One truism about copyright is that one person’s inconvenience is another person’s absolute must. Passions brew on both sides, this is not new. What is interesting is when people switch sides.

One recent example of this involves attorneys Joe Sibley and Kiwi Camara. You may remember these two as the defenders of Jammie Thomas in her second, and even more unsuccessful, trial for allowing uploading of copyrighted sound recordings. It seems the attorneys are now behind a class-action suit against Scribd, the site that says it’s seeking to be a vehicle for legal sale and distribution of books (published and unpublished), but facilitates massive infringement of copyrighted works.

The more amusing example is that of Niklas Zennstrom and Janus Friis, the two exceptionally bright developers of Skype, which other than adult entertainment has to be one of the most popular uses of broadband. These two guys sold Skype to eBay, which (shockingly, he says sarcastically) has found no way to benefit from the purchase, and now eBay is trying to sell it. Not so fast, say Zennstrom and Friis, who say they own copyrighted software that will be part of the transaction; they’ve sued to stop the sale.

The irony? They’ve issued a statement saying their new company will “vigorously enforce its copyrights and other intellectual property rights in all of the technologies it has innovated.” These are the same guys who developed the file-sharing application underlying Kazaa, a technology that enabled infringement beyond the scope of anything imaginable compared to the Skype dispute.

Now the two attorneys in the Scribd switching teams in the same calendar year isn’t really surprising. It’s often overlooked, but attorneys — whether defending individuals in a civil suit or pushing a class-action suit — are paid to represent their client’s interests. They may agree with the client’s position, but that isn’t essential for them to do their jobs. This was lost among much of the hyperbole about how a few appointees to the Obama Administration (especially in the Department of Justice) had at times had “content” industry organizations among their many clients.

Sibley and Camara took on a loser of a case with Thomas, but everyone expected them to lose, so they didn’t take a hit for that, instead got their names and faces all over print and TV (and yes, blogs). Now they take on Scribd, a site which is good for legal uses and which says it wants to go legit, but which has a serious problem with infringement that can’t be solved with their new content management system (such as PDFs of URLs where infringement can be found elsewhere). (One twist of the case is that the lawyers say the CMS itself is what is infringing.)

I suspect Sibley and Camara will get more sympathy with the Scribd case than they would had they done another class action against a YouTube-like site. Authors can’t make money from merchandise or concerts by and large, so the “free” model isn’t as applicable to them. And the infringement is easier to demonstrate than with, say, file-sharing. I don’t have to download software and risk a virus by entering a peer-to-peer network to see the infringement, I just have to pull up Scribd’s web site, search for my favorite author, and there are tons of infringing copies just waiting to be downloaded.

Far more interesting is the Skype case. We all act out of self-interest. Even acts of virtue are described by thinkers such as John Stuart Mill as being out of self-interest, for the good feelings we get and the sense that the world will be better if we and others act with virtue and we’ll get benefits from that better world. Of course, capitalism is grounded on the notion of individuals operating out of self-interest.

It was in the interests of Zennstrom and Friis to ignore the rights of creators when developing a technology designed to infringe upon those rights. It is in their interests now to assert their perceived rights under copyright law, and they are doing so.

Mill knew not everyone acts virtuously. Sometimes the lure of the immediate prize is bigger than the hoped-for good feelings and eventual better world. This is certainly the case with many infringers, who get something without paying for it. Certainly someone who lives night and day in a world of remixing would like to be able to do so with more legal certainty, so they are going to see lots of upside from reducing creators’ rights and little downside (particularly if they’re not seeking to monetize their own output). And of course most creators have benefits both monetary and creatively (control over derivative works, etc.) from copyright, and many thus will prefer to see more copyright than less.

There are degrees of variance with those last two groups, but the examples above, being legal cases, are pretty stark, either defending against an infringement charge or pursuing an infringement charge. Life is not so black and white, but it is at least amusing when you see parties reverse themselves in the debate.

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This entry was posted on Monday, September 21st, 2009 at 12:41 pm by Patrick Ross and is filed under copyright law, creators, fair use, market forces, philanthropy, piracy. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.