Friday, May 16, 2008

The Anti-Piracy Scam: Canada Insulted Again

The Congressional International Anti-Piracy Caucus (IPAC) was established in October 2003. Its website states: " The Congressional International Anti-Piracy Caucus is a bipartisan and bicameral group committed to protecting American intellectual property and reducing the scourge of piracy abroad." It is hard to argue with such Motherhood and Apple Pie concerns.

The caucus made the news yesterday with a purported news release. I say purported not because I question the existence of the release, but because the news release hasn't been released on the caucus' website, but rather is reported on at the RIAA's website, here. The RIAA reports:

The co-chairs of the Congressional International Anti-Piracy Caucus (IAPC) today released theirPriority Country List” today highlighting some of the most pressing problems confronting the American creative community in global commerce.

Joining China and Russia in “the ignominious three” is Canada which, notwithstanding numerous public announcements, has failed to join the rest of its partners in the developed world in modernizing its copyright laws to address the challenges -- and to seize the opportunities -- of the digital age.

No quotes from the caucus are provided, however, so it is not possible to know what the caucus itself said, rather than what RIAA says. But this much seems clear: the addition of Canada well illustrates a cancer in discussions over copyright: RIAA is referring to its desire to have Canada adopt of the anti-circumvention and digital rights management provisions of chapter 12 of title 17. (It should be noted that despite chapter 12 being in title 17, chapter 12 is not a copyright provision, but is rather sui generis, like semiconductor chips, bootlegs, and vessel boat hulls. So even in the U.S., we have not implemented the 1996 WIPO treaties under our copyright laws.).

I have pointed out repeatedly that chapter 12 of title 17 has nothing to do with piracy. (See here and here). Instead, as Professor Tarleton Gillespie fully explained in "Wired Shut: Copyright and the Shape of Digital Culture" (reviewed in this blog post), chapter 12 is concerned with creating and controlling access, to creating a command and control business model in which U.S. corporations will be able to change, fundamentally the way we interact with culture; specifically toward a pay per view, pay per listen, or pay per read world in which we will never own a copy of a work, in which a combination of technological protection measures and the power to override limitations on copyright through contract -- made possible by the Seventh Circuit's ProCD opinion -- means we will all be licensees, subjects to whatever terms and conditions are unilaterally imposed, and which cannot be circumvented on pain of criminal prosecution brought on behalf of a government that is "Pro-IP."

What governments need to understand is how enacting what U.S. corporations are demanding of them will work in practice. In ordinary legislation, a bill is drafted, its provisions are laid bare, and can be debated. The effect the provision can have may be debated, but ultimately the legislature makes a policy decision, and a law is passed. Those who are affected by the provision can read it (or have their lawyers read it) and determine how to shape their conduct to comply with the provisions' mandates. Those mandates cannot be expanded or changed except by another act of the legislature. DRMs and TMPs work very differently. Chapter 12 of title 17 delegates law-making power to the private sector.

It is the private sector - to be specific, U.S. corporate interests -- that will determine, on a rolling, ever changing basis what conduct will be permitted; this includes what playback devices (e.g., DVD players, CD players, music and video enabled phones) can come to market and what functionalities they will have or not have; it also includes what uses we can make of lawfully acquired works: you buy a lawfully made DVD in England, sorry you can't play it in Canada; you purchased a download of a song, sorry you can listen to it only three times, or only on this device; you buy an eBook; sorry, you "bought" it only for two weeks, and only for play on a specific device (e.g., Kindle). None of this requires legislative approval: all of it -- and much much worse -- can be controlled through the rights granted in chapter 12 because those rights are rights to control access, broadly speaking and without being tied to acts that would otherwise violate the exclusive rights granted by copyright. Once chapter 12 is implemented into domestic law, it is U.S. corporate copyright interests that will shape what consumer goods can be used in your country and how citizens of your country will be able to access and use lawfully acquired copies of works. No legislature that is amending its copyright law should do so without understanding the momentous delegation of power they are handing to U.S. corporate interests.

This is not a piracy issue, it is nothing remotely resembling piracy. It is Orwellian to claim otherwise. The designation of Canada as a scofflaw because it hasn't implemented chapter 12 of title 17 is not only an abuse of language, but also a direct attack on the sovereignty of another country to determine what is in the public interest of its own citizens. Canada has more than adequate laws against real piracy, and as Howard Knopf had pointed out, its laws are more generous toward authors than is U.S. law.
No legislature in the world should abdicate its responsibility to protect the public interest by vesting the private sector with the powers granted in chapter 12 of title 17. But Canadian abdication is exactly what is being proposed by U.S. interests, the false justification being that Canada is a pirate haven because it hasn't implemented the U.S. DMCA.

There is a very real danger that the false use of piracy as a stalking horse for the DMCA will succeed, and that of course is precisely why it is being employed. Members of Congress and parliaments (including the well-meaning members of the Congressional
International Anti-Piracy Caucus) are of necessity generalists. They rely, of necessity, on specialists, both inside the government and in the private sector, to provide them with an honest presentation of the facts, the law, and the policies involved. This is why the misuse of language, the mischaracterization of international obligations, and the false association of DRMs and TPMs with piracy is so deadly, and why I complain about it so loudly and frequently. I support fully efforts to combat piracy in the usual sense of that word, in the sense the members of the Congressional International Anti-Piracy Caucus understand that word: the massive, commercial, unauthorized reproduction of copyrighted works. But this is not the sense in which U.S. corporate interests are now using the word; instead piracy has become a synonym for our DMCA, and on that score, I object. Let U.S. corporate interests make their case for our DMCA honestly, on the merits, without falsely impugning the state of the law in other countries with the scare tactic of piracy. If they have a good case, they can make it, but let's at least be honest about what is on the table.


Dmcgowan said...

Your "delegation of power" frame reminds me of Felix Cohen (which I mean as a compliment), though I think I disagree with you as to the implications of that frame.

ProCD is now twelve years old, and the DMCA ten. I do not think they have in fact brought about a state of impoverished public discourse, or corporate enslavement of culture. Is that the way you perceive things to be now?

Characterizing transactions as licenses rather than sales seems to me to relate most directly to price discrimination, which both captures consumer surplus and allows sales to lower-valuing buyers, a combination that could be argued as desirable or not, but which seems to me far from cultural enslavement.

The same seems true regarding what Benkler would refer to as the granularity of transactions--leases or per-use pricing rather than sales. I think it is a good thing that I can buy only one song from an album, and would be good as well if I had the option to buy or lease it.

Assuming differential prices for purchases, long-term leases, and single viewings, I don't see why such a schedule is obviously bad for users, or for downstream authors. I would in any event hesitate to infer market power from a statute, and hesitate longer to infer abuse of that power.

It is of course impossible to compare very well our present state of affairs to what would have happened had courts refused to enforce forms, or had Congress not enacted access controls, so opportunity cost arguments are always available. I just wonder what reason there is to think the cost is in fact very high.

I do agree that candor is desirable in political debate. I just don't expect it.

David McGowan
University of San Diego

William Patry said...

Here is a link to Jon Healey's blog in the LA Times, which is a nice piece and has other links to relevant documents he assiduously collected:

William Patry said...

Thanks for you thoughtful remarks professor McGowan. Judges Easterbrook and Posner would no doubt agree with you on price discrimination; Judge Easterbrook seems particularly keen on preventing what he calls arbitrage in this area. My beef (spoken as a vegetarian) is not with contracts or with price discrimination at all, but rather with how that interacts with delegation of legislative powers backed up by very strong civil and criminal penalties, and that is what the DMCA does.

I am all for the free market: if copyright owners want to copy protect their works, saddle them with DRMs, and generally make them unattractive to consumers, that is their choice. My problem comes when the government translates market decisions into civil and criminal laws, directly and through delegated powers. Without chapter 12, if I wanted to engage in fair use of something I purchased that was designated as a license, I could, and be subject at best to a contract suit. So no, to answer what I assume was a rhetorical flourish, Pro CD has not by itself brought about the end of Western civilization.

But with chapter 12, things change. I am sure you recall the RIAA threats to Ed Felten. I think most everyone would describe such steps as impoverishing public discourse. Where you cannot circumvent regional coding on pain of criminal prosecution, it does diminish one's cultural experience. When copyright owners send take down notices to suppress criticism, not to enforce rights -- as they have in droves -- our experiences are impoverished. Just go to the Chilling Effects website to see hundreds of examples.

Ditto with consumer goods: why shouldn't by DVD player have a record button? Why shouldn't I be able to upload to my video iPod the lawfully purchased DVDs I own, and which by the way aren't available for purchase on iTunes. We only avoided the DMCA being applied to garage door openers and toner cartridges by the courts' willingness to ignore the statute and make their policy; is this the world we want to export, is this what we mean when we thump our chests and call other nations havens for piracy? The answer by the way is yes, it is what the content industries mean. I say, let's just admit this is what we mean.

Anonymous said...

What artist or author would be remotely interested in the level of control that copyright aggregators have bought for themselves in Chapter 12. It's not just users v. owners. Somewhere in the middle, like the small child watching parents argue, stand the disassociated human authors for whom this entire structure was raised with a notion of incentivizing his or her creative work and contributions to culture. It is so ugly to watch the aggregators trounce around and so ironic that their wealth and power come from people largely devoted to creating beauty.

William Patry said...

Well put indeed, Anonymus

Dmcgowan said...

My compliments on an eloquent reply.

I would point out that, to me, at least, you argue more in terms of rights and freedom than in terms of consequences. There is nothing wrong with that, but I wonder how it fits in with your view that copyright is instrumental, rather than rights-ish.

Three small examples. As I recall, Felten sued for dec relief, and the suit was dismissed because the RIAA resolutely denied that it intended to pursue him. The C&D letter in the case was itself fairly well-hedged, perhaps the result of an uncertain author.

In any event, under Cohen v. Cowles media you could have achieved the same chilling effect (specific performance, though perhaps a court might deny that on equitable grounds) by a cogently drafted contract, so I wonder about the size of the incremental harm from the statute in that case.

It also seems to me that the reproduction right itself, which no one has to assert (Microstar v. Formgen is an example of a hybrid strategy), represents governmental translation of market choices into civil or, less commonly, criminal liability. The thesis that such intervention is wrong may prove too much.

Your point about regional coding is a good one, but it seems different from the take down notices. I presume regional coding does two things: Allows studios to time entry into different geographic markets, and to price discriminate among markets. If you have no general objection to price discrimination, I would not expect these purposes to be objectionable.

If studios deliberately withhold titles from some regions, I could see an impoverishment argument, but doesn't that seem unlikely, at least on a widespread basis? To do so is to leave money on the table. (Unless in some region there was reason to expect trivial demand for some class of titles.) It is an empirical question, though, which might be tested by comparing the number of titles available for each region. My rational-actor musing might well be wrong.

I agree that some C&D letters are frivolous, and of those some are sent for a bad purpose. Some fraction of them assert ordinary copying claims, or claims for defamation. It would be interesting to try to identify the incremental effect of the DMCA within those collected on Chilling Effects.

My thanks for your thoughts,

William Patry said...

Dear Professor McGowan, it is I who thank you for such a stimulating discussion. Yes, regional coding has resulted in money left on the table and consumers without goods. A small, personal example. I went to London a few months ago with my kids. They love the Aardman claymation works, like Wallace and Gromit and Shaun the Sheep; there were lots of DVDs of them in the stores in London, but all regionally coded so we couldn't play them at home. The video iPod is an even better example I think. I gave a talk in London a the same time and wanted to play on a DVD player a Monty Python segment, a British series. I bought the whole 16 DVD set here, none of which would play there. My use would have been a fair use/fair dealing, but of course, circumventing the regional coding is a separate violation. The end result is I didn't use the segment in my talk.

Did You Know? said...

very nice blog... keep up the good work.. God Bless!!!

Birgitte SB said...

If the chapter 12 issue is about access rather than copyright could it not also be applied to restict the use of works in the Public Domain were limited copies exist?

William Patry said...

Dear Birgitte, that is indeed an issue in the U.S., even though facially the statute is written to apply only to works under copyright.

Birgitte SB said...

I personally find the idea that a student could be criminally prosecuted for transcribing a public domain work from the university's subscription archive service and uploading it elsewhere on the web in a context outside of the terms of service to be rather chilling. Since this is a contract law issue rather than copyright issue, am I correct in imagining that fair use exemptions would not apply to the copying of such works?

William Patry said...

Birgitte, without answering your specific question, my reference in the post itself to the ProCD case was to a situation where what was likely a public domain work (or if under copyright, for fair use purposes), was found to be a contractual violation not preempted by the Copyright Act.

Birgitte SB said...

Thank you for the pointer

Jim Lai said...

To add to the discussion between Prof. McGoan and Mr. Patry, I'd like to note that some of the situations discussed and discarded by the Southern District of New York and subsequently the Second Circuit in the "DeCSS" cases are beginning to become a reality.

Analog archiving of copyrighted works is dead or dying. Newer works are unavailable on VHS because of the proliferation of high-quality, affordable digital formats like Blu-ray, DVD and electronic download.

The fair use doctrine exists to ensure that copyright owners do not deprive the public of the ability to make certain uses of their works. If those works cease to be available in unprotected formats, then it will by default become impossible to make fair uses without being liable for a 1201(a) violation.

For example, I recently picked up a copy of the Golden Compass on DVD. It's a good movie. I also happen to have a video iPod and would like very much to format-shift the move from DVD to the iPod. Without circumventing the access controls, I cannot make what arguably would be a fair use of the underlying work. And incidentally, the movie isn't available at all on VHS, so the availability of an analog alternative from which I could create a format-shifted copy, even if I had the equipment for digitizing tape, is impossible. Yes, I could buy a second copy from the iTunes store, but I shouldn't have to. I have paid for it once.

With respect to the "transactions as licenses" vs. "transactions as sales" issue, I think the real concern is not so much about different prices for sales vs. long-term leases vs. single viewings. Rather, I think the real issue is that when copyright owners are allowed to cast transactions as licenses where they had traditionally been understood as sales, "sales," as understood by the First Sale doctrine, will disappear. One need only look at the terms of use attached to eBooks to see that this is the reality of the business model.

Mike said...

good post