Blog: Copyright

The world of copyright has sunk to a new low: a photographer/blogger excited when people use his pictures without permission, so he can hit them with big fat lawsuits for thousands or tens of thousands of dollars. Ka-ching!

Dan Heller calls this a "windfall" for photographers and offers tips on how to maximize the chance that the infringement counts as "willful", triggering the highest possible damages of $150,000 per image. Public Knowledge calls Heller a "copyright troll", analogous to the "patent trolls" who buy up patents not to build innovative products but to sue everyone in sight.

When a legal system gets out of whack, like the penalties for infringement that lead to a $220,000 judgment for sharing 24 songs, additional consequences are inevitable. Despite the dubious deterrent effect of raising punishments past a certain point, Congress keeps increasing penalties at the behest of the music industry. But copyright law doesn't just apply to music, and citizens are getting caught in the crossfire in many other ways. Maybe we need a different approach.

Utah law professor John Tehranian released a new paper about copyright starring a hypothetical law professor named John who goes about his everyday life, doing everyday activities—except in imaginary John's world, every copyright holder asserts the right to, and wins, statutory damages every time John infringes copyright. The total bill: $12.45 million.

Read more...

Originally posted at IPac.

Freakonomics co-author Stephen Dubner poses a thought-provoking question on the Freakonomics Blog: If public libraries didn't exist, could you start one today?

The law protects public libraries, and their right to lend books to people. But the publishing industry doesn't like that it can't control what happens to books after they are bought. Dubner analyzes the pros and cons of libraries from the point of view of the publishing industry: on the one hand, many people can read a book but the author and publisher only sell one copy. On the other hand, libraries foster literacy, expose people to new authors, make reading accessible to the poor, etc.

Dubner writes, "Perhaps they'd come up with a licensing agreement: the book costs $20 to own, with an additional $2 per year for every year beyond Year 1 it's in circulation. I'm sure there would be a lot of other potential arrangements. And I am just as sure that, like a lot of systems that evolve over time, the library system is one that, if it were being built from scratch today, would have a very different set of dynamics and economics."

Or, perhaps libraries wouldn't exist at all. We know from experience that content industries often don't act in their own long-term best interest. The RIAA shot itself in the foot with its unwillingness to find a profitable way to allow filesharing; authors and book publishers are suing Google for making it easy for people to find their books, even though the users can't read more than a few lines of copyrighted books without permission. So let's assume public libraries are good (and I believe they are) - unfortunately, we couldn't count on the publishing industry to make it possible for them to exist.

The publishers might insist on too much revenue, in an attempt to protect their margins on existing books, even at the cost of the public good and their own long-term success. This is similar to the way the recording industry is trying to kill Internet radio with royalty fees so high almost no stations could continue operating, or the way Verizon squelches wireless innovation because they won't allow applications on their phones unless they make significant profit.

The movie industry would have stopped the VCR if it could have, afraid that home video would cut into theater profits. It did, but they ultimately more than offset the loss with video rentals and sales. We have every reason to think that publishers would do the same to libraries if the first libraries were forming today.

IP laws give one participant in a market - the content rightsholder - complete monopoly power over that market. Sometimes that's the only way to make a market work so creators get compensation. But often, it just means that the market fails entirely. If we don't give the monopoly holders everything they want, sometimes that's best for them in the long run. Or maybe it's just good enough for them, while the public greatly benefits.

The Economist, sensibly:

In America, the length of copyright protection has increased enormously over the past century, from around 28 years to as much as 95 years. The same trend can be seen in other countries. In June Britain signalled that it may extend its copyright term from 50 years to around 90 years.

This makes no sense. Copyright was originally intended to encourage publication by granting publishers a temporary monopoly on works so they could earn a return on their investment. But the internet and new digital technologies have made the publication and distribution of works much easier and cheaper. Publishers should therefore need fewer, not more, property rights to protect their investment. Technology has tipped the balance in favour of the public domain.

A first, useful step would be a drastic reduction of copyright back to its original terms—14 years, renewable once. This should provide media firms plenty of chance to earn profits, and consumers plenty of opportunity to rip, mix, burn their back catalogues without breaking the law. The Supreme Court has somewhat reluctantly clipped the wings of copyright pirates; it is time for Congress to do the same to the copyright incumbents.

Cornell hosted last week a fascinating (and entertaining) panel (RealAudio stream) on copyright, featuring three content industry execs, one from Napster versus, and Siva Vaidhyanathan (of NYU) and Fred von Lohmann (of EFF), both articulate voices for a more balanced view of copyright.

Three observations:

1. Fred is an extremely articulate and effective debater. Nice job, Fred!

2. Some of the guys from the content industry side were downright contemptuous of the students asking questions. They're not going to win friends either among the general public or among lawmakers that way. I was very surprised that these guys, professionals whose job it is to advocate for the content industry's point of view, aren't better trained to respond to unfriendly questions without hurting their own cause.

3. I was most heartened by the questions students asked. Many were articulate and all portrayed a point of view deeply skeptical of the content industry's arguments. If the general population of college students thinks about this issue even a fraction as much - and I think they do - then this movement will grow inevitably stronger as these students become engineers, artists, or policymakers.

At one point one of the content industry executives actually said that an environment where innovative companies have to defend their products in court against possible entertainment industry lawsuits isn't so bad, since after all they already usually have to fight numerous patent lawsuits. Nuisance patent lawsuits are, of course, one of the greatest impediments to individuals innovating or creating startups without the protection of a big company legal department. These guys just don't understand that an ideal economy isn't one where a small number of large economic actors of different types are the only ones to engage in innovation or creativity.

In 2004, hundreds of thousands of volunteers - mostly young people participating actively in a campaign for the first time - knocked on doors and made phone calls to register voters in swing states and get them to the polls. And for most of those volunteers, the outcome of the election was completely opposite what they had hoped.

I'm sure many of these volunteers were quite discouraged. But the grassroots groups that organized them aren't closing up and going home. They're fighting legislative battles like Social Security (and winning, so far, on that one) and girding for the next elections, nationally in 2006 and in many localities (including New York City) in 2005.

The proponents of what is often referred to as "Free Culture" are similarly discouraged by decades of bad laws coming out of Congress. The Digital Millennium Copyright Act passed virtually unanimously, as did the Sonny Bono Copyright Term Extension Act. It's easy for people to throw up their hands and say that we'll never be able to get reasonable legislation passed, that Congress is hopelessly in the pocket of the movie and recording industries. After all, the entertainment industry spends millions of dollars lobbying Congress, and we'll never be able to out-bribe them, right?

Back in the 80s and early 90s, a lot of geeks propounded a philosophy that the Internet was fundamentally unregulatable, beyond the reach of mere national governments. John Gilmore famously wrote that "the Internet interprets censorship as damage and routes around it." But governments have shown a remarkable resistance to being rendered obsolete. Far from being unable to control the Internet, governments have even been able to reach across international boundaries in enforcing their laws. Multinational companies now have to cope with a patchwork of regulations around the world with which they must comply if they want to do business in each jurisdiction. And content owning companies have been able to get laws passed to give themselves more and more control over the ways citizens enjoy legally purchased entertainment content.

Like the famous five stages of coping with grief, one can identify a few distinct stages of coping with government. Most geeks have moved out of the Denial stage. For many, just as with grief, Anger is next - anger at the RIAA and MPAA for suing their customers, or at the Copyright Office for imposing the Broadcast Flag. And it's very natural to lapse into Depression, to believe that no matter what we do nothing will ever change.

But our movement is growing. Already in the last few years, many more people are aware of the problems out-of-control copyright poses to our society. College students have joined documentary filmmakers and software engineers as copyright's overreach has impacted them. These issues have already started to seep into the public consciousness, and over time, as more ridiculous lawsuits impact average citizens, the movement will only grow.

At the same time, we are learning how to deal with that strange beast called Congress. The DMCA and CTEA passed virtually unanimously because there was no organized opposition. But last session, the INDUCE act threatened to stifle technological innovation, and people spoke up. Groups like Downhill Battle created catchy campaigns and organized call-in days. And Senator Clinton, who cosponsored the act early on, received questions about it at virtually every college campus she visited. And so, whereas the DMCA passed despite some obvious glaring problems, the Senate quietly let INDUCE pass away into memory. A package of very dangerous copyright changes, the "IP Omnibus", was first shrunk down into a much more benign (though still suboptimal) "IP Minibus", and then died altogether as a result of a completely unrelated issue.

Now the content industry still has plenty of friends in Congress. Orrin Hatch, their number one friend, was appointed chair of an IP subcommittee. And measures similar to INDUCE or those in the IP Minibus are sure to be reintroduced. But we won one round, and we can win again. More legislators and their staffs realize that citizens care about these issues, and that there are two legitimate sides rather than the Good Old American Capitalism versus Evil Stealing Commie Pirates And Kiddie Porn Makers, which is the way the content industry portrays the issue.

Winning these battles doesn't require outspending the content industry. The American system does have checks and balances which make it difficult to get legislation passed. A few key allies can do a lot, at least to stop bad bills. Congresspeople definitely don't want to damage the economy, and so playing up the potential damage to Internet companies and electronics manufacturers is a potent argument. College students are the voters of the future, and when an elected official hears young people - who historically are very unengaged in the political process - express concern about an issue, they take note. Letter writing campaigns get noticed. Funny Web satire videos get noticed. And when individual citizens or small groups make a trip to meet with their Congressperson, they get listened to. More important than outbidding record companies in campaign contributions, money matters because organizations need paid staff in Washington educating legislators, need staff to organize the grass roots, and need to make some campaign contributions, even if they are relatively small, because even small contributions get noticed.

Ultimately, legislators in Congress really do want to do the Right Thing. It just happens that this isn't clear. As long as only one side is talking to them, it seems straightforward. If we decide that fighting these battles each year is too onerous or too impossible, then we'll certainly never win them. There's a famous maxim in poker that you can't win a pot if you don't play a hand. Politics is like this. You can't ignore the legislative process and expect that the right thing will magically happen. And if you haven't been talking to Congress, you shouldn't be surprised when the people who have been talking get what they asked for. The Founding Fathers never envisioned Congress as some kind of enlightened body that dispenses divine wisdom from atop its hill. Congress was always supposed to be a forum in which different points of view duke it out with bare knuckles, where the side that has the most energized and organized people, the best facts, and yes, some financial muscle comes out on top.

All political movements start out small. The conservative movement which is so dominant today started in an era when almost all Americans believed in the ideals of the New Deal, in the concept of the welfare state that uses social programs to help the least fortunate citizens. They talked about what they believed, they wrote articles, and they organized. They converted more and more people to the cause and formed organizations to wield the power that comes with their numbers. And they had money, which helped, but it helped first to start magazines and to pay staff to organize and recruit even more believers.

The conservative movement lost a lot of battles. They were wiped out in a landslide in the 1964 election. But they persevered, and even though it took another sixteen years to elect a President they liked, they did not give up. The religious right has been organizing in churches to get voters to the polls for decades; the Moral Majority was founded in 1979 and despite supporting Republican candidates almost exclusively and having a Republican president for the next twelve years, many would say that only with the election of George W. Bush in 2000 did the religious right get a truly sympathetic President. Yet that movement has still not realized most of its policy objectives. Still, they do not give up, do not take their ball and stomp home allowing civil libertarians to legislate government control out of the bedroom. They realize that no matter how many battles they win or lose, fighting every battle is always better for them than not fighting it.

It's true that the conservative movement has benefited from a few extremely wealthy benefactors. But Free Culture has a few rich adherents too, and a lot of well-off professional believers in areas like the software industry. Even movements far from flush with cash have been able to make significant gains. The environmental movement, nonexistent until the publication of Silent Spring in 1962, has been able to make many rivers once again safe to swim in, and consumer groups have successfully won requirements on seatbelts and airbags, child toy safety, food labeling, and many other important issues. Today the Bush Administration is trying to reverse many of these gains, but that doesn't mean environmentalists or consumer advocates should think it wasn't worth achieving them in the first place, and continue to fight to reinstate and expand what Bush reverses.

We in the Free Culture movement must realize the same. No matter what happens in the Grokster case recently heard by the Supreme Court, Congress will be asked to take up the issue of filesharing. The FCC's Broadcast Flag rule will take effect unless we can convince Congress to stop it. And long term, copyright term extension is sure to be an issue once again around 2018. We have to focus on building up a movement that can effectively fight these battles both short and long term. We need to develop potent arguments for our beliefs and advocate for them before Congress in every possible venue - from asking questions at speeches on campuses to participating in call-in days and visits to legislator's offices to writing books and creating documentaries.

Along the way, we will surely lose, just as the army of progressive volunteers lost to the Bush campaign in Ohio and Florida in 2004. And when that happens, many people will say that this is hopeless, that we can never beat the content industry with its armies of lobbyists and suitcases full of cash. But we can win, and we will - as long as we play the hand.

It's become fairly routine - another Drinking Liberally chapter gets started (this time, in Park Slope just in time for the State of Delusion the Union address), I go to a few parties, and The Tank hosts a terrific event (this time, a screening of Eyes on the Prize, a very important documentary about a pivotal time in our nation's history, now nearly impossible to see due to copyright restrictions).

As we wrap up America's festival of social capital, Thanksgiving, we also follow the annual tradition of watching America's greatest cultural celebration of social capital, It's a Wonderful Life.

The villain Potter lives by the jungle rules of business where financial capital trumps all, and tells George he is worthless because he has no stocks or bonds; while George devotes his life to helping others and receives kindness, loyalty, and even money in return. The town without George's forging of ties is a hostile place where Bert arrests Violet and people don't talk to one another; with it, every man and woman comes over to sing Auld Lang Syne to the Baileys.

"Remember, no man is a failure who has friends." - Clarence Oddbody, AS1

This film is also one of the best examples of the value of the public domain; a relative flop at the box office, it languished in obscurity for decades before being reintroduced by PBS stations in the 1970s precisely because its copyright had expired and was therefore free to show (Ebert). Had today's laws been in effect in 1946 when Capra made the film, it would have stayed unknown until at least 2061 (70 years after Capra's death in 1991). How many other films like It's a Wonderful Life may never be shown and even be lost forever?

(P.S.: sadly, It's a Wonderful Life is probably still under copyright, after all.)