and I’d argue it affects most people in far too many scenarios), people tune out. Even when I have a captive audience, like my classes, people tend to tune out if I can’t make it plain.

I’m unsure what moves Canadian citizens are much more involved in the copyright debate than Americans, to the point where Canadian politicians and government officials seem to consider the public’s viewpoint as an important part of the legislative process. As Patry mentions, though, Canadians do it in ways we don’t in the U.S. Earlier this year, Lawrence Lessig mentioned “corruption,” as a possibility, but that seems hastily inaccurate. Save for the occasional wad of cold, hard cash in a freezer, I think “corruption” fails to acknowledge the vast majority of the 535 are on the straight and narrow.

Further, “corruption” fails to consider the rules of the American legislative game. When the RIAA or MPAA lobbies Congress for things like H.R. 4297, all I can do is echo Chris Rock: they’re supposed to lobby Congress for restrictive copyright laws. They lobby; others (including citizens) stop them; and Congress calls it. And if this process is inconsistent with what citizens think it should be, it’s time to change the process.

Like the brothers say on the corner: don’t hate the player, hate the game.

The game of American politics in 2007 seems to have come to a simple truth: those who have the resources and ability to frame the debate to their advantage — preferably in a 30 seconds or less — likely will win the debate. And increasingly, framing the U.S. copyright debate centers on “piracy.”

Unless we’re discussing theft on the open seas, we don’t use the term “piracy” without quotes in this publication because its contemporary metaphorical meaning is inconsistent with its primary definition. To repeat what we’ve written before, “piracy” has little to do with intellectual property, but entertainment industry lobbyists have framed it that way successfully. Further, journalists reflexively use the term inaccurately, extending the frame.

“Piracy” as a proxy for copyright infringement has rendered all manner of bad policy. The Digital Millennium Copyright Act, the Copyright Term Extension Act, Special 301, No Electronic Theft … you name the legislation or policy, the frame of “piracy” has been at its core. And truth be told, the frame is brilliant. The late Jack Valenti, former longtime MPAA president, had the “piracy” frame down cold, even to the point of being the first to suggest a link between “piracy” and “terrorism.” As Drahos and Braithwaite comment in Information Feudalism,

Piracy remains a powerful evaluative word. To be called an intellectual property pirate is to be condemned. In a world where attention spans are divided by the media into ten-second sound bites it is the perfect word to use on TV, videocassettes, newspaper headlines and the radio. The received folk memory of ‘pyrates and rovers’ on the sea does the rest.

“Piracy” is a term that is punchy enough to have impact, simple enough to remember, and vague enough to be manipulable and avoid linguistic certainty. It is a brilliant metaphor, because people think they understand it.
While I can’t comment on Canada’s susceptibility to the “piracy” frame, Americans — citizens and Congress members — seem particularly susceptible to it, to the point where entire discussions about copyright can center on the extent to which there is, or is not, “piracy.” We don’t discuss “infringement,” which requires things like pleadings and burdens of proof. No, we discuss “piracy” like we know what it is.

The entertainment industries hammer home the “piracy” frame with frightening effectiveness and methodical precision. They have been masterful about framing their side of the copyright debate in news-ready sound bites. Americans seem to accept positioning and spin in their politics — style over substance — in a way the Canadians may not. But again, don’t hate the player, hate the game.

Or change the game.

Just the fact that it has taken me more than 1,800 words to explain this likely means folks have checked out several paragraphs ago. But for those who have struggled along to this point, you love copyright too. If you love copyright as a citizen, perhaps you cannot change the political process. If you love copyright as a citizen, perhaps you cannot produce the glossy reports with compelling data that turn Congressional heads. If you love copyright as a citizen, perhaps you can’t even get hold of your local elected official. Given his work and his well-deserved sterling reputation in this area of the law, William Patry may have more access to the process and its stakeholders than the you, me, or the average citizen. And I’m not mad at that. If you’ve put in the work Patry has, for as long as he’s put it in, you’re supposed to have that level of access.

But if there is one thing you can do to help restore a sensible dialogue about balanced, reasonable copyright — not as a lobbyist, or an interest group, or a royalty check recipient; but as a citizen — it is never to use “piracy” to mean copyright infringement. Otherwise, we can’t have real talk.

If there are economic losses that arise from counterfeiting or infringement, then let’s discuss those losses and how the aggrieved calculate those losses. If we want to discuss citizens downloading thousands of digital music files without paying a penny for any of that music, let’s talk about why this occurs and how to compensate the music makers instead of the corporations that purport to represent and compensate those musicians.

I have no designs on how to engage a fuller copyright discussion here in America as seems to be occurring in Canada. I strongly suspect, however, that repeating the “piracy” sound bite does irreparable damage to engaging in that fuller discussion. It seems a small item, but I believe it’s important to engaging in real talk. If you love copyright as a citizen or as a creator, as I do, hopefully you’ll consider eliminating “piracy” from the debate, as we pledge to continue to do.

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