Defense Department Oversight Thwarted By Defense Department Officials Who Refused To Talk About Trump's Communications

from the cut-to-DoD-officials-tying-gags-over-their-own-mouths dept

Every presidential administration seems to make a game of thwarting oversight. The current one is no different. President Trump is setting himself apart from the pack by firing IGs at an alarming pace. Whatever's being done in our name at various government agencies is being done in the dark. Whistleblowers and leakers are being hunted down and persecuted/prosecuted (another favorite presidential sport).

What would be considered unlawful obstruction in a criminal investigation is just business as usual at the Executive branch. The latest (but certainly not the last) obstruction was revealed in the investigation of the "JEDI" contract procedure. Amazon really wanted to be a part of American bloodsports, but was beaten out by Microsoft for lucrative Pentagon cloud storage contracts. Amazon sued, alleging it got illegally screwed by the President, claiming his frequent derogatory comments about Amazon and the Jeff Bezos-owned Washington Post pushed the Pentagon towards selecting Microsoft.

An investigation was opened by the Defense Department's Inspector General. And we'll never know what really happened because it appears the administration inserted itself into the investigation. Jacqueline Feldscher has more details at Politico:

The Pentagon’s inspector general “could not definitively determine” whether the White House influenced the procurement process for a major cloud computing contract because senior Defense Department officials were barred from answering questions on the subject during interviews, according to a 313-page report released on Wednesday.

Sticking it to the Deep State, I guess. So, what looks like some impropriety now officially only looks like some impropriety because the Defense Department's general counsel told DoD officials to not answer any questions about communications between the DoD and the White House. "Presidential communications privilege" successfully asserted.

Given the lack of answers, it seems pretty ridiculous for the Pentagon to hang the "Mission Accomplished" banner and declare everything to be above-board. But that's what has happened because that's the the kind of government we have. Here's the Pentagon's spokesperson pretending there's nothing to see here.

"This report should finally close the door on the media and corporate-driven attacks on the career procurement officials who have been working tirelessly to get the much needed JEDI cloud computing environment into the hands of our frontline warfighters while continuing to protect American taxpayers."

Everything is over except its eventual fading into obscurity, washed under the flotsam that is the day-to-day horror of living in an ongoing pandemic. The Pentagon has cleared itself of any wrongdoing by refusing to answer questions related to alleged wrongdoing. The overseers were neutralized by presidential privilege, resulting in the Inspector General drawing inconclusions the Pentagon has declared to be exculpatory with one comment to the press. The IG's office decided to release the incomplete report anyway, stating it did not want to further delay any reporting on its non-findings since it was apparent no amount of waiting things out was going to get these officials to discuss things they didn't want to discuss.

As for Amazon, it must be refreshing to be on the other side of impropriety accusations for once. The run-up to the awarding of the contract saw a few DoD officials becoming far too friendly with the cloud service provider.

The inspector general substantiated allegations of ethical misconduct against Deap Ubhi, a Pentagon employee who worked on the early stages of crafting the JEDI program before leaving the department to work for Amazon.

Investigators did not, however, find evidence of ethical misconduct by other senior defense officials, including former Defense Secretary Jim Mattis, who attended a dinner with Amazon officials organized by his former aide Sally Donnelly.

Ah. Well, at least the IG found out something about somebody. The President's dislike for Amazon and Bezos remains under "presidential privilege" wraps and the swamp will continue draining at its current rate of 0 liters/flush.

Filed Under: communications, contract, dod, donald trump, inspector general, jedi, oversight, retaliation, transparency
Companies: amazon, microsoft

No, Disney Probably Didn't Infringe A Unicorn Van Artist's Copyright, But It Would Have Sued If The Roles Were Reversed

from the the-other-foot dept

If there is ever a Copyright Protectionist Hall of Fame built, it should probably be constructed on the grounds of one Disney theme park or another. As regular readers here will already know, Disney is notoriously aggressive in its enforcement of intellectual property generally, and in copyright specifically. Hell, the 1998 CTEA, which extended the terms of copyright, is more commonly referred to as "The Mickey Mouse Protection Act." Our pages are absolutely littered with stories of Disney bullying others over copyrights, often times to ridiculous lengths.

Well, the shoe is on the other foot in this latest story. You may have seen ads recently for a forthcoming Pixar movie, Onward, which features two elves that take a road trip in a colorful van to try to meet and speak with their dead father. Well, one tattoo artist from California, named Cicely Daniher, is claiming that the depiction of that van represents copyright infringement of her own quite colorful van.

Two weeks ago, Daniher filed a lawsuit against the animation studio for copyright infringement, saying Pixar misled her after the company reportedly requested to rent her Vanicorn for a company outing. Now, a van she says is identical to her own will appear in the forthcoming animated film, “Onward.”

According to court documents shared by the Hollywood Reporter, Jane Clausen, an employee of Pixar, inquired about the rental for a “one day music festival/activity day for Pixar employees and families” on Sept. 4, 2018.

“Your van would just be a show piece and not used in any way other than a visual prop,” Clausen wrote to Daniher. “Are you able to send me some additional photos of the van? We’ve only seen the side, which just blew us away!”

Daniher agreed to rent the Vanicorn for a “confidential sum of money.” But eight months later, she noticed something strange.

What was strange is that the van in Onward shares similarities to her own van. See, the reason Pixar staff wanted to use her van to begin with is that it is painted purple with an artistic representation of a unicorn on the side. The van in Onward shares many of these qualities.

Are those two vans similar? Of course they are! So is Disney/Pixar guilty of copyright infringement? Well...no, probably not. This again is a matter of the idea and expression dichotomy in copyright law. The purpose of that part of the law is to limit copyright protection to specific expression and not mere ideas and themes. For instance, a 1 to 1 copy of Daniher's design on Pixar's cartoon van would likely be infringing. The concept of a purple van with a unicorn on the side of it is, however, not protectable. In fact, it's nearly in trope territory.

Now, to be clear, there may be a contract law issue here. And, even if not, Daniher's side of the story does make Pixar's actions sound really, really shitty.

Speaking on behalf of his client, attorney Conor Corcoran told SFGATE that the film’s producer, Kori Rae, called Daniher on June 3, 2019, to apologize for the misunderstanding. Rae apparently admitted Pixar intentionally did not tell her that they intended to use her van because, at the time, the film had not yet been given a title. For that reason, they believed they could not have Daniher sign a non-disclosure agreement, so they stuck with the rental paperwork. Via the legal complaint, Daniher says the contract she signed “explicitly prohibits” the use of any type of visual representation of the Vanicorn for any purpose other than the event itself. The following December, Corcoran registered the vehicle with the Copyright Office.

“It’s unbelievable,” he told SFGATE over the phone on Wednesday afternoon. “She created that van to cathartically get out of a bad marriage, and Pixar took her van and created it into a vehicle for two boys to find their dead father. We’re gonna have our day in court.”

All well and good, but this still probably isn't copyright infringement. I imagine Disney will argue the same in court.

But what if the parties and actions in this story were reversed? Imagine if Pixar had created its cartoon van first and then Daniher had painted her van? Now imagine that she did vehicle painting and wraps for a living, and sold her similar design? Is there even a modicum of doubt that Disney would be screaming "copyright infringement" in every single courthouse it could?

Of course it would. It's what Disney does. Which will make it entertaining to watch Disney argue the opposite in court.

Filed Under: cicely daniher, contract, copyright, onward, unicorns
Companies: disney

US Court Upholds Enforceability Of GNU GPL As Both A License And A Contract

from the but-might-that-prove-a-mixed-blessing? dept

Free software dominates modern computing, from smartphones to supercomputers -- only the desktop remains a stronghold of proprietary code. Most of that free software has the Linux kernel at its heart, and a key element in the success of Linux -- and of thousands of other coding projects -- is the GNU General Public License. Although the first version of the GNU GPL was released by Richard Stallman back in 1989, and version 3 was issued in 2007, there have been surprisingly few court cases examining it and other open source licenses, and whether they are legally watertight.

A key case is Jacobsen v. Katzer from 2008. As a detailed Groklaw post at the time explained, the US appeals court held that open source license conditions are enforceable as a copyright condition. Now we have another important judgment, Artifex v. Hancom, that clarifies further the legal basis of open source licenses. It concerns the well-known Ghostscript interpreter for the PostScript language, written originally by L. Peter Deutsch, and sold by the company he founded, Artifex Software. Artifex was a pioneer in adopting a dual-licensing approach for Ghostscript. That is, you could either use the software under the GNU GPL, or you could avoid copyleft's redistribution requirements by taking out a conventional proprietary license.

Hancom is a South Korean company that produces Hangul, word-processing software that is primarily used in South Korea as an alternative to Microsoft Word. Artifex says that Hancom incorporated Ghostscript into its Hangul software, but neither sought a proprietary license, nor complied with the terms of the GPL by releasing the source code for the application that incorporated Ghostscript. As a result, Artifex took legal action, alleging copyright infringement and breach of contract. Hancom asked the court to dismiss Artifex's complaint on several grounds, but they were all denied. The most significant ruling is on Hancom's claim that the GNU GPL was not a contract. In her order, embedded below, Judge Jacqueline Scott Corley wrote:

The GNU GPL, which is attached to the complaint, provides that the Ghostscript user agrees to its terms if the user does not obtain a commercial license. Plaintiff alleges that Defendant used Ghostscript, did not obtain a commercial license, and represented publicly that its use of Ghostscript was licensed under the GNU GPL. These allegations sufficiently plead the existence of a contract.

That's an important new ruling. The judge also affirmed a result of the Jacobsen v. Katzer case, that even though code released under the GPL is available free of charge, damages could still be awarded because:

there is harm which flows from a party's failure to comply with open source licensing.

A useful analysis of the judge's order on the Lexology blog explains the pros and cons of bringing cases under copyright and contract law:

Generally, copyright claims may afford plaintiffs more damages and stronger remedies than contract claims. However, contract claims may help a plaintiff pursue a violator's worldwide conduct in a way that jurisdictional limits on copyright claims might not allow. Breach of contract claims may also be able to address reputational harm and other indirect non-economic benefits that a plaintiff might derive from enforcing open source license conditions. A breach of contract claim might also, in certain instances, allow for specific performance of open source obligations.

However, the fact that Artifex may now proceed, drawing on both copyright and contract law, raises the important question of how those interact. Mike wrote about this back in 2010, and pointed to a longer discussion of the legal questions involved. The decision by the District Court for the Northern District of California to allow Artifex to move forward with its case is certainly an important confirmation of the legal solidity of open source licensing. But it also brings with it important questions about the role of contracts in the world of free software.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: contract, copyright, ghostscript, gnu, gpl, license
Companies: artifex, hancom

Sony Uses Copyright To Force Verge To Takedown Its Copy Of Sony's Spotify Contract

from the censorship-through-copyright dept

Well, well. A few days ago, the Verge got a huge scoop in the form of Sony's original US contract with Spotify, leading to a ton of discussion (mostly focused around the huge "advances" that Spotify guaranteed Sony, and the related question of whether or not Sony actually passes those advances on to musicians). The debate raged on for a couple days, and late last night, Paul Resnikoff over at Digital Music News noticed something interesting: the original contract was now missing, and The Verge's own website claims it's due to a copyright threat from Sony: On Twitter, the Verge's editor-in-chief Nilay Patel admits that a threat from Sony forced the site to take down the contract. In fact, he claims that Sony actually sent four cease and desist letters claiming copyright infringement: Earlier this week, Resnikoff reported that Spotify was apparently putting pressure on publications not to report on the contract, including "dangling threats" to scare them off. However, Spotify would have no copyright argument here. As the Verge report (still) notes, the contract was "written by Sony Music," meaning that if there's any copyright claim (we'll get to that shortly), it's held by Sony Music.

And we all know damn well that Sony loves to throw around bogus copyright threats. Even we have received one concerning reporting on Sony Pictures' leaked emails. Sony has threatened lots of other publications as well, and even Twitter over such leaks. And, Resnikoff notes that Sony Music threatened his site for an April Fool's joke, pretending to reveal internal emails concerning Sony's equity stake in Spotify.

So here's the question: why did Vox (the owner of the Verge) cave? For a modern media operation, it must have lawyers that know the threat is bullshit.

Yes, it is possible to get a copyright over the contract, but it's likely to be a pretty thin copyright, because the amount of "creative" work in the contract is minimal. Much of the contract is likely boilerplate. But, more importantly, the Verge has a slam dunk fair use case here. They're providing commentary on the contract. It's a matter of public interest. They're not "selling" the contract and they're certainly not harming the "market" for the contract itself, of which there is none.

We actually dealt with this issue once before -- two years ago when Apple pulled the same bullshit move to pull down a contract that Resnikoff himself had posted on Digital Music News. Somewhat ironically, the first party to report on that... was the Verge! And in their report, they quoted law professor Eric Goldman noting the ridiculousness of it:

"It's just kind of a jerk move. We all know what's happening here. Apple doesn't care about protecting the copyright of contracts. It's using copyright to try and suppress information that it doesn't want made public."

Sounds about right when applied to Sony in this case. Besides, all this is really doing is drawing much more attention (yet again) to the contract, on a story that had already started to die down.

Filed Under: censorship, contract, copyright, fair use
Companies: sony, spotify, the verge, vox

Amazon And Hachette Bury The Hatchet -- It's Just Not Clear In Whom

from the moving-on dept

For the past few months, we've been following the whole Amazon / Hachette contract dispute that was full of ridiculous misinformation and economic ignorance. It was interesting to see such a fight play out in public, though it was also a reminder that oftentimes, such public fights become public due to misinformation campaigns.

Either way, the two companies have, well, buried the hatchet, though, as Nate Hoffelder points out, it's not clear in whose back it got buried. Hoffelder does note that from what's being said about the deal, it doesn't appear to be all that different from the one that Amazon recently signed with Simon & Schuster -- without such public anguish -- leading him to wonder what Hachette could have possibly gotten out of going toe-to-toe with Amazon in this battle in such a public manner.

In the end, it seemed like another fight about control and the future -- and, generally speaking, Hachette's desire to stave off where things are heading in the future for as long as possible. But, and this is the important bit, the future has a way of always winning out in the end, no matter how hard you negotiate against it.

Filed Under: books, contract, ebooks
Companies: amazon, hachette

Roca Labs Sues Customer For Posting A Negative Review

from the that'll-win-new-customers,-i'm-sure dept

We've been covering the saga of Roca Labs for a few days now. This is the company that claims to make an "alternative" to gastric bypass surgery in the form of some "industrial food thickening agents" that (the company claims) will fill up your stomach and make you not want to eat. These claims are not FDA reviewed and an examination of the claims by a doctor found them to be questionable (to say the least). We became aware of the company because it had sued Consumer Opinion Corp., the company that owns the site PissedConsumer.com. The issue? Roca Labs has a terms of service that offers everyone a "discount" on its product if you agree to never, ever, say anything bad about the product ever (you also have to agree to share success stories with Roca and allow them to publicize those stories). In short, the terms of service are designed to only show positive results, and gag any negative results. Roca claims that it has to do this because results may vary, and negative results could be caused by other factors. Of course, doesn't that also mean that positive results could be caused by other factors as well?

Either way, Roca Labs sued PissedConsumer on the hilarious legal theory that by offering a forum for unhappy customers to post their story, it was "tortious interference" because it encouraged people to break the terms under which people bought the product. As we noted, this legal theory is fairly laughable, and PissedConsumer's legal response makes that fairly clear as well.

However, Roca Labs and its lawyers are apparently busy. They're not just suing PissedConsumer, but they're actually suing a customer who complained to the Better Business Bureau for "breach of contract" and "defamation per se." While her filing with the BBB included some statements that might reach the level of defamation, amusingly, Roca Labs does not attempt to show that her comments were false in any way. Rather, it relies on yet another ridiculously questionable term in its terms of service, saying that if you post something negative, it will automatically be considered "defamation per se." Here's the term:

You agree that any such negative claim will constitute defamation per se

I don't think that's how defamation law works. At all. Even if this woman's comments to the BBB are defamatory (and I'm not saying they are), you can't just have someone sign a contract saying that if they do something, they'll be guilty of defamation.

Either way, all of this should make you wonder just what sort of company Roca Labs is in that it seems to not just sue its own customers for negative reviews, but to work so hard to stop negative reviews and to threaten and intimidate those who make complaints about their experience with the company.

Filed Under: contract, free speech, gastric bypass surgery, negative reviews, reviews, tortious interference
Companies: pissedconsumer, roca labs

No, Copyright Is Not Like A Contract

from the goes-way-beyond-that dept

One argument that we've seen in favor of copyright law is that it's no different than a contract: that is, if you agree to purchase something under copyright, it's no different than accepting the terms of a contract. And, as they say, if you "don't like the contract, don't do the deal." Thus, "if you don't like the copyright, don't buy the product." However, as Rick Falkvinge points out, copyright has some significant differences that actually serve to make it antithetical to the right to contract, in that it goes way beyond just the contracting parties to absolutely everyone.

Let’s look at what happens when Alice sells a DVD to Bob (possibly through an intermediary that, for all intents and purposes, mediates the contract), and the sale includes a written condition to not share the bitpattern on the DVD with anyone else, which Bob even reads, understands, contemplates, and signs.

In this case, Bob would be bound by contract to not share that bitpattern. So far, so good. But let’s assume he does anyway. He shares the bitpattern with Carol, who manufactures a copy of the DVD using her own parts and labor.

In this, Bob would be in breach of contract with Alice. But what about Carol’s copy? Carol has signed no contract with Alice whatsoever, and contracts aren’t contagious in the sense that they follow the original object, concept, idea, or pattern; they require voluntary acceptance from an individual, which Carol has not given. Carol has signed no contract, neither with Bob nor with Alice.

Thus, Carol would not be bound by the original contract in the slightest on a functioning free market, regardless of Bob’s breach, and she would be free to share the bitpattern of her own copy of the DVD as much as she pleased with David, Erik, Fiona, and Gia, who could all manufacture their own copies from the bitpattern that Carol shared, without any breach of contract having taken place.

But, of course, that's not what happens. Copyright isn't like a contract because all sorts of people who never agreed to any such contract are automatically and unavoidably bound by its terms. In fact, as Falkvinge points out, at this point, it has become the exact opposite of the freedom to contract, because it bars Carol from her own freedom to contract:

The copyright monopoly limits Carol’s rights to sign contracts in her turn regarding her property that she manufactured with her own parts and labor – the DVD with the bitpattern: it limits her ability to sign contracts with David, Erik, Fiona, and Gia regarding this piece of property, should she desire to do so. For example, with the copyright monopoly in place, she cannot even legally execute one of the simplest forms of transaction – a transfer of property. She can’t make additional copies of her own property and sell them, or even give them away without any terms whatsoever.

Whether or not you think such restrictions are reasonable, it seems clearly incorrect to argue that copyright is merely a form of the right to contract.

Filed Under: contract, copyright

Appeals Court Smacks Down Unpaid HuffPo Bloggers Who Demanded A Cut Of HuffPo Sale

from the easily-dismissed dept

After Huffington Post was sold to AOL for $315 million, there was a really, really silly discussion among a small group of the volunteers who blogged on the site for free (again, voluntarily), who whined about how this was somehow unfair. They ignored the fact that they took none of the risk, spent none of the money, had no obligations to provide content and clearly agreed to receive no money for their actions -- but still, they whined. Some then went even further and filed a very silly lawsuit, led by Jonathan Tasini. Tasini, previously, had successfully sued the NY Times concerning that company's handling of freelance works. Of course, given that he's now sued two major publications which he freelanced for, what publication would ever allow him to write freelance pieces again? It seemed that his success in the NYT suit led him to be over confident with this lawsuit. There was simply no basis for it: he blogged on the site voluntarily, knowing that he'd receive no compensation for it. To then whine that the investors, who took all the risk, made some money selling the site when he had no equity stake in the site, isn't just sour grapes, it's legally ridiculous.

Thankfully, the district court smacked the case down pretty hard, and did so with prejudice, denying him the ability to refile an amended complaint. However, Tasini wasn't ready to give up, and appealed the original ruling. The appeals court has now taken its turn in smacking down the lawsuit, noting that Tasini's argument is simply ridiculous, as you can see in the full filing (also embedded below):

The problem with plaintiffs' argument is that it has no basis in their Amended Complaint. Nowhere in the Amended Complaint do plaintiffs allege that The Huffington Post represented that their work was purely for public service or that The Huffington Post would not subsequently be sold to another company. To the contrary, plaintiffs were perfectly aware that The Huffington Post was a forprofit enterprise, which derived revenues from their submissions through advertising. Perhaps most importantly, at all times prior to the merger when they submitted their work to The Huffington Post, plaintiffs understood that they would receive compensation only in the form of exposure and promotion. Indeed, these arrangements have never changed.

Though it is no doubt a great disappointment to find that The Huffington Post did not live up to the ideals plaintiffs ascribed to it, plaintiffs have made no factual allegations that, if taken as true, would permit the inference that The Huffington Post deceived the plaintiffs or otherwise received a benefit at the expense of the plaintiffs such that equity and good conscience require restitution.

In other words, Tasini's inability to accept the deal he made, and the fact that he apparently got jealous of Huffington's ability to sell the site, is not a legal issue at all. The court also re-affirms that the dismissal with prejudice was entirely proper. Maybe, instead of spending all this time on lawsuits, Tasini would be better served trying to build his own site. Of course, as was ironically noted after he filed his lawsuit, Tasini actually did that once and didn't pay the bloggers who blogged for him...

Filed Under: contract, entitlement, equity, greed, jonathan tasini
Companies: aol, huffington post

Judge Smacks Down Lawsuit From HuffPo Volunteers, Says 'They Got What They Paid For'

from the and-stay-away dept

When Jonathan Tasini and a few others filed a lawsuit against the Huffington Post last year, we called it the dumbest lawsuit ever. Even though Tasini has had some luck in filing class action lawsuits against media properties, this lawsuit was completely and absolutely frivolous. Tasini (and many others) had blogged on The Huffington Post for free. That was the deal from the beginning and it was clearly laid out: Huffington Post provided them with a platform which they could use, and they could promote themselves however they wanted, but they didn't get paid. Huffington Post does have some paid reporters, but they have different rules and responsibilities (including requirements on how much they write, etc.) When the Huffington Post sold for $315 million, Tasini decided that he and the other volunteer writers deserved $105 million.

There were all sorts of problems with his argument, beyond just the fact that he agreed to basic terms and was trying to go back and change them afterwards. It also showed a complete misunderstanding of the nature of equity in a company. If Huffington Post had flopped and was in debt, would Tasini then be legally required to help cover the debt? Of course not. Ownership (equity) is a totally separate issue from compensation -- and the capital gains on equity have everything to do with the risk that the founders and investors put into HuffPo, completely unrelated to the question of direct compensation. But, of course, none of that matters because, again, Tasini agreed to the deal upfront in which he blogged for free. If he didn't understand the terms of the deal, that was his problem. The arguments in his filing were even more ridiculous, where (despite this not being a copyright issue) he pretended that the Copyright Clause of the Constitution meant that content creators must be "appropriately compensated." The whole thing was a complete joke.

It was made even more ridiculous when it later came out that Tasini himself had a blog... on which he had volunteer writers who he did not pay. Not only was the lawsuit stupid, but it was filed by a hypocrite who didn't understand the law and did the same thing he was angry at HuffPo for doing.

Thankfully, it appears the judge agreed. Not only did the court dismiss the lawsuit, but it did so with prejudice, meaning that Tasini can't just refile the lawsuit to make up for its failings. The judge is effectively saying that it doesn't matter what legal arguments Tasini makes, he has absolutely no case.

There is no question that the plaintiffs submitted their materials to The Huffington Post with no expectation of monetary compensation and that they got what they paid for — exposure in The Huffington Post....

Moreover, equity and good conscience plainly do not support the plaintiffs in this matter. No one forced the plaintiffs to give their work to The Huffington Post for publication and the plaintiffs candidly admit that they did not expect compensation. The principles of equity and good conscience do not justify giving the plaintiffs a piece of the purchase price when they never expected to be paid, repeatedly agreed to the same bargain, and went into the arrangement with eyes wide open.... Quite simply, the plaintiffs offered a service and the defendants offered exposure in return, and the transaction occurred exactly as advertised. The defendants followed through on their end of the agreed-upon bargain. That the defendants ultimately profited more than the plaintiffs might have expected does not give the plaintiffs a right to change retroactively their clear, up-front agreement. That is an effort to change the rules of the game after the game has been played, and equity and good conscience require no such result.

Tasini is apparently considering appealing, which would be a waste of time and money. Any court is going to smack this lawsuit down.

In the meantime, Tasini has now branded himself as someone who has twice filed major lawsuits against publications that published his writings. It makes you wonder: what publication would want to put itself at such risk in the future?

Filed Under: contract, jonathan tasini, reporters, volunteer
Companies: huffington post

Shouldn't Unilateral Retroactive Copyright Extension Mean Copyright Is Void?

from the just-thinking-this-through dept

With Europe approving this ridiculous retroactive copyright extension, which has set off an angry public who is reasonably frustrated that they'll be paying the cost to support a few rockstars and dying record labels -- there's an argument that this fundamentally breaks copyright law. And, it's making me wonder if it actually should mean that copyright is null and void.

I've argued in the past that this constant expansion of both copyright and copyright enforcement has only served to make people respect the law less and less, because it gets further and further away from what people think is reasonable. Rather than making more people respect the law, it drives more people to ignore the law. Dirk Poot takes that argument a bit further, and suggests that with such things, we've actually gone full circle and copyright law has become exactly what it was originally designed to stop.

If you know your history of the Statute of Anne, one key goal of the system was to stop overarching monopolies among publishers, by granting them limited monopolies. But as we've moved further and further away from such limited monopolies, Poot argues that we've actually gone back to exactly what copyright law was supposed to be against:

It is clear that the copyright deal is dead. The perpetual monopoly that Queen Anne sought to end in 1709 has, for practical purposes been restored. From the public have been taken all the benefits which made the deal worthwhile to begin with; from a cultural perspective we are back in the late 17th century.

So where does that leave the public? The benefits are gone, and adding insult to injury, copyright lobbyists are actively forcing web-sniffing, packet-inspecting and blocking-technology upon society, willfully endangering basic human freedoms. What incentive, except the threat of massive litigation and draconian measures is there for the public to accept this farce of a copyright law? For how long will society put up with prohibitive fines and three-strikes legislation?

With the latest copyright extension, the EU may have dealt a deathblow to copyright. Internal enforcers like morals and ethics have been taken out; the only thing that copyright law still has going for it, is the empty threat of dire consequences.

Copyright law has lost its legitimacy; heavy-handed enforcement can only lead to uncomfortable questions about the validity of the underlying laws, and eventually copyright will be become a mere curiosity, not unlike the obligation for males to schedule in two hours of longbow practice each week.

But all of this got me thinking about this from a slightly different angle. When you're locked into a term-based contract with, say, a mobile phone provider, one thing that has become standard is that if they unilaterally change the terms, you are granted an out. You get to say "that's not the deal I agreed to, so I'm voiding the whole deal." So... um... shouldn't the public now be able to make that same argument with copyright law? After all, the government has unilaterally changed the terms of the deal. The original deal was a limited monopoly of specific length, in exchange for the work itself being created, and then being contributed to the public domain at the end of the agreement. But, if the length of time is changed unilaterally -- especially with the public not getting any compensation -- then hasn't the government effectively reneged on the entire deal? Couldn't an argument be made that the public should now have the option of "opting out" of the copyright regime, because the terms of our contract have changed?

Filed Under: contract, copyright, unilateral change