COPYCENSE

This week, The New York Times has been hosting a copyright “debate” between Columbia’s Tim Wu and NBC Universal’s general counsel Rick Cotton. (The entire debate is available on The Times‘ site; the instant link is to one portion of the debate.) We use the term “debate” lightly because, as we analyze below, these commentaries are not discussions featuring opposing arguments. Instead, they are framed discussions that express implicit support for the content industries’ view that copyright and control are synonymous.

We’ll use as an example Monday’s question about the use of copy restriction technologies. The first problem with the Times‘ question is that it conflates creators of copyrighted works with owners of copyrighted works. By asking Rick Cotton (who represents a copyright owner) to respond, the Times perpetuates a common misperception that creators and owners are one and the same.

Typically in today’s commercial environment, they are not: the creator often surrenders ownership of his copyright to a corporation hoping the corporation can monetize that creation more effectively than the creator would on his own. The income stream a creator expects from this surrender may or may not occur, and history is filled with creators who never received a dime from corporate owners after surrendering their work.

Why is this conflation important to identify? It’s important to identify because one of the chief arguments corporate copyright owners put forth advocating more restrictive copyright law is that doing so will ensure compensation to the creators. This argument is — and always has been — utter garbage. Hip hop artist Q-Tip spoke for generations of stiffed artists when he rapped in “Check the Rhime”:

Industry rule number 4,080 / Record company people are shady

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

But let me return to the responses in the “debate.” Note that one of the first things Cotton does is to move away from answering the question to reframe this as a discussion about control. “It’s hard, if not impossible, to have a meaningful discussion on this issue unless we can agree on the following premise: the broadband, digital world is awash in a tidal wave of unlawful, wholesale reproduction and distribution of copyrighted content,” he writes.

Well, no, not really. Intelligent, knowledgeable people can have an entirely cogent, meaningful discussion about copyright without conceding that “the .. digital world is awash in a tidal wave of unlawful, wholesale reproduction and distribution of copyrighted content.” Cotton’s assertion prematurely and incorrectly concludes that all unlicensed, uncompensated reproductions or distributions of copyrighted works are, de facto, illegal. As an attorney, surely Cotton is aware of the burdens of proof a copyright owner needs to sustain in a copyright infringement action. Cotton also is aware of the raft of defenses that would mitigate any of his client’s copyright infringement allegations.

In short, illegality is not measured merely, or exclusively, by a content owner’s allegations. (Or as my folk are fond of saying, “Just because you say it is don’t make it so.”)

Further, and more importantly, infringement should not be the starting point for discussions about copyright. Infringement (or, more accurately, alleged infringement) is the starting point for a copyright conversation only if you are making another conflation: that copyright is a proxy for absolute control of original works set in a tangible medium of expression. We don’t hold that view, and nothing in the Copyright Act of 1976 supports that position, either.

So, as is par for him and his fellow executives, Cotton engages in nothing more than framed spin. This is to be expected. (We concede, though, that Cotton’s ability to stay on message is remarkable. In response to a Wednesday’s question about fair use, Cotton reframes the fair use issue to talk about “piracy”: “Before responding to this question, I want to make a preliminary observation. The debate about content protection in the digital world … is really and truly NOT a debate about fair use. The millions upon millions of pirated, infringing copies of entire movies, TV shows, games and software that are epidemic in today’s digital world have no claim whatsoever to being fair use.” Hillary’s handlers can only hope Bill will stay on message like this for the rest of her presidential campaign.)

What is really important for readers to notice, however, is that the Times’ questions and the format of the debate stack the deck against any candid examination of the issues.

So far, the Times‘ questions are set exclusively within the narrow confines of infringement and permissions. The Times has posed questions that presume the primacy of copyright owners’ rights with little consideration for the copyright exceptions that counter those rights, or the broader public policy questions that have little to do with owners’ rights. If the Times is to be an impartial reporter or observer, then it has a professional duty to avoid mooring copyright coverage in the quicksand of owner control.

The Wall Street Journal did the same thing last year when it sponsored a “debate” between MPAA’s Fritz Attaway and Northeastern University law professor Wendy Seltzer. In that debate — entitled “‘DRM’ Protects Downloads,
But Does It Stifle Innovation?” — the Journal set up a red herring question that directly supported Attaway’s position before either he or Seltzer wrote a word. Seltzer argued against Attaway’s position, but did so within Attaway’s (and the Journal‘s) faulty frame. Even Seltzer’s best arguments could not be compelling because she made them within a framework that was faulty from the outset.

Similarly, Wu’s reasoned challenge of Cotton’s assertions ultimately is ineffective because it seeks to refute Cotton within his own (and the Times‘) faulty framework. By doing so, Wu tacitly reinforces the notion that Cotton’s control arguments and framework are meritorious enough to warrant a thoughtful response.

Many online journalists rightfully criticized Washington Post columnist Marc Fisher when he incorrectly reported that the RIAA argued in a brief that ripping music from compact disc to .MP3 is an infringement. (Fisher unsuccessfully tried to defend himself in another staged debate a few days later on National Public Radio.) Fisher’s error is a classic example of how a reporter’s failure to read and understand primary legal documents sabotaged a news story.

But what is more subtle and dangerous is the way in which the press unequivocally accepts the entertainment industries’ “copyright equals control” position as the baseline interpretation of copyright law. This dynamic is the real issue in the Times‘ faux copyright “debates.” Not only does this dynamic lead to poor and skewed reporting. It also represents a fundamental, systemic failure to follow basic tenets of good journalism because it effectively transforms news outlets into a press release distribution arm of the entertainment industry. This requires as much comment and criticism as Fisher’s faux pas.

For another example of the press acting as entertainment industry proxy, see the Journal’s coverage of file sharing in Sweden.

Bits (The New York Times). Bits Debate: Is Copy Protection Needed or Futile? Jan. 14, 2008.

Copycense™: Incisive IP.™