The Responsibility of Culture: Artist rights survive attacks in US–for the moment

Is “I dabbled in witchcraft, but I didn’t join a coven” the new “But I didn’t inhale”? There is no doubt–we are deep in the silly season of American politics.

If you are an artist standing around watching your life’s work being ripped off in the name of “consumer rights” by some of the largest commercial actors in the world you may think that there are a lot more important things to be concerned with than these. Thankfully, some legislators think so, too, as evidenced by the Combating Online Infringement and Counterfeits Act in the US Congress.

Many in the anti-copyright movement would have us believe that there is a “market failure” in the distribution of online content justifying an “intervention” by the government to “legalize” file barter in its many forms and establish a compulsory license for all digital works. Meaning that these academics, chiefly the Berkman Center’s Terry Fisher and Lawrence Lessig, would have the government set the price for all works which would be paid by someone other than the consumer who would essentially get it all for free. All due to the “market failure.”

The Combating Online Infringement and Counterfeits Act squarely rejects this idea.

There can be no market failure without a market, and there can be no market without enforceable property rights. The most fundamental property right to be enforced requires the government to establish the boundaries beyond which society will not permit harm to occur.
These are called crimes and they have been with us for a very, very long time. It should come as no surprise that world governments are not prepared to allow the clock to be rolled back to a state of nature despite the efforts of “digital natives” as they are called at the Berkman Center.

The Combating Online Infringement and Counterfeits Act will facilitate the development of a broader market by enforcing existing laws (with respect for due process), not waiving a magic wand of legalizing file sharing.

It is worth noting that everywhere online that private property rights have been respected, people have made good money and the reason that they have is because consumers voted with their dollars that this was good for them because they bought music or films or books. Billions of retail transactions with Apple, Amazon, Netflix, for example. The companies that settled for a share of advertising revenue are barely hanging on or have shut down–or they are pirates who profit from royalty free stolen goods. (On the eve of Google Music, this should be food for thought.)

Except for the pirates who sell advertising served by Google, among others. So you have a publicly traded US company facilitating international piracy on a grand scale. It should come as no surprise that even in the silly season of witches and covens, this evil will not stand.

It is also important to note that the Combating Online Infringement and Counterfeits Act is not targeted at users—it is targeted at commercial enterprises that prey on users and the advertisers who probably have no idea that their brands are being associated with theft. As filmmaker Ellen Seidler found in her efforts to stop infringement, companies such as Deutche Bank and Netflix advertise on pirate sites through Google’s Adsense product. This bill seeks to put an end to those practices among other things.

So let’s not hear any of the Lessig pabulum about “we’re criminalizing our kids” along with much wringing of hands. Megaupload is not run by “kids” and everyone knows it. Megaupload and Megavideo are routinely in the top 100 websites in the world on Alexa. They know exactly what they’re doing.

The Combating Online Infringement and Counterfeits Act codifies the practices that ICE has used in recent months to seize in the name of the US government the domains of pirates, seize their advertising accounts (which presumably includes Google’s Adsense accounts) as well as any credit card fulfillment or PayPal accounts.

In addition, for pirates who are not in the jurisdiction of the United States, the law allows the government to put their name on a list that would afford US companies a safe harbor for refusing to deal with the pirates on a voluntary basis.

Of course, you would have to wonder what kind of gibberish will spew from the Google amen chorus when Google refuses to terminate the Adsense accounts of pirates who are on that list. Striking a blow for innovation, commercial speech freedoms, fair use and blind eyes no doubt.
Given that Google and its online pirate commercial partners have made a science out of creating conditions of despair among artists in hopes, no doubt, that these artists will simply stop struggling and capitulate.

So Senators Leahy and Hatch are to be commended. Given that both Senators were around for the drafting and passing of the DMCA, it may well be that this legislation is the first salvo toward making the much needed fixes given the extraordinarily silly interpretations of their work by Google and its fellow travelers.

It is unlikely that any Member of Congress who voted for the DMCA would have thought that it would end up being the “catch me if you can” result that it is today. If you asked Patrick Leahy, Diane Feinstein, Bill Frist, Fred Thompson, Howard Berman, Howard Coble—really any Member—whether they thought that it was good American jurisprudence for a company to receive over 1 million DMCA notices in a year, to force independent artists and labels to send thousands of notices themselves at tremendous cost, to allow their law to become an alibi for what would otherwise be criminal copyright infringement, what do you think they would say?

Would they say “Absolutely, make it 2 million!” Or would they say something has gone terribly, terribly wrong.

Would they say their intention was to make all artists spend every waking moment chasing down infringers until the artists went broke? Or would they say that the DMCA was intended to allow some latitude to reasonably people acting reasonably?

And would they also say that they intended for Google to be able to sell advertising for pirate websites to give the criminals sustenance until an artist told them not to?

And by the way—this is not just a protection for American artists, it is a protection for all artists. ICE doesn’t ask where you come from, they just protect your works. Unlike laws under development in Canada and elsewhere, this statute adds protections for international artists, it doesn’t take away protections.

The Combating Online Infringement and Counterfeits Act is a good first step toward protecting artists around the world by fixing a process that has gone horribly, horribly wrong.

Canadian artist Maia Davis summed it up in a recent op-ed: “[A]rtists will reward all of us if given the opportunity. At the very least, they deserve fair treatment under the law.”

And at the very least, US public companies should not be able to profit from selling advertising for pirates and splitting the booty.