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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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