[Infowarrior] - Copyright is always Government Intervention

[Richard Forno]

 Copyright is always Government Intervention

http://williampatry.blogspot.com/2007/09/copyright-is-always-government.html

The Copyright Alliance is a recently formed Washington, D.C. organization
financially funded by content owners and their trade associations. The
alliance seeks, among other things: ³To promote the progress of science and
creativity, as enumerated in the U.S. Constitution, by upholding and
strengthening copyright law and preventing its diminishment.² (Principle 2).
To this end, the group holds press conferences, sponsors seminars, and
lobbies members of Congress and the Administration. Most ambitiously, the
Alliance has designed programs for schools such as "IP Assemblies & On-Line
Curriculum for Grades 3-12."

If one has been around long enough, one has seen a great many such groups as
well as efforts to equate ³respect² for copyright with a high level of
rights. The copyright to which one asked to respect is of a special kind,
though. It is limited to strong enforcement of content owners¹ rights as
well as agreement with content owners¹ expansive interpretations of those
provisions. And, it includes a promise to ³prevent diminishment² of rights,
as the Copyright Alliance put it. Respect for copyright is thus narrowly
regarded and unidirectional: ever expanding rights and greater penalties.
(The use of the term ³diminishment² is a classic conceptual metaphor in
which less has negative associations, while, conversely, ³expansive² has
positive associations. George Lakoff has explored such uses in a number of
books, see here).

Title 17, however, also includes the limitations on subject matter
protection contained in Section 102(b), the lack of protection for U.S.
government works in Section 105, fair use (107), library photocopying (108),
first sale (109), performances for educational and other purposes (110),
copying for the blind (121), and well as compulsory licenses, the safe
harbors of Section 512, and the personal copying defense in Section 1008.
Copyright further includes judge-created doctrines like permitting de
minimis or non-substantial uses, independent creation, the idea-expression
dichotomy, merger, scenes a faire, and defenses such as misuse and
substantial non-infringing uses for secondary liability. As Justice O¹Connor
wrote the Supreme Court in rejecting another metaphor (³you shouldn¹t reap
what you haven¹t sown² as applied to copying facts), ³it is not unfair to
permit the fruits of another's labor to be used by others without
compensation: ³this is not Œsome unforeseen byproduct of a statutory
scheme.¹ Š It is, rather, Œthe essence of copyright,¹ and a constitutional
requirementŠ This result is neither unfair nor unfortunate. It is the means
by which copyright advances the progress of science and art.² If respect for
copyright is going to be one¹s pass into society, then we should be far more
rounded and inclusive about copyright is: copyright does not end with
Section 106; not even chapter 1 of title ends with Section 106; there are 16
sections that follow, limiting copyright owners¹ rights dramatically.

One thing should be beyond dispute, and that is copyright is always an act
of government intervention. Without Congress enacting title 17, there would
be no (federal) law at all, as the Supreme Court held in its very first
(1834) opinion in a copyright case, Wheaton v. Peters. Copyright in the U.S.
is, therefore, in its very essence, an act by Congress interfering with an
inherent lack of rights: every grant of rights represents government
intervention. I support such intervention when it is responsible, as it has
been for much of our countries¹ history, at least until 1998, when in my
opinion things ran permanently off the rails with term extension and the sui
generis DMCA provisions of chapter 12.

All of this brings me to a recent exchange between the Executive Director of
the Copyright Alliance (Patrick Ross) and the Digital Freedom organization
(founded by the Consumer Electronics Association, with a number of partner
organizations such as CCIA, EFF, and Public Knowledge). As reported in
Politico, Digital Freedom,² is pushing legislation that would allow
consumers to legally unlock DRM software to send content around their homes
‹ to stream DVDs, for example. The bill would still forbid copying. However,
it would eliminate the $150,000 penalty per infringement that could cost a
person $1.5 million for copying a 10-track CD, said Michael Petricone, the
association¹s chief lobbyist.² This effort prompted a response from the
Copyright Alliance, reported as follows by Politico:


Digital Freedom¹s position on digital copyright is akin to demanding that
the government mandate standards that all electronic devices work together,
Ross said.
³Gary Shapiro [CEA¹s head], do you want government intervening to tell you
that your devices are interoperable so I can move my works from one device
to another?² Ross asked. ³Government intervention is bad for copyright
owners and device manufacturers in this case.²

Mr. Ross qualified his dislike of government intervention to ³this case,²
but it is hard to believe that even he believes what he said, namely that it
is government intervention that is the source of the faults he sees. Content
owners, after all have been the biggest advocates of government intervention
against consumers: When the RIAA wanted government dictated standards for
DAT tapes, it got them in the 1992 AHRA. When content owners en masse wanted
them for the Internet, they got them big-time in the DMCA. When the RIAA
wanted immunity for trashing your hard-drive in searching for P2P downloads,
it didn¹t hesitate to call in the feds. When MPAA wanted to give theater
owners immunity from state law prosecution for hunting out and seizing
camcorders from theater viewers, it got a federal law passed. The MPAA, as I
recently noted, wants the federal government to pay for Customs Service dogs
to sniff your luggage and car for DVD. If these are not acts of government
intervention, I don¹t know what is.

Nor is this the first time content owners have opposed legislation favoring
consumers by alleging that reliance on the marketplace is preferable and by
decrying government regulation. A joint statement issued by the Recording
Industry Association of America, the Business Software Alliance, and the
Computer Systems Policy Project in January 2003 stated in part: ³How
companies satisfy consumer expectations is a business decision that should
be driven by the marketplace, and should not be legislated or regulated.²
The joint statement was made in response to a bill introduced by Congressman
Rick Boucher called the ³Digital Media Consumers' Rights Act of 2002² and a
different bill introduced by Congresswoman Zoe Lofgren in called the
³Digital Choice and Freedom Act of 2002.² Those bills would have, inter
alia, required truthful labeling of CDs containing copy-protection schemes,
and provided rights for researchers and those wanting to engage in fair use
to do so free of liability under the DMCA; in other words to restore things
to what they were before the government¹s intervention via the DMCA.


All copyright is government intervention; in any given situation, that
intervention may be warranted, but let¹s discuss the merits of proposals and
not whether the government being involved is a good idea or not. Digital
Freedom¹s proposals, for example, are principally for amendment to the
highly interventionist DMCA provisions: how can amendments to
interventionist provisions be objected to as interventionist? Lets skip the
flatulent rhetoric about government intervention and get down to the real
issue: finding the policy that does the most good for the most people; and
when we do we¹ll be thankful to have the government intervene.