GOP gaffe on copyright reform corrected in record time

As Michael Kinsley tells us, a “gaffe” is what we call it when a politician tells the truth. A couple of days ago, the Republican Study Committee committed some truth in a widely praised position paper called Three Myths about Copyright Law and Where to Start to Fix It. In that paper, author Derek S. Khanna argues for such level-headed changes as:

  • Statutory damages reform
  • Expand fair use
  • Punish false copyright claims
  • Heavily limit the terms for copyright, and create disincentives for renewal

Well, as we also know, no good deed goes unpunished. In less time than it takes to say “Boston Strangler”, the RIAA and MPAA check-writers convinced the Republican Study Committee that the paper escaped “without adequate review” (that is, without review by the RIAA and MPAA). The RSC link to the paper now connects to a blank page, but you can find the original report here and here. For excellent summaries of the report, see Mike Masnick’s original Techdirt article and Peter Brantley’s blog for Publishers Weekly.


Chris O’Brien’s 4-part program to “move the piracy debate forward”

Mercury News columnist Chris O’Brien asks, “After SOPA defeat, how can we move the piracy debate forward?“. He answers his own question with a 4-part program:

  1. Cool the rhetoric.
  2. Get better data.
  3. Be transparent.
  4. Avoid politics.

What’s not to like? So let’s look at some details.

Cool the rhetoric. O’Brien says, “It’s unhelpful and dangerous to take a heated situation and try to escalate it to nuclear levels.” As examples, he points to a blog headlined “Kill Hollywood” as well as Chris Dodd’s threat to withhold political contributions from President Obama and from legislators who wouldn’t stay bought. Good advice, but let me add a few more suggestions:

  • Stop using the word “piracy”. Pirates wield AK-47s, hijack ships, and kill people. Even Kim Dotcom hasn’t been accused of any of these (except maybe a virtual AK-47 in Modern Warfare 3).
  • Also stop talking about “content theft” and “stealing”. “Content theft” is when someone steals the CD you bought. The issue here is copyright infringement, which is when someone copies the CD you bought. One way to tell the difference is that stealing the CD is punishable by a small fine and/or a few months in jail, while copying the CD is punishable by a fine of up to $2.5 million plus a year in jail.
  • And stop equating copyright infringement with counterfeiting. In particular, stop suggesting that unauthorized sharing of movies has anything to do with deaths from phony pharmaceuticals. If you can’t tell The Dark Knight from the dark night, let someone else take over the argument.

Get better data. As O’Brien observes, “opponents simply don’t believe the content industry’s claims,” and not without reason: PolitiFact’s Truth-O-Meter recently said “False” to chief SOPA sponsor Lamar Smith’s oft-repeated claim that “Illegal counterfeiting and piracy costs the U.S. economy $100 billion every year.” So, yes, by all means, let’s do the numbers, but let’s do them right:

  • Don’t count each unauthorized download as a lost sale. That assumption violates common sense and everything we know about human nature.
  • Measure ends, not means. Copyright exists for exactly one reason, “to promote the progress of science and useful arts”. When you hear “financial rewards for the creation of art”, remember that money is the means, not the end. It’s the goal of Copyright to create as much art as possible, not to generate as much money as possible.
  • Don’t presume the existing business model and don’t narrowly define the music business or the movie business. The music business is not the commercial labels; the movie business is not Hollywood. For help avoiding legacy-business-induced myopia, read The Sky Is Rising by Michael Masnick and Michael Ho.

Be transparent. That is, avoid back-room deals. O’Brien suggests posting proposals for all to read and comment on, and carrying out negotiations and discussions in the light of day. To which I’d add:

  • Put an end to the ongoing secret negotiations and arm-twisting related to ACTA and TPP. One reason no one trusts the entertainment industry is that, even after decades of laws strengthening copyright, there always seems to be one more working its way through the system, which emerges as a fully developed fait accompli. A transparent post-SOPA discussion is pointless if a secret parallel agenda is being pursued at the same time by one of the parties.

Avoid politics. In O’Brien’s words, “Any dialogue will likely have to come from outside Congress.” Venture capitalist Fred Wilson made the same point a few days ago in the context of his proposal to create a blacklist/whitelist approach to Web-site blocking:

  • “We don’t need legislation. We need a negotiated solution between the tech industry and content industry. The minute you introduce Washington and lawyers and courts, it’s war. I don’t think that’s where we want to solve this problem. Let’s solve this problem in boardrooms and meeting rooms, not in Washington.”

We’re seeing more and more of these “Where do we go from here?” articles, and O’Brien’s provides another increment of grist. Sooner or later the mill will start turning again.


Do not pass Go, just collect $750 million

According to Billboard, Paul McGuinness is angry at Google. He’s manager of the music group U2 and wants Google and other Internet service providers to find ways to prevent “piracy”. He’s also angry with Google’s role in the recent anti-SOPA uprising: “Never underestimate the ability of a monopoly to defend itself.”


Well, let’s see. A monopoly is “a company or group having exclusive control over a commodity or service”.

Paul, let’s try an experiment. Do you see where it says “google” at the top of your screen? Type “bing” instead and hit Return. See? Now you’re searching the Web without using Google. That’s not how a monopoly works.

Do you want to see a monopoly, Paul? Got a CD handy? See the fine print about unauthorized duplication being punishable by law? Or grab a DVD and watch the first few seconds rather than running off to get a snack. See the warning about federal prison and huge fines?

That’s what a monopoly looks like, Paul, a government-granted and government-enforced monopoly, where “Go to jail” really means jail and there’s no free out. Your own business model is based on monopoly control, Paul. Maybe that’s why you see monopolies wherever you look.

And speaking of your business, business has been pretty good, hasn’t it? U2 just completed a 2-year tour that grossed nearly $750 million in ticket sales alone. That’s three-quarters of a billion dollars, and doesn’t begin to count CD sales and other merchandise.

Damn those pirates!


Mean$, End$, and Congre$$

We have Copyright law in the U.S. because of these 31 words:

Congress shall have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

That’s from the Constitution, Article I, Section 8.

Let’s do some basic parsing of that sentence:

Ends: Promote the progress of science and useful arts.

Means: Securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

The recent and ongoing attempts by Congress to fight “piracy” have paid no attention to the ends of Copyright law, just the means: Our elected representatives are not wringing their hands about the amount of content produced or consumed, but about the billions of dollars purportedly diverted from entrenched revenue flows. No surprise here; Congress follows the money.

Ah, yes, the money. More than one commentator, and even the Government Accountability Office, have questioned the entertainment industry’s sky-high figures on the cost of “piracy” to their companies and to the U.S. economy.

Well, today the smog has cleared and we can breathe some fresh air. In a comprehensive study, Michael Masnick and Michael Ho conclude that “The Sky is Rising”:

Contrary to the dire warnings of the legacy entertainment industry players, the market is booming, with ever greater content choices for consumers, more options for creators, and many more opportunities for smart businesses & artists to make money. More content creators are producing more content than ever before — and are more able to make money off of their content than ever before.  On top of that, consumers are living in a time of absolute abundance and choice — a time where content is plentiful in mass quantities, leading to a true renaissance for them.

The 35-page report covers video, book publishing, music, and games, and includes delightful case studies ranging from Louis CK’s 12-day million-dollar payoff to the Humble Indie Bundle that’s taking the game industry by storm.

Hollywood loves sequels, and when SOPA and PIPA made their exit, attentive audience members heard them whisper, “We’ll be back!” Next time, though, they’re likely to be upstaged by a new arrival.


Similes swarm like flies

At the height of SOPAStrike, the simile stream was like a river. Passing the legislation would be

  • like using a sledgehammer instead of a scalpel.
  • like curing a sore throat with a guillotine.
  • like going after gophers with nuclear weapons.
  • like banning cars because robbers use them to escape the scene.
  • like the gestapo policing the Internet (validating Godwin’s Law).
  • like the Red Scare all over again.
  • like using cement to prevent teen pregnancy (which loses a little in the translation from Jon Stewart).

This list barely scratches the metaphorical surface. Time will tell which memes have staying power.

Wikipedia had barely gone un-black when the Megaupload shutdown hit the news.The FBI disgorged a list of allegations as long as your arm against Kim Dotcom and friends, but cries from those collaterally damaged arose almost immediately. To the “hundreds of thousands, possibly millions” of legitimate Megaupload users who’ve lost content, distribution channel, or both, the server seizure was

  • like killing schools of dolphin to catch 4 tuna.
  • like accusing a banker of fraud and impounding customers’ safe-deposit boxes.
  • like demolishing New York City because drugs and illegal weapons are being sold within its city limits.

Which brings us to today and my current best-of-breed, courtesy Bob Cringely:

  • like renting an apartment and coming home one day to find the police have locked you out and impounded your furniture because your landlord was operating an illegal poker game in the basement.

Like poetry.