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Copyright Hypocrisy and the Assault on the Internet

by Mark Gabrish Conlan/Zenger's Newsmagazine Tuesday, Jan. 03, 2012 at 8:59 PM
mgconlan@earthlink.net (619) 688-1886 P. O. Box 50134, San Diego, CA 92165

When the producers of the hit film "The Adjustment Bureau" tried to stiff the daughters of Philip K. Dick, who wrote the story on which the film was based, out of their rights payments on the ground that the story's copyright was invalid, they unwittingly exposed the hypocrisy surrounding the entertainment industry's aggressive attempts to stop so-called "Internet piracy." Bills like the SOPA (Stop Online Piracy Act) in the House and PROTECT IP in the Senate would destroy Internet freedom and turn ISP's into content police in the name of continuing a copyright system that is no longer technologically sustainable.

Copyright Hypocrisy and the Assault on the Internet


Copyright © 2011 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

On November 27, Los Angeles Times business columnist Michael Hiltzik reported a story that exposed the hypocrisy behind the claim from major media corporations that their hard line on copyrights is designed to “protect the artists.” In 2001, Laura Dick Coelho and her half-sister Isa Dick Hackett, heirs and executors of the estate of their father, legendary science-fiction author Philip K. Dick, sold writer-director George Nolfi an option on the film rights to a Philip K. Dick story called “Adjustment Team” for $25,000. After spending years trying to place the project, Nolfi assigned the rights to a company called Media Rights Capital, which financed the movie and paid the Dick sisters $1.4 million to exercise the option. The deal also called for Media Rights Capital to pay the Dick sisters an additional $500,000 once the film made back its cost.

The film, retitled The Adjustment Bureau, was filmed for a total estimated budget of $50 million and featured a major star, Matt Damon. Released early in 2011, it was a major hit both in theatres (where it grossed $128 million) and on DVD. But instead of paying the $500,000 they still owed the Dick sisters, Media Rights Capital not only stiffed them but sued them to recover the original $1.4 million rights payment. The grounds? Though Dick had written “Adjustment Team” in 1953, he hadn’t released it for publication until 1973, when he copyrighted it and sold it to a publisher for an anthology. But the attorneys for Media Rights Capital found that “Adjustment Team” had actually been published in 1954, in a short-lived pulp magazine called Orbit Science Fiction — and since Orbit Science Fiction’s copyright had expired in 1982, “Adjustment Team” was in the public domain and therefore anybody could make a film of it without any rights payment at all.

Dick’s daughters counter-argued that Dick had neither authorized the Orbit publication nor been paid for it. According to Hiltzik, they also pointed out “that Nolfi and the producers had plenty of time to verify the copyright before making the picture, and that in signing the original deal they effectively acknowledged that the rights were authentic.” Certainly it’s preposterous to imagine that a media company would have spent $50 million on a film based on an obscure story by a “name” author without a guarantee that some other studio couldn’t beat them to the marketplace with a quick, cheap adaptation of the same work. More likely Media Rights Capital simply had their lawyers go looking for a loophole to save themselves some major rights payments — and found one, stiffing the heirs of the story’s original creator in the process.

So don’t swallow the propaganda line from the big media industry that a hard line on copyright protection does anything to protect “the artists” who create your favorite movies, stories, novels and songs. By aggressively extending the length of copyrights, shrinking the allowable “fair use” of excerpts from copyrighted material, and through other legal changes the media industry is buying from their paid-for politicians through the system of legalized bribery known as campaign finance (in which it’s perfectly legal to buy “access” to politicians by donating to their campaigns, and it only becomes illegal when there’s a direct quid pro quo — “I’ll give you $50,000 if you vote yes on bill X and no on bill Y”), media companies are protecting their own rights while simultaneously treating the actual creators of copyrighted material the same way they always have. They exploit the desperation of chronically poor artists and the lure of fame and big bucks to sign them to one-sided contracts that give the companies, not the creators, all or most of the income from the creations.

The story of how Media Rights Capital is trying to screw the daughters of Philip K. Dick out of their rightful share of the proceeds from a hit movie based on one of their dad’s stories happened to break while Congress is considering two bills that would vastly extend the policing power of media companies (and pharmaceutical companies too) over the Internet. The version in the House of Representatives is called the Stop Online Piracy Act, or SOPA (its bill number, in case you want to write or call your Congressmember about it, is H.R. 3261), while the Senate version has the mouth-busting title “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act,” or “PROTECT IP Act” for short. (It’s the same naming strategy that gave us the “USA PATRIOT Act.”) The bills are supposedly designed to keep American movies, recordings, books and other creative properties from being pirated by overseas Web sites — but their agenda is much more far-reaching than that.

Under SOPA, the more extreme of the two bills, media companies would be able to go after not only the Web sites that used their copyrighted content without authorization, but everyone else on the Internet food chain who wittingly or unwittingly helped them. The companies could go after the Internet service providers (ISP’s) through whom you access the Web, and also online advertisers and the payment services (like Visa, MasterCard or PayPal) through which you pay for anything you buy online. Indeed, if a media company noticed their content being posted online by a Web site without authorization, they could demand that ISP’s cut off all U.S. access to that site, advertisers stop buying ads on it, and payment services refuse to channel money to it. They could do that without having to go to court first, just on the say-so of the media company’s lawyers that the site is “dedicated to the theft of U.S. property” — and the targets would have to respond within five days, a blink of an eye in terms of how litigation usually proceeds.

What’s more, the media company could target not only the Web site that posted their content without authorization, but every other site on the Web that links to it, or every site that links to a site that links to it, and so forth until just about every site in the world would be touched by the tainted links. Media companies already have the right to send so-called “cease and desist” letters to sites like Facebook and YouTube, stating that their copyrighted material is on a user’s Facebook or YouTube post and demanding that it be removed. Under SOPA, the companies could sue Facebook or YouTube — and could also sue the users who put the material on their site, or users who merely linked to another site that had unauthorized copyrighted material on it. And, as the American Center for Law and Justice (a Right-wing alternative to the American Civil Liberties Union) points out in their excellent fact sheet on SOPA, “SOPA’s private causes of action would allow anyone asserting a copyright or trademark right to effectively attack and silence both foreign and domestic speakers and viewpoints they may find objectionable.”

In that regard, SOPA would require ISP’s and payment services to do what they’ve already done voluntarily to put WikiLeaks out of business. The governments of the U.S., Great Britain and Sweden all looked for ways to stop WikiLeaks, from arresting the alleged source of much of its information (U.S. Army Private Bradley Manning) and holding him under unspeakably barbaric conditions, to pushing rape and sexual harassment charges against site founder Julian Assange, and couldn’t get the site offline. Then, as part of their “patriotic duty,” Visa, MasterCard and PayPal announced that they wouldn’t send any more money to WikiLeaks from users who wanted to contribute to it — and Assange eventually ran out of money to maintain the site and announced he would have to shut it down. The WikiLeaks story should be a warning that the supposed “freedom” of the Internet is a myth: the Internet is really run by private mega-corporations who can effectively censor its content even if governments can’t.

The reason is that, unlike telephone companies, Internet service providers were never legally declared “common carriers.” What that means is that if I phone the San Diego City Hall and tell the person who answers that I have planted a bomb in the building, I have committed a crime. Even if I haven’t actually planted a bomb, I have still committed a crime. But the phone company is not legally responsible in any way for my crime, even though I could not have committed it without their equipment and network infrastructure. It also means that I can call a friend of mine with similar politics, and the phone company can’t censor our conversation even though the people who own and run it may not like what we have to say to each other about the need to get rid of capitalism.

An ISP is different. By not being common carriers, ISP’s have every right to censor messages with which they disagree — a right the former CEO of Comcast asserted publicly when he stated that he didn’t see any reason why “my pipes” should be used to communicate political views he didn’t approve of. They also have legal liability if their services are used for allegedly criminal activity. So far, ISP’s have treaded gently on the paths of political or legal censorship because of an informal principle called “Net neutrality,” which has meant that every piece of data on the Net gets treated the same as every other piece of data. “Net neutrality” has given Internet users an illusion of freedom because it’s prevented huge media outlets like Fox News from cutting sweetheart deals with ISP’s to move their content through the Internet faster than that from smaller, less wealthy and less politically influential site owners.

But the U.S. Federal Communications Commission (FCC) has already compromised the “Net neutrality” principle in a set of regulations that basically said it applied to desktop and laptop computers but not to smartphones, tablets and the other wireless portable devices through which more and more people are using the Internet. And even those weak “Net neutrality” regulations were nearly overturned by a big money-dominated U.S. Congress that wants to turn the Internet into yet another wholly owned subsidiary of the corporate media giants. This will mean that, as with all other corporate media outlets, the Internet will systematically push Right-wing points of view and censor Left-wing ones. In a worst-case scenario, the loss of “Net neutrality” and the passage of bills like SOPA could make the organization of Occupy-style movements impossible by giving ISP’s the power to censor all anti-corporate messages and keep them off the Web.

In addition to broadening the censorship of the Web — both by ISP’s themselves and by media companies sending out five-day notices willy-nilly and making ISP’s and sites like Facebook and YouTube into content police — SOPA is also a direct attack by the U.S. pharmaceutical industry to make sure that Americans keep paying the highest prices for prescription drugs of any country in the world. Remember when you used to get e-mails advertising lower-priced drugs from Canada? You don’t get them anymore because, responding to lobbying from Big Pharma, Congress made such sales illegal — and SOPA would strengthen those prohibitions by giving drug companies the same tools as media companies to punish any Web site that dared to offer cheaper drugs.

The most bizarre thing about SOPA is it’s an attempt to pump up a system of copyrights, trademarks and patents that no longer serves artistic or scientific advancement — if anything, it retards it — and, at least in the case of copyright, is no longer technologically sustainable. Historically, copyright worked by giving the copyright holder the right to prohibit the manufacture of physical copies of a copyrighted work. Such copies did get made — I remember my shock when a street peddler offered me a bootleg copy of the third Matrix movie, The Matrix Revolutions, in front of Horton Plaza while the film was still playing in the movie theatres inside — but they required an elaborate physical infrastructure that was relatively easy to find and shut down. With the digital revolution, a book, a record or a movie is no longer necessarily a physical object: it’s a series of zeroes and ones that can be moved anywhere around the world literally at the speed of light. (The same thing has happened to money, which is how hedge-fund operators and “flash” investors can make — or lose — millions of dollars in seconds.)

If I could write a copyright law for the digital age, the first thing it would say is that no copyright would last for longer than 50 years. Period. Ever. That common-sense policy — which was the law in Europe until recently, when the European Union parliament was lobbied by the big media companies to extend it to 70 years — seems to me to strike the right balance between the purpose of copyrights and patents (which is not to benefit media and pharmaceutical corporations in perpetuity, but is, according to the U.S. Constitution, “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”) and the principle that ultimately humanity’s artistic and scientific legacy should belong equally to all.

Second, I would base the new copyright law on a principle known as compulsory licensing. That would mean that copyright holders would no longer have the power to prevent the physical or digital reproduction and redistribution of their works. What they would have is the right to demand that end users pay them. Instead of trying to put Web sites out of business by sending cease-and-desist letters as they do now — or threatening them and their users with criminal prosecution and damages, as SOPA would let them do — they would simply send them bills. Some forms of artistic endeavor already use compulsory licensing: anyone can perform a copyrighted song in person or play a record of one on terrestrial radio, and long-established laws allow them to know in advance how much that will cost them. Compulsory licensing would solve the problem of so-called “derivative works” — like hip-hop songs that “sample” bits of previous records, or Shepard Fairey’s Obama poster — by allowing reuse as long as royalties were paid. I would set up special “copyright courts” to resolve disputes over how much copyrighted content was used and how much royalty should be charged for it, modeled on the arbitration panels the Writers Guild uses to apportion writing credits for movies.

Compulsory licensing and royalty requirements would also be more effective in putting out of business the so-called “rogue Web sites” SOPA is ostensibly aimed at than SOPA would be. The lawsuits against Napster and other peer-to-peer music sharing sites didn’t end this type of copyright violation. What did was the advent of iTunes and its competitors, which allowed people to purchase online music downloads of consistent quality for a reasonable price. Once people get used to the idea that media companies can charge them for copyrighted content regardless of where they got it from, they’ll be more likely to buy it from the companies themselves — so long as the companies don’t get greedy and try to gouge them with unsustainably high prices.

In copyright, and in intellectual property law in general, the old order is dying and the new one is not yet ready to be born. Media companies are spending huge amounts of money to lobby Congress for punitive bills like SOPA in order to maintain a copyright regime that has been rendered obsolete and unenforceable by technological advances. Internet companies like Google are saying that they too are against “piracy,” buying into the central assumption underlying SOPA even as they try to defeat the bill because it would cost them money. Once again we have corporate elephants fighting each other over business models that need to change — and the stake for the rest of us is whether the Internet will be allowed to be the totally free channel of communication we were promised, or it will become just another organ of a dying corporate oligopoly.
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