COPYCENSE

In October 2007, we wrote in these digital pages an article entitled “Should We Still ‘Free Jammie’?” The article’s title referred to a then-existing campaign to elevate Jammie Thomas-Rasset (then Jammie Thomas) to political prisoner status because she lost at trial after being sued by several record companies for copyright infringement.

The core issues in Thomas-Rasset’s second trial, which concluded last month, were substantially similar to those litigated in her first trial as defendant, in which a federal jury found her liable for copyright infringement, and awarded the copyright-owning record companies $222,000 in damages. At the time, we questioned whether the “Free Jammie” campaign was appropriate, given the facts of the case and Ms. Thomas-Rasset’s reported appellate strategy:

Technology publication ArsTechnica is reporting that Jammie Thomas’ appellate strategy will be to question the damages award first, leaving to a later date the broader (and arguably more important) issue of whether or not “making available” files violates the reproduction and distribution rights in Section 106. Ars reports that if the court decides against granting a new trial, Thomas would have 30 days to appeal the original verdict, and she could use that opportunity to argue against the “making available” doctrine, which the judge conveyed in jury instructions.

William Patry has observed that he would be “stunned if there is any room for overturning the award. There is doubt that any award within the permissible range, even the tippy-top, is subject to review. I think there may well be cases where a damage award may be constitutionally flawed, but this is not one of them.”

Still, since Thomas currently is responsible for more than $200,000 in statutory copyright infringement damages, there is little surprise that she would look to reduce that figure. The strategy, however, smells like an unfortunate case of CYA and seems narrow considering the broader stakes at hand.

Thomas and her counsel certainly knew this case would be a high profile matter, but both also had to know this case would have a significant effect on the substance and interpretation of copyright law. It is reasonable to expect any party in litigation to do only what is best for their personal and legal interests. Likewise, attorneys have an obligation to work primarily in their clients’ best interests. But in light of the context, it also seems reasonable for those interested in copyright to expect the litigants in these high profile, important cases to recognize the cases’ legal and societal issues and attempt to resolve such issues, while continuing to do what is best for the client.

…

The more we dig into this case, the more likely we are to conclude that Thomas was the wrong defendant to support in the wrong case. A five-minute deliberation on liability indicates Thomas’ liability never was in doubt. That fact alone suggests Thomas (as well as proponents for balanced copyright) would have been much better off had she settled for $3,000.

…

Good party or no, good facts or no, Thomas now is in the belly of the beast, but in ways much more significant than the $220,000 in damages she must pay. This verdict will embolden the music industry to continue its ridiculous litigation campaign; at a minimum, focusing on continuing the campaign likely will keep the industry from making the fundamental business changes it needs to make in order to provide valuable services to consumers in a vastly changed business environment. No one wins in this arrangement.

We were willing to go along with the “Free Jammie” ride so long as she and her legal team recognize they have a responsibility to litigate and resolve the broader, more significant policy issues — particularly this issue of “making available” being made a de facto seventh exclusive right in Section 106.

But if Thomas and her legal team are unable or unwilling to make a legitimate attempt to resolve this and similar broader policy issues, we cannot continue to support their cause because it seems there is no doubt she committed widescale copyright infringement and her appeal seems confined to soothe the sting of what seems to be a sound, if harsh, penalty. We would much rather support [defendants] like Tanya Anderson, who is much more the victim of RIAA’s overly aggressive and flawed litigation tactics than Thomas seems to be.

Ms. Thomas-Rasset ended up getting a reprieve, as a federal judge vacated the first jury’s verdict because of an errant jury instruction. At the time, William Patry opined that he failed to see where the $222,000 verdict could be overturned on constitutional grounds. Ms. Thomas-Rasset refused to settle the case with RIAA, leading to a retrial that occurred last month.

In the second trial, a second federal jury determined that Ms. Thomas-Rasset committed copyright infringement by downloading 24 songs onto a personal computer over which she had control (or to which she had access). The second jury then awarded the copyright owning music companies $1.92 million in willful infringement damages per Section 504(c)(2). In the wake of this second verdict — in which the jury took only five hours to deliberate (compared to five minutes in the first trial) — much of the commentary has been about potential backlash against the recording industry, the recording industry’s “capacity for evil,” and the “scapegoating” of Ms. Thomas-Rasset.

What? Are you kidding us?

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“Since the U.S. Navy rescued Capt. Richard Phillips in April, many news outlets have been writing about piracy. Interestingly, some news outlets have raised an important question about “piracy” as a term: In light of the ongoing (and newly newsworthy) threat of violence on the high seas, should “piracy” continue to be used to mean theft of works that are protected by copyright or other forms of intellectual property (IP)?

“Stephen J. Dubner, a co-author of The New York Times’ Freakonomics blog, was one of the first to pose the question openly. In his April 13 post, Dubner even asked his audience to suggest substitute names. When he followed up with another post on April 17, he elected the term “downlifting” as the linguistic successor to “piracy.” Dubner’s article followed a pithy analysis by blogger Jenny Kakasuleff of the Indianapolis Liberal Examiner. Kakasuleff’s post was the first I saw this year that questioned the wisdom of using “piracy” within the context of IP, and the timeline on her post suggests she addressed this issue 10 hours before Dubner. Better yet, her lede was flat-out entertaining:

When I heard that “piracy” was the latest buzz word to light up the world wide web, I thought for sure Lars Ulrich had summoned Congress to bellyache about how fans like Metallica’s music so much that they—gasp—download it for their listening pleasure. But alas, all the hype was nothing more than a U.S. Navy showdown with three rogue pirates on a lifeboat, armed with AK-47’s and a hostage. Limewire [sic] lives to see another day.

“Then what does piracy really mean? The term’s definition and history are important along with the reasons why its continued misrepresentation matters to the country’s copyright policy.”

(more …)

K. Matthew Dames. Why the Frame of “Piracy” Matters. Information Today. June 2009.

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Technorati Tags: “piracy”, Copycense, framing & rhetoric, Freakonomics blog, Joe Biden, K. Matthew Dames, The New York Times

[Editor’s Note: This is final part of a three-part series on the intersection of trade agreements, foreign affairs, and U.S. copyright law. Part 1 was published in Copycense on May 27; Part 2 was published on June 2.]

In this article, I focus on proposed legislation in Congress that would make copyright (and other intellectual property issues) a consistent part of U.S. foreign and trade policy via the State Department.

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[Editor’s Note: This is the second of a three-part series on the intersection of trade agreements, foreign affairs, and U.S. copyright law. Part 1 was published on May 28; Part 3 will be published on Tuesday, June 9. Portions of this work are included in a continuing study about the framing of “piracy” and its influence on U.S. copyright law. For ease of reading and formatting, this excludes scholarly references, but replaces them with hyperlinks to source material where such links are available.]

This article summarizes the Special 301 process, including its history, its procedures, and the 2009 Special 301 report.

Background of Section 301

Section 301 of the Trade Act of 1974 (19 U.S.C. sec. 2411), as amended, is the principal statutory authority under which the United States may impose trade sanctions against foreign countries that violate, deny benefits under, or unreasonably discriminate against the U.S. government, or otherwise restrict U.S. commerce, pursuant to a trade agreement. Section 301(a) may be understood as a self-help strategy for discouraging breach of agreement by trading partners.

(a) The Patent Lobby

The seeds for the contemporary Section 301 process were sown in the mid-seventies. Partly as a reaction to the Watergate scandal, Congress adopted several reforms that sought decentralization of government and allowed private companies to influence trade policy. IBM and Pfizer were two of the first companies that recognized the need for a global approach to intellectual property protection. In the late 1970s, the CEOs of these two companies “devised a strategy to improve intellectual property protection internationally until American standards became the international norm, especially in developing countries.”

Pfizer sought “significant reform” of the Paris Convention, while IBM sought patent treaty reform and full copyright implementation under the Berne Convention (especially reforming Berne to recognize the copyrightability of software). Together, the two companies sought multilateral diplomacy through the General Agreement on Trade & Tariffs’ Advisory Committee on Trade Policy and Negotiation (“ACTPN”). Pfizer chief executive officer Edmund Pratt and IBM chief executive officer John Opel held high level positions on ACTPN.

By 1985, ACTPN was playing a major role in U.S. trade policy. Around the same time, the U.S. economy was struggling from the effects of large trade deficits with several foreign countries. Industry associations identified and blamed a foreign, monolithic enemy: “pirates.” U.S. corporate executives convinced members of Congress that America’s economy and the nation’s long term economic and innovation competitiveness would improve only if the country passed trade laws that levied stiff punishments for continuing trade violations, especially those that involved “piracy” of intellectual property.

This led to a number of changes to trade policy. For example, ACTPN recommended that the U.S. Office of the Trade Representative (“USTR”) create a post of assistant trade representative for investment; USTR did so in 1981. In 1985, ACTPN established an intellectual property task force in 1985, with Pratt, Opel, and Fritz Attaway serving. (Attaway is executive vice president and Washington general counsel for the Motion Picture Association of America, where he has worked since 1976.)

From this core, ACTPN worked to educate people in Congress and in the executive branch (especially USTR) about the importance of protecting intellectual property rights as a way of facilitating investment in developing countries. Part of the education included targeting Washington policy makers with conferences and books, both of which emphasized that American competitiveness in innovation industries was being hurt by developing countries’ failure to pass or enforce laws that protected American intellectual property. As a result, USTR spent much more time and diplomatic effort in putting intellectual property issues on the GATT Uruguay Round agenda in 1986, ultimately consulting ACTPN on a “GATT strategy.”

(The GATT Uruguay Round strategy was a “carrot and stick” approach to trade and intellectual property negotiations with developing countries. On one hand, the U.S. offered tariff concessions on agricultural and textile products and technical training on intellectual property issues. In exchange, the U.S. wanted higher levels of intellectual property protection to combat “piracy” and counterfeiting. A foreign country’s failure to comply would result in cutting the country’s aid through America’s General System of Preferences, and possible trade sanctions pursuant to Section 301 actions. Said more simply, where bilateral and multilateral trade concessions GATT Uruguay Round are the carrot, Section 301 actions are the stick, a form of unilateral sanctions.)

The Intellectual Property Committee (“IPC”) was another important trade group that started work during this period. IPC’s purpose was to be a spokesman for intellectual property-based companies and lobby their interests in Washington and Geneva. Charter members were Pfizer, IBM, Merck, General Electric, DuPont, Warner Communications, Hewlett-Packard, Bristol-Meyers, FMC Corporation, General Motors, Johnson & Johnson, Monsanto, and Rockwell International.

(b) The Copyright Lobby

While ACTPN and IPC handled multilateral GATT diplomacy strategy, the corporate owners of large copyright portfolios became concerned that the ACTPN was too focused on patent issues. Those companies began seeking their own bilateral strategy to strengthen international copyright laws, resulting in the formation of the International Intellectual Property Alliance (“IIPA”). IIPA charter members included the American Association of Publishers; the Motion Picture Association of America; and the Recording Industry Association of America. The Business Software Association and Interactive Digital Software Association since have joined IIPA.

Created in 1984, IIPA also was established to advocate an agenda for the USTR’s Section 301 report, which Congress codified in the U.S. Trade and Tariff Act of 1984. Among other things, the 1984 Trade Act clarified the Section 301 review process, for which copyright creators had lobbied. In 1985, IIPA submitted to USTR a report entitled Piracy of U.S. Copyrighted Works in Ten Selected Countries that presented data from IIPA members that estimated $1.3 billion in lost film, music, computer software, and books sales due to “piracy.”

USTR responded by initiating a Section 301 investigation against Korea. Based in part upon this initial report, IIPA lobbied Congress to institutionalize the measurement of copyright problems in foreign countries, leading to an amended Section 301.

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[Editor’s Note: This is the first of a three-part series on the intersection of trade agreements, foreign affairs, and U.S. copyright law. Portions of this part were published previously as Dames, K. Matthew (2007). Trade Agreements as the New Copyright Law, Online, 31(2), 16-21.]

In this article, I detail how global trade agreements influence the Copyright Act of 1976, including an explanation of the U.S. Trade Representative’s role, the role of “harmonization,” and an analysis of how international trade agreements effectively circumvent Congress’ constitutional authority to enact copyright laws.

Traditional Path to Copyright Law

Just as every other federal law that is ultimately codified into the U.S. Code, this country’s official compendium of federal statutes, the development and ultimate passage of copyright laws happens according to a time-honored process. Bills that originate in the House of Representatives or the Senate will become law if the bill is passed by both houses of Congress and the President signs the bill. Once the bill becomes law, it will be published in the U.S. Code, which is the public and permanent statutes arranged by topic or subject. (For a fuller discussion of the U.S. federal legislative process, please see Charles W. Johnson’s classic guide “How Our Laws Are Made.”)

The Copyright Act of 1976 is codified at Title 17 of the U.S. Code. The authority for the 1976 Act (as well as the predecessor Acts of 1909 and 1790) comes from the Copyright Clause of the U.S. Constitution. Art. 1, sec. 8. cl. 8 states “The Congress shall have Power … To promote 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.”

Congress is, has been, and always should be the first and final drafter and arbiter of the Copyright Act. As Justice Ruth Bader Ginsburg wrote in the Supreme Court’s decision in Eldred v. Ashcroft, 537 U.S. 186 (2003), “[The Court has] stressed … that it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.” But in recent years, Congress’ role in enacting copyright law legislation has diminished. In order to understand how this has occurred, it is instructive to go back to 1988, when the United States became a signatory to the Berne Convention.

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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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Technorati Tags: Copycense, framing & rhetoric, Joe Biden, Joseph Stiglitz, Timothy Geithner