Thursday, August 17, 2006

Forever or a day?

Forever or a day?

Some Americans dislike the Constitution. Some dislike parts of it. Former senator and Musician Sonny Bono was one of the latter. Article 1 Section 8 of the Constitution says, basically, that it is Congress's job to promote progress through the securing for limited times to authors, exclusive rights to their writings, or in plain english, Congress has to provide a system of copyright for a short period of time, in order to 'promote progress'. I believe this is known amongst Constitutional scholars as the “Progress Clause'. Sonny Bono, former member of Congress, and more famously, musician (after all, who's not heard Sonny and Cher singing “I got you babe”?). Shortly after his death, his widow, Mary Bono, said the following in a statement to congress:
“Sonny wanted the term of copyright to last forever. I am informed by staff that such a change would violate the constitution. I invite all of you to work with me to strengthen our copyright laws in all the ways allowed to us. As you know, there is also Jack Valenti's [then head of the MPAA] proposal for a term to last forever less one day. Perhaps the Committee may look at that next congress” (144 Cong. Rec. H9946 9951-2 , 7th October 1998 )

So, whilst Sonny's proposal has been dismissed as unconstitutional, lets look at Mr Velenti's. He's a shrewd operator, and headed the MPAA through some of its more tumultuous times, VCRs, cable TV, and the initial widespread growth of p2p filesharing. As such he should clearly know his subject. Lets examine his proposal then, and see how it would actually work. Of course, much would depend on how it would be applied. Would it only apply to new material, or be retroactively applied? It would probably be educational to look at both.

1. Retroactive application.
First, lets analyse the less plausible option of adding it onto all material. Thus, everything in the United States will be copyrighted, unless and until those rights are comprehensively waived by the appropriate parties. And there is the first stumbling block. Who will be the appropriate party? Who, for instance, will have the copyright over Shakespeare, or for that matter, the Bible, to say nothing of the likes of Dickens, Clemments, or Lincoln. With the bible copyrighted (and try and find someone appropriate to waive that, obviously the Pope is potentially a giver, but Queen Elizabeth II would have a much stronger claim for the King James edition, since it could be considered crown property, or maybe you'd need to find an actual descendant of the House of Stuart) there goes freedom of Religion, and possession of a Bible whose printing was not approved by the rights holders would be guilty of copyright infringement. The likes of Barnes and Nobles, or would have to cease trading immediately, literature classes and courses would have to stop
We rely on public domain material constantly, for education, business or pleasure. What's more, neither bookstores, nor educators, couldn't just continue with materials that were already under copyright. As is widely (or from discussions with ordinary people in the street, possibly not widely) known, the large film, television and music companies started and grew much of their wealth from what was then in the public domain. Books did, and in many cases do likewise. Disney's Hercules, Little Mermaid, or Cinderella for instance. All of that sort of thing would be copyrighted, and without the appropriate rights being negotiated, they would be infringements. A canny rights negotiator could conceivably wipe out the likes of Disney either through exorbitant licensing fees (a practice much favoured ordinarily by the large movie companies) or through the courts using the damages system also lauded by the same people.

Clearly then, that option is out. It' does no-one any good at all, certainly wouldn't produce any progress, except in lawyers fees, and that is what, the constitution says, is the raison d'ĂȘtre for copyright, in the US. So, does the second option, applying this term to currently existing copyrights, do this?

2. Extension of current term
On then to this, the second option, the extension to near-infinity of all currently existing copyrights. This one, unlike the first scenario, doesn't have the inherent problems of redefining what is and isn't copyrighted, it does, however, bring into contention a form of 'why'. Why is it that works more recent than 1923 are so much more valuable than those that were made earlier? In what way does the extension of copyright terms for these more modern works promote progress?Why should a book written in 1922 get 75 years of protection, and one written in 1924 get 1,000,000,000 years? (or at least 95 years now, and longer if the term is extended before its expired)
If anything, thanks to the new technologies, increased mediums, the growth of populations and the conglomeration of the production companies, is it now cheaper and easier to produce the copyrighted material and distribute them than ever before, and yet the desire amongst those is to provide for ever longer terms. This is not providing progress. With it now being so easy to recoup initial expenses through multiple mediums, glib in-house marketing, and star appeal, but primarily through quality, copyright terms should be reduced, not extended. Indeed, as we have seen recently in the UK people did some work, and then stopped, to live off their copyright royalties. Now those terms are about to expire, and they're upset, because they're about to lose their income, they've known about it for years, but because of the then-perceived length of the copyright term, they didn't feel the need to attempt more progress in the field. These are examples of copyright inhibiting progress.

Of course, at the end, it all depends on how you define 'progress'. I personally define it as a way in which things are made better over time. Disney releases its 'classic' movies periodically on VHS/DVD, for short time periods only. The adverts go something like “now from the Disney vault, we've finally put snow White onto DVD, and its yours to own for a limited period. You loved it when you were a child, now you can finally buy it, since we've kept it locked up for years. Hurry up and buy it before we stop selling it and lock it up for another 20 years, until your children's children are around. How is that progress? It might well have been a storytelling masterpiece, and an animation tour de force, but that was then, not now. It has made much more than it ever cost to make. They've had their rights, they made a high quality film and profited greatly by it, now let it go.

Indeed, that does bring up another point against the extension of terms. With a much shorter term, the average quality level will steadily rise. A film, generally recoups its investiture in proportion to its quality. A high quality, well made film will bring in a set about (say $100Million) faster than a low quality film. Of course, a highly publicised film will also tend to make money, but its not so certain. Nor, for that matter do high quality films have to be expensive, or star many big names. The film cube was, to my recollection made for far less than $500,000 and has made far more than that in just the decade or so since its release, as well as being successful enough to have two 'sequels' (hypercube and Cube Zero). With shorter copyright terms, it would seem that in the drive for profitability, there will tend to be a rise towards more quality oriented movies, rather than big-name bonanzas and special effects thrown in willy nilly. There will be some, of course, but if you wait long enough, even a tiny stream of revenue can build into a large volume of water. With the current no-end-in-sight policy of copyright extensions, even if every bad movie ever made only makes pennies a week, they will eventually become profitably. Even if its through such means as being sandwiched two-or-three to a disc, and sold in dollar stores, as has happened with some, I'm lead to believe.

As i explained at the start, the whole point of copyrights, according to the US constitution, is to promote progress. At this point extending copyright any further is not going to do that. Indeed its not clear how the last extension did that. If the extension from 75 to 95 years didn't facilitate progress, how can any extension to eternity, less a day manage it?

Anyone for Monopoly

Most people in the world have probably played monopoly, spent many an evening in cut-throat negotiation, setting up payment arrangements, and trying to amass the most money possible, at the expense of everyone else. Great idea for a game, but its lousy in real life.

In the US, and indeed the UK, there is at least one industry, where monopoly is not just a game, or a practice, its a legally recognised business method. That industry, is the cable companies. In the UK, there is Telewest/blueyonder, or NTL, you can only have one, not the other. In the US, its Charter, Comcast, Time-Warner, and one or two others. No two of these companies competes directly against another, at the local level. Nationally, they bite at each other with packages, and deals, but the flat out truth is, to the consumer, there is no competition. If you live in a Charter area, you can't get Comcast, If you're in a NTL area, no Blueyonder for you. The end result is that consumers lose out, especially in the US.

If, in the US, you live in an urban area, but not near a large city (say a small town of 10,000-30,000 people) or if the town is in a hilly region, standard broadcast TV is out. Your choice then is between either satellite, or cable. Many places however won't allow dishes, or find them impractical (if you have nowhere to mount a dish to face the correct way, you've got no chance of picking up the signal). In those situations, cable is your only choice. In that case, doesn't matter if they lie, deceive, or follow illegal business practices, you have to deal with them, and they can charge what they want. I spent some time recently, with a friend of mine who was ill. He lived in a small town, and used Charter for his TV and internet. He wasn't a long time user, having only had it installed around Easter, but already the complaints and problems are astronomical.

Problems range from mis-selling goods and services, workmen arriving late, and telling stupid lies as to why, repeatedly inaccurate bills, customer services that don't reply to communications, often tell you you're not even in their 'service area' (exclusive/monopolistic sales area) you get someone with all the brains of an aspidistra.

In any other industry, even one of those would often cause customers to switch to a rival, but cable companies know that can't happen. You're in their service area, so you're in no-one else's. The only alternative is to pay a large sum of money, and go to satellite. If you can't, or are unwilling to, they have you over a barrel.

Currently, the EU is fining Microsoft extensively for its anti-trust practices, several similar investigations into them were carried out in the US. Other companies have been investigated similarly, and yet, all too often, the focus is backwards. A monopoly is where one business have over-reaching dominance in the market, and all too often that's interpreted as nationally. Two companies competing across the country is very different from two companies exclusively serving half the country each. The point of antitrust laws is to help the consumer by allowing them the choice to decide between competing products. If anti-trust accusations are levelled, its usually at the dominant company, by its competition.

If, however, you want something done about this, to whom do you complain? In the US, it could come under the FTC, the FCC, the DOJ, the state prosecutors office, and a number of others. In the UK, your best bet is probably OFCOM. Will they return your calls, and take you sensibly, however, that is another matter all together. The windows media player hullabaloo might seem important and 'protecting customers' for other media player companies, but does it really affect the consumer? I use windows, and I use Media player Classic, or, for DVDs, PowerDVD. In no way has my copy of windows with the media player attached, substantially affected my freedom to choose other competing products.

Of course, if anyone can point me to somewhere, in either the US or UK, where someone has the choice between two cable companies, then by all means drop me an email – address, as always, is at the top right –

Ben jones

Sunday, August 06, 2006

Not around

Sorry for the lack of material. I'm on a job which gives me almost no access to a computer system to post. Doing this via a friends phone. Not sure when I'll be back