The OTHER bailout: this one is clearly unconstitutional ...
While the world was preoccupied with legislation purporting to be the Emergency Economic Stabilization Act of 2008, the Senate was busy passing another bailout bill – this one as a favor to the Hollywood moguls who are destroying our copyright system with the incessant cries of piracy.
The original copyright and patent laws were designed to encourage artists, writers, inventors and others to share their works with the public. In exchange for allowing their works to enter the public domain, creators were given a period of time to exclusively profit from the creations of the labor.
Corrupting the system …
Like the Wall Street Wizards who create nothing substantial, but profit on the labors of others when they create, market and trade securities, the Hollywood power structure became the distributors of the creative works of others. In many cases, hiring the actors, writers and others to produce a “work for hire” which they then copyrighted in their own name. And there is nothing wrong with that.
However, to avoid their works from falling into the public domain, they began plying members of Congress with campaign contributions and other inducements to enact longer and longer exclusive periods of time.
But, for those works that were already in the public domain, the created the fiction that is the Digital Millennium Copyright Act which allows any content, including materials in the public domain, to be secured with a electronic wrapper – and then criminalized breaking the electronic wrapper, even though the underlying content was either in the public domain or had already been purchased by the consumer in another form.
Respecting the system …
As a creator of content, I respect the need to protect one’s work for the period prescribed by law. However, I take great issue with those who want to sell the very same content over and over; but in different forms. Imagine buying a digital copy of a work and then being denied permission to use the content on your television and your computer. The key to controlling this type of usage lies in the pricing of the content delivery systems. Including a CD with a bound book for a slightly higher price is an excellent example of a value add that should appeal to consumers. Allowing the purchase of individual tracks of a CD for 99-cents, rather than being forced to purchase an entire album for an artificially set price of $12.95 or more.
Perverting the system …
However, the Hollywood distribution moguls were not content to merely control the content and the wrapper, they actively tried to inhibit the development and marketing of devices and media that would make the copying of digital materials easier for the masses. Note: the hackers have always been able to break encryption schemes and re-format the content into their preferred format. This did not dissuade the use of DRM (Digital Rights Management) Schemes which, in some cases, caused problems with computer and device operations. In a number of cases this resulted in hackers being able to hide malicious files on the host computer as the DRM software made these files invisible to the operating system.
Watermarking digital copies …
How many people really know that each Microsoft Word, Excel, and PowerPoint files along with PDF files created by Adobe’s software, as well as other software, contains an embedded unique identification number that can be tracked back to an individuals computer? Ditto for audio, video and other files sent by e-mail. Even today, copiers and printers embed coded characters that can identify the exact printer used to print the document.
Protecting the franchise …
This led to the restriction in marketing digital tape recorders. This led to imposing a royalty on magnetic material to be collected by manufacturers and remitted to a government entity which was to divide and distribute it to the artists and others whose works might be infringed. I say might, as the great number of magnetic media actually were used for such things as computer backups and had nothing to do with pirating audio or video.
Skullduggery on both sides …
Both sides of the digital divide play dirty. We all know what hackers do, but how about the other side which has been known to bribe employees to compromise their employers. Or pay for stolen files that support their case. Or engaging in expensive show trials of people who ultimately were found to be innocent of infringement – but who suffered public humiliation and the loss of a great deal of money defending against baseless claims.
And it is getting worse …
Here we find the Hollywood crowd, mostly in the guise of trade associations such as the MPAA (Motion Picture Association of America) and the RIAA (Recording Industry Association of America), doling out the Washington political goodies.
This has resulted in the passage of Senate Bill S. 3325 which is misleadingly named “Prioritizing Resources and Organization for Intellectual Property Act of 2008.”
Basically, this legislation was crafted to use the Department of Justice as a prosecutor of intellectual property infringement. And to seek monetary damages which would then be remitted to the content owner. Thus turning the DOJ into a combination enforcement and collection agency.
Nowhere is this power granted by the Constitution to the Federal Government as the government is charged with pursuing criminal infringement activities, not civil restitution claims.
The Attorney General agrees that this legislation would be inappropriate …
In a letter to Senators Patrick Leahy, Chairman, and Arlen Specter, Ranking Member, Senate Committee on the Judiciary, the Attorney General takes exception to the basic issues in Senate Bill S. 3225.
The Departments of Justice and Commerce have reviewed S.3325, the Enforcement of Intellectual Property Rights Act of 2008 ("EIPRA"), and truly appreciate the bill's intention to enhance the tools available for protecting intellectual property rights.
Nevertheless, we have strong and significant concerns regarding Titles I and IV. We are deeply concerned that the proposed legislation will undermine existing intellectual property enforcement efforts by diminishing the effective use of limited criminal enforcement resources and creating unnecessary bureaucracy.
It will also improperly micro-manage the internal organization of the Executive Branch.
Accordingly, as outlined below, we strongly oppose S. 3325 as reported out of Committee on September 15, 2008.
We strongly oppose Title I of the bill, which not only authorizes the Attorney General to pursue civil remedies for copyright infringement, but to secure "restitution" damages and remit them to the private owners of infringed copyrights.
First, civil copyright enforcement has always
These tools also provide strong incentives for all copyright holders, including individual copyright holders and small businesses not represented by trade groups or industry organizations, to enforce their rights.
Second, Title I's departure from the settled framework above could result in Department of Justice prosecutors serving as pro bono lawyers for private copyright holders regardless of their resources.
In effect, taxpayer-supported Department lawyers would pursue lawsuits for copyright holders, with monetary recovery going to industry.
Third, the Department of Justice has limited resources to dedicate to particular issues, and civil enforcement actions would occur at the expense of criminal actions, which only the Department of Justice may bring.
In an era of fiscal responsibility, the resources of the
The Departments also strongly oppose Title IV of the EIPRA, which would move into the Executive Office of the President (EOP) from the Commerce Department the "U.S. Intellectual
This Presidentially appointed IPEC would have primary responsibility for developing and coordinating Administration policy for IP enforcement across the Executive Branch. While the Administration has been a long time supporter of strong inter-agency coordination -- and is willing to work with the Committee on this topic -- the statutory creation of an EOP coordinator with the duties described in the bill constitutes a legislative intrusion into the internal structure and composition of the President's Administration. This provision is therefore objectionable on constitutional separation of powers grounds.
The Administration has taken strong steps over the past eight years to ensure effective coordination and enforcement of intellectual property rights. The Administration put in place the Strategy for Targeting Organized Piracy (STOP!) Initiative which is currently being implemented by the National Intellectual Property Law Enforcement Coordination Council (NIPLECC) and
We look forward to working with the Committee to address these concerns. In the meantime, the Administration reserves judgment on the final bill. It is our hope that changes will be made so that the President's senior advisors can recommend that the President support the measure. The Office of Management and Budget has advised that there is no objection to the transmittal of this letter from the standpoint of the Administration's program
It gets worse …
Other bill provisions provide for seizing computers, especially servers, which are then forensically searched for infringing materials. In many cases, the fact that files have been routinely erased or erased using advanced file erasure programs has been characterized by trade association attorneys as being evidence of infringing activities or the destruction of evidence – although no proof of such activities exist.
In addition, the bill calls for the government to “Assist State and local law enforcement agencies in enforcing those laws, including by reimbursing State and local entities for expenses incurred in performing enforcement operations, such as overtime payments and storage fees for seized evidence.”
There are a number of other highly objectionable provisions contained in the proposed legislation. Should you care to review the entire bill in context, it can be found at the end of this blog entry in the “Reference Links” section.
What can YOU do?
It is time to end the special relationship between the Hollywood distributors and the government. Especially in areas which diminish the public’s right to legitimately access and use content for which they have already paid; as well as eliminating the interference with the design and use of electronic devices.
Piracy, at least in the United States, can be easily controlled by using the principle of value pricing. That is, the cost of the authorized version makes the time and cost of duplicating a work unrewarding. Continue to prosecute the infringement of intellectual property in both civil and criminal venues, as appropriate – and do not involve the Department of Justice in enforcing and prosecuting private civil matters. Personally, I like buying record tracks from Amazon.com for 99-cents rather than buying the entire CD or album.
Call your elected officials to demand they stop falling prey to Hollywood-based trade unions and passing unduly restrictive legislation which does nothing for the public interest.
Other than for permitted purposes and “fair use” exemptions, do not distribute copyrighted material which deprives the creator of their rightful due.
Contact Senator Leahy and express your displeasure with this legislation. Remember to be respectful as Senator Leahy is a champion of privacy and open government initiatives.
Sen Alexander, Lamar [TN]
Sen Bayh, Evan [IN]
Sen Bond, Christopher S. [MO]
Sen Boxer, Barbara [CA]
Sen Brown, Sherrod [OH]
Sen Cardin, Benjamin L. [MD]
Sen Clinton, Hillary Rodham [NY]
Sen Corker, Bob [TN]
Sen Cornyn, John [TX]
Sen Feinstein, Dianne [CA]
Sen Graham, Lindsey [SC]
Sen Gregg, Judd [NH]
Sen Hatch, Orrin G. [UT]
Sen Hutchison, Kay Bailey [TX]
Sen Levin, Carl [MI]
Sen Schumer, Charles E. [NY]
Sen Smith, Gordon H. [OR]
Sen Specter, Arlen [PA]
Sen Stabenow, Debbie [MI]
Sen Voinovich, George V. [OH]
Sen Whitehouse, Sheldon [RI]
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“The key to fighting the craziness of the progressives is to hold them responsible for their actions, not their intentions.” – OCS
"The object in life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane." -- Marcus Aurelius
“A people that elect corrupt politicians, imposters, thieves, and traitors are not victims... but accomplices” -- George Orwell
“Fere libenter homines id quod volunt credunt." (The people gladly believe what they wish to.) ~Julius Caesar
“Describing the problem is quite different from knowing the solution. Except in politics." ~ OCS