NEWSgrist - where spin is art

SOPA: Where We're At (via @Techdirt)

Via Techdirt, 1/12/2012:

SOPA/PIPA: How Far We've Come; How Far We Need To Go

from the not-over-yet dept

On October 26th, I was flying from San Francisco to Washington DC to meet with folks in the House of Representatives to explain why they should be careful about making the same mistakes as the Senate with its anti-piracy bill, PROTECT IP (PIPA). We had been assured by Rep. Bob Goodlatte that Congress had heard the myriad complaints about PIPA and that the House version would take them into account. Instead, as the plane I was on flew over the Rocky Mountains, I started getting a flood of emails from people sending me the first release of the House's version of the bill, now known as SOPA (originally, the E-PARASITE bill, a name they dropped immediately when everyone started mocking it). Thanks to the wonderful innovation of WiFi-in-the-sky, I was able to sit in my cramped seat, read the bill, and write up my horrified post explaining just how much worse SOPA was than PIPA (an already disastrous bill).

The next day, October 27th, a small group of entrepreneurs, investors, innovators and creators spent the day meeting with members of Congress to express our concerns about the bill (which we'd just seen the afternoon before), as well as the whole approach to the crafting of both bills. The one thing we heard over and over again that day: "well this is the first time we've heard anything about this from the internet community."

I think it's safe to say that's no longer the case.

As I type this, I'm taking that same flight, preparing for my debate tomorrow over these bills against an MPAA representative and a US Chamber of Commerce representative, I'm sitting in that same cramped seat (actually, I think I'm on the opposite side of the plane), and thinking just how far we've come in just three and a half months.

Make no mistake: when the Senate introduced PIPA in May, it was widely assumed that this bill, and any companion bill would sail through Congress easily. Sure, some "tech-friendly" officials may express some concerns, but, as one lobbyist told me directly, "no one takes you people seriously anyway." It was this kind of hubris that we saw throughout the year with these bills. We were told repeatedly to shut up and take it, because the bills were going to pass, Obama would sign them, and piracy would magically disappear.

Instead, a funny thing happened on the way to the death of the internet: the internet woke up. While folks online may be political, it's not often that they truly get activated over internet-related issues. But in an era of bottom-up movements facilitated online, the timing was absolutely right for the massive groundswell of support from all corners of the internet to suddenly speak out in near unison to say of these bills: DO NOT WANT.

Still more to do:

At this point, it's impossible to deny that we, as a group, have had an impact. Contrary to the claims of some of the bill's supporters, we showed that this isn't just a "Google" issue. This is an internet issue. And we care about the internet and we care about innovation, and we're not going to take it lightly when elected officials, who admit they don't understand the technology, come along to say they're going to mess with it, just because their biggest campaign donors don't want to adapt to these wonderful new innovations.

But, not everyone in Congress has an understanding of what's happening online. Even with Reps. and Senators backing away from the bills, and asking leadership to slow things down... and even with Rep. Smith and Senator Leahy trying to "delay" the DNS implementation in order to get the bills passed... some in Congress still think that the outcry is minor or limited or that it's all Google.

That's why Harry Reid intends to move forward with the bill, pretending that the complaints only come from Google and Facebook... and that they're minor and easily fixed with a couple of amendments. I believe he's misjudged the internet, just as many others in Congress have misjudged the internet over the last few months. The people speaking out are not just "Google and Facebook," and they're not just speaking out for the hell of it. They're seriously pissed off at Congress for even thinking of going down this path in the first place, and simply killing the bills is unlikely to get the people online back on their side.

But there's a bigger point in the "more to do" section of this post. This isn't about one bill. This isn't about one issue. This is about an entire process. This is about the public -- not the big corporations -- finally saying "enough is enough" and making Congress recognize that crony capitalism, where subsidies and protectionism are doled out willy nilly to favorite campaign contributors, is not acceptable to the people they're supposed to represent.

This is about recognizing that the internet and the massive amount new innovation and services -- and the worldwide ability to communicate with others -- is a game changing innovation for everyone. And we're going to work damn hard to make sure that it remains open and free.

But, to do that right, this is going to take much more than stopping one bill. This is going to take prolonged effort. This is going to take an ongoing effort to make it clear that no elected official can ever again feel comfortable bragging that they don't understand the internet, as they seek to regulate it. This is about making it 100% crystal clear to those who seek to clamp down on the true engine of free expression -- the internet -- that we, the people, aren't going to be fooled with bogus claims and bogus stats in an effort to limit this wonderful platform.

This isn't over yet -- not by a long shot. But just look at how far we've come in just three and a half months, and think what we'll do in the next few months -- and years -- ahead. These bills tried to kill the "internet as we know it." But, in some ways, these bills helped birth a new kind of internet: one that doesn't let Congress screw it up without taking action.

Stop SOPA Infographic

Via:

http://sopacountdown.com/

There Goes the Public Domain

Many works by non-US artists, such as Alfred Hitchcock, may soon be removed from the public domain [GALLO/GETTY]

 

via Al-Jazeera English:

Hold the line: Stop 'copyright rendition'
A US law challenged in the Supreme Court could remove hundreds of thousands of artistic works from the public domain.

BY Lewis Hyde 15 Nov 2011 13:23

GAMBIER, OHIO - In 1948, Twentieth-Century Fox released one of the Cold War's first anti-communist films, Iron Curtain, the soundtrack of which featured music by Russian composer Dimitri Shostakovich. Shostakovich himself probably never saw the film, so it was presumably under orders from the Stalin regime that his name soon appeared on a copyright infringement suit filed in the US. Had the suit succeeded, it would have effectively prevented moviegoers in the US from seeing Iron Curtain. But it did not succeed: Shostakovich's music then lay in our public domain, and once there, its rights holders had no say in how it could be used.

The public domain is a valuable guarantor of both free trade and free expression, which is why there is much at stake in Golan v. Holder, a case recently argued before the Supreme Court (the court's opinion has yet to be announced). The plaintiffs in Golan are challenging a 1994 law that will remove hundreds of thousands of works from the public domain by allowing foreign authors to revive their copyrights. Lawyers call this "copyright restoration", but it might better be called "copyright rendition": Congress has taken work that once lived freely among us and returned it to foreign masters.

The plaintiffs in Golan include orchestra conductors, educators, performers and film archivists who have relied on a stable, clearly-defined public domain for both business and creative practice. Now they can't. Low-budget orchestras that once offered Prokofiev, Stravinsky and Shostakovich can no longer do so; distributors that listed the early films of Federico Fellini, Fritz Lang, and Alfred Hitchcock have had to delete them from their catalogues; bookstores that offered cheap editions of Joseph Conrad, George Orwell, HG Wells and Virginia Woolf no longer stock them.

The public's unfettered use of such works is not the only thing that congress has compromised. Important freedoms are threatened as well. Copyright law, in its earliest days, was designed not just to give authors their due but also to assure public access to what had previously been a decidedly unfree press. When printing first arose in Europe it was almost always controlled by the state. In seventeenth-century England, for example, licencing laws stood in the way of all supposedly offensive books, and the Crown gave publishing monopolies to favoured printers who then dutifully provided a second ring of censorship.

This system began to break down late in the century under pressure from Protestant intellectuals. In 1694, when a new licencing act was being debated in Parliament, John Locke wrote to oppose both the act and the Crown monopolies. These together, he complained, destroyed the free market in books and were thus injurious to learning. Absent any competition, printing in London was "very bad and yet... very dear", controlled by "a lazy, ignorant" press that did little more than assure the Mother Church that she'd never be "disturbed in her opinions".

Locke never questioned the idea that publishers should have copyrights; he worried rather about their longevity. It certainly made no sense for any printer to have a corner on the work of Cicero, say, written a good 1,700 years ago. As for the publishers of modern authors, Locke proposed that the law "limit their property to a certain number of years after the death of the author, or the first printing of the book, as, suppose, fifty or seventy years".

Distaste for monopolies

The founding generation in the US was the direct heir of this British distaste for print monopolies. As the US constitution was being written, Thomas Jefferson wrote James Madison to say that the Bill of Rights ought to forbid "even... limited monopolies" outright, their benefit being "too doubtful to be opposed to that of their general suppression".

Madison disagreed but even so, when revisiting the subject late in life, he advised that "Monopolies... ought to be granted with caution, and guarded with strictness against abuse". Noting that the constitution had in fact allowed them for "the authors of Books and of useful inventions", he nonetheless underscored the constitution's demand that the grant be "limited". "A temporary monopoly... ought to be temporary ... Perpetual monopolies of every sort are forbidden... by the genius of free Governments".

Since its beginnings both here and abroad, then, copyright law has always limited the privileges it settles on authors. By so doing, it simultaneously secures two good but potentially conflicting ends. Most obvious and commendable, authors get ownership of their work and thus entry into the market and freedom from patronage. Less obvious, perhaps, but equally commendable, the limit on ownership gives birth to the public domain, that vast realm of expression to which we all have equal access.

"The ancients," wrote Henry Fielding, "may be considered as a rich Common, where every Person who hath the smallest tenement in Parnassus hath a free right to fatten his Muse". Limited-term copyright smartly enlarges that common so that all Muses may browse closer to us in time. It gives "we the people" fuller access to our inheritance.

That said, cases still arise in which the conflict between private control and public access must be revisited. How it will be settled in the current instance we cannot know, though it should be noted that the US supreme court has regularly taken the side of access. "The primary goal of copyright is not to reward authors," Justice Sandra Day O'Connor once wrote, but rather to promote the progress of knowledge. Justice William Rehnquist made a similar point in words echoing Jefferson and Madison: "We have often recognised the monopoly privileges that Congress has authorised... are limited in nature and must ultimately serve the public good..."

Congress has not typically shared that recognition, invariably extending existing monopolies when petitioned by rights holders. The law being challenged in Golan was largely the fruit of lobbying by US copyright-based industries. Software, film, television, movie and recording companies petitioned congress with the long-term goal of getting other nations (Russia and Thailand are often mentioned) to restore the copyrights of US works that had fallen into the public domain abroad. Having no control over foreign law, however, the somewhat wishful strategy was to restore the copyrights of foreign authors in this country, in hopes that other nations would reciprocate.

Stifling debate

In giving these industries what they wanted, the US congress not only unsettled established business and creative practices, it revived the problem that Locke and our founders worried about centuries ago, for it is ever the case that monopolies can as easily be used to suppress as to encourage both speech and trade.

To give just a few of many recent examples: During the 2008 Presidential campaign, Fox News demanded that John McCain remove his YouTube commercials because they infringed Fox's copyrights; the estate of poet Countee Cullen refused to let Poet Laureate Robert Pinsky use Cullen's work in a documentary after learning that the context hinted at Cullen's homosexuality; the Church of Scientology has regularly sought to silence critics with claims that they infringe on the Church's copyrights, as when they sued the Washington Post in 1995 for quoting Church documents.

It is true that in such cases, copyright's "fair use doctrine" offers a way for users to defend themselves, and fair use should certainly be more widely claimed. At the same time, few speakers have the time or money to engage in litigation. A recent fair use case brought against the estate of James Joyce took years to resolve and cost almost a quarter of a million dollars. Even when a use is patently fair, most speakers will fall silent when threatened with a lawsuit.

Unless, of course, what they use lies in the public domain. Fair use, the Supreme Court has said, is one of the "traditional First Amendment safeguards"; so it is, but the strongest safeguard of all is the bright line drawn by the limited term. That bright line, moreover, was originally drawn to harmonise with several others.

Samuel Johnson's 1755 Dictionary, the one that the Founders would have known, illustrates its definition of "limited" with the phrase "limited monarchy", and, in so doing, reminds us that limiting monopolies was a key way in which British jurists checked the powers of their king. Transported to the American context, then, the limit of copyright should be understood as one way in which the framers checked the powers of congress and squared copyright with the First Amendment's prohibition on laws "abridging the freedom of speech".

Which brings us back to that 1948 movie. If you teach the Cold War, and hope to show Iron Curtain to your students, good luck. As one unintended consequence of copyright rendition, that film has now disappeared from domestic distribution. Congress managed to do what Stalin never could. The limits the founders built into copyright were meant not only to engender a public domain but, by the same token, to curb congress' power to do favours for its friends and to soften the fact that expressive monopolies are easily abused. "Limited monarch", "limited times", "limited powers": By such phrases do we nominate the constraints that are the preconditions of liberty.

Lewis Hyde is a poet, essayist, translator and cultural critic. His latest book is Common as Air.

The views expressed in the article are the author's own and do not necessarily represent Al Jazeera's editorial policy.

{However, they probably do reflect the views of NEWSgrist}

Ron Coleman on the PROTECT IP Act: Fighting the wrong war with the wrong weapons

 

 Image Via

 

I can't say it enough: Ron Coleman is awesome. Here's his latest on the creepy scary thing being touted as the 'PROTECT IP Act', from his blog, Likelihood of Confusion:

July 7, 2011

The PROTECT IP Act: We’re all infringers now

By Ron Coleman

Glenn Reynolds links to this story:  Dozens of law professors: PROTECT IP Act is unconstitutional:

An ideologically diverse group of 90 law professors has signed a letter opposing the PROTECT IP Act, the Hollywood-backed copyright enforcement/Internet blacklist legislation now working its way through Congress. The letter argues that its domain-blocking provisions amount to Internet censorship that is barred by the First Amendment.

Jointly authored by Mark Lemley, David Levine, and David Post, the letter is signed not only by prominent liberals like Larry Lessig and Yochai Benkler, but also by libertarians like Post and Glenn “Instapundit”Reynolds.

“The Act would allow courts to order any Internet service to stop recognizing [a] site even on a temporary restraining order… issued the same day the complaint is filed,” they write. Such a restraining order, which they describe as “the equivalent of an Internet death penalty,” raises serious constitutional questions.

Yep.  I argued much the same thing here a while ago, and I’m only a former law professor. (Ahem… adjunct.)

Anyone who reads this blog regularly knows that the encroachment of Big IP on the right of free expression — commercial or otherwise — has been my central theme.  And within that theme, I have consistently pointed out that the existing legal rules, especially in copyright, are already hopelessly skewed wrong.

Online counterfeiting and copyright infringement are serious problems, but this new proposed law is a terrible way to try to solve them.  Its passage would only drive the culture further yet from any respect for the rule of law as it applies to intellectual property.  But if Big IP hasn’t figured out yet that it is cultural acceptance of legal norms, not fear of punishment, that makes a free society a law-abiding one — if Big IP doesn’t understand what the de facto attitude of consumers regarding copyright has already become, and where it is already going — then heck, maybe at this point the law professors and the rest of us should just let Congress already go ahead and give them enough rope.

When It Comes to Understanding the Need for Copyright Reform, Musicians Are a Decade Ahead of Visual Artists

I linked to this article in an earlier post, but I think it's well worth reblogging here in full.

via Creative Destruction (from the vaults):

Creative Culture and the Growing Copyright Extremism

Posted on 19. Jun, 2009 by refe in INNOVATION

Creative culture is on the rise, thanks largely to recent technology. Anybody can shoot a video or record a song and upload it to YouTube and millions of people might see it. Digital technology has put the arts back into the hands of the people.

Copyright lawyer and chairman of Creative Commons Larry Lessig gave a presentation about a year and a half ago in which he talks about the way that the younger generation’s perception of creativity and copyright has changed since their parents’. This generation has the tools and the desire to remix, mash-up and recreate the music they hear and the videos they watch and turn them into something new. The way they appreciate art is by engaging with it and making it their own.

Lessig suggests that the law has not greeted “this new use of culture using digital technologies” with much common sense. Common sense would have been to realize that times have changed, that digital technology has fundamentally altered the way that consumers and creators alike are able to produce, enjoy and interact with art. Common sense would have been for entities like the RIAA to acknowledge that fact and adapt business practices to be remain competitive in the emerging market.

Of course, that’s not what happened. Instead, “the architecture of copyright law and the architecture digital technologies as they interact have produced the presumptionthat these activities are illegal.” Lessig continues, “because if copyright law at it’s core regulates something called ‘copies’ than in the digital world the one fact we can’t escape is that every single use of digital technology produces a copy. Every single use therefore requires permission. Without permission you are a trespasser.”

So this presumption that remixes, mash-ups, videos or any other fan created content that uses copyrighted material are illegal has made nearly an entire generation guilty of breaking the law. I love it that he uses the word presumption – this is one of the foremost lawyers on copyright saying that what the RIAA believes about copyright law is not correct.

The RIAA has seen the internet and digital technology as a threat to their business, and responded by taking an extreme position regarding copyright law. This exaggerated version of copyright all but ignores the concept of fair-use and considers – wrongly – that every use of copyrighted material is illegal.

So they crack down, launching a huge legal offensive against just about everybody, including individual consumers suspected of violating their interpretation of copyright law. This in turn creates a growing backlash – both among those whose genuinely illegal activities were thwarted, and those whose legitimate fair-use was wrongly lumped together with piracy. Now the world is experiencing a “growing copyright abolitionism” says Lessig, “a generation that rejects the very notion of what copyright is supposed to do … and believes that the law is nothing more than an ass to be ignored and to be fought at every opportunity possible. The extremism on one side begets extremism on the other – a fact we should have learned many, many times over.”

You and I can’t control the RIAA. They have proven that they are out of touch with today’s digital culture and determined to snuff out any innovation that smells like it might disrupt the traditional models. We can influence the other side of the table, though.

Artists don’t have to get in bed with the RIAA. The new independent, DIY approach to a career in music is not just a pipe dream anymore – there are plenty of success stories to look to now. In this new marketplace the artists who recognize the value of openness will be the ones who succeed. The ones who see the benefit of allowing their fans to remix their tracks, or to produce amateur videos for their songs and spread them across the Internet.

Regardless of what we have been taught to believe recently, there is such a thing as fair use, and it’s in the artist’s best interests to allow it. [emphasis newsgrist's] Release your music under a more open license such as Creative Commons and see what happens. Let your fans do the promoting – if you give them a quality product and the freedom to use it the way they want use it they’ll do a surprisingly good job. Better than you could ever do, maybe even with a big-label marketing budget that only the top acts see anyway.

Thanks to Eugenia for the video.