Tag: NAFTA

Mousetrap: The Copyright Deep Story Behind Today’s Lies

It seems that after Public Knowledge came out, guns blazing, and just plain making things up about copyright extensions in the new round of NAFTA negotiations, they and their supporters tried to tiptoe these statements back on Twitter by blaming the USTR for its lack of clarity. While I have little doubt that such vagueness is present—certainly if the USTR’s own press release is any indication—this does not excuse manufacturing a story and blasting it all over the internet, not least because a moment’s thought was all PK needed to conclude that what they were about to say probably wasn’t true. But once these things are on the internet and spread, well…what was never true in the morning will be true in many minds by five o’clock.

There are only two explanations for someone perpetrating an outright lie: ignorance or corruption. Either one is innocently misinformed and, therefore, unqualified to speak on the given subject; or one is purposely spreading falsehoods and, therefore, undeserving of anyone’s trust. And I suppose we have to acknowledge a hybrid of the two whereby one becomes so entrenched in an ideology (e.g. an anti-copyright agenda) that one remains willfully ignorant in order to feel less corrupt while spreading lies.

And that little sermon brings us to the tweet posted by Public Knowledge’s Senior Vice President Harold Feld, originally written to draw reader attention to the organization’s memo about the invented copyright extension in new NAFTA …

 

This is a fine example of a “deep story” as described by Alice Marwick in her paper about why we share fake news. For some Americans, their deep story is that immigrants are destroying the nation; for others, it’s a vast Jewish conspiracy; for many, it’s that vaccines cause autism; and for the anti-copyright zealot, it’s that Mickey Mouse has long been the primary (if not the sole) reason for term extensions in American copyright law. And because this is a deep story with roots in millions of minds, I’m not calling out Feld personally so much as by example; only he knows whether his tweet is more a manifestation of ignorance or corruption.

So, once again, I feel compelled to clarify a salient point about copyright history; and I apologize if this gets a little technical and arcane, but here it goes: Mickey Mouse had sweet fuck all to do with the current U.S. copyright term.

That’s not an opinion or a counter-narrative or an alternative fact. The Mouse story, while plausible and attractive to many, just ain’t so; and no self-respecting copyright scholar would allow it to be repeated as “history” because they know that the development of copyright term length dates back at least 160 years before Mickey first appeared on screen. Here’s a synopsis …

In Millar v. Taylor (1769), the English court held that a perpetual copyright existed at common law until statutory copyright—the Statute of Anne ratified in 1710—placed a limit (albeit a necessary one) on the duration of the term. By the late 1830s, France already had a posthumous term based on life of the author plus ten years; and England began debating a similar regime predicated on a bill that would have extended the term to life of the author plus 60 years. A version of that bill passed in 1842 with a term of life of the author plus seven years, or 42 years, whichever was the longer.

With the Berne Convention treaty of 1886, England, France, and other signatory nations much smaller than the U.S. continued to extend terms, eventually mandating life of the author plus 50 in 1948. Meanwhile, throughout the 19th century, the United States dragged its feet for about sixty years in ratifying any kind of international copyright law (doing so in 1891) and only codified a life-of-the-author-plus-50 regime in the 1976 Copyright Act—nearly 70 years after those terms were first adopted on a voluntary basis in Berne.

When the U.S. finally joined Berne in 1989 (103 years after its origination), this was just in time to play catch-up once again as Europe was about to coalesce into the EU in 1992. The European Parliament settled on a term of life of the author plus 70 years, thus providing grounds for the Copyright Term Extension Act of 1998, which amended the 1976 law to conform to the terms adopted by the EU and other key trading nations.

That’s a digest version of term length and how it got that way, but suffice to say that Mickey Mouse’s debut performance in Steamboat Willie in 1928 is not even a footnote in the evolution of widely-adopted, international copyright terms to which the U.S. eventually had to adhere if it wanted to join various trade agreements with some of its most important partners.

People are entitled to argue that copyright terms are too long, which is a perfectly valid topic for discussion and debate. But they are not entitled—least of all under the banner of a public-serving organization—to perpetuate conspiratorial nonsense in order to score symbolic social-media “wins” rather than provide substantive contributions. We have enough of the former in our current politics, and if that’s all the folks at Public Knowledge can bring to the table, then they don’t deserve a seat—either because they are unqualified or because they are dishonest.

Also see Brief History of US Copyright Terms at Copyhype.

Public Knowledge Twaddles Re. NAFTA Negotiations

Back in May, I reported that Cory Doctorow, “writing” for Boing Boing, literally invented a legislative process out of whole cloth in order to portray the CLASSICS Act as an 11th-hour bill written by Senator Orin Hatch. (Not even close.) But not wanting to be outdone in the dissemination of drivel, the group Public Knowledge bested Doctorow yesterday with a post headlined Public Knowledge Responds to President Trump’s Outrageous Copyright Giveaway, in which they claim that the tentatively renegotiated NAFTA with Mexico would add another five years to the U.S. copyright term, resulting in life of the author plus 75 years.

Most egregiously, PK cites itself as a source (i.e. its own Global Policy director Gus Rossi) to sate, “The inclusion of a copyright term extension in the trade agreement announced today is a staggeringly brazen attempt by the entertainment industries to launder unpopular policies through international agreements.”

That is a brazenly false statement. Not only is there no evidence to support the claim that the “entertainment industries” are pulling strings in this NAFTA reneg; if indeed they were, they’re doing a lousy job of obtaining a copyright term extension because the USTR has not agreed to anything of the kind. Near as anyone can tell, this Public Knowledge outburst, claiming that NAFTA 2.0 would add five years to the copyright term is the following hobbledehoy sentence from a USTR press release:

• Extend the minimum copyright term to 75 years for works like song performances and ensure that works such as digital music, movies, and books can be protected through current technologies such as technological protection measures and rights management information. 

Albeit a woefully vague statement, it does not say anything about “life of the author,” can best be interpreted to imply a flat term of 75 years for sound recordings, and would, therefore, not be an extension of anything in U.S. law. In fact, 75 years would comport to Mexico’s term for sound recordings (and other works), which is 20 years shorter than the U.S. term for works without authors (e.g. works made for hire).

With regard to Rossi’s allegation of “laundering policies” through Fair Trade Agreements (FTAs), this is a false representation of the actual procedure. The USTR does not have the authority to “sneak” a revision of any U.S. statute by means of an FTA. Ratifying trade agreements requires a legislative process in order to ensure that their provisions either conform to existing law or that existing law may be appropriately amended through debate and public disclosure. In other words, Public Knowledge has plenty of time to get its facts straight before spinning tales, let alone noisy ones that seek to leverage Trump criticism as a means to vilify copyright law.

An organization cannot call itself a public-service while lying to the public—perhaps least of all when the word “knowledge” is part of that organization’s name. We are already swimming in a sea of bad information, barfed up in glib, thoughtless tweets—I propose to call this twaddling from now on—and it is no less destructive to the Republic when so-called progressive organizations dissemble than when any other party does it. Public Knowledge’s track record in this regard leaves much to be desired.

Internet Association Wants to Encode Safe Harbors in New NAFTA

As debate over renegotiating NAFTA heats up, the copyright interests will be duking it out with the internet industry over the inclusion, or not, of “safe harbor” provisions akin to Section 512 of the DMCA and Section 230 of the CDA.  In a letter dated August 31 to USTR Ambassador Robert Lighthizer, the Internet Association sang its standard refrain on the absolute necessity of these liability shields for the growth of the digital economy and the protection of American jobs that are increasingly dependent on the tech and internet sectors.  No surprise there.  And at least some truth.

More bizarrely, though, the letter claims that the Internet Association represents “the new faces of the American content industry, winning Emmys and Oscars, providing digital distribution for streaming-only Grammy winners, while also creating services that address the challenge of piracy by allowing consumers to legally access content globally.”

Ruth Vitale, CEO of CreativeFuture took exception to this claim in a letter of her own addressed to Ambassador Lighthizer. In her response, Vitale explains the well-documented history of the unintended negative effects of the DMCA on creative producers of every size.  “Why should these provisions be in an updated NAFTA — undermining the protections for American creatives overseas?” writes Vitale. “Please don’t export a system that does nothing but shelter the most powerful internet companies, rather than the start-ups that these trade associations often claim are the beneficiaries of safe harbor.”

The only reason the IA was able to insert this plug about award-winning “content creators” is because its membership includes companies like Netflix and Amazon; but as I addressed in an older post, Netflix-like models are neither truly “internet” businesses, nor a particularly new model for content-production.  Netflix is a motion picture exhibitor and producer—one that has as much interest in the copyrights vested in the products it makes as Sony or MGM.

Moreover, Netflix remains something of an unknown quantity, if we’re looking at big-picture economics.  Presently, we are witnessing a period when the company is spending a fortune in raised debt to produce work at a blistering pace in order to grow fat with content in its bid for global market-share.  But profitability is another question altogether; and there will come a time when the growth flattens. Netflix, Hulu, Amazon Originals, etc. are really just the new HBOs, Showtimes, and FX Networks on the block; and no matter how the landscape looks in five or ten years, there is no reason to believe that the copyright interests of the leading producers, whoever they may be, will be any less relevant than they are today. Even more to the point, the copyright framework is essential for the independent writer currently banging away on a new work that she hopes to sell to one of these entities.

Similarly, for all the talk of growth and vitality—and there is evidence of both—the major internet platforms still imply futures that cannot easily be measured by the metrics of the current market.  It wasn’t all that long ago that we all jumped onto Facebook, which is now considered an essential platform for both individuals and businesses. But if my 15-year-old and her friends are any indication, Facebook’s future is questionable because these teens have abandoned the platform as a place for “old people.” This does not mean Zuckerberg and Co. won’t come up with a way to regain that market as it enters adulthood, but it does suggest that the social media market we have today may not look anything like what we will have in the relatively near future (see MySpace).  And if anybody can claim to know the precise role of safe harbors in this uncertain future, then I suspect a crystal ball is somewhere in the room.

The Crystal Ball in the Room

Speaking of fortune-telling, the most substantial quote from the Internet Association letter may be the one which states that “One recent study found that weakened safe harbors for online intermediaries would eliminate over 425,000 American jobs and lead to an annual loss of $44 billion in US GDP.”  Sounds compelling if nobody reads the study, which the IA can assume will be the case. But I read the study (which was not surprisingly commissioned by the Internet Association) authored by Christian M. Dippon, PhD at the private firm NERA Economic Consulting.

While stipulating that I may be undervaluing some aspect of Dippon’s work, the general approach of the study hopes to provide evidence to support this conclusion:  that altering (i.e. weakening) safe harbors would lead to crippling litigation that would then result in higher prices passed onto consumers.  This would in turn reduce demand for certain services, costing jobs and investment in the otherwise robust tech and internet sectors. Both the premises and the research appear flawed.

For one thing, it is false to assume that readjusting corporate liability through legislative reform can only lead to “crippling litigation.”  To the contrary, if the statutory provisions of the safe harbors were amended to restore their original intent while mitigating their unintended harm, this would more likely lead to changes in the best practices of those corporations seeking to avoid liability than it would inexorably lead to more litigation.  It is in fact the worst practices of many service providers where rights-holders find fault—practices that have often been obscured by the dysfunctional DMCA as a tool of enforcement.

In fact, the lack of rigor in the study in this regard is revealed by its reference to the BMG v Cox case as exemplary of the kind of litigation that would supposedly run amok under an amended safe harbor regime.  Having acknowledged in the early part of his paper that DMCA is a conditional shield for service providers, Dippon then fails to recognize that Cox lost that case precisely because it failed to meet those statutory conditions.  Given that the internet industry has tried to portray Cox in a similar light, its emphasis in this study suggests that the IA perhaps fed NERA this example and that nobody at NERA did careful research into the case.

Specifically, the study seeks to support its conclusions by means of consumer surveys on the use of search and cloud storage services, determining that a rise in prices for cloud storage would reduce demand for these services; and determining that increased exposure to more intrusive advertising would reduce the demand in search.  These increases in prices and/or intrusive advertising are assumed to result from the aforementioned increase in litigation, which is itself highly speculative.

Perhaps most telling is that in order to calculate the potential price increase for cloud storage, the author references MP3Tunes, which was found guilty of copyright infringement and paid damages of $41.5 million.  Perhaps this case would be a valid baseline if it were not possible for consumers to use a cloud storage service that is not also in the copyright infringement business. But this is not a reality.

For instance, like a lot of consumers, I use Dropbox, which is neither in the infringement business nor presently more vulnerable to litigation as a result of the MP3Tunes outcome.  This legal storage business will also not be more vulnerable to litigation under the kind of amended safe harbor regime rights holders seek domestically; and it especially would not be more vulnerable to litigation if we do not transpose our current safe harbor language into new trade agreements.

There are a number of large leaps, assumptions, and omissions in the NERA study, despite IA’s leaning on it to predict potential economic losses like 425,000 jobs.  For instance, while it is true that a high-paying tech job does support several other jobs in the economy, this is too broad a view to take without also accounting for the ways in which several of the IA member companies simultaneously threaten many jobs in various sectors.

While exporting the safe harbor provisions through FTAs may be of tremendous value to a provider like Google, one cannot take the “job-killer” position seriously without weighing the unprecedented market power of these near monopolies and their capacity to bully the diverse, entrepreneurial middle class on which the economy actually depends.  And that brings us back to the rather insulting notion that these companies represent the “new face of content.”

Inherent Contradiction

Frankly, the Internet Association making this claim is kind of like a state highway department saying it’s the “new face of farming” on the grounds they build and maintain the roads that get food to market. That’s not just me being flip; it’s a comment on the nature of how the safe harbors are meant to function. Remember that the safe harbor provisions are predicated on the assumption that the service provider is not in the content business but is rather in the highway-building business and, therefore, not liable for how people might use the highway.

That’s an analogy the internet industry has employed for years to explain their neutral status vis-a-vis liabilities for copyright infringement and other claims.  And I have to say it takes a deft bit of rhetorical salesmanship to imply to the USTR that these liability shields have substantially contributed to the growth of content-producing platforms like Netflix or the production division of Amazon. The DMCA safe harbors contributed like crazy to the growth of infringe-now-settle-later models like YouTube, but that’s apples-and-oranges relative to a Hulu winning awards for a major production like The Handmaid’s Tale.  Meanwhile, for all the successful YouTubers out there—and they do exist—that’s still not an economy; and the day it becomes the economy, we’re screwed because one company owns the whole damn thing.

So as the rhetoric flies across social media about the absolute necessity of safe harbors to protect free speech, innovation, and jobs, readers should keep in mind that copyright is fundamentally predicated on the right of the individual to exploit his own creative labor, while safe harbors are based on limiting the liability of giant corporations, which has so far enabled them to infringe the rights of many individuals.  So, I agree with the Internet Association that “balance” is key in these provisions, but I disagree with their assertion that the status quo has achieved anything of the kind.

Image sources:

Digital Umbrella by maxkabakov

NAFTA Map by michal812

Crystal Ball by Kzenon