So, it turns out it’s Copyright Week. I had no idea, and it’s already Copyright Hump Day. What with the government shutdown, the Barr confirmation hearings, the litany of breaking stories in the Russian-interference investigations, I just didn’t notice. But then I saw a post by the Electronic Frontier Foundation recognizing Copyright Week, including an obligatory “SOPA lead” as recommended in the IOM Guide to Critiquing Copyright in the Digital Age. Because, of course, for the EFF, it’s Anti-Copyright Week.
Initially, I thought there is no way to respond to the EFF’s post other than a) citing dozens of thoughtful experts who know how copyright works; or b) quoting the eminent attorney Vincent (Joe Pesci) Gambino’s entire opening argument in the murder trial of his cousin: “Everything that guy just said is bullshit.”*
But that prompted a different thought. After more than six years banging out this blog, I feel confident about saying that there are two very different kinds of copyright critics in the grand debate; and unfortunately—because any area of law is usually arcane for most of us—it is the least honest critics who wield the most public influence. In yesterday’s response to Professors James Boyle and Jennifer Jenkins, you won’t find me accusing them of dishonesty, only questioning their ideas. But with the EFF, Public Knowledge, Fight for the Future, Cory Doctorow, and Mike Masnick, it’s a different story. These voices consistently misrepresent the law and history in the service of their policy agendas.
This latest post by EFF is PR disguised as copyright criticism—comparable to health information sponsored by Big Tobacco or environmental reports funded by Big Petroleum. There may be kernels of truth, but they are well hidden in a fog of obfuscation and outright falsehoods. Here are a few classic examples featured in the five main topics EFF says it is focusing on this Copyright Week:
Monday: Copyright as a Tool of Censorship. Freedom of expression is a fundamental human right essential to a functioning democracy. Copyright should encourage more speech, not act as a legal cudgel to silence it.
You will not find a remotely-qualified copyright advocate who does not criticize the misuse of copyright to remove, or otherwise silence, material that is not properly the subject of copyright infringement. Yes, people who don’t know what they’re doing abuse systems like the DMCA notice & takedown procedure in order remove material they should not. The irony here is that the EFF is often responsible for the kind of copyright confusion that leads to a variety of mistakes online. This is a classic example of the anti-copyright crowd’s “few bad apples” approach to public policy, advocating that the exception should change the rule. Because here’s a pro-tip: it is really hard to find a copyright-owning artist who is opposed to freedom of expression.
Tuesday: Device and Digital Ownership. As the things we buy increasingly exist either in digital form or as devices with software, we also find ourselves subject to onerous licensing agreements and technological restrictions. If you buy something, you should be able to truly own it–meaning you can learn how it works, repair it, remove unwanted features, or tinker with it to make it work in a new way.
Here, the EFF refers to Section 1201 of the DMCA and its non-circumvention protection of the copyrighted software that runs devices and machines. What they tend not to mention is that this is a much more complex conversation that extends way beyond the realm of copyright. For instance, “tinkering” with tractors and other machines has environmental and safety implications that are the purview of federal regulatory bodies that have little to no relationship with the U.S. Copyright Office.
Sure, the products we buy belong to us, but that doesn’t mean we get to disable catalytic converters or safety features; and even where the right to “tinker” may seem reasonable, copyright may not be the legal barrier in play. Your beef could be with the DOT. Relatedly, the EFF fails to mention that the Copyright Office has generally agreed with petitioners seeking to circumvent TPM for research and other types of fair uses. On TPM and 1201, EFF is often guilty of committing lies of omission in order scapegoat copyright; and this includes failing to mention that, absent these provisions, popular means of consuming creative works on digital devices would not exist.
Wednesday: Public Domain and Creativity. Copyright policy should encourage creativity, not hamper it. Excessive copyright terms inhibit our ability to comment, criticize, and rework our common culture.
Granted, the word “excessive” is an opinion and not a false statement. Though, as pointed out numerous times, including in yesterday’s post, nobody has yet demonstrated with empirical data that current terms are doing any harm to creativity. To the contrary, creative activity—both amateur and professional—has grown since passage of the CTEA in 1998. Still, in the body of the EFF post, it says the following:
“In an example of how large media and entertainment companies successfully make copyright laws for themselves, they prefer to have control of things long after the people who actually created them have passed away. They successfully lobbied to have the term of copyright extended, essentially keeping the public domain from growing for decades.”
THAT is a lie. Yes, the big studios et al did favor the 20-year term extension of 1998, but it was not remotely a law they “made for themselves.” This is a matter of record, and you can even can look it up using this thing called the internet. The U.S. term extensions were solely a matter of America catching up with terms adopted, in some cases more than 100 years ago, by European and other trading nations. The EU added 20 years in 1993, so the U.S. did likewise five years later. I know it’s boring because there’s no villain in that story, but that’s how it happened.
Thursday: Safe Harbors. Safe harbor protections allow online intermediaries to foster public discourse and creativity. Safe harbor status should be easy for intermediaries of all sizes to attain and maintain.
Apropos what I just said about the term extension, Section 512 of the DMCA was a copyright provision the online service providers “made for themselves,” and in the late 1990s, when AT&T, Verizon, et al sought this liability shield it was not an unreasonable request. But during the two decades since that time, platforms like YouTube (speaking of corporate giants) have been at liberty to monetize the unequivocal and chronic infringement of copyrighted works solely because of the “safe harbor” provision. And every attempt to correct that aberration of Section 512’s original intent has been met with hysteria by the EFF and others, declaring that the internet will break, free speech will die, and other tales of terror. And, ironically enough, that brings us to EFF’s Friday bullet point …
Friday: Filters. Whether as a result of corporate pressure or regulation, overreliance on automated filters to patrol copyright infringement presents a danger to free expression on the Internet.
You know what’s funny about EFF’s (and others’) shuddering at the prospect of “filters” to identify copyright infringement? It was exactly what the OSPs proposed in the 1990s as a counter-balance to the aforementioned safe harbors they were seeking! I’ll take the liberty of paraphrasing, but they essentially said, We should not be responsible for our users’ infringements, and if granted this liability protection, we will work to develop technical measures to weed out and mitigate infringements. That’s not just my opinion. As a direct result of the OSPs’ reference in this regard, Congress fully expected rightholders and service providers to collaborate to develop “standard technical measures.”
But now that we’re more than 20 years down the road, and the major internet platforms are insanely wealthy and powerful, the technical measures their OSP forebears proposed (and which were never implemented, by the way) are now deemed by EFF et al as a threat to the internet and free expression. And not surprisingly, some of those chickens are lately coming home to roost, as we see the paragons of digital-age creativity—the YouTubers—discover that they don’t really like their work being ripped off either. And so YouTube responded how? By implementing a new technical measure called Copyright Match.
If you’re looking for a competition of ideas on copyright, then read the various scholars who debate its core principles and mechanisms. If you’re looking for basic facts, check the Copyright Office website. And if you’re looking for PR messaging that misleads, confuses, and frightens the hell out of people for no reason, then by all means the EFF is the goto source for you. Because what they really hope one day to celebrate is Copyright Weak. (Speaking of which, when is National Dad Joke Day?)
*From the motion picture My Cousin Vinny (1992).