Republicans propose copyright reform

Techdirt links to a remarkable Republican policy brief on copyright reform:

The purpose of copyright is to compensate the creator of the content: It’s a common misperception that the Constitution enables our current legal regime of copyright protection – in fact, it does not…[L]egislative discussions on copyright/patent reform should be based upon what promotes the maximum “progress of sciences and useful arts” instead of “deserving” financial compensation….

Today’s legal regime of copyright law is seen by many as a form of corporate welfare that hurts innovation and hurts the consumer. It is a system that picks winners and losers, and the losers are new industries that could generate new wealth and added value.

This has the potential to mark the beginning of a huge political shift on intellectual property issues. Heretofore, most copyright reform advocates have pursued a judicial strategy, trying to persuade courts to narrowly read (or overturn) sweeping statutory language. By and large, courts have declined to limit copyright laws in this fashion. If those laws were actually changed, however, that would compel different outcomes.

A policy brief is not even a bill, let alone a law. But the conversation has started.

Lessig keynote at ABA’s Techshow

Yesterday, Larry Lessig gave the keynote at the American Bar Association’s Techshow 2011, available on YouTube here.  (ABA Journal write-up here.)

I’m watching it right now and will post additional thoughts when I’m done…

Update:  Much of Lessig’s presentation covers the same material he presented before WIPO last November.  However, the last part of his speech (direct link) talks a little bit about why Lessig thinks that IP policy in America is so wrong.  In brief, Lessig argues that special interest content providers have essentially “bought” Congress’ support of draconian enforcement.

Secondary liability, approaching the limit

The Seattle Times reported a few weeks ago that Microsoft “is pushing Washington legislators to pass a law making it illegal for manufacturers that use pirated software to sell goods in the state”:

The proposed legislation would create a legal cause of action by making manufacturing companies liable for damages, and it would give the state attorney general and companies the right to pursue injunctions in civil court to stop the manufacturers’ goods from being sold.

For example, if a large Washington store sold T-shirts made from a company in China and the Chinese company uses pirated copies of Excel at an office in Shenzhen, Microsoft could seek an injunction to prevent the manufacturer from supplying T-shirts to be sold in Washington state.

This represents a sweeping change to current intellectual property law. It is one thing to grant monopolies via copyright for “limited Times” in order “To promote the Progress of Science and useful Arts”. It is another thing entirely to extend copyright’s monopoly over physical objects alleged to have been manufactured in another country with the help of pirated software and thus to hold the buyers of those physical objects legally responsible.

To put it concretely:  this isn’t holding the buyers of obviously stolen TV’s out of the back of a pickup truck legally responsible for their purchases.  This is holding GM, maker of that pickup truck, legally responsible because the Chinese manufacturer of one of the parts in the truck’s engine used a pirated copy of Microsoft Outlook to receive emailed purchase orders from GM.

Now that’s secondary liability.

Hat tip to Groklaw, where I ran across this story earlier today.  If you’d like to read more about this, Pamela Jones has written rather extensive commentary, including a hypothesis Microsoft is pushing for this and similar laws in other U.S. states in order to unleash a “litigation storm against Linux” — including derivatives like Android:

The law would make it possible for Microsoft to block Android sales in whatever state passed such laws if it could find some tie between the Android product and some manufacturer of a contracted part in China or wherever who happened to use a pirated version of Microsoft Word — not to make the part but to write up an ad for it. Ephemeral, much? But can you imagine how much litigation could spring from a law like this? How little it would take to keep litigation in the air forevermore? And you don’t have to even prove infringement in China, just allege it to initiate proceedings.

Of course, Jones is quick to note that the state of Washington’s “protections” do not extend to companies like Red Hat that profit from selling open source support and services.  Under the law, software companies with proprietary licenses like Microsoft

can sue in civil court and the Attorney General can go after the “wrongdoer” US company, if a notice is sent and no amelioration occurs. But if the violation is of an *open source license*, the victim can’t sue anyone under the bill, and the Attorney General does nothing for you. It’s an exception to the law.

IP enforcement, spying, and reasonableness

Today’s posts have touched on who should enforce IP rights and what that that enforcement should look like.  Recent comments by Ed Black, President & CEO of the Computer & Communication Industry Association (CCIA — Wikipedia backgrounder), address both of these issues in the context of the White House’s Intellectual Property Enforcement Coordinator’s recent white paper:

The government has shown how its zeal leads to carelessness [previously covered here] in its unprecedented efforts to widely seize domain names for IP enforcement, which ICE undertook this year. Sites were wrongfully shut down based on allegations the user was engaged in criminal conduct deemed lawful by their courts. We are concerned the same low threshold will be used in making decisions to spy on U.S. citizens.

Some in Congress and the White House have apparently decided that no price is too high to pay to kowtow to Big Content’s every desire, including curtailing civil liberties by expanding wiretapping of electronic communications. Even the controversial USA PATRIOT Act exists because of extraordinary national security circumstances involving an attack on our country.  Does Hollywood deserve its own PATRIOT Act?

This new punitive IP agenda follows just weeks after dictators spying on citizens online was the lead story in every major newspaper.  Perhaps the obvious hypocrisy caused someone to decide to wait to announce the U.S. goal of expanding our government’s powers to spy online.   A screenwriter could almost market this plot as a comedy – if it weren’t so serious.

Maybe we should be grateful our government only wants to make streaming a song or movie a felony with potential prison time as punishment.  What’s next corporal punishment?

This is the latest indication of the extent to which the content industry has infiltrated this administration and managed to turn the Administration’s IP agenda into a policy which protects old business models at the expense of consumers, citizens’ rights and our most innovative job creating industries.

To be sure, Mr. Black speaks as the head of a trade group, advocating for his clients’ interests.  Nonetheless, we’ve covered advocates for the content industry and the broadband industry before.  I think it is important to remember (1) that both sides of the IP debate can make sweeping — sometime unprovable — assertions and (2) there are usually two sides to every story.

Broadly speaking, I have to agree with Mr. Black’s concern with the disconnect between official condemnations of “dictators spying on citizens online” and “the U.S. goal of expanding our government’s powers to spy online.”  As illustrated only a few months ago, the line between vigorous copyright enforcement and totalitarianism can be a thin one indeed.  As Harold Feld of Public Knowledge put it recently over on the LA Times:

In the virtual world, the real but mundane problem of shoplifting undergoes a Hollywood-esque transformation into “piracy,” causing the entertainment industry and folks in Washington to lose all perspective. Consider that Rep. Howard Berman (D-Valley Village) proposed a bill in 2002 to allow record companies to hack into your computer to search for illegal downloads. And how did Berman justify the equivalent of an electronic strip search? “There is no difference between pocketing a CD in a Tower Records and downloading copyrighted songs from Morpheus,” Berman told the crowd of aghast tech executives. “Theft is theft.” True, theft is theft. But I suspect Berman would have objected to an amendment allowing Tower Records to break into your home to recover a stolen CD.

Whatever you think of Mr. Black’s rhetoric — even hyperbole — I think most people would agree that truly draconian IP enforcement is not worth the terrible price it exacts.  Now we just need to reach a consensus on exactly how much is too much…

The 84,000 question

I hadn’t had a chance yet to comment on the 84,000 websites the U.S. government seized about a month ago because they were supposedly associated with child pornography.  Turns out the government was wrong about that, but the damage was done since a lot of visitors to the websites of innocent small business owners were directed to a page displaying an imposing government seal and the statement:

Advertisement, distribution, transportation, receipt, and possession of child pornography constitute federal crimes that carry penalties for first time offenders of up to 30 years in federal prison, a $250,000 fine, forfeiture and restitution.

Whoops.

Recently, the White House’s IP Czar Victoria Espinel testified before the House Judiciary Committee, and Rep. Zoe Lofgren (D-CA) had a lot of pointed questions (YouTube video of the exchange here).  Now Ars Technica has posted an interview Rep. Lofgren in which talks about the due process problems with seizing domain names without giving people a chance to defend themselves before the seizure takes place:

You’ve got the prosecutors coming in, they have a judge sign something, and the people whose property is being seized are never heard from. It doesn’t appear, honestly—though it would not solve the due process problems—that there’s much inquiry on the part of the prosecution, either. Is there a fair use right? Is there an authorized use? Is there legitimate business going on? There’s no opportunity for that to be raised, and once the damage is done, it’s done.I’ve not yet talked to some of the individuals, but we’ve had second-hand reports of people in the child pornography takedown [i.e., who owned one of those 84,000 websites] whose businesses were essentially destroyed. There’s hardly anything you can say. It’s worse than accusing somebody of being a pedophile.

These are troubling developments indeed.  The whole point of giving the innocent-until-proven-guilty the chance to defend themselves before seizure is to help prevent these sorts of devastating mistakes from happening.

There’s IP in Olympics

There’s two interesting intellectual property tidbits that arise from Russia’s recent announcement of its three official mascots for the 2014 Winter Olympics.

First:  Don’t Privatize Santa

Ded Morez, the Russian equivalent of Santa Claus, had led in early polling [to decide the mascot] but was pulled from the ballot at the last second when Russian organizers feared that their country’s folk hero would become official property of the IOC [International Olympic Committee].

Analysis:  I don’t know the intricacies of Russian IP law, but, here in the U.S., a public domain figure like Santa wouldn’t become re-protected just because a corporate entity used it (at least in theory, though some would argue that such behavior constitutes a large portion of Disney’s business model).  On the other hand, it’s probably best to never turn IP over to the IOC that you ever want to use again.  Under U.S. law, the IOC doesn’t bother with protecting its Olympic-related IP via general copyright and trademark laws (like everyone else).  Rather, they are personally, directly, explicitly written into the federal statute.  See 36 U.S.C. § 220506.

Second:  Plagiarizing the Past?

[T]he creator of Russia’s last Olympic mascot [Summer 1980] says [one of the new mascots constitutes] plagiarism….”This polar bear, everything is taken from mine, the eyes, nose, mouth, smile,” he told a Moscow radio station. “I don’t like being robbed.”

Analysis:  I’m going to let Chris Chase from the original Yahoo! article take this one:

Yes, both bears have eyes, noses, mouths and smiles, as do all cartoon bears. There’s only so many ways to draw an anthropomorphic cartoon bear. You don’t see Winnie the Pooh with snarling fangs, you know?

One is white and has a scarf. The other is brown and wearing an Olympic ring belt buckle. Other than the fact that they’re both from the ursus genus, there aren’t many similarities. The Sochi mascot may be unoriginal, uninspired and bland, but it’s not a copy.

Sounds like a great, practical description the merger doctrine to me.