Editorial - "Studios' Copyright Goal: Total Control"

[JackSpratts]

Dan Gillmor
Mercury News Technology Columnist

Jack Valenti says he and his movie-industry employers are all for compromise in the copyright wars. But the solutions they advocate for an admittedly tough dilemma, copyright infringement, are grossly one-sided.

A week ago in this column, after visiting Valenti in his Washington office, I did my best to faithfully reflect the position of the lobbying organization he heads, the Motion Picture Association of America. Now it's my turn.

Saying you believe in compromise is one thing. Acting like it is another.

In fact, the entertainment cartel has in recent years grossly tipped the balance. Spending millions of dollars on campaign contributions and lobbying, it has persuaded Congress to enact laws reflecting a radical view of information and its use.

The major media/entertainment companies believe that control of information -- absolute control over how it can be used -- belongs to the owner of the copyright. They insist, moreover, that copyrights should be able to last indefinitely.

This is not a compromise, no matter what Valenti calls it. This is a radical agenda, one that overturns tradition and would ultimately wipe out the public domain, without which our culture would be vastly poorer.

At least, you can understand the industry's paranoia. File sharing and other technologies -- all of which have entirely legitimate uses that the cartel would eliminate along with the illegal ones -- are an obvious threat to the business model of the past half-century, a highly centralized and grossly inefficient business that rips off the artists, overcharges the public and limits the market.

Valenti can't explain how Hollywood's wish list will preserve traditional uses, nor why any entertainment company would ever allow copying of any sort if it could be prevented through technological means. He simply recited one of his constant mantras, that ``everything you can do legally today you'll be able to do tomorrow.'' It's just not so.

Even if it were, what's legal today is already limited, thanks to the 1998 Digital Millennium Copyright Act, which sailed through Congress at the behest of the entertainment cartel. That law, as more prescient observers warned, turned copyright owners into despotic rulers of their domains. It allowed the entertainment companies (as well as software companies that have been among the chief abusers) to create digital tools to thwart unauthorized use, and then criminalized users' attempts to tamper with the controls even, in many cases, for traditional and highly legitimate purposes.

Consider fair use, the ability to make personal copies and quote from copyrighted materials to create new works. The movie industry effectively rejects the idea that you should be able to quote from a movie, by putting an excerpt into another work, the way you can quote from text. To Valenti, fair use of a DVD is putting it in a DVD player and showing it in a classroom.

Imagine if that standard applied to the major communications medium of the past, text. You'd never see another history book if the copyright owner could insist on a payment for even the tiniest quote. Yet judges have interpreted the DMCA in precisely the way Valenti and his cohorts want.

The cartel was blindsided by peer-to-peer technology, such as the Napster file-sharing system. Instead of using peer to peer to launch new kinds of businesses, the companies used the Draconian copyright laws to kill Napster. They did in the company, but file sharing only grew, because new technology is indifferent to the past.

So the movie and music companies are going back to Congress for another helping. They are asking for laws that would force technology innovators to restrict the capabilities of devices -- cripple PCs and other machines that communicate so they can't make copies the copyright holders don't explicitly allow. Amazingly, the entertainment industry also wants permission to hack into networks and machines they believe are being used to violate copyrights.

Here is what it all means. To protect a business model and thwart even the possibility of infringement, the cartel wants technology companies to ask permission before they can innovate. The media giants want to keep information flow centralized, to control the new medium as if it's nothing but a jazzed-up television. Instead of accepting, as they do today, that a certain amount of penny-ante infringement will occur and then going after the major-league pirates, they call every act of infringement -- and some things that aren't infringement at all -- an act of piracy or stealing. Saying it doesn't make it so.

Not content to have total control over copyrighted material, the cartel has persuaded Congress to keep extending copyright terms. The companies that wail about ``stealing'' have themselves hijacked billions of dollars worth of literature, music and film from you and me. The public domain hasn't grown lately, and that's a betrayal of everyone but the tiny group of mega-companies that owns copyrights to old classics.

Valenti blithely quotes the Constitution, saying Congress is the sole authority on what the word ``limited'' means in the context of Article 8, Section 1. That section says, in part, that Congress has the obligation ``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 . . .''

Valenti quotes the second part. He leaves out the first. We have copyright laws so that creation of useful things will take place -- useful knowledge that will belong to all of us after a limited time, so we can all get fuller use of it. To get this valuable result, we give authors and inventors certain -- but not absolute -- rights and we do so for limited periods.

The Supreme Court will hear a crucial case early next month, called Eldred v. Ashcroft (www.eldred.cc), asking whether Congress has any limitations on copyright extensions. One issue is whether Congress can extend copyright terms for works that have already been created; why does an author need further incentive if he or she has already created the work in question?

Valenti's strict reading of the Constitution is laughable, and cynical. If Congress can define ``limited'' to mean ``eternity minus one second'' then the nation's founders were stupid people. They were not.

Neither is Valenti. He's so engaging in person, utterly charming, that I wish he were on the right side -- the users' rights side -- of this fight.
http://www.siliconvalley.com/mld/sil...ey/4175607.htm

- js.

[Mazer]

It makes me angry to read so many negative statement that are so true, but I'm glad you posted the article Jack. The more intelligent and articulate people we have speaking our minds the better it will be for everyone.