Sunday, October 26, 2014

In which the secretive, furtive Andrew Robb helps sell out the farm ...

The pond always proceeds by way of irony and rich coincidence.

It was purely by way of the pursuit of irony that the pond clicked on the story above - you can head off to Fairfax here to get the rest of it, without forced video - but truth to tell it's just the usual forelock tugging sell-out rhetoric you'd expect of Andrew Robb.

It concerns a negotiation conducted in intense privacy, with the only information emerging by way of leaks, and this secretive, furtive, appalling behaviour can't be dismissed as some sort of greenie misinformation campaign, because officials and politicians simply refuse to release any information as to what has been negotiated and agreed ...

Greens spokesperson for trade, Peter Whish-Wilson, criticised the government for holding international talks behind closed doors, shrouding the contents of the deal in secrecy. 
"Last night in Senate Estimates, DFAT refused to answer even the most basic questions about what we're trading away," he said. 
"They refused to rule out that new medicines under development, such as cancer drugs and vaccines, would become more expensive in the future as a result of the TPP." 
Choice and the Greens have used leaked copies of the deal, via WikiLeaks, to also raise concerns about harsher criminal penalties, including ones for online copyright infringement far surpassing what the Australian law requires. 
"Downloading a single song, for instance, could lead to serious criminal penalties," Ms Turner said. Leaked copies show the right for big businesses to sue governments if policy and legislative changes hit their profits.

Actually downloading songs, singles and more, has led to serious criminal penalties already, at least until the music industry developed a little bit of consumer awareness and the blow back it was producing via lawyers and legal action. Greg Hunt a look at the whole sorry business of Capitol Records, Inc. v. Thomas-Rasset ...

At the same time that the blathering sell-out Robb was sending out a rhetorical smokescreen, the pond happened to be reading Louis Menand in The New Yorker nervously, hesitantly, haltingly asking Crooner in Rights Spat Are copyright laws too strict?

The matter that set Menand scribbling concerned Rod Stewart, whom, it has to be said, the pond hasn't thought about for years:

Rod Stewart is being sued over the rights to an image of his own head. 
In 1981, a professional photographer named Bonnie Schiffman took a picture of the back of Stewart’s head, which was used, eight years later, on the cover of the album “Storyteller.” Now a different picture of Stewart’s head, also from the back, has been used to promote his Las Vegas act and world tour. Schiffman claims that the resemblance between her photograph and the new image is too close—the legal term is “substantial similarity”—and she is suing for copyright infringement. She is asking for two and a half million dollars.

The back of someone's head? Their own actual head?

So to the irony:

The term of copyright has been expanded in the United States periodically since 1790. In 1831, copyright was made renewable for up to forty-two years from the time of publication; in 1909, for up to fifty-six years. In 1976, the law was rewritten to protect copyright for fifty years after the death of the author, and formalities, like requiring authors to register their copyright, were relaxed. This means that anything and everything is now copyrighted. If you made it, no matter how trivial, you own it, and if someone else copies it you can sue. 
Finally, in 1998, protection was increased to life plus seventy years, thanks to the passage of what is known as the Sonny Bono Copyright Term Extension Act, named for the late, great songster turned California congressman. (Works with corporate authorship are protected for a hundred and twenty years after creation or ninety-five years after publication, whichever is first.) This means that copies—and, if Bonnie Schiffman prevails in her lawsuit, imitations—of Schiffman’s picture of Rod Stewart’s head, which is already thirty-three years old, may be illegal until some time in the twenty-second century.

The twenty second century! Well that's better than the year 2525, or pirates running ads as a way of making a buck out of old songs on YouTube, here.

This helps explain why the pond is a cheerful pirate (please always use condoms and a VPN).

Copyright law is now comprehensively fucked, and corporate greed is rampant, and the most notorious example is the way the House of Mouse shamelessly pushed to change the entire world's understanding of copyright to keep the Mouse in the House ...

There are other examples of course, of a parochial kind, most notably the shameless behaviour on display in the matter of kookaburras. You don't have to be a Skeptical Lawyer, or seem to have misplaced the "c" in sceptical, to note the loss of moral authority the law endured as a result of Copyright, Kookaburras and Greg Ham. This featured a company which had nothing to do with the creation of the original song making a quick buck at law because it could ...

In his brief trawl through history and the resulting overview of copyright, Menand provides plenty of other ironies.

It is, for example, astonishing to remember that all current big names in American publishing got their start and their profits by acting as pirates:

The United States also found another, and even better, way to speed the distribution of knowledge, and that was not to extend copyright to foreign works. This was not uncommon in the nineteenth century, but the United States was particularly slow to reform the practice. Until 1891, a book published elsewhere could be legally copied and sold here without payment to the author or to the original publisher. “It seems to be their opinion that a free and independent American citizen ought not to be robbed of his right of robbing somebody else,” Arthur Sullivan, of Gilbert and Sullivan, complained. Charles Dickens campaigned aggressively against the evils of piracy, to no avail. The loss to British authors was not small. The United States is the world’s largest consumer of books. Baldwin says that by the late nineteenth century the American book market was twice the size of Britain’s.

All the US publishers still hanging around got their start that way, and much interest in the period, as in this paper here. (Happily it's possible to read excerpts of Without Copyright here).

It's a bit like the way, if you scratch beneath the surface of some of the biggest brand names still doing the rounds, you'll discover that they conducted profitable business with the Nazis (the pond routinely offends some lovers of No. 5 - oh okay, the pond doesn't mind it either - by pointing out that Coco Chanel was a fellow traveller, as can be seen in the NYRB's recent The Cut of Coco, outside the paywall at the moment, or The New Yorker's earlier The exchange: Coco Chanel and the Nazi Party, also outside the paywall).

Yes, yes Godwin's Law and all that, and this is just a roundabout way of saying that copyright law is now, thanks to the United States, comprehensively fucked, regressive and repressive, and harnessed to the power and benefit of corporations. It rarely works to the benefit of the actual creatives in the grip of sundry corporate maws.

The current functioning of copyright law also does nothing to serve the intent of the American founders and their constitutional interest in rewarding creative people by way of rights and patents. The fall-out can range from the eccentric to the absurd:

Lawyers remember that ASCAP once demanded that the Girl Scouts pay royalties for copyrighted songs sung around the campfire, and that Warner Bros., the producer of “Casablanca,” went into action when it learned that the Marx Brothers were making a movie called “A Night in Casablanca.” (Groucho, in turn, wondered whether Warner Bros. had the rights to the word “brothers.”) You think these laws don’t affect you? Warner/Chappell Music claims to own the copyright to “Happy Birthday to You.” So far, in cases like Eldred, the Supreme Court has leaned to the side of copyright owners. But the Court always takes a while to catch up with the times, so it seems likely that the law will eventually change. 
The most fundamental opposition in the copyright wars is between creators and consumers. In parliamentary debates in the nineteenth century, Thomas Macaulay called copyright “a tax on readers for the purpose of giving a bounty to writers.” Creators want to sell high, and consumers want to buy low. Almost the minute a popular book falls into the public domain, cheap editions flood the market. A virtual minute after that, a digital edition becomes available online for nothing. This is what Congress had in mind when, in 1790, it restricted copyright to fourteen years with a single term of renewal. It wanted to speed the availability of inexpensive copies. 
Freelance cultural producers are only weakly organized, in groups like the Authors Guild and the American Federation of Musicians. That’s one reason they are better off assigning copyright to a corporate entity, which has the muscle to protect it. Cultural consumers are not organized at all. They can speak only through their elected representatives, but most of those people will be listening to the money—to the lobbyists for the content industries, new and old, as those industries search for more reliable ways to squeeze profits from the awesome stuff that human beings have created.

And that's where Menand gets it wrong.

Cultural consumers have organized. You only have to visit pirate sites to realise just how organised some of them have become ...

That's a direct by-product of corporate greed, and political connivance.

When you see that the fix is in, you protest as best you can. In the days of Prohibition, you went to a sly grog seller and partiedon behind closed doors ...

Right now Andrew Robb is moving, behind closed doors, in furtive secrecy, to sell off even more of the farm to the United States, which dominates cultural production in key areas, including but not limited to films, television and music.

More importantly, it is likely that any new agreement - why else the secrecy? - will nobble access to new medical discoveries. Courtesy of ever more onerous patent laws, costs will rise, government schemes of the kind at work in Australia will become more expensive, and corporate heavies will be able to limit the ability of producers of knock-offs and generics to help out with cheap versions of drugs in a timely manner ...

If this isn't the case, why the secrecy? Why the 'behind the closed doors' approach?

The only way that a consumer can protest this state of affairs is to indulge in activities that are increasingly criminalised and heavily sanctioned, and which see metadata and privacy information deployed to the benefit of corporations in the persecution and prosecution of minnows.

Does Robb have the first clue about any of this? Does Robb understand the motivations of the old industries determined to expand their rights in the age of the intertubes?

Does he have the first clue about the counter-productive impact of the behaviour of the likes of Sony, which has seen young people criminalised in a way as egregious and as offensive as the war on drugs has seen an unholy number of blacks locked up and deprived of the benefits of citizenship in the United States?

Not likely, and in the meantime, who knows what is being signed away.

Nobody's saying nothing, all that's out in the open is courtesy of leaks, and in due course this "free trade agreement" will lead to more than irony when it comes apparent that "free" means corporate lock down ...

Now the pond isn't a free market libertarian demanding all copyright and patent law be overturned. Indeed in this topsy turvy world, the pond has benefited from copyright law.

That said, copyright law is badly in need of reform. The current House of Mouse cannot stand as it is.

Has any energy been expended on reform, as opposed to maintaining the corporate fix?

In short, will any of these issues be considered by Andrew Robb in his negotiations?

In your dreams, because conservative governments in Australia have routinely shown they don't have a clue or a care in the world, beyond a simpering desire to fall into line with corporate America.

Meanwhile, this graph about the House of Mouse found here ...

 Put it another way, so Rod Stewart will understand where the back of his head is heading:


  1. Senator Basil Fotherington-ThomasOct 26, 2014, 11:25:00 AM

    I notice Andrew Robb describes his opponents as "peddling a lot of misinformation", as opposed to him denying any information.

  2. Also do a bit of a Google along the lines of MPAA and RIAA strangehold on media distribution, it's stifling effect on foreign film production and distribution and their battle (canute style) against the Internet, and also the trustees of original authors..

    Here are a few links...

  3. I gulped when I read the last line of Esther Ham's report. My rheumy old eyes saw this:
    'Prices usually drop 16 per cent once the patient expires'.

    I thought that was a bit solid, billing the dead for Medikamente, even at a cut-price. But it was entirely possible at that moment before the eyes adjusted.

    Really and truly when the ancient Greeks were arguing furiously in the agora would they have ever believed that their spanking new idea of government by the people for the people would end up being conducted down shadowy back alleys.

    The adults must be in charge because they treat us like children. Seen and not to be heard.

  4. Look on the bright side, when you are forced by ASIO to destroy your recording of their bungled Special Operation, you will be able to sue them for much more than $2.5 million because they have acquired your intellectual property.

  5. Freedom Bubba, "Most recently, he was the Director of Climate Change Policy and the Intellectual Property and Free Trade Unit at the Institute of Public Affairs."

    1. Don't forget, he's also a git of the year, and a 'fully qualified carbon accountant'.

    2. "Property Rights" in this case means "none of the above", since Wilson argues it trumps all other rights - see his defence of the Gov't banning Public Servants from commenting on political issues


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