Doublespeak, Debate Framing, and the Copyright Battles
Commentary by K. Matthew Dames, executive editor.
One of the things I enjoy about the current spate of copyright battles is analyzing the way the Big Content uses its media and public relations machinery to frame the debate. For example, I find it interesting that Big Content consistently characterizes as “stealing” or “theft” any access to, or use of, a protected work that is unlicensed or uncompensated. It’s as if Big Content has shrunk the 1976 Copyright Act down to a handful of sections that include Section 106 (which deals with a copyright owner’s exclusive rights) and the five sections of Chapter 12 (which is where Congress codified the Digital Millennium Copyright Act).
By framing the copyright debate exclusively from the perspective of an owners’ exclusive rights, Big Content establishes an interesting paradigm: if one does not ask permission to use or access a copyrighted work before using or accessing that work, that person is “stealing.” In other words, if you don’t ask permission to access, use, copy, distribute, or remix, you’re stealing. But the frame has equally important, related tentacles. For example, if you don’t wait to receive permission to access or use protected works, Big Content tags you as a thief. Further, if you use or access after Big Content’s explicit rejection of permission, then Big Content portrays you as a thief.
Of course, this frame ignores the multitude of limitations, exceptions, and exemptions the Copyright Act includes for the benefit of parties other than copyright owners. (Many of these limitations and exceptions to copyright are codified sequentially within the Copyright Act at Sections 107 through 122.) These limitations establish a pair of critically important premises that rebut Big Content’s frame. First, under certain circumstances, non-owners do not need a copyright owner’s permission to access, use, copy, redistribute, or remix protected works. Second, and more importantly, non-owners that use the same set of limitations do not need to ask for permission to access, use, copy, redistribute, or remix.
Despite these limitations, Big Content hammers home this “theft” frame, mostly because the frame is supports its property rights position. There is a surreptitious danger, however, involved in debating Big Content on whether a certain action (or lack of action) is “stealing” or “theft.” If you do that, you’re automatically accepting the fundamental proposition that intellectual property is always and forever private property that may be stolen, instead of public property that Congress affords an exclusive, limited commercialization period.
Put another way, we should consider copyrighted works as public property that is on loan temporarily to the copyright owner, instead of private property that is temporarily on loan to the public. That slight change in perspective allows us to dispense with the frame. The perspective change also allows us a heightened awareness to the limitations and exceptions the Copyright Act provides.
Shawn Fanning’s Snocap Succeeds Grokster
“Shawn Fanning turns 25 on Tuesday, and it’s been a very long seven years since he wrote a little computer program that let him trade electronic music files with his dorm mates at Northeastern University in Boston, where he was a freshman. He called it Napster, after his nickname, and it quickly grew into an Internet phenomenon – not to mention the music industry’s bête noire until it was shut down by the courts four years ago.
“Now the public spotlight is turning back to Mr. Fanning, this time as a symbol of how big business and the disruptive force of the Internet just might find a way to get along. This month, Grokster stopped distributing its software and agreed to pay the record industry $50 million, which it has no prospect of ever raising. By year-end, a new version of Grokster will appear — this one sanctioned by the record industry because it will use technology built by Mr. Fanning.”
Saul Hansell. Putting the Napster Genie Back in the Bottle. The New York Times. Nov. 20, 2005.
(Editor’s Note: The Times allows free access to their stories on the Web for seven days before sending the stories to the paper’s fee-based Archive.)
CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.
DRM Battles Gets Heated
“A couple of weeks ago, a motley crew of New York University students collected in front of the Virgin Megastore in Union Square for a digital rights rally. Protesters from the NYU chapter of the Free Culture Society brandished signs and snuck inside the store to stick leaflets into racks of CDs. Shades of the student movements of 1968—except that instead of protesting war or agitating for social justice, these college kids took to the streets because corporations are messing with their music.
“The crux of the debate is this: When you buy a song, an album, or a movie, are you buying the content only in the form it comes in?”
Adam L. Penenberg. Digital Rights Mismanagement. Slate. Nov. 14, 2005.
See also:
Jefferson Graham. Firestorm Rages Over Lockdown on Digital Music. USA Today. Nov. 13, 2005.
CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.
Copyright Office Allows Preregistration for Digital Works
The U.S. Copyright Office is now offering a service that allows copyright owners of digital works the ability to register the work for protection prior to a work either being released or published. The Office says the new service is intended for “movies, recorded music, and other copyrighted materials before copyright owners have had the opportunity to market fully their products.”
This preregistration gambit affords significant advantages to Big Content, which pushed for this provision: it allows a copyright owner to file an infringement action before the an original work is either registered or publicly released. Once the copyright owner completes a full registration, it will be eligible to receive statutory damages and attorneys’ fees in an infringement action.
The preregistration procedure is part of the Artists’ Rights and Theft Prevention Act of 2005, which itself was part of the Family Entertainment and Copyright Act.
U.S. Copyright Office. Preregister Your Work. Nov. 15, 2005.
See also:
Federal Register. Preregistration of Certain Unpublished Copyright Claims (Proposed Rulemaking: 37 CFR Part 202). Aug. 4, 2005.
Declan McCullagh. New Law Cracks Down on P2P Pirates. News.com. April 27, 2005.
Eric Goldman. Artists’ Rights and Theft Prevention Act–New Criminal Copyright Infringement Standards. April 21, 2005.
Declan McCullagh. Prison Terms on Tap for ‘Prerelease’ Pirates. News.com. April 19, 2005.
CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.
U.S. to Keep Internet Control
“Representatives from the United States and nations that had sought to break up some of its control over the Internet reached an accord on Tuesday night that leaves the supervision of domain names and other technical resources unchanged. They agreed instead to an evolutionary approach to Internet management.
“But the accord, a document of principles that delegates from more than 100 countries worked out here after more than two years of sometimes fiery argument, also established a new international forum intended to give governments a stronger voice in Internet policy issues, including the address system, a trade-off that the Americans were willing to accept.”
Victoria Shannon. A Compromise of Sorts on Internet Control. The New York Times. Nov. 16, 2005.
See also:
Red Herring. U.S. Retains Internet Control. Nov. 16, 2005.
Declan McCullagh. U.S. Reaches Net Detente with U.N. ZDNet. Nov. 16, 2005.
Ben Charny. ICANN Faces Further Fire. eWeek. Nov. 16, 2005.
(Editor’s Note: The Times allows free access to their stories on the Web for seven days before sending the stories to the paper’s fee-based Archive.)
CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.
Cerf Criticizes New Telecom Act
“As Vinton Cerf, ‘the father of the Internet,” accepted the Presidential Medal of Freedom at the White House last week, at the other end of Pennsylvania Avenue, the House Energy and Commerce Committee held hearings on a bill — an update of the 1996 Telecommunications Act — that stands to dramatically transform the information superhighway.
“While President Bush lauded Cerf as being ‘at the forefront of a digital revolution that has transformed global commerce, communication and entertainment,’ Cerf warned Congress in written testimony, ‘My fear is that, as written, this bill would do great damage to the Internet as we know it.'”
Mark Cooper. Internet Pioneer Sounds Alarm on Threats to Broadband. MercuryNews.com. Nov. 16, 2005.
See also:
Dennis Fisher. Cerf, Kahn Receive Medal of Freedom. eWeek. Nov. 14, 2005.
CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.
Justice Dept. Enters Blackberry Dispute
“As patent-holding firm NTP and BlackBerry maker Research In Motion duke it out in court over a patent infringement lawsuit, the federal government has weighed in as a customer.
“Bottom line: The feds want their BlackBerry paging service developed by RIM, according to court documents filed last week in U.S. District Court in the Eastern District of Virginia.”
Dawn Kawamoto. Feds Want Their BlackBerrys. News.com. Nov. 15, 2005.
CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.
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