Copyright Principles & Consensus?

Yesterday, the House Judiciary Committee held a hearing meant to lay some of the groundwork for overhauling copyright law in the United States.  The title of the hearing is “A Case Study in Consensus Building: The Copyright Principles Project,” suggesting that the “project” is about establishing premises and ground rules for how the debate might be framed going forward.  I suppose because the word consensus is also part of the title, several lawmakers and the witnesses called to testify repeated the rhetorical question as to why debate about copyright has become so contentious.  For authors and creators who actually use copyrights to forge professional careers and build businesses, this feint at decorum will elicit a justifiable sneer because it’s kinda like saying, “All someone did was spit in your eye, and I don’t know why we can’t now have a civil discussion about the principles of expectoration.”  Of course, there weren’t any authors or creators present at this hearing, and that in itself has been cause for concern.

For the lawmakers who asked the question in earnest as to why the debate on this issue can be so vituperative, they need only have paid close attention to one subtle but significant choice of words in the testimony of Professor Pamela Samuelson when she was asked about the matter of online piracy.  Samuelson, the lead author of The Copyright Principles Project, stated that individual artists are at “some disadvantage” in protecting their rights on the internet.  Some disadvantage?  Like a lone Boy Scout would be at some disadvantage fending off a mechanized armored division.  The thing about consensus is that you can’t ask for it if you’re going to propose a foundation of “principles” predicated on lies and half truths.  The correct answer to the question asked of Professor Samuels is “Individual artists don’t stand a chance of protecting their rights on the internet; they might as well shout their grievances into the next passing hurricane for all the remedies and resources at their disposal.”  Had the good professor said something remotely descriptive of the true nature of this problem, then perhaps we can have a big ol’ debate as to whether or not anybody cares, as I suspect many lawmakers and fellow citizens do.  Keep in mind that the scale of the problem as I describe is not even disputed by some of copyright’s most vocal antagonists and piracy’s most vocal supporters.  “You can’t stop it, don’t try” was a familiar mantra during the dustup over SOPA, and with just one BitTorrent site claiming three billion page views a month, they may be right. But let’s not equivocate as to what creators are up against as we presume to “build consensus.”

This past March, The Wall Street Journal published a profile of the anti-piracy unit within NBCUniversal, and even this group of dedicated professionals funded by a major corporation can hardly keep up with the rate or volume of unlicensed distribution of their properties.  By contrast, independent filmmaker Ellen Seidler has documented in great detail exactly what the experience is like trying to protect just one small, niche film from being hijacked and monetized by criminals and Google.  Lawmakers should be aware of the facts and aware of the obfuscation, however subtle, being employed by academics like Professor Samuelson.  At the same time, the general public should be aware that not every idea that comes out of an academic’s head makes it automatically a good idea no matter how prestigious their company.  In academia, one doesn’t make a name for oneself by defending the status quo, but rather by bucking a system, even going so far as to identify “problems” within a system that may not be problems at all. Academic study is critical to a progressive enriched society, but we should never underestimate the motivating factors of ego and self-promotion and grant acquisition when reading between the lines.

On the subject of what is supposedly wrong with copyright, the other theme of the day in addition to why we can’t just all get along, was a substantial amount of griping and joking about complexity.  Copyright law is too complex, say the witnesses and a few legislators, and I have no doubt that it is complex and maybe too complex in certain areas that require streamlining.  But as a general rule, is copyright law more complexly burdensome than any number of other laws?  Isn’t that why people study the law in challenging post-graduate schools and then have to pass a really hard test before they’re allowed to practice the discipline professionally?  More to the point, though, if technology has made the world of consuming content more complex, is it disingenuous to suggest that revising copyright to balance the rights of authors and consumers in the digital age would not produce an even more complex set of statutes?  And if more complexity is required, so be it; but that’s not what’s being proposed.  What’s being proposed, at least by Samuelson & Co., is to simplify the legal system, which sounds good in theory; but it seems to me that the only way to “simplify” a law in an ever more complex world is to eliminate key functions of that law.  And since copyright’s key functions are the protection of authors and inventors, this begins to echo David Lowery’s distillation of the internet industry agenda:  “All your data are belong to us.”  No question that’s very simple.

So, again, the premise issuing from the chamber and reverberating on Twitter is predicated on smart sounding academic theory (i.e. simplifying a law) entirely untethered to a real or pragmatic world view.  The premise being proposed is that copyright ought to be easier to understand for any layman because it is now “everyone’s issue” because in the digital age, “we are all authors.”  This was the oft-repeated theme of live tweets by Gigi Sohn, President and co-founder of Public Knowledge and echoed at least once by Mike Masnick of Techdirt.  Of course, the truth is that just because the internet fosters a lot of production of stuff, that doesn’t make us all authors anymore than corporate softball teams make us all ballplayers.  On my best day, I don’t write as well as many authors I admire deeply; and on my worst day, I’m better than many a citizen whose claim to authorship is the possession of a smart phone and a pair of thumbs. So one can sit in tech-industry funded ivory towers and ruminate over the proposition that a novel by Steven Millhauser is of equal value to the random bits of personal detritus shared on social media, but if we consider for a moment that copyright ought to be amended based on this childishly whimsical proposition, then we might as well start burning the libraries this afternoon.

Speaking of Mr. Masnick, he live tweeted that his blood pressure was being elevated by the hearing because, as usual, “Congress doesn’t get the internet.” This is a familiar cheap shot available to anybody with an axe to grind.  One can start the sentence “Congress doesn’t get _______” and find any citizen or group to fill in that blank with their personal gripe du jour.  Of course it was very clear that certain lawmakers, including Hon. Collins, Hon. Chu, and Hon. Goodlatte, that Congress is not at all willing to automatically swallow unsubstantiated, academic theory as the sole basis for rewriting a legal system that has made the United States a leader in the professional production of creative and cultural works for more than two centuries. And had there been any creators asked to testify, they would have clearly demonstrated that academics like Professor Samuelson don’t know the first thing about the production of creative works or the nature of protecting them.  Somehow, all this translates into the failure of congress to understand the internet, but maybe it’s not that so much as some of the ideas being presented are kinda dumb and transparently self-serving.

On that last point, as more hearings like this one are convened in what will surely be a years-long process toward some kind of reform, we should not forget who the monied interests are that have the most to gain from weaker copyright laws.  The premise most often asserted in the name of “consensus” is that we cannot allow supposedly outdated legal systems to stand in the way of innovations that benefit society.  Again, this is a perfectly reasonable sounding position, but there should not be a lawmaker of any party who does not include economic growth in his or her definition of innovation, and this recent article in The Daily Beast should serve as a caution in light of the fact that intellectual property supported jobs still number in the tens of millions.  As the article’s author Joel Kotkin points out, “Today’s tech moguls don’t employ many Americans, they don’t pay very much in taxes or tend to share much of their wealth, and they live in a separate world that few of us could ever hope to enter. But while spending millions bending the political process to pad their bottom lines, they’ve remained far more popular than past plutocrats, with 72 percent of Americans expressing positive feelings for the industry, compared to 30 percent for banking and 20 percent for oil and gas.”

Copyright may be a little hard to understand, and some members of congress might not “get” the internet, but it doesn’t take a law degree or expertise in code writing to know what a contemporary Robber Baron looks like, does it?

© 2013, David Newhoff. All rights reserved.

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  • Pamela Samuelson is a professor at Berkley which if memory serves me correctly receives huge sums of money from Google through various shell organization. Grandma told me always look at the source. It is good to see that Professor Samuelson is such a dedicated employee.

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  • An absolutely brilliant dissection of the stakeholders. Great post.

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  • David wrote: “For the lawmakers who asked the question in earnest as to why the debate on this issue can be so vituperative, they need only have paid close attention to one subtle but significant choice of words in the testimony of Professor Pamela Samuelson when she was asked about the matter of online piracy. Samuelson, the lead author of The Copyright Principles Project, stated that individual artists are at “some disadvantage” in protecting their rights on the internet.
    IMO, that’s not even the most contentious part (though- i do agree it’s such a severe gloss-over as to be laughable in any other setting)
    The part that got me, was right at the beginning of her statements (first paragraph):
    [Pamela Samuelson, speaking about the collection of 20 “experts”] … “While we often had diverse perspectives on copyright issues, we agreed to conduct our conversations in a respectful manner and to work toward consensus if this could be achieved.
    Ex-squeeze me? “Diverse perspectives”? Who the hell is she kidding? She knows damn well that the “project” was a preconceived collection of LIKE-MINDED Tech Industry cheerleaders and defenders. Yes, the Subject is contentious and heated…. mostly because of shit like this passing itself off as a legitimate ‘consensus’ when they know right from the start their all-too-obvious (to us) agenda wouldn’t pass the smell test if they actually involved anyone that would be DIRECTLY affected by the crap they’re trying to pull. Instead they grab everyone that stands to gain from an even more decimated creative community– and kiss the ring of Congress, while holding up their middle-finger behind their back for us to see.

    Hindsight being 20/20, this all is been part of the Big Tech playbook for the past decade: Devalue content to the point of a ‘Fire-Sale’, and weaken any artists’ ability (to afford) to mount any sort of defensive of their Constitutional Rights… and just to make sure we don’t rise from the ashes, and to add insult to injury… Change the Copyright Rules to do a ”180°” on who it was actually written to protect. [they want it to change from Protecting the ‘Little-Guy’ FROM the Big Multinational Mega Corporation, to Insulating the Mega-Corp from the Little-Guy]
    Worst of all, they have the average Joe feeding at the teat and not even questioning motives and blindly giving away their personal fortunes to some billionaire who’s sinisterly laughing all the way to the Cayman Islands to expatriate their fortune to avoid paying any taxes that us ‘little people’ pay. In effect, we’re paying twice for these jokers.

    Excuse me while i vomit…

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  • The thing that gets me is that copyright – on its face – is no more complicated than any other form of property law and considerably less complicated than tax law (this last bit I happen to know more about these days than I’d have perhaps liked to).

    There’s a simple rule of thumb that’ll keep you in the clear with regards to copyright just as easily as with regards to any other kind of property: if you don’t own it, don’t use it. It really is that simple. Sure, there are certain exceptions to this rule – and that’s where you need a bit of legal knowledge. However, there’s nothing inherently difficult about copyright, as far as the layperson’s concerned. Where there is confusion – such as the extent of fair use – it is mostly due to obfuscation of the issue by those who’d like to see copyright weakened, with a bit attributable to people’s wishful thinking.

    There’s nothing that needs simplifying here, the basic premises are as simple as they get: whoever made it owns it and you need to get their permission before you do anything with it. Even very young children can grasp the concept of other people’s stuff, so there’s no reason adults shouldn’t be able to.

    Now, I get that the issues are a bit more thorny when you’re trying to do something on the scope of making every single creative work available to everyone in the world, but if you cannot handle the difficulties, you have no business doing it.

    • The justifications for copyright are not simple to grasp at all. The man intuition of theft is depriving someone of something. If difference is if I take your toy, you can’t play with it anymore. If I make a copy of your toy, we both get toys to play with: in a local system this is a net gain in wealth. A five year old can get this, but the justifications for denying this copying are far more complex (and arguably illogical these days).

      The question people are increasingly asking is if copyright is appropriate in a world where it is the sole obstacle in providing the sum of published human knowledge and culture to all of humanity? Increasingly I’m seeing people come to the conclusion that copyright is in fact not appropriate in such a world. And that happens to the world we live in.

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  • This is just for you ‘M’:

    The concept behind Copyright is very simple. If you make it, you own it…
    The law, just like any other law, has nuance…

    • Go ahead and read some of the comments people left on that video you just linked to.

      • What, like this one at the top:
        ” Utahroxxx 1 year ago

        Loved this, thanks for sharing the video! I find it laughable (by reading the comments) that so many still justify there “right” to “steal” intellectual property. It is like arguing with a two year old about why they should take a nap… You cannot logically argue with unintended ignorance.
        …[/snip] ”

        What does the comment section of YouTube have to do with anything? Did you watch the video? or just read the comments…

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