Yahoo! News (via The Associated Press). MPAA Admits Mistake on Downloading Study. Jan. 23, 2008; Inside Higher Ed. Downloading by Students Overstated. Jan. 23, 2008; Association for Computing Machinery. MPAA’s Data Oops: How Will Congress React? Jan. 23, 2008; News Blog (News.com). Why Did Colleges Stay Mum on MPAA Stats? Jan. 25, 2008. We don’t think this is a mistake, actually. For several years, we have questioned as biased and invalid many of the “studies” the entertainment industry creates that purport to show a correlation between alleged infringement activity from a specific environment (i.e. file sharing networks) or population (i.e. college students). More investigation should be done into the numbers and methodology of these reports, especially since the entertainment industry parades them before Congress as evidence that it needs more restrictive intellectual property rights. If you think there is no connection between these sorts of studies and legislation like the PRO IP bill (H.R. 4279) or the HEA Reauthorization bill, think again.

(Editor’s Note: Copycense editors originally commented on this article in the Jan. 29, 2008, edition of Copycense Clippings.)

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Brooks Boliek. Berman to Exit Çopyright Role. The Hollywood Reporter. Jan. 15, 2008. California Rep. Howard Berman‘s likely departure to chair the House Committee on Foreign Affairs would leave an opening atop the House committee that is responsible for considering intellectual property legislation. The void would be notable under any set of circumstances, but the timing is important because it is a presidential election year and the final year of Term 110. History has shown the content and entertainment industries often try to slip in protectionist legislation during this period while others are paying attention to other, broader issues.

(Editor’s Note: Copycense editors originally commented on this article in the Jan. 22, 2008, edition of Copycense Clippings.)

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Chloe Albanesius. DOJ Blasts New ‘Copyright Czar’ Bill. PCMag.com. Dec. 13, 2007. In last week’s edition of Clippings, we focused on the proposal in the PRO IP bill that would create a Cabinet-level copyright czar. Apparently, so has the Department of Justice, the agency most likely to be affected by such a proposal, calling this idea “ill-advised.” The more the entertainment and content lobbies wish to get DoJ involved in copyright enforcement, the more the agency seems to resist. And after all, why would the White House need another position to promote these industries’ copyright agenda? The U.S. Trade Representative already does this quite nicely, courtesy of its annual Special 301 review.

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

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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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Pamela Samuelson. Preliminary Thoughts on Copyright Reform. The UC-Berkeley law professor offers “preliminary thoughts about what a model copyright law might include and how one might go about getting rid of some of the clutter in the existing statute,” using the example provided by the American Law Institute’s model laws.

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

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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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“Concern for those who elected you is representative democracy, not corruption; moreover, as noted above, in the case of copyright, until just this year, the copyright committees have been chaired by individuals who had no constituent interests and therefore tried to make policy as they saw fit. That we disagree with their view of policy doesn’t make their view corrupt. The Copyright Office, for example, has testified in favor of term extension and the other bills people find objectionable, and it is immune from the sort of “corruption” at issue. Tarring those who don’t see things the way we do as ‘corrupt’ is incorrect and a poor way to convince them to see things the way we would like.

“At the same time, campaign finance reform has long been a pressing need, and if Professor Lessig can provide constructive assistance in that effort, we will all be grateful.”

The Patry Copyright Blog. Copyright, Corruption and “Corruption.” June 21, 2007.

Of all the people out there that call themselves copyright experts, there are several reasons why we think Bill Patry is one of the few that deserves that title and stands at the top of the heap. One of the most important reasons, in our view, is his ability to see and explain copyright clearly through several different perspectives.

Despite its beginning, Patry’s post is not about Lawrence Lessig’s decision to “retire” from copyright advocacy. It is about the legislative process, specifically as that process applies (or is applied) to copyright laws and regulations. Patry challenges Lessig’s suggestion that “corruption” was at the root of Congress’ decision to pass the Copyright Term Extension Act (.pdf) in 1998, and in doing so summarizes four decades of Congressional committee history to support his ultimate contention: elected officials serve the interests of their constituents, and except in rare instances, corruption (or “corruption”) has nothing to do with their political positions.

We have seen parts of the copyright legislative process as it applies to libraries and often have lamented how often libraries and library patrons get shortchanged. We’ve often thought (and have written in this space) that “corruption,” as defined by Lessig, may have been part of the reason library representative organizations (LROs) have not received all they have wanted.

But we also have thought (and have written in this space) that LROs have not been as effective in playing the political game as they could be. Returning to the term extension issue, we opined in our Lessig piece last week that the term extension issue lacked a clear focus on ultimate harm to a wide range of people. LROs spent much time and money doing all the official things that needed to be done: including lobbying Congressmen, writing amici briefs, and distributing alerts to their membership.

Still, LROs — as did Lessig — failed to engage the regular Joe and Jane Doe on the term extension issue in a way that would have fueled the public outrage necessary for elected officials and federal judges to look beyond the law and consider public policy. That has nothing to do with corruption (or “corruption”), but is simply a decision to execute a strategy that ultimately did not bring the desired result.

And who’s to say that what LROs want is good for libraries or is good public policy? Further, many could reasonably argue that Section 108 is proof positive that libraries have not gotten shortchanged in the legislative process.

This leads us to a conclusion that Patry’s post suggests: instead of complaining about being the victims of “corruption,” maybe parties involved in lobbying for a balanced copyright law would be more effective in their legislative and judicial interventions if they become more effective advocates for the public at large, instead of for the institutions they represent. In particular, LROs have been staunch advocates for open access to information. Restrictive copyright inhibits open access to information, which affects the public in a variety of ways. But are libraries and librarians making this clear to the public in a way people can understand?

For example, how could have LROs better engaged the public to demonstrate that term extension is not some issue reserved for nine judges and two advocates who choose to argue legal and constitutional abstractions on October 9, 2002, but instead an issue that may keep a 10-year-old girl in Iowa from creating the next great animated character because a large corporation wants to shackle culture to stuff its wallets?

In other words, how can LROs and others concerned with balanced copyright make it plain? As much as we rant in this space about the “piracy” frame, we concede it is brilliant and effective because it is plain. Those concerned with balanced copyright must find a way to make their issues as plain to the public and Congress as copyright holders have made “piracy” plain to the public and Congress.

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