Washington’s dubious gift to the Internet, the Digital Millennium Copyright Act, has hit a North Carolina firm via a suit filed by Lexmark. The printer giant accused the Sanford-based Static Control Components of violating the anti-circumvention provision while picking up 56 bytes of computer code for a chip allowing remanufactured cartridges to work. The U.S. Copyright Office ruled on the case ambiguously, with both sides saying they had won. Old news. But today’s Washington Post tells the story in plain language even if certain details are jumbled. Yes, this is the same DMCA that has wreaked havoc on e-book users by encouraging the use of cumbersome and inept copy-protection schemes that rely more on Draconian law than on the most deft programming and business planning. The DMCA is even harming the First Amendment. It encourages Internet providers to take down the sites of alleged copyright infringers immediately just to satisfy certain corporate executives, Hollywood and other special interests in the area of intellectual property.

Can N.C. Sen. John Edwards, a textile worker’s son, rise above the other major Democratic Presidential candidates and side in the copyright battles with small businesses and consumers against pro-DMCA moguls, defenders of the notorious Sonny Bono Copyright Term Extension Act and other fatcats who swayed Congress through high-priced lobbyists and massive campaign gifts? If he and other stay mute on the DMCA, the public may shell out billions more for products ranging from replacement laser cartridges to–if some are right–even automobile tires. The DMCA was passed with the entertainment and publishing industries mainly in mind, but much damage has been done elsewhere, as the Static Controls case shows.

In fueling his campaign with money from Hollywood moguls and other members of the copyright elite, Sen. Edwards is merely representative of scads of national politicians, especially my fellow Democrats. From afar I actually like the man. He and his wife, Elizabeth, have engaged in many good works, and I especially applaud their interest in education–it transcends politics, and I’d hope I could expect more of him than of the typical candidate.

Still, the issue of Sen. Edwards’ massive donations from copyright industries is unavoidable. During the 2002 election cycle, more than a million dollars in copyright-related money reached an Edwards-linked Political Action Committee called New American Optimists (the actual home page of which was offline when I looked for it just now). The PAC received more than $900,000 from a Hollywood producer named Stephen Bing (Shangri-La Entertainment) and thousands more from other Hollywood types to augment Edwards’ considerable take from fellow trial lawyers.

With all the entertainment-industry cash showered on the Edwards-promoting PAC, the conflict of interest potential is huge. Edwards serves on the Judiciary Committee, which, among other things, deals with copyright law along with patents and trademarks. Copyright law is a major issue for the film industry. The longer copyright terms last, the more money Hollywood believes it can make–even if it’s at the expense of schools, libraries and the public at large. What’s more, the multimillionaire ex-trial lawyer serves on a subcommittee on anti-trust, competition policy and consumer rights–all issues where the DMCA’s critics have raised red flags in a Hollywood-related intellectual property context and otherwise. Logically, someone with Edwards’ legal talents and much-touted interest in ordinary people should be enraged. And yet despite his elaborate Web site bidding for the votes of Internet users, he has refused to speak out against the DMCA and the Bono Act even though they are clearly against the interests of most voters in the Carolinas and elsewhere.

The DMCA alone could cost consumers billions, as noted, by make it easier for the Lexmarks of this cosmos to engage in anti-competitive practices against companies with equivalent products. While I appreciate Sen. Edwards’ tolerance of Open Source software, that alone won’t cut it. Victims of consumer-hostile copyright law such as the DMCA and Bono Act range from Static Control CEO Ed Swartz to schoolchildren deprived of free access to The Great Gatsby, perhaps the most American of novels, which, thanks to the latter law, won’t enter the public domain for many years. Sen. Edwards can indulge in all the rhetoric he wants about protecting innovation, but the DMCA and the Bono Act are hated by many thousands of people in high tech–an industry far, far more important to North Carolina’s prosperity than Hollywood-style entertainment. Simply put, bought copyright laws are bad news for hard-working Americans in the Carolinas and elsewhere, the very people for whom Edwards supposedly is watching out.

Meanwhile the Washington Post carries some ominous predictions from Swartz, whose corporation, by the way, is just an easy drive from Sen. Edwards’ Raleigh campaign headquarters:

Should his company lose in court, Swartz envisions a world of monopolies that would make turn-of-the-century Standard Oil blush. He predicts deals between automakers and tiremakers, for instance, that would put copyright-protected chips in tires to prevent a car from starting unless it was fitted with automaker-approved tires. Imagine, for instance, if Toyotas would run only on Goodyear tires, he said. What would become of Michelin, Cooper, Pirelli and other tiremakers?

Of course, Edwards is hardly the only Dem refusing to show even a modicum of guts against the DMCA threat. Here’s a new slogan that Democratic voters might consider, given all the me-too wimpouts: “Rock the Vote. Boycott the Democratic primaries.” I haven’t quite gotten that disgusted yet, but I’m getting there–and maybe even to the point of sitting out the general Presidential election, too, for the first time. Who says informed Americans are angry just against George Bush, especially on campaign finance matters?

I visited OpenSecrets.org today and see that Edwards’ New American Optimists PAC, a lucrative source of soft money, received about a million dollars from the “TV/Movies/Music” category in the 2002 election cycle–second only to lawyers and law firms, some of which may be entertainment-related anyway to one extent or another. Whatever the reason, OpenSecrets.org, an arm of the nonpartisan Center for Responsive Politics, didn’t show any 2004-cycle contributions to this Presidential Leadership PAC, and at least $116,000 went to other candidates, including $10,000 to Jeanne Shaheen, who was hoping to win a Senate seat for New Hampshire, a crucial primary state. Sen. Edwards’ biggest Hollywood money within the PAC was the “soft” variety legally available for the campaigns of allies like her and for certain campaign-associated activities such as the hiring of consultants, get-out-the-vote items and other restricted items (as opposed to outright political advertising for Edwards in his actual personal campaign–a rather thin technicality).

Certainly, whether there’s a quid pro quo in Edwards’ case or not, the large donations were in character for the Democrats. As OpenSecrets reveals, Democrats have swept up giant heaps of cash from the copyright interests–64 percent of the total of more than $6 million contributed so far in the 2004 election cycle (by contrast the Democrats received just 46 percent of Computer/Internet donations in that period, compared to 54 percent for Republicans, out of a total of more than $5.5 million). In a table with statistics for top contributors of the cycle, Time Warner led among the entertainment interests, with this one company alone giving $477,829, of which 72 percent reached Democrats.

In an environment like that, the interests of the average voter don’t stand a chance. Common Cause statistics show that from 1995 through 1992, just one man, Stephen Bing, Sen. Edwards’ patron, donated $7,760,936 in soft money to Democrats, or more than the American Federation of Teachers, which came in at $6,525,250, or the National Education Association, source of a mere $3,417,542.

Like Sen. Edwards himself, Bing is an interesting paradox. As a liberal Democrat myself, I find him more likeable based on some enemies he’s made as a result of his donations to various causes. Still, even if Bing’s motives were pure for the most part, the oh-by-the-way factor would be something to consider from a copyright perspective when we’re talking about such big sums.

Of course, it’s the future I’m interested in more than Hollywood’s past buyouts of the Dems, and in Edwards’ case and others, I’m a great believer in redemption (perhaps one reason why I watered down the headline with a question mark). Time for Edwards to live, not just write out, a Tar Heel-style Profiles in Courage? To whom are you more loyal, Senator–Hollywood moguls or your own people in Carolina? Why not act out your conscience and oppose the DMCA and Bono, while advocating a more balanced approach to copyright law that would pay content-providers fairly and at the same time put thousands of library books online for Net-oriented children and the rest of us?

Question: In the 2002 election cycle, did Sen. Edwards receive more Hollywood-related cash than any other candidate, via his Leadership PAC? Ironically Stanford Law Prof. Lawrence Lessig, who argued a Supreme Court case against Bono, personally donated $2,000 to Sen. Edwards–but I doubt he can outbid Hollywood on this one.

Did Sen. Edwards mislead Fox News or lie to it?: “Sen. John Edwards of North Carolina, one of many aiming to challenge President Bush in 2004, took an early lead in overall fund-raising but has yet to attract any big-name donors in Tinseltown,” according to a Fox News story dated May 2, 2003. Huh? His PAC by then had already collected more than a million in Hollywood-related donations. A little hair splitting at the least.

The environmental angle: Notice? The DMCA even interferes with earth-saving recycling in Static’s case. I’m not sure if it would come into play with HP cartridges (reportedly Hewlett-Packard Senior Vice President Pradeep Jotwani has even criticized Lexmark for using the law against Static Control), but for what it’s worth, I almost always use the remade variety–from a small business near me.

Another Edwards-related controversy over campaign donations: From the Washington Post of April 18, 2003: “The presidential campaign of Sen. John Edwards (D-N.C.) announced yesterday it will return $10,000 to employees of a Little Rock law firm after a law clerk said she expected her boss to reimburse her for a $2,000 donation. Federal election laws prohibit a person from funneling donations through someone else to conceal their source. Such practices would enable the reimburser to exceed the legal contribution limit for individuals, recently raised to $2,000 from $1,000 per election.” Despite Hollywood’s importance to Edwards, his biggest angels are trial attorneys.

Campaign trivia–or more than that: Democrats have received some $103 million in campaign cash from Hollywood interests from 1990 on (69 percent of the total), and Republicans have gotten almost $46 million (31 percent).

Update, Nov. 13: At least one legal blogger online, Ernest Miller, a fellow with the Information Society Project at Yale Law School and a high-tech entrepreneur, says certain details of the Washington Post article were inaccurate even though he welcomed a Net-sympathetic article on the DMCA issue. I’ve tweaked my original item slightly in response to the points he raises.

Update, Nov. 14: No reply from the Edwards campaign so far. Among the New American Optimists donors from the copyright-related occupations, besides Steven Bing, were Bubble Factory partner and former MCA President and COO Sidney Sheinberg of Beverly Hills, a powerful entertainment industry figure with a legal background, who gave at least $5,000; Lawrence Bender of Los Angeles, a producer with an iFilm connection (at least $5,000; writer Carol Leif of West LA (at least $5,000), and actor Erika Girardi of Passadena (at least $5,000). As with Stephen Bing, I highly doubt that anyone shoved greenbacks in Edwards’ direction and said: “OK, so now it’s understood that you’ll forever back the DMCA and Bono–that’s all I care about.” They probably all had their share of good motives. Just the same, their contributions would hardly help to make Edwards a disinterested policymaker on copyright-related issues. Meanwhile I’ve continued to expand and tweak the original Nov. 12 item on Edwards’ donations.

Update, Dec. 2: Some of the above figures were updated today to reflect new information from OpenSecrets.org. Please click on the related links for the most current figures via OpenSecrets, part of the Center for Responsive Politics.

Update, Jan. 25, 2004: Still no response from Edwards’ campaign after I once again submitted questions about campaign donations and his stand on copyright-related matters.

Update, Feb. 2, 2004: Further tweaks for clarity’s sake.

Update, July 14, 2004: As far as I know based on a very cursory check at the EFF site, Lexmark isn’t making static for Static these days. But the issue of the use of the DMCA to scare off competitors is still very much alive. In StorageTek wins copyright injunction, dated July 12, CNET reports:

A federal judge in Massachusetts has granted a preliminary injunction against a consulting firm that allegedly violated the Digital Millennium Copyright Act when performing maintenance on StorageTek tape backup systems.

U.S. District Judge Rya Zobel ruled that Storage Technology, better known as StoreageTek, is likely to prevail in its lawsuit against a consultancy named Custom Hardware Engineering and Consulting, saying the controversial 1998 copyright law was violated when Custom Hardware effectively tricked a tape backup unit into believing that its technicians were granted full access to the system’s internals.

StorageTek “is likely to succeed on the merits of all three of the claims asserted in support of the motion for a preliminary injunction,” Zobel said in a ruling July 2. The other two arguments the company raised were copyright infringement and trade secret violations.

The StorageTek case is one of a series of lawsuits that are testing the boundaries of the Digital Millennium Copyright Act, which Congress enacted in response to growing fears about Internet piracy. Section 1201 of the DMCA says that in general, nobody may “circumvent a technological measure that effectively controls access” to a copyrighted work…

So the issue of the DMCA as a competition-killer remains very much alive. Will John Edwards take a stand? Oh, and one other little detail: Sen. Edwards is now, for all practical purposes, the Vice Presidential candidate of the Democratic Party.

Update, April 26, 2005: I voted last November for Kerry-Edwards but remain disappointed in their silence on Bono. I’m pleased to see bloggers in John Edwards’ state of North Carolina, including Eric Muller at the UNC Law School, begin to ask the ex-Senator to speak up on copyright-related matters. I want him to! The intent of this and similar posts is not to harm Edwards but to encourage him to include copyright in his Two Americas campaign. Laws like Bono will transfer billions over the years from ordinary folks to entertainment conglomerates and well-off copyright holders. This should be of interest to Edwards. He is has, after all, started an anti-poverty center at UNC. And guess what one of the best weapons against poverty is. Yes–education, one of the areas harmed by oppressive copyright laws. Like or it not, you can’t separate copyright from anti-poverty efforts, especially when you see which economic groups seem to be doing the most downloading without the blessing of the entertainment industry.

As for the latest on the DMCA as a potential competition strangler in areas far beyond entertainment–an issue on which Edwards should speak up–we’ve been lucky so far. Court decisions have limited the threat. But it’s hardly gone. In Technology Law Bulletin, an attorney named Joseph J. Laferrera comments: “The Lexmark decision shows how judges are struggling to limit the DMCA to the anti-piracy context, and rein in some of its more aggressive uses. But their struggles show how hard the job is, given the broad language of the statute. While there may be a place for judicial opinions which restrict the scope of the DMCA to its widely understood intent, legislative action may be appropriate to bring its language more in line with its interpretation.” Doesn’t Edwards care as a consumer advocate?

Update, June 8, 2005: Supreme Court won’t hear Lexmark case. That’ll help, but the DMCA is still bad news for economic competition.

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