June CopyNight

We had a record turn out for this month’s CopyNight here in DC.  Must have something to do with both the fresh crop of Summer interns at the area NGOs and returning university students.  At more than one point in the evening I was concerned that Teaism’s management would ask us to break up the monster table we assembled to house the discussion.

We started off talking about the Thomas re-trial and the massive award handed down.  There has been some precedent for citing the 8th Amendment in trying to limit damages but this apparently is more common with seizures than monetary awards.  There may be a basis for at least arguing that the award is large enough to be considered a criminal punishment and subject to prohibitions on cruel and unusual punishment.  Given that both trials went so strongly against against the defendant, this is the only aspect likely to be challenged.  Especially since Thomas is unlikely to be able to fund an appeal at this point.

It was pointed out that the egregious amount may invite a legislative backlash.  This is likely to make the RIAA open to settling for a relatively more reasonable sum.  The threat of this sort of tipping point of public opinion may have informed the RIAA’s change of tactic from individual law suits to courting or pressing ISPs into filtering.

Next we looked at the ASCAP suit against AT&T.  The EFF has a nice bit of analysis on this.  ASCAP has tried similar suits before without success.  Section 114 speaks clearly to whether usage yields a profit and to the intent of unlicensed music uses.  Both sections 114 and 115 form a sort of mine field that ASCAP just hasn’t been able to navigate to broaden its claims, thankfully.  If it does manage to do so, clearly that will make them much more aggressive in pursuing future expansions.

Someone wondered about interpreting song lyrics as an implied grant, like Lynyrd Skynyrd’s “Turn It Up” in “Sweet Home Alabam”.  That led to some questions about direct discussion of copyright issues in music.  Carey Lening, one of the regulars, emailed me “Charity Case” by MC Frontalot and “Download This Song” by MC Lars to point out that clearly someone has.  Both of these are freely available and worth giving a listen.

We next examined the Pirate Party winning two seats in the EU Parliament.  Quinn Norton, who has recently moved to DC, shared her experiences interviewing both The Pirate Bay and the Swedish Pirate Party.  She explained that neither really see copyright as a political issue, more as a cultural one.  The Pirate Bay arose out of the demo scene, a bunch of hackers used to sharing files.  This led into a comparison of the differences in how the issues of copyright are seen in the EU and the US.

In the EU, there is an organized copyright reform movement.  In Quinn’s interviews, she found a sophisticated argument, relating action to civil disobedience.  In the US, there is no real reform movement as such.  Some of this may be perceptual, that at least in the US copyright is related to “mere” entertainment.  It may also be the greater ability of writers in particular to communicate about the need for copyright.  Copyright was contrasted at this point to patents where the result of abolishing that system is perhaps more grok-able.  Conversely, with patents each side of a license is usually equipped with resources for lobbying.

Quinn contends that the difference arises from the differences in how labor has developed in each region.  The demo scene hackers definitely show anarchic qualities so perhaps the question is related to the respective views on Pinkerton and other formative thinkers.  Even views on property rights which are often modeled as ways to monetize cultural goods can potentially be related back to labor.

The question of enforcement was also raised as a difference.  Enforcement in the EU is definitely less popular, leading to a bit of a chicken and egg situation for those favoring control.  Someone suggested that the US produces more cultural goods, in Hollywood in particular, inviting more protection of that output.

We wrapped on that topic by picking at the old saw about folks in the US being more litigious.  Someone offered a couple of choice thoughts: “regulation by law suit” and “law by contract”.  This may be a result of giving our government less power to regulate industry directly.  The various stakeholders then have to rely on the courts to deal with problems.

If you can attribute any of the “someones” in this post, please email me.  I was leading this discussion this month and was scribbling notes as much and as fast as I could while doing so.  Given the size of the group, we maintained focus pretty well, only breaking into multiple competing conversations once or twice.

Next month, the DC CopyNight is being hosted by the ALA, should be a good event.  I am looking forward to it.  You can go to the main web site to sign up for the announcement list for your local CopyNight or details on starting one if there isn’t one in your area.

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