COPYCENSE

Earlier this week, The New York Times published an extensive feature article on Secretary of the Treasury Timothy F. Geithner. The crux of the article essentially questions Geithner’s judgment and decisions in light of his cozy relationship with the financial industry during his tenure as president of the Federal Bank of New York.

The article delves into Geithner’s work while Fed president, and pieces out an array of evidence from as far back as 2007 to prove its thesis that Geithner may be too close to industry to properly regulate it during the midst of the current financial crisis. In all, we think the article has a sort of “death by 1,000 cuts” feel to it, but, hey, everyone has an opinion. (We also sort of wondered, “Where was this reporting during Geithner’s confirmation hearings?”)

The article, however, does have a very interesting quote from Joseph Stiglitz, a Columbia University professor and a Nobel-winning economist. Stiglitz has gone on record to criticize Geithner’s ties to Wall Street, and the Secretary’s bailout plan.

Of Geithner’s actions so far, Stiglitz said the following:

“I don’t think that Tim Geithner was motivated by anything other than concern to get the financial system working again. But I think that mindsets can be shaped by people you associate with, and you come to think that what’s good for Wall Street is good for America.”

Interesting thought, but we’re sure you’re asking “How in the world does this relate to copyright law or policy?” A story is instructive.

Last week, Vice President Joe Biden stood before entertainment industry executives at an event organized by the Motion Picture Association of America and essentially promised them that President Obama’s forthcoming selection for Intellectual Property Enforcement Coordinator would meet their approval. Biden’s verbal commitment to the entertainment industry follows weeks of Obama appointments to key positions in the Department of Justice; all the appointees had litigated in private practice on behalf of the Recording Industry Association of America, the recording industry lobby.

At the MPAA event, Biden said that “piracy” “[is] pure theft, stolen from the artists and quite frankly from the American people as consequence of loss of jobs and as a consequence of loss of income.” In doing so, Biden not only perpetuated the error that piracy is “intellectual property theft,” but reinforced the subtext that copyrighted works are no different from tangible goods while parroting the claims that theft of such hurts the artists, and results in losses of jobs and income.

These last two claims are specious at best. First, artists (particularly in the movie and music industries) rarely hold ownership of any of the rights in their work; instead, they routinely assign via contract all of those rights to a corporate distributor. Second, several studies and news articles have explored the entertainment industries claims of lost revenue and jobs due to “piracy” and found many such claims to be inaccurate at best, fallacious at worse.

Biden’s viewpoint on this issue, however, should be no surprise: even during his long term as senior senator from Delaware, Biden has been a staunch supporter of the entertainment industries and their legislative initiatives.

Now to the punch line.

It is clear from his recent comments and his senatorial voting record that Vice President Biden’s view of copyright law and policy is consistent with the entertainment industry’s view of copyright law and policy. In other words, it is reasonable to conclude that Biden thinks that legislation and policy that benefits the MPAA, the Recording Industry Association of America, the Business Software Association, the Association of American Publishers and their corporate clients is what is good for America’s copyright system.

Biden is far from alone in this view: Barbara Boxer (D-CA), Patrick Leahy (D-VT), Orrin Hatch (R-UT), and Arlen Specter (R-PA) all share the same view that copyright legislation and policy that benefits large, corporate copyright portfolio owners benefits American and the American copyright system. (Editor’s Note: The New York Times is reporting that Sen. Spector has announced he will switch political affiliations to the Democratic Party. We guarantee this will have no influence over his votes on intellectual property matters.)

But that view of the copyright system is myopic at best, and inaccurate at worst. (For a dense, but thorough explanation of why this view of the copyright system is inaccurate, I recommend reading Oren Bracha‘s 2008 article in the Yale Law Journal entitled The Ideology of Authorship Revisited.) To paraphrase Stiglitz, we do not think that Biden, Boxer, Leahy, Hatch, or Specter are motivated to move copyright legislation and policy in its current direction for any other reason than to do what they think is best for the American copyright system. What is best for the biggest corporations in that system, however, is not necessarily what is best for the system as a whole.

Citizens who create, read, write, remix, sing, videotape, snap, and imagine are as important a part of the American copyright system as the corporate interests in that system. By sheer numbers, the creative citizenry dwarfs the number of corporations whose primary business model is to own copyrighted works and earn revenue from the licensing of one or more of the Section 106 rights.

Without question, however, the current copyright system that exists now in the United States works to the detriment of most American citizens. Citizens who have an interest in creative works like music, books, or movies have suffered an erosion of their rights to read that book, listen to that piece of music, or watch that video due to legislation like the Digital Millennium Copyright Act (.pdf), the PRO-IP Act, the Copyright Term Extension Act (.pdf) and policy initiatives like the laughably biased annual Section 301 process (in which companies that allegedly are harmed by “piracy” come up with the economic estimates to “prove” the amount of economic loss attributable to “piracy”). The erosion comes through longer copyright terms, digital rights management schemes, or restrictive licenses that protect works that should be in the public domain, among other things.

Certainly, it is easy for a copyright holder to dismiss this article as another anti-copyright screed. But regular Copycense readers know we always have maintained on these virtual pages that we believe in the American copyright system; we just don’t believe in this distorted mess we have at this moment.

When it comes to copyright policy and legislation, what serves the best interests of large, corporate copyright portfolio holders does not serve the best interests of the vast majority of the American public. Copyright law never was meant to become a tool benefiting corporate copyright owners exclusively, but it has become just that. The frame of “piracy” is one, significant piece in this problematic puzzle.

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