BIG MEDIA COMPANIES ARE PIRATING YOUR COPYRIGHTS -- AND FREE SPEECH

by Thomas M. Sipos, managing editor.  [August 21, 2005]

And Uncle Sam is using your hard-earned tax dollars to help big media steal your copyrights, using the FBI and courts to enforce big media's wish list of anti-consumer copyright laws!

Your representatives in Washington are selling you out for "campaign contributions" -- a fancy name for legalized bribes! -- from well-heeled big media lobbyists such as the MPAA and RIAA.

Here are three of the ways hypocritical big media lobbyists are working overtime to pirate your copyrights:

* Extension of Copyright Terms

The U.S. Constitution says copyrights must expire after a limited time (Article 1, Section 8), whereupon the work becomes public domain. Then you, the public, are free to copy or download Moby Dick, write new Sherlock Holmes stories, or perform Shakespeare or Mozart.

Public domain is your copyright.

However, copyright's "limited time" has been repeatedly extended -- often due to big media lobbying! The 1790 Copyright Act set copyright protection at 14 years, renewable for another 14 years. By 1909, copyrights lasted 28 years, renewable for another 28. In 1976 copyright was set for "the life of the author plus 50 years," or 75 years for corporate owners. In 1998 copyright was extended to "life of the author plus 70 years," or 95 years for corporate owners.

MPAA shill Jack Valenti claimed the 1998 extension was necessary to bring U.S. law into conformity with the longer terms set by the international Berne Convention. However, many Berne signatories also recognize Moral Rights, a doctrine that forbids buyers -- such as record companies and studios -- from altering an artist's work. Valenti had long lobbied against U.S. adoption of Moral Rights, as it might prevent his studio bosses from changing directors' films and possibly even writers' scripts.

Apparently, while world relations made it vital that the U.S. adopt Berne's longer copyright terms, the same world has no problem with the U.S. rejecting its Moral Rights doctrine. At least, that's the loopy, kooky contradiction that Valenti expects you to swallow.

Steve Forbes -- of Forbes magazine! -- said of the 1998 extension: 

"It is fitting and proper that your creations be protected by law for your lifetime and a reasonable period afterward. But there is no justification for what Congress has been doing: transforming a limited monopoly into an unlimited one. Creativity and culture are enhanced by having works ultimately become public domain, particularly with the advent of the Internet."

Law professor -- and Constitutional expert! -- Lawrence Lessig joined others in a lawsuit against the 1998 copyright windfall giveaway to big media. But in 2003, the Supreme Court rubber-stamped President Clinton and the Republican Congress's sweetheart gift to big media -- which they stole from you.

Artists and authors should profit from their creations -- but not 70 years into the grave! "Life plus 25," or 50 years for corporate owners, is more reasonable, even generous. Anything longer doesn't benefit the original creators -- one of the intents of Constitutional copyright protection. Excessively long copyright terms actually harm artists, delaying the day when they may write sequels to old classics. Excessively long copyright terms only benefit authors' distant heirs and big media companies owning vast libraries.

And excessively long copyright terms pirate your public domain rights.

* Perversion of Trademark Law

Traditionally, trademarks were used to identify the maker of a product. If there was no product, the trademark was void. But in recent years, trademarks have become the product -- providing a potential loophole around copyright's limitations!

Copyrights and patents expire, but trademarks can last forever. Thus, big studios have trademarked Mickey Mouse, James Bond, Star Trek, and other characters and titles, preparing for when Steamboat Willie and Casino Royale enter public domain. They may lose those films and books and TV shows, but they'll be damned if they lose the characters. Had Bram Stoker tried it, it's possible that today anyone might publish.Dracula, but only Stoker's distant heirs could create new novels, comics, or films featuring Dracula.

Time will tell if fat cat politicos and courts will allow trademark law to subvert the Constitution's requirement for limited copyright terms. If so, score a big one for big media's pirating of your public domain rights!

* Erosion of Fair Use

The Fair Use doctrine, rooted in the First Amendment, lets YOU, the public, copy excerpts from protected works for purposes of news, education, research, criticism, and commentary. It also permits parodies. It's a complex doctrine because the law only gives guidelines -- you don't know if it's Fair Use until you're in court! Which means Fair Use is often decided by who can afford an expensive lawsuit!

In 1940, a New York federal district court ruled that it was Fair Use for authors to freely excerpt song lyrics in fiction (Broadway Music Corp. v. F-R Publishing Crop, 31 F.Supp. 817 (D.C.N.Y. 1940, now SDNY)). Excerpting a few lines of lyrics is a way for authors to comment on pop culture.

But shockingly, despite the favorable ruling, today it is industry practice to pay a license fee for even one line of poetry or lyric! Says one editor, "Copying poetry or lyrics is never Fair Use." Rather than fight big publishers' lawyers, authors instead surrendered their Fair Use rights.

Fair Use protects the taking of excerpts for scholarship, news, or commentary. That includes film scholars and authors taking images from a movie or TV show in order to illustrate their comments (as opposed to taking still photographs, which would not be an excerpt). However, fear of studio lawsuits mean that "unofficial" books about TV shows, such as The Unofficial X-Files Companion and X-Files Confidential: The Unauthorized X-Philes Compendium are bereft of images from the shows; images are reserved for "official" studio sanctioned books such as The Truth is Out There (The Official Guide to The X-Files, Vol. 1). Studios claim that such books are not scholarship or commentary (however much scholarship and commentary they may contain), but "merchandising," and hence beyond the reach of Fair Use. Again, rather than fight big studio lawyers, authors have surrendered their Fair Use rights.

Erosion of Fair Use is erosion of free speech. When Alice Randell wrote The Wind Done Gone, she was sued by the Mitchell estate. Had Randell been unable to afford a legal defense, her parody of Gone With the Wind told from the slaves' point of view would have been suppressed.

The Electronic Frontier Foundation documents many other ways in which Fair Use is threatened by big media.

More importantly, curtailing Fair Use pirates your copyrights.

Pirating movies and music is wrong (though not as harmful to many artists as industry accounting practices). Apart from brief excerpts used for news, criticism, commentary, etc., copyrighted works should not be taken without permission while the artist is alive and for some reasonable period thereafter.

But it's hard sympathizing with big media companies who've suffered piracy while they -- and their lobbyists and lawyers -- are pirating your copyrights.

Copyright ©.2005 by HollywoodInvestigator.com

YOU May wish to read: Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity Also consider: Pirates of the Digital Millennium: How the Intellectual Property Wars Damage Our Personal Freedoms, Our Jobs, and the World Economy.