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?

As before, Jammie Thomas-Rasset is the wrong person to support against the music industry. Let us elaborate, so no one gets the idea that we’re front running only on winning cases (of which there really have not been many) or cherry picking cases or factual circumstances to create an ideal situation in which individuals can avoid purchasing music or other forms of entertainment.

We purchase a lot of media: literally, thousands of dollars per year in compact discs, DVDs, and game cartridges. Almost all of that content is material we have purchased from a retail outlet: despite having had this outlet for more than five years, we tend not to get schwag. It’s all good, though, because creators tend to get penalized when the copyright-owning company sends out promos and schwag. Since we buy what and who we like, we’re more than happy to support the artists we like through media sales and through tickets to live performances.

So merely as consumers and purchasers of copyrighted material, we have no sympathy for Jammie Thomas-Rasset. (And let’s not get into puerile arguments about privilege, net worth, disposable income or the ability to pay for music or entertainment.)

Additionally, though, we have no sympathy for Ms. Thomas-Rasset from a broader legal and policy perspective. As we mentioned in 2007, if your issue becomes a legal case that encapsulates a broader societal or political issue, we believe you and your attorneys have a broader obligation than just winning or working exclusively for a singular benefit. This is not too much to demand from Rasset-Thomas, as she has been willing to benefit all she can from martyrdom. But with her willingness to benefit from that role comes the responsibility of doing the right thing for a broader effort (especially where that effort is put forth in the name of balanced copyright). Thus far, though, it seems she has been willing to benefit from the quid, but not provide the quo.

Twice Thomas-Rasset has remained defiant after a jury’s overwhelming swift conclusions that her explanations had no credibility, explanations that effectively blamed her children for the downloading of 1,700 songs. (The latest willful infringement award is based upon 24 songs.) Given that the recording industry has shown absolutely no compunction in chasing after children and senior citizens in this litigation campaign, why would she do that?

Twice she has been to trial, and twice she has lost convincingly on a matter of significant legal, societal, and policy importance. And she has lost primarily because no one on either jury believed her; twice a jury of her peers has determined that Jammie Thomas-Rasset had absolutely no credibility.

Twice, she has benefited from legal representation that she either has yet to pay for, or has gotten free of charge.

We have scorched the music industry repeatedly in these pages for business and strategic errors, sloth, greed, and frequently (and with Congress’ help, successfully) tilting copyright law beyond what we believe (and our extensive research has proven) is a Constitutionally-mandated balance that should benefit creators, owners, and the public equally. But in its case against Thomas-Rasset, we have absolutely no problems with what the labels did and why they did it. Even though hers were civil jury trials, there can be no reasonable doubt: Jammie Thomas-Rasset was downloading and exchanging hundreds of songs without compensating the artists or the copyright owners, and she got caught.

As much as we think the music industry’s broader campaign against customers is poor business and policy, we completely support a system in which a copyright owner has the exclusive right “to do and to authorize” anything under Section 106 or Section 106A. We never have questioned that principle, or the system that supports that principle.

Jammie Thomas-Rasset has violated these principles without a legal excuse or limitation, and it seems she has played the public for foolishness by taking advantage of a broader anger at the music industry specifically, and more generally, a U.S. copyright system that has some problems and needs calibration, but still is one worth supporting.

Ms. Thomas-Rasset should pay her lawyers for their work, and the copyright owners for her infringements.

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Technorati Tags: Copycense, Jammie Thomas-Rasset, Judge Michael Davis, K. Matthew Dames, RIAA, William Patry

Here at Copycense, we have been investigating our editorial and business models in light of several changes in the way we provide information about copyright, content, media, and information policy to our audience, as well as several changes in the way copyright information is made available online. The purpose of this short piece is to apprise our audience of some of the changes we will implement throughout the rest of 2009.

Editorial Changes

Copycense has been in continuous publication since 2004, but we really began reconsidering our approach to analyzing and writing on copyright and information policy issues about a year ago. During the past year, three things have become clear to us. First, we have realized we do not want to fill Copycense with content that has only ephemeral value. Instead, we want the content here to have lasting value.

Second, we have realized there several outlets are much more capable of, and efficient at, publishing daily reports about copyright, intellectual property, and information policy matters.

Third, it has become clear to us that continuing to focus on the daily news events has hampered our ability to view and analyze such events in a global fashion. It also has made it more difficult for us to connect the dots between law, business, technology, creativity, and society, which is what we believe we do best.

In light of these observations, we announce today that Copycense is managing its coverage of news events about copyright and information policy exclusively through our Twitter account at http://twitter.com/copycense and our FriendFeed account at http://friendfeed.com/copycense. Together, the content on these accounts replaces the Copycense Clippings and Site Check features on this site.

Our Twitter feed has been up and running for about 45 days. We have found it works perfectly for managing daily news updates, but we withheld a formal announcement about its presence and purpose until now in order to work out a publication system with which we felt comfortable.

Our FriendFeed feed provides similar information to what we post on Twitter. At first glance, the accounts seem like they are providing duplicate information. There is, however, one important difference between the information on each site: the FriendFeed site lets us explain and contextualize our Twitter posts (or the stories we point to in our Twitter posts) where we feel context is necessary, or we just want to editorialize, while our Twitter site provides mostly pointers to news stories we feel are important, and witty quips about those stories.

One example of how we use FriendFeed is illustrated by our comments about federal injunctions within the context of civil copyright litigation. In a recent Tweet, we linked to a story about a federal judge’s temporary injunction that blocked the publication and continued distribution of an adaptation J.D. Salinger’s Catcher in the Rye. On our FriendFeed site, we expounded on federal judges’ willingness to routinely issue injunctive relief in copyright cases even though injunctive relief is supposed to be an extraordinary (and, by extension, relatively infrequently granted) remedy given the standard that is set forth under the Federal Rules.

We also like FriendFeed because it allows to connect to (and post from) other services like Facebook, where we soon will have a full presence.

How does our work on Twitter, FriendFeed, and Facebook affect what we do here here, the main Copycense site? Our work on these external social networking sites means that the work we post here from this point forward will be less frequent, but more expansive and technical. In essence, our social networking sites will provide daily coverage of copyright and information policy issues, while this site will publish some of the scholarly and empirical work our executive editor, K. Matthew Dames, has been conducting recently. This site also will provide a forum for some of the policy work we have been proposing, and connect more tightly with pre-publication papers we post on the Social Science Research Network (SSRN).

With these changes, we anticipate Copycense will serve our existing audience and new readers by continuing to be a reasonable and respected participant in the broader online debate about what copyright is — and what it should be — in a 21st century networked information economy. And it seems that having reasonable voices in the online debate is more important than ever in light of recent changes in the debate’s constituency.

Changes in the Copyright Debate

While we have been mulling these editorial changes, important changes have occurred in the online copyright debate. While copyright has become a citizen’s issue in the United States like never before, the broader debate about copyright has lost some of its most valuable and well-known online contributors. William Patry? Gone. (In truth, Patry occasionally drops tidbits on The Patry Copyright Blog (TPCB), and he graciously restored his archives for all after he had removed the entire blog last fall. But TPCB is effectively shuttered for business.) Patry left the blogosphere in part because he became concerned that journalists (and perhaps even citizens) of all stripes conflated his work on TPCB with official copyright policy positions from Google, for whom works as Senior Copyright Counsel.

Lawrence Lessig? See ya. He has left copyright to focus his attention on “corruption.”

Siva Vaidhyanathan? Adios. He is focusing his attention on Google, and whether Google will, in fact, avoid evil.

We note these three not because we always agreed with their writings, opinions or conclusions. But each of them did write, regularly, and did so in ways that helped remove the layers of mystery that long have shrouded copyright and information policy — layers we believe no longer can exist now that these issue affect John and Jane Doe as much as they do Multinational Conglomerate Inc. Certainly, there are other strong voices that continue to write well and evenly on information policy issues, but many of those other strong voices are lobbyists for rabidly pro-copyright owner organizations (or more specifically, corporate copyright portfolio owners) whose work and “educational” initiatives are presented to preserve business models instead of fostering copyright balance or equality.

Other strong voices call for copyright abolition, or propose licensing alternatives as a way of getting around U.S. copyright law’s current imbalance. In our view, copyright abolition simply is not an option we ever could support, and we never have supported the absence of a copyright system. Despite its flaws, we actually believe rather strongly in the U.S. copyright system; we just don’t believe in an overly strong U.S. copyright system, which is what we have now.

As for licensing initiatives like those proposed by Creative Commons, we believe they provide worthy alternative approaches, but ultimately do little to calibrate our copyright system back to its historical and Constitutionally-mandated balance. In short, if our copyright system was in balance, would we really need Creative Commons? We believe the ultimate goal should be to restore balance to our copyright system so that an initiative like Creative Commons ultimately is unnecessary.

Then there are a handful of strong voices who have “legitimate” platforms who simply do not know what they are talking about because they have failed to get their hands dirty with the theory, history, grist, and marrow of copyright. We count Mark Helprin as a member of this group. Members of this group are dangerous because they have platforms that our society considers legitimate, and because their opinions may carry weight because of their access to such platforms — even though their knowledge of copyright law, theory, and history is embarrassingly scant.

Copycense 3.0

While we are not nearly as prolific or “credentialed” as some of the others who write about copyright and information policy, we are still here. Therefore, we announce now (albeit with some trepidation) that Copycense will step in and try filling the gap left by Patry, Lessig, and others who used to contribute their work, scholarship, and thoughts to the broader online debate about balanced copyright.

We are, however, going to do things a bit differently. We will not try to do what Patry, Lessig, Vaidhyanathan did. Eaach of them are enormous scholars, and we are unsure we could match them. On the other hand, we do not think they could do what we are attempting to do from this point forward: to make copyright, information policy and related issues clear and understandable to the average citizen creator, be it a 7-year-old making a collage, or a 70-year-old creating needlepoint — all while maintaining high standards of academic and journalistic rigor.

In other words, to paraphrase Public Enemy’s Chuck D, we’ll be breaking things down so that those on the boulevard and in the bourgeoisie can understand copyright equally, with our social networking presences serving the citizenry, and Copycense.com serving the academy and political class. Audacious, we know, but we only live once, so why not do it to death while we’re here?

Education is one of the keys to successfully implementing our plans, therefore Copycense will introduce a number of educational initiatives that will help citizens understand copyright and and how it applies to their creative work, professional work, academic work, and daily lives. Copyright once was something that only concerned specialists, entertainment corporations, and lobbyists. Now — with the lower barriers of creative production and distribution wrought by computer power, software packages, and the World Wide Web — copyright arguably is as much a citizen’s issue as a corporate issue. Citizens now have as equal a claim as corporate owners to being copyright stakeholders, yet few citizens truly understand the doctrine, the issues, or what is at stake. We aim to change this situation.

We have been publishing in this space for more than 5 years, and we thank each of you for taking the time to read and consider our work. We look forward to exchanging useful dialogue and learning about copyright, information policy and related matters so that all may “promote the Progress of Science and useful Arts” and “secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

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Technorati Tags: Copycense, K. Matthew Dames, Lawrence Lessig, Mark Helprin, Siva Vaidhyanathan, William Patry

“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.

“Hollywood” Howard Berman Goes International

On May 14, Howard Berman (D-CA), chairman of the House Committee on Foreign Affairs, introduced bill H.R. 2410 (Foreign Relations Authorization Act, Fiscal Years 2010 and 2011). The bill authorizes funding for the Department of State and the Peace Corps. As a funding bill, H.R. 2410 is relatively innocuous: the State Department is one of this country’s most important federal agencies, particularly at this moment, and few can reasonably argue with the Peace Corps and its mission. (Read Secretary Clinton’s statement to Congress about the State Department’s FY 2010 budget.)

Anyone who is familiar with the federal legislative process, however, knows you always — always — must monitor appropriations bills because they attract more pork than a southern Sunday brunch. Treats — not necessarily financial earmarks, but pieces of legislation that serve as a kind of “tribute” to a legislator or powerful constituent — also get passed around like it’s Halloween whenever appropriations bills make the rounds.

The entertainment industry lobby (RIAA and MPAA in particular) have lobbied for, and won, a number of appropriations-based treats over the decades. They have used this tactic quite effectively, taking advantage of a cardinal law of Congressional self-survival: the legislative branch understandably is loathe to keep itself or governmental units running on continuing resolutions, so it is rare that a budget bill will not eventually pass.

Even more accurately, it is rare that a budget bill passes without including special treats for particularly powerful members of Congress.

Congressman Berman has been a particularly powerful member of Congress for quite some time. We (and others) noted Berman’s departure from the House of Representatives’ Committee on the Judiciary (HJC) in January 2008, where he was as consistent a pro-entertainment industry lobbyist as there ever has been. HJC’s jurisdiction includes intellectual property matters; judicial, legislative and administrative law matters; federal prisons; and antitrust.

The Center for Responsive Politics’ Open Secrets Web site reports that during the last full Congress, ending in 2008, Berman received more than $200,000 in contributions from the entertainment industry, and another $67,000 from the technology industry. In comparison, Senator Diane Feinstein received more than $265,000 from the entertainment industry over the same period. (Both totals pale in comparison to the $968,958 the entertainment industry lavished on Sen. Barbara Boxer last Congress.)

But it is a rare opportunity to get a Congressional committee chairmanship, and Berman ceded party seniority on HJC to John Conyers (D-MI), among others. (With the Democratic surge in Congress during the 2008 presidential election, Conyers became HJC’s current chairman.) So it was not particularly surprising that Berman left HJC to chair Foreign Affairs. Berman, however, was not away long enough for his seat to get cool: the same Democratic surge during the last presidential election cycle helped Berman to return to HJC, where he occupies the role of vice chairman.

Regardless of his committee assignments, we figured Berman would be hard pressed to leave behind his blind support for all things Hollywood. And it turns out we were right. Only this time, Berman’s newest nod has a chance to greatly affect the way this country manages its international affairs.

The Leaked X-Men Film & HR 2410

The first sign that Berman would find a way to blend the RIAA and MPAA lobbying agenda into foreign relations came last month, when Berman chaired a hearing in Van Nuys, CA that ostensibly was about “pirated” intellectual property. The context was classically scripted: an unfinished copy of X-Men Origins: Wolverines had been released onto P2P networks just a week earlier, and the U.S. Trade Representative’s Special 301 report (the one that put Canada on the Priority Watch List) was due in the following two weeks.

During the hearing, Berman mentioned he would “begin to elevate the attention” the U.S. gave to perceived and real international acts of copyright infringement, according to The Carpetbagger, a New York Times blog. HR 2410 does just that.

Buried in this appropriations bill, Berman (the bill’s sponsor) throws yet another bone to his old pals in Hollywood. For example, Section 329, entitled “Protection of Intellectual Property Rights,” requires the Secretary of State to “ensure that the protection in foreign countries of the intellectual property rights of United States persons in other countries is a significant component of United States foreign policy in general and in relations with individual countries,” and requires the Secretary of State to “appoint 10 intellectual property attaches to serve in United States embassies or other diplomatic missions.”

According to Section 329(c), the Secretary of State should deploy these attaches “in those countries where [his] activities … may be carried out with the greatest potential benefit to reducing counterfeit and pirated products in the United States market, to protecting the intellectual property rights of United States persons and their licensees, and to protecting the interests of United States persons otherwise harmed by violations of intellectual property rights in those countries.”

According to Section 329(d), these intellectual property attaches would engage in variety of duties, including:

• “[promoting] cooperation with foreign governments in the enforcement of intellectual property laws generally, and in the enforcement of laws against counterfeiting and piracy in particular”;
• “[assisting] United States persons holding intellectual property rights, and the licensees of such United States persons, in their efforts to combat counterfeiting and piracy of their products or works within the host country …”; and
• “[identifying] and [promoting] other means to more effectively combat counterfeiting and piracy activities under the jurisdiction of the host country.”

The kicker? Section 329(f) requires the attaches’ duties to be carried out “in coordination with the United States Intellectual Property Enforcement Coordinator.” This is the IP czar position that Vice President Biden promised would be filled with a person sympathetic to Hollywood executive concerns.

Next Steps

In short, Berman’s bill, if it passes, would deputize State Department officials to serve as the entertainment industry’s foreign affairs wing. As of this writing, the Foreign Affairs committee has recommended that the entire House consider HR 2410, and the bill was placed on the House’s Union Calendar on June 4.

The next few months will be critical. As a practical matter, HR 2410 must pass before the end of the year, since Congress’ attention will turn to midterm elections beginning in January 2010. Congress recesses in August, and upon its return, will consider to annual spending, tax, and appropriations measures. If HR 2410 is to pass with its current pro-entertainment measures, it is likely to be signed by President Obama in the fall, before Congress takes its holiday recess in December.

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Technorati Tags: Copycense, Howard Berman, Joe Biden, K. Matthew Dames, Office of the U.S. Trade Representative (USTR)

[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.

Section 301 Process Overview

The Section 301 process works in the following way:

1. Initiation: Any interested party – usually a private sector interest group – files a petition with USTR to request that the government agency investigate a possible trade violation. (USTR also may initiate an investigation on its own.)
2. Publication: USTR publishes its determination to initiate an investigation (or reasons for not initiating in the case of a petition) in the Federal Register.
3. Hearing: A public hearing is required if USTR initiates a Section 301 investigation.
4. Consultations: Once an investigation begins, USTR must request consultations with the foreign government.
5. Settlement: Where an investigation involves an alleged violation of a trade agreement (such as a World Trade Organization (WTO) agreement or the North American Free Trade Agreement (NAFTA)), USTR must follow the dispute settlement provisions set out in that agreement.
6. Conclusion: USTR must conclude its investigation and make a determination of whether the foreign practice is actionable under Section 301 within 18 months after initiation of an investigation involving a trade agreement that includes a dispute settlement mechanism, or 30 days after conclusion of dispute settlement procedures, which ever comes first.

The Trade Representative’s use of Section 301 as a procedural stick in intellectual property protection is recent. In 1984, USTR held little institutional knowledge about intellectual property matters. At the urging of IIPA members, the Office hired a new deputy trade officer, intellectual property lawyer on staff whose primary job was to advise USTR staff on issues of bilateral and multilateral diplomacy. Armed with new expertise and IIPA data, USTR started a Section 301 action in fall 1985 against South Korea.

IIPA complained South Korean businesses were extensively “pirating” books, music, film and software, and the organization claimed annual sales losses in Korea totaling $150 million. This may seem an insignificant amount now, but given the time frame – mid-1980s; high inflation; large trade deficits, particularly to Asian countries – this estimate was significant enough to warrant the attention of U.S. government officials. Korean negotiators insisted that the country’s level of development was insufficient to revise its intellectual property laws. The U.S. countered by threatening to strip Korea of its benefits under the Generalized System of Preferences.

In July 1986, Korea and the U.S. reached an agreement whereby Korea would revise its copyright laws, become a signatory to a number of international copyright treaties, and pledge to strengthen penalties against copyright infringement. Korea also pledged more aggressive patent enforcement. This was USTR’s first successful implementation of the Section 301 process against foreign country based upon “piracy.”

It is common for a private sector group to initiate a Section 301 petition against a foreign country because of alleged “piracy” issues. Initiating petitions, however, puts U.S. companies at risk of having foreign governments retaliate against their overseas subsidiaries. The retaliation can take the form of selective regulatory enforcement or questionable contract awards.

To guard against this possibility, Congress in August 1988 passed Special 301 as part of the U.S. Omnibus Trade and Competitiveness Act. Sponsored by former Illinois Congressman Dan Rostenkowski and referred to in some quarters as a “velvet fist in an iron glove,” Special 301 requires USTR to identify nations that fail to protect the intellectual property rights of U.S. companies by April 30 annually.

Any country whose acts, policies, or practices are “the most onerous or egregious” and have not entered into (or are significantly progressing toward) negotiations to provide adequate and effective intellectual property regulation the USTR must designate as a “priority foreign countries.” Countries that USTR does not designate as “priority foreign countries” may appear on “priority watch” or “watch” lists if the U.S. government is concerned about their intellectual property laws or enforcement practices.

As before the 1988 amendment, industry organizations play a vital role in filing petitions (requiring USTR follow up) and providing evidence of economic losses due to “piracy.” For example, in a response to USTR’s required Federal Register posting requesting public comment on country identification for the Special 301 report, IIPA earlier this year submitted “[its] discussion of the types, levels, and costs of piracy, an evaluation of enforcement practices to reduce those levels, and the status of copyright law reform in 60 separate country reports.” Referencing its Jan. 30, 2007, report entitled “Copyright Industries in the U.S. Economy,” (.pdf) IIPA claimed in a 22-page cover letter (.pdf) that

“core” U.S. copyright industries accounted for an estimated $819.06 billion or 6.56% of the U.S. gross domestic product (GDP) in 2005. These “core” industries were responsible for 12.96% of the growth achieved in 2005 for the U.S. economy as a whole (this means that the growth contributed by these core industries (12.96%) was almost double their current dollar share of GDP (6.56%)). In addition, the “core” copyright industries employed 5.38 million workers in 2005 (4.03% of U.S. workers) in 2005.

It is essential to the continued growth and future competitiveness of these industries that our trading partners provide not only free and open markets, but also high levels of protection to the copyrights on which this trade depends. This protection upon which so much U.S. economic performance rests is under constantly evolving threats, and it is critical to sustain U.S. economic competitiveness that our country’s response remains flexible, innovative and committed. There are certain sectors of the U.S. copyright community, notably the music sector, that has already witnessed significant declines in foreign sales and royalty remittances as a consequence of increased levels and new forms of piracy, and it is essential that we address these problems on an urgent basis.

The IIPA mentioned the term “piracy” 93 times in the cover letter. None of those mentions is consistent with the term’s primary definition in Black’s Law Dictionary, the United Nations Convention on the Law of the Sea, Oxford English Dictionary, or the United States Code.

The 2009 Special 301 Report

The 2009 Special 301 report, which the USTR released on April 30, examined more than 40 countries, placing a dozen (China, Russia, Algeria, Argentina, Canada, Chile, India, Indonesia, Pakistan, Thailand and Venezuela) on the “priority watch” list (PWL). The number of countries on the report’s “priority watch list” has remained relatively stable over the years. (In 2007, there were 12 countries on the “priority watch list.” In 2008, nine countries made the list. China, Russia, Argentina, India, and Thailand have made the PWL each of the last three years.)

USTR placed more than 30 additional countries on its 2009 “watch list.”

Canada was perhaps this year’s most surprising inclusion on the 2009 PWL. Over the past three years, Canada has experienced considerable citizen interest in (and resistance against) government proposals to increase the country’s level of copyright protection, most notably through a Facebook group organized by University of Ottawa law professor Michael Geist. The citizenry’s effectiveness in halting government proposals to spread stronger protections, however, has led to disapproval from the U.S., its southern neighbor:

[T]he Government of Canada has not delivered on … commitments [to improve IPR protection and enforcement] by promptly and effectively implementing key copyright reforms. The United States continues to have serious concerns with Canada’s failure to accede to and implement the WIPO Internet Treaties, which Canada signed in 1997. We urge Canada to enact legislation in the near term to strengthen its copyright laws and implement these treaties. The United States also continues to urge Canada to improve its IPR enforcement system to enable authorities to take effective action against the trade in counterfeit and pirated products within Canada, as well as curb the volume of infringing products transshipped and transiting through Canada. Canada’s weak border measures continue to be a serious concern for IP owners.

Part of the reform the U.S. wants Canada to pass is C-61, legislation that mirrors the U.S. Digital Millennium Copyright Act. Since the Canadian government has had difficulty in passing this and similar legislation, the U.S. has placed it alongside perennial PWL countries like Russia and China.

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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.

The Berne Convention

The Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”) is an international treaty, first signed in 1886, that seeks to give creators some level of consistent copyright protection across the world. The principle that guides Berne is that where an author’s nationality differs from the work’s country of origin, the author should receive the same copyright protection as national authors. Further, the Berne Convention obliges all signatory countries to respect an author’s moral rights. (“Moral rights” is a term that describes the ability of authors to control the eventual fate of their works. The concept relies on the connection between an author and her creation, and protects the personal and reputational aspects of a creative work, rather than its monetary value. (See Betsy Rosenblatt’s primer on moral rights from the Berkman Center.)

The U.S. signed the Berne Convention treaty in 1988, becoming the 76th nation to sign. More than 100 countries are signatories.

From a practical standpoint, the U.S.’s adoption of Berne eliminated the need for authors to place a copyright notice on their work, and made copyright registration optional except in circumstances where the owner wishes to sue for copyright infringement in Federal court. For example, The the “no registration” requirement has had a significant and detrimental affect on digitization programs, since an item for which copyright ownership cannot be determined often is an item that is removed from the universe of digitization possibilities.

Further, the Berne Convention has been cited as the basis for domestic legislation such as the Visual Artists Rights Act of 1990 (which provides authors with some semblance of moral rights under U.S. law); the Digital Millennium Copyright Act of 199 (which protects digital works and has been the source of controversies too numerous to mention here); and the Sonny Bono Copyright Term Extension Act of 1998 (which retroactively lengthened copyright terms by two decades).

“Harmonization”

Additionally, the Berne Convention’s widespread adoption has helped usher a new term into the copyright lexicon: “harmonization.” I first recall hearing the term in the late 1990s, around the time Congress was debating the legislation that ultimately became the Digital Millennium Copyright Act (“DMCA”).

Simply put, “harmonization” is a concept whereby the intellectual property laws of different countries are made consistent, mostly to facilitate international trade and business. The concept of harmonization is not unusual; almost all the states and territories in this country are signatories to the Uniform Commercial Code (UCC), a model law in the U.S. that makes consistent (or “harmonizes”) the law of contracts, sales, banking, and secured transactions. This allows firms in one state to reasonably, predictably, and consistently do business with firms in another state.

Since each state has its own law—New York law is different from Indiana law, which is different from Texas law—it could be difficult for firms to do business across jurisdictions. The UCC facilitates interstate commerce by providing a core standard. States may deviate from it or tweak it—it is, after all, a model—but almost all U.S. states and territories have adopted the UCC’s core provisions into their state statutes.

National intellectual property laws work in a similar fashion. Intellectual property law is a national construct: U.S. intellectual property law differs from Spanish intellectual property law, which differs from Russia’s intellectual property law. Without an overarching, facilitating treaty such as the Berne Convention, there would be mass legal anarchy. This issue is exacerbated when the laws of different nations to problems and issues that exist exclusively online, where the notion of jurisdiction is vague at best, are applied. Instead, Berne allows U.S., Spain, and Russia to work from the same core intellectual property principles. Each nation has its own copyright law, but with a nation’s adoption of Berne, a core consistency is enforced.

From a linguistic perspective, harmonization suggests a voluntary coordination that the parties to an agreement will be held to the same, core standards and will be working under the same rules. Ideally, each country’s intellectual property laws should have similar weight and effect where harmonization occurs.

But in reality, harmonization of intellectual property laws is different. The term has become a euphemism for the global, one-sided spread of United States’ intellectual property laws. One could argue that under the guise of harmonization, intellectual property law has become America’s chief 21st century export. In the harmonization model, U.S. intellectual property law effectively becomes the world’s de facto intellectual property law, effectively overriding the voluntary coordination principle that should be inherent through the Berne Convention.

The dismissal of voluntary coordination occurs because the U.S. leverages its economic power to force other countries to adopt U.S. copyright law in lieu of their own if the U.S. thinks the foreign country’s laws are insufficient to protect American intellectual property. It is a “carrot and stick” approach: If a foreign country wants to do business with the U.S. (or get U.S. support to enter into the World Trade Organization), it must adopt U.S. copyright standards and codify them into their statutes.

For most foreign countries, this quid pro quo has become the price of doing business with the U.S. On the other hand, it is unusual that the U.S. would agree to agree to another country’s intellectual property regimen: It doesn’t have to. Therefore, harmonization really is doublespeak for a worldwide adoption of the American intellectual property standard. Much of this deal making happens through the Office of the U.S. Trade Representative.

The U.S. Trade Representative

According to its Web site, the Office of the U.S. Trade Representative (USTR) is responsible for developing and coordinating U.S. international trade, commodity, and direct investment policy and for overseeing negotiations with other countries. The head of the Office, Ambassador Ron Kirk, is a former mayor of Dallas whom President-elect Obama nominated to the position in December 2008. The Senate confirmed Kirk’s nomination on March 18, 2009. Kirk is a member of President Obama’s Cabinet and serves as his negotiator and spokesperson on trade issues.

Given intellectual property’s undeniable importance to the bottom line of several large U.S. companies, it is unsurprising that Kirk continues to make intellectual property protection a centerpiece of international trade discussions, much like his predecessor, Susan Schwab. Schwab thought the intellectual property issue so central that in late June she created a new Intellectual Property office within USTR. Schwab announced she was increasing resources and staff for the new office, including appointing a chief intellectual property negotiator whose priority is negotiating trade deals with China and Russia, countries that routinely are identified in the USTR’s annual “Special 301” review as being lax on protection of U.S. copyrights, trademarks, and patents.

The Workaround

There long has been concern that expansive language in free-trade agreements may raise the level of copyright protection above and beyond the international standards under the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights annexed to the agreement establishing the World Trade Organization. Now, arguably, the trade negotiation process has become a channel through which large, corporate copyright portfolio owners manipulate the trade agreement process to enforce a narrow, protectionist extension of copyright law, circumventing the traditional legislative process. Most of this work is done without notice to the public or Congressional hearings, so the first time those outside the process learn about the new arrangement—which has the effect of law—is when a USTR press release announces the trade agreement.

William Patry, author of the treatise Patry on Copyright, summarized this process in September 2006.

U.S. industry group X [insert software, publishing, music, etc.] goes to USTR and says we need new rights; please obligate the United States to provide for those rights in an international agreement, whether a new treaty or trade deal. Without public input, without congressional hearings, without legislation, USTR commits the U.S. to provide that protection. The Executive Branch then goes to Congress and says to Congress that legislation has to be passed on pain of the U.S. violating its international obligations. Congress complies.

This is the epitome of backroom, middle-of-the night deal making with cigars, winks, and nods, the stuff of local machines and voting blocs purportedly dismissed long ago as gross perversions of democracy. Patry also notes that these trade deals also pose a considerable threat to our notions of fairness and democracy in the political process.

“Whatever one might say about USTR, one cannot fairly describe that agency as concerned with the larger public good,” continues Patry. “There are serious institutional and policy issues with this trend. Initiatives to amend U.S. law should be taken up first by Congress; they should make sense as a matter of domestic balancing. Congress is the policymaker in our system, not the Executive Branch. Couching issues as trade issues or foreign policy is a too clever and dangerous way to make U.S. law overseas. It should stop for the public good.”

What about Congress? Many veteran political observers, including Thomas E. Mann and Norman J. Ornstein, authors of The Broken Branch: How Congress Is Failing America and How to Get It Back on Track, have accused Congress of totally abdicating its role as the first branch of government since the Sept. 11, 2001, terrorist attacks. On this issue, one would expect members of Congress to be offended at the suggestion that trade representatives know better what America’s intellectual policy should be. Instead, the Congress has failed to provide any resistance.

The problem was exacerbated by the “fast track” authority that presidents once held. “Fast track” is a procedure through the president has sole and exclusive authority to negotiate trade agreements. Elected members of Congress must agree with all of the terms and conditions of an agreement negotiated under “fast track” authority, otherwise it must vote against the entire agreement. President George W. Bush was able to secure “fast track” authority after President Clinton failed to secure it for his administration. This allowed Bush’s trade negotiators the authority to cut their own deals and bind the U.S. (as well as foreign countries) to those deals on a “take or leave” it basis. According to Public Citizen, presidential fast track authority (also called “trade promotion authority”) expired June 30, 2007.

While “fast track” has expired, the U.S. Trade Representative’s role in shaping foreign and domestic intellectual property affairs continues to manifest itself through the Special 301 process. We will address Special 301 in Part 2 of our three-part series.

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Normally, this post would be something best left to someone like William Patry, whose credentials on copyright are above reproach. Lawrence Lessig has responded to Helprin in a contemporary and ingenious way, but Lessig’s main focus now has moved from intellectual property matters to what he has called “corruption” (and what Harvard Law School, his new employer calls “a major five-year project examining what happens when public institutions depend on money from sources that may be affected by the work of those institutions”).

We are nowhere near the orbit of either Patry or Lessig when it comes to issues of copyright theory and history. We do think, however, we have some reasonable ideas and knowledge about the American copyright system and its increasing imbalance. And consistent with the the expectations the public should have of scholars and journalists, we don’t just spew: we back up our assertions with the best information we have available at the time.

Therefore, since Patry and Lessig are doing other things, we feel obliged to address Mark Helprin’s of editorials on the U.S. copyright system, the most recent of which was published in the May 11 edition of the Wall Street Journal.

Deconstructing the Myth of Romantic Authorship

Helprin’s views on copyright have been getting a lot of publicity lately. Conveniently, his views on copyright coincide with the release of a new book he has to promote, one that purportedly is about American copyright. The book, entitled Digital Barbarism: A Writer’s Manifesto, has been described by The Wall Street Journal in a review as an argument for copyright’s perpetuity. Interestingly, the WSJ review (written by the executive vice president of News Corp., the Journal’s publisher) is entitled “Hands Off, It’s Mine.” This title is important, and we’ll return to it in a moment.

Helprin first introduced his view of the American copyright system two years ago, in a New York Times editorial. Entitled (at least in the Times‘ online edition) “A Great Idea Lives Forever. Shouldn’t Its Copyright?”, Helprin argues in favor of endless copyright (or as the late MPAA president Jack Valenti would have put it, at least “forever less a day”):

The genius of the framers in making [the Constitution’s limiting clause “for limited Times”] is that it allows for infinite adjustment. Congress is free to extend at will the term of copyright. It last did so in 1998, and should do so again, as far as it can throw. Would it not be just and fair for those who try to extract a living from the uncertain arts of writing and composing to be freed from a form of confiscation not visited upon anyone else? The answer is obvious, and transcends even justice. No good case exists for the inequality of real and intellectual property, because no good case can exist for treating with special disfavor the work of the spirit and the mind.

The argument Helprin makes is consistent with a construct copyright scholars refer to as the “Romantic author,” which itself is related to theories of authorship. Authorship is central to copyright law: the U.S. Constitution grants “to Authors and Inventors the exclusive Right to their respective writings and discoveries.” Authorship also is relevant in contemporary, statutory copyright law: while the current Act fails to define what an author is, other parts of the Act refer to the author as the initial copyright owner. (As a practical matter, ownership of one or more rights in a copyright usually ends up with a person or entity other than the author.)

The Romantic Author theory essentially claims that authorial rights exist in law because authors naturally have a right in their work the moment it is created, that an Author is worthy of such rights, and it is righteous, ethical and just for the Author to have such a connection (creatively and legally) between him and his work. Additionally, the theory claims an author should be allowed a wide (and perhaps even endless) term to earn money from his protected work to the extent that he can claim sole credit for the work’s creation.

The Romantic Author theory focuses intently on the individual for two reasons: first, the Author is considered to be a privileged individual; second, the creative activity of Authorship is considered to be separate, discrete, and solitary instead of collaborative, cumulative, or derivative. To this end, the Author is considered to develop his creations in nearly complete isolation, without any external influences or inspiration. Within his creative cocoon, he is able to (perhaps even entitled to) be known as the ultimate source of text.

Even though a related thread of this narrative involves viewing authors as craftsmen – a characterization that seems to dampen the emphasis on creative and intellectual genius – that thread still allows for a set of circumstances where by hard work melds with tradition and divine inspiration. Even this slightly less glamorous thread of the Romantic Author narrative continues to allow for a direct connection between divine inspiration and the resulting words on the page.

While appealing, however, the construct of the Romantic Author is false. For example, Texas law professor Oren Bracha argues persuasively in a 2008 journal article that ascribing the entirety of the U.S. copyright regime exclusively to a Romantic Authorship narrative not only is too simple, but it is historically inaccurate. Peter Jaszi, both on his own and in collaboration with Martha Woodmansee, has shown that the Romantic Authorship trope – while false – still has become an active and destabilizing force in copyright doctrine and policy.

Northwestern law professor Olufunmilayo Arewa has written extensively about the ethos of collaboration and borrowing in the creative process (including in classical music), and Georgetown law professor Julie Cohen has discussed the dynamic interactions (.pdf) between individual creators and social and cultural patterns as the root of authorship.

Even French philosophers such as Michel Foucault (.pdf) and Roland Barthes (.pdf) essentially have questioned the premise of the author as solitary genius — no insignificant question given that both men come from a country that takes authorship genius (as manifested through the concept of droit moral) to a far greater degree than exists under U.S. law. In the end, the “mine” that Helprin wants to champion really is more like an “ours,” since virtually every creation will be derived from something else. (In fact, one could make a reasonable argument that the default nature of authorship in a digitally networked society is not the mix, but instead the remix.)

There is also an irony in the authorship construct that Helprin promotes. If one assumes that an individual’s creativity is king, then it would play a larger role in contemporary copyright law than it actually does. A person’s work qualifies to receive copyright protection once he creates something original, then fixes it in some recording that can be perceived by another person. The level of original creativity that U.S. law requires, however, is relatively slight. Helprin suggests every piece of writing is a War and Peace in the making, and thus the law should go to the extreme to protect such creative epics. But the fact is that American law does not require the proverbial opus: according to the U.S. Supreme Court’s opinion in Feist v. Rural, 499 U.S. 340 (1991), “the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, ‘no matter how crude, humble or obvious’ it might be.”

Influencing Copyright Law & Policy

Helprin’s views about a certain class of copyright lobbyists are more easily dismissed. In the May 11 WSJ editorial, Helprin sharply attacks organizations he considers to be anti-copyright (and by extension, perhaps also against creativity):

But copyright, the rampart of the mythical city, is besieged by a widespread movement antagonistic to authorial right and the legitimacy of intellectual property. So-called public interest groups serve the new information super powers, the Standard Oils of our age, whose interests would be advanced if they did not have to bother with permissions and payments for what they call “content.” The Creative Commons organization, for example, is richly financed by Google, Microsoft, Yahoo, Mozilla, Sun, the Hewlett Foundation, and others of type.

The opponents of copyright are no more disinterested than its defenders, although they do a good job of pretending, and their theories have become the window dressing for the piracy of software, music, movies — and soon the written word. They may claim that they are not against copyright per se. But if, as they repeatedly assert, copyright is an unjustifiable tax, a monopoly, and a bar to creativity, why wouldn’t they or anyone else be against it, as in fact they are?

Specifically as to Creative Commons, we have said before that our problem with the entire CC concept is that it moves copyright issues into the realm of contract law instead repairing their federal statutory and political bases. The flip side is that if the current copyright system was in its proper, Constitutionally-mandated balance, it is possible there would be no need for organizations like Creative Commons, or Electronic Frontier Foundation, or Public Knowledge.

To this end, Helprin’s argument sounds suspiciously like Republicans who now whine they have no political organizations to represent their views like the Democratic-oriented Center for American Progress, all the while forgetting they spent years building and funding organizations like the Heritage Foundation.

Since Helprin apparently is new to the copyright game, perhaps we can forgive his ignorance for not realizing that RIAA, MPAA, BSA, IIPA and lobbyists for various other corporate copyright portfolio owners not only are well-funded and organized, but long have been the exclusive arbiters of U.S. and international copyright law and policy, as both Jessica Litman and William Patry have noted. Interestingly, none of those lobbying organizations have authors’ or creators’ best interests in mind. Sure, their marketing and political rhetoric is quick to mention the author (in all her Romantic glory) and their protection of her art. In actuality, however, those lobbyists mention the author or creator merely to humanize their true clients: multinational corporations whose revenues, profits, expense account sizes, and share prices all depend on licensing one or more of the six rights a copyright owner receives under the 1976 Act.

Of course, the only way the corporations can do this is to actually own the rights in the first place, thereby divesting that same author or creator of the legal or economic power that arises from her creation. In reality, copyright ownership in the U.S. is often a zero-sum game: the authors get zero, and corporate owners get the sum. Helprin cannot reasonably refute this.

Again, we can excuse Helprin’s ignorance of the industrial and legal realities: copyright, unfortunately and after all, is complicated. There is no excuse, however, for patently misrepresenting the policy positions or the missions of the organizations he has chosen to attack. Some of us at Copycense have been involved in copyright matters going back more than a decade from the legal and political standpoint, and for more than 30 years from the creative standpoint. At no point have we heard or read anything from EFF, Public Knowledge, Creative Commons, or a similarly situated organization that serves as “the window dressing for ‘piracy.’”

Do we agree with everything these organizations promote? Certainly not, and regular readers know we have said so. But even a cursory glance at their positions would reveal all are in favor of balanced copyright legislation. None of these organizations, however, give any credence to Helprin’s tight embrace of the Romantic Authorship construct. Unfortunately for him, neither does the history of copyright law, either in the U.S. or in England.

We have no problem with accepting new voices into the copyright debate. Indeed, it is the absence of new voices and new ideas that has led us to the imbalance that exists. But all new voices should be required to perform some basic research and due diligence before opining so publicly about the state of the copyright world. At least based upon his editorials, Helprin clearly has not.

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