[wordup] When Elephants Dance

[Adam Shand]

This is a nice piece of writing.  Nicely written, apparently well
documented and with a total respect for what copyright is actually
about.

Read, learn and enjoy.

Adam.

From: http://www.farces.com/stories/storyReader$414

When elephants dance

Posted by Michael Fraase, 3/23/02 at 9:54:46 PM.

[ed. note: Minor clarification changes have been made to this article
since it was published in its original form. For complete details, see
the revision history section at the bottom of the document.]

When elephants dance, it’s best to get out of the way. That’s exactly
what’s happening now as the entertainment industry—the recording,
publishing, and motion picture industries, mainly—attempts a worldwide
intellectual property power grab with two distinct targets. Think of it:
a coup and a lock on all published content in the same year, amazing
isn’t it?

Target number 1 is the average customer: anyone who purchases software,
an audio CD, an electronic book, or a movie on DVD. The entertainment
industry sees customers as pirates, plain and simple. In their
collective mind’s eye, we all have a wooden leg, eye patch, and a filthy
talking parrot on our shoulder. While the Copyright Act of 1790, Title
17, Chapter 1 of the U.S. Code , and subsequent judicial rulings grant
customers certain rights with regard to copyrighted material, the
entertainment industry very much wants to separate us from those rights.

Target number 2 in the sights of the entertainment industry are
technology behemoths like Microsoft, Intel, IBM, and Apple. These
companies, in the perverse worldview of the entertainment industry, make
the tools—computers mostly—that allow customers to practice their
piracy.

Let me point out that I am a copyright owner, as is everyone else who
has ever created a work in tangible form. That’s all authors, for short.
Authors are almost never members of the entertainment industry club. The
entertainment industry hates authors almost as much as they hate
customers. Sometimes, especially when authors get uppity, the
entertainment industry hates authors much more than customers. Until
recently, authors have always been seen to be at least a marginal threat
while customers were seen as merely necessary annoyances.

To complicate matters by at least an order of magnitude, the consumer
electronics manufacturers—the companies that make stereos, VCRs, and DVD
players—have aligned with the entertainment industry. At least some of
them, and at least to some extent.

Unfortunately for us—both authors and customers—we’re likely to get
squished as these elephants dance. The intent of the entertainment
industry, believe it or not, is to outlaw personal computers. As
security and cryptography expert Bruce Schneier explains it to Mike
Godwin : “If you think about it, the entertainment industry does not
want people to have computers; they’re too powerful, too flexible, and
too extensible. They want people to have Internet Entertainment
Platforms: televisions, VCRs, game consoles, etc.”

Copy-protected CDs

The recording industry is selling shiny plastic discs that contain music
that can’t be copied to or even played on some customers’ equipment.
Philips, the owner of the CD format says these discs cannot be called
CDs because they do not meet the standard of what a CD is. Sony, one of
those weird hybrid companies that, as a member in good standing of both
the technology and entertainment industries, finds itself on both sides
of this issue says it can’t guarantee the audio quality of these discs.
The technology used to protect these discs sometimes prevents the discs
from playing on computer CD-ROM drives, DVD players, and other devices
specifically designed to play standard audio CDs.

Sales of recorded music are down 10% in the United States over the last
year. The recording industry blames this downturn not on the economic
recession, not on the crappy music that they’ve released in the past few
years, but on Internet piracy.

And it’s only going to get worse. Hilary B. Rosen, president of the
Recording Industry Association of America (RIAA) told Congress on 28
February 2001 that the practice of copy-protecting audio CDs would
expand in the United States. “If technology can be used to pirate
copyrighted content,” Rosen wrote in her response to a Congressional
query, “shouldn’t technology likewise be used to protect copyrighted
content? Surely, no one can expect copyright owners to ignore what is
happening in the marketplace and fail to protect their creative works
because some people engage in copying just for their personal use.” Her
pal, Michael Eisner, head of Disney, said he was tired of being
“finessed” by the technology industry, whatever that means.

Unfortunately for Eisner, Rosen, Disney, and the RIAA, personal use—and
more importantly the rights associated with that use of copyrighted
material—is exactly why copying of copyrighted material is not just
allowed, but mandated by Title 17, Chapter 1, Section 107 of the U.S.
Code . That some individuals illegally sell copied CDs or distribute
copies of the music on the Internet is immaterial. In fact, fairly
casual observation indicates that if customers are treated like
criminals they will indeed begin to behave like criminals.

It has become common practice for music-loving computer owners to
legally transfer audio CDs they purchase to .mp3 format files on their
computers. The copy protection technology employed by the recording
industry prevents such transfers by adding distortions to the music of
the recordings. The industry insists that these distortions are
inaudible when the disc is played on a standard CD player but result in
pops when the music is transferred to a computer. In any case, it’s
usually impossible to tell whether or not a disc includes the copy
protection technology; in general, the copy-protected discs are not
labeled.

Ironically, or probably not, .mp3 player manufacturers could easily
defeat the copy protection technology, but they fear doing so would risk
prosecution under the Digital Millennium Copyright Act (DMCA) which
prohibits the bypassing of copy protection systems. In 1999, the Ninth
Circuit Court of Appeals ruled that .mp3 players did not violate
copyright law because customers have the right to “space shift” music
they have purchased.

Moral rights

Interestingly, the act of using the copy protection technology is much
more prevalent in Europe. Most European countries, unlike the United
States, recognize an artist’s “moral rights” in the work they create.

Moral rights are a package of intellectual property rights granted to
the original creator of a work, and include:

    * The right of integrity;
    * The right of attribution;
    * The right of disclosure;
    * The right to withdraw or retract;
* The right to reply to criticism.

These moral rights are separate from the economic copyright that these
days generally transfers from an author to a publisher and they can
survive the author. The idea originated with the French, who believe
that any creative work, by definition, includes the personality and
character of the author. Where copyright is a property right that can be
transferred, moral rights are part of the author’s personality and
character and non-transferable.

The first two moral rights—the right of integrity and the right of
attribution—are especially important because they are codified as
international law in the Berne Convention . The United States claims its
intellectual property law complies with the Berne Convention, but this
is just two instances where it doesn’t.

The most important of these rights is the first, the right of integrity.
Basically it prohibits an author’s work from being distorted in any way
that would harm the author’s reputation and dates to the 1957 French law
of “droit au respect de l'oeuvre.” It’s a safe bet that a
cross-reference over which the author had no control would be seen as a
distortion of the work.

Seemingly, in Europe at least, an artist could make an argument against
the production of a copy-protected version of her work on the sole basis
of moral rights. Especially in the case of an audio CD to which
distortion is intentionally added by the publisher.

In the United States, Representative Rick Boucher (D-Virginia) appears
to be taking the point position in questioning the behavior of the
entertainment industry. He believes that instead of using copyright to
obtain fair compensation for the works they’ve licensed, the copyright
owner industry—including the recording industry—is attempting to
“exercise complete dominance and total control of the copyrighted work.”

And just how much money does an artist receive in the form of royalties?
Use Moses Avalon’s royalty calculator to figure it out.

A DMCA rewrite?

Representative Rick Boucher (D-Virginia) plans to introduce legislation
that would regulate—and maybe outright ban—copy-protected compact discs.
Boucher reportedly has concerns about customers buying copy-protected
discs without knowing it and the compatibility problems inherent with
the copy protection mechanism. In an interview with Wired News , Boucher
said, “The big problem initially is that consumers have no information
that is complete and reliable about the disabilities which attend
copy-protected CDs. These CDs will not play in DVD players, not play on
personal computers (and) not even play on all CD players.”

Boucher isn’t talking about what kind of legislation he might introduce
to accomplish his goal of protecting audio CD customers, and the
possibilities are intriguing. At the simplest level, legislation may
require copy-protected CDs to carry a warning label. At a more
interesting level, Boucher may try to rewrite the DMCA. In fact, Boucher
announced that he would introduce such legislation last July and
reiterated his commitment to that approach in early March of this year.

Internet radio

Under the U.S. Copyright Office’s interpretation of the DMCA, Internet
radio may be a thing of the past. KFJC, KPIG, and RadioParadise may all
be goners. Why is this tragic? Because any of these stations are orders
of magnitude better than the sorry excuse for radio available on the
traditional dial.

Internet radio is routing around an obsolete and unaccountable
industry’s safely padded environs and making a difference. Corporate
radio sounds exactly the same from coast to coast because it is exactly
the same. Sit and watch that website for a few minutes; if it doesn’t
nauseate you, it’ll damn sure hypnotize you.

Adding to the arsenal of tools deployed by big media is the Copyright
Arbitration and Royalty Panel (CARP). CARP met secretly for the past
several months and issued the CARP Report in late February. The keystone
of this report is steep licensing fees for webcast music. Let’s be
clear: compulsory licensing is a good idea, consistent with the intent
of copyright law. Usury licensing fees for small webcasters is not.

KPIG responded almost immediately with a plea to “save the Pig from the
digital slaughterhouse:”

“Independent webcasters such as KPIG are facing a grave threat to our
existence. It may be an evil conspiracy on the part of the big record
companies and corporate webcasters, or—more likely—it’s just a dumb
mistake. In either case, KPIG could soon be liable for huge music usage
fees ($5,000 - $10,000 per month) that would make it impossible for us
to stay online. For background on the issue, see The Death of Web Radio?
below and the SaveInternetRadio.org website.

Doc Searls, in his article “ Bizarre vs. Bazaar ,” eloquently sums up
the combination of DMCA and CARP as “the destruction of the Net as a
commons and its replacement with a plumbing system for the distribution
of ‘content’ (a word hardly used in a shipping context before Big Media
got all drooly over The Promise of The Net).

A brief history of copyright

Copyright, until this recent entertainment industry power-grab, has
always been a delicate—maybe even precarious—balance between the rights
of the author to benefit from his or her work for a short period of time
and the rights of the rest of us to innovate and benefit from those
works when they fall into the public domain.

The Constitution granted Congress the 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.” Originally, the Copyright Act of 1790 established the
“limited times” of copyright protection of 14 years with an option for
the author to renew the copyright for an additional 14 years if he or
she were still alive. That copyright term was good enough for the first
100 years of intellectual property in the United States. During the next
100 years, Congress extended the copyright term 11 times.

Certain uses of a protected work that would ordinarily be seen as
infringing are specifically allowed for education, criticism, etc. These
uses are allowed under the “fair use” provision. The core concept of
fair use is that, in general, any use that does not exploit the
commercial value of the original is permissible.

The fair use statute recognizes four criteria by which a use can be
determined to be fair or unfair:

   1. The purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational purposes;
   2. The nature of the copyrighted work;
   3. The amount and substantiality of the portion used in relation to
the copyrighted wok as a whole; and
   4. The effect of the use upon the potential market for or value of
the copyrighted work. 

William S. Strong, in The Copyright Book: A Practical Guide, provides an
interpretation for working writers:

“As a general rule a critic or reporter should not quote at any one
point more than two or three paragraphs of a book or journal article, a
stanza of a poem, or a solitary chart or graph from a technical
treatise.”

The Net allows ordinary citizens to exercise their fair use rights in
ways never imagined by the entertainment industry. Subsequently, the
reaction is to pressure innovation by extending the copyright term for
any given work. In October, the U.S. Supreme Court will hear a case that
will likely determine the legitimacy of the most recent copyright term
extension, the Copyright Term Extension Act of 1998 . This law extends
the copyright term to the life of the author plus 70 years. In the case
of works made for hire in which a corporation owns the copyright, the
copyright term is now 95 years.

While one side of the entertainment industry was pushing, an activity
that eventually became the Copyright Term Extension Act of 1998, the
other side was pulling. That activity eventually resulted in the DMCA.
Designed specifically to control the uses that can be made of published
works, the DMCA makes it illegal to circumvent copyright-protection
technology. The result: the entertainment industry controls not only
what you see and hear but the methods and devices with which you see and
hear it. Even if the copy-protection is circumvented to enable the fair
use of a published work, it is prohibited and deemed to be a criminal
act.

Digital TV

According to Mike Godwin , digital television is the tipping point in
the war between the entertainment and technology industries. Never mind
that every time the entertainment industry shoots itself in the foot,
the technology industry comes to its rescue. Remember in the 1970s when
the movie industry was in a deep funk and that vampire Jack Valenti said
that VCRs would kill it for good? As it turns out, the VCR revived the
film industry. The film industry was failing not because of customer VCR
usage but because they were putting out epically craptacular films. Just
like the recording industry today—when in doubt blame those dang
customers.

Anyway, Godwin says digital television is the flashpoint because its
quality (technical, not artistic) is way too good and unlike DVDs, it’s
unencrypted and has to stay unencrypted to be useful. Oh, and the pesky
FCC regulations say that broadcast television signals must be sent
unencrypted.

The purveyors of digital television think they have the answer: digital
watermarks. They think that’s the answer for the online distribution of
music, and any other digital content as well. Unfortunately for them, in
order for a watermark to be used to restrict copying of digital content,
consumer devices used to play the content will have to have technology
included that’s capable of receiving those watermarks. That would
require the cooperation of the technology industry, and that cooperation
has not been forthcoming.

Godwin cites the theory of Edward Felten , a computer scientist at
Princeton, holding that any sort of tagging system that is undetectable
by the user will likely be easy to remove.

Digital rights management

Perhaps the weirdest part of all of this is that the technology industry
is just as enamored of protecting intellectual property. They’re just
going about it in a minimally different way. Digital rights management
(DRM) is the battle cry of the techheads. And where they differ from
their entertainment industry brethren is the question of government
mandates. The technology industry wants to lock up published content
just as badly as the entertainment industry; they just don’t want the
government (or anyone else) telling them that they have to. Remember
that the entertainment and technology industries both lobbied heavily in
favor of the DMCA.

And then there are the schizoids, the companies—like AOL Time Warner and
Sony—that are so large that they find themselves on both sides of the
fence depending which way the wind blows.

SSSCA > CBDTPA

The Security Systems Standards and Certification Act (SSSCA), kept on a
leash but regularly trotted out by Senator Fritz Hollings (D-South
Carolina), chair of the Senate Commerce Committee, can best be thought
of as a sort of appendix to the DCMA. It is clearly designed to further
extend legal protections for digital content owned or licensed by
enormous media conglomerates.

According to the draft language of the bill, it would be illegal to
create or distribute “any interactive digital device that does not
include and utilize certified security technologies” approved by the
Commerce Department. Even though MIT professor and RSA Data Security
co-founder Ron Rivest has referred to the proposed legislation as the
“Digital Rectal Thermometer Security Act” it’s really just mandatory
corporate welfare for media conglomerates subsidized by the actual
creators and consumers of intellectual property.

Felony penalties for distributing copyrighted material without the
“certified security technologies” fully enabled or using a computer that
circumvents those technologies are up to five years in prison and fines
up to US$500,000.

Even worse, the proposed legislation calls for manufacturers of digital
devices and the media conglomerates to collaboratively develop a copy
protection system. If, after two years, they can’t come up with a
mechanism both industries can live with, the federal government will
specify a standard. Hollings’ bill fails to include the actual creators
or users of content in any of the machinations.

Should we be surprised that four of Hollings’ top campaign donors are
media conglomerates?

Predictably, the politicians split along party lines over the SSSCA. Or,
more accurately, the split is along the lines of entertainment industry
campaign contributions . Democrats, who received US$24.2 million in
contributions from the entertainment industry tend to support the idea
of legislating the protection of copyrighted material in digital form.
Republicans, who received a relatively paltry US$13.3 million in
entertainment industry contributions usually oppose the SSSCA, claiming
it is too interventionist.

In mid-March 2002, the other shoe dropped. Senator Hollings, better
known as the Senator from Disney, transformed the SSSCA into the
Consumer Broadband and Digital Television Promotion Act (CBDTPA) and
ceased his tip-toeing around. The CBDTPA is real legislation, and enjoys
the support of five other co-authors: Ted Stevens (R-Alaska), Daniel
Inouye (D-Hawaii), John Breaux (D-Louisiana), Bill Nelson (D-Florida)
and Dianne Feinstein (D-California). Just think, one more author and
they could have been the seven dwarves. The CBDTPA would require all
digital devices—everything from fax machines to MP3 players and
computers (as well as the software that runs on them)—to be equipped
with embedded copy protection schemes, approved by the federal
government.

What’s most disturbing about this is relatively paltry sum it took to
buy this legislation. During the 2002 election cycle, only two of the
dirty half-dozen were in the top 20 recipients of soft money from the
entertainment industry. So far in the 2002 election cycle, Hollings has
received only US$19,000 and Stevens has taken only US$39,621. To get the
real story, we have to look back several election cycles:

<see web site for pretty table>

There’s no question why Fritz Hollings carried the water for this puppy,
is there? But check those senatorial links in the table carefully
because they tell the even bigger story of who the top contributing
industries were for each politician. In every case, the entertainment
industry scored big in the top 20 contributors for every Senator. And
remember the 2002 campaign cycle isn’t over yet. Not hardly.

So, how much does it cost to get your bill through the Senate? Looks to
me like it’ll come in right around US$1 million.

Enter DigitalConsumer.org

The technology industry was quick to respond to the CBDTPA threat by
launching DigitalConsumer.org and its attendant Consumer Technology Bill
of Rights . Launched by two of the co-founders of Excite,
DigitalConsumer.org is basically trying to protect the “fair use” rights
of customers in digital media. The group’s principles, outlined in the
Bill of Rights are deceptively simple:

   1. Users have the right to “time-shift” content that they have
legally acquired.
   2. Users have the right to “space-shift” content that they have
legally acquired.
   3. Users have the right to make backup copies of their content.
   4. Users have the right to use legally acquired content on the
platform of their choice.
   5. Users have the right to translate legally acquired content into
comparable formats.
   6. Users have the right to use technology in order to achieve the
rights previously mentioned. 

The depth and breadth of support this lobbying group will receive
remains to be seen. Some of the precepts are in direct conflict with the
interests of some of the largest technology industry members. Microsoft,
for example, almost certainly wants to be the digital rights management
company of record and is none too keen on, say, items 2, 3, 4, and 5.

A solution

The solution is actually quite simple and requires only four steps:

   1. Revert the term of copyright to 14 years, immediately and
retroactive to all existing works. Works created more than 14 years ago
would immediately revert to the public domain.
   2. Recognize moral rights in the works authors create, like every
other civilized country on the planet. Make it immediate and retroactive
to all existing works.
   3. Immediate repeal of the DMCA.
   4. Prohibit any corporation from owning a copyright. Corporations
create nothing; they’re consensual hallucinations and exist at our
pleasure. I don’t know about you, but I’m not much pleased any more. 

Because the fair use provision of Title 17, Chapter 1, Section 107 of
the U.S. Code , along with judicial findings (including those related to
time-shifting and space-shifting rights), adequately protect the rights
of consumers, there is no need for additional action in this area.

The basis of the problem is found in a single court ruling: Santa Clara
County v. Southern Pacific Railroad . In this 1886 dispute, the U.S.
Supreme Court found that a private corporation was a “natural person”
under the Constitution and enjoyed the same protections as a citizen
under the Bill of Rights. Corporations from that point forward were
granted all of the rights and freedoms of a private citizen, yet none of
the responsibilities. We made a mistake; hey, shit happens. It’s not too
late to fix it.

Revision history

29 March 2002: Changed appropriate references Constitution > U.S. Code.
Added recognition of fair use provision and judicial findings to “A
solution” section. Added repeal of DMCA to “A solution” section.

Extension and companion documents

Breakout of entertainment industry Senate campaign contributions:
Elephants dance with a little help from their friends

Documents in support and opposition: Riffing on When elephants dance

Prediction of CBDTPA companion bill in the House of Representatives:
When elephants waltz

The problem of works-made-for-hire: On corporations owning copyrights

CBDTPA as a negotiating tool: Michael Eisner’s financials and possible
smokescreen

Rep. Adam Schiff’s letter soliciting co-sponsorship of CBDTPA companion
in the House of Representatives: The other CBDTPA shoe drops

Explanation and extensive discussion of proposed solution: Forthcoming

Last update: Friday, March 29, 2002 at 10:45:07 AM
Copyright © 1993–2002 ARTS & FARCES LLC. All rights reserved.