by MARK GABRISH
CONLAN
Copyright © 2011 by Mark Gabrish Conlan for Zenger’s
Newsmagazine • All rights reserved
On November 27, Los
Angeles Times business columnist Michael
Hiltzik reported a story that exposed the hypocrisy behind the claim from major
media corporations that their hard line on copyrights is designed to “protect
the artists.” In 2001, Laura Dick Coelho and her half-sister Isa Dick Hackett,
heirs and executors of the estate of their father, legendary science-fiction
author Philip K. Dick, sold writer-director George Nolfi an option on the film
rights to a Philip K. Dick story called “Adjustment Team” for $25,000. After
spending years trying to place the project, Nolfi assigned the rights to a
company called Media Rights Capital, which financed the movie and paid the Dick
sisters $1.4 million to exercise the option. The deal also called for Media
Rights Capital to pay the Dick sisters an additional $500,000 once the film
made back its cost.
The film,
retitled The Adjustment Bureau, was
filmed for a total estimated budget of $50 million and featured a major star,
Matt Damon. Released early in 2011, it was a major hit both in theatres (where
it grossed $128 million) and on DVD. But instead of paying the $500,000 they
still owed the Dick sisters, Media Rights Capital not only stiffed them but
sued them to recover the original $1.4 million rights payment. The grounds?
Though Dick had written “Adjustment Team” in 1953, he hadn’t released it for publication
until 1973, when he copyrighted it and sold it to a publisher for an anthology.
But the attorneys for Media Rights Capital found that “Adjustment Team” had
actually been published in 1954, in a short-lived pulp magazine called Orbit
Science Fiction — and since Orbit
Science Fiction’s copyright had expired in
1982, “Adjustment Team” was in the public domain and therefore anybody could
make a film of it without any rights payment at all.
Dick’s daughters
counter-argued that Dick had neither authorized the Orbit publication nor been paid for it. According to
Hiltzik, they also pointed out “that Nolfi and the producers had plenty of time
to verify the copyright before making the picture, and that in signing the
original deal they effectively acknowledged that the rights were authentic.”
Certainly it’s preposterous to imagine that a media company would have spent
$50 million on a film based on an obscure story by a “name” author without a
guarantee that some other studio couldn’t beat them to the marketplace with a
quick, cheap adaptation of the same work. More likely Media Rights Capital
simply had their lawyers go looking for a loophole to save themselves some
major rights payments — and found one, stiffing the heirs of the story’s
original creator in the process.
So don’t swallow
the propaganda line from the big media industry that a hard line on copyright
protection does anything to protect “the artists” who create your favorite
movies, stories, novels and songs. By aggressively extending the length of copyrights,
shrinking the allowable “fair use” of excerpts from copyrighted material, and
through other legal changes the media industry is buying from their paid-for
politicians through the system of legalized bribery known as campaign finance
(in which it’s perfectly legal to buy “access” to politicians by donating to
their campaigns, and it only becomes illegal when there’s a direct quid pro
quo — “I’ll give you $50,000 if you vote
yes on bill X and no on bill Y”), media companies are protecting their
own rights while simultaneously treating
the actual creators of copyrighted material the same way they always have. They
exploit the desperation of chronically poor artists and the lure of fame and
big bucks to sign them to one-sided contracts that give the companies, not the
creators, all or most of the income from the creations.
The story of how
Media Rights Capital is trying to screw the daughters of Philip K. Dick out of
their rightful share of the proceeds from a hit movie based on one of their
dad’s stories happened to break while Congress is considering two bills that
would vastly extend the policing power of media companies (and pharmaceutical
companies too) over the Internet. The version in the House of Representatives
is called the Stop Online Piracy Act, or SOPA (its bill number, in case you
want to write or call your Congressmember about it, is H.R. 3261), while the
Senate version has the mouth-busting title “Preventing Real Online Threats to
Economic Creativity and Theft of Intellectual Property Act,” or “PROTECT IP
Act” for short. (It’s the same naming strategy that gave us the “USA PATRIOT
Act.”) The bills are supposedly designed to keep American movies, recordings,
books and other creative properties from being pirated by overseas Web sites —
but their agenda is much more far-reaching than that.
Under SOPA, the
more extreme of the two bills, media companies would be able to go after not
only the Web sites that used their copyrighted content without authorization,
but everyone else on the Internet food chain who wittingly or unwittingly
helped them. The companies could go after the Internet service providers
(ISP’s) through whom you access the Web, and also online advertisers and the
payment services (like Visa, MasterCard or PayPal) through which you pay for
anything you buy online. Indeed, if a media company noticed their content being
posted online by a Web site without authorization, they could demand that ISP’s cut off all U.S. access to that site,
advertisers stop buying ads on it, and payment services refuse to channel money
to it. They could do that without having to go to court first, just on the say-so of the media company’s lawyers
that the site is “dedicated to the theft of U.S. property” — and the targets
would have to respond within five days, a blink of an eye in terms of how litigation usually proceeds.
What’s more, the
media company could target not only the Web site that posted their content
without authorization, but every other site on the Web that links to it, or every site that links to a site that links to it,
and so forth until just about every site in the world would be touched by the
tainted links. Media companies already have the right to send so-called “cease
and desist” letters to sites like Facebook and YouTube, stating that their
copyrighted material is on a user’s Facebook or YouTube post and demanding that
it be removed. Under SOPA, the companies could sue Facebook or YouTube — and
could also sue the users who put the material on their site, or users who
merely linked to another site
that had unauthorized copyrighted material on it. And, as the American Center
for Law and Justice (a Right-wing alternative to the American Civil Liberties
Union) points out in their excellent fact sheet on SOPA, “SOPA’s private causes
of action would allow anyone asserting a copyright or trademark right to
effectively attack and silence both foreign and domestic speakers and
viewpoints they may find objectionable.”
In that regard,
SOPA would require ISP’s and payment
services to do what they’ve already done voluntarily to put WikiLeaks out of
business. The governments of the U.S., Great Britain and Sweden all looked for
ways to stop WikiLeaks, from arresting the alleged source of much of its
information (U.S. Army Private Bradley Manning) and holding him under
unspeakably barbaric conditions, to pushing rape and sexual harassment charges
against site founder Julian Assange, and couldn’t get the site offline. Then,
as part of their “patriotic duty,” Visa, MasterCard and PayPal announced that
they wouldn’t send any more money to WikiLeaks from users who wanted to
contribute to it — and Assange eventually ran out of money to maintain the site
and announced he would have to shut it down. The WikiLeaks story should be a
warning that the supposed “freedom” of the Internet is a myth: the Internet is
really run by private mega-corporations who can effectively censor its content
even if governments can’t.
The reason is
that, unlike telephone companies, Internet service providers were never legally
declared “common carriers.” What that means is that if I phone the San Diego
City Hall and tell the person who answers that I have planted a bomb in the
building, I have committed a crime. Even if I haven’t actually planted a bomb,
I have still committed a crime. But the phone company is not legally
responsible in any way for my crime, even though I could not have committed it
without their equipment and network infrastructure. It also means that I can
call a friend of mine with similar politics, and the phone company can’t censor
our conversation even though the people who own and run it may not like what we
have to say to each other about the need to get rid of capitalism.
An ISP is
different. By not being common carriers,
ISP’s have every right to censor messages with which they disagree — a right
the former CEO of Comcast asserted publicly when he stated that he didn’t see
any reason why “my pipes” should be used to communicate political views he
didn’t approve of. They also have legal liability if their services are used
for allegedly criminal activity. So far, ISP’s have treaded gently on the paths
of political or legal censorship because of an informal principle called “Net
neutrality,” which has meant that every piece of data on the Net gets treated
the same as every other piece of data. “Net neutrality” has given Internet
users an illusion of freedom
because it’s prevented huge media outlets like Fox News from cutting sweetheart
deals with ISP’s to move their
content through the Internet faster than that from smaller, less wealthy and
less politically influential site owners.
But the U.S.
Federal Communications Commission (FCC) has already compromised the “Net
neutrality” principle in a set of regulations that basically said it applied to
desktop and laptop computers but not to
smartphones, tablets and the other wireless portable devices through which more
and more people are using the Internet. And even those weak “Net neutrality”
regulations were nearly overturned by a big money-dominated U.S. Congress that
wants to turn the Internet into yet another wholly owned subsidiary of the
corporate media giants. This will mean that, as with all other corporate media
outlets, the Internet will systematically push Right-wing points of view and
censor Left-wing ones. In a worst-case scenario, the loss of “Net neutrality”
and the passage of bills like SOPA could make the organization of Occupy-style
movements impossible by giving ISP’s the power to censor all anti-corporate messages and keep them off the Web.
In addition to
broadening the censorship of the Web — both by ISP’s themselves and by media
companies sending out five-day notices willy-nilly and making ISP’s and sites
like Facebook and YouTube into content police — SOPA is also a direct attack by
the U.S. pharmaceutical industry to make sure that Americans keep paying the
highest prices for prescription drugs of any country in the world. Remember
when you used to get e-mails advertising lower-priced drugs from Canada? You
don’t get them anymore because, responding to lobbying from Big Pharma,
Congress made such sales illegal — and SOPA would strengthen those prohibitions
by giving drug companies the same tools as media companies to punish any Web
site that dared to offer cheaper drugs.
The most bizarre
thing about SOPA is it’s an attempt to pump up a system of copyrights,
trademarks and patents that no longer serves artistic or scientific advancement
— if anything, it retards it — and, at
least in the case of copyright, is no longer technologically sustainable.
Historically, copyright worked by giving the copyright holder the right to
prohibit the manufacture of physical copies of a copyrighted work. Such copies
did get made — I remember my shock when a street peddler offered me a bootleg
copy of the third Matrix movie, The
Matrix Revolutions, in front of Horton
Plaza while the film was still playing in the movie theatres inside — but they
required an elaborate physical infrastructure that was relatively easy to find
and shut down. With the digital revolution, a book, a record or a movie is no
longer necessarily a physical object: it’s a series of zeroes and ones that can
be moved anywhere around the world literally at the speed of light. (The same thing has happened
to money, which is how hedge-fund operators and “flash” investors can make — or
lose — millions of dollars in seconds.)
If I could write
a copyright law for the digital age, the first thing it would say is that no
copyright would last for longer than 50 years. Period. Ever. That common-sense
policy — which was the law in Europe until recently, when the European Union
parliament was lobbied by the big media companies to extend it to 70 years —
seems to me to strike the right balance between the purpose of copyrights and
patents (which is not to benefit media
and pharmaceutical corporations in perpetuity, but is, according to the U.S.
Constitution, “to promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries”) and the principle that ultimately
humanity’s artistic and scientific legacy should belong equally to all.
Second, I would
base the new copyright law on a principle known as compulsory licensing. That would mean that copyright holders would no
longer have the power to prevent the physical or digital reproduction and
redistribution of their works. What they would have is the right to demand that end users pay them.
Instead of trying to put Web sites out of business by sending cease-and-desist
letters as they do now — or threatening them and their users with criminal prosecution and damages, as SOPA would
let them do — they would simply send them bills. Some forms of artistic
endeavor already use compulsory licensing: anyone can perform a copyrighted
song in person or play a record of one on terrestrial radio, and
long-established laws allow them to know in advance how much that will cost
them. Compulsory licensing would solve the problem of so-called “derivative
works” — like hip-hop songs that “sample” bits of previous records, or Shepard
Fairey’s Obama poster — by allowing reuse as long as royalties were paid. I
would set up special “copyright courts” to resolve disputes over how much
copyrighted content was used and how much royalty should be charged for it,
modeled on the arbitration panels the Writers Guild uses to apportion writing
credits for movies.
Compulsory
licensing and royalty requirements would also be more effective in putting out
of business the so-called “rogue Web sites” SOPA is ostensibly aimed at than
SOPA would be. The lawsuits against Napster and other peer-to-peer music
sharing sites didn’t end this type of copyright violation. What did was the advent of iTunes and its competitors, which
allowed people to purchase online music downloads of consistent quality for a
reasonable price. Once people get used to the idea that media companies can
charge them for copyrighted content regardless of where they got it from, they’ll be more likely to buy it
from the companies themselves — so long as the companies don’t get greedy and
try to gouge them with unsustainably high prices.
In copyright,
and in intellectual property law in general, the old order is dying and the new
one is not yet ready to be born. Media companies are spending huge amounts of
money to lobby Congress for punitive bills like SOPA in order to maintain a
copyright regime that has been rendered obsolete and unenforceable by
technological advances. Internet companies like Google are saying that they too
are against “piracy,” buying into the central assumption underlying SOPA even
as they try to defeat the bill because it would cost them money. Once again we have corporate elephants
fighting each other over business models that need to change — and the stake
for the rest of us is whether the Internet will be allowed to be the totally
free channel of communication we were promised, or it will become just another
organ of a dying corporate oligopoly.
