Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

Don’t call copyright a government-granted monopoly.

When most people discuss or debate copyright’s value in the contemporary market, they talk about the utility of the law—typically arguing the efficacy or rationale of specific contours like term length or enforcement—while generally overlooking the philosophical principles that led to the IP clause being written into the U.S. Constitution in the first place.  This is of course not uncommon with any number of issues.  A particular constituency or individual citizen with a political agenda is apt to read the one sentence or phrase in our elegantly concise Constitution and interpret it as he sees fit.  For instance, the Framers will often allude briefly to a rationale with a dependent clause like “In order to maintain a well-regulated militia …” which is then interpreted as either a still-relevant or now-obsolete explanation for the 2nd Amendment, depending on whether the interpreter supports or refutes gun rights.

Similarly, the conditional expression setting up the IP clause, “The Congress shall have the power to promote the progress of Science and useful Arts …” has been the source of heated argument that copyright’s utility is clearly in the service of society; and this premise then becomes the basis for describing copyright as a “rent”,  “tax”, or “monopoly”, granted somewhat reluctantly by the government to individual authors (and inventors) in order to extract the fruits of their labor for the greater good.

In fact, a few years ago, Mike Masnick riled up his readers at Techdirt over the fact that Register of Copyrights Maria Pallante had the nerve to suggest that copyright serves the author first and society second.  Oh, the screaming and the gnashing of teeth that ensued.  But, of course, from a utilitarian perspective, Pallante was making a perfectly innocuous statement of fact about the only way in which the order of operations can be applied.  Clearly, if the author does not first create, society is never served at all.  But that’s not what I want to talk about.

I recently finished a new book, written primarily for legal scholars, by Randolph J. May and Seth L. Cooper of the Free State Foundation, called The Constitutional Foundations of Intellectual Property:  A Natural Rights Perspective. The book makes a case for the philosophical underpinnings of intellectual property in the U.S. Constitution, beginning with the Enlightenment influences on the Framers and concluding with those principles ultimately being expressed in the post-Civil War amendments ending slavery and affirming the rights of citizens regardless of their state of residence.

Terry Hart’s latest post on Copyhype is a review of this book, in which he rightly points out that the Natural Rights foundation for intellectual property has been largely substituted by a purely utilitarian discussion among most academics critical of contemporary copyright.  And these murmurings in the hallowed halls of law colleges have trickled down into the blogosphere where they have coalesced around the meme that copyright is a government-granted monopoly.  But to ignore the philosophical precedent for intellectual property—regardless of the necessity to debate the utilitarian contours of the laws themselves—is a tragically flawed mistake for any citizen to make, no matter where he or she sits on the political spectrum.  And this is because the intellectual property right is really just one branch on a rather important philosophical tree to which all our favorite civil rights are also attached.

As mentioned, May and Cooper’s book is written by academics for academics, though it is entirely accessible to any reader, if constitutional scholarship on intellectual property is your cup of post-revolutionary tea, so to speak. But in simple terms, the first part of the book supports the view that the appearance of the intellectual property clause in Article 1, Section 8, Paragraph 8 of our Constitution is an expression of the principles articulated primarily by English philosopher John Locke in his Two Treatises on Government. First published in 1689/90—exactly a century before the first U.S. Copyright Act—these treatises imagine the individual in a hypothetical State of Nature in order to then express what Locke sees as the purpose of entering into the social contract we call the state or government.  In the State of Nature (i.e. a condition in which the individual enjoys what we call Natural Rights), Locke argues that the individual has a “property in his own person” and that part of the purpose of government is the security of his property, which is more commonly known by Americans as the pursuit of Happiness.

Locke uses the word property in a much broader sense than we generally to use it today, which is to say that each of us has a property in our being—our bodies, our minds, and our faculties.  We still believe in this principle, of course, we just don’t generally use the word property to talk about it.  But from this Lockean notion of property comes the idea that if your hands and mind are yours, then what you produce with your hands and mind—whether it’s a harvest of wheat or a novel—is logically also yours.  Critics of intellectual property will often bypass Locke’s definition of the word property in order to draw contemporary attention to the logic that physical property like a car is fundamentally different from intellectual property like a copyright in a song.  This argument carries particular weight in the digital age when copies of intellectual works are now profoundly non-physical; but as May and Cooper point out, the differences between these types of property are appropriately reflected in the contours of the laws themselves—and remain amendable according to changes in market and social conditions—while the foundational principles for both types of property remain sound and relevant.

The Lockean notion of a property right in the fruits of one’s labor should not, in my opinion, ever be relinquished to the authority of the government as a privilege—which is what a monopoly technically is—rather than asserted and protected as an expression of our Natural Rights as individuals.  As May and Cooper demonstrate, both physical and intellectual property act to define and limit the role of government, which is entirely consistent with American constitutionalism, whereas fostering monopolies is anathema to those principles. Government’s mandate to protect both types of property, the authors argue, acts as a hedge against “centralized decision-making,” which is to say a society that is not composed of free-thinking individuals. There is no question that May and Cooper approach their argument for the foundation of IP from a libertarian/conservative perspective of limiting the power of government; and this is actually refreshing inasmuch as I have never quite understood those academics of the same political stripe, who have lately portrayed copyright as a government-granted privilege.  That seems to me like surrendering considerable ideological territory in a way that is inconsistent with the advocacy of limited government.

At the same time, for those of us who lean more politically left, I would add that I believe the fruits of one’s labor principle also acts to limit the power of capital, which is particularly relevant today when so many people are frustrated to the point of concluding that capitalism is only capable of producing wealth consolidation, a foundering middle class, and corporate control of government itself.  In the same way that I would advocate fixing capitalism rather than throwing out the proverbial baby with the bathwater, I would point out that the fruits of one’s labor concept—as it is specifically expressed through intellectual property—really implies a much larger social contract than the incentives of copyright and patent holders.

The idea that your labor is your own until you provide its fruits in fair trade to someone else is the basis of every hard-won labor and civil right—because these rights are often intertwined—over the worst abuses of either corporate owners or government agencies.  This is also consistent with the views of the Founders, who sought to foster neither an intrusive government nor a new nobility that would give rise to new forms of feudalism.  And because too little of the former provides opportunity for the latter, and vice versa, it is our fate to constantly seek to balance these opposing forces.  Hence, the fruits of labor right vested in every individual citizen acts as a balancing force against both extremes; and IP rights are merely one specific expression of this much larger principle.  Even free speech itself is an extension of this Lockean principle that the individual has a property in his person.

With 1% of the population owning more than 50% of the nation’s wealth; with direct assaults on labor rights in certain regions and economic sectors; with technologies threatening to devalue human work in various ways; and with extreme examples of certain corporate owners getting away with imposing their own morals on employees, this is a terrible time to be calling intellectual property a government granted monopoly.  I would never want to cede the logical conclusion of that argument, to suggest that every citizen’s right to the fruits of his or her labor is in any way a privilege, which may be argued away on the basis of apparent utility alone.  Ultimately, we’re talking about a human right that was forged in the crucible of a century and a half of English civil strife over religion and the divine right of kings.  It may be just a short sentence in the Constitution, but it has a long and bloody intellectual pedigree.

Creators Are Not Wassailers

In a wonderful book called The Battle for Christmas, author Stephen Nissenbaum relates the evolution of this holiday from its pagan roots to the modern Christmas as it came to be celebrated in the United States. He tells us that in agrarian England most labor would be done by December and that it was often a time of bounty because only so much of the year’s harvest and slaughtered livestock could be stored for winter. Thus, the ancient Roman tradition of the Saturnalia became manifest among the English working classes in the form of drunken revels, often lasting the entire month. Landlords would throw open their doors and provide food and drink to the commoners, and it was custom for these visitors to sing “good tidings” to the master and his family in the form of a wassail song.

Of course, as one might expect, weeks of drunken, orgiastic wassailing could turn rather nasty at times—less an exchange of goodwill than an expectation that landowners will provide generously or face the consequences.  This is why if you listen to the lyrics of a traditional wassail song, there is usually an element of a threat, some variation on the theme of “Bring us the good stuff, or else.”  And the or else could mean violence or vandalism.  As a result, a sense of entitlement ran in both directions with regard to the keeping of Christmas—certainly among the rabble that exercised its right to caterwaul outside a home at any hour of the night expecting to be compensated with “a bowl”; but also among some of the gentry who grew to resent these traditions, blind to the fact that class division was the source of any underlying tension in the first place.  Hence, Dickens’s Ebenezer Scrooge is an expression of these sentiments.

Keeping Christmas in this traditional English sense was certainly not a practice that would be transported by way of the Puritans to the American colonies.  As Nissenbaum explains, Christmas lay somewhat dormant (by our standards) in America until it was effectively rebooted in the early 19th century by key members of New York society. Most notably, Clement Clarke Moore’s 1823 poem A Visit From St. Nicholas provides a cultural transition from the ultimatum inherent in the wassail to a more genteel celebration marked by a visit from a commoner who lets the master know he has “nothing to dread.” Thus, Christmas in America becomes a more peaceful tradition—a hodge-podge of cultural influences as it should be—and a time to bestow gifts upon one’s own children as a revision of the wassailer’s demands.

Wassailing comes to mind, not only because it is that time of year, but also because I recently encountered the criticism, often made by those who reject creators’ rights, that creative people reflect a sense of entitlement in their expectation to make a living from their works.  Usually in the context of a discussion about media piracy—or even the fees paid by legal streaming services etc.—this theme of the entitled artist will be referred to as if the artist were a drunken wassailer outside the door in the middle of the night expecting compensation for his unwelcome noise.  And because creative expression is typically personal to the author, I don’t doubt that there are creators—likely younger ones—who might feel that they deserve adoration, fame, or wealth for their work; but this is not the attitude of most people who take their work seriously, whether artistic or otherwise.  More to the point, however, those who belabor the entitled artist trope in a conversation about business and economics are usually playing a semantic game with the word entitled.

In a broad definition, entitlement is almost always negative in my opinion because it excuses the entitled from any responsibility to earn. To have a sense of entitlement is to believe that by virtue of merely existing, the individual–or even a whole society–has a natural or “God-given” right to certain things.  And although the principle of Natural Rights surely provides a philosophical framework for our own governance, when a sense of entitlement goes too far, the individual or society can forget that even civil liberties and basic needs must be consciously and responsibly earned or maintained by means of some effort. We may feel, for instance, that we are entitled to potable water and breathable air, but if we are remiss in our labor to preserve these things (i.e. we fail to earn them), we will quickly discover that the only thing to which we are truly entitled is our own self-destruction.

In a narrower sense, of course, once some benefit earned—be it compensation, credit, an award, or even potable water or free speech—then the individual, group, or society can certainly be described as entitled to that which it has earned. And with regard to creative work, the onus is unquestionably on the author to earn the appreciation of the market.  If her work does not earn in this sense, she can be expected to fail financially; but if her work does earn market appreciation, then she can be expected to succeed financially.  And of course, in the context we’re discussing, if the author earns market appreciation but does not succeed financially, solely because the mechanism which should compensate her has been expropriated by what we call piracy, then she has most certainly been robbed of something to which she was, in the narrow definition, entitled.

Of course, what the critic of creators’ rights tends to do in these discussions is to accuse creators in general of having a sense of entitlement, which is a character flaw, and then let that accusation stand as though it applies to the narrower definition of entitlement after having earned the acceptance of the market.  So, whenever I encounter the entitled artist theme, it’s hard not to picture the speaker as a member of the landed gentry sneering over his frilly collar at the revelers approaching his manor and muttering to himself Humbug.  Of course, those who invoke the entitled artist trope do seem to believe the consumer is entitled to the fruits of the creator’s labor without any obligation in the exchange.  As stated, this is the very definition of what it really means to have a sense of entitlement.

So, we should have conversations about creative industry—or any industry for that matter—in the digital age; but no serious discussion should tolerate a view of creators as though they are 18th century wassailers bleating at the windows for more cider than they deserve.  Artists are fully aware that the world does not owe them success, but consumers should be equally aware that the world doesn’t owe them art either.

Happy Christmas!

How to Protect Your Digital Rights from the TPP

By now, you know that the Trans Pacific Partnership (TPP)—a really big-ass global trade agreement among twelve nations including the United States—is at this point pending delivery to Congress for debate and presumptive ratification.  And this means we can expect to see various organizations and corporate interests dial up the rhetoric regarding key provisions in the deal.

Although the TPP is a voluminous package of agreements covering a wide range of trade sectors—and there may yet be things not to like about the treaty—the Electronic Frontier Foundation has openly announced that it is their intention to turn the TPP into the “new SOPA” principally because of the copyright provisions in the agreement.  Their stated strategy is to “Overwhelm Congress members … demanding they vote down the TPP…” and to “…turn the TPP into a household name for toxic digital policy, much like we did with SOPA.” In short, the EFF is hoping they can scare the hell out of us—again—by convincing us that the “digital rights” we have today will be adversely affected by the passage of this trade agreement.  But, if you are worried, here are some steps you can follow if the TPP is ultimately ratified:

Step 1:  Live your life.

Step 2:  Use the Internet.

Step 3:  Use social media platforms like Facebook and Twitter to share your experiences, ideas, opinions, observations, etc.

Step 4:  Try not to launch a business based on infringement of copyright, trademarks, patents, or trade secrets.

Step 5:  Return to Step 1.

If it sounds like I’m suggesting that your “digital rights” might be exactly the same after passage of the TPP as they are right now, that’s because they will be.  And we can have confidence in this assumption for two reasons.  The first is that, like all prior U.S. Fair Trade Agreements enacted over the last 15 years, implementing TPP will require no material changes to existing U.S. IP laws.  And the other reason is that the EFF seems to know this is true based on the language they use in their various warnings.  In fact, their primary concern appears to be that the TPP would be one reason US IP law will not change.  To quote:

All signatory countries will be required to conform their domestic laws and policies to the provisions of the Agreement. In the U.S., this will further entrench controversial aspects of U.S. copyright law—such as the Digital Millennium Copyright Act (DMCA)—and restrict the ability of Congress to engage in domestic law reform to meet the evolving needs of American citizens and the innovative technology sector.

That is a purposely vague (and frankly insulting) way to raise a red flag about a threat to our rights.  Because what that statement says, in its opaque way, is that if the U.S. becomes a signatory to the TPP, this might prevent Congress from amending “controversial” aspects of existing copyright law. So, while spreading the message that our “digital rights” are threatened by the TPP’s IP provisions (i.e. implying change), the message the EFF is really selling is that copyright law as it stands is already affecting your “digital rights”; and if Congress ratifies the TPP then it may not be able to “fix” copyright.  (By the way, this happens to not be technically true, even if we all agree about what needs “fixing” in the law. Note that even if Congress ratifies TPP, it will not consequently abandon the copyright review process currently underway.)

The general assertion that the status quo of copyright’s contours fails to “meet the evolving needs of citizens or stifles innovation” has, in my view, not yet been clearly demonstrated for as many times as this mantra has been repeated by various parties. But even if there is merit to this general argument, it’s really a debate about utilitarian aspects of copyright and business applications, which is not technically a conversation about broader civil rights, as the EFF likes to imply when they endeavor to frighten citizens with the pitchfork-wielding urgency of calling Congress to stop the TPP.

Where the EFF might almost have a point is with regard to the length of copyright terms.  Since the length of terms we have today—life of the author plus 70 years—was last extended to maintain parity with trading partners, it is not unreasonable to assume that a trade agreement like the TPP could, as they say, “entrench” the length of terms at their present state, which some people consider inappropriately long.

At the same time, other trading partners, who presently have terms of Life + 50 could extend those terms another 20 years to match other TPP signatories.  And while length of copyright terms is indeed a sticking point for many people (despite not knowing much about how they came to be where they are), there is surely no metric anyone can produce to determine the threshold where copyright terms will uphold, rather than infringe, our “digital rights.” I mean, if we roll back terms in the U.S. to Life + 50 and they have a big ol’ EFF party over it, will our “digital rights” magically be 30% more secure? This is an exercise in vagaries and illusions; and there’s a reason I keep putting the words digital rights in quotes:  it’s because I have no idea what they are.

I know what my rights are as a citizen of the United States. They’re spelled out in the Constitution and in subsequent laws based on that framework.  But there is no separate bundle of cybernetic rights that kick in while we’re using Facebook or Twitter or Buzzfeed. There are no digital rights; there are simply rights.  And if someone uses digital means to infringe your rights, whether that’s your privacy, your safety, your property (including your copyrights), your consequent right to remedy that infringement is no different than it would be in a non-digital context. Or to quote U.S. Assistant Secretary of State Michael H. Posner in a statement from 2012:

“We do not need to reinvent international human rights law, or our enduring principles, to account for the Internet. No deed is more evil — or more noble — when it is committed online rather than offline. You can’t sell child pornography in Farragut Square or Tahrir Square, and you can’t sell it on the Internet, either. You can’t break into a theater and steal the movie reels and you can’t steal movies online, either. You can’t beat up and gag a peaceful protestor and you can’t jail her for a blog post criticizing a government policy, either.”

Issues like copyright reform and trade negotiations are conversations about details, many rather boring details that most of us citizens can be forgiven for not bothering to review.  As a result, the EFF and similar organizations have a pretty easy time frightening people with harsh yet rather vague declarations about the ways in which copyrights threaten our broader civil liberties on the Internet.

You might recall Guideline #4 from the recently posted Guide to Critiquing Copyright in the Digital Age:  Make some crazy shit up.  Well, the EFF recently posted some fifty or so bullet points describing grave concerns various constituencies should consider if the TPP with its IP provisions should pass.  None of these points are on particularly solid ground, but several of them are Prime USDA, Grade A made up crazy shit. And you don’t have to be in IP attorney to know it.  Here’s one of my personal favorites:

• Those who put on a themed party or cosplay based on a character from a favorite show or movie could be forced to pay a penalty or have images from it removed from the Internet. Again, the risks and penalties are much higher if it happens on a “commercial scale.”

I double-dog-dare anyone to say that out loud with a straight face.  If Congress passes the TPP in its present form, and then my teenage daughter and her friends have a cosplay party, take pictures at said party, and post their pictures on Facebook, the EFF really believes these kids could face a fine or have their pictures removed?  Daa-am, that’s some high-test, made up crazy shit right there, presumably trying to scare people because Anime-producing Japan would be a party to the TPP. There is nothing in U.S. copyright law to support an argument that such a scenario would constitute an infringement, and any takedown of those hypothetical pictures would be wrongful and, therefore, remedied through existing counter-notice procedures.  And no, Japanese Anime producers are not going to sue your kid for cosplay. Odds are, this came up in discussion among these rather sophisticated trading partners.

Certainly it’s true that if I wanted to launch a new product or open a retail establishment, and I used copyrighted Anime characters in a party to promote that launch, then I might be infringing.  But the boundaries and limitations of copyright in this circumstance are broadly the same today as they were before we were on the Internet and the same as they would be after ratification of the TPP.  To say otherwise is just making crazy shit up.  Here’s another one:

• If you stream some copyrighted gameplay with commentary to friends and other fans, the video may get taken down or the user may be forced to pay a fee.

The top-earning YouTube star (at $12 million a year) PewDiePie, a Swedish citizen, does exactly what’s described in this scenario; and quite a few other game commentators and critics around the world do essentially the same thing.  In general, these creators are either left to their own devices or occasionally form partnerships with game companies that recognize the promotional value of their contributions.  Once in a blue moon, a game developer has been foolish enough to use DMCA takedown provisions in an attempt to censor a vlogger game critic; and the unofficial remedy for this misuse of DMCA has often been publicly shaming the company into proper behavior, to say nothing of the actual legal remedies available to the video creator.  Again, the legal framework pertaining to this example is already in place and will not be changed as a result of passing the TPP.

Review the list, if you have nothing better to do. But if you pay close attention to the language the EFF uses in many of its most dire warnings, they don’t really assert that the TPP will impose new restrictions on us as Internet users. And with good reason.  What the litany of doom actually contains is a mundane assortment of hypothetical cases of infringement claims that could arise with or without the TPP; and each of these examples implies exactly same remedies available to all parties that have existed for years.  What the EFF is really saying, of course, is that they are opposed to anything that might validate or uphold the status quo of copyright law, which is an entirely different conversation, and one they should present more frankly.