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.

Copycense on Twitter: http://twitter.com/copycense

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

Copycense and its executive editor, K. Matthew Dames, have been noted by The New York Times’ Freakonomics blog for our two-year coverage of the misuse of the term “piracy” in connection with intellectual property. The Freakonomics blog also cites Dames’ working paper of the history of the term piracy, both in the English language and in American legal usage.

Related:

- Freakonomics blog (The New York Times). Pirates Steal Ships, Not Songs. April 23, 2009.

- K. Matthew Dames. The Etymology of Piracy (working paper). SSRN. April 21, 2009.

- Copycense. Dismantling the Frame of Piracy. April 18, 2007.

- K. Matthew Dames. Framing the Copyright Debate. Information Today. September 2006.

Copycense is on Twitter: http://twitter.com/copycense

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

In light of the U.S. Navy’s rescue of Capt. Richard Phillips on Easter, many news outlets understandably are interested in writing about piracy. Interestingly, some news outlets have raised an important question about “piracy” as a term: in light of the ongoing (and newly news-worthy) threat of violence at high sea, should “piracy” continue to be used to mean theft of works that are protected by copyright or other forms of intellectual property?

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 substitutes. Dubner followed with a second post on April 17 to anoint “downlifting” as the linguistic successor to “piracy.” In the meantime, the Washington Post and The Guardian (UK) followed with their own takes on “piracy” language.

It seems each of these publications, however, may have been beaten to the punch by Jenny Kakasuleff and the Indianapolis Liberal Examiner. Kakasuleff’s post was the first we saw this year to question using “piracy” within the context of intellectual property, and the timeline on her post suggests she addressed this before Dubner by about 10 hours. Better yet, her lede is 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 lives to see another day.”

Source: http://tinyurl.com/c3f3oc

Of course, regular Copycense readers have known for quite some time that we never use “piracy” as a proxy for IP theft. We wrote about this in these virtual pages in an April 2007 post entitled Dismantling the “Piracy” Frame. Today, we re-post some of that that writing:

“Since at least late 2005, Copycense assiduously has avoided using the word “piracy” as a synonym for allegedly illegal uses of protected intellectual property. Since then, whenever the term has appeared in this publication, it usually appears in quotes (i.e. “piracy”). There are several reasons for our care. First, since Copycense reports on the intersection of business, law, and technology, it is unusual that we would report on anything remotely related to “acts of robbery and depredation upon the high seas.”

“Second, as we have shown here, the term “piracy” has nothing to do with copyright or any other form of intellectual property, much less the allegedly illegal taking of such material. Any use of the term piracy that relates to intellectual property is wrong or an overt linguistic manipulation for political or economic advantage. We’ll concede the entertainment industry’s “piracy” frame has been artful and successful. We also know that it is wrong.

“Third, perpetuating the “piracy” frame pigeonholes intellectual property dialogue into a narrow box that considers only an owners’ rights. All intellectual property law is a delicate balance between the rights of the owner author, or inventor, and the public interest. In copyright law, for example, an owner’s exclusive rights generally are outlined in Sections 106 and 106A, while the public policy-oriented limitations (or exceptions) to those exclusive rights generally are codified in Sections 107 through 122.

…

“[Several publications and organizations … reinforce] the “piracy” frame through [their] reporting. The New York Times, The Wall Street Journal, The Washington Post are among them, and they continue to do so even though their coverage over the last 18 months increasingly has been critical of the entertainment industry, their lobbyists, and the overtly protectionist copyright laws those groups are responsible for proposing and ramming through a Congress that has been ignorant about the frame, too weak to stop it, or complicit in accepting it without the mildest investigation.

“But at some point the “piracy” frame must be uncovered for what it is: public relations blather. It is sexy, simple, and concededly well-designed blather, but blather nevertheless. We have committed to avoid using “piracy” except where such use is consistent with its definition (which means we will not have much need to use it at all). Instead of “piracy,” we call on journalists, editors, and bloggers to use the phrase “alleged infringement.” Unlike “piracy,” the phrase “alleged infringement” is legally accurate, simple, and suggests that accusations of unsanctioned use of copyrighted materials are subject to exceptions and a legal process by which a judge or jury may or may not hold the accused liable for infringement or damages.”

Source: http://www.copycense.com/2007/04/dismantling_the.html

As it turns out, Copycense executive editor K. Matthew Dames has been studying the intersection of framing, law, and policy extensively for more than two years. In addition to the aforementioned Copycense post, Dames first addressed framing in a September 2006 article published in Information Today magazine, and presented a paper about the meanings of piracy in September 2008 at Syracuse University. He has updated the 2008 paper, which is part of a broader study he is conducting on framing, rhetoric, and U.S. copyright policy, and it is now available on SSRN.

Finally, to answer Dubner’s question, instead of “piracy,” why don’t we call these things what they are: allegations of copyright infringement?

Related:

• K. Matthew Dames. The Framing of “Piracy”: Etymology, Lobbying & Policy. SSRN. April 21, 2009.
• Copycense. Dismantling the “Piracy” Frame. April 18, 2007.
• K. Matthew Dames. Framing the Copyright Debate. Information Today. September 2006.

Copycense: Incisive IP.

Technorati Tags: piracy, Copycense, framing & rhetoric, K. Matthew Dames, language, definitions, tag

We presume Twitter is devoid of any seriousness, but we realized we unintentionally opened a can of thorny theoretical and doctrinal questions last week when we posted the following rhetorical question (or, rather, something quite similar) to our account:

Is copyright an exception to the public domain, or is the public domain is an exception to copyright?

Granted, we’re currently engaged in a project that has us pondering this sort of question in the first place. But we think your answer to this question says a lot about your normative view of the copyright regime. While we have some thoughts about how we may approach answering this question, we do not have an opinion as to which answer (or underlying rationale) is “correct,” if any answer is “correct” at all.

Ultimately, though, since copyright officially touches so many aspects of contemporary, everyday life (for example, see John Tehranian’s interesting analysis of this issue), we think this is a question that people affected by copyright should consider and answer.

Copycense™: Incisive IP.™

Yes, we’re even more shocked than you are that we’ve (a) set up a Twitter account; and (b) are actually using said account.

In truth, however, we have been mulling the editorial direction of Copycense for some time. (i.e. Do we still do news, since so many others do it? Do we continue with pithy short posts? Do we devote our time to longer posts like the Girl Talk article?)

It turns out we actually find some use for the Twitter approach. (And no, Oprah’s embrace had absolutely nothing to do with our decision.)

Lo, verily, and thus, we are going to migrate our short news posts to our Twitter presence for the time being. This will allow us to reserve this space for longer, more expansive works.

Copycense is on Twitter at http://twitter.com/copycense. (And yes, if you know anything about Copycense, you will realize the avatar is totally tongue-in-cheek.)