Any veteran of Capitol Hill knows that some of the shortest legislative language can lead to some of the most dramatic reversals of law. Pick a random statute, add or remove the word “not,” then imagine the consequences.

It is important to keep this inverse relationship between text and impact in mind when reviewing draft legislation recently proposed to “reform” copyright law. George Carlin famously gave us “Seven Dirty Words.” Opponents of copyright owner’s rights are proposing “Seven Sneaky Words.”

What are their Seven Sneaky Words? They propose amending U.S. copyright law to eliminate creators’ rights if the use of a work is “incidental, non-consumptive, or both noncommercial and personal.”

These few words would dramatically reduce copyright owners’ abilities to exercise their rights of reproduction, distribution, public performance, and the creation of derivative works. This would harm not only creators but the U.S. economy, exports, employment, and culture.

These copyright opponents are not creators supporting themselves through production of creative works, although in Section 1 of their proposed legislation they absurdly claim the legislation is intended to “protect copyright holders” and “protect the creative endeavors of artists.” They are in fact a small cadre of academics at Stanford University and the University of California at Berkeley, working on behalf of a D.C.-based advocacy and lobbying firm.

There is a growing trend of rightsholders broadening licensing rights to permit uses in all of those areas. The proponents of the Seven Sneaky Words don’t share those many examples in their voluminous documents arguing for a change in the law. Nor do they demonstrate any real harm suffered as a result of the existing balance in fair use struck by Congress and the courts.

Of course, this call for legislation is not about fair use. The supporters consciously ignore the fact that the fair use statute and its interpretations by federal courts intentionally embrace ambiguity. The fair use statute does have specific exemptions, but flexibility beyond those exemptions allows new and innovative uses to emerge, which we see online every day.

In fact, fair use is thriving in the United States. So the other tried-and-true practice being done here by the copyright opponents is that of “moving the goal posts.” First you redefine fair use, and then you conflate it with your objections to the broader restrictions of copyright.

Let’s break down these Seven Sneaky Words.

As for incidental or non-consumptive uses, the proponents are exercised over a provision of the Digital Millennium Copyright Act that prevents circumvention of digital rights management technology. They neglect to note that the DMCA requires the U.S. Copyright Office to hold public hearings every three years on uses of copyrighted works that are important enough to merit permission to circumvent DRM. The U.S. Copyright Office has issued exemptions in each triennial review since the 1998 Act became law.

The copyright opponents also argue that “incidental” use would allow copying of entire works for indexing purposes. What they don’t share is that this is a key policy objective of the world’s largest indexing web site, Google, a financial supporter of the advocacy firm promoting the draft legislation. Were this to become law, Google would have no legal reason to settle with authors and publishers – a tacit acknowledgment of the rights under copyright of those authors and publishers — because they would be free to create complete digital copies of millions of published works without any say of the rightsholder.

However, the largest potential impact comes from the phrase “noncommercial and personal.” One result would be the elimination of any business model that allows consumers to enjoy a creative work in the way that they want, at a price they like.

An on-demand movie service doesn’t legally allow me to copy the motion picture. But let’s say I do that anyway. Isn’t that a personal act, in which I am not profiting, and didn’t I already pay $4 for the stream? Of course, I’ve avoided paying $20 for the DVD.

Forcing all creative works to be distributed with all uses available to all consumers means we all pay the maximum possible price, regardless of our intended use. Increasing the cost of all creative works is not good for consumers, and will only drive piracy rates higher.

And what of those infringers? If I download a sound recording from an unauthorized P2P site and share it with others, but am not charging anyone for the song, is that noncommercial? And what could be more personal than “sharing”? What if I said it’s not a song I would have been willing to pay for, so there is no lost sale to the performing artist, composer or label? And what if those downloading the tune off of my computer make the same argument?

Copyright law has long recognized that unauthorized noncommercial and personal uses often have significant impacts on the ability of a copyright owner to exercise their rights in the market. That is why such uses have not been given blanket exemption under law.

These Seven Sneaky Words are in fact sneaky because while presented as modest tweakings of fair use law, they in fact invert the premise of copyright law enshrined in the U.S. Constitution. With the addition of these Seven Sneaky Words to the U.S. Code, we abandon the Founding Fathers’ position that the starting point in promoting culture is awarding creators with rights, not taking them away.

The damage they would wreak doesn’t end there, of course. These Seven Sneaky Words are followed with language that would essentially exempt any infringer from suffering any real consequences if they simply declared they thought they were following the law. Don’t try that with a police officer if you’re ever pulled over for speeding.

And what magic pass would the infringer receive? No fear of statutory damages or covering a copyright owner’s legal fees. In other words, you still can’t exceed the speed limit in your car, but if you infringe someone else’s work, the worst that can happen is that, after they track you down and sue you in court, you’ll just have to pay what you would have had to agree to pay had you asked for permission first. Hmm, hard to see why anyone would ask permission at that point. But of course, that is the ultimate aim of the copyright opponents promoting this draft legislation.

Congress and the federal courts have done a remarkable job of taking a flexible area of the law – fair use – and guiding us to a world in which both creators and end-users of creative works can prosper. With the system clearly not broken, there’s no reason to try to “fix” it.

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This entry was posted on Wednesday, March 10th, 2010 at 2:12 pm by Patrick Ross and is filed under capitol hill, copyright law, copyright opponents, creators, drm, fair use. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.