Extreme copyright

My latest video illustrating with several examples how the recent tendency toward extreme copyright inhibits artists and ordinary people from creativity and participation in culture.

Note that this is not a video about weighing the merits of copyright, but looking at some of the more disturbing recent trends.

Here’s a transcript (added 2012-06-17):

In my last video I said there are a number of factors inhibiting ordinary people from participating in culture. Unfortunately today one of those is copyright. So in this video I will look at some examples of what I would describe as extreme copyright. I’m not trying to weigh the merits of copyright law here; what I want to do is focus in on what I think are some destructive recent tendencies.

Now in a way this seems cheap, because finding cases extreme copyright seems to me like shooting fish in a barrel. There’s a case almost every single day. I picked four cases and I’ll mention a few others because I wanted to give an idea of a range of what’s happening, and I oriented these around the United States. The United States is both perhaps the most active player in this area and also a powerful country that’s been pushing for changes to copyright law elsewhere in the world.

The first case I’ll look at is Capitol versus Thomas. For several years now, the Recording Industry Association of America, the RIAA, has been seeking out people who’ve been engaged in file-sharing and sending them letters demanding that they pay thousands of dollars or they will be sued for copyright infringement. The vast majority of people settle, and I think you’ll see why. But in this case the defendant didn’t settle, and the case went to court.

Jammie Thomas was accused by the RIAA of sharing twenty four songs. They don’t actually know whether anybody had actually downloaded those songs from her, but they did know that she’d made them – or they claimed that she’d made them – available for download by others. And juries agreed.

There ended up being three different trials. What I want to point to, however, is the jury awards, which were: for the first, twenty two thousand dollars, second one point nine two million, third one point five million. In two cases the judges said those numbers are absurd and reduced them to fifty four thousand dollars.

But in fact the RIAA said she didn’t actually share only twenty four songs: should actually shared seventeen hundred and two. They just chose to sue her for twenty four. If they’d soon her for all of those the penalties would have been extraordinary. Because they were using statutory damages – that is, not knowing exactly how much damage she might have done to their business, if any – the law provides for statutory minimums and maximums.

The minimum would be seven hundred and fifty dollars per count. Multiplied by one thousand seven hundred two, that produces about one point three million dollars in damages. So if they had sued her for all 1702, and the jury had found her guilty, the jury would have been obliged to hit her with penalties of at least one point three million.

But if we take the maximum figure that the juries picked out of the three awards, which was actually eighty thousand dollars per count, they would have awarded one hundred thirty six million dollars for sharing music for an ordinary person.

In reality there is not a lot of difference between these figures because if you’re an ordinary person and you get hit with penalties in the millions of dollars, it’s life-changing. That’s it: you can never pay it, it just turns your life upside-down.

Now the thing is, this is a civil case so although it it does look to me as if she was probably guilty, the burden of proof was only balance probability. So the jury thought it was probable that she had broken the law here, then they would have been obliged to award at least seven hundred and fifty dollars per count, and the penalties could have been as high as you see here.

What we’re seeing is that a law that was designed for institutions, designed to regulate the internal operation of industries, is being applied to individuals. And when that happens the penalties, I think, are extraordinarily disproportionate.

One of the reasons that is often given for such extreme damages is that infringement is so widespread that an example needs to be set of a few people. And that’s probably why the RIAA has said that they don’t want to accept the fifty four thousand dollar figure: they want a bigger example to discourage file-sharing. But despite several cases like this, file-sharing continues unabated. Fear of extreme penalties simply isn’t working.

The second case I want a look at is the dancing toddler. Stephanie Lenz was a mom. She was playing some music and her son was two years old. If you’ve had a two-year-old, the two-year-old hears music: he’ll start dancing. So she did the natural thing: she grabbed a videa camera and she taped it. And then she did the other natural thing: she wanted to share with friends and family, so she uploaded it to YouTube.

It turned out that the song was Let’s Go Crazy by Prince. Prince was not pleased, so he went to YouTube and said someone is infringing my copyright, take the video down. And YouTube did because in order to not be sued for copyright infringement under U.S. law, YouTube can protect itself by taking stuff down, simply based on an accusation – no proof needed. If that happens to you, though, and you want to get your material back up, you have to claim – under penalty of perjury – that you’re not infringing copyright.

Well, Lenz was incensed by this and she got a lawyer and she went to court and she sued Prince, or his record label, saying, Hey! This is ridiculous. This is reasonable under U.S. law. I should be allowed to do this. So far the court has been sympathetic. You can imagine, though, when it’s easier to get something taken down than it is to get it put back up, that this can be abused.

In the run-up to the 2008 U.S. election John McCain had this problem. Now John McCain actually voted for the law back in 1998. What happened in 2008 was that his campaign had some ads in which they use news footage. And the owners of the news footage, networks like CBS and Fox, issued take-down notices to YouTube. The material went offline.

McCain’s campaign responded and said, this is fair use under U.S. law: put it back
up. But there was a delay of ten days to two weeks. In an election that can be a long time. McCain’s solution was that, maybe politicians should have an exemption. You could imagine if this happens to John McCain, and an accusation merely needs to be made to to take something down, that there is a serious risk that ordinary people have stuff taking down frequently. And it has happened.

Now a similar problem has happened just in general with copyright being used to stop what are potentially creative works. So for example, Alice Randall in 2001 tried to publish a book called The Wind Done Gone, which was inspired by Margaret Mitchell’s famous Gone With the Wind. The Wind Done Gone, however, is from a slave’s point of view, and it avoids the names of the locations and the characters in the original Gone With the Wind. Nonetheless, her publisher was sued, and in the end she settled to pay an undisclosed sum to a charity, in return for which she was permitted to publish the book that she had written.

The point I want to make here is that it’s remarkably easy for copyright to stop artists and ordinary people from expressing themselves in original ways.

The third case i will look at is that of Mark Fiore. Mark Fiore is a political cartoonists, a caricaturist, which obviously I am not. Mark wanted to distribute his cartoons as an app in the App Store so that people with iPhones or iPads could download it. But the thing is, if you want to get something into the App Store you need Apple’s permission. And Apple said No.

One of the reasons they gave was that “it contains content that ridicules public figures.” Well, the guy is a cartoonist. If he’s not ridiculing public figures, he’s really not doing his job. In any case, he had also won a Pulitzer Prize for his work. When Steve Jobs found out about the uproar over this he said, Hey wait a minute – we’ll look at this one again. Resubmit your app to the App Store. And indeed it was approved.

Well of course the App Store belongs to Apple. Apple should decide what goes into the App Store. But: the App Store is also the only way to get something onto the iPhone or the iPad. If I am somebody who creates a piece of art or an application, and I want to give it to you know – so I’ve got a willing seller and a willing buyer – or perhaps i just want to give it to you for free, we can’t do it without Apples permission. Because Apple has a lock on the device They have a lock on what the iPhone you own or the iPad that I own is permitted to do. You can’t put software on those machines with Apples permission. Furthermore, if you try to work around the restriction that Apple has placed on the device – to work around their so called digital lock – you’ll be breaking copyright law: at least in the United States.

Here we have a case where copyright is being used to limit the ability of artists to distribute their work – and not at the behest of creators, but in the interests of the manufacturer of the technology. What Apple has done is it has used copyright law and digital locks to create a distribution channel over which it has complete control. Even if we own the devices, they still control them. Historically of course it’s through control of distribution that artists have been screwed over and over and over again.

In another case of this a couple of years ago, Amazon discovered that it had accidentally sold some copies of George Orwell books, Nineteen Eighty-Four and Animal Farm, that it shouldn’t have. So it went into the Kindles that people owned and it remotely deleted them without notifying them first. So this isn’t the first time that technology and digital locks is being used to control what people can read and what they can write and distribute.

Finally, I’m going to look at the case of Andrew Ainsworth, another creator. Now Mr Ainsworth in 1977 was involved in the design and the production of the original storm trooper masks for the first Star Wars movie. He’s not the only person who was involved in that mind you, there were other people: it was a collective effort.

To make a bit of money, recently Mr Ainsworth made copies the masks and he sold them and he made about thirty thousand dollars. When Lucasflim found out they sued him in California and the court awarded them thirty million dollars.

However, Mr Ainsworth lives in England, so this judgment was not enforcable there. So Lucasfilm went to England to sue. The court decided first that it was implied that the copyright, if it existed, would belong to Lucasfilm, even though there was no documentation to that effect. The second thing they decided was that the masks, in fact, were not covered by copyright – because they weren’t works of art. They weren’t sculptures. The masks, the court said, were tools. They were part of the process of making the movie. Therefore, as industrial designs their term of protection was much shorter, only fifteen years. So Ainsworth was not liable. Ainsworth, however, has a bit of a problem. If he ever goes to the United States, he could be hit with that thirty million dollar judgment.

Furthermore, it occurs to me that the mask looks to me like it could be a work of art. The court judged that it was effectively a tool. It could also be seen as fashion. If we see it as a tool, there’s no harm no foul here. If we see is the work of art, the penalty could be extraordinary. And if we see it as fashion – well fashion isn’t covered by copyright, so if it’s a hat, not a mask, there’s no problem.

What these four examples illustrate is that ordinary people and artists alike are vulnerable to having their lives turned upside down by copyright law. The line between being creative, which is good, and infringing copyright is a fine one that’s often decided only on a balance the probabilities. The consequences can be disastrous. Furthermore, while most ordinary people who infringe copyright are not caught, artists operate in public so they are. So they are either at most risk, or most likely be chased into the arms of corporations and organizations that can shield them from copyright.

How this happened, how did this come about? That’s something i want to talk about in a future video.

2011-09-02

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