COPYCENSE

The final Clippings edition of this year features a novel approach to copyright reform; the Canadian citizenry stopping cold the march of restrictive copyright; and using P2P for marketing purposes.

Thank you for continuing to follow Copycense. We will resume Clippings coverage early next year.

This is Copycense.

Article of the Week

Pamela Samuelson. Preliminary Thoughts on Copyright Reform. The UC-Berkeley law professor offers “preliminary thoughts about what a model copyright law might include and how one might go about getting rid of some of the clutter in the existing statute,” using the example provided by the American Law Institute’s model laws. Categories: Legislation & Regulation; Research.

Quotes of the Week

“It is undisputed that Defendant possessed unauthorized copies of [] copyrighted sound recordings on his computer. … Virtually all of the sound recordings … are in the ‘.mp3’ format. … Defendant admitted that he converted these sound recordings from their original format to the .mp3 format for his and his wife’s use. The .mp3 format is a ‘compressed format [that] allows for rapid transmission of digital audio files from one computer to another by electronic mail or any other file transfer protocol.’ Napster, 239 F.3d at 1011. Once Defendant converted Plaintiffs’ recording into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies distributed by [plaintiff recording companies].” — Recording Industry Assn. of America brief in Atlantic v. Howell.

MacNN. RIAA Claims CD Rips Are Piracy in Lawsuit. Dec. 11, 2007. The MacNN headline is provocative, but not quite accurate. What the music industry lobby argues that ripping copyrighted music from CD (i.e. the “original format”) to another format (e.g. .mp3 files, for example) and posting to a shared folder on a peer-to-peer program (like Kazaa) means the music becomes de facto illegal, and therefore copyright infringement. While most coverage of this brief focuses on the alleged illegality of ripping music from compact disc to another format, to us the real story is about the recording industry’s attempts to extend into judge-made law the “making available” doctrine, which the industry argued strongly in the Jammie Thomas trial. Although the RIAA does, in fact, think that making personal copies of music is illegal, we’d like to think the likelihood of them trying to enforce that principle alone is far fetched. We’ve seen stranger things occur, however. Categories: Bundle of Rights; Cases & Litigation; File Sharing, P2P & Downloads; Music.

“We are willing to purchase media, and have thousands of music and movies; we are the entertainment industries best friend when it comes to spending money on entertainment. But as with all end of an era kind of things, everything we do is somehow proscribed, regulated, or locked. Those heady days of being 14 or 40 and copying something so it can come with us are over, and that is a shame.” — Techwag.

Techwag. The End of An Era Over Copyright. Dec. 12, 2007. We disagree that the days of copying something to come with you are over, but it is a shame that too many citizens feel proscribed from doing this very fundamental networked activity. Categories: Bundle of Rights.

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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.

Technorati Tags: CommuniK., Copycense, William Patry

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This week’s edition of Clippings features extended commentary on our three Articles of the Week; an update on Radiohead’s online distribution play; Tim O’Reilly analyzing e-book possibilities in the face of the Kindle’s introduction; and two thumbs down for the Copyright Office’s online registration system.

This is Copycense.

Articles of the Week

The Iconoclast (News.com). Major Copyright Bill Boosts Penalties, Creates New Agency. Dec. 5, 2007. Intrepid News.com tech reporter Declan McCullagh summarizes the entertainment industry’s latest legislative gambit, called the “PRO IP” bill. All the usual monopoly enforcement and extension concessions are present in “PRO IP,” but the kicker is the creation of a Cabinet-level post that would serve as the president’s principal advisor and spokesman for intellectual property matters, as well as identifying countries that don’t adequately protect IP rights. This is particularly important, since American intellectual property law now is one of America’s chief exports, courtesy of the Trade Representative‘s Special 301 process. Arguably, this new post — which McCullagh says would have an initial budget totaling $25 million — would supplement the Trade Representative’s efforts to make U.S. intellectual property law the global standard.

It does not concern us that the entertainment industry is trying once again to make copyright law even more restrictive than it is; to echo a Chris Rock skit, this is what the entertainment industry is supposed to do. Instead, what concerns us is the ventriloquist-like effect the lobby has on members of Congress, who seem to mindlessly parrot the industry’s propaganda about things like “global competitiveness,” “piracy,” and “economic losses.” The industry’s “evidence,” so much of it without a shred of empirical or objective validity, should not be the basis for public policy. Categories: Bundle of Rights; Legislation & Regulation; Politics & Government.

Eric Bangeman. Colleges Serious About Dealing With Copyright, P2P Issues. Ars Technica. Dec. 5, 2007. Now that we’ve ranted about the entertainment industry’s use of meaningless statistical data, we voice similar concerns about the Brandeis University DMCA survey. Survey studies are like teaching: easy to do, difficult to do well. This study has some holes in it. The first thing that concerns us is the low number of respondents (79); that is too few from which to make reasonable popular generalizations. The second issue that concerns us is the nature of the questions themselves. For example, Question 2 asks “What non-punitive measures have you taken to reduce DMCA complaints?” Two of the possible responses mention “education.” What is copyright “education”? How is it done? How often? Who does it? Are rights and exceptions reviewed in the educational initiative? There are too many questions to answer.

Third, the researcher does not make clear what he intended to measure with the questionnaire. Finally, it alarms us that Question 6 begins with the phrase “If you have a DMCA agent …” If you run a network and do not have a DMCA agent, that is a problem: you’ve lost “safe harbor” protection under Section 512(c). We applaud Brandeis for having the idea and taking the initiative. This is the sort of data educational institutions should be gathering on their own initiative. Unfortunately, the strength of the idea is diminished by weak execution, leading to meaningless data. Ultimately, this survey cannot say conclusively whether or not colleges are serious about dealing with copyright issues. Categories: Computers; DMCA; Education; Networks; Research.

TorrentFreak. Charity Forced to Pay Copyright Fee So Kids Can Sing Carols. Dec. 9, 2007. “Happy Birthday,” the sequel. We can’t imagine this stuff. Categories: International; Music; Licensing & Permissions.

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When Macrovision, the content control company, buys TV Guide, it is reasonable to ask to what extent will Macrovision implement DRM in a way that could force electronics manufacturers to engage in what writer Saul Hansell calls “electronic vigilantism.” Hansell notes this is no longer a theoretical concerning, pointing to Boing Boing’s post about a new Western Digital computer network hard drive that blocks music and video files because of “unverifiable media license authentication.”

Practically speaking, that’s a technologically complex way to say if I buy Season 4 of The Wire on DVD, and I want to rip it to QuickTime to play on my computer — a common, totally reasonable action that Time Warner likely would claim is de facto illegal — then at some point, I may be unable to because my computer would reject that file as “unauthorized.” And if I try to break the encryption code, I violate the Digital Millennium Copyright Act.

That’s patently unreasonable to the point of being stupid. And this, we posit, is a primary reason why so many people ignore contemporary copyright: it has become so ridiculous that many people choose to ignore it. Let us try to draw a quick parallel.

Legislators make a law where the speed limit is 55 mph. The rationale for 55 mph is that it is a speed at which drivers, passengers can travel efficiently and safely and cause the least amount of actual or potential harm to the surrounding environment.

Car makers build cars using the most modern technology available to them. That technology allows for faster cars that easily can exceed the 55 mph speed limit. If a more technologically advanced car exceeds 55 mph (the speed limit at which law makers determine everyone can be safe), that car is operating illegally because, theoretically, going above 55 mph increases the level of danger to others on the road.

But the technological advances that make it possible for cars to travel faster than 55 mph also allow car makers to introduce seat belts, air bags, better handling, and better brakes. All of those factors improve safety. Concurrently, police (who enforce the speed limit and determine which cars exceed it) decide by social compact that they’re not going to penalize folks who drive their cars at 56 mph. Instead, they choose a speed — say, 65 mph — that the police department decides is a safe speed and make that higher speed the effective speed limit.

The decision to write out a ticket at 65 mph instead of 56 mph can be arbitrary, but often it is informed by a mix of perceived dangers in a given situation and prevailing social custom. If there is less perceived danger, the cop will write at 65 mph. If most of the cars are traveling, say, 62 mph, the cop will write at 65 mph.

Part of the reason this situation occurs is because at some point, citizens and cops alike believe that the 55 mph speed limit is patently unreasonable to the point of being stupid. Then at some point, law makers decide that 65 mph is the new speed at which everyone can travel safely and efficiently. And eventually, the same police who decided by social compact that they wouldn’t penalize folks who drove 56 mph now decide they won’t write under the new 65 mph “speed limit” unless you’re actually traveling 72 mph.

This all seems reasonable, right?

Copyright has gone in exactly the opposite direction. The technology is allowing you to work at 65 mph; fair use and other exceptions should allow you to operate safely at 72 mph without a problem. Law makers have rewritten the Copyright Act of 1976 to have a “speed limit” of 50 mph, and content companies propose further amendments that would require a new speed limit of 45 mph. Faced with this sort of illogic, the average Joe or Jane decides, “The heck with it,” and rolls down the road at 66 mph.

The average Joe or Jane reacts that way not because they want to be rebels. They react that way because they have decided that given all the data points, 45 mph is unreasonable to the point of being stupid. If people think a law is stupid, they won’t abide by it. If they don’t abide by it, what good is the law?

See also:
Bits (The New York Times). Is Macrovision Bringing More Cops to Your Living Room? Dec. 7, 2007.

Copycense™: Incisive IP.™

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