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[DMCA-Activists] Jason Young: Best of Times or Worst of Times?
From: |
Seth Johnson |
Subject: |
[DMCA-Activists] Jason Young: Best of Times or Worst of Times? |
Date: |
Sat, 05 Oct 2002 11:20:07 -0400 |
(Forwarded from No DMCA in Canada list. Jason draws a line
according to the notion of de minimus infringement. This
commentary goes through several interesting subject areas,
ending with Eldred vs. Ashcroft. -- Seth)
-------- Original Message --------
Date: Sat, 5 Oct 2002 09:44:08 -0400
From: Jason Young <address@hidden>
To: dmca <address@hidden>
My timing was bad on the article (a week after I wrote it,
the s. 92 report was tabled), plus I was sloppy in places,
so I ended up substantially rewriting it. It should be
clearer now.
Thanks again to all for the critiques.
Jason
---
Copyfight: A Tale of Two Cities
"It was the best of times, it was the worst of times", opens
Dickens' two-city tale of an eighteenth-century revolution,
but it is an equally apt commentary on the current state of
North American copyright. Napster is now officially dead,
but the battle to redraw the copyright bargain is just
heating up in Ottawa and Washington, D.C. For observers of
the so-called "copyfight", the question is whether the fall
season will be a spring of hope or a winter of despair.
On one side, we have the publishers; their position
frequently articulated by the likes of Jack Valenti, the
head of the Motion Picture Association of America. Valenti
is a colourful individual, fond of vituperative outbursts
and possessed of a silver tongue. He once claimed the VCR
"is to the American film producer and the American public
as the Boston strangler is to the woman home alone."
Valenti does not mince words nor does he split hairs. For
him, robbery on the high seas and downloading mp3s add up
to one and the same: piracy.
On the other side of the copyfight stands the public. No
one individual could be said to speak for the public
interest, largely because there are many, often
widely-divergent interests. John Perry Barlow, co-founder
of the Electronic Frontier Foundation, has called for the
abolition of intellectual property as an obsolete concept.
Richard Stallman, founder of the Free Software Foundation,
terms IP "evil" because it engenders a culture of
non-sharing. In 1996, Stallman wrote a science fiction
titled The Right to Read, in which he described a world - a
hundred years hence - when it would be a criminal offence
to loan a book to a friend. Only five years later and many
of Stallman's fictions have already come to pass, if not in
copyright than through contractually-enforced software code
- a kind of private copyright - or by criminal sanctions
attached to circumvention of technological protection of
digital content.
Last year, in language that reflected the preambles of the
WIPO Internet Treaties, Industry Canada and the Minister
for Canadian Heritage declared that changes needed to be
made to ensure that copyright continues to be "meaningful,
clear and balanced... in light of key digital copyright
issues." To stimulate discussion, the Intellectual Property
Policy Directorate published three consultation papers on
proposed amendments. The exercise garnered over 700 written
comments from interest groups and the public, many very
critical of the approach the United States has taken to
ratify the Internet Treaties by the Digital Millennium
Copyright Act [pdf], a road Parliament could easily go
down.
On October 3, the Canadian Minister of Industry tabled the
long-awaited s. 92 report to Parliament on the state of
copyright reform. The report is a review of digital
copyright issues and a distillation of the public
consultation process. Consequently, it covers a great deal
of ground, but makes few specific recommendations; these
will be left to the parliamentary oversight committee,
which is due to report next year. One of the more important
points the s. 92 report does make is that de minimis
copyright infringement, which has traditionally not
attracted criminal sanction, should not in future. If
Parliament agrees, this would be a significant departure
from the American approach under the DMCA. It is an
implicit recognition of the fault with Valenti's piracy
analogy which highlights the similarities between piracy
and infringement, "taking something without permission",
while ignoring the distinction between commercial theft, or
even economically substantial theft, and de minimis uses
such as that described in Stallman's dystopic vision.
Some jurists have argued [pdf] that the language of the WIPO
treaties is so broad as to not bind signatories with modern
copyright regimes - such as Canada - to any particular
provisions, but there is a sense among the public, who were
never consulted on the treaties, that the adoption of
certain conditions is a foregone conclusion. For example,
it is very likely that the government will introduce
criminal sanctions for circumvention of copy protection or
rights management mechanisms. Criminal sanctions for
commercial copyright infringement are also contemplated in
the language of the Council of Europe's Convention on
Cyber-crime, to which Canada is also a signatory.
In 1976, the Law Reform Commission of Canada noted that the
criminal sanction in copyright is a blunt instrument and
should be employed with great caution. Twenty-five years
later and publishers respond that the criminal sanction is
the only effective method of responding to large-scale
conspiracies to commit piracy in the digital, networked
environment. In effect, that harsh sanctions are
economically necessary. Even if that were true - which
appears to be long on assertion and short on proof - we
should stop and ask ourselves for whom is it economically
necessary? Canada is a net importer of intellectual
property from the U.S. Therefore, at some point, harsher
copyright laws can only benefit American content producers
at the expense of the Canadian public's pocketbook and the
economy as a whole. This statement should not be construed
as advocacy of theft, but rather an appeal to the
historical roots of copyright as a bargain between content
creators and the public; a balance between incentivizing
creation and the social benefits of a free flow of ideas.
An equally convincing argument is Stuart Beigel's assertion
that private personal copying has only increased in the
aftermath of stronger laws adopted since the late 1990's.
Biegel, author of Beyond Our Control, refers to the U.S.,
which lacks a specific private-copying exception. In a
jurisdiction like Canada, this argument carries even more
weight.
Meanwhile, in Washington, D.C., the U.S. Supreme Court will
hear arguments on whether copyrights should be granted for
something less than an eternity. In Eldred v. Ashcroft 239
F.3d 373 (D.C. Cir. 2001), the D.C. Circuit Court of
Appeals upheld the Sonny Bono Copyright Term Extension Act
[pdf], extending the term of copyright protection from 50
years after death of an author to 70 years, or from 75
years to 95 years for corporate copyright holders. Congress
based the extension on its power under Article I, Section 8
of the U.S. Constitution to secure for "limited times"
exclusive property rights for inventors and creators of
original works. The circuit court rejected a contention by
public interest groups that the extended period was longer
than needed "to promote the progress of science" and the
arts. The questions on which certiorari was granted are:
* 1. Did the D.C. Circuit err in holding that Congress has
the power under the Copyright Clause to extend
retrospectively the term of existing copyrights?
* 2. Is a law that extends the term of existing and future
copyrights "categorically immune from challenge under the
First Amendment"?
At stake is the monopoly on works still leveraged as
important sources of revenue by their, largely corporate,
owners. The best example, of course, is Mickey Mouse, who
would enter the public domain in 2003, but for the term
extension. Eric Eldred, the plaintiff, whose website
publishes rare, public domain books, objects to such
retroactive extensions as a backward-looking reward instead
of forward-looking incentive to create. Further, it is ultra
vires Congress' power to grant copyright for "limited
times". Those who support term extensions contend that
without copyright protection, creators could not afford to
be creative. They argue that this extension, the 14th in
the last 50 years, simply brings U.S. law closer to the
European norm.
Many observers think this will be the most important
copyright case in that country since the 1800's, but if the
Eric Eldred loses, it will be another defeat, in a string
of defeats, for the public. The Court hears oral arguments
in Eldred on October 9.
Note: Originally written for the New Queen's Counsel.
Revised 3 Oct to reflect tabling of s. 92 review.
Posted with links at:
http://www.lexinformatica.org/pn/modules.php?op=modload&name=News&file=article&sid=33&mode=thread&order=0&thold=0
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