Peter Yu, a law professor at Drake University, has offered the entertainment industry “more convincing proposals for digital copyright reform” in his article, Digital Copyright and Confuzzling Rhetoric.
Over the years, intellectuals “have advanced many different arguments for or against stronger copyright protection and enforcement.” To help the readers better understand the debate, Part I of Yu’s article examines four arguments he finds unpersuasive to support “reforms that strengthen copyright protection and enforcement in the digital environment.” Part II scrutinizes four arguments he finds equally unpersuasive to back “retention of the status quo or the weakening of the existing copyright system.” Calling industry arguments unconvincing to drive digital copyright reforms, Yu gives five strategies in Part III to make the industry’s reform proposals more persuasive. Finally, in Part IV, Yu “concludes with two short stories to illustrate the tremendous difficulty for the public to appreciate the complexities in copyright law.”
Let’s look more at each part, skipping Part IV, which employs anecdotes that don’t easily summarize to make points:
Yu says one of the most common unconvincing arguments for stronger digital copyright protection is the “sky is falling” argument. Copyright owners initially complain often about “the adverse impact of new technologies,” but then “find these … later opening up new markets for their products and services” Jack Valenti, the movies’ longtime lobbyist, for example, called then-new VCRs a threat to cinema, though they fast “became the industry’s new best friend, bringing with him new revenue and opportunities.” As Jim Griffin, former head of technology at Geffen Records, once said, “In the history of intellectual property, the things we thought would kill us are the things that fed us.” Yu says it’s not the sky crashing but “if anything is falling, it is the outdated business model that the entertainment used since the pre-Internet age.”
Noting clear differences between real and intellectual property and laws governing both, he dismisses another industry argument: “If you don’t steal cars, why steal music?” which comes from the MPAA’s (Motion Picture Association of America) anti-piracy commercial.
Yu also rejects the “YouTube is crap!” argument, saying “creative reuse and modification of preexisting materials…are highly valuable to society. They ensure – [e}veryone — not just political, economic, or cultural elites — ha[ve] a fair chance to participate in the production of culture. …” He adds that many YouTube videos likely qualify for fair-use exemptions and don’t violate copyrights.
Yu crushes the “there is no human right to steal” argument, noting that while it is true that “no one shall be arbitrarily deprived of his property,” the U.S. Supreme Court, in Dowling v. United States, found that “interference with copyright does not easily equate with theft, conversion, or fraud.” This argument, he says, is “more a deflection of criticism than a direct response to address the fair and serious concerns over the erosion of human rights.”
On the other hand, those who want to maintain weaken copyright protection also have unconvincing arguments, such as what Yu calls the “artists should hold concerts and sell T-shirts!” argument.
Because of the Internet and other technologies with possible adverse effects on copyright protection, “some commentators suggested that artists should switch to a new model that relies solely or primarily on alternative compensation, such as live performances, broadcasts, webcasts, movies, commercials, merchandising, and endorsements,” Yu says. Unfortunately, he adds, not all artists can earn a living from these; many are songwriters and producers who may not wish to or cannot perform live. Further, he says, “who are we to tell artists that they should perform live to survive?”
He slams the “file-sharing services free artists from the industry stranglehold!” argument. Although it is true that “record companies have been ripping customers off with huge profits for years,” this does not justify file-sharing services, like Napster, because they “had not shared [their] profits with songwriters and performing artists.” And unlike record companies, file-sharing services do not recognize artists rights. The services also displease artists because they put “incomplete or low-quality versions of their works … online without their authorization.”
Yu finds the “Britney Sucks!” or “XXX sucks” argument unpersuasive. This is critics’ attack on “the entertainment industry by noting how [it] benefits only a certain groups of artists – often artists that have a strong commercial appeal or artists they do not like,” such as Britney Spears, Lady Gaga, and Justin Bieber. Yu says these nay-sayers want the “existing winner-take-all” business model eliminated or replaced. While this model does not benefit all artists, it does help those with commercial thrive, despite heavy downloading of their work, and eliminating it does nothing about copyright.
Yu sees fault in the “if you don’t want your stuffs stolen, share them with others!” argument, saying if it works and weakens copyright protections or destroys the system, artists would lose incentives “to create and disseminate works of social value. … development of copyrighted content requires a lot of time, effort, and resources. By providing protection for a limited duration, the copyright system provides artists … with an opportunity to recoup the investment incurred in creating the protected works.”
To make the copyright system work better, one strategy might be to “show [its] human face.” Those who share files are unconcerned about “ripping off a faceless corporation, like a record company, [but] they may ‘think twice if the victim of their predation has a human face,’ ” like a favorite movie or recording star. Fans have shown greater willingness, in fact, to pay for downloadable, copyrighted works, if they know that favored artists get their share. The public is “generally sympathetic to the needs of the artists [and] less sympathetic toward the concerns of their wealthy investors.”
The industry could better make its case for greater regulation if it could “provide credible empirical support” for data it uses to “demonstrate the seriousness and gigantic scale of the piracy and counterfeiting problems.” While the figures show harm, they also get undercut by a lack of credibiloity because “many of them were supplied by self-interested trade groups without independent verification.”
The industry also could sway public opinion better if it put its “focus on the bad guys – and only the bad guys,” rather than adopting current tactics in which it targets “good guys” to catch the bad. Although the industry has pursued bad guys for commercial piracy, it “also pushes for measures that penalize ordinary citizens who engage in noncommercial copying.” So not only does it draw public ire for filing lawsuits against individuals who share files, the industry has a “non-apologetic attitude toward the unintended problems its aggressive approach has caused to innocent people.” The industry, Yu says, should develop new tactics to “target those who commit copyright piracy for profit or on a commercial scale while leaving alone those ordinary citizens who engage in noncommercial copyright.”
The industry, he says, should “develop a generally acceptable sense of priorities” in pursuing copyright violators because its aggressive crackdowns have inflicted serious damages societal damage, “eroding the rights to free speech, free press, [privacy, and many more].” Those who hold copyrights should remember that they are a small, elite group. And when asked “whether they prefer the protection of human rights or stronger copyright enforcement at the expense of human rights protection, many of those outside the industry are likely to pick greater protection of human rights. …”
Finally, Yu says, advocates should stop using “foreign piracy as an excuse.” Although politically expedient, this move also is unfair because “foreign voices rarely have the ability to respond in the domestic political process.” Further, the focus on overseas scofflaw could give the misleading impression that “many of the existing domestic online copyright problems will disappear if foreign problems could be resolve.”