What Will The Election Mean For Copyright?

from the it-all-depends... dept

Wed, Nov 8th 2006 10:27am — Mike Masnick

Jerry Brito over at the Technology Liberation Front points us to William Patry's thoughts on what yesterday's election is likely to mean for copyright law. Patry, of course, is one of the leading experts on intellectual property law and public policy. He notes that with the Democrats now in power in the House it means that either Howard Berman or Rick Boucher will get to run the IP subcommittee -- and that it's Berman's choice (Berman is more senior). That really means, Berman needs to decide if he wants to focus more on other issues or more on IP issues (even though he'll participate either way). The result could have a pretty big impact. Patry paints nice pictures of both Representatives, but they tend to have very different views on intellectual property issues.

Berman (whose district is right next to Hollywood) has been referred to as "the Representative from Disney," as he's proposed lots of legislation that the entertainment industry would love (though, to be fair, Disney has become a lot more reasonable since Robert Iger took over). Among Berman's proposed or supported laws were the ability for copyright holders to take vigilante action on those they believed were sharing their content allowing them to hack into your computer, a bill to strip away many fair use protections, a bill to let the entertainment industry use the FBI's seal when going after copyright infringers, a bill to give jail time to those caught file sharing (rather than just fines), a proposal to put people in jail for registering a domain with fake info and has been a big supporter of adding a broadcast flag requirement to consumer electronics. When people point out how any of these things may really cripple the tech industry all for the sake of the much smaller entertainment industry, Berman has responded about how he doesn't much care for "self-pity" from the tech industry (while having no problem at all supporting it from Hollywood). While Patry insists Berman is smart and knowledgeable about these things, his past track record seems a bit scary for the tech industry and for consumers everywhere.

On the flip side, if Berman decides not to take over the subcommittee, it will go to Rick Boucher, who in many ways seems to be Berman's opposite on these issues. He questioned the entertainment industry on how copy protection schemes may be illegal by blocking someone's legal right to make private copies and for many years has been the leading voice in Congress for why the DMCA needs to be rewritten to take into account the user's point of view. He's also criticized the copyright office for taking the entertainment industry's side on certain issues. In other words, he actually does seem to realize the importance of these issues (though, he did offer to horse trade, allowing the broadcast flag to move forward, if others would support his DMCA changes). Overall, the difference between Berman and Boucher is a very big difference on how they view copyright/intellectual property issues. Berman clearly takes the entertainment industry's view while Boucher believes in supporting consumers' rights. It's not hard to see who we're hoping gets the job.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

24 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Bob Jones, 8 Nov 2006 @ 11:03am

Is it technically feasable for a software product to be made that could (for example) read a copyrighted DVD, check if it has been copied before (via Internet Registration?) - make a backup with copyright protection (no copying allowed, sue anybody who breaks this), it would allow people to make a backup and it be manageable.
[ link to this | view in thread ]
Anonymous Coward, 8 Nov 2006 @ 11:17am

How do we encourage Berman to pass?
Is there any way for us citizen's to help encourage him to make the right decision here? I don't think it would be much help to attract attention to the position by writing Berman and asking him to 'Please! Don't chair the IP subcommittee.". Is there another subcommittee we could flatter him into pursuing chairmanship of instead?
[ link to this | view in thread ]
Ju1c3, 8 Nov 2006 @ 11:22am

You know, I've come to realise all of this really doesn't matter. We the people have no say anymore on anything. It's about the all mighty dollar and who has it. There is nothing we can do other then talk about it and it sucks. We should just come to the realisation, we are all going to hell in a handbasket.
[ link to this | view in thread ]
Anonymous Coward, 8 Nov 2006 @ 11:27am

Re:
The software would be hacked and it would then make nice official backups a million times. Without DRM. It is much more in the content industry's interest to control the production and distribution of DRM media.
[ link to this | view in thread ]
Dissappointed Republican, 8 Nov 2006 @ 11:28am

Thanks guys
Wow, thanks guys for voting in the Dems. Now we have this to look forward to. Now when I try to make fair use of copyrighted material I'll have vigilante copyright holders trying to throw me in jail. Maybe I'll just crawl into a hole for the next two years.
[ link to this | view in thread ]
Anonymous Coward, 8 Nov 2006 @ 11:40am

Re:
The folks with more almighty dollar have more at stake. How is a legislator or judge supposed to understand your personal value of copying X and summarizing Y and compiling Z and playing W on your Q? The content industry is losing MONEY, guys, its leaking like water through a sieve with a hole in it. Think about their bottom line for a change when youre wallowing in misery about your own inconvenience.

Anyway, screw this. Would it be the end of the world if the content industry self-destructed? You think we'll all be mentally starved because nobody would bother making any entertainment media if the industry collapses? Bullcrap. How does this even make it on the same scale to be weighed against consumer freedoms and fair use?

Its not like media is any better just because the industry is protected and allowed to flourish (not that it is any worse; im no indie music wanker). Almost all other industries can be shown to flourish by objective measures. Media cannot. Any paranoia at the destruction of the industry is ignoring the fact that it is impossible to prove that the industry is serving us optimally right now. Philosophically, there might not even BE an optimal media industry, given the set of alternatives, some hypothetical right now, that we might be able to choose from. In that case it is asinine to choose the one that is requiriing that consumers bend over and take it.

Lets rip these guys off so hard they go out of business and see how we feel about things then. I dare any man to claim he has the insight necessary to accurately predict this world. Why are we so afraid of it?
[ link to this | view in thread ]
Jon, 8 Nov 2006 @ 11:45am

It's not just the dems
The republicans don't behave much better on this issue. I can't speak to any specifics about copyright/TM/patent issues, but republicans tend to show an equal amount of ignorance in tech issues. The "series of tubes" guy is a republican and free-speech censoring FCC head is a republican. Sadly, both parties suck fairly equally on issues of censorship, net neutrality, and IP rights. I wouldn't have voted for a Democrat if you paid me, but on this particular issue, the GOP probably wouldn't fare any better.
[ link to this | view in thread ]
Ju1c3, 8 Nov 2006 @ 11:46am

yeah when i said hell in a handbasket, i pretty much ment what that guy said.
[ link to this | view in thread ]
Rick, 8 Nov 2006 @ 11:53am

Re: Thanks guys
Good, I hope you stay in your hole, with Saddam.

The idea that vigilante copyright holders will be able to throw you in jail is the stupidest thing I have ever heard. You know perfectly well it was only proposed and it would never pass a full vote. It was pure lip service to the entertainment industry.
[ link to this | view in thread ]
William Patry, 8 Nov 2006 @ 11:57am

Re: Thanks guys
You're wrong to put a partisan spin on the issue. In my 7 years on the Hill, no IP issue was every partisan. We (when i was subcommitte satff) introduced almost every bill along with Senator hatch and our House republican counterpart. We worked together with the Republicans on every issue and I never in my 7 years there once saw a difference based on party. Let's not forget that copyright term extension and the DMCA were passed by a Republican Congress if one wants to play that game.
[ link to this | view in thread ]
byte^me, 8 Nov 2006 @ 12:04pm

Re: Re: Thanks guys
The problem isn't that it passed, it's the fact that it was proposed in the first place! I don't care if it was lip service or not. That just shows where their loyalty lies.

Personally, I can't stand any politicians, no matter what party. They will tell you want you want to hear, then do whatever they think is right.
[ link to this | view in thread ]
Anonymous Coward, 8 Nov 2006 @ 12:26pm

Re: Re: Re: Thanks guys
Can you blame them? Unless your definition of "doing right" is "telling truth", then why shouldnt you lie if that is what it takes to stay in office and do right?
[ link to this | view in thread ]
DVDuu||uuPirate, 8 Nov 2006 @ 12:36pm

We deserve what we are getting.
I personally feel that our founding fathers are spinning in their graves so quickly that eventually the entire nation will self collapse.
We, as a nation, were founded on the beliefs of life, liberty and the pursuit of happiness. In fact we were founded as a republic, not a democracy. Democracy has always been self destructive. A true Republic is a government of the people, by the people, and for the people. All the arguments of DRM, Copyright, and Fair Usage are based on our Constitutional rights to protect ourselves from Big Brother. What we have allowed to happen, however, is allowing Corporations and Entities such as the RIAA to be considered individuals with all the rights therefor entitled. However, I have never, ever seen anything in our Constitution that states that a Business, Corporation, or Entity has any rights whatsoever. So, I say this to all who would listen. We the people have a right to stand up for our liberties. If we don't then we have no right to complain and must suffer the consequences therein. A famous leader once stated (and I paraphrase) He who gives up his freedoms for the sake of security deserves neither liberty nor security. Stand up America, we made this nation great and it is our responsibility to make the government do what we want, not the other way around.

(I'm done spouting off now).
[ link to this | view in thread ]
nunya_bidness, 8 Nov 2006 @ 12:50pm

Re: Re: Re: Re: Thanks guys
Spoken like a true politician.
[ link to this | view in thread ]
Anonymous Coward, 8 Nov 2006 @ 12:58pm

Re: We deserve what we are getting.
What are these entities but voluntary collaborations of individuals? Why do they deserve any less rights than the constituent individuals? Repressing the rights of an N-member entity is equivalent to repressing the rights of N individuals.

These entities already subject themselves to a suite of restrictions and regulations in exchange for the promise of a balance of freedoms to be returned to them in terms of equal rights under the law.

I dont think there is anything wrong with any of this in principle. Quibble with the clearly rancid details if you want but don't you dare treat me as a second class citizen unable to express my full range of freedom through the body of the company I have put together.
[ link to this | view in thread ]
Mike (profile), 8 Nov 2006 @ 1:10pm

Re: Thanks guys
Wow, thanks guys for voting in the Dems. Now we have this to look forward to. Now when I try to make fair use of copyrighted material I'll have vigilante copyright holders trying to throw me in jail. Maybe I'll just crawl into a hole for the next two years.

This is not a partisan issue at all. The Republicans have been just as bad (and in some cases, worse) on IP issues. It's simply an area where most politicians just have no knowledge, and unfortunately only hear from the big companies that give them money.
[ link to this | view in thread ]
DVDuu||uuPirate, 8 Nov 2006 @ 2:28pm

Re: Re: We deserve what we are getting.
I am going to create an association called Freedom Under Constitutional Knowledge (you figure out the acronym) to purposely violate the rights of all citizens of the USA.

My association has an idea that it's okay to violate any and all rights of any citizen or national of the United States. Ideas are intellectual property and since I have digitally stated my idea, my idea is protected under the DMCA.

So, because my entity has rights (such as you say), you are saying that I have a right to sue any and all individuals, corporations, agencies, associations, etc. whom violate the rights of the citizens of the USA?

So, I am suing you for damages and everyone else who has ever used my idea. That means everyone. Who hasn't told someone to shut up at some time or another and violated their right to free speach?

It's ridiculous.
Common sense, people, common sense.

If you like something another person has created, either ask permission to use it, or purchase it from them. Once you have purchased an item, it becomes your property. You have every right to do with that property as you wish.

Don't get holier than thou about this, just understand that entire premise is flawed and until we get some people in congress and the house who actually have intelligence and will do as their constiguents require, we are doomed to failure.

Thus the fall of the Roman Empire, and thus the Fall of the USA. It's happening, and might be too late to correct.

DVD_Pirate out.
[ link to this | view in thread ]
chris (profile), 8 Nov 2006 @ 2:38pm

Re: Re:
It is much more in the content industry's interest to control the production and distribution of DRM media.

uhh, no it's not. DRM costs money to research and develop AND fails to prevent copying. the copies available on P2P sites is not DRM protected.

so, content will be pirated regardless. the only thing DRM does is infringe on fair use. if i want fair use of my legitimately obtained DRM content, then i need to obtain a pirated copy. DRM is essentially telling me to pirate content.

so let's recap:

1. DRM doesn't prevent copying.
2. DRM costs the industry money.
3. DRM encourages legitimate users to pirate.
4. DRM is not in the content industry's best interest.

you can't fight piracy by creating more pirates any more than you can fight terrorism by doing stuff that creates more terrorists.
[ link to this | view in thread ]
DVDuu||uuPirate, 8 Nov 2006 @ 2:50pm

Re: Re: Re:
I couldn't agree more.
[ link to this | view in thread ]
Peet McKimmie (profile), 8 Nov 2006 @ 2:51pm

Re:
s it technically feasable for a software product to be made that could (for example) read a copyrighted DVD, check if it has been copied before (via Internet Registration?) - make a backup with copyright protection (no copying allowed, sue anybody who breaks this), it would allow people to make a backup and it be manageable.

It'd be much cheaper and simpler just to ship two copies of every DVD disc, DRM'd to the hilt, with one clearly marked as "Backup". :-)
[ link to this | view in thread ]
Anonymous Coward, 8 Nov 2006 @ 3:01pm

Re: Re: Re:
But surely you wouldnt say that it _enhances_ the effect of DRM to give up control of it?

1. DRM stops some copying. Step out of your reality distortion field. Of course it does not stop it all.
2. Of course it costs them money
3. Of course it lowers the value of the product and pushes more consumers to pirate, those who are priced out of the market due to the cost in terms of inconvenience exceeding the value of entertainment
4. You can make those judgements once youre a big shot in the content industry. I think it is in their best interest if they can train us to accept it. I know plenty of people who buy DRMed music online. Maybe you know some people? I mean, at all? And perhaps some of them buy DRMed music also. Perhaps before DRMed music was feasible they were using napster and kazaa. These guys are accepting it--they do not chafe within the restrictions. If these guys make up a high enough proportion of consumers, then the rest of us can be affordably discarded.

I hate DRM but I buy it sometimes anyway because I want it NOW and its not on usenet or BT and soulseek takes too long. Did that DRM make a pirate out of me? I paid them for music I wouldn't have bothered even to listen to any other way.

Your final point is a shameful lie. Pirates exist due to the availability on p2p and direct physical lending and ripping and copying. Because content providers come on the scene with DRM, and I use it some or none or all of the time, has a pirate been created? In the worst case, the pre-existing pirate has remained untouched. In the best case he has been tempted not to pirate some of the time. If DRM is the only way they can feel safe doing that, then thats how it will be done.

If numbers of pirates are increasing, it is simply due to the increasing overall value and convenience and dawning technological promise of digital media multiplied by the availability of pirated files. You are essentially saying that media companies CREATE pirates by failing to convert some of the new ones to their business model. Bullshit.
[ link to this | view in thread ]
Jacob, 8 Nov 2006 @ 8:01pm

"I wouldn't have voted for a Democrat if you paid me"

While my comment might not have much on the topic of copyright, I had to reply to this comment. The whole idea of always voting party lines for a canidate is crazy. I do not believe an individual always agrees with any party and if they say they do, i would challenge them on their knowledge of the what the party stands for on every topic. We as voters, have to decide what the most important issues to us are, and find the canidate that matches most closely with that. While I could even go as far as saying that it could be most often be a canidate from your party, it would not always be.

The main problem with our system, is not really the system, but the people not taking the time to educate themselves on their choices. Democracy is requires participation from the people, and if the majority doesn't participate, it will always be slanted.
[ link to this | view in thread ]
Ambivalent Dem, 9 Nov 2006 @ 3:25am

Re: Thanks guys
Well, the out-going guy, Lamar Smith (R-Tx), wasn't much better.
[ link to this | view in thread ]
Andrew, 9 Nov 2006 @ 4:04am

Conyers is worse
Conyers is in line for the full committee chair, and he is one of the worst out there when it comes to this. If Conyers if heading the full committee, I'm not sure anything Boucher does will be able to get out of a full committee markup.
[ link to this | view in thread ]