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Intellectual
Paranoia
Amid
all the hoopla about fa mous people dying last week, the Supreme
Court announced that it was refusing to undo a federal appeals
court ruling that allows cable companies to offer customers
remote recording and playback of programs. People have, for
years, been able to use TiVo digital recorders and other set-top
boxes (often provided by cable companies) to digitally record
programs for later playback. But these systems involved a
hard drive that stored the programs in your living room, and
what the cable companies wanted to do was move that recording
function back to their own servers. The customer experience
would be exactly the same as before, although presumably cheaper
and more convenient, because you no longer needed a hunk of
hardware in your house. Doesn’t sound like that big a deal,
does it?
Of course, all of the big TV and movie studios went nutso
over this, claiming that the cable companies were somehow
stealing their programs by allowing customers to copy
the programs onto cable companies’ servers. That the Supreme
Court refused to hear the case may or may not be particularly
momentous, as the court generally takes up copyright issues
only every couple of years; perhaps they didn’t think this
one was big enough or ripe enough to warrant a second look.
What was interesting, though, was that the Obama administration
submitted a brief siding with the cable companies, one of
the first indications of where Obama’s going to come down
on intellectual-property issues. The Justice Department’s
IP lawyer hires have been mostly from Big Media-related organizations
and law firms, so it was heartening to see the administration
go the other way. In any event, expect your cable company
to be serving up some much-needed flexibility for your viewing
habits over the summer.
Of course, after the Supreme Court announced it would let
the ruling favoring cable companies stand, various Big Media
mouthpieces decried the decision as being detrimental to the
rights of “creators.” Yes, absolutely: It’s so very bad for
“creators” that it’s now easier for people to view the television
programs that they’ve already been paid for! Right.
It’s all part of the rhetoric of copyright issues. Big Media
trumpets the rights of “creators” when they’re actually talking
about execrable behemoths like Disney and Universal Music
Group. My favorite Big Media public relations ploy is labeling
anything that benefits the end user as a big conspiracy on
the part of some ephemeral conglomeration of evil computer
hardware and software people who are clandestinely plotting
to destroy intellectual property law for their own (dramatic
pause) profit. This twisted, paranoid, Rovian argument
basically takes the position that anything that allows people
to move information around more freely is bad. Mmhmm!
I’ve heard similar arguments being made about the perennially
proposed orphan works legislation, which would allow the use
of otherwise copyrighted works where a copyright owner can’t
be identified or located. I’ve heard plenty of people, who
should know better, refer to orphan works laws as some dark
conspiracy by nameless bureaucrats to invalidate artists’
copyrights!
Crazy talk like this does nothing but derail rational discussion
about the huge problem that was created when Congress decided
that everything that gets created by anybody for any purpose
was subject to automatic copyright protection for years after
the author has died. While the orphan works laws are problematic
for certain types of artists, the laws are a rational attempt
to at least emulate something resembling a public domain,
which has been stagnant since the copyright laws changed in
1978. And I know plenty of educators, writers, librarians,
archivists, historians, and, yes, even visual artists, who
can’t wait for Congress to finally move the orphan works laws
along. And they’re not evildoers, thieves, knaves or baddies.
They just want their culture back and want to be able to use
it without fear of getting their asses sued.
You may have heard about the Jammie Thomas file-sharing retrial
in Wisconsin. In her first trial, the jury banged her for
around $220,000 in damages for the 24 songs she allegedly
downloaded. On the retrial, represented by higher-profile
lawyers, the jury banged her for $1.9 million! D’oh!!! That’s
$80,000 per song, and the record companies’ actual damages
from the lost sale of a song is something south of 50 cents.
Ms. Thomas’ options now are to settle, or to appeal, or to
declare bankruptcy. And the latest news is that she ain’t
settling. The Thomas case does little more than underscore
how comically silly copyright law can be.
—Paul
Rapp
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