I’m glad you asked, because this is really the point that the book aims to make. Once we accept that the well-worn story of Napster-killed-the-music-
The general trend for copyright laws, treaties and policies over the years has been towards expansion: a broader range of cultural expression has been covered, for a wider set of uses, for longer periods of time, with harsher penalties for infringement. In the interest of pursuing infringers, American government offices ranging from the DOJ to the Department of Homeland Security to new, specialized ones like the Intellectual Property Enforcement Coordinator (a/k/a the Copyright Czar) are being called upon to police and enforce infringement on behalf of private rights holders. And corporations ranging from ISPs to email providers to social media platforms are being asked to track their users’ behaviors and share information about infringing communications and about infringers themselves with one another and with government offices. Congress has even tried, at least twice in the last few years, to pass laws giving the federal government the ability to flip an internet “kill switch,” pulling the plug on every single user, in response to a vague list of “cybersecurity threats,” which definitively include IP infringement.
Some of these laws and treaties have been ratified, others are in progress, and others have died on the vine. Together, they represent a well-planned, comprehensive wish list concocted by the music industry and its allies in Hollywood and Silicon Valley, purchased with literally billions of dollars in above-the-table lobbying and campaign finance contributions, to say nothing of other modes of inducement, such as the threat of economic devastation by the US Trade Representative against foreign sovereign states that resist participating in IP law “harmonization” via secretly-negotiated trade accords. This might sound like the plot of a lesser Alan J. Pakula paranoiafest from the ’70s, but thanks in part to whistleblowers like Chelsea Manning, as well as the tireless efforts of public advocates at organizations like EFF and Public Knowledge, I can confidently present these claims as factual, and support it with a wealth of documentation (my book has 34 pages of endnotes, and I could easily have doubled that figure).
The “collateral damage” from this antipiracy agenda spills into nearly every facet of our society, from the marketplace to the political process to the public sphere. On the commercial level, market titans including the major labels have wielded IP laws like bludgeons to crack down on competitors and innovators, using the threat of costly litigation and costlier damage awards to coerce startups into agreements that consign them to permanent insolvency, or to shutter the few that resist. Criminals and unethical actors ranging from phishing scammers to patent trolls to “copyright monetization companies” like RightsCorp and BayTSP have exploited the laws’ contours and complexities to cheat and extort untallied billions of dollars from small businesses and blameless individuals, while music and film companies have sued hundreds of thousands of their own best customers. Our courts are clogged with baseless litigations, the marketplace is littered with the remains of once-promising commercial ventures, and hundreds of thousands of families have faced economic hardship above and beyond the privations caused by our sputtering economy.
Even worse, however, are the threats posed by these laws to democratic self-governance and civil liberties, both in the US and elsewhere around the world. Relatively tame copyright laws like the DMCA have already been exploited successfully to remove viral presidential campaign videos from YouTube, to quell dissent and silence criticism, and to limit citizens’ access to online newspapers and public forums. The new breed of copyright laws promoted by today’s piracy crusaders aim to upgrade these powers, compelling businesses to spy on citizens without a warrant and report on their behaviors to governments agencies, and giving both commercial and public institutions the legal power to disconnect individual users, surveil their communications, and take down entire internet domains based on unproven allegations of infringement, all without transparency, accountability or easy recourse to appeal for those affected.
I wrote the bulk of this book in 2012 and early 2013, before the earth-shattering revelations of government overreach exposed by Edward Snowden, but even at that point it was easy to see that such powers would inevitably be used at best carelessly and in all probability corruptly, and that once they were granted, it would be nearly impossible to revoke them. To me, Snowden’s leaks only confirm this suspicion, and should give us further pause before we bestow such legal powers on either governments or corporations, especially given that a) they clearly possess the technological capacity to exploit such powers to the fullest, and b) they lack the organizational rigor and/or political will to prevent such powers from being exploited maliciously and anti-democratically. In the final analysis, is it really worth taking such risks to ward off a phantasmagorical boogeyman, and ineffectually at that?
This is, of course, the trillion-dollar question. In the book, I don’t conclude with a specific set of agenda items; instead, I discuss a range of different solutions and amendments to intellectual property law proposed by critics and scholars across the political spectrum, both inside and outside the government, in the US and elsewhere around the world. There are some great ideas out there, some of them radical and some merely ameliatory, and I was more interested in reflecting this diversity of opinion than in furthering my own.
But since you ask… At the very least, I would support the following agenda items:
- Shorter copyright terms. Currently copyright lasts for an author’s life plus 70 years – an order of magnitude longer than the 14-year term originally applied when the law was created. In a recently leaked draft of the secret TPP treaty, Mexico proposed that all signatories extend copyright to author’s life plus 100 years (I wonder where they got that idea?). Even our own Register of Copyrights, Maria Pallante, has suggested that we revert to life plus 50 years. I think the term should be even shorter, maybe in the range of 20-30 years; beyond that point, I believe it functions more to protect entrenched economic interests than to incentivize new creative production.
- A digital citizens bill of rights. We need to make sure that, IP infringement notwithstanding, all citizens can communicate privately and securely, that they have guaranteed access to communications networks and the public sphere, and that they can express their political opinions and share their cultural ideas freely and openly without fear of censorship or recrimination. Ron Wyden and Daryl Issa tried to pass a law like this called the OPEN Act a few years ago, and it went nowhere. More recently, Brazil successfully passed a law with some of these provisions, called the Marco Civil da Internet. Ironically enough, it was Snowden’s whistleblowing that gave the Brazilian government the momentum it needed to get the bill passed.
- Protection against copyright and patent trolls. In recent years, the number of US patent cases has skyrocketed, and last year over two-thirds of them were initiated by “trolls,” or companies whose only economic stake resides in their ability to litigate. This is widely agreed to be a serious problem (President Obama himself raised this as a key issue in his most recent State of the Union address), but thus far our legislators failed to pass the potentially effective Innovation Act of 2013, and the watered down TROL Act of 2014 has yet to be voted on in the House.
- A right to remix. Our musical cultures and industries have thrived for decades because we have a compulsory right to cover songs. Once a composition has been recorded, anyone is free to make their own version of it, paying a statutory rate to the rights holder for the privilege. It’s hard to imagine how much more impoverished our musical landscape would be if that hadn’t been the case – if you had to ask permission and negotiate with publishers and composers every time you wanted to record or perform one of their songs. Yet that’s exactly how it is today with sample-based music like hip-hop, mashups, EDM and techno; if you want to sample even a millisecond of a recording, you’re at the mercy of the rights holder (most likely, a major record label) and licenses are often priced high enough to make sure that only other major labels can foot the bill. This is not the result of any clear statute, but rather due to a couple of dicey court decisions over a decade ago. As others have argued, this not only effectively stopped the evolution of hip-hop in its tracks, eviscerating its politically subversive and culturally resistant potential, but has also helped to turn us into a nation of criminals, as each of us carries the capacity to cut, paste and redistribute audio around in our pockets. Thus, we need a statutory right to remix akin to the right to cover compositions, and it needs to be affordable enough so that innovative artists in emerging genres distributing their own music or working with a smaller label can afford to do so and stay on the right side of the law.
- Small claims court for IP infringement. Currently, the statutory maximum penalty for “willful” copyright infringement in the US is $150,000 per work, and litigation attorneys bill upwards of $500/hour. These high stakes mean that the system only works for those with deep pockets, like major labels and publishers. Meanwhile, according to the Copyright Office, the median cost to litigate a copyright suit with less than a million dollars at stake is $350,000. This hurts independent artists and small businesses, whether they’re plaintiffs or defendants. A small claims court with lower damages, shorter litigation cycles, simpler processes and no precedential power would allow everyday people to pursue their rights and interests without risking economic catastrophe.
- Reduced risks and penalties for noncommercial infringement, and reduced secondary liability. One of the major victories of the piracy crusaders has been to elevate noncommercial infringement to the level of a felony, potentially punishable by hundreds of thousands of dollars fines and jail time. Given that it’s nearly impossible to use the internet without committing some form of noncommercial infringement (ever forward an email or post a page to Facebook? Gotcha!), this is an absurd and potentially dangerous state of affairs. We need to reaffirm that there is a substantive difference between those who mass-produce bootleg movies and CDs for sale in retail shops and those who distribute free mixtapes to their friends (yes, I realize there’s a lot of gray area, but I’m trying to be brief). We also need to reverse the encroachment of “secondary liability,” a legal doctrine that holds someone accountable for infringement if they played a role in a third-party’s infringement, often tenuously. For instance, even though Congress tried and failed to pass an act making it illegal to “induce” a third party to infringe copyright in 2004, that didn’t stop the Supreme Court from using exactly that standard to find Grokster liable for the actions of its users in 2005, a precedent that was applied to Limewire in 2010 (full disclosure: I served as an expert witness for the defense in both cases). This vague standard, and other similar ones, create a dangerous “chilling effect” in which blameless parties choose not to undertake actions that are well with their rights for fear of guilt by association with a third party.
My full list could probably fill up an entire book on its own (hm, sounds like a worthwhile project, but I guess Bill Patry beat me to it), but for the sake of your readers, I’ll stop here.
Aram Sinnreich is an Assistant Professor at Rutgers University, in the Department of Journalism & Media Studies. His work focuses on the intersection of culture, law and technology, with an emphasis on emerging media and music. He is the author of two books, Mashed Up (2010), and The Piracy Crusade (2013), and has written for publications including the New York Times, Billboard and Wired. Prior to Rutgers, Sinnreich served as Director at media innovation lab OMD Ignition Factory, Managing Partner of media/tech consultancy Radar Research, Visiting Professor at NYU Steinhardt, and Senior Analyst at Jupiter Research. He is also a bassist and composer, and has played with groups and artists including progressive soul band Brave New Girl, dub-and-bass collective Dubistry, Agent 99, King Django, and Ari-Up, lead singer of the Slits. Sinnreich holds a Ph.D. in Communication from the University of Southern California, and a master’s in Journalism from Columbia University.