How The Entertainment Industry Is Killing Copyright
from the this-isn't-copyright dept
Law professor Jason Mazzone very kindly sent me a copy of his new book, Copyfraud and Other Abuses of Intellectual Property Law. It’s sitting on my desk and is the next book I’m planning to read. However, he’s also written up a fantastic post over at TorrentFreak, that describes how copyright has been privatized by the entertainment industry. He has two key examples of this:
- Diminished copyright exceptions via contract: Thanks to the digital era, the entertainment industry likes to claim that you no longer purchase content, you merely “license” it. Thus, they’re able to establish their own rules to govern what you do with the content, rather than relying on the boundaries of copyright law. As such, for the most part, many have tried to (a) claim copyright/control over more than they have a right to (b) deny you any fair use exceptions and (c) deny you your first sale rights to resell the products you “bought.” In other words, by claiming that the sale is a “license” rather than a “sale,” companies are effectively able to wipe out the important limitations on copyright.
- Regulatory capture: The article highlights how copyright policy these days appears to be almost entirely driven by the entertainment industry, who is merely one beneficiary of the law — but not the intended beneficiary (that would be the public). He uses the examples of the recent “voluntary” (at the strong urging of the White House) agreement between ISPs and the entertainment industry, as well as SOPA, which he notes just takes those “private” powers to extend copyright law even further:
The Stop Online Piracy Act (SOPA), the companion bill to the Senate?s PROTECT IP Act, would further privatize adjudication and punishment. Title I of that law (dubbed the E-PARASITE Act) creates a ?market-based system to protect U.S. customers and prevent U.S. funding of sites dedicated to theft of U.S. property.? It achieves this by empowering copyright owners who have a ?good faith belief? that they are being ?harmed by the activities? of a website to send a notice to the site?s payment providers (e.g. PayPal) and Internet advertisers to end business with the allegedly offending site.
The payment providers and advertisers that receive the notice must stop transactions with the site. No judicial review is required for the notice to be sent and for the payments and advertising curtailed?only the good faith representation of the copyright owner. Damages are also not available to the site owner unless a claimant ?knowingly materially? misrepresented that the law covers the targeted site, a difficult legal test to meet. The owner of the site can issue a counter-notice to restore payment processing and advertising but services need not comply with the counter-notice.
There is also a catch: a site owner who issues a counter-notice automatically consents to being sued in U.S. courts (a strong disincentive for sites based abroad). With few checks at all, SOPA gives copyright owners a sharp tool to disrupt and shut down websites. Based on their past conduct, there is no reason to think that copyright owners will use this tool with any measure of restraint.
After thinking about this article for a little while, it finally hit me what’s going on. While the entertainment industry and its supporters keep claiming that they’re “strengthening copyright,” nothing could be further from the truth. All of this is about the industry killing copyright. They’re wiping out everything that’s actually important about copyright law.
Think about it: the beneficiaries of copyright law are supposed to be the public. The mechanism is through limited-time, government-granted monopolies. But all that matters in copyright law is if the public is benefiting. Things like fair use and the first sale doctrine were added to copyright law to make sure that copyright law benefited the public. But when you look at the two situations described by Mazzone, you realize that everything the industry is doing is to make sure that copyright law no longer benefits the public at all, but rather all of the benefits accrue solely to a few gatekeepers. They’re not strengthening copyright law at all, they’re killing it. They’re making it something entirely different than what it’s intended to do… and in the process they’re harming the public.