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Today's "Call for Updates to US Copyright Law" Hearing Was More Like A Kangaroo Court

Submitted by kmeisthax on Wed, 03/20/2013 - 23:50 in Rants

When I started seeing the hashtag "copyreform" trending on Twitter I was... slightly interested. Copyright laws are horribly broken and need to be cut down. Cut down to the point of terminal bleeding. I generally hold an incredibly skeptical view of modern copyright and patent laws - to the point where I think it would be fair to call myself an IP-Skeptic. I'll eludiate as to what that means in another rant.

Most people rightfully view copyright law as a load of arcane bullshit cobbled together for the purpose of making a legal system more arcane than a game of Calvinball. Most people are correct because it is just that. Look at things like what counts as a "work-for-hire" or the more subtle points of contract renegotiations and you'll see not the mark of a logically defined "balance between the interests of the creator and the interests of the artists" but the stench of whatever corporations were invited to the negotiating table. But today, a bunch of experts in this load of arcane bullshit got together to try and figure out why people hate it so much. Or more specifically, today the US House Committee on the Judiciary had a hearing on copyright law, innocently titled "The Register's Call for Updates to U.S. Copyright Law".

Inside this hearing I saw some of the greatest excesses of ignorance and stupidity in a political context outside of a Tea Party meeting. They understood that "some people" were possibly angry about copyright law, but not why. There was a man who stood up and boldly declared when the 1979 Copyright Law was passed he was nine. Nine years too old, I'd might add: That makes him marginally younger than my dad. In fact, "my dad" would be the perfect criticism of this entire hearing. My dad wouldn't understand why the DMCA is such a horribly broken pile of nonsense designed more to keep people from writing Free Software DVD players than actually protecting authors. My dad wouldn't understand why giving people infinite copyright terms might stifle new ways to creatively and hilariously reuse works.

The worst of this conference was that everyone at the table interpreted the failure of SOPA as a bad thing. They didn't actually say the dreaded word but they referred to several key provisions as things that needed to be passed; as if they hadn't already been discredited by being part of fucking SOPA.

Or, when the Kirtsaeng vs. Wiley case was brought up. Instead of recognizing that the Supreme Court had made a proper and valid argument that first sale provisions should trump regional sublicensing, they instead hemmed and hawed about how Congress needed to step in and build region locking into copyright law. The Register of Copyrights herself made a particularly annoying point about how if you support divisibility of copyright, then you necessarily support regional restrictions. Yeah. Okay. So because it makes sense for two companies to split release duties across territories then it, somehow, means that we should be restructuring the law to make it illegal for people in company A's territory to buy company B's product?

So what you're really saying is that I shouldn't be allowed to buy Earthbound? Let's talk about the practical implications of these sorts of effects.

Nintendo operates under a similar division-of-territories scheme where we have Nintendo proper, which handles Japanese releases; Nintendo of America, and Nintendo of Europe, which handle different parts of the world. And Nintendo of America has this weird thing where they'll arbitrarily refuse to release certain games because they're text-heavy JRPGs and Nintendo's waaay too focused on their kid-friendly branding. While Nintendo of Europe will get around to it so long as it doesn't distract them from releasing ten million casual games. So for a while we had a situation where Nintendo of Europe had an English release of a text-heavy JRPG called Xenoblade Chronicles. But technical restrictions (and, if the Register of Copyrights had her way, legal ones) prevent you from just buying Nintendo of Europe's English version and playing it on your American Wii. We had to wait an arbitrary extra set of months for Nintendo of America to agree to a US release of the European version; and only AFTER a major game retailer made some kind of backroom deal for exclusivity.

And what happens if you aren't a major game retailer? Well then you're an Earthbound fan. Nintendo proper (i.e. in Japan) just finally released MOTHER 2 (aka Earthbound in the states) for digital download. But it's only the Japanese release, and only in Japan. The Wii's Virtual Console service was practically built to promote underplayed console games of yesteryear and Nintendo sat on the opportunity until their successor console, the Wii U, was released. And even then it's only in Japan.

This also brings up a problem with the way orphan works are being thought of. The Register of Copyrights actually seems to understand that this is a problem and brought it up several times. (I.e. more times than the fact that it's illegal to unlock your cellphone now) But the solutions being proposed fall far short of fixing the true problem. What they really want is a way for cultural works with no known author to be legally reused. But that doesn't solve the "Earthbound problem". Earthbound has a known author with valid ownership over it. It's just that the author refuses to make Earthbound or the other two MOTHER games commercially available in any form whatsoever. To legally play Earthbound one must go to the retro games market, which is extraordinarily, stupendously inflated for these niche JRPGs. The current eBay price for an Earthbound cartridge is around 200 dollars for a loose cartridge. And a lot of them are actually fake cartridges made from donor boards and NAND flash bridge chips. Similar problems exist for games like Pokemon Emerald, which can cost as much as a new 3DS game and more often than not will be a fake that doesn't save properly.

All of this is a symptom of the viewpoint that everyone at the table maintains, which is called copyright maximalism. This is the viewpoint that the only problem with copyright is that it's not wide enough in scope, not long enough in terms, and not deep enough in arcane complexity. No less than five different times did everyone at the table reaffirm that, yes, copyright exists to fund creativity, and no, creativity wouldn't be possible without copyright, as if mass culture is the only culture that exists. Hint: If you go into a copyright reform hearing with the idea that copyright isn't in need of reform, you aren't going to get copyright reform. You are going to get a patchwork of ineffectual undercorrections that will just make copyright an even more arcane lump of bullshit, and we would be better served by doing nothing.

This also colors the conversation when these people have to realize that not everybody shares their views. Mr. "My Dad", the guy I mentioned earlier who said he was nine when the 1979 Copyright Law was passed, made a big stink about how a lot of younger people seemed to view copyright law as a big club of corporate control. He thought this was somehow a kind of misrepresentation of copyright law, and if the young people were just educated more they would realize that copyright law protects everybody. Yeah. Right. And I'm sure that in the late 1800s when industrial exploitation overcame slave exploitation as the primary backbone of American labor that there were plenty of rich industrialists around making similarly stupid arguments. Oh, if the poor immigrant workers we exploited (as a social class, mind you) were just educated more they would realize that horrible classist exploitation benefits everybody.

So that's what I see when I see these people arguing about copyright law. A bunch of turn-of-the-century, rich industrialists bemoaning the fact that the people they're exploiting aren't happy to be exploited.

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