22 August 2004

President-for-Life for a Day

I'm simultaneously amused, annoyed, and offended by the inaccurate reports, myopic self-interested opinions, and bloviating inspired by the Grokster opinion. I've already said my piece (part one; part two) on the substance. The real problem is that the decision actually solves nothing. It does not completely let the Software Distributors off the hook; they remain vulnerable if the kind of intent evidence that was entered in Napster and Aimster ever gets admitted. And that evidence exists; don't kid yourselves—it's just a question of finding it and ensuring it's admissible. Neither, of course, does it protect the turf that the record companies and film industry so jealously guard, and it will therefore advance the ill-conceived, badly drafted INDUCE Act toward passage.

If I were President-for-Life for a day, I would strongly consider the following decrees to solve the problem.

  • Force all players in the entertainment/publishing/recording industries to use GAAP for all purposes, retroactively altering existing contracts that purport to define "net profit" in a manner that doesn't exist on the ground that the contracts are against public policy, actively deceptive, and violate the Internal Revenue Code.
  • Exclude inventories of fixations of intellectual property from accounting methods forced by Thor Power Tools as an exception to the previous item.
  • On antitrust grounds, eliminate the present system of book returns.
  • Subject all businesses whose activities directly involve First Amendment concerns to extremely strict scrutiny under antitrust and unfair competition law.
  • Allow freelance creators of intellectual property to collectively bargain. Under the law as it stands, only employees can collectively bargain; and freelance writers, artists, musicians, etc. are not employees, but instead are employers. Thus, collective action by a group of songwriters violate US antitrust law, while mergers in the music industry do not (at least according to the DoJ and FTC)!
  • Eliminate the work-for-hire doctrine for nonemployees—and require full payment of benefits accorded to executive-level employees to satisfy the "employee" requirement
  • Exclude educational institutions and their affiliates from the definition of "employer" for copyright purposes. Yes, Harvard University Press and Harvard Law Review, this means you.
  • Shorten the revocation/termination trigger periods in §§ 203 and 304(c) of the Copyright Act from 35 and 50 years to 20 years and a five-year window beginning on 01 January 2006 respectively.

IMNSHO, these measures, either singly or in combination, would go a long way toward reducing or eliminating the problems that peer-to-peer file sharing and other piracy creates for everyone. It's not just the copyright holders who get hurt by piracy; one component of the per-copy cost of entertainment is the publisher/distributor's perception of how much more it needs to charge to cover the costs of counterfeits and other pirate copies.