5 October 2000

READER OF THE DAY: In a new tradition here at THB, I will answer a reader's attacks in this section.

J.P. writes: "David. You claim, "the people most dangerous to the creative community are people who never create anything themselves." Care to reveal to your loyal readers who exactly comprises this creatively destructive camp? It wouldn't, by any chance, happen to be those irksome, noncreative consumers (the ones so far bankrolling all that pure, pristine creative product), now would it?

DP: When I wrote the column, I wasn't really thinking of consumers directly, but yes, I sure could have been, in part. I think that most consumers do appreciate that someone is behind the work, deserving to get paid. I also think that we are currently in an era where there is a highly Web-based attitude of, "If I can get my hands on it, it is mine." That is, in my opinion, immoral.

JP: Quickly, your latest rant degrades into outright (albeit hilarious) fabrication: "Valenti, as the defender of the rights of artistic ownership, versus Lessig, as the defender of the public's right to pretty much do as they please." Exsqueeze me? Why wasn't I notified the world had become a cartoon? While Lessig concedes copyrights are a necessity for artists, not once in the entirety of that Inside.com article does Valenti even hint that consumers deserve any rights (specific or otherwise). Who's the fanatic here?

DP: Your feelings about Valenti don't excuse Lessig. No doubt, Valenti is only interested in defending the industry. I never suggested otherwise. What kind of rights do you suggest Valenti should be fighting for?

JP: Your spin cycle continues: "Well, as head of the MPAA, which will be duking these details out in Congress, [Valenti] would have to be an idiot to give any specifics that could be hung around his neck later, wouldn't he?" Well, if Valenti can't publicly discuss those issues, he is -- to use your terminology -- an 'idiot' for showing up at a copyright debate in the first place.

DP: A reasonable argument.

JP: Just when your reasoning couldn't seem possibly more one-sided, you blurt out, "Lessig seems to have embraced the Communist ideal as the strategy for the future of the Internet. Now wait, before you start calling that comment McCarthyesque, understand that I don't consider that an insult." Just for that last bit alone, you may want to get yourself checked for elephantiasis...Ahem...You very well realize Lessig is not advocating the elimination of all intellectual property. He (unlike Valenti) is simply searching for a balance between artistic ownership and consumer rights.

DP: Actually, I see Lessig's underlying argument as one of consumer's rights (a phrase that in this case could be argued does not belong in this conversation) being far more important than the rights of the people creating the work. As Jerry Leiber, coincidentally, was saying on NPR on Wednesday, he sees his song copyrights as being like a piece of real estate...they are his legacy for his family. When did his copyright become the consumer's right?

JP: Snidely, you note, "2600 didn't actually break DVD copyrights but 'only' gave their readers the tools to do so." Far be it from me to remind you of any specifics in that particular case, such as how those 'tools' could just as easily be utilized to watch legally obtained DVDs on Linux-based computers... Now I understand cynicism often filters out basic facts, but just for fun and giggles, if you support the prosecution of 2600 for disseminating such tools, do you also support the prosecution of people who explain how to open a car door with a coat-hanger? (A police officer taught me how, after accidentally locking myself out.)

DP: That argument is right up there with "I have the joint in my pocket, but I wasn't going to smoke it." Yes, I agree that 2600 should not be penalized for printing the information they printed. I actually would defend their right to print anything, including plans for a nuclear bomb. What I object to is the bait and switch of, "Hey, it's about the First Amendment," when what it is about is giving someone else the tools for stealing. Please, learn how to use that coathhanger. But when you are hanging around my car with a decoder, figuring out the code for my locks, don't tell me about your freedom of electricity.

JP: Your gall grows ever more boldly towards copyright delirium: "The thing is, the entertainment industry has, for the most part, been pretty generous with its copyrights...Until Napster." Until Napster? No, I think not. You've conveniently ignored the Betamax grudge match back in the '80s (although you do passingly reference it later), the copy-protection now built into every last VCR and videotape on the market, and the regional coding found on all of today's DVDs. The only reason the entertainment industry has put up with people using VCRs to record programs off TV this long is because the technology didn't exist to stop them. Now with the advent of digital TVs and VCRs, your laughably generous entertainment industry has successfully lobbied the FCC to take away the consumers ability to digitally record such programs.

DP: Well, I did mention the VCR angst. And I have mentioned no sympathy for the industry as per Tivo and Replay TV. Nor did I mention Paramount's obsessive attacks on "Star Trek" Web sites. But come on, get a grip. No one is screaming about your sister taping every episode of"Survivor" instead of buying the set from CBS, are they?

JP: Speaking as someone in the top 1% income bracket, and who gets to see most every movie for free, you economically appeal, "...and while there are $10 theaters in New York City, there are none in Los Angeles or Chicago and the average ticket price is still under $6.00 across the nation." Gravy! Now care to weigh in on what's to stop the entertainment industry, after making it impossible to copy their product, from raising the purchase price of videos into the stratosphere (remember rental-pricing) and limiting the consumer to single-viewed rentals?

DP: You know, the industry has managed to adapt to video rental versus video purchase, including all kinds of experiments with video buy-back, etc. As a result, more movies are available more cheaply than ever in the history of film. What's with the paranoia? What's the upside for the business?

JP: You go on to paint Lessig as a man with a near anarchist viewpoint, calling his words, "...the words of a man with nothing to lose." Yet, as a consumer of intellectual property, Lessig has a good deal to lose if the entertainment industry gains total control over copyrighted works (which is exactly what Valenti is seeking).

DP: Legally, they have total control over copyrighted works already, with the exception of Fair Use.

JP: Then you rhetorically ask, "What is the difference between a chair and a manuscript?" I'll tell you the difference. A chair can be duplicated quite legally in this country by anybody with the know-how. But if you copy the Episode II script, you'd immediately wind up in the slammer. There's a difference between theft and duplication. If there wasn't, copyright law would not exist at all.

DP: Who has ended up in the slammer over copies of a Star Wars screenplay? And why should anyone ever have the right to exploit someone else's work before that person even has a chance to exploit it themselves? If the answer is that only Star Wars fans that will surely be going to Star Wars regardless will download it, sure. In this case. But law is not about the odd example, but the general philosophy. And there will be losses to every side in every kind of law.

JP: Inquiring minds want to know, "Why is a painting of value forever, in fact, in eternal ascendance and the work of a screenwriter no longer the copyright owner's to exploit after 14 years or 50 years or 100 years?" In each case, somebody possesses the actual physical painting and script, and both original works increase in value over time. In each case, other people can make copies of the original, and then sell, swap and give away those copies. The only difference, I can tell, is that the entertainment industry would like to make us all eternally ('forever, less one day' as Valenti ever-bluntly put it) criminal for doing so.

DP: Film is one of the only mediums where a copy is, for all intents and purposes, the same as the original. Only in this medium do you make thousands of copies for initial exhibition. Like music, there is virtually no difference between number one and number one million. If you can make copies of a movie at home and then wish to distribute them, you are free to do so, legally...that is, copies that you create with your talent. Not the original, but the reflection. That's what a copy of a painting is. The original has one value and a variety of styles of copying have other values. In film, any mechanical reproduction has virtually the same value as the original.

JP: Finally, you wrap up with the comforting thought that "legislation is not a threat to freedom under 'Fair Use'..." Again, I point you to the FCC's recent ruling that all digital TVs and VCRs be endowed with 'piracy protection' technology. Hence forth, in the digital age of television, the entertainment industry will deem what the American public can and cannot record at home. You are honestly going to sit and tell people that is not a threat to 'Fair Use?'"

DP: Piracy protection protects against multiple copying. The Fair Use doctrine is about private use. Why do you need two copies of a movie unless you are doing something that circumvents copyright?

JP and I exchanged e-mails reflecting my opinions as stated here. I have the upper hand in this forum, so I think it's fair to give JP the last word, without my voice. Here is his return e-mail:

JP: "The trouble with the copyright debate right now, to me anyway, is that the "fair use" clause is being tugged in two very distinct and extreme directions. On one side, we have the Napsterization of copyrighted works on the Internet (which the entertainment industry considers a massive violation of their ownership rights). On the other hand, we've got the very same entertainment industry forcing the adoption of 'piracy protection' into digital VCRs (which most consumers would consider a significant violation of their "fair use" rights if they were actually paying any attention). So depending on the sitting side of the fence, you have reason to be ticked-off one way or the other.

I would have to say mass-distribution of an unpublished script certainly constitutes a mighty slimy act. I only brought up Star Wars...I don't know, maybe just to further confuse the issue...

However, I truly do disagree with you about mass-reproduction constituting theft. It may very well be criminal, but it's something other than theft. Theft consists of depriving the rightful owner of property. To actually physically steal a manuscript is theft. But to make (and then even distribute) copies of a legally obtained manuscript, while perhaps criminal, is not the same as theft. It is a copyright violation. Maybe it seems I'm just nit-picking (likely, I am), but I think to call it 'theft' serves only to gloss-over a thoroughly thorny issue.

It's apples and oranges to compare a chair to a manuscript. Because, on one hand, it takes a great deal of effort and skill (as you said) to duplicate the chair, while the manuscript can be xeroxed in seconds. And because of such duplication ease, consumers have been willing to forgo a great deal of control over copyrighted works (to foster creativity).

But there is still "fair use" for everybody to contend with. And I fumed over your column today, not because I think movies and music and books should be free for my personal downloading pleasure (although the concept doesn't strike me as altogether hideous), but because your rant and rave seemed slanted towards depicting artist's rights as the only worthwhile ones. What can I tell ya?...The Ralph Nader spirit just took over motor control.

Still, Valenti walked right into the firing line by even accepting that debate. And the only one I saw in the article looking for any middle ground whatsoever between the two sides (artists & consumers) was Lessig.

As far as where I personally draw the copyright line... I've never used Napster or DeCSS myself. I buy more CDs and rent more DVDs than I could ever humanly justify. I also pay for both tickets whenever I see a double feature at the multiplex...And, as such, fully expect to go to heaven. Although if other factors intervene, and I end up south of the border (so to speak), I'll be sure to stop by Sam Peckinpah's place."

E ME: On what side of the debate do you fall?