Thinking About Real Copyright Reform

from the is-that-even-possible? dept

Michael Scott alerts us to a recent paper by professor and copyright expert Jessica Litman about "Real Copyright Reform." While there's been some chatter here and there about doing real copyright reform, there seems to be no real effort behind it. That's for a few reasons, including the fact that many people still remember what a pain the last attempt at real copyright reform was (it took decades) combined with the realization (especially on the part of copyright holders) that their ability to push through laws that solely favor themselves to greater and greater degrees may not be so easy this time around. Thanks to the internet and various "wars" on consumers, copyright isn't just an arcane subject that the day to day person doesn't know much about. A serious attempt at remaking copyright laws might actually draw out well-reasoned and well-argued points that go against the current views held by the record labels and movie studios. See what's been happening in Canada, for example.

Litman's paper goes through the problems with today's copyright law, and begins to explore what real copyright reform should entail, even while noting the political difficulty of having it go anywhere:

A wise approach to copyright revision might inspire us to rethink the model. If both creators and readers are ill-served by distributor-centric copyright, and if the economics of digital distribution now makes it possible to engage in mass dissemination without significant capital investment, perhaps it is time to reallocate the benefits of the copyright system. The consolidation of control in distributors' hands does not appear to have made life easier or more remunerative for creators. Copyright lobbyists have not shown that recent enhancements to copyright have made it easier or more rewarding for readers, listeners and viewers to enjoy copyrighted works. Perhaps the classic picture of copyright is too far removed from its reality to be useful.

From there, Litman makes similar arguments that have been made recently by James Boyle and William Patry (among others), wondering why there is little investigation into the actual impact of changes in copyright law, rather than just assuming that "stronger protections" lead to better results, when so much of the evidence suggests otherwise. And, of course, all of this harkens back to the speeches by Thomas Macauley from over a century and a half ago, back when he was able to point to the lack of evidence from those who wished to extend copyright law:

Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly.... I believe, Sir, that I may safely take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honorable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Companys monopoly of tea, or by Lord Essexs monopoly of sweet wines. Thus, then, stands the case. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil but the evil ought not to last a day longer than is necessary for the purpose of securing the good.

And yet, in copyright reform today, there seems to be no one in the political realm with enough power to play the role of Macauley today. But Litman raises these same issues:

Instead of asking how to enhance copyright owner control, I suggest, we ought to be asking why. Does a particular proposed enhancement of copyright owner prerogatives seem likely to expand opportunities for creators or improve reader, listener or viewer enjoyment of copyrighted works? Is it likely to make the copyright system simpler, more effective, or more transparent? Does it seem to be designed to shore up copyright's apparent legitimacy? If not, it seems as likely to make the current mess worse instead of better.

Litman goes on to suggest that the fact that so many people out there don't have any respect for copyright law at all is pretty clearly the fault of the current copyright holders who have twisted and abused the law to the point that people just don't respect it. So, her ideas for copyright reform are based on bringing back "legitimacy" to copyright law by focusing on four principles:

1. Radically simplifying copyright law
2. Empowering content creators (rather than intermediaries and distributors)
3. Empowering readers, listeners and viewers (who, after all, are supposed to be part of the beneficiaries of copyright law)
4. Disintermediating copyright away from the middlemen who seem to control the law today

To then accomplish this, she suggests the following steps:

1. Focus on commercial exploitation (rather than personal use)
2. Simplify what copyright covers (rather than breaking out each separate exclusive right within copyright)
3. Reconnect creators to their copyright (via a termination right that lets them take copyrights back from third parties)
4. Clearly recognize readers' (or viewers', listeners', users', etc) rights
5. Get rid of existing compulsory license (and similar) intermediaries, such as ASCAP, BMI, SoundExchange and others

It's definitely an interesting proposal, though I think there are some serious problems with it. I've said in the past that the line between commercial use and personal use is increasingly blurry, so trying to draw that distinction may be a lot harder than most people think. We're already seeing the kind of mess termination rights create, and I'm still not sure why they help matters, rather than just make them more complex. And, of course even as Litman notes, new intermediaries will spring up to fill the void of the old ones.

Still, if you're interested in copyright and copyright reform, it's certainly a worthwhile paper to read just to get you thinking.

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Rewriting Copyright History, The Elitist Way: Compare File Sharers To 9/11 Terrorists

from the stunning dept

When we first debunked Hank Williams' problematic attack on Mike Arrington for suggesting, reasonably, that copyright law had reached the point that it needed a serious rethink, someone told me that Hank Williams is trying to become "the next Andrew Keen." Keen, of course, wrote a book last year about how the internet is somehow destroying culture, with the basic thesis being that "culture" is defined only as professionally produced content. Effectively, his argument was that non-professionally produced content simply can't be good, so by competing with professionally produced content, all that amateur content was somehow damaging professional content. The logical errors in this thesis are pretty easy to spot, but we'll just mention the obvious one: if professional content is so much better than amateur content, what does it have to fear from amateur content? In fact, Keen's whole thesis is so ridiculous, and the book praising the reliability and accuracy of "professional" media is so riddled with errors, distorted truths and outright falsehoods, that some have suggested (credibly) that Keen is merely satire. Everything that Keen claims is bad about amateur media, he does -- repeatedly.

Either way, it appears that he's a bit jealous of Hank Williams taking up his role in these debates, as he's finally chimed in on Arrington's original piece, just a few weeks late. Keen's take is so filled with errors that it definitely seems to support the "satire" theory -- and for now we're going to go with that theory, and assume it's the case. But, for a few howlers in the piece, try these on for size:

"Arrington's stance, of course, epitomizes the permissive attitude about intellectual property that has already destroyed the music business and is now threatening to kill the holy trinity that includes Hollywood, the television industry, and the book trade."

This would be the music industry that is seeing every single aspect of its business on the upswing (other than the sale of plastic discs)? This would be Hollywood that had its best year ever in 2007? Ah, right. Destroyed, huh? This is "professional" content at work.

In 1999, when Napster first assaulted the recorded music industry with its peer-to-peer technology, we heard similarly open-minded nonsense from Web 1.0 moguls like MP3.com founder Michael Robertson and Public Enemy's Chuck D. Almost 10 years later, the catastrophic consequences of Napster's mass piracy are all too tragically evident. In 1997, global recorded music sales were $45 billion. By next year, it is estimated that they will have fallen to around $23 billion -- an almost 50 percent drop in sales in a little more than a single decade.

This is classic Keen. Total misdirection in how you define the market and selective quoting of facts. You see, markets for obsolete products shrink, but the overall market is not shrinking. It's like the analyst reports that whined about the market for "PDAs" shrinking just as smartphones were taking over. Did we say that smartphones destroyed the market for PDAs or did we just recognize that the market evolved? Keen leaves out the fact that concert revenue is at record highs. He leaves out the fact that more people today are making music than ever before in history, and more people are able to listen to more music than ever before in history. By any real measure, it would appear the music industry is thriving, even if the obsolete part (selling recordings) is fading.

And, then, there's Keen's coup de grace, comparing those who want to listen to music to the 9/11 terrorists in a sentence riddled with errors:

"The truth, of course, is that the theft of digital content is no more "natural" than holding up little old ladies on street-corners or crashing civilian airliners into tall buildings. And it's the responsibility of thought-leaders like Arrington to use their privileged positions to educate the innocent about the evils of digital thievery."

• Error 1: Calling infringement "theft."
• Error 2: Saying that it's irresponsible for someone who notices that the majority of the population is breaking a law to suggest that perhaps it's time to rethink that law.
• Error 3: Suggesting actions done by the majority of the population is the equivalent of the 9/11 hijackers.
• Error 4: Saying that any "thought-leader" has a "responsibility" to take a particular stand
• Error 5: Saying that infringement is a problem of "innocents" run wild.
• Error 6: Putting a moral angle ("evil") on an issue that is merely one of business models

So many errors in just such a short quote. You'd never see that from a professional writer... oh wait.

We'll finish it off one more howler:

By stating his opposition to criminalizing "natural behavior," Arrington is not only legitimizing online theft, but he is also undermining the credibility of entertainment companies, such as Hulu or Blinkbox that have invested major resources into building entirely legal Web businesses. Defending YouTube's flagrant disregard for intellectual property laws is tantamount to justifying criminal behavior....

Ah, you see, in Keen's satirical world, companies like Hulu and Blinkbox that offer up professionally produced content deserve to have their business models protected by the government and criminal laws. But those that support amateur content are criminal enterprises. The fact that Keen seems unable to grasp the difference between a service provider and a user in terms of criminal liability is the least of the problems here. The fact that Keen seems unable to grasp the fact that these are merely different business models for distributing content -- and the one he dislikes is winning in the market -- suggests an unwillingness to actually understand what's happening here.

What it comes down to is that folks like Keen and Williams have decided that there's a certain class of content that "counts," and that's "professional" content. All other content is a problem -- especially if it interferes with an obsolete business model. Basically, they've decided that they like one particular (poor and increasingly obsolete) business model for a particular group of companies, and decided that interference with that business model must be a crime -- even if the end result is exactly the opposite of what they predict (i.e., there's more content being produced today than ever before -- it's just that it's happening using a very different model than the one they like). Luckily, we live in a world where business models adapt and change, and the companies and pundits unwilling to do so will simply fade away.

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UK Copyright Reform Just More Of The Same

from the nothing-new-to-see-here,-move-on dept

Over in the UK, some proposals for copyright reform have been announced, and there's not much interesting there. It takes recommendations from the infamous Gowers report, which we noted at the time was too balanced for its own good. For example, it includes an officially declared right for consumers to make personal copies (something that's worth mentioning following the recent RIAA kerfuffle), but it also puts in place an anti-circumvention clause a la the DMCA. There are, of course, huge problems with anti-circumvention rules that make it suddenly illegal to do something that is otherwise perfectly legal (like making private copies for personal use). By adding in an anti-circumvention clause, the personal copying clause is effectively meaningless, because the industry just needs to add any DRM, no matter how weak, and claim that any personal copies circumvent. The fact that the UK version of the RIAA has thrown its support behind these changes (while warning that it better not include any lessening of rights to copyright holders) should tell you all you need to know about how much actual "reform" there is in this particular attempt at copyright reform.

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Consumers May Get Temporary Reprieve As Canadian DMCA Is Delayed

from the for-now dept

A few weeks ago, Michael Geist began calling attention to plans in Canada to introduce a copyright reform bill that seemed to basically give Hollywood everything it wanted. This resulted in protests, phone calls, emails, letters, faxes and many other forms of communication as concerned Canadian citizens made it clear to their government that they did not appreciate being sold out while having copyright reform turned into the Entertainment Industry Welfare Act. While the Industry Minister Jim Prentice tried to weakly defend the forthcoming bill, it seems that the outpouring of protest has resulted in a temporary victory, as it appears that the introduction of the bill will be delayed. Hopefully, the delay is to actually spend some time understanding the issues, rather than trying to wait for those pesky citizens to quiet down so the bill can be introduced with less fanfare.

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