MoragMacpherson (moragmacpherson) wrote,

Re: SOPA -- An Open Letter to Congress-critters

Dear Congress:

Thanks to the bizarrely tireless efforts of  Lamar Smith (R-Texas) and a majority of the House Judiciary, you're going to vote on SOPA once you're back in session. While you enjoy your recess, your constituency would really appreciate it if you took a little time to reread Article 1, Section 8, Clause 8 of the United States Constitution and meditate on its meaning and intent.  I'll save you the bother of looking it up:

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.
 
This clause addresses both patents and copyright. And yet, the duration and powers of these protections for inventors and scientists vs. authors and other media creators has become vastly different.  SOPA will only exacerbate that gap.

Currently, an invention or discovery subject to patent must first apply for that patent from a government office.  Once applied for, the patent lasts no longer than 20 years.  Patents cannot be renewed by the holder; only significant changes to the design are granted a new patent.  Patents can only be violated if the infringing derivative work is directed to commercial purposes.  Furthermore, patent-violation claims are restricted to the civil courts where the claimant may only seek financial redress.

Meanwhile, individual creative works which all automatically fall under the protections of copyright retain their privileged state for the duration of their creator's life +70 years, (corporate creative works remain copyrighted for as long as 120 years after creation or 95 years after publication (whichever is shorter)).  Their protections are automatically renewed until the final lapse of their rights.  Copyright infringement claims are enforceable even if there is no commercial intent; they are limited solely by judicial interpretation of the legally fuzzy Fair Use doctrine. Copyright violations are subject to both criminal and civil punishments.

Do these contrasting descriptions conform to the concept of  'equal protection of the law' in any way, shape, manner or form? Or are copyrights privileged over all other forms of intellectual property?  Hell, even trademark holders have a duty to actively protect their exclusive rights in order to maintain them: copyright holders don't even have to do that. They don't have to add the additional keystroke to mark the work as copyrighted. The creator literally doesn't have to move a finger to maintain copyright, which Congress perpetually extends.

Under its current formulation and extensions, there is a strong argument that copyright law actually discourages  the Progress of useful Arts. Only through the miracle of copyright can a 'one-hit-wonder' (and/or their estate/publisher/the highest bidder) live in comfort by collecting rights fees for the rest of their lives (plus 70 years!) without any further effort.  

The absurdity of the current privilege of copyright leads to a world in which the details of many designs and discoveries made since 1923 are now in the public domain but the original articles describing those innovations still qualify for copyright protection.  You'll likely have to pay a publisher for access to the article and then again for the usage rights to quote an arbitrarily determined number of words. With academic journals subscription fees are particularly exorbitant, but not citing the sources of information in your research is considered plagiarism, regardless of whether your paper is published or fulfilling an assignment. 

Bearing these facts in mind, can you provide a valid explanation of why authors, architects, publishers,etc. deserve so much more protection and time to profit via exclusive rights to their works than inventors, scientists, manufacturers, etc. are granted for their designs and discoveries?  Why is inventing a new device to create content less valuable than the new content it makes possible?

The popular theory is that it's because certain copyright holders have repeatedly bought the Congress. But you aren't in anyone's pocket, are you?  The easiest way to publicly announce that your votes are available for sale to the highest bidder is saying 'yea' for the current text of SOPA. 

This abomination of a bill, if passed in the current wording, grants copyright holders even more power to enforce their special privileges and presumes all alleged-infringers guilty until proven innocent prior to the matter receiving any form of due process.  If you're wondering about the accuracy with which copyright owners detect copyright violations and how determined they can be to abuse the system, please see FOGERTY v. FANTASY, INC - 510 U.S. 517 (1994) for a particularly absurd and frivolous copyright infringement claim that got due processed all the way up to the Supreme Court. Thankfully, Mr. Fogerty could afford the legal fees; most individuals and charitable organizations cannot. 

Or you can contemplate the Zen state required to understand how judicial interpretation explicitly and legally placed the character, novelization, and serialization of King Kong in the public domain at the same time as he assigned and confirmed rights to the character, story, name, novelization, serialization and movies to four (now three) contesting parties?  It had to be Zen -- the ruling is a logical contradiction that nonetheless retains the effect of law. SOPA is a blueprint for the further exploitation and abuse of an already hugely privileged class of intellectual property by claimants who are notoriously litigious.

To this end, I'm proposing you add an amendment to SOPA that will correct many existing discrepancies and return copyright to its stated purpose: encouraging innovation and discouraging stagnancy. This amendment, put in the public domain for your please, is suggested in the spirit of compromise: it grants the proponents the unprecedented special legal privileges they're requesting, while also limiting the application of their new privileges to more equitable and clearer rules in order to reduce the scope of the anticipated negative consequences of its passage.  Just add this to the bill and I will no longer actively oppose it (though I still believe the law as a whole would ultimately be overturned by the courts as unconstitutional):

"As a condition of receiving the special privileges and expanded authority as described above, copyright-holders agree to surrender all prior special privileges they have been granted by Congress and submit to the same terms, duration of rights and legal protections granted to contemporary patent holders."


In non-legalese: in return for receiving this gross and quite possibly still-unconstitutional expansion of their powers, copyright holders will agree to a retroactive reduction of time before their copyright expires--at most 20 years following a work's creation.  They can keep the automatic copyright-- that's a reasonable way to protect works which don't garner wide publication, but they will only be able to claim infringement if the offender has declared or demonstrated commercial intent for the use.  Copyright holders will also lose their special standing to seek criminal charges for alleged infringement, thereby freeing the publicly-funded criminal justice system from the costs of investigating/prosecuting potentially frivolous charges and trial costs. Accusers will have to pay for their own attorneys, not the public: and in civil court, dismissed claimants can also be ordered to assume trial costs and opposing attorney's expenses incurred by inconveniencing the accused and the courts with frivolous claims.

Any legal change that creates guilt in the past or that can be used to impose harsher penalties on a defendant are ex post facto and therefore unconstitutional according to longstanding interpretation of Article I, Section 9.  And remember: takesy-backsies from the public domain has only ever occurred via creative interpretations of the Fair Use Doctrine, which will no longer apply to copyrights during the time that SOPA is enforced.   Accordingly, if the courts later find that SOPA is unconstitutional, any work created between yesterday's date - 20 years and the date the law was overturned will remain in the public domain.

(There are so many possibilities -- along with blatantly disregarding Article I, Section 8, Clause 8 and the Fourteenth Amendment,  SOPA  will have a chilling effect on any transmission of information, violating the First Amendment. The way its enforcement instantly penalizes alleged offenders and creates the presumption of guilty until proven innocent and shifting the burden of proof onto the accused without any trial: that puts the Fifth and Sixth amendments into play. Oh, and the relatively exorbitant penalties it imposes for what are at worst petit larceny (when was the last time you paid more than $200-$1000 dollars to own a copy of a book, movie, or sound recording?) would bring up serious discussion of Eighth Amendment issues.)

Regardless of the constitutionality of the final bill and whether this law completely backfires on its beneficiaries, the inclusion of this amendment would cause a significant loss of copyright fees for corporations, publishers, artists, etc., which will once again have a real incentive to continue to innovate and create as other businesses and individuals who invent and make new scientific discoveries already must. It will suspend the current state of consumer welfare to copyright holders. "One-hit-wonders" and their heirs will be reduced to... working for a living and participating in a free(er) market economy.  They won't lose their existing profits and they aren't prevented from using their former holdings ever again, but must now work to distinguish their work from generic competitors. That doesn't qualify as additional punishment or penalty: this amendment to the bill alone would be retroactive, not ex post facto.

'But your proposed amendment will deprive corporations of millions of dollars in income!' some of you will shout/have shouted. This is true for some companies. The problem with this position is that perpetual copyright doesn't create wealth, it simply redistributes it from the consumer to the rights holder (and any attorneys involved). Some companies and individuals will lose significant income, but the persons and other corporations who no longer have to pay for the access/usage rights will retain that money to spend on purchases that do create wealth and contribute to the national economy. Maybe they'll be able to pay down their mortgages and loans, or expand their facilities and staff. The money doesn't just disappear: it's a zero-sum situation. Passing this amendment will certainly save the Federal Government all of the costs for the slew of copyright violation trials that SOPA will trigger. You could use that money to subsidize the payroll tax cut or start reducing the deficit. There is no reasonable argument against this amendment...

... unless you're voting for special corporate interests in return for their generous donations and not for the benefit of your constituency and the US economy in general. In which case, I think you might be violating your code of ethics by accepting bribes. At the very least, the voters whom you represent should be made aware that your vote is for sale so they may make an informed decision in the next election.

Don't bother with a press release: we'll know by whether you agree to release this Kraken
(Never mind: that quote could very well provoke an infringement claim - wait, all of my icons will do the same! I admit it: I'm a pirate. Send me to jail already: at least there I'll be guaranteed three squares and a bunk.)

Enjoy your holiday and the last carolers SOPA would ever permit,
Morag
This entry was originally posted at http://moragmacpherson.dreamwidth.org/75178.html because LJ are utter bastards. Please comment on the Dreamwidth entry if possible. While you're at it, use the subject field as a place to insult the LJ staff back. This post has comment count unavailable comments on DW.
Tags: heinous political fuckery most foul, mischief mayhem sopa, raeg, sopa
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