Live from World Copyright Summit: Obama and the Washington Landscape
Tuesday, June 9th, 2009 by Patrick Ross
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WASHINGTON – I spoke on the opening panel here at CISAC’s 2nd World Copyright Summit at the Ronald Reagan International Trade Center, which puts the Minoan labyrinth to shame. I had the pleasure of following the opening keynote of Senator Orrin Hatch (R-UT), whose moving address I will highlight in a separate post.
Responding to moderator Hilary Rosen, I said how optimistic the Copyright Alliance was regarding the new Administration. I noted our pleasure with his appointment process; we joined with forty other organizations in April in a letter to President Obama praising him in that regard. I also quoted bullish pro-creator and pro-copyright comments by Vice President Joseph Biden (a decades-long creator champion in the U.S. Senate), U.S. Trade Representative Ron Kirk, and U.S. Commerce Secretary Gary Locke. There is no question, based on all of these signals, that the Obama Administration understands the connection between copyright and creativity, jobs and growth.
There were some fireworks on the panel, but I may have disappointed CISAC by not joining in the fun, which even reached questioning what fate various panelists would face in the afterlife. I instead expressed confidence in the deliberative process, knowing the reason undermining copyright will prevail in public-policy discussions.
My fellow panelist Gigi Sohn of Public Knowledge highlighted how people can sometimes rush to judgment in an unconstructive manner. She noted how, during the recent stimulus debate in the U.S. Senate, Senator Dianne Feinstein (D-CA) sought to add a clarification to a provision on broadband making the reasonable point that broadband funding should not promote infringing activity.
An uproar, stimulated by Public Knowledge, meant the amendment was put aside. The uproar guaranteed there would be no opportunity to have a reasoned debate over the issue, given the speed with which the stimulus package needed to pass.
The whole episode was quite odd. Perhaps the leading network neutrality champion in Congress, Rep. Ed Markey (D-MA), made clear last year that his legislation in no way was meant to create protection for infringement; network neutrality should only focus on legal traffic. Ms. Sohn, on a panel at January’s Consumer Electronics Show, agreed with another panelist that everyone in the network neutrality debate was united in their belief that network neutrality was not intended to protect infringement.
The Copyright Alliance agrees with that philosophy. We joined with several other rightsholders Monday in a filing with the Federal Communications Commission and made that same argument, namely that policymakers shouldn’t create regulatory safe havens for infringement.
Yet, when Senator Feinstein tried to add that consensus to stimulus legislation, Ms. Sohn raised an alarm, and she boasted of that action today.
At the Future of Music conference, she explained her contradiction on this issue by noting that there are some scenarios that might be used by some Internet service providers to target some traffic believed to be infringing that might not be infringing. In other words, even if an ISP had an appeal process, if there was ever any chance of any false positive in targeting infringement, we can’t have any regulation or legislation that in any way attempts to distinguish legal and infringing works.
There are some rightsholder groups who see merit in network neutrality policymaking but are sincere in their belief that copyrighted works differ in the policy debate from infringing works.
Ms. Sohn, in boasting of the fire she fanned regarding the Feinstein amendment, said it is easier to block legislation than move it. She is of course right.
Now many rightsholders disagree with the need for network neutrality or if enacted how it should be structured, but all rightsholders agree with the public statements of Ms. Sohn and her colleagues on this distinction between copyrighted and infringing works. So I ask her community to take the harder path, the constructive path, to build on the agreement they say they have with rightsholders let us know their vision for a legislative or regulatory approach that does not favor infringement.
June 10th, 2009 at 9:45 am
“An uproar, stimulated by Public Knowledge, meant the amendment was put aside. The uproar guaranteed there would be no opportunity to have a reasoned debate over the issue, given the speed with which the stimulus package needed to pass.”
Given the speed with which the stimulus package needed to pass, it should not have contained controversial language which many believed would legitimize a mandatory “three strikes” rule for ISPs or other policies that should not be enacted without further debate. Separating that debate from the urgency of the stimulus bill was entirely appropriate, except in the eyes of those who wanted it railroaded in without debate.
Incidentally, it’s a real shame that Senator Feinstein has forgotten her roots in Northern California, home of a $200B/year technology industry in her rush to please Southern California’s $20B/year entertainment industry.
June 11th, 2009 at 5:30 pm
is it just me, or is there a certain destroying irony in a lobbying group, promoting out of touch industries wishing a return to the olden days of oligopoly distribution, ……
……using *****free***** open source software (wordpress 2.5.1 (which is way! out of date by the way. you guys are getting seriously ripped off by your developer)) to execute their publishing? that’s F.O.S.S. as promoted by the F.S.F. inter alia btw.
June 11th, 2009 at 5:40 pm
Robin,
Thanks for this comment.
Yes, I know we’re out of date on the version. I considered upgrading recently, but since it keeps working I believe there’s no reason to risk the problems often associated with upgrades. I use WordPress because I’ve tried several blogging programs over the last 5 years or so and this has proven to be the least troublesome (although the latest Flash interferes with my ability to upload images to the blog, but I’m told the latest WordPress hasn’t solved that).
And I promote all rights models. I admire open source developers and applaud their accomplishments and their generosity of time and talent. I also assume they — who have chosen to work within a model (FOSS) that has been found by the courts to be part of copyright law (something Lawrence Lessig applauded) — would not wish to project their self-sacrifice by forcing other creators who see value in their rights to forfeit them. Mutual respect is what is called for here.
Nope, no irony here. Thanks for your attempt at levity, however, and your cute use of an emoticon.
June 11th, 2009 at 6:02 pm
hi patrick;
thx for your very! swift replies. respect.
some background: years ago i was an l.a. up on the hill (i shan’t say how many, but suffice to say that sen. gordon humphrey is not even a footnote in the history books of the 20-40 cohort that keeps the business of gov’t running), so the set-up of your newish organization was unknown to me. back in the day, no contribution meant no voice. thankfully that’s changed.
your wordpress install will have told you (as i’ve done more than a few) that i came to your site to annoy you through the link in the CISAC site. being from vermont, i’m doing some research surrounding our adorable munchkin of a senator (no, not you bernie…sit down!) the honorable mr. leahy, the pride of middlesex.
i suspect your corporate members and myself would very quickly come to loggerheads over their efforts to transform intellectual property into real property and this effort’s anti-consumer and essentially anti-democratic roots. please recall that thomas payne (if i remember right) was vehemently opposed in the federalist papers to the gov’t granted monopoly of copyright. this is not to deny copyright’s usefulness, usefulness that must be proscribed. a proscription my dear senator refuses to acknowledge. thus my annoyance and research. results coming soon on leahyversusvermont.wordpress.com :). thank you!
June 11th, 2009 at 6:17 pm
Hi Robin,
Can’t say I’m always this quick; I’m working far too late tonight and your posts provided me a welcome distraction from the work I should be doing!
I worked for Harry Reid in the 101st Congress, perhaps we passed each other in the Hart cafeteria at some point.
Welcome to the site. You are not annoying me, always happy to have a dialogue. Commenters who are annoying are ones who invoke the Holocaust and other such attacks; that is why I have unfortunately had to shift to moderated comments. As you can see, I post non-hateful comments even when I disagree with them.
Yes, Paine was, well, pained by many things. Madison, however, wrote the copyright clause for the VA Constitution, then wrote it for the US Constitution. In the Federalist Papers he said its logic and benefit to society could hardly be questioned. Jefferson did question it, in a letter to his protege Madison, but Madison’s response convinced Jefferson that it was appropriately included in the Constitution. In fact, it was one of the few provisions at the Constitutional Convention to which no protest was raised.
Thank you for not denying copyright’s usefulness. In any democratic society we must always question, and ask where on the spectrum policy should fall. As a creator myself and as a member of a family of creators, I have some issue with those who would wish to abolish all rights of creators, but I am happy to debate those who differ on how robust those rights should be.
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