WHAT YOU CAN DO

TO STOP COPYRIGHT ABUSE

It is obvious to any one who is paying attention to culture that the private control over intellectual property has grown at an ever increasing pace over the last 100 years. Whether you think this is good or a bad thing, depends a great deal upon your view of the nature of a free society. But the root cause of this seemingly inexorable juggernaut is a changeable bit of copyright law.

In laying out the dynamics that have resulted in the privatization of much of what was once the public domain of ideas and their expressions as plots, characters, icons, melodies, color combinations, rhymes, rules, cliches, stereotypes, prejudices, prayers and dreams, I hope to do just one thing; bring the base of copyright abuse out of the dark of the congressional cloak room and judges' chambers and into the light of public debate.

In the beginning, copyright law was conceived as a bargain between creators and the public. Creators could freely take and profit from the oral, religious, mythic, scientific, philosophic, visual, linguistic, dramatic and musical traditions that were acknowledged to be the property of all as long as they shared their new recombinant works according to a few simple rules.

First, copyright control is for a limited time, after which it all goes back in the 'common pot' for the next generation of creators. Second, copyright control is only for the highest order of expression not the root idea underneath so that their can be competition between contemporary creators. Third, copyright control does not extend to the resale or private uses of copies. Fourth, copyright protection is for the whole work, so that bits and pieces can be re-used in combination with other things to make something new.

This bargain was, however, quickly intermediated by publishers, distributors and the like. This third group leveraged both sides of the original copyright bargain against each other until they held monopolies over distribution and ownership of actual copyrights.

By requiring writers to assign their rights in exchange for publication, copyrights were controlled. By controlling a limited number of authors and the right to publish their work, they controlled distribution. This control of distribution increased the control over copyrights, etc. etc. etc.

This business model was greatly benefited by the simultaneous growth in mass replication technology which created more and more means for packaging (publishing) creations in order that they be copyrighted and sold. From printing press, to sound recordings, photography, motion pictures, radio and television the new technologies came with financial barriers to entry that gave publishers increased leverage.

Over the same period, the growth of corporate identity, wealth and power gave these owners of ideas an ideal virtual place to house their virtual property. In the end, these non people became the actual creators by hiring human beings to write, paint, photograph, sing, dance, design and perform every creative act they could find a way to package.

The original bargain between the public and creators has been all but lost. It has been replaced by the deals between creators and publisher/distributors (work for hire, buy out, licenses, royalties and creative accounting) and the deals between the public and publisher/distributors (pay per view, performance fees, first sale and home recording rights) which have hidden the critical fact that every completed work started with the input from previous creations and will be the input for future work again.

This has happened incrementally over the last 100 years in through the judicious but relentless use of power. Constant lobbying and disproportionate campaign contributions made from monopoly profits resulted in increasingly restrictive and onerous copyright laws. However, the single most powerful tool that congress has placed in the arsenal of copyright expansionists is 'statutory damages'.

Unlike the rest of U.S. law, copyright is not based on the principal of equity, which requires not only proof of an actual 'hurt' but proof of losses commensurate with the damages claimed. A simple act of copying, whether it causes loss to the publisher or not, is considered an infringement. Any infringement is liable for statutory damages. These are damages set by the statute in fixed amounts. In addition, the copyright owner can allege that the copying was a 'willful infringement', or made with the knowledge that the material was copyrighted. Given that the requirement of registration and notification have been waived in recent changes to the law, virtually anything published is copyrighted and thus any copying without express permission can be claimed 'willful infringement'.

This is significant because the damages for 'willful infringement' can be as high as $150,000.00 per item copied. Legal action against defendants unable or unwilling to defend themselves has created precedents used to make greater claims of property rights until virtually any use of a copyrighted work is now assumed by owners to be an infringement.

The only defense left is the claim of 'fair use'. What was once a broad doctrine that supported technological innovation, artistic creativity and free speech has been more and more narrowly defined as the result of decisions by ill informed and overworked judges in concert with duped juries. This one sided result in numerous cases is not the result of the immense miss match between the ability of the average user of a work and the corporate owner of hundreds, if not thousands of works and the accompanying distribution apparatus. Given time, our legal system will balance out the power of opposing groups as it searches for the truth. The progressive elimination of 'fair use' is the result of the complete lack of opposition to copyright expansionists because the risk of loss due to claims of 'statutory damages' and 'willful infringement' is so extraordinary. This lack of equity is unlike any other area of U.S. civil law and the resulting lack of opposition has been a slow but sure death sentence for 'fair use'.

It has now reached the point where people actually believe any copying to be bad, not just infringing. While recycling has become the mantra in our physical world, the idea has become lost, if not vilified in our cultural life. Because copyright owners and exploiters are not creators and do not understand that all creation is simply copying and recombination at some level, they promote the 'myth of originality' as they do new artists and works for sale. (Like 'natural food', 'original art' is nothing more than a marketing concept.) The result will certainly be a drying up of independent creation and additional control by copyright owning corporations.

The copyright bargain has been transformed into the enforcement of private property rights. It has resulted in the outsourcing of censorship from government to corporations. It has made the information economy as stratified as that of medieval Europe or Victorian England. The real information gap is not between those with access and those without, but between those with the right to create and those not allowed to copy. It has resulted in a vast cultural winter that has chilled free speech.

Although I've been told it is politically impossible, the answer is obvious and simple: REMOVE STATUTORY DAMAGES from the copyright law. This would force copyright owners to prove they had been damaged and how much. While certainly, some actual criminals would get away with lesser penalties than they deserve, 'fair users' would finally be able and willing to stand up for their rights and, over time and not that many court cases, the system would find balance and equity. This is a small price to pay for the free speech that sustains democracy.

It is my belief that statutory damages are unconstitutional. They enable the prior restraint of free speech through the threat of bankrupting damages to which there is virtually no defense. In addition, they treat a civil matter as if it was a criminal case but without the protections of due process we give each other in criminal proceedings. This is 'cruel and unusual'. They do not follow the basic principal of equity. In short, statutory damages are not fair.

ASK YOUR REPRESENTATIVE AND SENATORS TO REPEAL STATUTORY DAMAGES.