Editor’s Note: Copycense executive editor K. Matthew Dames interviews William Patry a second time. (The first interview occurred in late 2006, and was published in 2007, the same year West Publishing released the multi-volume treatise Patry on Copyright.) This second interview, completed in late August 2009, deals exclusively with Patry’s new book, Moral Panics & The Copyright Wars (2009, Oxford University Press) [Amazon.com; Barnes & Noble; author’s book blog]

–

K. Matthew Dames: After writing several scholarly works and treatises (including the current Patry on Copyright and the revised Patry on Fair Use), Moral Panics and the Copyright Wars is your first general market book. Why this book at this time?

William Patry: I have been concerned for awhile about the type of discourse used in the debates about copyright. I thought and still think it is generally unhealthy, and in some cases, deliberately unhealthy. George Orwell once wrote that words can corrupt thought, and I believe this has happened in the copyright debates. I set out to find out why this was going on, and how to change the discourse by making it healthy again.

Dames: Moral Panics … opens with a discussion of business models, and your general argument that copyright law has been used too often to control what consumers do with products, rather than encouraging platforms that give (paying) consumers what they want. This book also was researched and written during a time when, for the first time, you have been in-house counsel to a technology company. To what extent did your work as a business lawyer spur your research into business models?

Patry: I have been privileged to work in lots of difference environments: private practice, government service, academia, and now in-house. You learn a lot from each experience. Certainly the greatest benefit to being in-house is learning business stuff, so being in-house has definintely sensitized me to business issues in a way I wasn’t before. I hope that is helpful too for readers.

Dames: In Moral Panics …, you spend a lot of time discussing language and rhetoric. How did you become interested in this area?

Patry: I became interested because language and rhetoric is so prevalent in the copyright debates and has driven policy decisions, something I think is regrettable.

Dames: Moral Panics … also includes several extended discussions about how language is used to shape the parameters of debates and political issues. In your former work with the House of Representatives, you must have heard several interesting arguments or statements. In your view, which person or organization has been the best at using language to best articulate their point of view and why was that person or organization so effective?

Patry: George Lakoff, a very liberal Democrat and a cognitive linguistic, has written extensively about how conservatives are masters of framing political debates, and I would be surprised if many disagreed. As the opposition now, of course, they don’t have responsibility for actually accomplishing anything, which gives them a lot more room to maneuver.

Dames: On page 29 of Moral Panics .., you write

The response of the heads of these companies to the youthful rebellion of democratizing content on the Internet has been that of may parents worldwide: to fight against the present, to try to ban the future, and to punish those audacious enough to challenge the status quo. The Copyright Wars are a fight against our own children, and it is a fight that says everything about adults and very little about the children.

As a father who purchases lots of books, films, and music for your children — and as a scholar who has objected to “educational” initiatives geared toward children like “Kopyright Kids” and “Captain Copyright” — what conversations do you have with your children about copyright and what their relationship is, or should be, with protected works?

Patry: I think parents have a great deal of responsibility, really the primary responsibility, which should be exercised both by example and by ensuring their kids act responsibly.

Dames: If you had one resource to recommend to your children to teach them about copyright, what would it be?

Patry: Creating something themselves and figuring out how they wanted it used by others online.

Dames: In Moral Panics …, you talk a lot about the consumer, the purchaser, and the end user and their relationship (or lack of relationship) with copyright law. Historically, copyright law and policy in the United States have been debated and discussed in a way that presumes the sole affected audience is large, corporate copyright owners, and you and University of Michigan law profession Jessica Litman have written about the legislative process that goes into making copyright legislation. Further, you have written about the current national copyright reform conversation occurring in Canada. What elements or conditions do you believe would need to exist in the United States so that a similar conversation or reform effort may occur?

Patry: I think that Michael Geist in Canada has shown the short of grassroots movement that is effective, and I think technology companies need to educate policymakers about what they do, in detail.

Dames: What issues are not addressed in the book that you wish you had addressed?

Patry: There are two: Marissa Mayer’s theory of the atomic unit of consumption [.pdf], and the discsussion by Gwenyth Jackaway in her 1995 book called Media at War: Radio’s Challenge to the Newspapers, 1924-1939. (See Slate article.) Her book is a great example of what I am talking about in a different era.

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Technorati Tags: Copycense, George Lakoff, Gwenyth Jackson, K. Matthew Dames, Marissa Mayer, Michael Geist, piracy, Jessica Litman, 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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Earlier this week, The New York Times published an extensive feature article on Secretary of the Treasury Timothy F. Geithner. The crux of the article essentially questions Geithner’s judgment and decisions in light of his cozy relationship with the financial industry during his tenure as president of the Federal Bank of New York.

The article delves into Geithner’s work while Fed president, and pieces out an array of evidence from as far back as 2007 to prove its thesis that Geithner may be too close to industry to properly regulate it during the midst of the current financial crisis. In all, we think the article has a sort of “death by 1,000 cuts” feel to it, but, hey, everyone has an opinion. (We also sort of wondered, “Where was this reporting during Geithner’s confirmation hearings?”)

The article, however, does have a very interesting quote from Joseph Stiglitz, a Columbia University professor and a Nobel-winning economist. Stiglitz has gone on record to criticize Geithner’s ties to Wall Street, and the Secretary’s bailout plan.

Of Geithner’s actions so far, Stiglitz said the following:

“I don’t think that Tim Geithner was motivated by anything other than concern to get the financial system working again. But I think that mindsets can be shaped by people you associate with, and you come to think that what’s good for Wall Street is good for America.”

Interesting thought, but we’re sure you’re asking “How in the world does this relate to copyright law or policy?” A story is instructive.

Last week, Vice President Joe Biden stood before entertainment industry executives at an event organized by the Motion Picture Association of America and essentially promised them that President Obama’s forthcoming selection for Intellectual Property Enforcement Coordinator would meet their approval. Biden’s verbal commitment to the entertainment industry follows weeks of Obama appointments to key positions in the Department of Justice; all the appointees had litigated in private practice on behalf of the Recording Industry Association of America, the recording industry lobby.

At the MPAA event, Biden said that “piracy” “[is] pure theft, stolen from the artists and quite frankly from the American people as consequence of loss of jobs and as a consequence of loss of income.” In doing so, Biden not only perpetuated the error that piracy is “intellectual property theft,” but reinforced the subtext that copyrighted works are no different from tangible goods while parroting the claims that theft of such hurts the artists, and results in losses of jobs and income.

These last two claims are specious at best. First, artists (particularly in the movie and music industries) rarely hold ownership of any of the rights in their work; instead, they routinely assign via contract all of those rights to a corporate distributor. Second, several studies and news articles have explored the entertainment industries claims of lost revenue and jobs due to “piracy” and found many such claims to be inaccurate at best, fallacious at worse.

Biden’s viewpoint on this issue, however, should be no surprise: even during his long term as senior senator from Delaware, Biden has been a staunch supporter of the entertainment industries and their legislative initiatives.

Now to the punch line.

It is clear from his recent comments and his senatorial voting record that Vice President Biden’s view of copyright law and policy is consistent with the entertainment industry’s view of copyright law and policy. In other words, it is reasonable to conclude that Biden thinks that legislation and policy that benefits the MPAA, the Recording Industry Association of America, the Business Software Association, the Association of American Publishers and their corporate clients is what is good for America’s copyright system.

Biden is far from alone in this view: Barbara Boxer (D-CA), Patrick Leahy (D-VT), Orrin Hatch (R-UT), and Arlen Specter (R-PA) all share the same view that copyright legislation and policy that benefits large, corporate copyright portfolio owners benefits American and the American copyright system. (Editor’s Note: The New York Times is reporting that Sen. Spector has announced he will switch political affiliations to the Democratic Party. We guarantee this will have no influence over his votes on intellectual property matters.)

But that view of the copyright system is myopic at best, and inaccurate at worst. (For a dense, but thorough explanation of why this view of the copyright system is inaccurate, I recommend reading Oren Bracha’s 2008 article in the Yale Law Journal entitled The Ideology of Authorship Revisited.) To paraphrase Stiglitz, we do not think that Biden, Boxer, Leahy, Hatch, or Specter are motivated to move copyright legislation and policy in its current direction for any other reason than to do what they think is best for the American copyright system. What is best for the biggest corporations in that system, however, is not necessarily what is best for the system as a whole.

Citizens who create, read, write, remix, sing, videotape, snap, and imagine are as important a part of the American copyright system as the corporate interests in that system. By sheer numbers, the creative citizenry dwarfs the number of corporations whose primary business model is to own copyrighted works and earn revenue from the licensing of one or more of the Section 106 rights.

Without question, however, the current copyright system that exists now in the United States works to the detriment of most American citizens. Citizens who have an interest in creative works like music, books, or movies have suffered an erosion of their rights to read that book, listen to that piece of music, or watch that video due to legislation like the Digital Millennium Copyright Act (.pdf), the PRO-IP Act, the Copyright Term Extension Act (.pdf) and policy initiatives like the laughably biased annual Section 301 process (in which companies that allegedly are harmed by “piracy” come up with the economic estimates to “prove” the amount of economic loss attributable to “piracy”). The erosion comes through longer copyright terms, digital rights management schemes, or restrictive licenses that protect works that should be in the public domain, among other things.

Certainly, it is easy for a copyright holder to dismiss this article as another anti-copyright screed. But regular Copycense readers know we always have maintained on these virtual pages that we believe in the American copyright system; we just don’t believe in this distorted mess we have at this moment.

When it comes to copyright policy and legislation, what serves the best interests of large, corporate copyright portfolio holders does not serve the best interests of the vast majority of the American public. Copyright law never was meant to become a tool benefiting corporate copyright owners exclusively, but it has become just that. The frame of “piracy” is one, significant piece in this problematic puzzle.

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

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.

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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.

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