Finding Balance in an Unbalanced Copyright World

Finding Balance in an Unbalanced Copyright World by Neil Turkewitz, guest blogger

July 10, 2017

Note: The views expressed in this post are those of its author.

A story concerning the attempted prosecution of Diego Gómez in Columbia has recently become one of the favorite exhibits of the copyright-skeptical crowd in seeking to demonstrate that copyright has become unbalanced and unfit for the digital age. I should note at the outset by the way that I agree that copyright has indeed become unbalanced and in need of a makeover, but precisely in the opposite direction than as proposed by EFF et al. Indeed, this intended indictment of copyright protection in fact illustrates instead a focus on “what could have been” scenarios from EFF rather than an examination of the actual circumstances of creators in Columbia and elsewhere, and their struggle for survival in an asymmetrical battle against copyright infringers. But I digress. Back to the Gomez fable.

By news accounts, Gomez was apparently charged criminally in Colombia for having uploaded an infringing copy of a scholarly article onto a public website, thereby distributing or making available an infringing copy of a work in violation of Colombia’s copyright laws. I personally don’t know whether Gomez was charged for uploading a single article, but according to reports, it appears to have been prosecuted at the request of the individual aggrieved author. See: “The accusations against Gómez weren’t brought by a government prosecutor or a publishing company looking to protect its profits, as is commonly the case. Instead, they are being made by the author of the scientific paper himself, who likely received no compensation for his work. EFF et al paint this as an example of “copyright industries gone wild,” but there were no industries involved here–only an academic who was unhappy at the perceived violation of his rights by another scholar.

Still trying to weave a narrative of overbearing and unreasonable US copyright industries and a supposedly too compliant US government, EFF continues its assertions: “The law Gómez is accused of breaking was established in 2006, says Maira Sutton, a global policy analyst at the Electronic Frontier Foundation, as “a direct result of a free trade agreement between Colombia and the U.S.” Specifically, the agreement’s Intellectual Property Rights chapter ensures that each country must “provide for criminal procedures and penalties to be applied” when a copyright work is shared without permission. Before the trade agreement, Colombia already had strict copyright laws. But, says Botero, the U.S. “pushed for more penalties, higher penalties and prison.

This is, if you will excuse me, both inaccurate and inexcusable. The relevant provision of the Colombia FTA provides as follows:
Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale. Willful copyright or related rights piracy on a commercial scale includes:
(a) significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain; and
(b) willful infringements for purposes of commercial advantage or private financial gain.

Even in these truth-challenged times, it is outrageous and unforgivable to be so intentionally misleading. Neither the US, nor anyone in the US private sector, demanded adoption of a rule that would criminalize conduct other than with respect to infringement on a commercial scale, and under the US-Colombia FTA, an infringement that is not undertaken for financial gain must be both willful and significant to constitute “commercial scale.”

In addition, I must point out that Gomez was acquitted. Doesn’t that at least suggest that the rules in place may have been appropriate? Every law is always subject to abuse. Does that mean we shouldn’t have laws? This is beyond silly. There should certainly be safeguards in place against malicious prosecution and other abuses, but this story doesn’t paint a picture of a copyright system that is unbalanced. And identifying the victim and the victimized is not so straightforward either. Sr. Gomez shared another scholar’s non peer reviewed piece, without permission and when the original author felt it was not ready for publication. This action potentially harmed the author’s standing in the community. Imprisonment in this case may indeed seem inappropriate, but that potential injustice did not take place. The injustice perpetrated against the original author, on the other hand, was not hypothetical. Perhaps we have case here of victims on both sides of the equation, one who was spared, and one who wasn’t. This is not to underestimate the very real harm and concern about facing possible imprisonment. But it would be a mistake to believe that this case was so unidimensional.

Finally, EFF, desperate to find a poster child for copyright dilution, ignores the fact that Gomez’s case illustrates (to the extent it illustrates anything), an issue unique to scholarship. Gomez highlighted that the problem in his case was the application of laws designed for entertainment to works of scholarship. See: “Part of the problem, according to Heather Joseph, executive director of the Scholarly Publishing and Academic Resources Coalition, is that intellectual property laws—or rather, the groups that lobby for them—tend to conflate academic research with commercial media. Unlike movies, television shows or magazines, with scientific research “you build on the work of others,” she says. “The research has no value if you can’t share it.” As Botero notes about Gómez’s case, conservationists can’t help the species identified with the author’s thesis if they don’t have access to the paper.

In sum, this case is being used by EFF and other organizations to launch/support a broadside attack on copyright, but that is little more than shallow and unsupported propaganda predicated upon an intentionally misleading characterization of history. I know that making stuff up is in vogue, but there is much at stake, and I continue to believe–however old fashioned it may be, that truth matters.