[DMCA-Activists] Jason Young: Best of Times or Worst of Times?

[Seth Johnson]

(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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