This week, The New York Times has been hosting a copyright “debate” between Columbia’s Tim Wu and NBC Universal’s general counsel Rick Cotton. (The entire debate is available on The Times‘ site; the instant link is to one portion of the debate.) We use the term “debate” lightly because, as we analyze below, these commentaries are not discussions featuring opposing arguments. Instead, they are framed discussions that express implicit support for the content industries’ view that copyright and control are synonymous.

We’ll use as an example Monday’s question about the use of copy restriction technologies. The first problem with the Times‘ question is that it conflates creators of copyrighted works with owners of copyrighted works. By asking Rick Cotton (who represents a copyright owner) to respond, the Times perpetuates a common misperception that creators and owners are one and the same.

Typically in today’s commercial environment, they are not: the creator often surrenders ownership of his copyright to a corporation hoping the corporation can monetize that creation more effectively than the creator would on his own. The income stream a creator expects from this surrender may or may not occur, and history is filled with creators who never received a dime from corporate owners after surrendering their work.

Why is this conflation important to identify? It’s important to identify because one of the chief arguments corporate copyright owners put forth advocating more restrictive copyright law is that doing so will ensure compensation to the creators. This argument is — and always has been — utter garbage. Hip hop artist Q-Tip spoke for generations of stiffed artists when he rapped in “Check the Rhime”:

Industry rule number 4,080 / Record company people are shady

Technorati Tags: CommuniK., Copycense, K. Matthew Dames, piracy

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William Patry, author of The Patry Copyright Blog, has been en fuego the last few days, writing mostly about proposed U.S. copyright legislation, H.R. 4279 in particular. In addition to suffering the dreaded acronym disease that has plagued legislation since the USA PATRIOT Act in 2001, H.R. 4279 (the Prioritizing Resources and Organization for Intellectual Property Act, or “PRO IP Act”) would increase penalties for copyright infringement, among other things.

(In our most recent edition of Clippings, we focused on the legislation’s proposal to create a Cabinet-level intellectual property czar with a starting budget of $25 million.)

Anyone remotely concerned about balanced copyright should be concerned that Congress is considering this bill, especially with a presidential election and the end of a Congressional term approaching. Candidates on both sides of the aisle recognize they need the support of the entertainment industries that support H.R. 4279, and will be willing to accommodate them. (That is why the Copyright Alliance’s open lobbying campaign of presidential candidates last month was significant.) These industries have prior success in getting bills passed (usually within larger omnibus budget bills) as the Congressional term winds down to zero.

(Lest citizens characterize PRO IP as another Republican plot for world takeover, we note for the record that PRO IP support is bipartisan. Also, let us not forget that the legislation that arguably began this streak of progressively tighter copyright laws, the Digital Millennium Copyright Act, was signed by a Democratic president working with a Democratic Congress.)

But back to Patry, and his points about the legislative process. In the second of two posts, Patry commends the Canadian approach to the legislative process, noting along the way that University of Ottawa law professor Michael Geist was able to gather more than 10,000 Canadians to protest the country’s recent foray into DMCA-like legislation. “How Canada deals with the substantive issues is of importance, obviously, but for those of us in the U.S., how the Canadians have dealt with the process of having their voices heard is instructive indeed,” Patry wrote. “There is much we have to learn from Canada. I cannot think of a better place to start than with H.R. 4279.”

Patry’s summarizes his opinion of the PRO IP bill in the final paragraph of his first post:

So this it: a Zero Tolerance approach to a civil, economic tort, copyright infringement. The dangers in the new Zero Tolerance to copyright go far beyond the individuals swept within its net, although that is bad enough: the Zero Tolerance approach threatens respect for law itself. People do not obey laws they abhor, and there is much to abhor in H.R. 4279. Copyright owners have proved themselves incapable of understanding their customers and the public’s outrage over the direction copyright has taken; perhaps they delude themselves into thinking that the opprobrium comes from those who don’t respect law anyway; but it doesn’t: it also comes from those like Sir Hugh and I who love copyright law and who have devoted our professional careers to it. If section 104 and the civil forfeiture provisions of H.R. 4297 pass, there will be many others.

I, too, love copyright. Perhaps unlike Patry, my involvement in copyright from the legal perspective is relatively recent compared to my involvement with copyright as a creator of words, music, and art. I believe in “promot[ing] 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.” (Emphasis mine.)

I create, and I get paid for my creations. I like and expect to be paid for my creations. I expect my creations will be protected by the law. Everything on Copycense is subject to Copyright Act of 1976 — rights and exceptions all — and we will not hesitate to file a DMCA takedown notice against any Web site that dares to scrape and re-post this site’s contents whole or without attribution.

Despite my strident criticisms of the lobbies such as RIAA and MPAA, no one ever has read in these pages that we do not believe in copyright or copyright protection. But, like Patry, I believe U.S. copyright has gone almost irreconcilably askew. There are a variety of reasons for this problem, but I want to focus on one. And I’ll begin with a story.

Technorati Tags: CommuniK., Copycense, William Patry

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This week’s edition of Clippings is all “straight, no chaser”: a good number of new stories, a good number of older stories, and a QoTW that questions core elements of the U.S. patent system.

Quote of the Week

“Even if AT&T’s [telephone] patent is theoretically applicable to the Internet, why should AT&T be allowed to claim such rights? If I set up an packet-based extraterrestrial communications network five years from now, should AT&T ‘own’ the rights to it?” — Alexander Wolfe

Wolfe’s Den. AT&T Suit Against Vonage Makes Mockery Of U.S. Patent System. Oct 22, 2007. Information Week columnist Alexander Wolfe blows hard, but true in his incredulity at the state of the U.S. patent system, which contributed to AT&T’s patent infringement lawsuit against Vonage. Cases: Cases & Litigation; Patent; Web & Online.

Clippings

Catherine Pickavet. Trademark Infringement Meets Consumer Privacy. Internet News. Oct. 29, 2007. Similarly named companies battle over trademark confusion, while consumers routinely send private and confidential e-mail to the wrong financial institution. Categories: Privacy & Security; Trademark.

The Wired Campus (Chronicle of Higher Education). Senators Support Open-Access Measure. Oct. 29, 2007. The Senate passes appropriations bill HR 3043, which includes language requiring all NIH-funded researchers to submit their final manuscripts to the National Library of Medicine’s PubMed Central. Now the measure, already passed in the House, needs to survive a Bush veto. Categories: Legislation & Regulation; Open Access; Science & Medicine.

Technorati Tags: Copycense, Copycense Clippings, K. Matthew Dames

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The Clippings train continues, pulling in with stories about Jerry Seinfeld’s wife and spinach; iPods and the TEACH Act; downloads and taxes; movies and advertisements; and a sincere, well written, well considered recitation from a publisher (gasp!!!) about the problems it faces with infringement from potential customers who likely mean well, but misunderstand the Copyright Act of 1976.

Articles of the Week

The Movie Blog. Why Commercials Before Movies Is Worse Than Piracy. Oct. 16, 2007. A simply great, common sense, well deserved rant about the evils of in-movie advertising. Categories: Film & Video; Infringement.

EnvironmentalChemistry.com. Plagiarism, Copyright Infringement, Fair Use and Environmental Organizations. Oct. 16, 2007. Regular readers know we have not hesitated to strongly criticize publishers for their consistently overreaching allegations of copyright infringement. We never have said, however, that publishers do not suffer copyright infringement; certainly infringement and plagiarism hurt small publishers in disproportionate way. This post is one of the most honest, candid, spin-free explanations we’ve seen about how infringement hurts publishers. What’s more, this editor concedes fair use exists, but cogently explains that fair use is not a license to commit infringement. We urge officials at the Association of American Publishers to study this article thoroughly and use it as a case study in how to explain the infringement issue to the public, instead of continuing the ineffective, often disingenuous, propaganda-laden scorched earth campaign it has pursued to frighten its audience into copyright compliance. Further, we encourage the public to use fair use and other copyright exceptions to their full limit; we also urge the public to pay for the information and entertainment you use and enjoy. Categories: Fair Use & Other Limitations; Infringement; Web & Online.

Quote of the Week

“Good teaching shouldn’t be unlawful.” — Rebecca Tushnet

43(B)log. iTeach. Oct. 11, 2007. Georgetown law professor Rebecca Tushnet mentions what a shame it would be if innovative language learning initiatives (such as the one occurring in New Jersey using iPods) had to succumb to an inflexible copyright regime. Categories: Education; Mobile Devices.

Technorati Tags: Copycense, Copycense Clippings, K. Matthew Dames

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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.

Technorati Tags: CommuniK., Copycense, K. Matthew Dames

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Another weekly edition of Copycense Clippings, with stories about Led Zeppelin, Radiohead; free radio in the U.S.; limited downloads in Europe; and the Nobel Prize that made the iPod possible.

Quote of the Week

“A sensible copyright system—perhaps similar to the one we had for most of the 20th century—would work just fine for the 21st century. It would ensure artists are fairly compensated while greatly reducing the deadweight losses Baker identifies in the status quo. The reasons these reforms haven’t happened (and indeed, the reason that copyright rules keep getting more and more draconian) is that the copyright industries are one of the most powerful special interest groups on Capitol Hill. This is the old story of concentrated benefits and dispersed costs. There’s no shortage of good reform proposals, there’s just no one with the clout to push any of those reform proposals through Congress.” — Timothy B. Lee, Cato Institute

Cato@Liberty. A Bad Copyright Reform Proposal. Oct. 11, 2007. Lee’s quote is a response to an article by Dean Baker, co-director of the Center for Economic Policy Research and editor of the Beat the Press blog on economic reporting, in which Baker opined that artist subsidies (such as his proposed Artistic Freedom Voucher) are a useful alternative to copyright law run amuck. Unfortunately, Lee does not prescribe any solutions to this problem.

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(Editor’s Note: This article accompanies a lecture K. Matthew Dames gave Oct. 9, 2007, to the Digital Libraries class (IST 677) at Syracuse University’s iSchool. The Fall 2007 class is taught by University Librarian Suzanne Thorin and Angela Ramnarine-Rieks, web administrator at Syracuse University Library.)

Technorati Tags: K. Matthew Dames, libraries

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