If you look at the history of copyright law, it's really a never-ending story of the law adjusting (often quite awkwardly) to deal with changes in technology that the law never predicted and wasn't prepared to handle. We see this manifest itself in many different ways today, including the whole question of "ownership" in a digital age. When you "buy" a digital video or song, did you really buy it? Or did you just license it? Because copyright law doesn't handle this well, we have a sort of Schrodinger's cat situation, in which companies claim it's either a license or a sale depending on who's suing whom. In other words, it's a complete mess.
Entering the fray with a unique idea as an attempt to solve that, some folks (and a company who likely seeks to commercially benefit from this idea) are trying to convince the Copyright Office to create a new consumer ownership registration system, dubbed "circle section" after the character they'd like to use for it:
Unfortunately, they're marketing it like lawyers, rather than marketers, so there's a lot of verbiage surrounding the description everywhere they talk about it, but the basic idea is pretty straightforward (if I understand it correctly):
If you buy something digital, you can "register" your ownership right in that particular copy, which then would grant you basic ownership rights, including rights to format shift the content and to resell it under first sale rights.
The folks behind this project have set up a Change.org petition in support of this, where they're seeking 200,000 signatures, though, currently they have very, very few (again, perhaps an issue of being lawyers, not marketers). Separately, they've chosen an odd strategy for pushing this effort: filing a petition with the Copyright Office as a part of the process by which the Copyright Office comes down from the mountain every three years and declares which products can ignore the DMCA's anti-circumvention clause. Except... this project has nothing to do with that. So, the backers have filed a separate motion, in which they basically admit that this is outside the rules... but they're doing it this way because if the Copyright Office accepts the proposal, than the whole question of ignoring anti-circumvention issues becomes moot, because a registry of consumer ownership would make it pointless. Or something like that. You can read the full motion below.
This seems like an incredibly long shot no matter how you look at it, and I'm not sure that trying to jump into the magical anti-circumvention clearance debate is such a smart move here. That said, I can see how a proposal along these lines could be interesting as a possible way to deal with the question of whether or not you "own" the digital products you thought you bought. At the very least, I'd be interested in hearing what other people think about it. Personally, I wonder if it's really necessary, or if it would just become seen as another burden for users, needing to register and track their registrations.
Law professor Rebecca Tushnet recently somewhat jokingly posted the following bit of irony that she found when going to the US Copyright Office for their hearings on DMCA exemptions:
At the Copyright Office, waiting for the hearings to begin. I did not interact with this setup in any way:
Now, this might just be a silly picture, showing how someone at the Copyright Office chose not to obey the "rule" that the door shouldn't be propped open, but Tushnet's "joke" about this showing why anticircumvention law doesn't work, because societal norms trump the law every time, is an important and valuable point. The reason that there is so much infringement isn't because the laws aren't strong enough. It's not because there needs to be more education or greater enforcement. It's that people fundamentally don't believe the laws make sense. Trying to block circumvention doesn't work when the tools make it quite easy to circumvent, and the end result -- propping open the door or being able to do what you want with the content you legally purchased -- just makes too much sense. If only the folks at the Copyright Office recognized that this applies to a lot more than propping open a door, but to the area of the law that they constantly seek to expand.
Last month, I wrote about the damage to the public domain caused by the difficulty of accessing older copyright registration records. Since much of the information is not digitized and locked up in books and card catalogs in Washington, countless works that have lapsed into the public domain are treated as if they were still under copyright, since confirming their status is a prohibitive task and the penalty for making a mistake can be severe. This problem, combined with the simple fact that copyright lasts way too long, leads to a huge cultural gap where works are still protected (or presumed to be) but the rightsholder (if one is even apparent) is not making them available.
At the time, the Copyright Office had informally asked for feedback on the idea of creating a "digital card catalog" of raw scans as a stopgap solution, since full digitization is still a major challenge. Now this effort is official: the Office posted two Requests For Information on the Federal Business Opportunities site, seeking outside vendors with the relevant technology and expertise.
The first pertains specifically to the virtual card catalog idea, which would involve raw images of the cards arranged in a virtual hierarchy to match the physical drawers, and currently only seeks to "determine the availability of such software in the marketplace either as an existing product or as a potential development effort". The second deals with the next step, seeking more information on possible crowdsourcing solutions to help complete the records with metadata and searchable text.
It's frankly unfortunate that this is necessary, and it wouldn't be if ever-increasing copyright terms and retroactive extensions hadn't locked up half of creative history. Today, culture has far outpaced copyright law, and the disconnect between the way things work and the way they are "supposed" to work is staggering. Nonetheless, fully digitized records would have a huge impact on society: people would discover that the public domain is a hell of a lot bigger than anyone thought, and all sorts of forgotten works would be discovered—and renewed both culturally and economically by new creative and business energy. Whether or not the Copyright Office can actually accomplish this task is uncertain, but it's nice to see evidence of an ongoing effort.
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.
One of the biggest problems with copyright law is orphaned works—material for which the copyright status is impossible to determine, or for which the current copyright holder is unknown. Closely tied to the issue of orphaned works is the sheer prohibitive difficulty of looking up copyright registration information: the Copyright Office has records going all the way back to 1870, but only those from 1978 onwards are available online. That leaves over a century of records that exist only in physical catalogues containing upwards of 70-million entries. Millions of these works have undoubtedly fallen into the public domain thanks to shorter, stricter copyright laws at the time of their creation—and yet they continue to have de facto copyright protection because very few people have the means to access and search the records.
Last year, the Copyright Office said that they would make it a priority to digitize these records. Naturally this is a difficult and expensive task: the scanning phase is well underway, but the office has yet to tackle the much bigger challenges of text-recognition and metadata tagging that are necessary to make the records searchable. As a stopgap solution, they are now considering the possibility of putting the raw scans online:
Of the 25,723 drawers in the Copyright Card Catalog, more than 12,000 have already been scanned resulting in more than 17 million card images safely tucked away in Library storage. The long term plan is to capture index terms from the card images using OCR and keyboarding and to build indexes for online searching. But this will require significant time and money to achieve. Must we wait to share these images with you? Maybe not.
As an interim step, the Copyright Office is considering making the images of the cards in the catalog available online through a hierarchical structure that would mimic the way a researcher would approach and use the physical card catalog. We’re calling this a virtual card catalog. While it would not provide the full record level indexing that remains a principal goal, it would make information available as we’re doing the scanning and as searchable as the actual cards.
Anything that makes these records more accessible is a good thing, but this situation really just serves to underline the massive imbalance in copyright law. The public domain—supposedly a key part of the bargain of copyright—is being curtailed by the failure of the system to keep up with technology and culture. In today's world, everyone is a content creator, and by extension, everyone is a remixer. For new generations, public records that don't exist online might as well not exist at all. Expecting people to wait for these records to be digitized (or fly to D.C. and request access to the physical catalogue) is laughable—a total denial of reality. Is it any surprise that people don't respect copyright law under such circumstances?
I'll have a more detailed look at the Megaupload indictment tomorrow (there are some really ridiculous claims in there, but also some evidence of bad actions on the part of Mega, which isn't too surprising). However, even if you're 100% positive that Megaupload was a bad player in the space, you have to question both the timing and the process of completely taking down the site/company the day after practically the entire internet rose up to protest the threat of similar takedowns under SOPA/PIPA. For them not to think the reaction would be fast and furious shows (yet again) just how incredibly, ridiculously, out of touch with the internet the DC establishment is.
Within minutes of the site being shut down, and DOJ releasing its statement, Anonymous sprang into action and started taking down a ton of sites -- including websites for the DOJ, the US Copyright Office, Universal Music, the RIAA, the MPAA and a bunch of other sites. They're apparently still targeting more.
Think of this as the flipside of yesterday's protests. Yesterday the internet folks went dark to protest things. Today... following the government's decision to show off its existing censorship powers -- mocking yesterday's protests -- it appears that the industry/government supporters of online censorship are going dark involuntarily... in a different form of protest.
When will the government learn: don't muck with the internet?
Almost missed this one, but Eric Goldman alerts us to the dozen comments filed with the US Copyright Office concerning its plan to force everyone to keep re-registering their official DMCA agent in order to keep retaining the DMCA's safe harbors. As we've discussed in the past, in order to make use of the DMCA's safe harbors, you have to register an official DMCA agent with the Copyright Office. In fact, we've suggested that anyone running a blog or forum site do exactly that. Many of the companies that were successfully sued by Righthaven (before it was discovered Righthaven didn't really have the copyrights it needed) were caught because they failed to register a DMCA agent. While I think that such sites could make a reasonable argument in court that they still were not liable, it's a lot more difficult (and costly) to do so.
However, for reasons that escape me, the Copyright Office is thinking of making it much easier for companies to lose their safe harbor protections by requiring them to regularly re-register with the Copyright Office, or have their agent tossed out. This is part of a larger -- and useful -- effort to make the process of registering electronic, rather than the paper one it is today. That's a good thing. But dumping the database and requiring periodic re-registering is fraught with problems. The Copyright Office appears to defend this process on two grounds: first that some companies have gone out of business, and yet their DMCA agent listings live on and second, that copyright holders may want to know if a service provider is in compliance on the date of infringement.
However, as the excellent CCIA response to the request for comment notes, neither reason makes much sense. If a company is out of business, it's not doing anyone any harm to keep their names in the list:
These outdated entries
impose little cost on prospective rightsholders using the database, however, since few
rightsholders will ever want to send takedown notices to a service provider that no longer
exists. This scenario does not justify any substantial compliance costs on the industry, startups, or members of the public who would want to claim safe harbor protections.
The second reason is equally mystifying:
However, existing [law] already requires registrations of agents to be dated, such that
Copyright Office records can already enable rightsholders to ascertain whether a service
provider was in compliance on a particular data. This proposed feature therefore does not
provide sufficient value to justify new regulatory obligations.
The CCIA piece also notes that this retroactive yanking of safe harbors almost certainly goes against the law, as the Copyright Office has no mandate under the safe harbors of the DMCA to remove such safe harbors just because it doesn't like the fact that there are a few "dead" entries in the database. The biggest issue, of course, is that this imposes significant compliance costs on pretty much anyone running a website that wishes to avail themselves of the DMCA's safe harbors. Even worse, simply forgetting to re-register your DMCA agent when the time comes could cause you to lose the protections entirely. That seems ridiculous.
Others who came out against this insanity include Public Knowledge (pdf), EFF, with Jason Schultz & Eric Goldman (pdf) and Microsoft (pdf). There's also a short and sweet filing from Matthew Neco (the only individual who filed a comment by himself), which notes that it would be an "unreasonable burden" to have to keep re-filing. It notes that a simple calendaring mistake might lead to the loss of safe harbor protections which would be "draconian" for such a simple mistake.
Amazingly, the MPAA actually appears to kinda/sorta agree with those above (pdf) in saying that "resubmitting designations
through the online form may be costly and burdensome for
those companies with a large number of designations if
separate manual entry of new forms for every existing
designation is required." It later warns that this "risks being a trap for the unwary." Of course, rather than totally coming out against the idea, the MPAA says that the Copyright Office should "make clear in the designation process that failure to
keep the records current (in the Copyright Office database and
on the service providers' own websites) is a basis for losing
DMCA safe-harbor protection." Yes, because putting a single sentence on the website will keep it from being a trap for the unwary. Huh?
On the other side of the coin entirely is the RIAA who enthusiastically supports anything that might weaken the DMCA's safe harbors. It goes so far into the ridiculous as to call such periodic re-registrations as "essential," apparently ignoring all of the legal points raised by the other filings. Somewhat surprisingly, both Verizon and the Internet Commerce Coalition don't seem to think it's that big of a deal to have to re-register every couple of years, and each provides minor suggestions for making the process simpler.
Others weighing in on the request for comment seem to focus on other issues. Google has a short comment (pdf) about why it doesn't make sense to require service providers to file separately for every subdomain, and separately argues that takedown notices should be written, rather than allowing phone calls. A bunch of organizations representing rural and small telecom companies focus (pdf) on making sure third parties can maintain and update the agent info.
Then... there's the filing of MiMTiD (pdf). If you don't recall, we've written about the anti-piracy outfit MiMTiD a few times in the past, and it always has to do with some wacky, totally detached from reality, argument the company has -- such as claiming that it's infringing to pass on DMCA takedown notices to ChillingEffects.org, or that the music industry has been destroyed, because Congress preferred to protect Farmville rather than record labels. Not surprisingly, MiMTiD's filing is more of the same. Much of it simply complains about Google:
From what we understand, Google takes it upon itself to conduct a manual
investigation of each infringing link identified and ultimately decides, using
unpublished criteria, whether or not Google agrees with the copyright owner that
the link is indeed an infringement of the relevant copyright owner’s rights. As
noted above, all notices sent by MiMTiD on behalf of copyright owners are
DMCA compliant, so they satisfy the extensive, carefully-crafted criteria that
Congress established for a notice to be valid.
The DMCA also provides other built-in safeguards and checks and balances, such
as a counter-notice process for a party to object to the removal of its content and
penalties against copyright owners that abuse the notice process. Nonetheless,
Google inserts itself as an extra-statutory, self-appointed arbiter of the validity of
DMCA-compliant notices that Congress has already determined as valid under the
statute. If Google does not unilaterally agree that the links submitted in a take
down notices are infringing, under whatever standard it chooses to use, Google
informs the copyright owner or its agent as follows: "In accordance with the
Digital Millennium Copyright Act, we have completed processing your
infringement complaint. ... At this time, Google has decided not to take action on
these URLs: [list of ignored links]".
I'm not sure what that has to do with anything in the RFC from the Copyright Office. It also seems to suggest a misunderstanding of the DMCA. That is, it seems to suggest that if you send a DMCA compliant takedown, the service provider must remove the content. But that's not true at all. They only have to do that if they want to retain safe harbors. But if they believe the notice is bunk, and there's nothing to fear from a lawsuit, they don't have to remove the material at all.
When MiMTiD finally gets around to the RFC, it still doesn't appear to understand what it's talking about. It seems to not realize that the DMCA already requires service providers to designate an agent, and instead suggests what a great idea it would be to have that requirement (seriously):
Therefore, we support the proposal to require "Designation of Agent To Receive
Notification of Claimed Infringement", which we believe will enable the DMCA
to function as contemplated by Congress by eliminating confusion and
inefficiencies, enabling a party to object to the removal of the content and the
alleged infringing links from search, enabling these websites to pursue penalties
against copyright owners that abuse the notice process and requiring websites
seeking to receive the benefits of section 512 to be required to file designation of
an agent.
Yeah. Perhaps the reason Google rejects some of your takedowns is because you don't understand the DMCA... Just saying...
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!
The aging rocker brigade continues to make foolish statements about the internet and copyright. We've already mentioned John Mellencamp's and Stevie Nicks' anti-internet comments, but we should probably include Don Henley in there as well. You may recall that at the beginning of August, after actually winning a copyright claim against a politician who used his song in a commercial, Henley went on a tirade about how evil YouTube is, and how the government needs to do something.
While the onus of legally pursuing infringement has always been on copyright owners, the U.S. Copyright Office clearly has not been a strong enough advocate for copyright owners, particularly when you look at its most recent decisions. I think that fact has been lost over the last 10 years, especially with respect to digital media.
This is incredibly laughable if you know anything about the Copyright Office, which has been the leader in pushing for ever more draconian copyright law and has a history of almost always siding with content creators over the public. The 1976 Copyright Act, which completely flipped copyright on its head in this country came out of the Copyright Office, and some of the same folks are still there (including the boss, Marybeth Peters) -- and haven't changed their opinion much. Peters, in particular, has always been a staunch supporter of copyright holders over the public.
But Henley wants to believe in this fantasy world of a different sort of Copyright Office... and he even has an equally laughable explanation:
Because the Copyright Office is a part of the Library of Congress, and the mission of a library is to provide free access to the public, there is an inherent conflict of interest. Perhaps the time has come to separate these institutions so that they are not at cross-purposes. After all, the Patent and Trademark Office is part of the Department of Commerce and, since U.S. music, film and other creative copyrights comprise one of our country's most lucrative sectors, here and abroad, moving the Copyright Office under Commerce Department's umbrella might be the most effective way of enforcing the law.
Mr. Henley is woefully misinformed, yet again. The idea that providing access to information is somehow "a conflict of interest" with copyright law would make almost any copyright scholar choke with amazement. The entire purpose of copyright law was to provide more information to the public. And yes, it was through a system of monopolies by granting exclusive rights, but to suggest that these two ideas are in conflict is wrong. And, Henley also seems a bit confused about the Library of Congress, falsely thinking that it's something like a giant public library, and extrapolating from that.
As for the idea of moving the Copyright Office into the USPTO or into a similar role under the Department of Commerce, that again inherently confuses the purpose of copyright law. However, even if that did make sense, it's got nothing to do with being a more "effective way of enforcing the law." The Copyright Office does not "enforce the law," so the whole concept of Henley's comments makes little sense.
Separately, it looks like Henley has been talking to someone in the RIAA about how that darn DMCA (written with the help of the RIAA) just isn't working any more:
Congress should amend the Digital Millennium Copyright Act (DMCA), eliminating or dramatically limiting the Safe Harbor provisions so that ISPs [Internet service providers] and websites such as YouTube, MySpace and Facebook have legal liability for hosting infringing content. Just as distributors and retailers have equal liability under the law for distributing and/or selling bootleg or infringing music, films, software, and other intellectual property, so should online companies bear similar liability at law.
Doesn't that message sound pre-written out by someone in the industry, rather than something that just popped out of Henley's mouth? Either way, it's also quite ignorant of the situation. There's a very good reason why the safe harbors are in the DMCA and that's to make sure the right party is liable for copyright infringement. The reason that distributors and retailers can be liable for distributing or selling is because they're the parties actually responsible, rather than a separate third party tool provider. The ISPs in this case are more like the companies selling the CD players that play the bootlegs. Does Henley think those consumer electronics firms should be liable as well?
From there, Henley -- again, apparently living in a parallel universe -- claims that the labels never should have removed DRM:
The recording industry was bullied by online retailers into removing protective measures, such as DRM, from their sound recordings or else facing the prospect of these retailers refusing to distribute their catalogs. Yet, so far, digital royalties on music have failed to live up to the hype; in fact, removing such protective measures has increased the theft of music and other intellectual property.
First of all, the labels weren't "bullied" into removing DRM, they finally came to their senses after consumers revolted from DRM, and there was example after example after example of DRM harming legitimate customers (or leaving them high and dry after a server was taken offline). And the idea that removing DRM increased infringement is equally laughable. Everything that was released with DRM had that DRM cracked and was available online already. Removing DRM hasn't changed anything when it came to infringement.
We've seen lots of really clueless music industry folks, but this interview really takes the cake as a new low.
Separately, I should mention that I only came across this interview because of a (typically) angry tweet from Ticketmaster CEO Irving Azoff angrily tweeting about it. His complaint wasn't about Henley's blatantly laughable statements. Nope. He was downright angry that Rolling Stone referred to Henley's ignorant comments as "conservative." Seriously:
Don's views are "surprisingly conservative" to whom? The writer? Please be sure to thank him for his editorial comments. It's interesting that a writer from a magazine empire that was founded and built around music and musicians now seems to be taking a position in opposition to it's content providers. How about free copies of Rolling Stone for everybody - in perpetuity?
Calling someone's views on copyright "conservative" hardly is taking a position "in opposition to content providers." On top of that, it's downright obnoxious that Azoff seems to think that writing about music and musicians means supporting greater and greater government-granted monopoly rights for those musicians. As we've seen time and time again, less copyright tends to lead to greater creative output and greater net benefit. So, if you actually looked at the evidence, it would seem to suggest that a publication supporting music and musicians would also support less copyright.
But, of course, what copyright really supports is (you guessed it) middlemen and gatekeepers. And what's one of the biggest gatekeepers around in the music industry these days? Oh right... Ticketmaster. Frankly, this is pretty disappointing. About a year ago, I met with various Live Nation execs who really seemed to get the whole new business model/CwF+RtB concept, and were talking about ways that they could better enable that for musicians. While Live Nation definitely didn't have the greatest reputation, I was actually excited maybe a major player in the industry would start to enable new business models, focusing on the future and the opportunities of setting the infinite free and selling scarcities, rather than misguided whining about copyright. Then the Ticketmaster merger closed, and it looks like with Azoff in charge, those plans are going nowhere fast.
The session kicks off with U.S. Copyright Office official Steven Tepp defending ACTA, by saying right from the outset, "Quite candidly, we're in the midst of a worldwide epidemic of copyright piracy." What kind of epidemic? Well, he uses that old line about how organized crime groups and terrorists are being funded by copyright infringement -- a claim that the industry keeps making, but which makes little sense. Even if it were true that some crime operations are selling bootleg DVDs and such, aren't they under the same, if not more, pressure from unauthorized internet file sharing?
But, even more to the point, tossing out the "organized crime" and "terrorists" claim (never with any actual evidence, of course) is a pure moral panic. If organized crime groups and terrorists are a problem, go after them for their organized crime and terrorism efforts. Don't claim that we need to put in place restrictive copyright laws that impact everyone just because law enforcement is unable to stop these organized crime groups. And it's worth pointing out while Tepp claimed this is all about organized criminals and terrorists... pretty much all of his comments following that had nothing whatsoever to do with either, but were more directed towards file sharing.
Tepp's next point is to back this up by quoting the widely laughed at (even by Tepp's own bosses) USTR Special 301 report, which has no actual methodology, other than to repeat whatever complaints are made by the entertainment industry and the pharma industry, without any effort to back that up with facts or data. That's not evidence. That's just US companies begging the government for protectionist policies against competitors. Amusingly, Tepp won't even name the countries he's talking about, so that people can point out the mistakes or problems in the USTR's report. He refers to "one Latin American country" or "one Western European country," by which he means Spain, but never says that -- perhaps because the USTR's report on Spain is misleading and not accurate. For example, he claims that in Spain (er this "Western European country") "internet piracy is no longer prosecuted and that government seems to be moving in a number of wrong directions with regards to online enforcement."
That's insulting to the Spanish and blatantly incorrect. Spanish copyright law has recognized that private, non-commercial file sharing is not the same thing as commercial counterfeiting. It's really quite misleading and disingenuous for Tepp to kick off this talk by saying he's not talking about internet downloading but about organized crime and terrorists... and then just a couple sentences later, complain about Spain not punishing kids for downloading some songs for their iPods. Furthermore, the big complaint about Spain is that it properly recognizes that a search engine or a tool should not be blamed for the actions of users. The US used to believe that too. But does Tepp explain any of this? Nope. He makes it out like the Spanish gov't is supporting terrorists. This is blatantly untrue and misleading. And, honestly, claiming that Spain's decision to create copyright laws that make sense is the country going in "the wrong direction"? That's insulting.
However, it does show how the whole ACTA debate is being distorted by the industry. They'll claim over and over again that it's about stopping organized crime and terrorists, but then immediately assume that people doing file sharing online should get lumped in with those people.
From there he goes on to pull out the usual bogus (and legally false) claim that these actions "rob" the United States. Uh, what? If the US is being robbed, charge the perpetrators with theft, and move on. A government official should not be making such legally incorrect statements to support a policy. This is not about anyone being robbed. This is about countries that have made reasonable determinations on how copyright law should be applied. And many folks have figured out how to work successfully within those legal regimes. That a few US companies don't want to adjust shouldn't lead the US gov't to forcing other governments to change their laws.
And then, the kicker. Like Ron Kirk recently claimed, Tepp says that now that the ACTA document has been released, it's proved all the "wild internet rumors" to be "false." Um. Except that's not true. The details showed that there are massive problems with ACTA, in that it only exports the restrictions with none of the exceptions. While it is true, technically, that it is "consistent with US law," today, that ignores the fact that US law is constantly changing, and ACTA would lock in aspects of the law, without allowing Congress to make important and necessary changes for fear of "not living up to our international obligations." Fixing problems with current case law (not statutory law) on what constitutes "contributory" infringement? ACTA limits that. That's a huge problem that many people pointed out in those "wild internet rumors" and it was proved 100% true.
Later on Tepp makes even more bizarre claims (amusingly, right after he slips up and calls it a "treaty" despite all the efforts of US negotiators to make sure they never called it a treaty). He says that ACTA has no intention of changing whatever balance each individual country makes in terms of copyright sanctions or exceptions. He specifically says:
"ACTA very clearly, from day one, has never been about changing the balance of copyright law. It doesn't talk about rights. It doesn't talk about exceptions... ACTA's just saying, whatever the infringement provisions and exceptions you have in your law, are up to you (consistent with all those other treaties we've all negotiated and agreed to), and you should have some minimum type enforcement actions available so that the remedies for violating those rights... have some meaning... So to say that ACTA is exporting without exceptions is to ignore that it's also exporting without rights. It's not talking about rights or exceptions."
That's blatantly untrue. The provisions on secondary liability do exactly that -- increase restrictions, without corresponding exceptions. And if it's not changing what any country does, then what's the point of the document in the first place? To say that it's just setting a "minimum type [of] enforcement" is to say that it's requiring specific copyright sanctions, which was exactly the complaint. Furthermore, the idea that this is needed to make sure enforcement "has some meaning" is again incredibly insulting to the decisions on copyright law that those other countries have made -- such as Spain's decision that personal, non-commercial copying should not be treated like for-profit, commercial copying.
Tepp is playing sneaky word games. When people complained about how ACTA exports enforcement provisions without the exceptions, Tepp focuses on the fact it doesn't export rights, but ignores the enforcement provisions -- which is what people were concerned about in the first place!
Anyway, he goes on to try to address the secondary liability claim, first by mocking the example that was brought up earlier of the Google execs found guilty of criminal privacy violations:
In terms of secondary liability issue, this is another red herring. The Google case in Italy, that happened entirely without ACTA. How is that possible? How could something bad happen without ACTA?
Once again, blatantly misleading. The example of the Google execs was used to show how secondary liability could create harm for American companies, by highlighting troubling secondary liability rulings in a different realm -- in this case privacy law. It wasn't saying that it was directly an example of what would happen with ACTA, but highlighting how secondary liability, as a concept, can lead to bad results. Tepp either feigned ignorance or was actually ignorant of the fact that this example was just showing secondary liability problems in privacy law, to suggest how those problems might also show up in copyright law. Mocking such a serious problem with secondary liability does not inspire confidence that Tepp or the US Copyright Office has even thought through the consequences of secondary liability.
That's scary.
Tepp continues:
ACTA doesn't mandate every jot and till of secondary liability. It sets forth the basic approach to it in the US and proposes that as standards to follow elsewhere. Could countries go beyond that? Sure. Have countries already gone beyond that already? Sure. Does ACTA require it? No... This is something ACTA does not require...
Um. What? Section 2.18.3 of ACTA, as it stands, appears to require third party liability (i.e., "secondary liability") and the related footnote to that section defines it pretty clearly:
For greater certainty, the Parties understand that third party liability means liability for any person who authorizes for a direct financial benefit, induces through or by conduct directed to promoting infringement, or knowingly and materially aids any act of copyright or related rights infringement by another.
Once again, Tepp is being misleading. He's pointing out that ACTA sets the floor for secondary liability based on what's in the US, but totally ignores the fact that secondary liability for copyright in the US is a highly dynamic area. It's not in the statute anywhere -- a law that tried to put it there did not pass -- and really was only defined by the Supreme Court just a few years ago in a manner that many people find problematic. If ACTA sets that as the floor, then it limits the US from being able to fix the problems with the Supreme Court's definition. At the same time, note that Tepp only talks about going "beyond" what's in the US today. He doesn't seem to realize that many countries find the US's view of secondary liability as already having gone way too far.
He's right that countries can already go further, and some do, on their own, but that does not minimize the fact that encouraging greater secondary liability will likely come back to haunt many US companies.
Thankfully, Michael Petricone from the Consumer Electronics Association responded to Tepp's statements by making many of the same points I'm making. Later he highlights many of the other problems with ACTA, including the lack of Congressional oversight, and the failure to involve stakeholders and the public (Tepp, amazingly, says that the process has been open to anyone who wanted in). A great moment, about halfway through, is when Petricone challenges Tepp, by saying that if he's right that "there's no 'there' there," then "why the secrecy?" Tepp's response? Basically "that's not my department."
A few other points:
Richard Bengloff, from A2IM (representing independent labels), admits that they decided to support ACTA despite not having seen it. He says that someone from the RIAA "briefed him" on the background and that was enough for them to support it wholeheartedly. That's scary. Considering that the specific language choices are really important for the kind of impact ACTA will have, to say that an entire organization was in full support of the document, without even knowing what it really said, is stunning and a huge question market for A2IM. Why would you trust an organization that blindly accepts an important document it hasn't seen?
Later on Bengloff makes this hilarious statement: "We're going to support anything of any type that stops this crime." And, of course, he emphasizes the word crime. Like Tepp before him, he is deliberately mixing certain criminal activities and civil infringement for personal use as if they are the same thing. And, he's being woefully uninformed if he thinks that ACTA will actually do anything to actually stop file sharing. He's doing the labels he represents a great disservice.
Petricone does an excellent job responding to Bengloff on this point, noting that it's ridiculous to say you'll support "any" action designed to stop file sharing, when you don't look at the wider consequences of those actions -- including on other industries and the public at large.
Petricone also highlights how the entertainment industry has been blurring issues by lumping copyright in with counterfeiting, saying that if the agreement focused on actual counterfeiting, there wouldn't be so many complaints about the proposed agreement.
Malini Aisola, from KEI, reminds everyone how silly it was that the USTR wouldn't share the documents earlier, despite FOIA requests, claiming that keeping the documents secret was a matter of national security (a position that still has never been explained).
Tepp is incredibly condescending to Aisola, when she expresses concerns about some of the language in the text and how it will impact seizure of legal generic drugs. He reads off a press release from ACTA negotiators that says ACTA won't impact that issue. As if the press release of what ACTA negotiators say the agreement will do has any impact on what the agreement actually says. Aisola has a list of text KEI would like included in the document, as a "consumer Bill of Rights" to ensure that what's in the press release is true, and Tepp shoots her down by saying that such agreements don't usually contain that kind of text. He says we should only discuss what's directly in ACTA, and if it violates those principles -- again, dismissing the idea that exceptions are important to making sure enforcement is not overly draconian.
A final point from Bengloff, equally as jaw dropping as his earlier comments: "If we don't stop piracy, we won't be in the music business because there will be no more creation." Yes, that's why more music is being created today than ever before, and there are more people making money from music than ever before. This argument that without strong copyright law there will be no more creation is beyond laughable. Lots of folks have figured out business models that work without involving copyright law. Pretending those models don't exist is blatantly ridiculous. You would think that, as an industry association for independent labels, A2IM would be on the forefront of encouraging these better business models, but instead they're sucking up to the RIAA demanding protectionism for the same copyright laws that have allowed the major labels to be the gatekeepers in the market, at the expense of indie labels.
