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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Maura Corbett. ‘Tis the Season for Common Sense Copyright. News.com. Dec. 13, 2007. Last time we saw Qorvis’ Maura Corbett, she was defending the CCIA’s “Defend Fair Use” campaign. Now, like so many sequels, she is back, this time repping for the Digital Freedom Campaign (which counts ALA, Public Knowledge, and EFF among its partners), spouting the evils of the PRO IP bill that has caught the attention of many a media outlet. “Messaging” is as common a Washington activity as passing through metal detectors, but we continue to feel queasy about taking a public relations approach to legislative negotiations.

(Editor’s Note: Copycense editors originally commented on this article in the Dec. 18, 2007, edition of Copycense Clippings.)

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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.

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Since we began publishing independently, we have railed against two things consistently: sloppy, misleading, or biased commentary about the copyright debate; and copyright propaganda disguised as “education.” (Unsurprisingly, the latter is filled with the former.) Our most recent comment about copyright education appeared last month.

Almost all of the “education” efforts we have criticized have been initiatives developed by large businesses that derive most of their revenue from copyrighted art or entertainment, or trade groups that represent those businesses. Before now, we would have thought that the court system would be above politicizing the copyright debate, or invoking egregious bias into it, because the court system and members of the judiciary must arbiter copyright disputes fairly, without a predisposition toward either the copyright owner or an alleged infringer.

Unfortunately, we have been proven wrong.

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In a recent News.com editorial, Copyright Alliance executive director Patrick Ross criticizes the “Defend Fair Use” campaign that the Computer and Communications Industry Association (CCIA) started last month. The Copyright Alliance is another Big Content lobbying outfit whose members include ASCAP, BMI, SESAC, MPAA, RIAA, Microsoft, Time Warner, Viacom and Walt Disney. (Interestingly, the Alliance also has appointed seven “Academic Advisors,” including Lee A. Hollaar, whose book Legal Protection of Digital Information I reviewed favorably in 2002.)

To say the Alliance’s membership favors a restrictive interpretation of the Copyright Act of 1976 may be an understatement. So this may shock some of our readers: there are several points in Ross’ editorial with which we agree.

We agree with Ross it is odd to see the (CCIA) take such a sudden, strong stand in support of fair use, especially on the issue of broadcast copyright warnings. As we mentioned in a recent Clippings, we are unsure how to react to Maura Corbett’s Aug. 27 News.com editorial supporting the CCIA campaign. Specifically, we wrote:

Sure, it [the editorial] says all the right things. But the writer is a partner at a heavy duty Washington, DC public relations firm. In other words, she spins for a living. Our skepticism is rooted in observing a spinner now getting on the “free information” bandwagon — in other words, a spinner unspinning the spin.

Large public relations firms like Corbett’s Qorvis Communications have been central in creating and perpetuating the “piracy” spin, a frame now so ingrained in the American psyche that even news outlets we respect succumb to it. Why, then, should we fail to remain skeptical when a person whose professional life has been devoted to spinning now wants to spin in a way that is more palatable to us (fair use) than a spin that is unpalatable (“piracy”)? Any way you cut the mustard, a spin is a spin: once you enter the cycle — even if it’s for your own benefit — clarity is lost and difficult to recoup. We like to do without spin, even if it’s beneficial to us.

Next, we agree with Ross’ assertion that fair use is not a consumer right. It is well settled that fair use is an affirmative defense to a properly filed allegation of copyright infringement.

Additionally, we agree with Ross that CCIA has offered little “demonstration of harm caused by copyright notices,” although we could counter that in today’s environment, such warnings reinforce notions of copyright protectionism, instead of supporting the premise that copyright is (and always has been) a balance between protection and free public access.

We even can agree, grudgingly, that copyright warnings may not be appropriate as a “fair use public service announcement,” as Ross characterizes CCIA’s attempt to have the FTC decide that the warnings are misleading. Ross is correct when he notes that “describing fair use merely as a ‘consumer right’ can lead otherwise well-meaning individuals to infringe on content and face civil or criminal liabilities.” This could happen because those individuals may only have paid attention to an incomplete disclaimer, and therefore acted in a way that wasn’t allowed under the fair use doctrine.

On the other hand, one also could argue just as plausibly that failure to mention fair use in the copyright warnings cheats well-meaning individuals and organizations out of their statutorily-granted opportunity to use, access, and even reproduce protected works without having to pay for those works, or even ask permission to use them. As we’ve noted consistently in these pages, Sections 110, 109, and 108, at the least, work together with Section 107 to allow use and access without payment or permission. But for argument’s sake, we’ll even concede to Ross that the “fair use public service announcement” may be incomplete.

Finally, and most importantly, we agree with Ross that ”consumers need a better understanding of both the rights of creators as well as the limits on those rights through fair use“ and that ”education is the right approach.“ Where we disagree — vehemently — is that organizations like the Copyright Alliance are those that should be providing the ”education.“

We have noticed that over the last two years or so, “copyright education” has become a hot topic. Ross implies that organizations like the Copyright Alliance are the proper carriers of the copyright education mantle when he writes, “Education is the right approach, and one to which the Copyright Alliance is dedicated.” Here’s the problem, though, with the current “copyright education” dialogue: it’s nothing more than another spin. Too often, the ”education“ that the Copyright Alliance and similar organizations provide is incomplete at best, propagandist at worst. (Remember Disney’s use of Penny Proud to deliver copyright ”education“?)

Further, many of the proponents of “copyright education” are, or represent, large copyright portfolio owners that have a vested interest in “teaching” an incomplete, skewed interpretation and analysis of copyright law. To make it plain, “copyright education” provided by an organization that is (or represents) a large copyright portfolio owner is akin to letting the fox inside the hen house. Things could get bloody.

Given the overheated copyright environment we have experienced since October 28, 1998, we posit that no copyright ”education“ for the public is more useful to the public in the long term than copyright ”education“ that transforms the public’s knowledge Copyright Act of 1976 into a proxy for Big Content’s skewed representation of that legislation. But if copyright “education” is to be done — and it should be done — let it be consistent with the Latin term “educere,” which means “to draw out.” When teaching copyright, draw out and present both sides of the Act — rights and exceptions all — and erase any trace of spin and framing.

See also:
Patrick Ross. Fair Use Is Not a Consumer Right. News.com. Sept. 6, 2007.

Maura Corbett. Separating Fact From Fiction on Digital Copyrights. News.com. Aug. 27, 2007.

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

Our intrepid guest editor Kim Hagedorn came across the following story from ArsTechnica last week about the film lobby launching an RIAA-styled litigation and legislation effort to help stamp out allegedly widespread and purportedly economically damaging “piracy.” Initially, we positioned this article for our weekly edition of Clippings. Instead, we decided to do a separate post on the issue.

We debated whether or not to comment on this story, even though it was reported by ArsTechnica (an outlet whose reporting we greatly respect), because it perpetuates an ongoing public relations frame about the word “piracy.” Ulitmately, we chose to comment on the ArsTechnica post to clarify and dismantle the frame.

Black’s Law Dictionary (centennial edition, 1990), which lawyers consider the standard for legal definition and terminology, defines “piracy” as:

Those acts of robbery and depredation upon the high seas, which if committed on land, would have amounted to a felony. Brigandage committed on the sea or from the sea.

(In the same edition of Black’s, “brigandage” is defined as “robbery and banditry as perpetuated by a band of robbers or brigands; plundering and outlawry.”)

Under the piracy definition, Black’s also includes a reference to a provision of the U.S. Code, the official codification of American federal law, entitled “Piracy under law of nations.” According to this section of the U.S. Code, the crime of piracy has a steep penalty:

Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.

Following the “piracy” entry in Black’s to completion, the editors write:

The term is also applied to the illegal reprinting or reproduction of copyrighted matter or to unlawful plagiarism from it; and, similarly, to the unlawful reproduction or distribution of property protected by patent and trademark laws. (Emphasis supplied.)

In summary, piracy is felonious theft on the open seas. Its true meaning has nothing to do with copyright infringement, major or minor, real or imagined, actual or alleged. Through the implementation of a public relations campaign that for nearly two decades has been alternately artful, efficient, and dogged, the entertainment industries’ lobbying groups (which include the Motion Picture Association of America and the Recording Industry Association of America) have manipulated the meaning of “piracy” so that “the term is also applied” as a synonym for copyright infringement.

(As an aside, we were surprised to see that a 1990 edition of Black’s tacitly acknowledges the “piracy” frame, meaning the public relations campaign about “piracy” now is in its 17th year.)

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.

Viewed another way, the Copyright Act of 1976 generally is constructed in a way that provides two sections for owner’s rights, and 16 sections for exceptions to and limitations on those rights. The “piracy” frame does not allow consideration of that 16 to 2 ratio, nor does it consider the dozens of situations in which people or organizations can use copyrighted works for free, and without requiring the copyright owner’s permission.

ArsTechnica is not alone in reinforcing the “piracy” frame through its reporting; several publications and organizations do it. 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.

ArsTechnica. MPAA Names Its Top 25 Movie Piracy Schools. April 2, 2007.

See also:

K. Matthew Dames. “Framing the Copyright Debate.” Information Today. September 2006. Page 22.

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

“Traditional publishers are the slave traders. And the research articles and the many academics are the slaves.” — Richard Smith, board member, Public Library of Science (PLoS).

Last month, Richard Smith, a member of the board of directors at the Public Library of Science (PLoS), gave a speech (.mp3) in which he accused journal publishers of acting like slave owners and open access of acting like abolitionists. A PowerPoint presentation (.ppt) containing gory images of slavery accompanied the speech.

While we at Copycense support the core aims of the open access movement, we find any attempt to use the gruesome, wrenching, genocidal reality of human slavery as a comparative or promotional tool for open access is insulting and entirely unacceptable.

As we condemned former MPAA CEO Jack Valenti for comparing piracy to terrorism, and RIAA spokesperson Matthew Kilgo for comparing the profit from mixtapes to profits gleaned from the sale of illicit drugs, we must also condemn Richard Smith for comparing publishers to slave traders.

The increasingly dark, dire imagery used to characterize issues within the digital content debate too often goes far beyond framing, spin, or public relations. Language like this is grossly unprofessional and personally indecent. Nothing in this debate is nearly as urgent or serious as terrorism, illegal drug trafficking, or slavery, and the people who insist on perpetuating this language should be censured. Enough is enough.

Copycense™: Creativity & Code.™ A venture of Seso Group LLC.