What’s Sotomayor’s Stance On Intellectual Property?
As Big Content continues its assault on network neutrality, privacy, personal and digital freedom, and stacks government with industry friendly insiders, President Obama’s Supreme Court nominee Sonia Sotomayor should be heavily scrutinized regarding her stance on intellectual property and copyright issues.
But given this government’s track record, an industry-friendly justice is good for both the entertainment business and the business of government. And unfortunately, there is no white knight remaining big enough or confident enough to take on both Big Content and a sympathetic federal government.
Before she entered the judicial realm, Sotomayor was a litigator dealing in intellectual property at a major Manhattan law firm. She spent much of her tenure tracking down and rounding up counterfeiters on behalf of Fendi, and suing importers of counterfeit products.
As a Supreme Court judge, Sotomayor would join a justice system already stacked with former intellectual property attorneys. President Obama has already appointed five attorneys to the Department of Justice who made names for themselves bringing lawsuits against file-sharers for the Recording Industry Association of America.
Sotomayor by herself should yield little concern about how she would handle Web-related intellectual property cases destined for eventual appearances before the Supreme Court. But in conjunction with this administration’s obvious preference for Big Content IP skull-crackers—and Congress’s willingness to bend to the will of Big Content—should raise the volume of an already sounding alarm.
We need to know: Who’s side is Sotomayor on?
Those currently making, prosecuting, and interpreting intellectual property laws have a clear historical record of siding with Big Content. Sotomayor’s most notable decision as a judge regarding the digital copyright issue involved freelance writers versus Big Content publishers like the New York Times, Sports Illustrated, and Newsday. Freelance writers were peeved that their work, which was contracted for one-time print publishing, was being stored in online databases for use on publication websites.
Sotomayor sided with Big Content by interpreting the law in their favor. An appeals court would later overturn her decision, saying that the publications needed to negotiate for digital rights. The appellate decision was upheld by the Supreme Court. It might be unfair to say Sotomayor would bring a pro-Big Content viewpoint to the Supreme Court based on her anti-counterfeit work for Fendi, but her judicial history might suggest otherwise.
Despite Motion-Picture-Association-of-America-backed research spread worldwide to influence the creation of tougher international intellectual property law—research that equated pirating with counterfeiting and linked piracy to terrorism, drug trafficking, the sex trade, and Asian knife fights—two counter studies have surfaced recently illustrating how file-sharers and torrent users buy more music and DVDs, go to more movies, and buy more entertainment equipment.
Nevertheless, government agencies have a record of siding with recording and motion picture companies who pretend they are hemorrhaging money due to those same file-sharers and torrent users. They’d rather it not be pointed out that even though “Wolverine” was leaked onto the Internet a month in advance of its release, it still grossed $87 million opening weekend, or that Forbes’ Celebrity 100 list reveals Beyonce herself made $87 million last year, and Madonna made over $100 million.
The point is Big Content is not suffering as they pretend, but they sure have a lot of friends in government around the world. It’s not so much about what’s right and just, it’s not even so much about how much money Big Content isn’t really losing. It’s about ultimate control of a digital environment and squashing competition.
In the past ten years, Big Content has brought its business-is-war philosophy to the only real competition remaining: Internet upstarts and Internet users who don’t want to be corralled back into walled gardens with premium entry fees and anti-consumer, abusive pricing structures.
The assault on consumer rights and personal liberty is happening everywhere continuously, perpetrated in the name of intellectual property rights. The MPAA labeled RealDVD “StealDVD” because the motion picture organization doesn’t think even paying customers have a right to back up their own legally purchased discs for personal use.
Cable companies are putting caps on data, introducing tiered pricing, throttling torrents. Telecoms want to block unapproved video transfers. The Associated Press wants to rewrite fair use, revive “hot news” protections, and block out other forms of news distribution. The National Football Association wants to say football players names and stats are solely its own intellectual property. Big Content wants to snoop into and control everything Internet users do online.
It goes on and on, and unfortunately there are few people’s champions remaining. The government is clearly on Big Content’s payroll. Google, which at one time was brassy enough to make grand shows of defiance, has now also fallen in line. All it took was a billion-dollar Viacom claim, and Google bent over to the AP, and now to the rest of Big Content by actively blocking torrents.
With all that in mind, it’s a good idea to quiz Sotomayor fairly heavily about her stances on intellectual property. If Big Content gets its own Supreme Court justice, the Internet as you’ve come to know it—the one where what you do is your business—is toast. There’ll be nobody left to fight for you.