Copyright: locks, levies, lawsuits or licensing? Part 3: lawsuits

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 activitieswhich someone can do with human creativity that requires permission ofthe copyright holder to do legally. If you do one of these thingswithout permission, the copyright holder has the right to sue you.

For a variety of reasons, however, many copyright holders are nothappy with this situation. They keep asking the government to makecopyright “stronger” by requiring permission for an ever-growing numberof activities, for an ever-growing amount of time, but they are notwanting to actually sue people who infringe copyright. Sometimescopyright holders want to scapegoat someone other than the infringer,such as the rhetoric around blaming so-called “enablers” which are mostoften the providers of multi-purpose technology or services, or theywant 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 relationsissue when he said the following: “You just can’t say I’ll see you incourt, and then say I’ll see you at Massey Hall. I’d rather see them atMassey Hall.”

In this case, he feels that launching lawsuits against music fansfor sharing music would have a public relations cost that would exceedany possible reward. I totally agree with him, but it is important torecognize that this statement came with further direction on thequestion of locks, levies, lawsuits or licensing. As the most visiblespokesperson for the Canadian Music Creators Coalitionhe is endorsing a message that says that “Suing Our Fans is Destructiveand Hypocritical” and “Digital Locks are Risky and Counterproductive”.The group has endorsed the proposalfrom the Songwriters Association of Canada to license P2P musicfilesharing rather than trying to stop it (IE: no locks or lawsuits).

This is a clear case where lawsuits are not the appropriate answerfor a usage where both the majority of musicians and music fansconsider to be socially beneficial, and where some form of licensing iswhat is desired (compulsory or voluntary, as discussed in part 2).

I consider the user generated content, clip sharing and variousnon-commercial mashups we see on video sites like YouTube to also besocially beneficial. These are uses of content where locks and lawsuitswould be counter-productive and inappropriate, and where some licensingmodel to monetize rather than attempt to prohibit this activity must bedevised.

These are relatively unique situations and should not beextrapolated to other areas of copyright. Attempts to “harmonize”copyright for all forms of creativity will be a failure given eachcreative market works differently. What is true in the music industrywith filesharing, or the television/movie industry with YouTube, reallyhas nothing in common with the dynamic that is happening with fictionbook authors, graphic artists, or software authors.

In software the best choice when the licensing method chosen by thecopyright holder is violated is most often lawsuits. Copyright holdersare offering licensing for their software, and there are a wide varietyof software authors offering competitive software that provides similarfunctionality using a wide variety of licensing options. If a softwareuser does not like the terms offered in an End User License Agreement(EULA) from Microsoft, Apple or Adobe, then it is a relatively simplething for them to choose software from a proprietary competitor thatoffers a more reasonable EULA, or switch to software using Free/Libreand Open Source Software (FLOSS) licensing terms which don’t restricttypical end user activities (FLOSS licenses put conditions onredistribution and authors of modified versions).

Unlike the music situation, people generally know they are doingsomething wrong when they infringe software copyright. They may do itanyway because they don’t think they will get caught, but they won’t besurprised it was illegal if they get sued for doing so. Also verydifferent than the music situation, there is little public sympathy forsomeone found guilty of infringing software copyright who violated theobvious terms of the license agreement. Claiming one could not afford agiven software application doesn’t (and should not) garner muchsympathy when a growing number of people realize there are legally freealternatives that work just as well (if not better in some cases).

As a software author using FLOSS licenses, I know that there arepeople protecting the enforceability of my favourite licensingagreements through taking infringers to court. I see press releasesfrom 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 mostof the things they want to do for free, so those infringing ourlicenses are software distributors, most often larger companies whoshould know better. Ironically, the companies found infringing ourcopyright are often the same companies who try to lobby the governmentfor “stronger copyright” that is more tilted in their favour.

In these situations, there is no public relations harm to thecopyright holder by enforcing copyright through suing copyrightinfringers.

The other claim I often hear is that copyright holders can’t affordto enforce their own rights. This is a generic problem with the legalsystem being expensive. It is also a problem for people who might bewrongfully accused of copyright infringement. I suspect if analysis wasdone it would be found to be more often the case that an allegedinfringer will have to settle out of court for a non-infringingactivities, than a copyright holder not being able to sue for aninfringing activity.

With current statutory damages,and the fact that non-commercial citizen infringement and commercialinfringement is all too often considered equivalent, I believe that thesocial costs of false allegations of copyright infringement is worsethan the social costs of unenforced copyright. This is an area ofcopyright law that requires serious reform to recognize that not allcopyright infringement, or alleged copyright infringers, should betreated the same. We also need serious legal consequences to launchinginvalid or frivolous copyright lawsuits.

Copyright holders have the easy option of joining together inassociations to pool resources to hire lawyers. In many cases all thatis needed is a letter from a lawyer to the alleged infringer, with thecase not needing to go to court at all. With copyright holders winningin the courts, it also becomes far more clear to Canadians what is andis not allowed under the law. (There is considerable misinterpretationof the BMG vs Doe case, and the fact that the cast was lost due to lackof evidence — not that unauthorized sharing of music is somehow legal).

When I was at university and thinking about my future career insoftware, I was attracted to the Free Software movement partly becauseof the copyright enforcement question. I knew that if I used customlicense agreements for my software that I would be on my own enforcingthem. 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 withme to ensure that any potential infringer understood these licenseswere enforceable.

Ignoring the option of filing a lawsuit against a known infringer iseffectively giving up on copyright. This is harmful to all of us, as itcauses people to lose respect for a law if not adequately enforced.When it comes to who pays the legal bills for these lawsuits, it shouldbe clear that it should be the primary beneficiaries: the copyrightholders. It is not valid to try to have taxpayers or some other grouppick up the tab, especially when there are alternatives available tocopyright holders that would reduce the necessity for them going tocourt. It is simply unfair for them to expect to reap all the rewardsfrom copyright, but not have to do any work or pay any of the costs oftheir own choices.

The other thing I notice from those who say they can’t afford toenforce their own rights is that I’m not often given examples ofinfringement when I ask. There is a perception from what they hear fromthe music, movie, television and software sectors that there is amassive 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 theirstatistical analysis and found it greatly lacking — suggestinginfringement 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 evidencethat there are serious problems that need to be solved with anyenforcement method, or any changes to copyright law. Current law andthe current market for creative work is simply working fine. I oftenhave conversations with fiction book authorswho are quite worried, want copyright to be “stronger” and “respected”,and are sometimes proponents of the direction taken with Bill C-61, butdon’t offer me examples of online infringement of fiction books toclarify what they are worried about.

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Jim Love, Chief Content Officer, IT World Canada

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