A couple months ago, someone sent over an interesting Virginia Law Review article from Alli Orr Larsen about how the Supreme Court is increasingly listening to amicus curiae briefs (friend of the court briefs) from parties not actually engaged in lawsuits -- and at times that's problematic because the briefs are not always, you know, factual. We frequently write about amicus curiae briefs, detailing where we agree or disagree with them, leading to some interesting discussions. When done well, these briefs really can add valuable insight. But, sometimes they allow some ridiculous claims to make it into the discussion. As the abstract of Larsen's paper notes:
The trouble with amicus facts, I argue, is that today anyone can claim to be a factual expert. With the Internet, factual information is easily found and cheaply manufactured. Moreover, the amicus curiae has evolved significantly from its origin as an impartial “friend of the court.” Facts submitted by amici are now funneled through the screen of advocacy. The result is that the Court is inundated with eleventh-hour, untested, advocacy-motivated claims of factual expertise. And the Justices are listening. This article looks at the instances in recent years when a Supreme Court Justice cites an amicus for a statement of fact. It describes the way the brief, rather than the underlying factual source, is cited as authority and the failure of the parties to act as an adequate check.
That's definitely interesting, and certainly opens up the Supreme Court to responding to "truthiness"-type arguments. Given that, it's perhaps not that surprising that Stephen Colbert, the man who coined "truthiness" in the very first episode of his (soon to be ending) TV show, did a segment on Larsen's law review article a few weeks ago.
In that segment -- which we'd embed if Colbert/Comedy Central offered SSL embeds (they don't appear to) -- he calls out a few of the examples from the paper, including an amicus brief filed by the Library Copyright Alliance in the Kirtsaeng case, concerning the potential impact on foreign-printed books now found in US libraries (the fear was that if the Supreme Court ruled in favor of Wiley, it would mean that merely lending out foreign-printed books would potentially be infringing). Thankfully, the Court went the other way, but Larsen's paper calls out that the amicus brief from the libraries cited 200 million foreign-printed books from a blog and the blog in question is "no longer available."
Jonathan Band, the author of that amicus brief, took offense to his "hero," Stephen Colbert challenging his brief and hit back with an amusing letter that points out that the blog post actually is still available -- it just moved. Also, it was written by a known expert in the field who actually had access to the data necessary to make such an estimate. Still, Band jokingly mocks the whole experience of being mocked by Colbert and hits back with a few more amusing, less persuasive, counterpoints:
But then I realized that you, my hero, were actually criticizing the brief because it cited to
a blog post as the source for the fact that U.S. libraries possess 200 million foreign-printed books, and the post was no longer available. Now that I have recovered from the
shock and humiliation of this criticism, I offer the following response:
What difference does it make if the source can’t be found? This is the perfect
example of truthiness. The number we cited sounds right, and we’re a bunch of
librarians and librarians never lie.
The law professor who wrote the article that pointed out the missing blog post,
Allison Orr Larsen, teaches at William & Mary Law School. That’s a silly name
for a law school; it’s like Dick & Jane Law School.
It’s not our fault that the blog post was moved.
The blog post is actually still available in the website’s archive.
The person who wrote the blog post, Ed O’Neil, is an expert on the subject, and
has access to the catalogues of the collections of every library in the country.
Wiley’s lawyers had ample opportunity to challenge the number, but didn’t. In
fact, no one has challenged the accuracy of the number.
So, while the issue of the Supreme Court relying on amicus briefs is definitely an interesting one to follow, it appears that Larsen -- and Stephen Colbert -- may have misfired on this particular one.
For decades now, we keep hearing various "copyright intensive" companies whining to the press and politicians about how the "biggest threat" they face is continued copyright infringement. We hear about how it's undermining not just their business, but entire economic sectors, the basis of capitalism and the fundamental rule of law. Copyright infringement, we are told, is one of the largest risks to the economy and society that you could possibly imagine. We've long questioned the validity of those claims, especially since history has shown that the industry cries wolf fairly frequently and has always been wrong. Most famously, of course, the MPAA's Jack Valenti told Congress that "the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." That was in 1982. In 1986, the home video market -- which the VCR created -- made more money for the MPAA's studios than the box office did. It's tough to believe the "threat" claims when they're always wrong.
But, the "copyright intensive" industries just keep on making those claims, and there's always some in the press and among elected officials who either don't know or don't care about the past (or technology or reality) and automatically believe those claims. They just assume that of course copyright infringement must be a huge threat because these companies say so.
A new study, however, found a pretty good way to evaluate the reality of that threat. Jonathan Band and Jonathan Gerafi realized that a good "independent" third party to evaluate the risk and threat of copyright infringement would be investment analysts. Their only stake in the game is whether or not the company is going to do well or poorly. If the perceived risk and threat was real, they'd certainly be letting everyone know. So, Band and Gerafi have produced a new research report studying equity research reports issued over the last quarter for eight of the top companies in the so-called "copyright intensive industries."
The choice of companies is interesting, because all eight are among those that regularly scream the loudest about the "threats" of infringement: Sony (owner of Sony Music and Sony Pictures), Vivendi (owner of Universal Music), Disney, Viacom (who also owns Paramount), Microsoft, Adobe, Pearson and Reed Elsevier. If you're keeping track, that's basically three of the largest movie studios, two of the largest music labels, two of the largest software companies and two of the largest publishers. If copyright infringement was really this existential threat they've all been screaming about, certainly it would show up in the equity analysts' reports, right?
Well, let's take a look at the findings:
None of the 14 reports for Reed Elsevier and 18 reports for Pearson identified copyright infringement as a risk factor.
Only 13% of the 15 reports for Sony and 22% of the 23 reports for Vivendi mentioned copyright infringement as a potential risk.
Just 8% of the 26 reports for Viacom and 27% of the 26 reports for Disney referred to copyright infringement as a risk factor.
26% of the 19 reports concerning Adobe and 41% of the 27 reports concerning Microsoft identified copyright infringement as a risk factor.
Cumulatively, only 19% (32) of the 168 reports referred to copyright infringement as a possible risk; 81% did not.
And, in case you were wondering, the reports that didn't list copyright infringement as a risk (i.e., nearly all of them) did list out a variety of other factors. It wasn't just a case where they weren't covering risks at all. They carefully looked at the market, and didn't seem to think infringement was a real risk at all.
And, it's important to note that since these are all public companies, the execs at those companies often spend a lot of time "educating" the analysts about the state of their business. In fact, in the annual reports for six of the eight companies listed, the companies themselves do list infringement as a major risk. It just looks like the analysts looked at the detail and simply didn't see any legitimate threat in most of the cases.
There's been a lot of back and forth talk about ACTA and all the secrecy behind the negotiations on it. But what's really happening behind the scenes? Some experts are pointing out that it's a very profound shift in US policy -- but done in a way that most people wouldn't notice unless they've spent a lot of time understanding how DC politics works. Basically, the entertainment industry is driving through massive changes behind the scenes, and doing so in a way that lets them (falsely) say to the public "this really doesn't change anything."
Yesterday I attended a fascinating panel discussion about ACTA, hosted by Google at its Washington DC offices, as a lead-in to today's World Fair Use Day event. The four participants each brought a different perspective to the panel, though only one, Steve Metalitz, a lawyer who represents a coalition of entertainment industry interests, was there to defend ACTA. Jamie Love of KEI was his main sparring partner, though Jonathan Band (a lawyer representing various tech and library organizations) made plenty of insightful points as well. The final participant was a legislative staffer from Rep. Zoe Lofgren's office, Ryan Clough, who tiptoed the line of expressing some concern about ACTA, without fully coming out against it.
The National Journal's Tech Daily Dose has a short summary of the event, but there were a lot more interesting things going on in the discussions -- which got pretty heated at times. Metalitz began with the usual talking points from the entertainment industry on ACTA: (1) "copyright industries" represent a huge part of the economy and (2) piracy is a huge problem -- thus, ACTA is important. Love challenged Metalitz on the numbers (and Metalitz simply said he'd have to get back to Love on the specifics), and it was nice to see Clough counter Metalitz' numbers by pointing out that using the same counting methodology as the entertainment industry used to claim how "big" the copyright industry was, the size of industries that rely on exceptions to copyright law -- like fair use -- are even bigger. Love also countered Metalitz' one-sided claim of "economic harm" from infringing by pointing out that almost every "infringement" could be seen as an economic benefit in some area as well -- and discussed how research into medical cures -- that was almost certainly infringing -- was saving lives and how infringing on content for the purpose of teaching was making a smarter society.
But where the debate got really interesting, and dug in well beneath the talking points, was when Love and Band (with an occasional hand from Clough) read between the lines to explain how these things tend to work, and what's really going on, including the careful language choices by supporters of ACTA, such as Metalitz. They basically pulled back the curtains on the talking points and what happens in the backrooms during these types of negotiations. Amusingly, many on the panel had seen parts of some of the ACTA documents (briefly), but couldn't talk about them since they had signed an NDA. Band, in particular, kept noting that his comments were not based on the document he signed an NDA over, since he couldn't comment on that, but on a "leaked" copy that hit the internet. As Love and Band pointed out, the fact that they could only discuss the leaked content rather than what had actually been seen only served to highlight the ridiculousness of the process.
The key point, raised by both Love and Band, is that there are other forums for discussing international IP protections, such as TRIPS and WIPO -- both of which have become increasingly more transparent and open to holding discussions with many different parties (including consumer rights people). As an example, Love pointed out that at the most recent WIPO meetings about IP issues, folks from EFF and Public Knowledge participated along with the big copyright interests -- and he noted that as the discussion has become a more open and real conversation (rather than backroom dealing), the folks involved in WIPO and TRIPS are finally paying attention to the real impact of expansive copyright policy. Not only that, but the public has been able to speak up, and what's being said online and elsewhere by people concerned about these issues is being heard within these organizations. But, of course, the copyright folks don't like that.
On top of that, Band pointed out, within TRIPS and WIPO there are numerous developing countries who are recognizing -- correctly -- that strict IP enforcement is designed solely to benefit a small group of companies in developed nations at the expense of the people in developing nations. Thus, they're starting to push back on IP expansion. Combine all that, and you get ACTA -- an entirely new forum to take on these issues, which (conveniently) only includes developed nations and leaves out the developing nations who had become so pesky. Metalitz pulled out the "but this won't really change US law" gambit, to which Band pointed out that the real goal here was never to make huge changes to US law, but to eventually force all those developing nations to go along. Basically, you get the developed nations to agree to ACTA, written by the big copyright players, and then you start putting pressure on developing nations about how they need to conform to ACTA as well to join the club.
Even worse, the panelists explained multiple ways in which the claim that "this won't change US law" is bogus. First, if that were really true, there would be no reason to keep it secret. Love noted that the only reason to keep it secret is because the industry is "ashamed" of what's in the document, and won't come out and discuss it, knowing that the public would go nuts. Love also pointed out that in what's been leaked in ACTA, what you basically have is all the stuff from previous agreements (WIPO and TRIPS) that the copyright industry liked -- but without the consumer protections that were built into both agreements. And then, on top of that, the copyright industry put in dispute resolution concepts that greatly help it, not consumers. Effectively, it's a way to claim that nothing changes -- since it took the parts that favor the industry folks, but leaves out the protections and potentially aspects of the safe harbors.
Furthermore, Band and Love took on the fact that it's being called the Anti-Counterfeiting Trade Agreement, since almost none of that is true. It's got little to do with counterfeiting and little to do with trade. In fact, one of the "talking points" from the entertainment industry is that this is just an "executive agreement" rather than a "trade agreement" (which would require congressional approval). But why shove copyright into what's officially a "counterfeiting" agreement? Because "counterfeiting" is one of those words that no one wants to be in favor of. No politicians will speak out against a treaty supposedly designed to stop "counterfeiting" since people intuitively believe that counterfeiting is bad. As Love explained, it's like calling something "The Patriot Act." No politician wants to vote against something like that, no matter what the details are. He notes, tragically, that the only politicians who have spoken out against ACTA have spoken out about the transparency issue -- but not about the substance of what's being negotiated.
Furthermore, Band pointed out another neat trick used by the entertainment industry with ACTA. Because they can pretend it's not really an intellectual property agreement, but a "trade agreement," they can compare it to other trade agreements that were also negotiated in secrecy. But, as Band notes, this isn't really a trade agreement. There may be good reasons for certain aspects of trade agreements to be negotiated in secrecy, as it actually could involve national secrets. But a multilateral negotiation on IP policy is not a trade negotiation and involves no state secrets. The only other reason to call it that is to pretend that the level of "secrecy" is normal, despite it being a totally different type of negotiation.
Again, discussing the idea that ACTA wouldn't "change" laws very much, a lawyer in the audience pointed out how incorrect that statement was, and noted how none of the countries negotiating had clear laws on secondary copyright liability to the level required by the leaked ACTA documents -- and that even in the US secondary liability was far from settled law (and, in fact, aspects of it were disputed in various courts). But by mandating such secondary liability (things like an "inducement" standard for copyright infringement), it would mandate that countries go much further than they have already, sometimes in massive ways.
Metalitz, once again, didn't seem to think this is a problem -- misstating the meaning of the Grokster rulings (and the IsoHunt ruling) way beyond what the court intended -- and suggesting that other countries had a moral imperative to put in place similar laws. Not surprisingly, he singled out Canada -- despite Canada's strong copyright laws -- insisting that ACTA "might finally drag them into the 21st century." By putting in place more draconian 19th century monopoly rules designed to prop up one industry? No thanks.
All in all, it was an entertaining and enlightening talk. Mostly it was professional, though Metalitz regularly resorted to bizarre personal attacks and sarcastic digs at everyone else. He insisted that those who were complaining about secrecy "just don't want any agreement at all." He mocked Love for claiming that earlier treaties were more open by saying that the anti-circumvention clauses came out of "one of those super open treaties that Jamie likes so much," and most obnoxiously of all, when Love asked why the industry and the US government couldn't be more open on these things, Metalitz shot back that the US could absolutely be more open, "if it felt Jamie's concerns were more important than progressing on an agreement." This suggests that no agreement could be reached if the US government were honest about it. That statement alone should be pretty telling. There was also a really telling Freudian slip at one point by Metalitz, though he didn't realize it, and I don't think most people noticed. In trying to explain why ACTA negotiations made sense, he insisted that because ACTA would benefit some industries deeply, it made sense for countries to meet about it. Notice that he switched from talking about industry at the beginning of the sentence to countries at the end. To him, it's all the same. ACTA is really protectionism for a particular industry. The negotiations are effectively collusion, but perpetrated by gov't officials acting as proxies for industry.
I definitely learned a lot at the session, but came out of it more afraid of ACTA than when I went in. But I certainly have a much better understanding of how ridiculous and misleading the entertainment industry's talking points are on this discussion -- and hopefully you do too.
