Continuing open conversations with Christopher Moore (writer of history, Access Copyright director)

The following is part of an ongoing public conversation between myself and Christopher Moore. I am posting this as a new article rather than an addition to the ongoing thread in a past article to draw more attention to the conversation and invite additional participation.

Christopher,

We have many different topics mixed together in one thread. I'm going to try to divide them up by themes, so please let me know if I did so incorrectly.

I thought – think – Lessig’s nostalgia for that era suggested the way his vigorously stated support for copyright-in-principle can sometime flag at about the point when practical suggestions for copyright administration are offered.

Please don't presume that because people disagree with you on what constitutes "practical suggestions for copyright administration" that they somehow don't support copyright, or that they believe that the law will (or should) give way to lawlessness. We could equally interpret some of your suggestions for copyright administration as a rejection of some of the basics of copyright's respect for authors' rights (more later under "voluntary licensing"), but that interpretation would also not be helpful.

Guilt by Association

The Grokster case was quite complex, and people on all sides of the debate claimed some level of defeat and success. The case was not about whether the activities of the users of the tool were infringing or not. Clearly some of this activity was infringing, and some was non-infringing, and it is unnecessary for our discussion to debate about exactly how much was.

The question being asked was how much intermediary liability should exist, in this case for a company that was the author, distributor and marketer for software and related service. The same question is put forward in many other ways, such as with ISP liability and how much those running ISPs should be held liable for the infringing activities of their customers. A related question is how much control over the activities of their customers the intermediaries should be mandated to have, or conversely how much they should be allowed to have (the "net neutrality" debate, where I side with those who believe intermediaries should not be allowed to exert control over their customers).

In the case of Grokster they were marketing their software and service as a way to infringe copyright, and that clarified the issue for the courts. I still believe that intermediaries should not be held liable for simply providing a service (whether as an ISP or software author) that has non-infringing purposes (the Sony-Betamax type of case), but consider it reasonable to separate the multi-purpose service from the specific purposes marketed by an individual supplier. This clearly separates Grokster from BitTorrent, although not quite for the reasons why I'd never touch software like what Grokster was distributing (I consider it a security risk to run such software), but use BitTorrent all the time to share files that are authorized to be shared by their copyright holders.

I believe that Lessig got painted by a wide brush of those who were seen to be "on the same side" in that case. I find myself in a similar situation often. If you look at the comments in another article (Former RIAA head Hilary Rosen disagrees with lawsuits and DRM...) you will find me debating with someone who doesn't seem to see any value for copyright at all. This person appears to question my belief that the author should have the freedom to choose their own method of production, distribution and funding, and that this choice be legally protected by copyright law, no matter what my personal choices would be.

I am not a user of royalty-based business models for my own work, and only use business models which fund the one-time development costs and allow the marginal price to be zero. Given this I often get lumped in with some sort of anti-copyright crowd, not because I don't support copyright but because I use a different set of methods to express my creative rights.

I believe that you have tarred Lessig the same way, lumping him in with a crowd that believes that the Internet sees copyright/censorship as "damage" and routes around it. I am not a believer in this rhetoric, and the very fact that I'm involved in copyright policy at all should be seen as proof. If I believed that technological determinist view that copyright didn't matter, why spend so much time worrying about it?

Rejecting the controversial 1996 WIPO treaties

You suggest that recognizing the flaws of the 1996 WIPO treaties, not ratifying them, and working towards sound cultural and technology law is defying the world. I observe the controversy and opposition to these treaties growing every day throughout the world, especially in majority-world BRIC countries (Brazil, Russia, India, China), even if some governments with smaller populations are a bit behind the curve in protecting the rights of their citizens.

The 1996 WIPO treaties came out of some very flawed thinking in certain western governments more than a decade ago, back when FAX machines were way-cool and the vast majority of people involved in authoring the policy had no clue what the Internet was or how technology worked. They made some presumptions about communications technology that were about as logical as believing that the world was flat.

Fortunately a growing number of Canadian creator groups starting with technology creators, then musicians, then artists, (and hopefully soon writers , such as the creator-members of Access Copyright) have come out against the many flawed elements of these treaties. They have been joined by privacy, security, and other specialists.

I mention the ICC and ICJ for a reason, which is that blindly saying that "other countries did it, then so should we" is not a valid reason to ratify, or not ratify, a treaty. Canada should be deciding whether to ratify a treaty based on what is in the best interests of Canada and our roll in the world.

It would be far less work for Canada and the rest of the world if we didn't ratify the 1996 treaties and instead took this time to analyse the issues with the new information that nobody paid attention to when these treaties were authored. It is just plain stupid for Canada to ignore all the experience and simply follow down a path that anyone who bothers to look realizes is a bad idea.

If creativity and various communications rights are to survive longer-term we will have to eventually dig the world out of the types of holes being dub by the 1996 treaties, and it is clearly in Canada's best interests (competitively and otherwise) to be ahead of the game. While existing structures such as WIPO seem to be quite willing to set a minimum of protection for past copyright holders, we must start to balance this out with a minimum of protection for future creators and the rights of the general public by putting maximums on the scope and term of copyright.

I am curious if you will be attending the Creators Rights' Alliance Autumn event Copyleft / Copyright / Copywrong – Is Copyright obsolete in the Digital Age?. I suspect Gilberto Gil will quite convincingly explain how rejecting the 1996 WIPO treaties is not "defying the world", given the countries that are proponents of the Development Agenda in WIPO represent far more of the world than those special interests that support the 1996 WIPO treaties.

Voluntary licensing

Voluntary licensing isn't a "Libertarian thing", but a fundamental recognition of creators' rights. It should be the author, not the government or some other third party (like educational institutions or collectives) that decide what method of production, distribution and funding the author uses for their own creativity.

As mentioned in another article (How CMEC and Access Copyright seek to destroy the Internet), there are extreme exceptions where there aren't viable choices available to creators, so simplifying the administration of the remaining choice makes sense. I believe that for recorded music, movies and television that royalty collection is the only viable funding model at this point in time.

But that throws us right back where we started. You seem to be claiming that all creators, including those types of creators who's representative organizations are part of Access Copyright, only have two viable choices: collecting royalties through a collective society, or be part of the "permission culture" that Lessig warns about. I can't accept this claim for an obvious reason, which is that I'm an author that is already using a third option, and I believe that there are even more options that I'm not personally aware of.

I'm not entirely sure why you have rejected the economic analysis of why non-voluntary collective licensing destroy markets where there is not a market failure (IE: where there are no viable options for creators). Is it because you believe that there are only two choices, or that you believe that extended or statutory licensing doesn't harm the various other options?

I'm repeating myself about my business model, which relies on funding the one-time creation costs and then requiring that the royalty fee be zero. If I can't go to a potential customer and tell them how much they will save if they hire me rather than a royalty-collecting competitor, then I won't get paid. If they are customers of a non-voluntary collective, then they can't save royalties by hiring me. Simple economics: the collective has put me out of a job, and this situation feels no different to me than massive infringement or excessive exceptions to copyright putting you out of a job.

(Note: just because I'm opposed to Access Copyright imposing themselves on creators doesn't mean I agree with CMEC's view on educational copyright).

You suggest that negotiations at the Copyright Board adequately account for works in the public domain or creators who are using alternative methods of funding. While this might be the theory, I believe we both know that this isn't true in practise. Only the big-boys have the massive resources required to participate in Copyright Board hearings, which means that it is an all-out take-no-prisoners battle between the royalty collectives and their largest customers debating about the rate that will be charged. There has never been room in the Copyright Board process for creators independent of (competitors to) a collective or our customers to weigh in and have our basic rights protected.