Defending The Indefensible: Hilarious Talking Points On Ridiculous Copyright Terms

from the say-that-again? dept

Last week, the House Judiciary Committee held yet another copyright hearing, this one on Moral Rights, Termination Rights, Resale Royalty, and Copyright Term. We've discussed these issues at different times, and the hearing itself didn't break any major ground on anything, really. The artist resale right issue is nothing but a blatant money grab by successful artists, demanding to get paid any time one of their works gets resold. It shafts younger, up-and-coming artists to the benefit of the few, super-successful artists.

However, the tidbit that caught my attention was the copyright term issue. As you know, some are expecting there to be a fight in the near future to extend copyrights yet again. Thanks to repeated copyright extension, brought to you by relentless lobbying from Disney and others, the US hasn't had a previously copyrighted work fall into the public domain in ages. However, there actually has been some inkling that maybe, just maybe, Hollywood had realized this wasn't a fight worth taking on. In fact, we were pleasantly surprised when the head of the Copyright Office, Maria Pallante, presented her (mixed bag) plan for copyright reform, that it actually included a reduction in copyright terms rather than an increase.

And yet... two of the panelists last week laid out arguments for why the currently insane levels of copyright terms are perfectly reasonable. Of course, to do so, both had to totally misrepresent reality, often to levels that one might call disingenuous. Of course, the two individuals who made these arguments have appeared in stories on Techdirt before, so it really wasn't a huge surprise. First up, was Rick Carnes, the head of the Songwriters Guild of America. Carnes is from the old school world where internet hatred is a thing of pride. He seems to think that the internet destroyed songwriting and that no one could possibly write songs without strong copyrights. Carnes also got some attention for demanding extra payment for songwriters when Apple increased iTunes previews from 30 seconds to 90 seconds. That's the kind of person we're dealing with here.

His filing on copyright terms was so ridiculous that the Association of Research Libraries had to step in and correct all the "myths" he stated. Here's a little secret: when unprompted librarians step in to tell you you're totally wrong, you're not going to look very good. The ARL notes that Carnes is simply wrong in saying that the US's copyright term lengths "represent the international standard." They don't. As the ARL notes:

The copyright term in the United States extends well beyond the Berne Convention’s standard and beyond the term of protection in the majority of countries. Many countries’ copyright terms are set by the international agreements to which they are bound. The Berne Convention sets the minimum copyright term as the life of the author plus fifty years. The current term of protection in the United States is set at a period of the life of the author plus an additional seventy years. For corporate works or “works for hire,” the period of protection is set at ninety-five years. These terms far exceed what is required by international law.

As ARL further notes, it's the US that is actually out of step with "international standards":

The vast majority of countries use the Berne standard of life plus fifty years; there are almost twice as many countries with a period of protection shorter than the current term in the United States than there are countries with a period of life plus seventy years or greater

Carnes also totally ignores (as mentioned above) that the Copyright Office boss has, herself, called for shorter terms, instead saying that the Copyright Office believes the current term is proper. And finally, Carnes totally misrepresents the Supreme Court's ruling in the Eldred v. Ashcroft case to mean that the Supreme Court is fine with the current length of copyright. But, as anyone who knows anything about the decision realizes, that's not what the case was actually decided on. Instead, SCOTUS merely said that Congress has the authority to determine the appropriate term, and the Court wasn't going to overrule Congress. As the ARL explains to flunking student Carnes:

The Supreme Court never addressed the question of whether a period of protection of life plus seventy years was appropriate. The Court only upheld the power of Congress to set the term and extend the term retroactively. The majority opinion in Eldred, while upholding the Copyright Term Extension Act, never addressed the propriety or benefits of the extension itself. Instead, the court addressed “the authority the Constitution assigns to Congress to prescribe the duration of copyrights.” As Justice Stevens’ dissent further points out, the question of “whether the extraordinary length of the grants authorized by the 1998 Act are invalid because they are the functional equivalent of perpetual copyrights is a question that need not be answered in this case because the question presented by the certiorari petition merely challenges Congress’ power to extend retroactively the terms of existing copyrights.”

Perhaps even worse than Carnes' filing, however, is that of Tom Sydnor, who currently hangs his hat at the American Enterprise Institute (AEI). Sydnor is sort of a joke in the copyright world. Once responsible for whatever ridiculous expansion of copyright policy Senator Orin Hatch was pushing out, since leaving his job as a Congressional staffer, Sydnor has bumped around making increasingly ridiculous arguments for stronger and stronger copyright -- while occasionally stooping to take Larry Lessig quotes totally out of context as part of a smear campaign against him. Some of Sydnor's previous hits include claiming that universities who don't turn students over to the RIAA are helping terrorists and pedophiles, that the RIAA getting a jury to award it $1.92 million from Jammie Thomas for sharing 24 songs was a perfectly reasonable outcome and that France's (totally failed) Hadopi policy of kicking file sharers offline represented "consumer relief." So I'm already pre-conditioned to expect arguments that are reality-challenged from Sydnor, and he does not disappoint. His challenge was to try to take the life plus 70 term of today's copyright, and argue that it's completely consistent with the Founding Father's vision, which had copyright set at 14 years, plus a renewal for another 14 years. And rather than just admit this is ridiculous, Sydnor gives it the old Sydnor try and basically makes up a bunch of stuff. First, he states this, which has no basis in reality:

The Framers concluded that copyright term should last during the lifetime of a work’s author, and for a (potentially short) post-mortem-author period in which an author’s copyrights could support his or her spouse and children.

They did no such thing. If they wanted copyright terms to last the lifetime, they had every opportunity to make it so. They did not. The founders were well aware that the initial term of copyright quite frequently resulted in works going into the public domain during the author's lifetime -- and they were actually quite okay with that.

the Framers’ principle of providing at least life-of-the-author copyright protection repeatedly required term to increase. Over time, authors and others simply began living longer than they tended to in 1790. For example, since 1790, the average human lifespan has increased by about 100% – from about 40 years to about 80 years. The Framers’ premise of life-of-the-author copyright term then required increases in copyright term.

So, we've already established that the basis of this point is simply incorrect, but even so, Sydnor is now building an incorrect argument on top of an incorrect argument. The increase in life-expectancy is true, but much of that came from better medical care concerning births and baby care. In other words, if you made it through the early years, you were expected to live much older than 40 years old. And I don't think that the founders were setting the length of copyright terms to encourage infants to write books. By ignoring infant mortality and child deaths, Sydnor is blatantly misleading people to pretend that the life expectancy of authors doubled. It did not.

In the US, legislative calculations of copyright term have always been driven by estimates of how long human authors are likely to live. Human life spans change gradually, but laws that calculate copyright terms by estimating human life spans do not – and that is another reason why changes in copyright term have been applied retroactively, to then-existing works.

Again, that's clearly bogus. The increase in the lifespan of authors has been tiny. Some have basically argued that once you account for infant mortality, there's been very little change in life expectancy over the last few centuries. And yet, copyright terms have gone from a maximum of 28 years to what's now likely to be more like 150 years. I don't care how you calculate life expectancy (even if you include infant mortality rates), things have not changed that much.

Either way, these kinds of blatantly dishonest arguments are likely to become increasingly common as we approach the next round of fights concerning copyright terms. Don't let them get away with it.

Filed Under: copyright, copyright term extension, copyright terms, house judiciary committee, rick carnes, tom sydnor

France Agrees To Kick File Sharers Off The Internet Again; Lobbyists Call It 'Consumer Relief'

from the up-is-down,-black-is-white,-you-said-what-now? dept

There isn't a huge surprise in the news that France has once again passed a law to force ISPs to kick accused (not convicted) file sharers off the internet under a draconian "three strikes" system. We all knew this was coming. After the original French three strikes law was gutted as being totally unconstitutional, French President Nicolas Sarkozy (who apparently doesn't believe any such law should apply to him, given his history of mass piracy) insisted that such a law was necessary to defend freedom. Yes, really. And, even as France's cultural minister was planning to get multiple internet connections just in case he got cut off -- while also wishing that his own creative content were "pirated" more often, the French gov't went back to work on putting in place such a law. The big "change" this time was to give judges 5 whole minutes to rule on file sharers, so that they could say a judge oversaw the case, rather than it just being a random accusation. I'm not sure how due process works with a 5 minute limit... but what can you do.

What's much more entertaining is seeing how entertainment industry lobbyists are cheering this on. I'm beginning to think that they actually believe that kicking people off the internet will make people buy more of their content. Incredible. First up, the MPAA's Dan Glickman (who's being pushed out of his job for being woefully ineffective):

"Today's decision is an enormous victory for creators everywhere. It is our hope that ISPs will fully honor their promise to cooperate and that the French government will take the necessary measures to dedicate resources to handle the enormous task ahead."

A victory for creators? Really? By kicking fans off the internet for promoting their works? Yikes. Someone's out of touch. Then we have Rick Cotton, of NBC Universal, the man who insisted that movie piracy was really harming the poor American corn farmer since people ate less popcorn with pirated movies:

"The French action recognizes that jobs and economic growth in creative industries are under assault by digital theft. We need a safe and secure Internet that enables consumers to access content easily but does not facilitate illegal file sharing that kills jobs in creative sectors."

Yes, and the corn farmers, too, right? So, if it's really all about jobs, what about the people kicked offline who rely on the internet for their job? Apparently those jobs don't matter? In the meantime, it's already pretty clear from multiple studies that it's not file sharing that's "killing jobs in creative sectors" but the inability of executives like Cotton to understand basic economics and business models.

But, honestly, the most guffaw-inducing response to this comes from Tom Sydnor at the Progress & Freedom Foundation. Sydnor, who as you may know, has a long history of making claims that don't pass the laugh test, has really outdone himself this time (it's even better than when he accused a college that couldn't identify accused file sharers of harboring "terrorists, pedophiles, phishing-scheme operators, hackers [and] identity thieves" by giving them a "get out of jail free" card). So what's his take on kicking people off the internet based on accusations? Well, it's really about consumer relief. No, seriously:

"As a consumer, I would far prefer the successive warnings that French law would now provide to the sudden financial devastation of the John-Doe lawsuit that American law would now require. I thus urge American internet-service providers and copyright owners to work together to provide American consumers with similar relief."

Ah, yes, because the only options are to sue everyone or to kick people off the internet? Apparently Tom has such incredibly little faith in the innovation ability of content providers that he assumes that they cannot craft unique and innovative business models that don't involve suing everyone or kicking people off the internet. How insulting of him towards content creators. Every time Sydnor makes a statement like this and PFF promotes it, it just weakens the work that PFF does in other areas. It's tough to take an organization seriously that has someone claiming that kicking people off the internet based on accusations of private companies is "consumer relief."

Filed Under: copyright, dan glickman, france, lobbyists, rick cotton, three strikes, tom sydnor
Companies: mpaa, nbc universal, pff

And Of Course: RIAA Mouthpieces Defend $1.92 Million Judgment

from the time-to-pull-back-the-attack-dogs dept

It's been interesting to see the aftermath of the Jammie Thomas $1.92 million ruling, as it appears that even the RIAA is recognizing that such an insanely large award gives them something of a black-eye and has the possibility of creating a bit of a backlash. However, apparently they forgot to send out that message to all of their usual attack dogs. In an AP article discussing the ruling and the $1.92 million number with a variety of different people, the RIAA tried to distance itself from the number, specifically stating, "That was not our number, that was what 12 regular folks rendered." Uh, yeah, except that the RIAA has long used the statutory numbers in their arguments about the "risks" of file sharing.

Tom Sydnor, from the Progress & Freedom Foundation (PFF), a loud and proud supporter of stronger copyright at every turn (and who is well funded by the RIAA labels), apparently missed the memo on playing down the number. He told the reporter that it was a perfectly reasonable number.

"Legally acquiring a license to give copies of a song to potentially millions of Kazaa users might well have cost $80,000 per song,"

Except... that's not even close to accurate. The record labels presented no proof that she gave the song to millions of users, and seem to totally ignore the fact that these songs were available from tons of other sources (either legally or illegally) for prices between nothing and $1. To claim that the record labels would literally consider an option to license a single user putting a song into a shared folder at $80,000 is simply ridiculous.

But, of course, it shows the mentality of those paid for by the RIAA. These are the same people who accuse Larry Lessig of being a communist by taking a few statements totally out of context, and then accuse universities of supporting terrorism by not violating students' privacy and handing over their details to the RIAA.

So, if the RIAA is really serious about playing down the size of the jury award, it might want to rein in Sydnor before he says much more. If you're looking for someone to get out a message by appearing as a caricature of the evil record labels, I don't think you could find any organization better than PFF. But, that's probably not what the RIAA needs right now, unless it really wants to give the folks on the fence even more reason to leap over to the side who recognizes just how much the labels have twisted, stretched and abused copyright law over the years, totally at odds with its constitutional prescription of promoting the progress of science. Defending a $1.92 million award to the record labels for 24 songs in a shared folder, with no evidence that a single one was actually shared, is not promoting the progress. It's promoting massive greed and regulatory capture at the expense of society.

Filed Under: copyright, file sharing, fine, jammie thomas, lawsuit, music, settlement, tom sydnor
Companies: pff, riaa

PFF Says BU Helps Terrorists By Not Handing Over Students To RIAA

from the today's-shill-brought-to-you-by... dept

I really try to avoid reading the Progress & Freedom Foundation's intellectual property blog, because it just raises my blood pressure with a near constant stream of highly misleading arguments or just purely ridiculous claims. However, Tim Lee points out that Tom Sydnor is up to his usual tricks of taking some bit of news, twisting the context around completely, leaving out fairly important details and coming up with a conclusion that doesn't even add up from his own twisted reasoning. This time, it's about the recent story where a judge correctly dropped RIAA lawsuits against some Boston University students after the school noted that it could not identify who the alleged infringers were with certainty.

This set off quite the rant from Sydnor, who claims that this now means that BU's network is a "safe harbor" for "terrorists, pedophiles, phishing-scheme operators, hackers [and] identity thieves" by giving them a "get out of jail free" card. This is similar to those silly and easily disproved arguments from years ago that open WiFi would allow criminals to all get away with any online crimes they wanted.

This makes two faulty assumptions that Sydnor either knows and ignores, or is ignorant about (neither of these are good options). First, it assumes that all of those other activities wouldn't leave any other trail. That, of course, is ridiculous. Your network usage is hardly the only bit of information all of those other criminal uses leave. Second, it assumes that every person on a network is easy to identify. In fact, it's quite difficult to establish, with any degree of certainty, who a particular IP address belongs to. Thanks to a variety of different factors, an IP address is not at all a good identifier of who is doing something online. This has been one of our problems with lawsuits relying on such info. It's notoriously unreliable, leading to many bogus charges (collateral damage to supporters like Sydnor, apparently, but not to those of us who believe in actually having evidence before accusing someone of a crime). It also does not mean, as Sydnor claims, that BU network administrators are "incompetent." It just means they're honest.

But, rather than face up to any of those facts, Sydnor skips over them and goes for the emotional charge:

Perhaps the U.S. Departments of Justice and Homeland Security should explain the broader implications of this ruling to BU before clumsy efforts that coddle student piracy help get someone defrauded, molested, or killed. BU's IT Department might also consider the potential legal implications of acts that tend to conceal the identity of lawbreakers.

Yes, or perhaps anyone with a bit of common sense could explain to Sydnor how networks work and the difference between not being able to identify a user vs. "concealing the identity of a lawbreaker." Apparently, based on Sydnor's twisted reasoning here, any network operator who cannot identify each and every user on its network may be guilty of being an accessory to a crime. Sydnor, who rushes to point to legal precedents supposedly (though often not really) supporting his position at every opportunity, somehow misses out on the right to anonymity which has been established many times in court. But why let little things like facts and reality get in the way of claiming that a reasonable response from BU sysadmins is going to lead to a safe haven for terrorists and pedophiles and criminal charges against BU network operators?

Filed Under: boston university, copyright, misleading arguments, tom sydnor
Companies: progress and freedom foundation

The Smear Campaign Against Larry Lessig And Free Culture

from the getting-nasty dept

You may recall that I've had my run-ins in the past with the incredibly misnamed Progress & Freedom Foundation. While I tend to think that Adam Theirer does okay work for them, almost every other report that comes out of the "think tank" seems highly questionable. We haven't heard much from them lately on intellectual property rights -- perhaps since two of their most outspoken folks on that topic (Patrick Ross and James DeLong) moved on. However, it looks like they've found someone new to drum up ridiculous arguments on intellectual property issues. If you don't recall, PFF is the group that has claimed that fair use harms innovation, that net neutrality is theft, and that open spectrum harms innovation (obviously WiFi was a huge problem). The most amazing thing to me, though, is that the PFF positions itself as a "libertarian" "free markets" think tank that thinks there should be less government regulation. But... anything having to do with intellectual property or spectrum, and suddenly all those libertarian statements go out the window.

Given all of that history, it's still rather amazing to read its newly released report on how the "Free Culture" movement, as explained by Larry Lessig, is really a "quasi-socialist" movement. Reading the full paper, you get a sense of how Washington DC works. It's a pure smear job that takes Lessig quotes out of context for ultimate impact and fills the rest with ad hominem and totally unsupported attacks. I certainly don't agree with everything that Lessig has to say -- and I particularly disagree with some of his policy recommendations. But there's simply no way to read Lessig's work and come to the conclusions in this paper if you are being intellectually honest. You can disagree with his conclusions. You can disagree with his reasoning -- but to paint what he has to say as a celebration of communism or socialism is simply a smear tactic and a political hack attack.

What becomes clear as you read the attack is that the author, Tom Sydnor, simply read through Lessig's works in search of sentences that could be taken out of context in order to paint Lessig as a secret socialist/communist. It's hard to see how that's "scholarship." It's not worth refuting each and every statement here, but we'll give a few simple examples. First, Sydnor claims that Lessig "demonizes" property owners. Actually, Sydnor claims that Lessig "literally demonizes property owners." Unless Lessig is turning property owners into demons, then I'd have to say that Sydnor doesn't understand what "literally" means. But, more to the point, this is a rhetorical trick by Sydnor, which is the basis of nearly his entire paper, where he repeatedly assumes that intellectual property is no different than tangible property. This is a fabrication. There is no reason to ignore the very real differences between the two unless you're trying to unfairly and dishonestly paint someone as supporting something they have not.

While making fun of Lessig (Sydnor snidely accuses Lessig of "name calling" before referring to Lessig as a "hypocritical demagogue" -- kettle, pot, etc.), Sydnor points out that Lessig "analogizes property rights to the pesticide DDT." If you're playing along in the home game, Sydnor is pulling this from page 129 in Lessig's book Free Culture. Lessig's actual point, which is quite valid and interesting is that DDT was originally designed to serve a good purpose, but it was only later that it was realized that it had negative unintended consequences. This isn't "demonizing property rights" as Sydnor implies. It's merely pointing out that even those with the best of intentions (the makers of DDT or the creators of copyright law) may not realize the negative consequences of their actions, and how those negative consequences may outweigh the positive consequences.

"No one set out to destroy the environment. Paul Muller certainly did not aim to harm any birds. But the effort to solve one set of problems produced another set which, in the view of some, was far worse than the problems that were originally attacked. Or more accurately, the problems DDT caused were worse than the problems it solved, at least when considering the other, more environmentally friendly ways to solve the problems that DDT was meant to solve."

If someone can explain how that's somehow demonizing property rights, I've got a job for you as a paid shill in DC. Instead, it's making a valid point that isn't demonizing anything -- most certainly not property rights. You can go through the rest of Sydnor's piece, and each and every time you'll notice he does one of two things: he conflates copyright with tangible property or he takes statements out of context to prove his point. He's also not beyond ridiculous hyperbole. In pointing to a rather reasonable quote from Lessig about why we should be interested in seeing if other systems can provide better outcomes, Sydnor brushes off all other systems of copyright by claiming:

"But during the last century, humanity conducted many vast experimental investigations of the relative merits of these "different property systems and the freedoms each allowed." Those experiments were run by well-intended people who sincerely believed that replacing systems of private property with "different systems" would improve the material and spiritual well-being of humanity. During those experiments, millions were murdered and billions were impoverished and enslaved.

Hyperbole much, Tom? Sydnor, once again, is equating copyright to tangible property (missing the irony that copyright -- a government granted monopoly -- seems a lot more closely aligned with the centralized governments of the former socialist nations than a system that relies on the free market). He then cuts off any questions about looking for a more reasonable system than copyright (which is a monopoly right, not a property right) by suggesting that any other system leads to "millions murdered" and "billions impoverished and enslaved." It's quite a leap. If there was any left, this paper destroys any credibility on pretty much anything coming out of PFF these days. It's the worst kind of political smear tactic.

Filed Under: free culture, larry lessig, politics, smear campaign, think tanks, tom sydnor
Companies: progress and freedom foundation