Whose Idea was the RSC Memo on Copyright? Don’t ask Derek Khanna

Derek Khanna has been on a media blitz lately following the White House’s endorsement of a “We the People” petition to “make cell phone unlocking legal”. Khanna — who considers himself a “copyright reform” advocate (but in our opinion could more accurately be called a “Derek Khanna” advocate) — created a moral panic over cell phone unlocking as the first step in a sustained “war” against artists and creators, the goal of which is to strip them of their already weak legal protections.

Khanna, you may recall, first stepped into the spotlight last November after he authored a memo for the Republican Study Committee that called for severe and regressive changes to copyright law. The memo was filled with historical and factual errors (as well as numerous typos) but was considered one of the most eloquent writings to come from the copyleft; it was quickly withdrawn from the RSC’s website.

Earlier, we had noted that Khanna himself has publicly admitted of the memo, “No one requested it. I just thought it was a good idea.”

khannareddit

Interesting. Because just a few days ago, Khanna spoke about the memo to Ezra Klein at the Washington Post. His story was a little bit different this time. According to Klein:

It was November 2012 and Derek Khanna was working as a staffer in the Republican Study Committee, which acts as a kind of think tank for the conservative wing of the House Republican Conference. Khanna, whose job was to follow issues pertaining to technology, homeland security and government oversight, was asked to draw up a short brief on copyright law — something the group could hand out to House Republicans in the hopes of getting some legislation moving. “The memo wasn’t my idea,” he says.

(Tip to Derek Khanna: if you want to get into politics, you have to make your flip-flops a little less obvious.)

The Internet Radio Fairness Act’s Attack on Free Speech

In case you missed it: yesterday, the Future of Music Coalition held its annual summit, a full day’s worth of varied speakers and varied topics. The primary topic was the Internet Radio Fairness Act (IRFA) — Pandora’s Tim Westergren led off the summit with a “conversation panel” designed to drum up support for the bill. Senator Ron Wyden, sponsor of the Senate’s version of the bill, had the honor of keynoting the event, and his remarks centered around the legislation.

The Trichordist’s own David Lowery participated on a panel in between the two devoted to the bill. He was joined by General Counsel of the American Federation of Musicians Patricia Polach, SoundExchange General Counsel Colin Rushing, Consumer Electronics Association lobbyist Michael Petricone, and AccuRadio founder Kurt Hanson.

Lowery had earlier challenged Westergren on the free speech implications of Section 5 of IRFA. Westergren deflected: “I’m not going to get into a back and forth over legislative language.”

During the panel discussion, Lowery focused again on the chilling effect that Section 5 would pose to artists and artist organizations. The AFM’s Polach echoed his concerns.

When Senator Wyden took the podium, he attempted to address these concerns. With his voice raised, he conceded that “If the consensus in the legal community is that this restricts the First Amendment, it will be a very short-lived provision.” Techdirt’s Mike Masnick jumped to Wyden’s defense:

As we noted in our prior post, IRFA’s chilling effect on free speech is not a bizarre interpretation.

Satellite radio provider Sirius XM is currently suing SoundExchange and the American Association of Independent Music (A2IM) primarily because of blog posts expressing their opinion on direct licenses pursued by Sirius. It is seeking monetary damages, a permanent injunction, the dissolution of SoundExchange, and the invalidation of all copyrights licensed by SoundExchange — copyrights involving over 70,000 performers — because these organizations representing artists engaged in speech that Sirius disagrees with.

These groups have explicitly raised the First Amendment in defense. As A2IM argues in its memorandum supporting its motion to dismiss, filed last June, “a trade association’s mere recitation of facts and its opinion on an issue or standard cannot constitute an antitrust violation.”

Instead, such a recitation is protected free speech. … Sirius pleads nothing more than just such protected expressions of A2IM opinion.

Artists and artist advocates should not need to run things by their lawyer whenever they want to communicate to other artists their thoughts and opinions on deals offered by Sirius, Clear Channel, or any other business that relies on their music.

We don’t have to wonder if there is a free speech concern with Section 5 of IRFA — there is. We don’t have to guess if corporations will sue artist organizations for speaking up — they already are.

Section 5 would only codify and set in stone this suppresion of dissent.

That IRFA’s own authors, self-described defenders of the First Amendment, weren’t aware of the definite chilling effect of the bill until yesterday only reinforces the idea that Congressional tampering with artists’ royalties is not yet ready for prime time.

Muzzling Free Speech By Artists: IRFA Section 5 Analysis

The “Internet Radio Fairness Act” has a lot to concern artists. Today, we’re continuing our section-by-section analysis of the proposed legislation because knowing is half the battle. We’ve been looking at how the bill would affect current law: strikethrough text shows what the bill would remove, while underlined text shows what it would add.

SEC. 5. PROMOTION OF A COMPETITIVE MARKETPLACE.

17 USC § 112 – Limitations on exclusive rights: Ephemeral recordings

(e) Statutory License.—

(2) Notwithstanding any provision of the antitrust laws, any copyright owners of sound recordings and any transmitting organizations entitled to a statutory license under this subsection may negotiate and agree upon royalty rates and license terms and conditions for making phonorecords of such sound recordings under this section and the proportionate division of fees paid among copyright owners, and may designate common agents, on a nonexclusive basis, to negotiate, agree to, pay, or receive such royalty payments. Nothing in this paragraph shall be construed to permit any copyright owners of sound recordings acting jointly, or any common agent or collective representing such copyright owners, to take any action that would prohibit, interfere with, or impede direct licensing by copyright owners of sound recordings in competition with licensing by any common agent or collective, and any such action that affects interstate commerce shall be deemed a contract, combination or conspiracy in restraint of trade in violation of section 1 of the Sherman Act (15 U.S.C. 1).

17 USC § 114 – Scope of exclusive rights in sound recordings

(e) Authority for Negotiations.—

(1) Notwithstanding any provision of the antitrust laws, in negotiating statutory licenses in accordance with subsection (f), any copyright owners of sound recordings and any entities performing sound recordings affected by this section may negotiate and agree upon the royalty rates and license terms and conditions for the performance of such sound recordings and the proportionate division of fees paid among copyright owners, and may designate common agents on a nonexclusive basis to negotiate, agree to, pay, or receive payments.

(2) For licenses granted under section 106 (6), other than statutory licenses, such as for performances by interactive services or performances that exceed the sound recording performance complement—

(A) copyright owners of sound recordings affected by this section may designate common agents to act on their behalf to grant licenses and receive and remit royalty payments: Provided, That each copyright owner shall establish the royalty rates and material license terms and conditions unilaterally, that is, not in agreement, combination, or concert with other copyright owners of sound recordings; and

(B) entities performing sound recordings affected by this section may designate common agents to act on their behalf to obtain licenses and collect and pay royalty fees: Provided, That each entity performing sound recordings shall determine the royalty rates and material license terms and conditions unilaterally, that is, not in agreement, combination, or concert with other entities performing sound recordings.

(3) Nothing in this subsection shall be construed to permit any copyright owners of sound recordings acting jointly, or any common agent or collective representing such copyright owners, to take any action that would prohibit, interfere with, or impede direct licensing by copyright owners of sound recordings in competition with licensing by any common agent or collective, and any such action that affects interstate commerce shall be deemed a contract, combination or conspiracy in restraint of trade in violation of section 1 of the Sherman Act (15 U.S.C. 1).

(4) In order to obtain the benefits of paragraph (1), a common agent or collective representing copyright owners of sound recordings must make available at no charge through publicly accessible computer access through the Internet the most current available list of sound recording copyright owners represented by the organization and the most current list of sound recordings licensed by the organization.

This section is far more troubling than it first appears.

The effect of IRFA as a whole would be to reduce the amount of royalties that companies like Clear Channel, Sirius XM Radio, and Pandora have to pay to recording artists.

For most companies, arrangements between buyers and sellers are negotiated on the open market. But for a number of reasons, the Copyright Act establishes a compulsory license for certain uses of digital sound recordings with the license terms and rates set by the Copyright Royalty Board.

So companies like Sirius XM and Pandora already have an advantage that many businesses don’t have: government-guaranteed access to the content that drives their business at a rate set by law. Compulsory licensing is compulsory: there is no opting in or opting out for artists.

But compulsory licensing doesn’t preclude direct licensing under the current law — that is, without IRFA. Copyright owners are — and always have been — free to negotiate privately with copyright users. Sirius XM has been particularly aggressive in recent years in pursuing such direct licensing, and Clear Channel is right behind Sirius with their own direct deals.

What does this mean for artists? First of all, in practice, this means that the rates set by the Copyright Royalty Board act as a ceiling — no licensee is going to pay more than the compulsory rate. They are guaranteed access to every sound recording on the market at the CRB’s rates.

So why would recording artists or sound recording owners want to accept a deal that gives, say, Sirius XM more rights for less money?  (Bearing in mind that many artists own their sound recordings.)

Here’s one reason. During recent proceedings, Sirius XM Executive VP David Frear testified that “Among other things, [record companies] recognized that by entering into direct licenses with Sirius XM, they gained the potential for enhanced airplay and greater exposure for their recording artists.” Left unsaid was the corollary to this: refusing to enter into a direct license could mean less (or no) airplay.

Direct licensing, in conjunction with a compulsory licensing scheme, thus gives licensees all stick and no carrot. And when you’re terrestrial radio giant Clear Channel, or the only satellite radio provider, or Pandora — which accounts for 37% of all digital sound recording royalties — that’s a pretty big stick. (Pandora and Sirius XM together account for 90%.)

Section 5 of IRFA is perhaps the most pernicious part of the bill, for it would make it illegal for anyone to criticize digital sound recording licensees. If IRFA becomes law, artists and artist organizations will need to watch what they say in public in opposition to Sirius and Clear Channel’s direct licensing efforts.

This is not an exaggeration or hyperbole — it is already happening. The provisions of Section 5 seem to be a direct response to groups like American Association of Independent Music (A2IM), SoundExchange, and major record labels cautioning recording artists about the drawbacks to a push by Sirius XM to license recordings directly following the latest rate-setting proceedings.

In March 2012, Sirius XM filed a lawsuit against SoundExchange and A2IM alleging anti-trust violations for their efforts to resist what SoundExchange and A2IM saw as a raw deal from Sirius XM’s direct licensing push. Now, for starters, it might seem odd that a company with an effective monopoly on satellite radio is complaining that a non-profit nonexclusive collecting agency and a trade association representing hundreds of small companies are violating anti-trust laws.

But the allegations that Sirius made in the lawsuit should concern any artist. Sirius XM essentially argues that various public communications concerning its direct license program amount to anti-competitive behavior — not anti-competitive conduct, just speech.

One such communication identified in Sirius XM’s anti-trust suit includes this August 2011 blog post by A2IM. In its lawsuit, Sirius XM points specifically to a paragraph that states:

In general statutory licenses have been good for the independent music label community as statutory licenses insure that all music label copyrights, whether those of the major labels or those of independent labels or artists, are treated equally and paid the same rate amount for each stream (play) of that music. Under direct licenses there are cases where independents have received less than equitable rates.

And lest you think only industry groups would be caught in the crosshairs, it’s not unlikely that artist advocacy organizations could face legal liability. Sirius XM also refers to a statement made by the Future of Music Coalition, in its November 2011 newsletter:

Here at FMC, we want artists to get the money they’re owed for the use of their music on any platform. The statutory rate for digital performance plus direct payment via SoundExchange is an important piece of the compensation puzzle for creators. Bypassing it might benefit the bottom lines of major corporations in the short run, but it’s a dangerous thing for performing artists.

This is the type of explanatory speech — not conduct — that Sirius XM thinks is illegal and IRFA definitely would outlaw. Again, it would make it a violation of the Sherman Act for “any copyright owners of sound recordings acting jointly, or any common agent or collective representing such copyright owners, to take any action that would prohibit, interfere with, or impede direct licensing.” Whenever two or more artists are gathered, Sirius XM (and Clear Channel, and Google) will be there.

The statements above are already alleged by Sirius XM to violate existing anti-trust laws. To be clear, the allegations are absurd — these statements are clearly not urging an unlawful “boycott” against Sirius XM’s direct licensing, and even if they were, Sirius doesn’t lose out since it already has access to every sound recording on the market under the compulsory license. There’s also a much simpler and way less conspiratorial explanation to the public response that Sirius complains of: maybe the labels who spurned Sirius XM’s proposal just didn’t like the deal. But Section 5 of IRFA would ensure that the law explicitly prohibits any criticism of direct licensing deals.

So if IRFA becomes law, if you don’t like the deal, you better keep it to yourself.

IRFA Analysis: Section 2

Here at The Trichordist, we’re taking a look at the Internet Radio “Fairness” Act all week. As a service to readers, we’re firing up the LegalTron 3000 to take a closer look at the bill, analyzing it section by section.

Both the House version, H.R. 6480, introduced by Rep. Jason Chaffetz (R-UT), and the Senate version, S.3609, introduced by Sen. Ron Wyden (D-OR), are identical, so the following applies to both. The bills contain eight sections, though the first merely sets forth the title of the Act and the last specifies the effective date and transitional rules, so we’ll focus only on sections two through seven.

The bill mainly amends the current Copyright Act, so we’ve done our best to show how these amendments look in context. The text of the affected statutes follows; strikethrough text indicates current language that has been removed or altered by the bill, underlined text indicates new or changed language added by the bill.

SEC. 2. APPOINTMENT OF COPYRIGHT ROYALTY JUDGES AND QUALIFICATIONS.

17 USC § 801 – Copyright Royalty Judges; appointment and functions

(a) Appointment.— The Librarian of Congress President of the United States, by and with the advice and consent of the Senate shall appoint 3 full-time Copyright Royalty Judges, and shall appoint 1 of the 3 as the Chief Copyright Royalty Judge. The Librarian shall make appointments to such positions after consultation with the Register of Copyrights.

17 USC § 802 – Copyright Royalty Judgeships; staff

(a) Qualifications of Copyright Royalty Judges.—

(1) In general.— Each Copyright Royalty Judge shall be an attorney who has at least 7 not fewer than 10 years of legal experience and has significant experience in adjudicating arbitrations or court trials. The Chief Copyright Royalty Judge shall have at least 5 years of experience in adjudications, arbitrations, or court trials. not fewer than 7 years of experience in adjudicating court trials in civil cases. Of the other 2 Copyright Royalty Judges, 1 shall have significant knowledge of copyright law, and the other shall have significant knowledge of economics. An individual may serve as a Copyright Royalty Judge only if the individual is free of any financial conflict of interest under subsection (h).

(d) Vacancies or Incapacity.—

(1) Vacancies.— If a vacancy should occur in the position of Copyright Royalty Judge, the Librarian of Congress shall act expeditiously to fill the vacancy, and may appoint an interim Copyright Royalty Judge to serve until another Copyright Royalty Judge is appointed under this section. President of the United States shall act expeditiously to fill the vacancy. An individual appointed to fill the vacancy occurring before the expiration of the term for which the predecessor of that individual was appointed shall be appointed for the remainder of that term.

(2) Incapacity.— In the case in which a Copyright Royalty Judge is temporarily unable to perform his or her duties, the Librarian of Congress President of the United States, by and with the advise and consent of the Senate, may appoint an interim Copyright Royalty Judge to perform such duties during the period of such incapacity.

The primary effect of this section is to shift appointment of Copyright Royalty Judges from the Librarian of Congress (who is the head of the department under which both the Copyright Royalty Board and Copyright Office reside) to the President.

This past summer, the DC Circuit Court held that as then drafted, the then-current method of appointing Copyright Royalty Judges was unconstitutional under the Appointments Clause. However, rather than striking down the law altogether, the court remedied the matter by the simple fix of removing limitations on the Librarian’s ability to remove Judges. So while this section of IRFA might appear to be in response to that decision, it isn’t at all necessary from a constitutional standpoint after the DC Circuit’s ruling.

What’s interesting is that, until 1993, Judges were appointed by the President, and it was generally considered a failure — in the words of one Senator, the Board “was a dumping ground for unqualified people to whom the President owed a small favor.” So why do we want to go back to that? One theory is that the bill’s writers simply don’t like the decisions the current Copyright Royalty Judges have made; by removing appointment from an expert agency to the Executive branch, with the advice and consent of the Senate, the bill opens the door to political games and partisanship.  Not to mention delays.

The section also adjusts the requirements for Judges, bumping up the minimum experience required, but also, oddly, removing the requirement that any of the Judges have experience in economics or even copyright law. Why you’d want a Copyright Royalty Judge without requiring a background in copyright is beyond us. But more to the point, is there any evidence that current Judges aren’t qualified to hold their positions, or that an extra three years experience is necessary? Or are these provisions just more cover for a collateral attack on the Board’s prior decisions?

The last section of the bill provides that the new Judges will be appointed immediately. Current Judges will continue to preside over proceedings where a hearing on the merits has concluded, or where it has commenced, except that proceedings under Sections 112 and 114 (proceedings that affect Pandora) will only continue with “consent of all participants.” So Pandora gets a fresh slate to have its own judges decide how little it should pay musicians under its own rules.

A Kim Dotcom For All Seasons

Come on, guys, I am a computer nerd. I love Hollywood and movies. My whole life is like a movie.

That’s Kim Dotcom in an “open letter” to Hollywood that he penned last week. Dotcom is the owner and CEO of Megaupload and is currently facing federal criminal charges, along with six other individuals, for allegedly operating a “mega-conspiracy” that made him a very wealthy man using other people’s work without permission.

Since his indictment and arrest, Dotcom has been waging a PR campaign to cast himself, not as an opportunistic hack who exploited thousands of creators through his spammy, scammy website, but as some sort of internet freedom fighter — in his latest “music video”, he portrays himself as no less than Dr. Martin Luther King, Jr. Strangely, in the topsy-turvey world of the internet, Dotcom’s efforts appear to be working.

You can fool some of the people all of the time

The weirdest part of this story is that it is part of Dotcom’s modus operandi. For over two decades, he has portrayed himself as some sort of master hacker, or savvy businessman, or whatever else would garner the most press, no matter how far from the truth.

Here, for example, is his take on his first brush with the law in the early nineties:

By chance in 1993, Schmitz discovered a computer account that included the word “Pentagon”. “I connected to the computer, made myself a super-user on it and after five or six hours had access to 100 computers within the Pentagon. I found the main router and so could ‘sniff’ all the traffic and jump from computer to computer. Some had real-time connections with satellites that were taking photographs of [Saddam] Hussein’s palace – I had no idea that technology even existed. It was like Ali Baba finding the treasure cave.”

If you think this sounds more like Hollywood Hacking than real life, you’d be correct. Dotcom also claimed he “got into Citibank’s system and transferred $20 million (21.4 million euros) by taking tiny amounts from the accounts of 4 million customers and giving it to Greenpeace” around the same time period. This isn’t just like a movie, it is a movie — the 1992 film Sneakers, to be exact.

The truth? Dotcom was convicted in 1998 on multiple counts of computer fraud and data espionage. Court records don’t substantiate any of Dotcom’s amazing claims.

What he did do was steal phone calling card codes and conduct a premium number fraud similar to the recent rash of Filipino phreaking frauds. He bought stolen phone card account information from American hackers. After setting up premium toll chat lines in Hong Kong and in the Caribbean, he used a “war dialer” program to call the lines using the stolen card numbers—ringing up €61,000 in ill-gained profits.

If anything good could be said about Dotcom’s latest media blitz, it’s that he at least is picking better historical figures to compare himself to. From a 2001 interview:

Wasn’t Hitler writing Mein Kampf while being arrested? Not that I like Hitler hehe, it’s just that strange people can have strange ideas while being arrested.

Dotcom would next reinvent himself as a shrewd businessman-slash-entrepreneur. In 2001, he was claiming to the press that his net worth was $100 million, and his investment company would soon be making $553 million a year. Here, again, the reality was far less glamorous than Dotcom suggested.

A German court would hear later that he had pulled a textbook “pump-and-dump” move, borrowing money to buy Letsbuyit shares, and then quickly selling them to those who swallowed his investment story, gaining himself a quick profit of 1.1 million euros ($1.4 million).

But before facing justice, Dotcom was busy writing Act 2.

In the movies, whenever a protagonist gets away with a big heist, we invariably see him passing safely through customs in the Caribbean or southeast Asia as the credits begin to roll.

Perhaps this hackneyed Hollywood device was on Kim Schmitz’s mind when he chose Thailand as his hideout from German authorities curious about his KimVestor Ponzi scheme.

Add “bizarre” to the list of adjectives that could be used to describe Dotcom. As it turns out, prior to his arrest in Thailand, he had changed his website to announce that he would be livestreaming his own suicide. Said the site:

Enough is Enough. Kim Schmitz will die next Monday. See it on this website live and for free. When the countdown is over, Kim steps into a new world and wants you to see it.

But he would be arrested the Friday before. As the Guardian reported:

This proved to be a publicity stunt and visitors to the site are now informed that Schmitz wishes to be known as “King Kimble the First – Ruler of the Kimpire”.

A Kim For All Seasons

Schmitz’s claims follow a pattern. He takes bits of what he has been found guilty of, bits of other hackers’ publicised doings, even tales of hacker movies, and mixes them together to form his “personae”.

A con man par excellence.”

He was trying to make half a buck on every occasion.

On his way up, he fooled them all: judges, journalists, investors and companies.

Everything that entwines itself around Mr. Schmitz is, to say the least, somewhat dubious.

Over the past 20 years, Dotcom has worked hard to portray his life like a movie, seeing himself as, perhaps, a super-hacker from Sneakers, or the innocent man on the run from The Fugitive (Dotcom’s nickname “Kimble” is said to be derived from Dr. Richard Kimble, the lead character in that show/movie).

But it seems to us that the closest one can come to the movie that Dotcom has created of his life is A Burns for All Seasons, the fictional movie created by Mr. Burns in the animated series The Simpsons. In the film, the unapolagetic plutocrat portrays himself, in three separate scenes, as an outsourcing champion, the alien E.T., and Jesus Christ.

That there are those who buy into Dotcom’s latest self-cast role as champion of internet freedom and innovation is sad commentary. Dotcom’s “mega-empire” made him millions of dollars off the work of thousands of creators. There’s nothing innovative about exploiting artists. If this were really a Hollywood movie, the happy ending would see Dotcom finally facing justice.

Everyone Gets a Trophy Day

And the winner of the “most humble” award goes to… me.

Last week, Boing Boing writer Xeni Jardin posted this self-congratulatory story:

Constitutional law expert Marvin Ammori, one of the First Amendment scholars along with Larry Tribe who explained how SOPA would violate the First Amendment, shares a wonderful story with Boing Boing. Snip from his blog post:

When I was quite young, I saw the first Star Wars movie and believed that, if I took part in a great cause, it would end with a medal ceremony and a princess conferring the medal. It has finally happened.

Last night, I received a medal from Princess Tiffiniy Ying Cheng of Fight for the Future, representing the “committee for the Defenders of the Internet.” Bestowed upon me was the Nyan Cat Medal of Internet Awesomeness, the “highest honor known to Internet Defenders.” I could not be more honored.

The “great cause” here was a decade long effort by academics, tech companies, venture capitalists, and the nonprofits who love them to redefine the rights of creators in their own works as tools of oppression that would “break the internet.” To understand why this is self-congratulatory, it helps to understand the players involved. (And note, this is certainly not the first time this group of digital activists have engaged in such circular award ceremonies — see here and here.)

Tiffiniy Cheng is a serial activist who has held a grudge against record labels since 2003, when she helped form Downhill Battle. (To read more about the chilling tactics used by the group, read this series of posts). Next came the Participatory Culture Foundation (whose board includes Boing Boing’s Cory Doctorow), a group whose biggest accomplishments seems to be getting money from the Mozilla Foundation.

Her latest venture is Fight for the Future, a group whose hyperbolic headlines involving Justin Bieber — and a whopping $300,000 grant from the Media Democracy Fund (the organization, which has previously awarded grants to the New America Foundation and Public Knowledge, awarded less than $4 million total in grants for the previous five years) — helped it lead the charge against SOPA last winter. (According to this article, the key meeting between Fight for the Future and the other advocacy groups involved occurred November 9, 2011, at Mozilla headquarters.)

Marvin Ammori is an Affiliate Scholar at the Google-funded Stanford Center for Internet and Society. He’s also a legal fellow at the New America Foundation — a nonprofit group chaired by Google’s Eric Schmidt.  He also, by the way, represents Google. *

You wouldn’t know it by reading Boing Boing or other tech blogs — to them, Ammori is simply “a leading First Amendment scholar.” Perhaps this is because the connections between this subset of the tech world extends to the people who report on them.

For example, the author of this piece, Xeni Jardin, also happens to sit on the board for Global Voices Online, along with New America Foundation fellow Rebecca Mackinnon. In another shocking twist, one of the sponsors of Global Voices Online: Google.

In other words, this story reflects the insular community of tech companies, nonprofits, and lobbyists who contribute to the ongoing erosion of creator’s rights — and award themselves medals for their efforts. In their eyes, they are playing the role of the Rebel Alliance. What’s chilling is that they have cast anyone who disagrees with themselves as the evil Empire in this fantasy.

This isn’t about SOPA, or any other particular law. Rational minds can disagree over proposed legislation, debate it, look for compromise or even shelve it. That’s not what happened here. What happened here was a “win” by a specific, interconnected group with a specific worldview that is hostile to the hard-fought rights of creators. And if you don’t agree with this group, you are part of the dark side, an enemy of free speech, a dinosaur who doesn’t “get it.”

And you certainly don’t get any medals.

* Also among the medal winners: Derek Slater, policy analyst for Google (and formerly a fellow at the Google-funded Berkman Center for Internet and Society and intern at the EFF and Creative Commons).

###

[ THE 101 ] [NEW BOSS / OLD BOSS ] [ SPOTIFY ] [GROOVESHARK ] [ LARRY LESSIG ]
[ JOHN PERRY BARLOW ] [ HUMAN RIGHTS OF ARTISTS ] [ INFRINGEMENT IS THEFT ]
[ THE SKY IS RISING : MAGIC BEAVER EDITION ] [SF GATE BLUNDERS PIRACY FACTS ]
[ WHY ARENT MORE MUSICIANS WORKING ] [ ARTISTS FOR AN ETHICAL INTERNET ]

None Dare Call it Theft

Is copyright infringement theft?

It’s a good question to ask on the internet if you want to spark another round of an endless discussion.

Opponents of the “infringement = theft” argument will marshal an impressive array of arguments.

There are the semantic arguments: theft has a settled meaning that doesn’t apply to infringement (ignoring centuries of usage to the contrary).

Then there are the legal arguments: you can’t sue someone for copyright infringement under theft laws. Leaving aside the fact that there is no single “theft” law — statutes different from state to state and country to country — this distinction only matters if you’re a prosecutor; doesn’t dictate how words can be used in common parlance. And I don’t believe anyone is seriously making the argument that the goal of calling infringement theft is to eventually bring infringement actions under theft laws.

In a recent New York Times article, author Stuart P. Green adds his own arguments to the debate. While generally more eloquent than what you normally find online, they are still not so convincing.

Green begins with his explanation of how we got here:

From its earliest days, the crime of theft has been understood to involve the misappropriation of things real and tangible. For Caveman Bob to “steal” from Caveman Joe meant that Bob had taken something of value from Joe — say, his favorite club — and that Joe, crucially, no longer had it. Everyone recognized, at least intuitively, that theft constituted what can loosely be defined as a zero-sum game: what Bob gained, Joe lost.

When Industrial Age Bob and Joe started inventing less tangible things, like electricity, stocks, bonds and licenses, however, things got more complicated. What Bob took, Joe, in some sense, still had. So the law adjusted in ad hoc and at times inconsistent ways. Specialized doctrines were developed to cover the misappropriation of services (like a ride on a train), semi-tangibles (like the gas for streetlights) and true intangibles (like business goodwill).

Green goes on to lay the blame on the current debate on, of all things, the 1962 Model Penal Code (?!?).

While superficially appealing, this story is an over-simplification (as any two paragraph summary of thousands of years of history can be). One could just as easily fashion a Green-esque history of property law to make the claim that taking someone’s pet is not theft.

After all, for thousands of years pets weren’t treated as property — it wasn’t until the early 20th century (much later than the appearance of copyright law) that the common law recognized taking cats and dogs as larceny. And today, you can find those who will argue that pets should not be considered property. It shouldn’t be hard to find scholars who will claim that pets should be “free as the air to common use” — and it’s not hard to imagine a site like “PetDirt.com” pointing to stories about Michael Vick to prove that it’s harmful to allow people to claim ownership over animals.

But it’s not as simple as that. You can easily find exceptions to this narrative throughout history, and property law is always evolving.

Next, Green makes it sound like the description of copyright infringement as theft is a recent phenomenon:

With intangible assets like information, patents and copyrighted material playing an increasingly important role in the economy, lawyers and lobbyists for the movie and music industries, and their allies in Congress and at the Justice Department, sought to push the concept of theft beyond the basic principle of zero sum-ness.

This claim has a certain appeal to the conspiratorially-minded. But it’s simply wrong.

People have used theft language to describe copyright infringement long before now. In fact, referring to unauthorized copying as theft has occurred before the term “copyright” appeared in the English language. Centuries before, even.

For example, Martin Luther placed a “Warning to Printers” on the inside of his 1541 German translation of the Bible. The warning read:

SO feret der Geitz zu / vnd thut vnsern Buchdrückern diese schalckheit vnd büberey / Das andere flugs balde hernach drücken / Vnd also der unsern Erbeit vnd Vnkost berauben zu jrem Gewin / Welchs eine rechte grosse öffentliche Reuberey ist / die Gott auch wol straffen wird

Avarice now strikes / and plays this knavish trick on our printers whereby others are instantly reprinting [our translation] / and are thus depriving us of our work and expenses to their profit, / which is a downright public robbery / and will surely be punished by God

Later writers would use the term “piracy” to describe unauthorized reprinting and plagiarism, such as Elizabethan pamphleteer Thomas Dekker, who encouraged his readers in 1603 to “Banish these Word-pirates, (you sacred mistresses of learning) into the gulfe of Barbarisme.”

It would not be until 1710 that the first copyright law would be passed — England’s Statute of Anne (though interestingly, the term “copyright” does not appear in the law and would not enter the language until the 1730s.) Since then, it’s not hard to find a wide variety of sources describing infringement as theft.

Some examples: An 1858 article in the Journal of the Society of Arts says, “All the legislation which has taken place upon the subject of Copyright in England has proceeded upon the just theory that an author or artist has a property in his work. Where, therefore, a Copyright work is literally copied, or copied with merely colourable alterations, it seems difficult to distinguish the moral guilt of such a theft from that of picking a pocket, and consequently that such an act of piracy ought to be punishable as a criminal offence.”

This dictionary from 1861 defines “piracy” as “infringement of the law of copyright; literary theft.”

The editors of the Round Table, a weekly U.S. journal, petitioned Congress in 1866 for an international copyright law, saying “this license for literary theft (for it is nothing less than theft) is beginning to affect our own writers and publishers. American works are daily reprinted in England, and at a less cost than the original publications.”

Legal treatises routinely made use of theft language, such as this 1886 treatise from R.R. Bowker: “After the invention of printing, it became evident that new methods of procedure must be devised to enforce common law rights. Copyright became therefore the subject of statute law, by the passage of laws imposing penalties for a theft which, without such laws, could not be punished.”

A letter printed in an issue of the Literary World from 1899 made the case that “An author’s brain work is as exclusively his own stock in trade as is any other work of any other artisan of any kind. Stealing brain work is as much a theft as stealing handiwork. Any person of ordinary intelligence can understand this fact. The copyright of all such work is the author’s own. If he chooses to delegate rights to reporters, well and good. He may do this as he does to his publishers, by royalty or by sale, according to mutually approved terms. But any right assumed otherwise than by permission of the author is downright robbery, according to all high standards of morality.”

These are only a few examples. Since the early days of copyright, infringement was, “frequently equated with theft.”

Indeed, not only has infringement routinely been described as theft, some have argued that it is worse than stealing tangible property.

German philosopher Johann Gottlieb Fichte wrote in 1793:

[I]n consideration of the fact that anyone is a thief who usurps the use of others’ property for his own profit, then the reprinter is without doubt a thief. If, furthermore, a theft is the more heinous when it involves things which by their very nature cannot be kept under lock and key, then the reprinter’s theft is one of the most heinous, since it involves something which necessarily lies open to the public, like air and ether. And if, finally, a theft is all the more heinous the nobler the objects it is perpetrated on, then it is the most heinous of all when it involves things that are creations of the mind.

And an 1840 book, An Historical Sketch of the Law of Copyright, noted:

For the printing a work, the sole right to which belonged to another, was looked on as little better than theft, and punished accordingly. Indeed, it was said, that such conduct was worse than to enter a neighbour’s house and steal his goods: for negligence might be imputed to him for permitting the thief to enter: but in the case of piracy of Copyright, it was stealing a thing confided to the public honour.

+++++++

The ancient Romans defined larceny as “Contrectatio rei alienae, invito domino cujus illa fuit” — “a diversion of the thing of another, contrary to the will of him, to whom it belongs.” Copyright gives creators an exclusive right to copy, perform or display, and make derivative works of their works, and copyright infringement is an appropriation of these things against the will of the copyright holder. For as long as copyright has been recognized by law, authors, philosophers, legal theorists and judges, and the general public have described infringement using theft language. The arguments that it is wrong to do so ignore logic and history.

What’s more, these arguments ignore the harm copyright theft causes the general public. Just last month, a Phoenix Center for Advanced Legal and Economic Public Policy Studies report demonstrated how “The existence of IP theft—even when assuming theft is costless to affect, produces consumption goods of quality fully equal to those consumers pay for, and does not suppress labor supplied—results in a reduction in social welfare” and “reduction in the rates of theft of intellectual property would benefit society (producers and consumers).”

So why do these arguments continue? At a basic level, they generally stem from this idea: it is wrong to call infringement theft because the word “theft” has moral overtones. But this begs the question that infringement is never an immoral act. Clearly that’s not the case.

Of course, saying that it’s sometimes appropriate to call copyright infringement theft does not mean we’re required to describe every act of infringement as theft. Someone who writes a fan-fic of a popular book, posted online for free, may end up with a work that a jury might find infringes the original, but I doubt few people would consider this theft — some authors even encourage such acts. There are plenty of other examples of online behavior involving non-commercial copying or transformative uses that, if put in front of a court, would be considered infringement but nevertheless would find few willing to describe as theft. So it’s worth being careful when using theft language.

However, that doesn’t mean it’s never correct to call infringement theft. When a service like Grooveshark, for example, doesn’t “pay the artists, the labels and/or the songwriters for the use of the music that’s making them tons of money”, it’s fitting to say they “knowingly and willingly use a legal loophole to steal from artists and songwriters.” For services like these, which seek to profit off creators’ labor without permission, it is very helpful to create clever semantic arguments that make their behavior seem not as bad as it is.

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[ THE 101 ] [NEW BOSS / OLD BOSS ] [ SPOTIFY ] [GROOVESHARK ] [ LARRY LESSIG ]
[ JOHN PERRY BARLOW ] [ HUMAN RIGHTS OF ARTISTS ] [ INFRINGEMENT IS THEFT ]
[ THE SKY IS RISING : MAGIC BEAVER EDITION ] [SF GATE BLUNDERS PIRACY FACTS ]
[ WHY ARENT MORE MUSICIANS WORKING ] [ ARTISTS FOR AN ETHICAL INTERNET ]