Senator Orrin Hatch… And The Lies The Copyright Industry Tells

Politics

from the and-for-my-next-trick,-this-is-how-we-destroy-pirate-computers dept

In my last post, I walked through the misleading or outright false arguments by Rep. Wexler in defense of stronger copyrights. At the same event, Senator Orrin Hatch also spoke, and it’s worth responding to him as well.

You in this room are the artists, the innovators, and leaders of the world copyright industry. Not only do your artistic works continue to encourage the creation of new works that inspire and delight us, but also your industry is one of the few that consistently generates a positive balance of trade.

This assumes, incorrectly, that copyright is the sole reason for the creation of artistic works or that positive balance of trade. The evidence suggests otherwise. There are many reasons why people create. Some have nothing to do with monetary incentive — but even those that do have found that “copyright” is not the only way to make money, and, in fact may not be the best way to make money. Yet, those who do creative things are often limited by copyright.

Conversely, copyright piracy is the very antithesis of creativity — crippling growth and stifling innovation in its wake. Beyond the cost to the copyright industries, piracy negatively affects all aspects of our economy.

Yes, the “antithesis of creativity.” Folks like Ray Charles — who invented soul music, but did so by violating copyright law? Yes, stifling innovation. How about Kutiman, the amazing DJ who recently mashed up various YouTube clips to create something amazing and new. According to Hatch, this DJ is the antithesis of creativity? Crippling growth and stifling innovation? I’d argue exactly the opposite.

In fact, one study reports that each year, copyright piracy from motion pictures, sound recordings, business and entertainment software, and video games costs the U.S. economy $58 billion in total output, costs American workers 373,375 jobs and $16.3 billion in earnings, and costs federal, state, and local governments $2.6 billion in tax revenue.

Yet another study that has been debunked. The study, which Senator Hatch conveniently did not cite (wonder why…?) was actually written by the International Intellectual Property Alliance (IIPA), a group of companies who have benefited greatly from the intellectual monopolies, and clearly wish to extract additional monopoly rents. Their study has been widely discredited and debunked, and was recently the source of controversy after the Conference Board of Canada mistakenly relied on its results — which The Conference Board later withdrew and apologized for after realizing what a mistake it was to rely on those numbers. In the meantime, the only reason that research was used by The Conference Board was because the IIPA was upset with the actual numbers that showed copyright infringement really wasn’t that big of an issue.

The problems with those numbers have been discussed elsewhere in great detail, but the two biggest problems are that (1) they greatly inflate the number of unauthorized copies that would have been sales otherwise and (2) they simply ignore the other side of the coin in terms of who benefits from infringement. That is, the industry loves to talk about lost jobs or lost tax revenue from infringement, but they ignore that an infringing piece of software may make another company more productive, allowing it to hire more employees, produce more and pay more in taxes. I do not know if the net benefit outweighs the loss to the “copyright industry” but totally ignoring the other side of the coin makes the study worthless. To rely on such a number is folly.

Just a few weeks ago, the Congressional International Anti-Piracy Caucus, on which I serve as co-chairman, unveiled its 2009 Country Watch List identifying several countries with ineffective intellectual property protections.

For years, countries like China and Russia have been viewed as providing the least hospitable environments for the protection of intellectual property. But this year, it was particularly disappointing to see that Canada, one of America’s closest trading partners, was listed on the Watch List. This is another sobering reminder of how pervasive and how close to our borders copyright piracy has become in the global IP community.

The Country Watch List is based on the same bogus information in the IIPA report — and has also been thoroughly debunked. The IIPA has been pushing for sanctions against Canada for years, despite no real evidence of any real problem in Canada, and plenty of evidence that unauthorized copying is a very minor issue in Canada. In fact, some of the stats on Canada seem to be based on little more than hunches.

I would think, that as a respected Senator, Hatch would want to rely on non-biased, factual information — not information from an industry who stands to unfairly benefit from intellectual monopoly, and who has a long history of putting out false or deceptive numbers. Right?

Some of you have heard me say this before, but it bears repeating: There are many who do not understand that ideas, inventions, artistic works, and other commercially-viable products created out of one’s own mental processes deserve the same protection under the law as any other tangible product or piece of real estate.

Being ignorant of the purpose of property is no excuse for lying, Senator Hatch. If Senator Hatch wishes to treat ideas as tangible property, why not pass a law to do so? Copyright and patent law does no such thing. Furthermore, as the pro-copyright and pro-patent supporters often insist on this site, neither copyright nor patent law protects “ideas.” Copyright protects expression. Patent protects invention. We all know that those are somewhat arbitrary and misleading attempts to hide the fact that it really does put a limit on ideas, but it’s nice of Senator Hatch to admit it outright.

Furthermore, and more importantly, if Senator Hatch believes that “commercially-viable products created out of one’s own mental processes deserve the same protection under the law as any other tangible product or piece of real estate,” then clearly the Senator believes in the right to resell such property once you bought it, at a reasonable price. So if I buy a copy of a song by Senator Hatch, clearly, by his own words, I should have the right to resell it to others or to make a copy of it — just as I have the right to make a copy of a physical chair that I buy, or to resell the chair that I have bought.

Or did Senator Hatch not mean what he said? Did he really mean that only some property rights should be granted? That is, should we only grant property rights that favor big industries at the expense of both consumer and social welfare?

Appallingly, many believe that if they find it on the Internet then it must be free. I have heard some estimates cite no less than 80 percent of all Internet traffic comprises copyright-infringing files on peer-to-peer networks.

Ah, a misleading demonization. Senator Hatch has “heard some estimates.” Why not cite them so that they can be responded to accurately? Perhaps because Senator Hatch knows they do not hold up under scrutiny.

That is why the Pirate Bay case is so important. While the decision does not solve the problem of piracy and unauthorized file sharing, it certainly is a legal victory and one that sends a strong message that such behavior will not be tolerated.

I’m sure the Senator is quite busy, so perhaps he missed the “strong message” that was actually sent: a biased judge sided against a search engine claiming it was responsible for the actions of its users. From that, thousands of people recognized that this was a patently ridiculous scenario, and signed up as members of a political party designed to protect consumer civil rights — allowing them to win a surprise seat in the European Parliament. Quite a strong message. It seems to be the opposite of the one Senator Hatch thinks was given.

I strongly believe that if we’re going to be successful in this fast-paced digital age, a solid partnership between the copyright community and the Internet Service Providers is crucial. I am confident that such a partnership can break up the current viral spread of copyrighted works on the Net.

Many countries have begun to take action by working closely with ISPs to curb online piracy. For example, France has adopted a three strikes law, which calls for ISPs to suspend a subscriber’s service if they are accused three times of pirating copyrighted material. Across the globe, from Japan to the UK, from Australia to Brazil, there have been engaging discussions within the industry on how best to proceed on this front.

In the United States, I am encouraged with the developments that have transpired between content owners and some ISPs. Obviously, we still have a ways to go, but we are seeing a promising level of participation within the industry. I believe a flexible and free-market solution is essential if we are to be successful in this endeavor. As more of these discussions turn into actions, it is vital that these principles remain front and center.

To be fair, Hatch’s speech was given the day before France tossed out the three strikes law as unconstitutional — but that should still be instructive. The EU Parliament has made clear that cutting users off from the internet connections, especially based solely on industry accusations of infringement, represents a serious breach of civil rights. That a US Senator would support such a “guilty without proof” setup is quite troubling, and raises serious questions about his understanding of our constitutional rights.

As for being “encouraged” by the developments between content owners and ISPs at home, does he meant the fact that not a single ISP has agreed to sign up for the RIAA’s three strikes program? That, at least, is encouraging to me.

On a side note, there is another benefit of stopping online piracy that is often overlooked. By reducing some of the infringing content online, the networks will be more efficient, thereby making more broadband capacity available for paying customers

On a side note, there is another benefit to forcing all automobiles to travel no faster than 5 mph with a man waving a red flag in front of them that is often overlooked. By reducing some of the speeding automobile traffic on roads, the roads will be more efficient, thereby making more road capacity available for drivers.

Do you see the logical fallacy? The broadband infrastructure can handle much greater traffic. Purposely limiting it doesn’t increase efficiency. It does the opposite.

I am reminded of the time when Senator Leahy and I worked together on the Berne Convention Implementation Act of 1988, which made the United States a party to the Berne Convention for the Protection of Literary and Artistic Works. Passage of this law extended copyright protections beyond our borders to the worldwide coverage by the multilateral treaty.

And we are all worse off for it. Many scholars who have noticed the damaging effects of agreeing to the Berne Convention standards are quite concerned about what that has done to copyright. It has extended it well beyond reason. It has gutted the important public domain. It has hindered the ability of creative efforts. It was a horrible mistake by almost any measure.

When we passed the Digital Millennium Copyright Act in 1998, one of my goals was to address the problems caused when copyrighted works are disseminated through the Internet and other electronic transmissions without the authority of the copyright owner.

By establishing clear rules of the road, the Digital Millennium Copyright Act served as the catalyst that has allowed electronic commerce to flourish. I believe the DMCA, while not perfect, has nonetheless played a key role in moving our nation’s copyright law into the digital age.

If by doing things like allowing security researchers to face lawsuits for finding problems in DRM and e-voting software, then yes, it’s moved us into the digital age. If you mean by allowing all sorts of companies to use anti-circumvention provisions not to protect copyright, but to stop competition, then yes, you are right. If you mean by allowing people to issue takedowns on content they don’t like, then yes, you are right.

But most of us don’t consider those to be good things.

In 1998, Congress also passed the Sony Bono Copyright Term Extension Act to ensure adequate protection for American works abroad by extending the U.S. term of copyright protection for an additional 20 years. This bill made certain that America maintained its international trading advantage by keeping pace with emerging international standards.

The Constitution says that copyright should be for a limited time — initially 28 years. You have made a mockery of that, by now extending it to life plus 70 years. That “additional 20 years” created massive harm, locking up tons of content that lies useless that should be in the public domain. And for what? To keep Mickey Mouse from being in the public domain (while still protected by trademark law)? And those “emerging international standards” are nothing more than an industry-driven sham, designed to create a game of leapfrog. They first push one country to extend copyright, and then insist that we too need to extend ours to “keep pace with international standards.” It’s happening once again in Europe, with the push to extend performance rights. This is not “keeping pace with international standards,” it’s a handout to the entertainment industry that harms emerging artists.

Let me say a few words about the Performance Rights legislation. It is time to amend copyright law to establish performance rights in sound recordings. Some people are under the wrong impression that everyone in the music industry is making a fortune, but they are not aware that all too often it is a struggle to survive.

I believe that artists should be compensated for their work. This is an issue of fairness and equity. I agree with the position of the Department of Commerce Working Group on Intellectual Property Rights, which reported that the lack of a performance right in sound recordings is “an historical anomaly that does not have a strong policy justification … and certainly not a legal one.”

No one is claiming that everyone in the music industry is making a fortune. Why even bring up that as a strawman? And no one has said artists should not be compensated for their work. What we’re saying is they should earn via a business model, not a tax on radio stations. Why do you support taxing radio stations? Weren’t you just talking about the importance of not harming creative industries in this economic time?

Last year, the Senate unanimously passed bipartisan legislation to encourage the use of orphan works — works that may be protected by copyright but whose owners cannot be identified or located. Countless artistic creations — books, photos, paintings and music — around the country are effectively locked away and unavailable for the general public to enjoy because the owner of the copyright for the work is unknown.

Unfortunately, it often isn’t easy to identify or find these owners of copyrighted work. To make matters worse, many are discouraged or reluctant to use these works out of fear of being sued should the owner eventually step forward.

Senator Hatch, do you not realize that the very problem of orphan works is due to your proud support of things like the Berne Convention standards and the Copyright Term Extension Act? Without those, orphan works are not much of a problem at all.

This is more of the same from Senator Hatch. Playing up the supposed benefits based on biased studies and information and ignoring all the harm caused. Any chance he’ll reintroduce his plan to destroy the computers of people accused of infringing? That won him lots of fans last time.

Filed Under: copyright, senator orrin hatch, world copyright summit