With a fisted left hand, the entertainment industry pays BayTSP run by former black-hat cracker, Mark Ishikawa, up to US$50,000 per month to determine who is illegally copying protected works on the net. Robert Cringely has discovered that BayTSP is the “primary enforcer for the Digital Millennium Copyright Act (DMCA)” so it should come as no surprise that Ishikawa regularly receives death threats. According to Cringely, BayTSP provided the information Adobe used to prosecute Dmitry Sklyarov for breaking Adobe’s eBook copy protection.
BayTSP uses spiders to search the Internet for files that are either illegal to own or those that are being illegally copied. BayTSP does not sniff packets to look for illegal material or activity. “That would be wiretapping, which is illegal,” Ishikawa tells Cringely. “All we do is go to the same places any user could go, look at the same files anyone else could look at, and we only probe the ports on your computer that you have made public.”
This is Romper Room stuff, though compared to Ishikawa’s attempt to rationalize his company’s behavior in relation to an alleged correlation between child abduction and kiddy porn: “There seems to be an increase in child abductions and murders in the US and when the abductors are caught and you look on their home computers, you inevitably find kiddy porn. So it is a precursor to this bad behavior, and just as the Internet makes it easy to distribute child pornography, it effectively encourages these criminals. We are working to end that.”
The problem with this logic should be obvious. Investigators of the contents of the computers of child abductors would also just as “inevitably” find Microsoft Word. Without for a minute defending kiddy porn (or Microsoft Word, for that matter), the correlation of kiddy porn (or Microsoft Word) to child abduction may be true, but correlation does not equal causation.
It’s also quite disturbing that an unregulated private enterprise is basically in the business of providing investigative services for law enforcement agencies.
With a velvet-gloved right hand, the entertainment industry launches multimillion dollar advertising campaigns to tell us (repeatedly) that downloading music and movies is wrong. The first wave focuses exclusively on the “problem” of downloading music on the Internet. It’s backed by an organization known as Music United for Strong Internet Copyright (MUSIC) that is comprised of record labels, managers, and musicians.
According to a Wired News report, the ad campaign is intended to counter-balance the litigation and lobbying undertaken by the record labels that have been disparaged by the technology industry and Internet users. According to a KPMG International study, the litigation and lobbying activities of the record labels have actually done more harm than good, alienating users and hindering the adoption of subscription services.
The entertainment industry has been active in the political arena as well, championing two bills that will likely be at the top of the Congressional to-do list at the start of the next session. One bill would mandate copy protection devices in all new electronics equipment and the other would allow copyright owners to hack into computers if they so much as suspect illegal activity.
The entertainment industry is facing resistance not only from its customers but from the recording artists as well. In a September informal Joint Hearing of the Senate Committee and Senate Select Committee on the Entertainment Industry, record label lawyers testified that most recording artists are happy with their contracts because so few musicians audit the books of their labels or sue for breach of contract.
The position of the label lawyers is disingenuous at best. As they surely know, standard recording contracts prohibit artists from showing royalty statements to third parties, including the committee itself. Recording artist Don Henley openly challenged his label, Universal Music, to sue him for disclosing his most recent royalty statements to the committee. And that disclosure was most enlightening. Henley’s contract calls for a maximum of a 10 percent reserve against units shipped, but Universal had retained more than that for eleven pay periods. This is the same fraudulent activity for which I won an arbitration award against a publisher years ago.
At any rate, Henley apparently fared far better than Back Street Boy Kevin Richardson, who testified his band has yet to receive any royalties at all. If that’s not bad enough, the wife of Chambers Brothers member Lester Chambers, testified that band never received royalties or advances.
But get this: Most recording contracts stipulate that records pertaining to the actual manufacturing process are exempt from any audit. Unless you know how many units were actually produced, it’s impossible to get an accurate accounting of sales. Add to that the fact that the labels regulate who can actually perform an audit and you have a system that is ripe for corruption.
Unlike recording artists, book authors need sell only enough copies to recoup any advance they received before they start earning royalties. Recording artist have to sell enough copies to recoup any advance plus any money spent by the label on their behalf for niceties such as promotion, tour support, the cost of the actual recording sessions, and the like.
In the grand scheme of things, though, a much more important event will take place Wednesday, when the US Supreme Court hears the case of Eldred v. Ashcroft. This is a challenge to the Copyright Term Extension Act (CTEA), which lengthened copyright terms to life plus 70 years for individual copyright owners and 95 years for corporate owners. The battle lines have been drawn and the arguments are simple: Those favoring access to information want more copyrighted material to enter the public domain; the entertainment industry wants to milk every last nickel from the properties they license and face losing billions of dollars in revenues if they lose this case.
Of course, it would be too simple if the Supremes would actually hear this case on those merits. It doesn’t work that way. Instead, the Court will decide the much narrower question of whether Congress has the right to extend copyright law without similarly extending the “progress of science and useful arts” as required by the Constitution.
Digital-rights activists, like Stanford University professor Lawrence Lessig, argue that changes to the copyright term are appropriate only if the change promotes innovation and the creation of new works. On the other hand, the entertainment industry and government argue that the latest copyright term extension promotes new works by protecting the economic value of creative works and thereby preserving greater incentives to create new works. The entertainment industry’s ace in the hole in this poker match may be the argument that the Constitution grants Congress — not the courts — the sole right to regulate copyright.
It’s important to note that Congress has extended the copyright term 11 times since 1962, and the impetus has generally been seen as the copyright expiration of the first Mickey Mouse Film, Steamboat Willie. This is especially troublesome for digital-rights activists like Lessig because it points to Disney’s hypocrisy: The Mickey Mouse character would still be protected as a Disney trademark, and Disney has made a very profitable business out of recycling classic material in the public domain. As Lessig explained in mid-August, “Disney could do this [creating new versions of old classics] because [of] a cultural commons, where people could freely take and build [new versions]. No one can do to Disney what Walt Disney did to the Brothers Grimm. There is no such thing as the public domain in the minds of those who have produced these 11 extensions these last 40 years because, now, culture is owned.”
The Eldred v. Ashcroft case is seen by most observers as a gateway case that, if successful in rolling back the copyright term extension, could result in other controversial new laws — specifically the DMCA — being overturned.
Copyright has always been a precarious balance between the rights of the individual creator to benefit from a limited monopoly on his or her work against the rights of society to benefit from access to the work. The Constitution is actually quite clear on the balance of rights issue, granting Congress the power “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The question that the Supremes should be answering, but probably won’t is what, exactly, constitutes “limited times.” It’s hard to argue that 70 years after an author’s death is “limited times.”
Nonetheless, I’ve come to believe that the United States justice system with regard to corporate rights follows a bizarre corollary of Sidney Jourard’s observation that all behavior is based on maintaining or enhancing the self-image. In the case of corporate rights and governance, all law is based on maintaining or enhancing the corporate image. With that in mind, it should be grand spectator sport to watch how the Supreme Court wrestles and finesses the idea that life plus 70 years is “limited times” into palatability for the citizenry.