Category: Copyright

On Letting Foxes Mind Chicken Coops

Photo by Global IP

One thesis I have continually proposed since the death of SOPA is that thinking citizens are going to have to stop giving Internet companies a blank check on policy positions, or we’re going to regret it.  So far, it looks a lot like there isn’t a piece of legislation, a trade agreement, a civil action, or any other policy initiative that is not going to be labeled a ”threat to freedom” by these companies, their lobbyists, and their PR groups. The first sane question anyone should ask when any industry makes such a claim is, “Do you mean a threat to my freedom or your cash flow?”

The new battle brewing that has the potential to rival SOPA is one over the Trans-Pacific Partnership Agreement (TPP).  As US exports include a lot of intellectual property, one should not be surprised to find patent and copyright protections on the table in these negotiations. Nevertheless, the usual tech-funded suspects are blasting away at the TPP using many of the same tactics we saw with SOPA, causing one to wonder whether these diplomatic negotiations are really so insidious; or are these Web-based organizations simply determined to create a digital world without any copyright protections, without laws against child pornography, without security, and with some very twisted definitions of privacy?

The grassroots petition site StopTheTrap.net smacks you in the face with this headline:  You could have to pay a fine for simply clicking the wrong link.  I don’t have to read anything about the TPP to know that this isn’t true, and you know why?  Math. Who exactly is monitoring trillions of clicks?  The government? Media conglomerates? All with their magically endless resources to spy on our every mouse move?  Headlines like this should make anyone stop and consider the motivations of the people or companies promoting them.  Similarly, the first sentence on this post by the EFF stating that the TPP is “secretive” is very strange in light of the fact that the EFF itself has been in attendance at TPP events along with other stakeholders, and with the same opportunity as other organizations to speak to delegates.

The point is, I’m not an expert in international trade, but then neither are most people.  This is, in fact, why we have a representative government. Sure leaders make mistakes or decisions we don’t like, but are we seriously going to migrate toward this bizarrely hysterical, global referendum on every complex law, agreement, or treaty?  Or, more to the point, are our new representatives going to be the proverbial foxes watching the chicken coop?  When it comes to international trade like this, shall we invest no faith in our elected president — the USTR serves at the pleasure of the president — and instead place that faith in the hands of people who work for the Internet industry, people like Reddit founder Alexis Ohanian, who is among those leading the protest against the TPP?

And then there’s the question as to exactly what freedoms are being threatened?  Perhaps there are some worth discussing, but I’m not sure someone like Ohanian is the ideal spokesman, particularly in the wake of the Violentacrez story. It turns out Reddit gave an award to a guy named Michael Brutsch, a 49 year-old Internet troll who created a forum called “Jailbait” along with multiple subforums with names like “Rapebait,” “Incest,” “Pics of Dead Kids,” and “Choke a Bitch.”  You get the idea.

Trolling under the name Violentacrez, Brutsch was recently outed by Gawker, and you can watch an interview with him here on Anderson Cooper 360.  In the interview, Brutsch seems to be anything but apologetic to the young women whose photos he posted in violation of their personal privacy and, quite possibly, child pornography laws.    Instead, he responds the way an adolescent would when caught doing something stupid — he blames the medium and his fans for his actions.  While this man’s choices are indeed his own responsibility, the reality is that Brutsch’s idiotic, offensive, and, if nothing else, useless posts generated an estimated 800,000 subscribers according to CNN. And that’s why Reddit rewarded Brutsch with a little gold-plated statuette of the company’s alien logo.  Okay, they didn’t give him a bag full of money, but watch the interview, and you understand that what the troll wants most is attention, which becomes its own kind of currency in this environment.

So, what does Michael Brutsch have to do with international trade agreements?  Not a thing. But stories like his are exactly why I do chuckle every time I hear that it’s our copyright protections that stifle some cultural motherlode yearning to burst forth on the Internet; or that legalizing child pornography is the only rational choice in this era; or that it’s the government chomping at the bit to invade my privacy.  Indeed, where would the world be if such inconvenient concepts as law, diplomacy, and global trade were to in any way dampen the crucible of creative energy exemplified by a middle-age troll spending hours of his life denigrating young women for fun?

If you want to learn about the TPP, by all means it’s your right to do so.  But speaking personally, if I don’t have time to dig into the complexities of this agreement, I’m choosing to trust President Obama’s office to seek balance rather than the multi-millionaires in the Web industry.

Turning Down the Noise

Photo by Dmitry Rukhlenko

One of the things I truly love about the Internet’s influence on human psychology is that there seems to be something about the act of typing publicly in real-time that makes so many of us into armchair experts on just about any subject we choose.  This is particularly striking when it comes to complex legal matters, and if you are unfortunate enough to find yourself engaged in a “discussion” about copyright, you will invariably encounter invocations of the Constitution and proclamations of reason from people who are not legal professionals of any kind, let alone intellectual property law.  Whenever I hear someone use the terms “copyright maximalist” or “copyright monopoly,” it reminds me of social conservatives who use the term “activist judges” to sweep away some  legal principle that doesn’t square with their personal agendas.

Several months ago, Registrar of Copyrights Maria Pallante made a statement in an interview that was not only innocuous, but also happened to be correct. She said that “Copyright is for the author first and the nation second.”  Silicon Valley’s Representative Zoe Lofgren, however, decided to take Pallante to task in a Congressional hearing; and TechDirt editor Mike Masnick got his righteous knickers in a twist over the whole non-issue.  Masnick posted several articles blasting Pallante and provoking reader comments from some of the great armchair, Constitutional scholars of our times (no doubt, you’d know them by their avatars).  One of these experts posed the following question, which is probably more telling than any of the ham-handed legal opinions put forth:  “In this climate, is it still a realistic expectation to ask the public to allow artists to be full time artists?”  If I read that statement out of context, I’d assume it came from a conservative politician who transparently disapproves of the NEA, and opaquely hates all us wierdo, liberal, artsy elitists.  In other words, “Get a real job.  You can write books, make movies, compose music as a hobby.”  And, yes, this is the vision of technocrats and their supporters.

I try very hard not to presume any more legal expertise than the average citizen who hasn’t been to law school.  As an exercise in logic, however, I find it impossible to see how the one-sentence clause in the Constitution on copyright could function in any other way than that described by Pallante — i.e. that creative work won’t benefit the public until it first benefits the creator(s); and both history and the rulings of numerous courts bear this out.  But don’t take my word for it.

For anyone who is truly interested in dispassionate, professional, and well-written analysis of copyright fundamentals, it is hard to find a better source than Terry Hart, a young lawyer with a specialty in intellectual property law, who hosts the blog Copyhype, named by the ABA Journal as one of the top 100 legal blogs in the U.S.  For example, I recommend Terry’s recent post on this this no-so-controversial statement by Maria Pallante.

People like Representative Lofgren and Mike Masnick have an axe to grind for a specific industry, and people like me and others who speak out from the point of view of creators can get more than a little emotional, especially when we encounter sentiments like the one above asking whether the “public should allow” us to make creative work a profession. So, I think it’s important, and frankly calming, to step away from the shouting and read the work of someone like Terry from time to time.

What’s the deal with the IRFA?

Photo by JGroup

Musician David Lowery, founder of Cracker and Camper Van Beethoven, has become one of the most vocal defendants of artists’ rights in the digital age. A co-founder of The Trichordist, Lowery and his colleagues write some very detailed, professional assessments of the state of the music industry since digital file sharing, streaming, and purchasing have become a reality.

Presently under fire by Lowery and others is a bill called the Internet Radio Fairness Act, which appears, for now, to benefit one company — Pandora.  I haven’t had a chance to read the bill yet, but analysis from a few sources sounds an awful lot like new-era business seeking a very old-school model for profitability — free labor.  To the generalist glancing at some post about the IRFA on social media, it sounds progressive and reasonable, namely the headline that states “the Internet Radio company wants to pay the same rates as terrestrial radio.”  No surprise, it ain’t that simple. In addition to Lowery’s piece, I would read some of the analysis by Chris Castle, who has been following the details fairly closely.

The most disconcerting criticisms I’ve read is that the bill is a union buster, designed to weaken or destroy the collective bargaining rights of artists. One paragraph in the bill is particularly troubling:

 “Nothing in this paragraph shall be construed to permit any copyright owners of sound recordings acting jointly, or any common agent or collective representing such copyright owners, to take any action that would prohibit, interfere with, or impede direct licensing by copyright owners of sound recordings [including artists who own their own sound recordings] in competition with licensing by any common agent or collective, and any such action that affects interstate commerce shall be deemed a contract, combination or conspiracy in restraint of trade in violation of section 1 of the Sherman Act (15 U.S.C. 1).’.  [For which there are both civil and criminal penalties.]”

Like I say, I haven’t had a chance to read the bill in full yet, and I’m not a lawyer.  What I do know is that Internet companies do not deserve a free pass when it comes to the question of influence peddling. If Pandora cannot turn a profit without a law that strips artists of collective bargaining rights, then so long Pandora.  It wasn’t that long ago when industrialists claimed they could not build important infrastructure without treating American workers like virtual slaves.  The right to bargain for the value of one’s work cannot be recast in this technological era as a barrier to the innovation of entertainment any more than it ought to have been claimed as a barrier to building a railroad over a century ago.  And considering how often the Internet industries cry foul every time a member of the creative community goes to Washington, this bill sounds more hypocritical and lopsided than it does “fair.”