Biden, Goodlatte Preach To The IP Maximalist Choir, Vow To Make 'Second-Rate' Countries Bend To US IP Laws

from the what-do-you-give-industries-that-have-everything? dept

One of the rules of public speaking is: know your audience. You can hold people's attention better and garner support by following this rule. This doesn't mean you need to prostrate yourself before them and give them exactly what they want, however. Once you do that, you're just preaching to the choir, like Vice President Joe Biden and Rep. Robert Goodlatte did recently.

Here's the pitch:

Vice President Joe Biden told members of the tech and entertainment industry that intellectual property protections need to be bolstered to account for changing technologies and foreign threats.

That's a pretty delusional assumption on Biden's behalf. There's no indication that "bolstering" IP laws is the only route worth taking, especially when considering "changing technologies." Stronger IP protection isn't a panacea. It's little more than legislatively pleasuring overly-satiated incumbent industries.

But every choir needs a preacher, especially this one.

American creativity needs protections at home and abroad to thrive, he said, speaking at an event hosted by the Motion Picture Association of America and Microsoft.

Give the people what they want to hear. That's the real message Biden is sending. Lifetime plus 70 years still isn't enough protection. 20-year patents (plus extensions triggered by any number of variables) isn't enough protection. Trademark forever isn't enough protection. ICE partnering with the MPAA to play copyright cop isn't enough protection.

But enough about the domestic front. The other "obstacle" these industries face on their way to record sales numbers is "weak" protections abroad.

In addition to benefitting American creators, other countries would benefit from having stronger intellectual property protections, he continued.

“Until they clamp down on copyright infringement … those nations will remain second-rate powers, unable to nurture that environment that enables home grown innovation.”

Oh, sweet lord. Trust Daddy Yankee. The First World is the First World because copyright lasts well over 100 years in most cases. All of you "second-rate" countries need to lock IP the fuck down if you ever want to make something of yourselves. Look at all this condescension! Play by our rules if you want to succeed, Biden says, without offering anything in the way of evidence.

You can practically hear the "amens" from here. Of course Microsoft and the MPAA want to hear the US will shame, cajole, threaten or TPP every other country into compliance. Might = right, and the US wields the mightiest IP laws of all.

Goodlatte also pitched in a bit, pretending he and his committee are "conducting a sweeping review" of copyright law. He's also taken part in the "Congressional International Anti-Piracy Caucus," which had done little more than "call on" ad networks to stop "supporting" whatever sites the Caucus/incumbents have determined to be "pirate sites."

Here's Goodlatte's contribution, which follows a statement where he expresses faith in legislators' ability to bend China to America's will.

Ultimately, the U.S. needs to have laws and business models that protect intellectual property, Goodlatte continued.

“We’ve got to convince consumers that they’ve got a long term investment in paying something,” he said.

“If you don’t reward the creators, you’re not going to get the creativity.”

The US has "laws and business models that protect intellectual property." Does he actually believe the US doesn't? What Goodlatte envisions is some sort of IP utopia where nothing is ever stolen infringed and incumbents are allowed to return to their profit-margin heydays of physical goods and exorbitant profit margins. The MPAA simply isn't thrilled with the options that do exist, with the attendant irony being that it has had a hand in the creation of these suddenly inadequate laws.

But Goodlatte goes further and blames those who pay for content for not paying enough, or often enough. Stupid consumers, Goodlatte says, why don't you just make everyone rich(er)? If you're not going to buy DVDs for $20-25 and CDs for $15-20, then the whole creative system will just collapse. At some point. In the future. Presumably.

Napster killed everything off in 1999, according to RIAA lawyers, and since then, it's been a real struggle to find music being made or movies being produced or books being written, said no one outside of the incumbent industries ever. The world is full of creative works, which are being generated at a pace faster than any time in history. Technological advances have made every computer a recording studio/production studio/publishing platform, and yet somehow "technology" is pointed out as the entity that destroyed creativity.

The MPAA wants you to believe that without its help -- and its lobbied-for IP laws -- no one would make movies. Microsoft wants you to believe that other countries are destroying its business, while it retains lucrative contracts with government agencies and controls the most widely-used software in the business world. Won't someone step up and give these poor souls a hand in their fight against third-rate countries with lousy IP laws and even worse extradition policies?

And up come BIden and Goodlatte's free hands, signaling their intent to browbeat the rest of the world into deploying the same crappy IP laws that gut the public domain, block affordable generic drugs and generally make it that much harder for our "second-rate" brethren get a leg up in the international economy.

Filed Under: bob goodlatte, copyright, infringement, joe biden, maximalist, secondary liability

Copyright Maximalists Just Won't Quit: Pushing New Monopoly Rights For Performers Through Sneaky Treaty Agreement

from the they-never,-ever-stop dept

One thing that is important to understand about IP maximalists and their strategy for continually expanding monopoly powers against the public's fundamental rights is just what a comprehensive, multi-pronged strategy it is. It's not like they just try to pass a law like SOPA and are done. They're constantly working a comprehensive global strategy. Part of that means trying to get similar laws passed around the globe. But, at the same time, they're often working on a whole slew of international agreements as well. And while we're now all aware of the big treaties -- like ACTA and TPP -- there are all sorts of other things going on all the time.

For example, it appears that some folks have been pushing -- somewhat below the radar -- another treaty agreement to create a new form of intellectual monopoly: performers' rights (pdf and embedded below). There's a meeting planned for June in China to try to push this through.

As you hopefully know, in the US copyright is affixed to new and creative works as soon as they're put into a fixed form. But the copyright goes to whoever does that "fixing" or, on large productions, generally whoever is considered the "producer." The specific actors in, say, a TV show, don't get any specific rights in their performance. This makes sense. They're paid to do a job, which they do. However, some countries grant performers a copyright in their performances, and this new treaty is an attempt to push such rights for "audiovisual performers". As far as I can tell, this gives the performers in a work special new rights to stop how others use it. So, imagine a situation where someone wants to create a mashup video -- and they even get permission from the copyright holder to use it. Under this treaty, they'd then also need to get permission from everyone who appears in the video too, or they'll be violating that person's "audiovisual performance rights".

There are a variety of serious problems within the specifics, but just in general, why is this needed? It seems to serve no legitimate economic interest. All it does is create yet another category of monopoly rights that will certainly be abused to limit people's abilities to express themselves. It also almost guarantees that more new audiovisual works will be locked up and lost to culture. Already we have a serious problem with orphan works where the copyright holder can't be found. Imagine what happens when you need to find not just the copyright holder, but every single performer in the work and then secure a license from each of them. Yeah, basically every video will quickly become too expensive to ever use for anything, and thus it will be locked up.

Beyond that, there are some significant concerns in the details. Article 5 establishes "moral rights" in association with the economic rights. In the US, we've more or less (quite thankfully) ignored the requirement of the Berne Convention rules that say we need to recognize moral rights (to get around this, the US gives "moral rights" to a very, very tiny subset of artists). Moral rights, of course, are an idea built off of copyright, but rather than being about the economic incentives, they're about letting people stop the use of something because they don't like how it's used. We see people try to misuse copyright law all the time today because they don't like how a work is being used. The proper response is to let people know that's not allowed -- not to create new moral rights instead.

The agreement specifically states (in a footnote) that it shall apply to digital content online, including the requirement that performers have "the exclusive right of authorizing the direct or indirect reproduction of their performances." In other words, forget making videos that include performances with anyone who hasn't "licensed" you their performance right. How can the folks behind this not realize what kind of ridiculous problems this will cause? Take a video at a party of some people dancing -- and unless you've "licensed" the work from every dancer, you may be in trouble.

And, like pretty much every IP-related treaty these days, this one includes a stupid, technologically-illogical clause demanding anti-circumvention laws -- with no additional requirement that the only circumventions that apply are those that actually violate the other rights in the agreement. Instead, it's the same overly broad anti-circumvention clause that takes away your fundamental rights.

The whole thing is quite ridiculous, and just shows the nature of maximalist thinking. All they look to do is to create more and more monopolies that limit free speech and communication. It's really all about making the lawyers happier by creating more and more regulations for the kinds of things people do every day. Hopefully countries are smart enough to reject such a totally ridiculous concept, but from what we've heard, US officials are all for this garbage.

Filed Under: acta, china, maximalist, moral rights, performance, sopa, tpp

Copyright Maximalists Try To Regroup And Figure Out How To 'Fight Back' Against The Public

from the that's-not-going-to-go-over-too-well dept

One of the more stunning things about the defeat of SOPA/PIPA and what appears to be the likely defeat of ACTA, is how the traditional copyright maximalists still haven't figured out what has happened or what it means. It seems positively unfathomable to them that the public got fed up with their shenanigans and said "enough is enough." That's why their first reaction was to blame companies and lobbyists -- because that's the only way they function. Now they're trying to figure out how to fight back.

Last week, at the Fordham IP conference, which is a yearly gathering of mostly IP-maximalists, it seems that this attitude was on display in full force. Rebecca Tushnet's recap of some of the sessions is really quite stunning -- including a comment from a Fordham professor who apparently claimed that democracy was a bad thing because the public went against strict IP rights. As Tushnet noted:

Hugh Hansen suggesting that democracy was a really bad thing because citizens think short term and elites give us rights, and that’s why IP can only be protected without democracy, or as he put it, with "filters." (If by “us” you mean white men holding property. I do not believe I am exaggerating: he pointed to revolutionary Virginia as the great model for providing rights and the rest of American history as decline as things were turned over to the greedy proles. I obviously beg to differ, and this November the Commonwealth will indeed let me vote. I understand that Hansen likes to provoke, but the ugliness of his claims should not go unremarked.)

Of course, this kind of elitist attitude seemed to permeate the event. Jamie Love alerted us to the news that European IP professor Mihaly Fiscor compared ACTA protests to Nazi rallies -- thus invoking Godwin's Law and ensuring that any reasoned debate will not be allowed.

One thing became clear: there is not even the slightest concern that perhaps the public has a point. No, sir. It must be that they're too clueless or uninformed to know what's best for them. Back in Tushnet's post above, she describes how Steve Metalitz -- a maximalist lawyer whose fingerprints appear on lots of ridiculous proposals, including ACTA -- said that the problem is that people don't know enough to know that they have to respect copyright for our own economic well-being. Hugh Hansen, the same guy who is apparently anti-democracy, went with the old trope that should automatically disqualify you from being taken seriously in these debates, by saying that "consumers will only be moral if they're taught that copying is wrong. Copying is just like shoplifting." The thing is, that line has been "copied" so many times, I guess we can conclude that Hugh Hansen is one immoral bastard. Of course, reality tells us that copying is nothing like shoplifting. But, I guess, if you want to close off any real conversation, you toss out ridiculous statements that are so laughable that no one takes you seriously.

Even David Kappos, the head of the US Patent Office -- and someone who should know better -- made a condescending comment about how "the adults in the room know" that everyone has to pay up for patent, or they're going to get sued. As Tushnet notes in response, things change once the people realize that the system is broken:

I couldn’t help but think in response to Kappos about what a lawyer might have said pre-NYT v. Sullivan etc.: “the adults in the room know that if you say negative things about public officials you’re going to get sued.” Sounds sort of like wisdom, but this conference isn’t just practice pointers, or at least I hope it isn’t; maybe it’s an adult thing to give up on a better world, but I don’t think so.

Of course, it doesn't stop at just this one event. When I was in London last week, I learned of meeting to figure out how to respond to the "unprecedented attacks on IP rights." In the article about it, they highlight all of the awful things that the darn public has done lately:

Already this year, we have seen the blackout of websitesincluding Wikipedia that led to the shelving of the SOPA and PIPA legislation in the United States, and an organised attack on the Anti-Counterfeiting Trade Agreement in Europe, which has led to a delay in ratification and its possible abandonment.

In India, organisations like UNITAID haveprotested efforts to strengthen patent protection through free trade agreements, arguing they threaten affordable access to medicines in developing nations.

The panelists will discuss why IP owners, governments and others involved in the IP system need to address the more active and organised voices in civil society with communication, case studies and events.

Once again, it's not even considered possible that all of these actions were because of legitimate complaints. There isn't even the suggestion that perhaps some of this push back was due to massive and sustained overreach from the maximalists. Nope. It's all those stupid people in the public who need to be told by "the adults in the room" what's best for them, and any of their voices need to be "countered."

Either way, one thing seems clear: the usual maximalists aren't about to stop pushing for maximalism and actually listen to the concerns of the public. Instead, they're about to go on the offensive, looking to tar and feather those who bring actual facts and evidence to the table.

Filed Under: acta, david kappos, fordham ip conference, maximalist