How Can You Be Register Of Copyrights If You Don't Even Understand Copyright's Most Basic Purpose?

from the time-for-another-job,-maria dept

Maria Pallante, who's only been the US Register of Copyrights for a short while, but has worked in the Copyright Office for some time, has apparently decided that she's going to step up publicly as the copyright-maximalist-in-chief. In two recent talks, she has made it clear that she despises those who fought against SOPA, believes strongly that copyright is the sole way of making money for content creators, and, most disturbing of all, thinks that copyright doesn't need to serve the best interests of the country, but, instead, the best interests of copyright holders.

She recently gave an interview to the American Bar Association's "Landslide" publication, which is put out by the "Intellectual Property" Section of the ABA. In showing just how out of touch with the times the ABA remains, there is no link I can share for this story, but in the interview, Pallante is asked about the fact that there is widespread criticism of copyright law being "too restrictive." Her response is downright scary:

"It is my strong view that exceptions and limitations are just that -- they are important but they must be applied narrowly so as not to harm the proprietary rights of the songwriter, book author, or artist. Copyright is for the author first and the nation second."

That, right there, should be grounds for termination, as she clearly does not understand her job or the purpose of copyright law. First of all, it's long been shown that it's the exceptions to copyright law, such as fair use, that help songwriters, authors and artists to create such amazing new works. As we've been discussing a lot lately, there is tremendous evidence that greater exceptions really do help those artists. For her to insist that she only wants narrow exceptions suggests that she's making determinations based on pure blind faith, rather than empirical evidence.

But, much more important is the simple wrongness of that second statement. The Constitution is quite clear about whom copyright is for. It's for the public, not for the creators.

To promote 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.

The purpose is to promote the progress of science and the useful arts. The method is creating monopolies for authors and inventors. But the clear, stated (and well recognized) intent and purpose of copyright law is for the nation. The goal is to maximize the overall benefit to the nation by helping the artists in a way that serves the nation. For someone in a position such as the Register of Copyrights to flip that equation on its head is really scary, and suggests she does not belong in that job.

Then, in a recent appearance before the American Association of Publishers, her short talk was like a big wet kiss to copyright maximalism, while attacking those who fought against SOPA. She talks up the wonders of copyright as if it's the only way to make money in publishing, and praises the Golan decision that said it's okay for the government to pull works out of the public domain and lock them up under copyright. She also insists that what concerned her most about the fight over SOPA was not the broad overreach of Congress and the MPAA, but rather the fact that the public doesn't understand copyright law, according to her. She's careful in her words, and pays some lip service to exceptions and the public, but it's not difficult to see her true feelings. She sneers at "the copyleft agenda" and snidely refers to the horrors that will happen if Congress listens to the public and changes copyright law based on "flawed notions of the public good." She's afraid that the public speaking out against SOPA means that such evil changes are "inevitable", and worries about that. She also suggests that having access to works for free is "a perversion of the Constitutional copyright clause" (she's quoting someone else saying that, but does so in a manner that shows she agrees). Is the public library "a perversion of the Constitutional copyright clause" in her mind?

Her job is supposed to be to promote the progress of science and the useful arts. That means understanding what the evidence actually shows will do so. Instead, she seems to have made some clear decisions about what must work -- and it's the same things that the copyright gatekeepers want. The role of the public, it seems, is just to be educated on her view of copyright law, and she fears that the public might influence the debate further beyond SOPA. This is immensely troubling, and raises significant questions about her impartiality in the role. The Copyright Office is somewhat famous for it's retrograde views on copyright law, but usually they try not to be quite so blatant about it in public.

Filed Under: copyright office, maria pallante, sopa

A Look At The Testimony Given At Today's SOPA Lovefest Congressional Hearings... With A Surprise From MasterCard

from the they-said-what-now? dept

We already know that today's SOPA hearings for the House Judiciary Committee are totally stacked in favor of the bill. But with the hearings getting underway, we wanted to dive in and look at what's about to be said. Most of the testimony leaked out yesterday, allowing us to spend some time going through it -- it's all embedded below. However, here's a taste of what's going to be said... with some additional commentary (of course).

First up, the most troubling of all: Maria Pallante, the Register of Copyrights (aka, Head of the US Copyright Office). She should be here to defend the public and to make sure that massive regulatory capture by a couple of stagnant industries doesn't happen. But, that's not how the Copyright Office rolls. Instead, her testimony is basically the US Chamber of Commerce's key talking points (perhaps not a surprise, since the main lobbyist at the US Chamber who's in charge of shepherding this bill into law only recently worked at the US Copyright Office). If you had hoped for some reasoned argument about pushing back on the massive excesses of SOPA and the broad definitions, you're not going to get it from Pallante.

It is my view that if Congress does not continue to provide serious responses to online piracy, the U.S. copyright system will ultimately fail. The premise of copyright law is that the author of a creative work owns and can license to others certain exclusive rights – a premise that has served the nation well since 1790. Congress has repeatedly acted to improve enforcement provisions in copyright law over the years, including in the online environment. SOPA is the next step in ensuring that our law keeps pace with infringers....

[....]

The response provided by SOPA is serious and comprehensive. It requires all key members of the online ecosystem, including service providers, search engines, payment processors, and advertising networks, to play a role in protecting copyright interests – an approach I endorse. Combating online infringement requires focus and commitment. It should be obvious that we cannot have intermediaries working at cross-purposes.

In other words, the successful tech industry should be hindered and shackled because my friends in Hollywood are too clueless to adjust their business models. Really?

SOPA is also measured. It appropriately provides much broader tools and flexibility to the Attorney General than it provides to copyright owners. This is a sound policy choice at this time. The Department of Justice has experience fighting online infringers, will use resources carefully, must exercise prosecutorial discretion in bringing actions, and must plead its case to the court and obtain a court-issued order before proceeding. Put another way, while the copyright industries are extremely important (and certainly a point of pride with respect to the U.S. economy), SOPA recognizes that many sectors rely on, invest in, and contribute to the success of the Internet.

Almost none of that is accurate. It is not measured. It is vague, broad and dangerous. The Justice Department's "experience" going after infringers has been to take down websites with no notice based on false info from copyright holders... and then to threaten those who seek to appeal with criminal charges. This is not "using resources carefully," it's government sponsored censorship.

It is for this reason that SOPA puts only limited tools in the hands of copyright owners, and provides the Attorney General with the sole authority to seek orders against search engines and Internet service providers. This is not to say that we should not continue to assess Internet piracy and the impact of SOPA or whether additional measures or adjustments may be needed. Indeed, SOPA assigns ongoing studies to the Copyright Office and the Intellectual Property Enforcement Coordinator for these very purposes. But I do think SOPA provides the right calibration at this time.

First off, the "limited tools" include the ability to completely cut off funding to any website based solely on accusations. Perhaps I learned a different language from Pallante, but that's hardly "limited."

Furthermore, how the hell can she say that this is "the right calibration," when even she admits this issue has not been studied yet? The bill is completely "shoot first, measure later," with no details on how it's effectiveness -- or harmfulness -- will be measured.

As with any legislation, SOPA deserves and can only benefit from a robust discussion. As the Committee works to further improve and refine the bill, I know it will fully consider a variety of perspectives and suggestions, including from my fellow witnesses. This said, I believe that Congress has a responsibility to protect the exclusive rights of copyright owners, and I urge the Committee to move forward with this in mind.

Yes, a robust discussion that leaves out nearly everyone opposed to the bill, and only allows a single party -- one easily dismissed -- to speak about concerns on the bill. A robust discussion that leaves out public interest groups, despite Copyright's entire purpose being for the benefit of the public. This is a shameful bit of testimony from the Head of the Copyright Office, and one that guarantees her a tarnished legacy in her role.

From there, she goes on to defend the US blacklist of sites the Attorney General decides are dedicated to infringement by (1) repeating the US Chamber's debunked talking points, (2) praising ICE's highly questionable domain seizures, which are currently being litigated (a fact she conveniently ignores) and (3) quoting (of course) Floyd Abrams, leaving out that he was paid by the MPAA to give that opinion. Even worse, she quotes the really questionable part of his claim:

It also bears repeating that injunctions are not at odds with the First Amendment. As noted First Amendment scholar Floyd Abrams has observed, they are "a longstanding, constitutionally sanctioned way to remedy and prevent copyright violations."

This is true, but highly misleading. Injunctions are allowed against those infringing. But that's not what SOPA is about. SOPA is about issuing injunctions on innocent third parties. That's what we're concerned about. And for Pallante to ignore that point is really unfortunate.

She then goes on to defend the private right of action to kill off websites based on a single accusation. She claims, laughably, that because the private right of action only leads to injunctions, rather than monetary rewards, there's little incentive to abuse. Wait. Is Ms. Pallante totally ignorant of the past decade plus of the DMCA? The DMCA takedown process also is basically about blocking content and not about monetary relief, and yet it's widely abused, with some estimates suggesting that over 30% of DMCA takedowns are questionable. The problem with SOPA (totally ignored again) is that unlike the DMCA -- which targets the specific content -- SOPA will kill off entire sites.

Even more stunning: rather than suggesting that such abuses may come from copyright holders sending bogus takedowns, she worries instead that payment processors and ad networks may ignore such takedowns -- and hints that if anything, the bill may need refinement on that front. Whoa. It's like an alternative universe where everything is mirrored. Again, we know what happens. We have the less draconian DMCA already and see how widely it's abused. And we see that those who receive takedowns generally abide by them.

Speaking of the DMCA, she pretends -- totally against the text of the actual bill -- that nothing in SOPA will impact the DMCA. This is hilarious. Why would anyone use the DMCA to take down a specific piece of content when they can now kill off an entire site using SOPA? Amusingly, she points to the fact that payment providers and ad networks face no monetary liability under SOPA... but ignores that just two paragraphs above, she was hinting that perhaps the law should be changed to include such liability to make sure they comply. This is the ultimate in cynical, obnoxious politics. Put in that one clause that makes you able to pretend something is reasonable (no monetary punishment!) and then be ready to remove that the second the bill is in place.

Finally, she talks about how "pleased" she is that SOPA turns streaming into a felony. Apparently Pallante would prefer people no longer stream videos any more. Has she even used the internet? Amusingly, she cites YouTube as an example of a legal source for streaming... ignoring the fact that under SOPA, YouTube likely wouldn't have even existed. It's as if she doesn't even understand the bill she's supporting and what it will do to the technology world.

And people wonder why so many Americans think copyright law is a joke? Perhaps they should look at the Copyright boss.

Next, we've got MPAA VP Michael O'Leary. His testimony is really worthy of having been written in Hollywood, seeing as it kicks off with a tearjerker of a story about the poor, poor stunt coordinator, "who depends on the residual payments he earns to help support his wife and three children between productions." Of course, the rest of the world doesn't get to sit back and get a check for work they did in the past, but actually has to keep working to support their families. Of course, how much do random key grips, stunt coordinators and boom mic operators (the favorites for these multi-millionaires to exploit in this kind of way) really make from residuals? It's a lot less than these kinds of testimonies suggest.

O'Leary continues to pull at heart strings, by trying to rope all sorts of other businesses into the movie and TV industry including (I'm not joking) the dry cleaners that serve the cast and crew on location. Apparently, without movies, dry cleaners go out of business. Think of the poor dry cleaners!

Filed Under: copyright, copyright office, hearings, judiciary committee, maria pallante, michael o'leary, sopa
Companies: afl-cio, mastercard, mpaa, pfizer

Copyright Boss Thinks It's Possible To 'Starve' Infringement Sites

from the good-luck-with-that dept

Isn't there a term for doing the same thing over and over again and expecting different results? In a Congressional hearing that was more for show in preparation of a new push for the COICA censorship bill, the acting Register of Copyrights, Maria Pallante, told the hearing that the way to stop foreign websites that link to infringing content is to "starve" their revenue, by having credit card companies cut them off and having advertisers not be allowed to run ads on their sites (things found in COICA, of course). Amusingly, her claims come just a few days after a massively detailed research report suggested exactly the opposite was true. Not like one would expect the Register of Copyrights to actually pay attention to what the research says, I guess.

Furthermore, Pallante's argument makes no sense for a variety of reasons. First, as we've pointed out repeatedly -- including to many entertainment industry officials directly: if these sites are really making so much money, why not start your own sites? Surely people would prefer to get the content from legitimate sources. All these sites are really doing is highlighting how the industry has failed to serve a consumer need. Second, for well over a decade, we've seen that the vast majority of unauthorized file sharing is done for entirely non-commercial reasons. You'd have to have not been paying attention at all to think that everyone setting up these sites is doing it for the money. Third, the idea that these sites would just go away if you blocked payment from these sources is again laughable. Every time these sites are taken down or blocked in some manner, they or other similar sites pop right back up. Continuing to pretend you can stop them, rather than trying to compete with them, simply doesn't work.

At the same hearing, Paramount's COO apparently did his usual song-and-dance where he showed how searching for stuff on Google could lead you to infringing material. He and another speaker, Daniel Castro, of ITIF, both suggested that censorship without prior adversarial hearings was not a problem. Sure, it's not a problem for the businesses they represent. It is a problem if you believe in the fundamental tenets of the Constitution, of course. Castro went to ridiculous extremes, suggesting that the government needs to blatantly censor the web through a "blacklist" filter that ISPs and search engines would be required to block. Anyone who thinks that won't be abused hasn't been paying attention. Thankfully, at least a couple of Congressional reps -- Zoe Lofgren and Mel Watts -- found these proposals extremely troubling. Unfortunately, many others on the panel are just itching to move forward with COICA, anyway. So, expect this fight to move on along similar lines. Hopefully enough of our elected officials recognize that there are existing ways to deal with infringement, and blatant censorship without serious due process is not even close to the right way to handle these things.

It's really amazing, in this day and age, that some of our elected officials honestly seem to think censorship is the answer to anything.

Filed Under: censorship, coica, copyright, enforcement, maria pallante