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Can anyone down there spell consumer?

By Scott Bradner

The U.S. Court of Appeals for the 9th Circuit has spoken in the matter of the recording industry vs. Grockster et al, the Court agreed with the lower court and upheld the lower court ruling that distributors of peer-to-peer filesharing software are not liable for copyright infringement. While this decision is well reasoned and, if the legal precedents were to be followed, inevitable, it will likely result in a far more draconian pro-copyright legal environment in the US, an environment which could seriously threaten technological innovation.

Last year I wrote about the lower court decision in this case and explained the Court's logic in rejecting the charge of copyright infringement. (http://www.nwfusion.com/columnists/2003/0505bradner.html) The Court of Appeals supported the lower court's logic and also observed the "introduction of new technology is always disruptive of old markets, and particularly to those copyright owners whose works are sold through well-established distribution mechanisms." (http://www.ca9.uscourts.gov/ca9/newopinions.nsf/E9CE41F2E90CC8D788256EF400822372/$file/0355894.pdf?openelement) The Appeals Court noted that the Supreme Court said that it was the job of Congress to say how copyright law should apply to new technologies and that the courts should not try to do this themselves. And that is just what is about to happen.

A few weeks ago I wrote about yet another nightmare one-sided pro-copyright owner bill introduced by Senator Orrin Hatch. (http://www.nwfusion.com/columnists/2004/062804bradner.html) I was wrong, the bill that was actually introduced was at least as bad as the version that was leaked. Senator Hatch, after getting a lot of pressure from more sensible folks did agree to hold a hearing on the bill. The Senator and other Senators on the Senate Judiciary Committee got an earful at the hearing from representatives of technology and consumer electronics companies who expressed worries that this would be an innovation-killing law. They also heard from Marybeth Peters, the US Register of Copyrights, who thought the proposal was just marvy. (www.copyright.gov/docs/regstat072204.pdf)

I doubt that anyone would confuse Ms Peters as someone with an open mind on the subject of copyright. She comes down totally on the side of copyright holders and totally ignores any possible rights of individual consumers. Actually, I'm wrong, she did mention consumers once in her presentation to the Committee - she maintained that strong copyright regulation, like the regulations which where used to charge the Girl Scouts with copyright infringement for singing songs around campfires, are "for the ultimate benefit of consumers." As a further indication of her concern for the consumer, her statement to the committee also suggested that the Sony Supreme Court decision that permitted VCRs to be sold in the US should be overturned as being too nice to manufactures (no mention of consumers).

There is no evidence that Senator Hatch remotely cares about anyone in this fight other than the copyright owners. He wants to push ahead with his bill but, maybe to mollify his critics, wants to have someone else to take a few weeks to make sure the bill is fair and addresses any "legitimate concerns." So, in keeping with his history, he assigned this task to the very same Marybeth Peters. (http://www.corante.com/importance/archives/Letter_to_MaryBeth_Peters.pdf) A fair hearing is not what I expect from someone who clearly feels there are no "legitimate concerns" about the bill.

On the other hand, the Congressional Budget Office recently published a very balanced examination of the tradeoffs in this area. (http://www.cbo.gov/showdoc.cfm?index=5738&sequence=0)

Senator Hatch was quoted as saying to his critics: "If you help us, we just might get it right," he said. "If you don't, we're going to do it." Translation: doing something is more important than doing something right. A fine example of the government we seem to deserve.

disclaimer: Harvard more often does nothing and gets it right than it does something and gets it wrong, but the above rant is mine alone.