Brave New World
Last week, as most Ricochet readers no doubt noticed at least in passing, the Immigrations and Customs Enforcement (ICE) division of Homeland Security did something never done before. Without fanfare, after securing a court order, it seized a number of internet domain names, shut down access to the pertinent websites, and posted under those domain names the message found below – and this ICE did on the grounds that the pertinent websites were suspected of being engaged in copyright infringement.
This was done even though – in response to criticism of the proposed law articulated by law professor David Post and others – Ron Wyden (D-Oregon) had put a hold on Senate passage of the Combating Online Infringements and Counterfeits Act (COICA), a piece of legislation designed to empower federal courts in this country to “seize” domain names belonging to US or foreign websites that the Attorney General charges with being “primarily devoted” to copyright infringement.
I have no objection to the enforcement of copyright laws – though I do think it a travesty that in recent years “fair use” has been interpreted narrowly and copyright has been extended again and again so that, for example, the poetry of T. S. Eliot, who died in 1965, is not yet in the public domain. But leave that aside. I could make a case that we should limit the duration of copyright in the public interest as we used to do – in much the same fashion as we still limit the duration of patents of monopoly. But that can wait for another time. What is at stake in this matter is, for the most part, the theft of intellectual property recently published or released for sale (mainly, to be precise, popular music and movies).
What is really disturbing about what COICA proposes and about what ICE actually did on the basis of another statute (18 U. S. C. § 2320) last week is this: Property was seized without due process. As David Post pointed out on Wednesday, those who owned the domain names were not given warning. They had no opportunity to defend themselves against the claims advanced by the authorities. Their say-so was sufficient. In effect, the executive power, represented by ICE, served not only as prosecutor but as judge and jury as well.
This is, alas, nothing new. There is ample precedent. Under our drug laws, the police can seize your car, your home, and even the money in your wallet if they can persuade a judge that they have reason to suspect that you or someone else have used that car, home, or money in the course of drug trafficking – and they can do this without what we ordinarily mean when we speak of due process of law.
In the latter case, you can later go to court to recover your property but the onus is on you to demonstrate that the suspicions of those who seized your car, home, or money were erroneous. In effect, you are considered guilty until you prove that you are innocent. Presumably, this precedent would apply as well to the seizure of domain names, and the owners could sue for the return of their property.
But let's face it. That would be onerous, and here is the problem that we now face. What was once justified on the basis of a claim that in a national emergency, such as the one putatively occasioned by widespread drug use, the ordinary rules should not apply is now being extended to thievery of an ordinary sort.
We do not live in a police state. But you can see how – under the pressure of this special interest and that special interest – we could drift into becoming one.
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Re: Brave New World
I hope the President doesn't use the word "Ricochet" in his next book. I fear I'll be meeting you folks on some old usenet group if he does.
Jul '10
Re: Brave New World
Disney will never allow "Steamboat Willie," the first Mickey Mouse cartoon, to fall into the public domain, so we now have a de facto date beyond which nothing is likely to expire into the public domain in our lifetimes. They have roused themselves multiple times to defend Mickey and seem to spare no expense on this sacred quest.
May '10
Re: Brave New World
As someone who's in the intellectual property business, my objection is to the corporate hoarding. There are films, television shows and thousands of recordings (both studio and radio) that are renewed for copyright every year, not by the authors of those works (or their heirs) but by media conglomerates who have no interest in distributing them. Our national cultural heritage sits in some vault because they don't perceive a big enough audience for it.
Disney pushed hard for the last extension when it looked like some of the early silent Mickey Mouse cartoons were about to go PD.
Re: Brave New World
So I am not alone in my annoyance!
Re: Brave New World
EJHill
As someone who's in the intellectual property business, my objection is to the corporate hoarding. There are films, television shows and thousands of recordings (both studio and radio) that are renewed for copyright every year, not by the authors of those works (or their heirs) but by media conglomerates who have no interest in distributing them. Our national cultural heritage sits in some vault because they don't perceive a big enough audience for it.. · Dec 2 at 2:48pm
One of the nice things about Ricochet is that, if you blunder, you get corrected; and, when you are on the money, you learn that you really are. Even more to the point, you learn things that you did not know. Perhaps Congress should amend copyright law to specify that the copyright of a work not made available by its owner revert to its author(s).
May '10
Re: Brave New World
Dr. Rahe, here's an example for you. The Library of Congress Sound Collection has 500,000 radio broadcasts from the 1930's through the '60s. In 1978 NBC donated 175,000 sixteen-inch lacquer discs alone. But as the LOC website will tell you, they are only available "for listening by qualified researchers."
So, your tax dollars and mine are used to store and preserve these treasures but we are not "qualified" to listen to them. See, NBC retains ownership under copyright laws that retroactively gave them control of them. Before 1972 there was no US copyright law covering sound recordings. Nice, eh?
Re: Brave New World
EJHill: Dr. Rahe, here's an example for you. The Library of Congress Sound Collection has 500,000 radio broadcasts from the 1930's through the '60s. In 1978 NBC donated 175,000 sixteen-inch lacquer discs alone. But as the LOC website will tell you, they are only available "for listening by qualified researchers."
So, your tax dollars and mine are used to store and preserve these treasures but we are not "qualified" to listen to them. See, NBC retains ownership under copyright laws that retroactively gave them control of them. Before 1972 there was no US copyright law covering sound recordings. Nice, eh? · Dec 2 at 3:18pm
Nice, indeed. From my own parochial perspective, I was vaguely aware of this. I was acutely aware, however, that if I wanted to write a scholarly article on T. S. Eliot's poetry I would be severely constrained in my ability to quote passages from it.
May '10
Re: Brave New World
True. But your tax dollars are not housing and preserving the poetry. Here NBC-Universal shoves off a major expense to the taxpayer but prohibits those unwashed masses from benefiting.
Aug '10
Re: Brave New World
Though it was not the main point of the post, it seems the copyright issue struck a nerve. As someone who lives off income generated solely by what I write, I am certainly biased. It's difficult for me to understand why my property should ever go into the Public Domain, simply because it is intellectual, rather than physical. If anyone wishes to read a truly brilliant defense of copyright - check out Mark Helprin's "Digital Barbarism."
It is important to note: the 1978 Copyright law contains a provision allowing the author(s) of any assigned copyright to regain ownership of the copyright after 35 years. So, beginning in 2013, we will see the beginning of a massive transfer of wealth from music publishers and record companies back to composers and artists.
It remains to be seen what artists and writers will do with their work, once it's back in their hands.
btw - This provision does not cover Works for Hire. Nor will it likely cover the vast majority of films which generally involve dozens, if not hundreds, of crucial creative people.
And let me close with - Ricochet rocks.