Monopolies, Publishing, and Online Media

Cory Doctorow's latest column briefly surveys the history of antitrust enforcement, considers the effect on creative artists of the concentration of market share in a few mega-organizations, and analyzes a provision of the European Union's new Copyright Directive. Spoiler: He's against it (that one clause, anyway).

Steering with the Windshield Wipers

I must admit my initial reaction to the first paragraph was amusement at a tangential thought. Doctorow illustrates the monopolizing of an industry by a few corporations or only one with this suggestion: "Take off your glasses for a sec (you’re a Locus reader, so I’m guessing that you, like me, are currently wearing prescription eyewear) and have a look at the manufacturer’s name on the temples." If you need glasses to read text on a screen, how are you supposed to read the brand name on them when you take them off? I tried, and as I expected, the print is way too small. LOL. Anyway, Doctorow reveals that most eyeglass frames and lenses are made by the same company that owns the major retailers in the field. (So my personal choice, Lenscrafters, isn't really independent of its alleged competitors such as Pearle Vision. We live in a weird world, all right.) From that point, he asks how we got into this situation and proceeds to discuss Facebook and other Internet social media engines. He offers examples of "overconcentration blues" in film and TV, the music industry, publishing, and social media sites (with particular emphasis on Facebook's privacy problems).

He strenuously objects to the EU Copyright Directive's clause that requires online providers to "block anything that might be unlicensed, using automated filters." In Doctorow's opinion, "This is a plan of almost unfathomable foolishness." One of his primary objections is that the policy won't stop infringement, because filters are susceptible to abuse, "imperfect and prone to catching false positives," and "cheap and easy to subvert." He also believes the rule will be so expensive to comply with that smaller companies will be squeezed out, to the benefit of the mega-conglomerates.

In near-apocalyptic language, he works up to the conclusion that "monopolies are strangling the possibility of a pluralistic, egalitarian society." This article, however, doesn't answer the logical next question: What must we do to be saved? As for the publishing industry, it doesn't seem to me that the dominance of the Big Five (possibly soon to become four) is quite so dire for authors as it used to be. We now have alternative outlets that didn't exist in the past, in the form of a multitude of small presses and e-publishers, as well as inexpensive self-publishing.

Some services, in my opinion, SHOULD be provided by monopolies. Maintaining utility infrastructure such as the electrical grid or the sewer system, for instance. But not publishing.

Margaret L. Carter

Carter's Crypt

Copyright And Sovreignity

Some people opine that the best writers and musicians and photographers and artists have always starved,  and are willing to starve (aka not be paid fairly) because they love what they do, and will do it regardless of whether or not they are paid.

Some businesses seem to feel that it is morally acceptable to exploit musicians and writers, and to monetize the works of creative people without permission, in effect forcing creative people to involuntarily subsidize their start-ups. And governments and courts support the exploiters!

There are international copyright treaties: Berne, and those who administer: WIPO (World Intellectual Property Organization). However, around the world there are also small groups of judges, who are making rulings and decisions that may undermine what has been agreed in international treaties.

A high-ranking advisor to the European Court of Justice has opined that ebooks are the same as print books as regards public lending, therefore libraries may lend ebooks without the permission of the author(s).

http://www.theregister.co.uk/2016/06/16/ebooks_same_as_printed_says_ecj_advisor/

Advocate General Maciej Szpunar said e‑books should be covered by the Rental and Lending Rights Directive, which means libraries don't need an author's permission to provide them to the public.

Leading to the questions

Does someone need to physically appear at a library in order to take out an e‑book?
How does a library ensure to authors' and publishers' satisfaction that old copies of e‑books do not remain readable?

This may sound reasonable, but under the copyright law, authors should have the right to consent to the lending or renting of their works.

This discussion reminds me a little of the compulsory "consent decrees" imposed on songwriters by the US government (by unelected judges) which is partly why popular musicians are unable to prevent their songs being exploited by politicians with whom the particular musicians disagree vehemently.

http://curia.europa.eu/jcms/upload/docs/application/pdf/2016-06/cp160064en.pdf

It is conditional upon "fair remuneration" to the author(s). Ah, but who decides what is "fair remuneration"?  This could be the camel's nose under the tent, couldn't it?

Also, do the unelected European judges define what is a "library"? Could "Pirate Bay" or "Google Books" or "Amazon" call themselves "lending libraries" or "subscription libraries" and rent out ebooks without paying the authors for more than the first ebook?

Perhaps, like musicians receiving $0.00058 per spin from Spotify, a writer would be paid $0.00058 per borrow??? (I'm not suggesting that that is at all fair.)

Perhaps the EU has too much power, especially when authors, photographers, musicians and members of the public apparently can be stripped of their rights to privacy and intellectual property owing to an error in translation from one language to another!

This article suggests some alarming consequences if hyperlinks cannot be subject to a takedown.  Summarizing a summary of a case, apparently, a well-respected publication that specializes in tasteful photography of scantily clad models was hacked or else someone without authorization discovered where the magazine was storing the as-yet-unpublished images, and that someone created a hyperlink are made the images available over the internet to his audience.

When pondering articles on copyright, take time to read the comments. It gives the reader an insight into how a little encouragement will open a Pandora's box of piracy.  Give an inch, they'll take a mile.

All the best,
Rowena

A Warning To "Content" Users

I am grateful to Morrison and Foerster LLP for an article drawing attention to the rights--at least of European copyright owners-- to sue copyright infringers in multiple jurisdictions where their copyrighted work is made available without permission online.

http://www.lexology.com/library/detail.aspx?g=e6054e53-3392-4ecb-a1a3-b2592562540a&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2015-05-12&utm_term=

This doesn't help American authors, but it is a good start.

Rightscorp is an anti-piracy organization that has had some recent trouble in uncovering the identity of alleged copyright infringers. One can sympathize. In my experience, online sites that host alleged pirates as well as honest folk may have privacy rules that prevent a copyright owner from pursuing an infringer.

For instance, unless the copyright owner actually purchases something from an alleged infringer on an auction site, there is no way to discover the alleged infringer's real name and contact information. I've written about my opinion of EBay's protection of copyright infringers. As far as I can see, EBay is still acting as a fence for illegal sales of ebooks and apparently using what I would call willful ignorance as a figleaf.

But, I digress. Rightscorp seems to be somewhat like MUSO (which locates potentially illegally hosted files and links, and sends takedown notices where the copyright owner asserts that the links and files are indeed illegally hosted) except, Rightscorps seems to specialize in BitTorrents, and Rightscorp apparently sues.

Alleged pirates don't like that, and some have sued Rightscorp for trying to identify them.
An interesting discussion took place here:

https://phillylawblog.wordpress.com/2015/05/10/bad-things-happen-when-lawyers-stop-representing-clients-and-start-representing-causes-john-blaha-ordered-to-pay-rightscorp-attorneys-fees/

The warning in this one is that it appears at this time that the plaintiff (not Rightscorp) appears to be on the hook for the defendant's (Rightscorp) legal fees.

My apologies for the brevity.

Rowena Cherry