When writers, musicians, artists and publishers survey the wreckage of copyright enforcement, they can blame plenty of people – internet service providers (ISPs), companies such as Google and its YouTube arm, peer-to-peer file-sharers – but they are also guilty.
Last week’s US court ruling striking down Viacom’s challenge to YouTube for having hosted hundreds of thousands of copyright-breaching video clips from its properties such as MTV and Comedy Central is further evidence of the weakness of copyright enforcement.
Apart from the legal climate, publishers, music companies and Hollywood studios face the bleak reality that they have lost the ethical high ground. Many people now regard it as acceptable to make and publish illegal digital copies, believing the law to be an ass.
Even publishers do so. When Rolling Stone magazine obtained its interview with Stanley McChrystal that made him step down as head of US forces in Afghanistan, both Time and Politico published a samizdat copy online before Rolling Stone made it available itself. As David Carr noted in The New York Times, it “amounted to taking money out of a competitor’s pocket”.
Part of the blame for this sorry state of affairs can be pinned on the copyright owners’ moment of hubris 12 years ago – the Sonny Bono Act passed by Congress to extend copyright protection (yet again) to a maximum of 95 years. Under US law, Rolling Stone had nearly a century to determine how and where its article was copied; in practice, it got about five minutes.
The act – the latest in a long line of copyright term extensions since the US constitution enshrined patent and copyright protection “for limited times” – was passed after heavy lobbying from media companies such as Walt Disney. It saw the danger of characters such as Mickey Mouse falling out of copyright.
That law was correctly ridiculed by scholars such as Lawrence Lessig of Stanford University and James Boyle of Duke for over-extending monopoly rights and barring swaths of works from the public domain for decades. In contrast, US patents expire 20 years after they are filed.
“Current intellectual property policy is overwhelmingly and tragically bad,” Prof Boyle wrote in his book The Public Domain, arguing that most holders of copyright gain all the money from a work they will ever do within five or 10 years and the rest of the term is like a one-in-a-million lottery ticket for the rare artist such as J.K. Rowling.
Copyright was originally highly circumscribed. The 1710 Statute of Anne gave British writers rights for 14 years (admittedly they tended to die younger in the 18th century). The House of Lords decided in 1774 that perpetual copyright was illegal, later followed by the US constitution.
As well as being lengthened, copyright protection has been broadened. US holders used to have to apply for copyright extension but it is often granted automatically now. The Digital Millennium Copyright Act, under which Viacom sued YouTube, enshrined digital rights management and copy protection technology.
In practice, however, copyright has become a chimera for many artists and publishers since the Sonny Bono Act because it is hard to enforce and unpopular. Efforts to crack down on file-sharing sites through ISPs, for example in the UK Digital Economy Act passed in April, face huge practical difficulties.
Last week’s ruling by Louis Stanton, a New York judge, that YouTube was not required by the DCMA to do more than take down copyright-infringing clips when alerted to them by Viacom and others, is part of this pattern of copyright leakage. He declared that “the mere knowledge of [infringing] activity in general” did not put YouTube in breach of law.
As it happens, I think the judge was wrong and the appeals court is likely to reverse his ruling. It is hard to believe that the Supreme Court, which cracked down on the file-sharing service Grokster in 2005 – and this week declined to narrow the notoriously broad scope of business method patents – would accept that a site can passively await objections to mass copyright infringement.
But it leaves us with the absurdity of copyright holders being given ever greater theoretical rights while losing their practical ones. As Prof Lessig wrote in his book Free Culture of commercial piracy: “Despite the many justifications that are offered in its defence, this taking is wrong. No one should condone it and the law should stop it.”
This remains true, and most artists would, I suspect, take a 20-year copyright term that was rigorously enforced and gave them the rights the law is supposed to grant, in exchange for an imaginary century of ineffective protection.
In contrast to the contested nature of copyright, patent law has become less fraught. Patents are limited in length and the drugs industry – at one time under constant attack – not only has generic competition but has found ways to sell drugs cheaply in developing countries.
Copyright owners show signs of responding to legal and commercial pressures. Hulu, the US video site run by several television networks, this week unveiled a $10-a-month subscription scheme, part of the industry’s effort to give digital consumers what they want.
There is no grand bargain on offer to publishers but they should be willing to offer shorter, narrower terms to regain legitimacy. That was the approach they ignored a dozen years ago and it was a terrible strategic blunder.
More columns at www.ft.com/gapper
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