The shell game (also known as Thimblerig, Three shells and a pea, the old army game) is portrayed as a gambling game, but in reality, when a wager for money is made, it is a confidence trick used to perpetrate fraud. In confidence trick slang, this swindle is referred to as a short-con because it is quick and easy to pull off. Wikipedia definition of “thimblerig”.
“The Project” (aka “The Copyright Principles Project”) is a group–some might say a cabal–of Big Tech lawyers and law school academics that is trying to pass themselves off as representing some kind of “consensus” about “copyright reform”.
This is a typical Silicon Valley policy deceit. It brings together a number of themes in its “principles” that have been floating around academia for years, and even made it into legislation a couple times. The Project will be center stage this week at a special hearing of the House Subcommittee on Courts, Intellectual Property and the Internet (the “IP subcommittee”) under the title “A Case Study for Consensus Building: The Copyright Principles Project.”
The relevant document for the hearing is The Project’s white paper, which we can safely assume will be passed of as the “case study” at issue. It may be a wish list of everything Big Tech needs to profit themselves from the the massive income transfer currently occurring online. It may be a “case study” of “groupthink” when you get an influential financier of academia in the same room as academics who have benefited from that largesse. It may be a “case study” for a lot of things, but what it is not is a case study for consensus. And the fact that it is being passed off as such is yet another example of the the shell game to undermine artist rights. And the “mark” for the thimblerig in this short con is the United States Congress and the American people.
Never ascribe to malice that which is adequately explained by incompetence.
How is the con being run this time? I expect The Project present itself as an example of how to build consensus on copyright issues that Chairman Goodlatte has correctly identified as polarized. (“See–we’ve already done built consensus.”)
“Consensus”. The messaging that The Project wishes to convey is that The Project is representative of a wide spectrum of views on copyright–the implication of which is that the white paper and the participants in The Project should be found to be trustworthy and believable. Therefore there is little need to look further if you are busy people without a lot of time or staff to recreate the same process. Such as…oh, I don’t know…the House Judiciary Committee, for example. The Project would have the Congress think, why hold hearings when we’ve done it for you? Particularly when we are just all so…how else to say it…soooo much smarter than you!
For example, we find this statement in The Project’s white paper:
At the outset of this project, we spent a considerable amount of time discussing the scope and objective of our efforts. We considered a range of possible outputs, from a simple statement of normative principles to the formulation of a detailed blueprint for comprehensive copyright reform. Although the group was broadly representative of different viewpoints and each of us had opinions about particular strengths and weaknesses of the existing copyright system, our ability to propose a substantial and comprehensive reform of U.S. copyright law was limited, partly because we met only three times a year for three years.
“Broadly representative”? I think not. But let’s look at who was represented. And remember–this lineup was the best they could do after three years.
Weaving Spiders Come Not Here
How The Project came to be “we” is important, because who “we” are not can be just as important as who the “we” is. In this case, even more important.
Let me point out again who the “we” is by name. It’s this “we” who is key to understanding this entire charade. Here is the list of participants in The Project:
“The following persons are members of the Copyright Principles Project:
Pamela Samuelson, Berkeley Law School (convenor)
Jon A. Baumgarten, Proskauer Rose LLP
Michael W. Carroll, American University, Washington College of Law
Julie E. Cohen, Georgetown University Law Center
Troy Dow, The Walt Disney Co.
Brian Fitzgerald, Queensland University of Technology
Laura Gasaway, University of North Carolina School of Law
Daniel Gervais, Vanderbilt Law School
Terry Ilardi, IBM Corp.
Jessica Litman, University of Michigan School of Law
Lydia Pallas Loren, Lewis & Clark Law School
Glynn Lunney, Tulane University School of Law
Tyler Ochoa, Santa Clara University School of Law
R. Anthony Reese, University of California, Irvine, School of Law
Kate Spelman, Cobalt LLC
Christopher Sprigman, University of Virginia School of Law
Jule Sigall, Microsoft Corp.
Michael Traynor, President Emeritus, American Law Institute
Tara Wheatland, Berkeley Law School
Jeremy Williams, Warner Bros. Entertainment Inc.”
So we immediately notice what others (such as David Lowery in Politico) have also–there is not one creator on this list. In fact, we see a lot of names we recognize–Christopher Sprigman, for example, is associated with the Stanford Center for Internet and Society--funded by Google and founded by Lessig. Now there’s some “consensus” if I ever saw it.
Sprigman is also the co-author of “The Knockoff Economy” in which he sings the praises of “knockoffs” in the fashion industry–now we know why The Project included no one from that important sector of the American economy that currently is unprotected by copyright but might like to be as long as we’re, you know, “reforming” copyright. Sprigman also writes a blog called the Knockoff Economy in which he made this prediction after President Obama’s reelection (http://www.theknockoffeconomy.com/what-do-the-election-results-mean-for-ip/):
Our guess is that although copyright isn’t really an important national political issue now, it may well become one. And if it does, there are a couple of possibilities. First, if the GOP’s very deep losses last night prompt the party to take a good look at its future prospects, it’s possible that smart Republicans might conclude that elections will simply not be winnable in future unless the party finds a way to capture a larger share of the youth (and non-white) vote. One way to appeal to young people would be to identify with their interest in online freedom. And this would lead to a GOP that favors narrower copyright. This might be a good strategy for the GOP not least because the party doesn’t depend much now on Hollywood, compared with the Democrats, for whom Hollywood is a large source of support. If the GOP can drive a wedge between young people and Hollywood-loving Democrats, that may be worth doing.
Fans of Beautiful Person Derek Khanna may be surprised at exactly how prescient Sprigman was in foreshadowing almost all of the political argumentation around Khanna’s sophomoric pitch.
MTP readers will remember the unfortunate and unworkable collective licensing scheme proposed by the Songwriters Association of Canada that we were critical of because it was unauditable, would not result in payments to songwriters as opposed to enriching middlemen, and would never be–and indeed never has been–supported by ISPs. That debacle was appealing to collectivization advocate Professor Daniel Gervais. The distinguishing feature of the SAC proposal was that payments to creators only increased as long as new money came into the proposed new collective–like Canada is lacking in existing collectives–at a faster rate than it was paid out. In other words, payments varied directly with new ISP subscribers. When the new money started to decrease, so did payments…sound like something else we’ve heard about?
We weren’t the only ones who took apart the SAC proposal–Canadian IP lawyer Barry Sookman did as well in this paper published in the Osgoode Hall Review of Law and Policy–to which Professor Gervais has yet to reply. Not that he’s obligated to, but his silence is deafening to some of us.
Before he joined Vanderbilt Law School (in 2008), Professor Gervais was Acting Dean of the Common Law Section at the University of Ottawa, where he also served as Acting Dean from February 1, 2006 until July 31, 2006, and as Vice-Dean for Research from 2003 until January 2007. This would be the University of Ottawa that was home to the Canadian Internet Policy and Public Interest Clinic operated by one Michael Geist–or it was called CIPPIC until 2007 when “technology innovator and entrepreneur Dr. Robert Glushko and his wife, law and technology pioneer Professor Pamela Samuelson, made a large donation to CIPPIC….” and the name was changed to the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic. Given that Geist just loves to get his jingo on about Canadian solutions for Canadians, it’s odd that he’d sell the naming rights for CIPPIC to Americans.
And it may be odd that Professor Gervais comes from an institution that benefited from the largesse…sorry, consensus building…of Professor Samuelson, the “(convenor)” of The Project.
I won’t bore you with the various interconnectedness of the rest of the tech professors, Big Tech companies and the lawyers who represent them on this list, but the cozy nature of these relationships should surprise no one familiar with clubby Silicon Valley and its endless supply of money. Or as it’s also known…”consensus.”
No Dogs Or Actors Allowed
The studied exclusion of creators in The Project leads to statements like this from The Project’s white paper:
At this level of generality, agreement is easy to reach. Disagreements tend to arise over how to implement these goals in statutory language and actual practice.
So “agreement is easy to reach”. Notice that little sojourn into the passive voice. Does “agreement” mean unanimous agreement? Agreement among the tech lawyers? Who is doing the agreeing? And who is not? If you have agreement about painting the dining room but no agreement on the color, how much agreement do you really have? And if you have agreement about painting the dining room but can’t agree about whether to use a brush or the dog’s tail, is that really agreement about anything? Unless you really, really want to make it appear that there is agreement among a group? A group of unknown composition in this case.
But take three guesses about who could be helpful with the “actual practice” part? Oh, maybe–an artist?
And then there is this gem regarding taking away from authors the 35 year termination right for “authors” (which in this case essentially means all creators other than employees for hire):
The termination of transfer provisions of current law were the subject of considerable discussion at [Project] meetings. We were able to reach consensus that the existing rules are too complicated and formalistic, and that some reform of them would be beneficial. But when it came to specific proposals to improve these rules, there was substantial disagreement.
There was some sentiment in favor of elimination of termination rights altogether, in part because current provisions are too complicated to be useful to most authors, and in part because termination reflects a paternalistic effort to protect authors. Others preferred to reform termination in order to create a simplified copyright reversion mechanism that would be easier for authors to actually use.
So how would The Project know whether the poor authors found the current rules “too complicated to be useful”, “paternalistic”, or whether “reform” would make the rules “easier for authors to use.” Because I can tell you that there are an awful lot of authors who are absolutely crystal clear that they get to have their rights back after 35 years and they are finding it very, very easy to send in their notices.
How in the world could this room full of highly educated people be possessed of such an astounding arrogance that they have somehow divined what authors would and would not find useful, paternalistic or difficult to use without including an author in The Project?
Oh, right. I forgot.