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net.wars: Copyright "balance is in danger of being lost" to media pressures

"What is happening now is a protectionist backlash, in which the entertainment industry seeks to further its own interests at the expense of the public and creators alike."

Dear Chairman Coble

This week, the House Judiciary Subcommittee on Courts, the Internet and Intellectual Property is requesting public comments on digital music and copyright issues. Comments must be received by April 8. The EFF has a list of whom to contact and where. Here is my letter to the subcommittee.

I am increasingly concerned about the future of intellectual property and digital media. Intellectual property matters have long been the province of specialists, who were the people primarily affected by them in the days when only businesses had the wherewithal to make copies of movies, books, or recorded music. What is happening now is a protectionist backlash, in which the entertainment industry seeks to further its own interests at the expense of the public and creators alike.

All copyright law has always been a balance between the interests of creators and those of the public. This balance is in danger of being lost.

One of the entertainment industry's most unpleasant rhetorical devices is to claim that they are acting on behalf of creators – artists and writers who need to be paid for the intellectual property they produce. It is true that creators need to be paid; but the entertainment industry has a long history of doing its best not to pay them. One example: in March 2001, after suing the file-sharing service Napster to death citing the need to pay artists, the RIAA asked the the Copyright Office to let it avoid paying royalties to songwriters and song publishers on its own "legitimate" online music services.

In 1984, a single vote going the other way on the Supreme Court could have killed at birth the entire video industry. I urge the committee to avoid a regime that could effectively kill off new media, which have even greater potential. If the currently proposed copyright regime is embedded in our technology, it will effectively up-end one of our abiding democratic principles: that we are innocent until proven guilty.

Specifically:

- Repeal the circumvention portions of the Digital Millennium Copyright Act. This appalling piece of legislation risks criminalizing an entire generation for behavior that is arguably completely normal. In addition, it threatens research into cryptography and security systems.

- Make exclusive, perpetual all-rights contracts illegal. No creator should ever have to ask someone else's permission to use his own work.

- Kill legislation like the new Consumer Broadband and Digital Television Promotion Act. Much intellectual property is created outside the auspices of the official entertainment industry. The many small music publishers, creators of independent films, Web site owners who carefully collect detailed information on specific topics, even those taking pictures of their grandchildren should not have their interests steamrolled by the demands of an industry that is increasingly in the hands of only a very few giant multinational conglomerates. It is wrong for standard hardware to be required to embed copying restrictions that limit a user's control over his own machine to favor a select special interest group. In addition, the rights and needs of the majority of non-entertainment-related businesses that rely on their computer systems should be considered.

- Help small, noncommercial Webcasters to survive by ensuring that the copyright arbitration royalty panel sets realistic rates for them.

- Support legislation like the Music Online Competition Act, which promotes fair competition for Webcasters.

- Ban practices such as copy-protecting CDs, which prohibit convenience copying and embed errors in music. Many people prefer to listen to music on their computers via CD-ROM drives rather than on a traditional stereo system.

- Congress should act instead to require the embedding of public-interest limits to copyright restrictions into digital rights management schemes. For example, intellectual property owners should not be allowed to bypass the first-sale and fair use doctrines by tying individual titles (whether they be ebooks or digital music/video files) to specific machines. In addition, they should not be allowed to use formats that restrict access to the blind. Requiring screen access software compatibility should be the digital world equivalent of the Americans with Disabilities Act that requires ramps to aid access to buildings.

- Music, book, and movie publishers should not be allowed to retain copyright to material they refuse to release to the public. Either they should be required to make it available (preferably in some form that is easier to access than a locked filing cabinet in a disused lavatory in the cellar with no lights or stairs and a sign saying "Beware of the leopard") or they should be required to return the rights to the original creator(s). Book publishing contracts generally have included such reversion clauses, but recording, TV, and movie contracts typically do not.

- New forms of intellectual property come into existence every day, from the database of domain names to the complilations of messages that constitute Web message boards and Usenet, to data compiled cooperatively by users (such as CDDB). Thought needs to be given to ensuring that people retain access to the collections of metadata they help create.

- Personal privacy and commercial confidentiality are both seriously threatened by digital rights management schemes which charge per use and track copies. Do not allow the creation of corporate "Thought Police".

I am an American citizen and voter, a former full-time musician, and a current full-time writer. I am the author of books such as net.wars and From Anarchy to Power: the Net Comes of Age (both NYU Press). Full details of my background are available at http://www.pelicancrossing.net.

Sincerely yours,

Wendy M. Grossman