Copyright: locks, levies, lawsuits or licensing? Part 3: lawsuits
(First published on IT World Canada blog)
In this series we have been talking about three ways of enforcing copyright: locks (part 1), levies (part 2) and lawsuits. In the future I will clarify an alternative to enforcement which is licensing (part 4) the specific usage.
In part 1 I stated that copyright is merely a series of activities which someone can do with human creativity that requires permission of the copyright holder to do legally. If you do one of these things without permission, the copyright holder has the right to sue you.
For a variety of reasons, however, many copyright holders are not happy with this situation. They keep asking the government to make copyright “stronger” by requiring permission for an ever-growing number of activities, for an ever-growing amount of time, but they are not wanting to actually sue people who infringe copyright. Sometimes copyright holders want to scapegoat someone other than the infringer, such as the rhetoric around blaming so-called “enablers” which are most often the providers of multi-purpose technology or services, or they want someone else to do all the enforcement.
There are a variety of reasons given, but the two most common are public relations problems and lack of resources.
Steven Page of the Barenaked Ladies explained the public relations issue when he said the following: “You just can’t say I’ll see you in court, and then say I’ll see you at Massey Hall. I’d rather see them at Massey Hall.”
In this case, he feels that launching lawsuits against music fans for sharing music would have a public relations cost that would exceed any possible reward. I totally agree with him, but it is important to recognize that this statement came with further direction on the question of locks, levies, lawsuits or licensing. As the most visible spokesperson for the Canadian Music Creators Coalition he is endorsing a message that says that “Suing Our Fans is Destructive and Hypocritical” and “Digital Locks are Risky and Counterproductive”. The group has endorsed the proposal from the Songwriters Association of Canada to license P2P music filesharing rather than trying to stop it (IE: no locks or lawsuits).
This is a clear case where lawsuits are not the appropriate answer for a usage where both the majority of musicians and music fans consider to be socially beneficial, and where some form of licensing is what is desired (compulsory or voluntary, as discussed in part 2).
I consider the user generated content, clip sharing and various non-commercial mashups we see on video sites like YouTube to also be socially beneficial. These are uses of content where locks and lawsuits would be counter-productive and inappropriate, and where some licensing model to monetize rather than attempt to prohibit this activity must be devised.
These are relatively unique situations and should not be extrapolated to other areas of copyright. Attempts to “harmonize” copyright for all forms of creativity will be a failure given each creative market works differently. What is true in the music industry with filesharing, or the television/movie industry with YouTube, really has nothing in common with the dynamic that is happening with fiction book authors, graphic artists, or software authors.
In software the best choice when the licensing method chosen by the copyright holder is violated is most often lawsuits. Copyright holders are offering licensing for their software, and there are a wide variety of software authors offering competitive software that provides similar functionality using a wide variety of licensing options. If a software user does not like the terms offered in an End User License Agreement (EULA) from Microsoft, Apple or Adobe, then it is a relatively simple thing for them to choose software from a proprietary competitor that offers a more reasonable EULA, or switch to software using Free/Libre and Open Source Software (FLOSS) licensing terms which don’t restrict typical end user activities (FLOSS licenses put conditions on redistribution and authors of modified versions).
Unlike the music situation, people generally know they are doing something wrong when they infringe software copyright. They may do it anyway because they don’t think they will get caught, but they won’t be surprised it was illegal if they get sued for doing so. Also very different than the music situation, there is little public sympathy for someone found guilty of infringing software copyright who violated the obvious terms of the license agreement. Claiming one could not afford a given software application doesn’t (and should not) garner much sympathy when a growing number of people realize there are legally free alternatives that work just as well (if not better in some cases).
As a software author using FLOSS licenses, I know that there are people protecting the enforceability of my favourite licensing agreements through taking infringers to court. I see press releases from the Software Freedom Law Center talking about lawsuits against companies who have infringed various Free Software licenses, and I monitor the GPL violations website for updates on settlements by those infringing software licensed under the GNU General Public License. In the case of FLOSS licenses we give end users permission to do most of the things they want to do for free, so those infringing our licenses are software distributors, most often larger companies who should know better. Ironically, the companies found infringing our copyright are often the same companies who try to lobby the government for “stronger copyright” that is more tilted in their favour.
In these situations, there is no public relations harm to the copyright holder by enforcing copyright through suing copyright infringers.
The other claim I often hear is that copyright holders can’t afford to enforce their own rights. This is a generic problem with the legal system being expensive. It is also a problem for people who might be wrongfully accused of copyright infringement. I suspect if analysis was done it would be found to be more often the case that an alleged infringer will have to settle out of court for a non-infringing activities, than a copyright holder not being able to sue for an infringing activity.
With current statutory damages, and the fact that non-commercial citizen infringement and commercial infringement is all too often considered equivalent, I believe that the social costs of false allegations of copyright infringement is worse than the social costs of unenforced copyright. This is an area of copyright law that requires serious reform to recognize that not all copyright infringement, or alleged copyright infringers, should be treated the same. We also need serious legal consequences to launching invalid or frivolous copyright lawsuits.
Copyright holders have the easy option of joining together in associations to pool resources to hire lawyers. In many cases all that is needed is a letter from a lawyer to the alleged infringer, with the case not needing to go to court at all. With copyright holders winning in the courts, it also becomes far more clear to Canadians what is and is not allowed under the law. (There is considerable misinterpretation of the BMG vs Doe case, and the fact that the cast was lost due to lack of evidence — not that unauthorized sharing of music is somehow legal).
When I was at university and thinking about my future career in software, I was attracted to the Free Software movement partly because of the copyright enforcement question. I knew that if I used custom license agreements for my software that I would be on my own enforcing them. If, however, I used one of the popular licenses approved by the Free Software Foundation, there would be a whole ecosystem of fellow authors who would work with me to ensure that any potential infringer understood these licenses were enforceable.
Ignoring the option of filing a lawsuit against a known infringer is effectively giving up on copyright. This is harmful to all of us, as it causes people to lose respect for a law if not adequately enforced. When it comes to who pays the legal bills for these lawsuits, it should be clear that it should be the primary beneficiaries: the copyright holders. It is not valid to try to have taxpayers or some other group pick up the tab, especially when there are alternatives available to copyright holders that would reduce the necessity for them going to court. It is simply unfair for them to expect to reap all the rewards from copyright, but not have to do any work or pay any of the costs of their own choices.
The other thing I notice from those who say they can’t afford to enforce their own rights is that I’m not often given examples of infringement when I ask. There is a perception from what they hear from the music, movie, television and software sectors that there is a massive amount of infringement that affects all copyright holders. While I acknowledge that there is a fair bit of infringement in music, movies, television and software, I have also picked apart their statistical analysis and found it greatly lacking — suggesting infringement in those areas is less than advertised. (See: Lies, Damned lies, and IIPA/BSA/etc statistics.)
For other types of works, I have not yet been shown the evidence that there are serious problems that need to be solved with any enforcement method, or any changes to copyright law. Current law and the current market for creative work is simply working fine. I often have conversations with fiction book authors who are quite worried, want copyright to be “stronger” and “respected”, and are sometimes proponents of the direction taken with Bill C-61, but don’t offer me examples of online infringement of fiction books to clarify what they are worried about.