Publishing Lobbyists Suck Up To Trump With Lies About Copyright, Ask Him To Kill DMCA Safe Harbors

from the because-of-course dept

With the Donald Trump administration fully taking shape, lobbyists for basically every industry (yes, including tech and internet companies) are groveling before the President with whatever their pet projects are. The latest to put together a letter is the Association of American Publishers, via its top lobbyist Allan Adler. You may recall Adler from a few years ago, in which he explained why his organization opposed a copyright treaty for the blind, noting that his members were upset about the idea of ever including user rights in international treaties, and only wanted to see international agreements that focused on stronger copyright protections. So, you get a sense of where he's coming from.

The letter to Trump is pretty much what you'd expect from a lobbyist for a bunch of legacy publishers wedded to an outdated business model, but there were a few things I wanted to call out. First, Adler and the AAP blatantly misrepresent the Constitutional copyright clause to pretend it says something quite different than it really says or mean.
In the U.S., publishers continue investing in innovative technologies and business models to support the creation and dissemination of works of original expression, by novice as well as celebrated authors. Their ability to get those works into the marketplace, without interference from government and with the key assets of their exclusive rights in such works acknowledged as legally-safeguarded intellectual property, is protected by the First Amendment’s guarantee of freedom of speech and the Constitution’s clear recognition that “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” will “Promote the Progress of Science and useful Arts.” (Article 1, Section 8, Clause 8)
First of all, it's a neat trick to claim that copyright is "without interference from government." The entire setup of a copyright system is a government interference with the free market. Now, you can argue that that interference is necessary to prevent free-riding, but to state that copyright is somehow a free market concept is just wrong.

But, more importantly, notice the Constitutional explanation, which blatantly misrepresents the actual Constitution. The trick is played by the insertion of the single word "will" between "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" and "Promote the Progress of Science and useful Arts." Nowhere in the Constitution does it say that such protections will promote the progress. Instead, it gives the power to Congress (not the President, I should note), to set up such monopolies if it is determined by Congress to promote the progress. To flip that is dishonest. It falsely suggests that any exclusive rights to authors and inventors automatically promotes the progress of science and the useful arts. And yet, we have 200+ years of examples of how that's not true -- including more than a few cases in which Mr. Adler's members have proactively blocked and harmed the progress of science through abuse of monopoly powers.

To pretend that the Constitutional clause on copyrights and patents means that any and all monopolies are good is ridiculous and misleading.

Next up, Adler falsely compares copyright to trademark... and (of course) tries to flatter Trump in the process:
Surely you understand the role that meaningful intellectual property rights play in American entrepreneurial success, both at home and in global markets, as the ability to burnish the Trump brand through trademark registration and enforcement has helped your diverse enterprises to grow and thrive world-wide. Consistent with that understanding, your businesses have been active at the U.S. Trademark Office and in the courts when necessary to exercise your statutory rights to prevent infringement or dilution of your brand.

Whether operating on a commercial or non-profit basis, publishers’ reliance on their ability to secure adequate copyright protection and effective copyright enforcement, under both federal law and a variety of international agreements, is as critical to their success as the maintenance of trademark protection has been for your business endeavors. It is essential to their ability to publish in the U.S., where readers of all ages, origins and interests can relish discovering and digesting works that entertain or inform them while enriching the cultural, historical, political, and scientific record of American society.
Except, of course, that trademark and copyright are two totally different legal doctrines, and have only been merged into the mythical "intellectual property" bucket by lawyers trying to increase their billing rates. Copyright, as noted above, comes from a specific clause in the Constitution and is about promoting progress. Trademark comes from commercial codes and was, initially, a form of consumer protection against allowing one company to appropriate the brand of another for the purpose of confusing consumers. That's a very different ancestry and purpose of the law, and lumping them together is silly. The way both work is different. The way they're enforced is different. And their purpose is different.

Finally, Adler and the publishers join with the RIAA and others in asking Trump to dismantle key protections built into copyright law that have enabled the internet to grow and to thrive. Because the publishers don't seem to like competition very much.
Provisions of the Digital Millennium Copyright Act (“DMCA”), which Congress enacted in 1998 to encourage online availability of popular copyrighted works while promoting a balance of interests and cooperation between copyright owners and Internet service providers in dealing with online infringement of such works, wildly succeeded in encouraging such availability. However, the relevant DMCA provisions do not achieve that intended balance and cooperation due to numerous instances of judicial misapplication and the unanticipated appearance of service provider business models that foster, exploit and profit from online infringement by their users while offering only token compliance with the law.

The current epidemic of online infringement harms public as well as private interests in the availability of such works, and the legal flaws that hamper the DMCA in its intended operation need to be fixed by our nation’s elected representatives.
Citation needed. The "epidemic" of online infringement is not as big as they're making it out to be, and this is from an industry that has regularly charged insane monopoly rents on things like textbooks and scientific journals. In fact, for them to be complaining about "judicial misapplication" when their industry has massively benefited from a ridiculous ruling that claimed that copy shops were violating copyright law -- which allowed course packs at universities to jump in price from around $30 to around $200 -- is simply crazy.

Yes, every industry is going to advocate for their own interests, but this constant lying and misrepresentation about copyright law to the incoming administration is getting pretty ridiculous. We truly have reached a post-fact society, and the lobbyists are going to exploit that as much as possible. It's only that much more ridiculous that it's coming from a representative of an industry that claims to be promoting knowledge and learning.

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  • identicon
    Baron von Robber, 22 Dec 2016 @ 9:45am

    It'll be Yuuge!

    www.google.com This page can not be displayed
    www.wikipedia.com This page can not be displayed
    www.msn.com This page can not be displayed
    www.techdirt.com This page can not be displayed

    reply to this | link to this | view in chronology ]

    • icon
      DannyB (profile), 22 Dec 2016 @ 12:03pm

      Re:

      How about Tech Industry lobbyists suck up to Trump and ask him to kill Copyright.

      Killing Technology or killing Copyright. Which one would be better for the advancement of our society, improving our lives and just plain doing away with a bunch of parasites?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Dec 2016 @ 12:45pm

        Re: Re:

        Lol. That would be hilarious if he gave both sides what they want. Kills DMCA and kills copyright.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 22 Dec 2016 @ 3:19pm

          Re: Re: Re:

          "You'll be glad to know that President Trump and congress have heard your concerns, and as a result have decided to completely do away with the Safe Harbor sections of the DMCA..."

          "Yay!"

          "... by removing the entire US copyright system upon which it is based upon."

          "... wait, what?!"

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    • identicon
      Anonymous Coward, 22 Dec 2016 @ 4:42pm

      Re:

      On the other hand... greatagain.gov "This page must be displayed"

      reply to this | link to this | view in chronology ]

  • icon
    Not an Electronic Rodent (profile), 22 Dec 2016 @ 10:16am

    Unsurprising

    To pretend that the Constitutional clause on copyrights and patents means that any and all monopolies are good is ridiculous and misleading.

    Yeah, but from their point of view, it's a pretty good play to go for considering the apparent attention span of the target audience. How likely is he to go looking for actual facts?

    reply to this | link to this | view in chronology ]

  • icon
    Jeremy2020 (profile), 22 Dec 2016 @ 10:20am

    Shouldn't "Judicial Misapplication" be handled through the court system? The Supreme Court should be the final stop to decide if a lower court misapplied the law.

    reply to this | link to this | view in chronology ]

  • icon
    OldGeezer (profile), 22 Dec 2016 @ 10:21am

    Easy to bullshit a bullshitter!

    I would not be nearly as concerned about the lies to Trump if he had the slightest clue about these issues. Big money interests already have a leg up with this billionaire especially since most of his staff have lobbyists ties to begin with. I am a retired factory worker with a high school education and some trade schooling and I can honestly say I have far more knowledge on these subjects than the next leader of the free world. If he is too stupid to recognize their deception he will side with the deepest pockets. Because of this advantage the only improvements we have ever seen are at best badly watered down bills. Net neutrality, even with zero rating gone. Minor gains at limiting mass surveillance, forget it. The torture report that horrified us, "bring back waterboarding and worse". The only positive thing I have seen is the chances for TPP passing are less. It could have been just a ploy because he knew a lot of voters were against it. Hell, even after years of supporting it Hillary flip flopped. I wouldn't be surprised to see him reverse his stance. That could have been the plan all along. He is going to be a puppet with big cooperation's hand up his ass.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Dec 2016 @ 10:28am

    Most of their perceived infringement is infringement of their perceived rights to control the market and profit from the work of others. They must be scared that self publishing will swamp them, especially as the platforms do not control the content, and so taking them over will not re-establish control over the market, but rather just cause the works to move elsewhere.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Dec 2016 @ 11:28am

    "Publishing Lobbyists Suck Up To Trump With Lies About Copyright, Ask Him To Kill DMCA Safe Harbors"

    Silly lobby jobby - Trump is not King yet.

    Back in the day .... there was this thing called Congress.
    It was composed of representatives from all states and they were in charge of writing laws and creating budgets among other things. But then one day they were shootin at some food .. oh wait, that is a different story. Anyways, one day (after the opposition won the whths) they decided to not do their jobs while still taking their paychecks. This led to everyone thinking they abdicated their positions and wanted others to do all the work because they were too busy asking others for money. Yeah, so here we are with Trump thinking he is a dictator in charge of everything.

    reply to this | link to this | view in chronology ]

  • identicon
    Daydream, 22 Dec 2016 @ 2:33pm

    Listen to me ramble...

    Correct me if I'm wrong, but the whoever-whatever that originally came up with modern copyright, recognized that information was supposed to be free and public-domain, right?
    And the stated purpose of copyright at the time was to find some way to compensate people for their time and effort in producing a work, via giving the producer exclusive rights to distribute their work (for money) for a short period of time?

    That actually sounds a bit like the idea with basic income that's floating around, sort of a way to compensate people for work (art, games, music, movies, Wikipedia and Reddit, other social websites) that doesn't normally pay salaries or involve traditionally tradable commodities.

    Except, you know, instead of paying everyone, it's giving people a limited, situational right to disobey natural law. Like 'you may steal food if you have no other way to get it' or 'you can fight someone if they invade your home', except in this case it's 'you may demand money from people for something normally free, for a short time'.

    Which makes Antigua and Barbuda very strange...you know, the places that have been given permission to distribute pirated stuff to make up their losses from gambling bans.
    The WTO is basically saying 'as the US continues to refuse to respect your wishes, your people are hereby entitled to assert their natural rights'.

    Okay, done rambling.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 22 Dec 2016 @ 3:16pm

      Re: Listen to me ramble...

      And the stated purpose of copyright at the time was to find some way to compensate people for their time and effort in producing a work, via giving the producer exclusive rights to distribute their work (for money) for a short period of time?

      Close, and a common misconception often pushed by maximalists so I can understand why you may think that way, but not quite accurate. The temporary monopoly granted by copyright is intended as the method, not the goal of copyright.

      Rather the goal is to benefit the public by providing would-be-creators a temporary monopoly on their works, in the hopes that it will result in more works being made, works which would eventually(or never as the case currently is) enter the public domain for others to use to create even more works.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Dec 2016 @ 4:45pm

    what is happening here, in my opinion, is just what i have said many times, the entertainment industry as a whole is doing whatever it can think of to get control of the Internet. rather than try to do it as a single body, it is going right into the frey in multiple attacks, each from a single section, so that it makes it look as if there are multiple businesses after that one thing, rather than many sections of one body. what makes it worse is, because the politicians are interested only in filling their own, individual bank accounts, all semblance of honesty and sens goes right out the freakin' window, taking along the rights of the people and of customers!!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Dec 2016 @ 12:37am

      Re:

      I suspect that the legacy industries are looking for a way to kill self publishing, and about the only way they have to do that is to kill off the services that support it. Get rid of safe harbors, and the legacy industries know how to use the courts to bankrupt companies that they do not like, keep them spending money on lawyers, even though they are losing cases.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 23 Dec 2016 @ 2:16am

        Re: Re:

        It hurts to say this, but if self publishing is so important why is nobody actually standing up for it ?

        Ah, so people DO want a platform where they can self publish, BUT only if it's free. While it's understandable, such a business model can't work for long. Enter the legacy media companies.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 23 Dec 2016 @ 2:56am

          Re: Re: Re:

          YouTube, Vimeo, Jamendo, Podiobooks just to name a few are all self publishing platforms that are persisting, and have viable business models. Add to this Search engines and social media sites as a means of marketing for self publishers, and Patreon and Kickstarter amongst other providing a means for self publishers to obtain funding, I would say there is a lot of support out there. These are the real target of removing safe harbors, eliminate the platforms that support self publishers, and restore the legacy industry as being the only route to publication.

          reply to this | link to this | view in chronology ]

  • identicon
    Châu, 23 Dec 2016 @ 1:04am

    10¹⁰+

    "And yet, we have 200+ years of examples of how that's not true"

    I think more than 10 000 000 000+ years.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Dec 2016 @ 3:02pm

    waa waa waa waa

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Dec 2016 @ 9:09am

    I see some unexamined assumptions here, and I suspect that they're not reflective of reality.

    For example: If you get rid of copyright, all information will be free and creative people will be able to do more. We can see what happened before copyright and patents, and it was exactly the opposite.

    Information was held as guild and trade secrets. No one shared anything.

    Creative work was done almost exclusively at the behest of the very wealthy, and the production was far from diverse, tended to be elitist in the extreme, and very narrow in taste and scope.

    If we did remove copyright now, then we'd be stuck with the crowd-funding, open-source, and patronage models. That MAY work for certain types of software, as there are people who code and who are interested in those types. But most copyrighted works don't do well under those models. (See above for the patronage thing, because nothing has changed on that front over the centuries -- rich people are still people, and still doing things for the same reasons).

    Crowdfunding in book publishing IS being tried. It is considered a success when it covers the cost of production (not profits for author or anyone) of a book. It does so for less than 5,000 works per year in the US. Out of not quite 1,000,000 total. And trust me, far more people than you realize are TRYING to make it work. It just doesn't.

    I could go down the (very long) list of other funding models that are being tried and have been tried. Don't know about the results? Not seeing them all over the shelves and widely read? That's because nothing other than control of the right to make copies works as well as it does -- in terms of making it possible (financially) to make and polish creative works, and get them into the hands of lots and lots of people who want them.

    Don't assume that the model that works for a few types of software can be generalized to even all software, let alone all the rest of the stuff that copyright covers. You're looking at special cases, and over-generalizing, when you do.

    reply to this | link to this | view in chronology ]

  • identicon
    Marion Gropen, 29 Dec 2016 @ 9:11am

    oops

    I just posted a comment, and forgot to include my name. It was the comment just above, about assumptions, and pro-copyright.

    reply to this | link to this | view in chronology ]

    • identicon
      Wendy Cockcroft, 4 Jan 2017 @ 2:53am

      Re: oops

      Thank you for your comments, Marion.

      However, copyright is a popularity contest and the publishing houses want to act as gatekeepers. While I sympathise with your position I can't agree; copyright profits don't automatically flood authors' bank accounts. Only the most popular, established ones tend to make any money from it. Therefore it is not a superior business model to the ones you have already described.

      reply to this | link to this | view in chronology ]

  • identicon
    Wendy Cockcroft, 3 Jan 2017 @ 7:47am

    >>>Now, you can argue that that interference is necessary to prevent free-riding, but to state that copyright is somehow a free market concept is just wrong.

    reply to this | link to this | view in chronology ]


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