Hollywood Screenwriters Worry About Aggressive Copyright Enforcement And Threats To An Open Internet

from the good-for-them dept

The Writers Guild of America West has been quite forward looking for a while. They were a surprise early voice against SOPA, despite representing thousands of Hollywood screenwriters, who you might think would fall in line with the likes of the MPAA. But, just as they were worried about SOPA, they continue to worry about drifts towards copyright maximalism. Like many individuals and organizations, the WGAW sent in comments on the recent "green paper" concerning copyright reform from the USPTO.

The letter opens up by talking about just how much their members rely on copyright to make a living, and how important copyright is -- but then highlights where copyright law has gone too far, and how it risks harming an open internet. Furthermore, the WGAW rightly worries about certain attempts to expand copyright law and enforcement that would further harm the open internet. While this may seem surprising, the reality is that the WGAW recognizes it needs to represent all of its members, and the majority of members have found much greater opportunities by being able to work outside the major Hollywood gatekeepers. They recognizes that tools like YouTube and BitTorrent are actually really useful, rather than dangerous.

Front and center, the letter takes on the ridiculousness of statutory damages -- and not just how it creates problems for the everyday user, but how it has harmed innovation:
While penalties for copyright infringement are an important tool for deterring piracy, the massive statutory damages currently allowed under copyright law have become unmoored from the actual damages caused by copyright infringement. Plaintiff’s demands in some cases have reached hundreds of millions and even billions of dollars without any evidence of the real magnitude of harm. Viacom’s $1 billion suit against YouTube has dragged on for six years and has cost the streaming site over $100 million in legal fees. High statutory penalties are not only often unreasonable but unpayable. Recently, in its case against the torrent site isoHunt, the MPAA requested nearly $600 million in statutory damages despite admitting that $5 million at most would be enough to bankrupt the defendants. Whether a statutory penalty bankrupts infringers once or a hundred times over probably has little additional deterrent effect. In fact, empirical research by economists suggests that lawsuits do not increase legal sales because infringers’ willingness to pay is generally lower than the market price. Rather, the threat of such large damages and the cost of litigation may deter further investment in web sites that serve as venues for independent production and allow users to upload content without gatekeeper permission for fear of liability. Such venues are critical to the promotion of independent content and are only available online because television and film are controlled by a handful of media companies who decide what content consumers have access to. We suggest further study of the effectiveness of statutory damages in protecting copyright.
The letter also pushes back on the idea of making streaming a felony, as has been pushed for a few years now:
It is important to assess the role of statutory damages in limiting copyright infringement particularly because of the Green Paper’s proposal to make streaming unauthorized works a felony. The extension of a policy that may not actually limit piracy or result in recouped monies to content creators has troubling implications for artistic expression. A broad interpretation of such a law could chill innovation through the use of copyrighted works in remixes, cover versions of songs and fair use. For example, artists like Justin Bieber have used YouTube videos of themselves singing covers as a way to gain exposure. Allowing felony charges for such activities could have a chilling effect on artists who use such independent forums an
While the WGAW is open to changes in the notice and takedown procedure, they (unlike many gatekeepers and maximalists) recognize just how valuable the DMCA's safe harbors have been towards innovation, and worry about what will happen if they're weakened:
Rather, the notice and takedown system in conjunction with the safe harbor provisions of the DMCA strike a balance between the interests of copyright owners and ISPs and sites that allow users to upload content without permission. It has allowed sites like YouTube, where artists may distribute content without permission, to flourish while providing copyright owners a method for removing their own content from such sites. The WGAW believes that efforts should be made to improve this system, both for copyright owners and online sites and services, rather than more drastic measures that would fundamentally alter the nature of the Internet by requiring affirmative policing of content. We echo the comments made by the Future of Music Coalition regarding The Stop Online Piracy Act (SOPA). SOPA moved too far from the balance struck by the DMCA and would have had significant implications for free speech, due process and a competitive online market.
Furthermore, they rightly point out that if we're changing the notice and takedown system, it's more important to fix how it deals with "mistaken or abusive notices that target fair use." It's great to see the WGAW recognize that creators benefit tremendously from fair use as well -- rather than the way some in the creative community still seem to think that fair use is something that harms them. It's not. It's something that is a key part of creativity today.

Another interesting tidbit in the letter is the concern the WGAW expresses towards "voluntary agreements" like the infamous "six strikes" plan that a bunch of major ISPs agreed to with the MPAA and RIAA. As the WGAW notes, this can have serious consequences for the internet and its users -- taking away due process and putting the burden on the accused.
In recent years, the enforcement of copyright has expanded to include voluntary agreements such as the Copyright Alert System (CAS) between major media companies and Internet Service Providers. While these agreements have yet to prove their effectiveness in limiting copyright infringement, they have raised concerns regarding their lack of consumer protections. For example, the CAS appeals process places the burden of proof on alleged infringers and requires the payment of a fee to the arbitrator, although the fee is refundable if the challenge is upheld. Several other aspects of the process are problematic: appeals are not allowed until the mitigation stage, where Internet throttling or landing pages are implemented, and there is no further appeal after a review.

Similarly, the voluntary ad network agreement encourages networks to suspend a website until verifying that it is non-infringing; once again placing the burden of proof on accused infringers. Private agreements must not become a way of circumventing due process when an essential forum for free speech and commerce is at stake. If the government is going to endorse private agreements it should also promote transparency and comprehensive stakeholder participation in these initiatives.
Of course, nearly every argument the WGAW makes equally applies to pretty much any other content creator as well. These days, nearly all of them really do rely on an open and free internet, the innovations the internet has allowed, and the ability to more efficiently create, promote, connect, share, find fans and sell. And yet... many coming out of the old industry have this weird knee-jerk reaction against the internet, as if it's an "us vs. them" thing. We've been saying for quite some time that the right way to deal with copyright policy is to realize that content creators, innovators and the public actually have most of their interests aligned. It's not a zero sum game. It's great to see that the WGAW continues to get this, even if many other "Hollywood" organizations are still confused about it.

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  1. icon
    That One Guy (profile), 29 Jan 2014 @ 11:07am

    Re: I am...

    I'd say give them the benefit of the doubt, wait a bit, and if they stick to their guns they should be applauded for having the guts to say something like this, and risking the anger of hollywood. If they do that, then I'd say it would be a good indication that while hollywood may pay them, they don't own them.

    Now, if, upon the (inevitable) outcry and objections from hollywood over something like this they do a Republican Study Committee move*, and suddenly retract everything and act like it was all a big misunderstanding, that they didn't really mean it, then yeah, that'll be pretty solid evidence that this was nothing more than a cheap PR move, and that despite it they are indeed 'still in Hollywood's back pocket.'

    *For those confused by the reference:
    http://www.techdirt.com/articles/20121117/16492521084/that-was-fast-hollywood-already-brow beat-republicans-into-retracting-report-copyright-reform.shtml

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