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Chris Castle is an attorney based out of Los Angeles and San Francisco who represents artists, producers, songwriters, record labels, music publishers, film studios and technology companies.

President Barack Obama and New 91��ɫ Governor Andrew Cuomo each worked very hard to bring about the voluntary agreement that was announced last week among ISPs and rights holders regarding IP education and the new “copyright alert system”.  The independent community was well represented during the negotiations and were also present at the press conference call.

The conference call announcing the new cooperative program was at least as interesting as the announcement itself—because of the kind of questions that the reporters asked.  It was pretty clear who was writing which story, and that they had decided to write that story well before they got on the call.

What was the spin that the reporters wanted to put on the facts?  Big media (preferably RIAA if they could squeeze them in there) is going after innocent users (“” featuring a file photo of the head of RIAA who was not at the press conference).  Neither of those propositions is true, of course, and the whole point of the system is to avoid suing users.  But that was lost for the most part in the rush to crush.

What was most interesting was how unsettled some of the reporters were that tech companies were not staying in the nice neat box that reporters put them in—if the disjointed body language of a conference call can be relied on anything, several reporters, especially Nate Anderson from and David Kravetz from , and to a certain extent all sounded like they felt betrayed by the ISPs.  You can read their reporting and decide for yourself exactly what penance they wish to exact for the offense given.

This produced some odd results: For example, while many reporters talk about The Hurt Locker, it was usually in the same breath as the MPAA and without mentioning that The Hurt Locker was an indie film.  No one had a single question for the indie label or film group presidents.  You have to ask yourself why that is?  Could it be that reporters are so accustomed to making the story about Big Media vs. consumers that they can’t bring themselves to talk about Big Tech vs. independent artists?  (This issue was thoroughly discussed by a variety of artists at the recent in Washington.)

Probably for the same reasons that they could not bring themselves to talk about real people losing real jobs or mentioning the deep support the alert system has with organized labor in the U.S., starting with the American Federation of Musicians, the American Federation of Radio and Television Artists, the Directors Guild of America, the International Alliance of Theatrical and Stage Employees, Nashville Songwriters International, the Screen Actors Guild, and the Songwriters Guild of America—not to mention the AFL-CIO.

I have a that goes over the high points of what the deal is and is not (as well as an ).  (I also published an op-ed on Fierce Telecom a few months ago discussing the same subject.)

Tropes, Memes and Other Fantasies

The reporting on the education center and alert system tends to fall into a few categories ranging from the journalistically admirable to the unfortunately predicable.

Almost all of these categories are set against the background of two rhetorical tropes: “The Copyright Wars” and the “Copyleft”.  The current problems with theft of intellectual property are not limited to copyright and are not wars, no thanks to the inflammatory rhetoric of authors who apparently profit from perpetuating this misapprehension.

By perpetuating the “copyright wars” rhetoric, it allows for all the nomenclature of war to be applied to the argument, chiefly “heroes”, “villains” and “battles”.  This is the kind of fallacious argumentation that they tell you about in freshman composition classes, but yet journalists (especially in the “tech press” such as CNET (“) and even learned treatise authors perpetuate these fallacies.  (Although the best example recently may be “” at Multichannel News.)

By perpetuating the “copyleft” trope, it allows a political spin to be put on the enjoyment of copyright.  I think that even a casual conversation with organized labor who support these measures would put that idea to rest.  Organized labor, and in fact the entertainment business in general, typically supports those on the left wing of the political spectrum and simply do not understand the “copyleft” concept at all.

The Fundamental Disagreement

Not to take anything away from the importance and difficulty of the negotiation, but the formation of the coalition has such a high degree of inevitability that it is probably the least surprising event in the development of the Internet.  If anyone is surprised by the formation of the coalition, it is probably for the same reason they were surprised by the outcome in the Grokster case, the Isohunt case, the Limewire case, the Pirate Bay criminal prosecutions and even going back to Napster.

Perhaps this is because they believe that “sharing” illegal files with millions of their closest friends is fair use.  Which it isn’t, never was and isn’t going to be, at least not in the US (or in Canada or the UK by the look of things).

It should also not be lost on anyone that this coalition came together under the auspices of New 91��ɫ Governor Andrew Cuomo and President Obama.  Government leaders have great opportunities to bring people together, particularly when there is such an obviously one-sided moral argument in favor of jobs and the benefits to the economy from protecting intellectual property.  This is, after all, the ultimate purpose of the Sovereign in the first place.

The Press Buckets

Just the facts

Some of the reporters played it right down the middle, especially the National Journal, and a close second at the .  Just the facts.  Ben Sisaro at the New 91��ɫ Times wrote a genuinely thoughtful article and—unlike almost all of his fellow journalists—actually got sources on the record who were not connected to either side.  Now �ٳ�����’s a concept.

Dissing the Indies

It is very rare for any reporter to take note of anything that the indie labels and film makers have to say about anything.  If you agree with me that many reporters view these stories as a chance to bash the RIAA and MPAA, then you will also understand that any reporter who acknowledges the disproportionate harm visited on (1) songwriters and independent artists, (2) financing independent labels and films (i.e., small business), and (3) the loss of jobs due to piracy will also have to acknowledge that the story is not about “Hollywood” against “the little guy.”  “The little guy” who is being harmed is not the user who steals, it’s the creators who can’t sustain themselves.  If �ٳ�����’s a David and Goliath story anywhere, it’s about Big Tech versus independent artists.

Interesting Questions that Were Not (and never are) Asked

Would ISPs who do not participate in the best practices be more or less likely to be secondarily liable for infringement?

How do ISPs benefit from load balancing or network management from cleaning up Internet pollution?

What kinds of strains on the network are alleviated by the alert system?

What is the ISP’s customer carrying cost on a per gigabyte basis of a user who uploads and downloads?

How much do “normal” users subsidize the bad actors?

If users decide to go elsewhere for their Internet service from an ISP who is not participating, what does that say about the nonparticipating ISP?  How many of those users do you anticipate losing and is it a net economic loss?

Would ISPs be able to lower the monthly access fee or offer new services if network usage declines?

Do copyright alerts also apply to visual artists, e.g., painters, photographers, illustrators, cartoonists?

Anger Management

Again, it was pretty obvious from the press conference and the reporting (e.g., Wired and Ars Technica) that these reporters were determined to write an angry story about termination and conflict, and not about jobs and the value of intellectual property.

Criticism of “Six Strikes”

In their apparent determination to make this a negative story, people who should know better (such as the Washington Post) kept the “three strikes” baseball metaphor going which misses the point that there is no “out” or required termination as part of the alert system.  If users independently violate an ISPs terms of service their account can be terminated anyway—nothing has changed.  And as we learned from YouTube and a couple other cases that tech writers like, you get the safe harbor if you have a repeat infringer policy that is enforced.  So what’s the problem?

While some journalists picked up the narrative from the much criticized report of the Special Rapporteur for the Human Rights Commission that an Internet connection is a “human right”, the report was often mischaracterized as a position of the United Nations—which it is not, because the UN has yet to vote on the issue.  Any such vote would have to square the Rapporteur’s messy, although surely emotionally grounded, view that somehow Internet connectivity trumps the long standing rights of artists protected by many UN documents, starting with the very Universal Declaration of Human Rights that the Rapporteur quotes to support his own views.

Moreover, the report is in all likelihood either tangentially implicated or not implicated at all by the alert system, because it expressly protects email, voice and 911 alerts and never requires termination of a user.  Not even if they fail to pay their bill.

References to “Copyright Cops”

A number of articles used the inflammatory phrase “copyright cops” to define the roll of ISPs as toadies for Big Media (often written by journalists who could easily be characterized as toadies for Bigger Tech).  This kind of inflammatory pejorative is not only demeaning of ISPs, it’s also just not true.  Nothing has changed about the legal standing of rights owners and ISPs, and ISPs clearly had their own reasons for making this deal.

It Won’t “Stop” Piracy

There is an old straw man perpetuated by the Electronic Frontier Foundation that the artists in their struggle against online theft are trying to stop filesharing —so because file sharing has not been “stopped” you may as well give up.  (No thanks to the EFF, by the way, as we saw in the Limewire revelations.)

There has always been a level of piracy in the IP world that people are willing to work with.  There has always been a constant struggle between those who steal and counterfeit and those who do not.  Very often, record stores that were offered titles that pretty clearly looked suspicious would call the rights owners and cooperate in the prosecution of the bad guys.

Did that stop piracy and counterfeiting?  No, but it made it harder to profit from and kept the level of piracy to what could be called a “market clearing” level.  So when we use the term “stop piracy” we all know it doesn’t really mean to reduce piracy to zero.

Which frankly, is true of all crime.  No one realistically thinks that enhanced police patrols, neighborhood watch groups or mandatory sentencing will “stop” all crime.  But it will be clear to criminals that they never know when they could be next and that something bad will happen to them.

What holds society together is not only the threat of punishment—it’s the education process regarding acceptable societal norms and behaviors.  The reason most people obey the law most of the time is that there is a voice in their head that tells them bad behavior is wrong and they should not do it.  That voice is either their mother, father, rabbi, priest, pastor or teacher, whoever their moral teacher was—not necessarily the cops.  If there is one thing that is clear online, those voices are just not being heard by millions of people when they think they can get away with it.

I could not help noticing that the Electronic Frontier Foundation was widely quoted with their usual “rope a dope” litigation oriented strategy that helps their benefactors in the Big Tech community through delay and obfuscation.

While the EFF can mock the efforts of the Obama Administration to protect American jobs and intellectual property, sneering doesn’t get them out of a reckoning for their role in the great harm that has been visited on creators around the world.

As that old “copyright cop” Glaucon suggested in The Republic, if the just person has the ability to be “invisible” or anonymous—and on the Internet no one knows you’re a dog—the just person will begin to act unjustly because they can get away with it.  You may say it’s a simple case of moral hazard, but I wonder if they thought in 380 BC that the same topic would be debated in the 21st Century using technology of the Internet instead of the technology of Gyges’ magical rings?

IP Osgoode:  For more information on this issue, please see Chris Castle's post regarding the on his blog .