06 November 2015

Silencing Creators Again

And now the House Judiciary Committee is participating in silencing the actual creators of copyrightable materials.

On Monday 09 November, the so-called Copyright Listening Tour will make it to the Bay Area. The list of invited participants (courtesy of the somewhat-caught-in-the-middle hosts at the Santa Clara University School of Law) almost entirely cuts out actual creators, as is usual for these things:

  • Steve Bene, General Counsel, Pandora
  • Laura Covington, Vice President of Intellectual Property Policy, Yahoo
  • Clint Cox, VP of Technical Operations, Ultimate Fighting Championship
  • Tony Falzone, Deputy General Counsel, Pinterest
  • Alex Feerst, Attorney, Legal Team, Medium
  • Brewster Kahle, Founder and Digital Librarian, Internet Archive
  • Zoe Keating, Cellist, Composer and Technologist
  • Michael Keller, University Librarian, Stanford University
  • Lisamaria Martinez, Director of Community Services, Lighthouse for the Blind of San Francisco
  • Tyler Ochoa, Professor of Law, Santa Clara University School of Law
  • Matthew M. Sarboraria, Vice President of Intellectual Property, Oracle
  • Brianna Schofield, Teaching Fellow, Berkeley Center for Law & Technology
  • Ellen Seidler, independent filmmaker
  • Ted Ullyot, Partner, Andreesen Horowitz
  • Ruth Vitale, Chief Executive Officer, Creative Future
  • Timothy Vollmer, Manager of Public Policy, Creative Commons
  • Kit Walsh, Staff Attorney, Electronic Frontier Foundation
  • Kyle Wiens, Founder and CEO, iFixit
  • Matt Zinn, General Counsel, TiVO

And it's actually even worse than it looks; there are no representatives of writing, or of fine art; there's the usual dominance by distributors and transferees; there's... well, to quote myself yet again:

Last, and far from least, a British lament on the various copyright debates that goes not nearly far enough — because the writer is being measured and academic, not because he's incorrect. One of the IPKitties is concerned about the absence of authors in the debates on copyright. The US Copyright Office's Orphan Works Inquiries are one example of the problem. I remember being awfully lonely at the west coast public "roundtable" on orphan works in 2005; I was the only representative of natural-person authors (and I include creators of nonwritten works) at the table — the other 19 represented transferees. Sadly, that reflected the makeup of comments in the 2005 Inquiry all too well, particularly in the initial-comment round (when only one written-works-authors' organization even provided an independent comment... out of over 600 received). The situation in the current round on orphan works is a little bit better, but human creators' interests — even including those who are primarily reusers of others' material — are advocated in less than a quarter of the comments provided. Things are even worse when considering information-age infringement issues, such as this all-too-typical "conference" on the DMCA that has no panelists whose perspective is that — or arguably primarily aligns with that — of the individual creators who most need a low-cost, low-formality means of objecting to online infringements of their works.

This is unacceptable and inexcusable. It's easily explained as a combination of the power of financial initial positions to set agendas and, specific to the Copyright Office, agency capture, but that's not an excuse. The ground was set when Congress — possibly, indeed probably, exceeding its constitutional power to do so — redefined "author" to include, and often exclusively mean, "patron" in the 1976 Act... without ever using the word "patron" in subsection (b). No other nation has gone so far, so claiming that it's a necessary means of complying with international norms is more than a bit much. The echoes of the complaints about "bureaucracy" in and around the second sausage on this platter should not be ignored... because in this instance there really is an unfulfilled entitlement; it's not only an ethical one, but a constitutional one. Indeed, there's an excellent argument that, under the current confused jurisprudential framework, virtually all of the proposed systems for dealing with orphan works constitute regulatory takings.

The current debate over copyright, especially as it is on the 'net, uncomfortably resembles the partition of a colony by colonial powers without a voice at the table for the indigenous peoples (or at least not one drowned out by moneyed interests like the East India Company). It seems to me that we've made that mistake a few times before with unsatisfactory results. We really, really shouldn't be repeating it.

C.E. Petit, Giant Squid, Anyone?, Scrivener's Error (23 Feb 2013) (links and emphasis in original).

Not acceptable. As usual, Congress is only going to listen to positions consistent with what its respective members' reelection finance chairmen want to hear. And the irony that what I'm quoting above would be fair use (if, that is, I wasn't the creator and copyright holder in the first place) will, no doubt, be lost upon the a**holes who think this sort of refusal to grant an audience to those who are not Party members has a damned thing to do with either good policy or democracy.