In this series we have been talking about three ways of enforcing copyright: locks (part 1), levies (part 2) and lawsuits. In the future I will clarify an alternative to enforcement which is licensing (part 4) the specific usage.
In part 1 I stated that copyright is merely a series of activities
which someone can do with human creativity that requires permission of
the copyright holder to do legally. If you do one of these things
without permission, the copyright holder has the right to sue you.
For a variety of reasons, however, many copyright holders are not
happy with this situation. They keep asking the government to make
copyright “stronger” by requiring permission for an ever-growing number
of activities, for an ever-growing amount of time, but they are not
wanting to actually sue people who infringe copyright. Sometimes
copyright holders want to scapegoat someone other than the infringer,
such as the rhetoric around blaming so-called “enablers” which are most
often the providers of multi-purpose technology or services, or they
want someone else to do all the enforcement.
There are a variety of reasons given, but the two most common are public relations problems and lack of resources.
Steven Page of the Barenaked Ladies explained the public relations
issue when he said the following: “You just can’t say I’ll see you in
court, and then say I’ll see you at Massey Hall. I’d rather see them at
Massey Hall.”
In this case, he feels that launching lawsuits against music fans
for sharing music would have a public relations cost that would exceed
any possible reward. I totally agree with him, but it is important to
recognize that this statement came with further direction on the
question of locks, levies, lawsuits or licensing. As the most visible
spokesperson for the Canadian Music Creators Coalition
he is endorsing a message that says that “Suing Our Fans is Destructive
and Hypocritical” and “Digital Locks are Risky and Counterproductive”.
The group has endorsed the proposal
from the Songwriters Association of Canada to license P2P music
filesharing rather than trying to stop it (IE: no locks or lawsuits).
This is a clear case where lawsuits are not the appropriate answer
for a usage where both the majority of musicians and music fans
consider to be socially beneficial, and where some form of licensing is
what is desired (compulsory or voluntary, as discussed in part 2).
I consider the user generated content, clip sharing and various
non-commercial mashups we see on video sites like YouTube to also be
socially beneficial. These are uses of content where locks and lawsuits
would be counter-productive and inappropriate, and where some licensing
model to monetize rather than attempt to prohibit this activity must be
devised.
These are relatively unique situations and should not be
extrapolated to other areas of copyright. Attempts to “harmonize”
copyright for all forms of creativity will be a failure given each
creative market works differently. What is true in the music industry
with filesharing, or the television/movie industry with YouTube, really
has nothing in common with the dynamic that is happening with fiction
book authors, graphic artists, or software authors.
In software the best choice when the licensing method chosen by the
copyright holder is violated is most often lawsuits. Copyright holders
are offering licensing for their software, and there are a wide variety
of software authors offering competitive software that provides similar
functionality using a wide variety of licensing options. If a software
user does not like the terms offered in an End User License Agreement
(EULA) from Microsoft, Apple or Adobe, then it is a relatively simple
thing for them to choose software from a proprietary competitor that
offers a more reasonable EULA, or switch to software using Free/Libre
and Open Source Software (FLOSS) licensing terms which don’t restrict
typical end user activities (FLOSS licenses put conditions on
redistribution and authors of modified versions).
Unlike the music situation, people generally know they are doing
something wrong when they infringe software copyright. They may do it
anyway because they don’t think they will get caught, but they won’t be
surprised it was illegal if they get sued for doing so. Also very
different than the music situation, there is little public sympathy for
someone found guilty of infringing software copyright who violated the
obvious terms of the license agreement. Claiming one could not afford a
given software application doesn’t (and should not) garner much
sympathy when a growing number of people realize there are legally free
alternatives that work just as well (if not better in some cases).
As a software author using FLOSS licenses, I know that there are
people protecting the enforceability of my favourite licensing
agreements through taking infringers to court. I see press releases
from the Software Freedom Law Center talking about lawsuits against companies who have infringed various Free Software licenses, and I monitor the GPL violations website for updates on settlements by those infringing software licensed under the GNU General Public License.
In the case of FLOSS licenses we give end users permission to do most
of the things they want to do for free, so those infringing our
licenses are software distributors, most often larger companies who
should know better. Ironically, the companies found infringing our
copyright are often the same companies who try to lobby the government
for “stronger copyright” that is more tilted in their favour.
In these situations, there is no public relations harm to the
copyright holder by enforcing copyright through suing copyright
infringers.
The other claim I often hear is that copyright holders can’t afford
to enforce their own rights. This is a generic problem with the legal
system being expensive. It is also a problem for people who might be
wrongfully accused of copyright infringement. I suspect if analysis was
done it would be found to be more often the case that an alleged
infringer will have to settle out of court for a non-infringing
activities, than a copyright holder not being able to sue for an
infringing activity.
With current statutory damages,
and the fact that non-commercial citizen infringement and commercial
infringement is all too often considered equivalent, I believe that the
social costs of false allegations of copyright infringement is worse
than the social costs of unenforced copyright. This is an area of
copyright law that requires serious reform to recognize that not all
copyright infringement, or alleged copyright infringers, should be
treated the same. We also need serious legal consequences to launching
invalid or frivolous copyright lawsuits.
Copyright holders have the easy option of joining together in
associations to pool resources to hire lawyers. In many cases all that
is needed is a letter from a lawyer to the alleged infringer, with the
case not needing to go to court at all. With copyright holders winning
in the courts, it also becomes far more clear to Canadians what is and
is not allowed under the law. (There is considerable misinterpretation
of the BMG vs Doe case, and the fact that the cast was lost due to lack
of evidence — not that unauthorized sharing of music is somehow legal).
When I was at university and thinking about my future career in
software, I was attracted to the Free Software movement partly because
of the copyright enforcement question. I knew that if I used custom
license agreements for my software that I would be on my own enforcing
them. If, however, I used one of the popular licenses approved by the Free Software Foundation,
there would be a whole ecosystem of fellow authors who would work with
me to ensure that any potential infringer understood these licenses
were enforceable.
Ignoring the option of filing a lawsuit against a known infringer is
effectively giving up on copyright. This is harmful to all of us, as it
causes people to lose respect for a law if not adequately enforced.
When it comes to who pays the legal bills for these lawsuits, it should
be clear that it should be the primary beneficiaries: the copyright
holders. It is not valid to try to have taxpayers or some other group
pick up the tab, especially when there are alternatives available to
copyright holders that would reduce the necessity for them going to
court. It is simply unfair for them to expect to reap all the rewards
from copyright, but not have to do any work or pay any of the costs of
their own choices.
The other thing I notice from those who say they can’t afford to
enforce their own rights is that I’m not often given examples of
infringement when I ask. There is a perception from what they hear from
the music, movie, television and software sectors that there is a
massive amount of infringement that affects all copyright holders.
While I acknowledge that there is a fair bit of infringement in music,
movies, television and software, I have also picked apart their
statistical analysis and found it greatly lacking — suggesting
infringement in those areas is less than advertised. (See: Lies, Damned lies, and IIPA/BSA/etc statistics.)
For other types of works, I have not yet been shown the evidence
that there are serious problems that need to be solved with any
enforcement method, or any changes to copyright law. Current law and
the current market for creative work is simply working fine. I often
have conversations with fiction book authors
who are quite worried, want copyright to be “stronger” and “respected”,
and are sometimes proponents of the direction taken with Bill C-61, but
don’t offer me examples of online infringement of fiction books to
clarify what they are worried about.