More Details On Copyright Register Maria Pallante's Call For Comprehensive, 'Forward-Thinking, But Flexible' Copyright Reform

from the details,-details,-details dept

On Friday, we had two stories breaking the news that the Register of Copyright is expected this week to call for comprehensive copyright reform, including both a slight reduction in term as well as some of other changes. It’s somewhat surprising that (as far as I can tell), no other publications are reporting on this, considering the magnitude of this bit of news. There was a brief bit of speculation in Billboard, but most other publications have stayed silent so far.

Today we have even more details. First, we have Pallante’s expected testimony on Wednesday before the IP subcommittee of the House Judiciary Committee. It’s a pretty short and simple piece that basically says “let’s get this process started, because Copyright Reform is going to be a long and arduous process, but it needs to be done.” And, as we noted last week, it sounds like a lot of stuff is on the table.

It has been fifteen years since Congress acted expansively in the copyright space. During that period, Congress was able to leave a very visible and far-reaching imprint on the development of both law and commerce. It enacted the Digital Millennium Copyright Act (“DMCA”), which created rules of the road for online intermediaries (e.g., Internet service providers) and a general prohibition on the circumvention of technological protection measures (so-called “TPMs”) employed by copyright owners to protect their content. The DMCA also created a rulemaking mechanism by which proponents could make the case for temporary exemptions to the TPM provisions in order to facilitate fair use or other noninfringing uses (the “section 1201 rulemaking”).

Nonetheless, a major portion of the current copyright statute was enacted in 1976. It took over two decades to negotiate, and was drafted to address analog issues and to bring the United States into better harmony with international standards, namely the Berne Convention. Moreover, although the Act is rightly hailed by many as an accomplishment in balance and compromise, its long trajectory defeated any hope that it could be effective into the 21st century In fact, former Register of Copyrights Barbara Ringer, who had worked closely with Congress for much of the 1976 revision process, later called it a “good 1950 copyright law.”

I think it is time for Congress to think about the next great copyright act, which will need to be more forward thinking and flexible than before. Because the dissemination of content is so pervasive to life in the 21st century, the law also should be less technical and more helpful to those who need to navigate it. Certainly some guidance could be given through regulations and education. But my point is, if one needs an army of lawyers to understand the basic precepts of the law, then it is time for a new law.

For the most part, I absolutely agree — especially that last line. I will note that, Pallante, who has been stung repeatedly in the past for displaying a very strong bias towards copyright maximalism, is clearly being much more careful in these remarks — something that we should all appreciate. In her talk to Congress, a number of the things she suggests should be reviewed are things that many of us here would agree are in dire need of study and updating.

A central equation for Congress to consider is what does and does not belong under a copyright owner’s control in the digital age. I do not believe that the control of copyright owners should be absolute, but it needs to be meaningful. People around the world increasingly are accessing content on mobile devices and fewer and fewer of them will need or desire the physical copies that were so central to the 19th and 20th century copyright laws.

Moreover, while philosophical discussions have a place in policy debates, amending the law eventually comes down to the negotiation of complex and sometimes arcane provisions of the statute, requiring leadership from Congress and assistance from expert agencies like mine. The list of issues is long: clarifying the scope of exclusive rights, revising exceptions and limitations for libraries and archives, addressing orphan works, accommodating persons who have print disabilities, providing guidance to educational institutions, exempting incidental copies in appropriate instances, updating enforcement provisions, providing guidance on statutory damages, reviewing the efficacy of the DMCA, assisting with small copyright claims, reforming the music marketplace, updating the framework for cable and satellite transmissions, encouraging new licensing regimes, and improving the systems of copyright registration and recordation.

In her speech, she also highlights that the public interest is the most important thing, but also notes that the interests of creators are intertwined with those of the public. Again, we agree, though I think that we agree in different ways. Her focus appears to be mainly on the full-time, professional content creator, whereas we believe that any law must recognize that nearly everyone “creates” content these days, and must take that into account.

If Congress considers copyright revision, a primary challenge will be keeping the public interest at the forefront, including how to define the public interest and who may speak for it. Any number of organizations may feel justified in this role, and on many issues there may in fact be many voices, but there is no singular party or proxy. In revising the law, Congress should look to the equities of the statute as a whole, and strive for balance in the overall framework. It is both possible and necessary to have a copyright law that combinessafeguards for free expression, guarantees of due process, mechanisms for access, and respect for intellectual property.

To this end, I would like to state something that I hope is uncontroversial. The issues of authors are intertwined with the interests of the public. As the first beneficiaries of the copyright law, they are not a counterweight to the public interest but instead are at the very center of the equation. In the words of the Supreme Court, “[t]he immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.” Congress has a duty to keep authors in its mind’s eye, including songwriters, book authors, filmmakers, photographers, and visual artists. A law that does not provide for authors would be illogical —hardly a copyright law at all.

Separately, the Copyright Office has released the full text of her speech at Columbia University from two weeks ago, in which she lays out her ideas in much greater detail. It’s an interesting read, and I hope that most people here will take the time to read through the whole thing carefully before jumping into the discussion. There is a lot in there to process — some of it good, some of it troubling, some of it that requires more thought and study. Assuming that Congress does move forward on this point, there is going to be an awful lot of back and forth over the next few years, and it wouldn’t surprise me if it takes a decade or more before something is finally hammered out.

In her speech, Pallante, (not surprisingly) says many of the same things as in her upcoming testimony. She talks about making copyright law “forward thinking but flexible” which is a good way to think about it — though, I imagine that just what that means will vary quite a bit based on where you sit in this debate.

The next great copyright act must be forward thinking but flexible. It should not attempt to answer the entire universe of possible questions, but, no matter what, it must serve the public interest. Thus, it must confirm and rationalize certain fundamental aspects of the law, including the ability of authors and their licensees to control and exploit their creative works, whether content is distributed on the street or streamed from the cloud.
This control cannot be absolute, but it needs to be meaningful. After all, people around the world increasingly are accessing content on mobile devices and fewer and fewer of them will need or desire the physical copies that were so central to the 19th and 20th century copyright laws. Thus, Congress has a central equation to consider today: what does and does not belong under a copyright owner’s control. Congress also will want to consider the exceptions and limitations, enforcement tools, licensing schemes, and the registration system it wants for the 21st century.

She then goes through the big list of “major issues.” First up is the performance right. In the US, Congress decided long ago that since radio was a form of advertising for music, radio stations do not need to pay royalties to performers (they do need to pay songwriters/publishers). Most of the rest of the world does have to obtain a performance right however, and for years there’s been a push from the labels (and the Copyright Office) to “harmonize” this and basically force radio stations to pay an RIAA tax for playing music. As I’ve argued in the past, this is somewhat silly, since the history of radio is littered with stories of payola, in which the labels funneled huge wads of cash to radio stations and their employees to get their music on the air. In other words, if left to the free market, the market has said that labels value airplay so much they’ll pay for it — yet they’re looking for legislation that requires the reverse: where radio stations should be expected to pay labels. I still haven’t seen how that makes much sense, but given the decreasing importance of radio (though, yes, it is still important today), and the importance of many of the other issues discussed, the performance right issue will almost certainly get rolled up into any big reform effort.

She also suggests a clarification on “the distribution” right, to determine whether or not you actually have to distribute, or if merely “making available” violates that right. The courts have more or less been split on the issue with a few rulings in either direction. Not surprisingly, I strongly believe that there needs to be evidence of actual distribution to violate the distribution right, and merely making available does not violate that right (though, certainly should put you at risk of violating that right). Pallante does not come down on any particular side, but notes it as an open issue.

The scope of the distribution right also is a central theme today, as courts work through whether and how it may be implicated and enforced in relation to use of works over the Internet.58 One key issue in the courts is the degree to which a claimed violation of the exclusive right to authorize distribution of a work requires a showing of actual dissemination of a work or whether the act of making the work available online is sufficient.

Next up: incidental copies. As Pallante rightly notes, “new technologies have made it increasingly apparent that not all reproductions are equal in the digital age.” Specifically, the nature of the way computers work is that they are giant copying machines, and you could argue that much of what they do is infringement, but there is growing concern that “incidental” copies made in the process of computing should not be considered infringing. Pallante points out that Congress has dealt with this in the past through duct-taping on bits and pieces to the Copyright Act to exempt certain types of copies, which (though she doesn’t mention this) leads to convoluted rulings like the one in the Cablevision remote DVR case, in which the court knew it shouldn’t be infringing, but had to twist itself into a series of complex knots to make that argument under existing law.

From there we get into enforcement, which kicks off with some implied praise for “voluntary” actions like the six strikes plan, but also a hint of support for SOPA-like restrictions, specifically calling out payment process, advertising networks, search engines and internet service providers as “having a role” in enforcing copyrights. That should be closely watched. Similarly, she highlights another issue that was in SOPA: expanding copyright coverage to go against “streaming.”

One critical issue is the ability of law enforcement to prosecute the rising tide of illegal streaming in the criminal context. Streaming implicates the copyright owner’s exclusive right of public performance: it is a major means by which copyright owners license their rights in sporting events, television programs, movies, and music to customers, who in turn access the content on their televisions, smart phones, tablets, or video consoles. Under current law there is a disparity that may have once been of little consequence but is today a major problem: prosecutors may pursue felony charges in the case of illegal reproductions or distributions, but are limited to misdemeanor charges when the work is streamed, even where such conduct is large scale, willful and undertaken for a profit motive. As a practical matter, prosecutors have little incentive to file charges at all, or to pursue only those cases where the rights of reproduction and distribution are also at issue. This lack of parity neither reflects nor serves the digital marketplace.

Again, this was a part of SOPA (and while not a part of PIPA, there was a separate Senate bill that covered this concept, which resulted in the famed Free Bieber campaign. While Pallante presents this in a matter of fact manner, it is not nearly as clear cut as she states. After all, we’ve seen that the government is already going after “streaming” sites, like TVShack, ChannelSurfing and NinjaVideo. In those cases, we often see that the government has a very dangerous (i.e., extremely confused) understanding of how internet streaming works, often being willing to blame site operators for third party actions, and quick to blame a platform site for content streamed from third parties, without ever directly touching the streaming site. The war against streaming sites is incredibly misguided, and is the latest in a long series of attempts by the entertainment industry to lash out at enabling technology when it should be learning how to use it to their own advantage. It’s disappointing, though not surprising, that Pallante is offering up clear support for further criminalizing this area, in a manner that will almost certainly be abused to create chilling effects on innovation.

Also among possible reforms: small claims court for copyright infringement. Copyright is limited to federal court, and as someone who was just (ridiculously) threatened with a “small claims” court over a bogus copyright issue, we’re certainly well aware of why it’s a good thing to keep copyright out of small claims courts. Last year, we had an even more detailed discussion about the issue in the form of a guest post from the folks at New Media Rights.

Then we get to one of the big ones: statutory damages:

This brings me to statutory damages. Some would eliminate the precondition in section 412 of the Copyright Act that limits the availability of statutory damages to those who register with the Copyright Office in a timely manner.74 They believe that it places an undue burden on the people who need statutory damages the most but are least likely to be aware of the condition, namely authors. Cost is also an issue, particularly for prolific creators like photographers, who may be unable to register each and every work under a separate application and have for years enjoyed a reduced rate through a group registration option. This gives photographers the ability to claim statutory damages, but often without providing effective public disclosure of what the group registration covers. Section 412 also acts as a filter, reducing the number of claims from copyright owners and the level of exposure for infringers. Unfortunately, it does this for bad faith actors and good faith actors alike.

Section 412 was designed as a precaution and an incentive in 1976 — a time when the law was moving to automatic protection and many were worried about the ramifications for authors, the public record and the Library of Congress’ collection. Section 412 thus creates a bargain: the copyright owner preserves his ability to elect statutory damages in exchange for registering, thereby ensuring a more complete public record of copyright information and a better collection for the Library of Congress.

[….] More globally, arguments abound on the subject of statutory damages, suggesting that they are either too high, too low, too easy, or too hard to pursue. Statutory damages have long been an important part of copyright law to ensure that copyright owners are compensated for infringement, at least where actual damages are unworkable. The Copyright Act of 1790 included a provision awarding the copyright owner fifty cents for every sheet of an unauthorized copy that was printed, published, or imported or exposed to sale.77 Statutory damages should remain squarely in the next great copyright act irrespective of section 412. However, there may be plenty to do on the edges, including providing guidance to the courts (e.g., in considering whether exponential awards against individuals for the infringement of large numbers of works should bear a relationship to the actual harm or profit involved), and finding new ways to improve the public record of copyright ownership.

That, at least, is a tiny, tiny, tiny step towards a more reasonable look at statutory damages, but I’d argue it needs to go much, much further. As it stands today, statutory damage threats used against individuals, especially for use that is clearly for personal use, is a huge part of the problem.

She then moves on to the DMCA’s safe harbors and, as we feared, seems to be suggesting that they need to be revamped to take the burden off of copyright holders, and place it more on service providers. This is dangerous for a number of reasons, which we’ll explain shortly:

The section 512 safe harbors in particular have generated more than their fair share of litigation on issues such as eligibility for the safe harbor, inducement, and monitoring. Some of these issues were imaginable at the time at the time of their enactment, and others were not. There are other concerns that go more generally to the question of whether the burdens of notice and takedown are fairly shared between copyright owners and intermediaries.

This is the part that scares us most about any reform proposal — and, we fear, the key point as to why this is being discussed. Copyright holders have been trying to change the safe harbors for years, putting the burden for “enforcing” copyright onto intermediaries and service providers, turning them into copyright cops. The idea, as Pallante suggests, that this burden should be “fairly shared,” isn’t just misleading, but rather it makes no sense. The reason you don’t put the burden on service providers is they have no way of knowing if something is absolutely infringing. This was clearly demonstrated in the Viacom/YouTube case in which well over 100 files that Viacom sued YouTube over were uploaded by Viacom employees as part of their jobs in marketing. It is impossible for the intermediary to know, for certain, if works are infringing or not. This is about the “fairness” of the burden, but simple reality.

Furthermore, putting the burden on service providers does two horrible things. First, it locks in the large players like Google/YouTube who can invest in expensive filtering systems, but denies any new competition from entering the market. That’s just bad for innovation. Second, it will massively inhibit all sorts of new types of services that involve any “user generated” component, just on the fear that they could face massive liability because of an action of the user. None of this absolves liability on the actual person who is infringing, but placing such liability on the third party service provider is dangerous and counterproductive. We don’t blame Ford when someone speeds. We don’t blame AT&T when someone calls in a bomb threat. We don’t blame Bic when someone forges a check. Don’t blame service providers for infringement done by users.

While Pallante does also suggest some review of the anti-circumvention provisions, she appears to only focus on the triennial review process — and not the anti-circumvention process themselves. This is bad news. If they’re going to open up the safe harbors, at the very least, completely throwing out the anti-circumvention concept should be on the table. It’s a horrible part of the law that simply is not needed. Anti-circumvention only serves to make illegal actions that do not infringe copyrights. If you use an circumvention tool to infringe on copyright, we already have basic copyright to make that illegal. Making the creation, distribution and use of circumvention tools illegal on top of that only makes it harder for people to do what they want to do in manners that don’t infringe. For those who are infringing with such tools, it is already illegal. If we’re going to reform copyright law and the DMCA in particular, near the top of the list we should include the possibility of dumping the anti-circumvention “digital locks” stuff entirely.

Next up: first sale. She doesn’t take a stand here other than to say it needs to be looked at. I tend to hate “on the one hand, on the other hand” arguments, because they feel so wishy-washy. Take a stand. First sale rights are important. You should own what you’ve legally purchased without question. There’s no reason why the Copyright Office shouldn’t be able to take a stand in favor of that.

On the one hand, Congress may believe that in a digital marketplace, the copyright owner should control all copies of his work, particularly because digital copies are perfect copies (not dog-eared copies of lesser value) or because in online commerce the migration from the sale of copies to the proffering of licenses has negated the issue. On the other hand, Congress may find that the general principle of first sale has ongoing merit in the digital age and can be adequately policed through technology — for example, measures that would prevent or destroy duplicative copies. Or, more simply, Congress may not want a copyright law where everything is licensed and nothing is owned.

Moving on, we have a section on “exceptions and limitations.” As I’ve argued in the past, this is the wrong framing entirely. This should be known as the rights of the public, because that’s what it accurately describes. Labeling it as “exceptions and limitations” minimizes the importance of these items, despite the fact that they should be a central component of any copyright law. The UN’s “declaration on human rights” puts the rights of the public to share and participate in cultural life first, above the ability to “protect” content.

Unfortunately, Pallante fails to suggest a comprehensive review of this area, but rather focuses narrowly on carve outs and patches — such as for schools, libraries and archives.

On the question of licensing, Pallante suggests that we might be better off with some sort of blanket licensing for digital uses, while noting that with the variety of business models out there, the licensing landscape has been a total mess. It is true that current licensing regimes are a total mess, and have slowed the rise of important digital services. Tragically, at times, it seems that copyright holders themselves have been their worst enemies here, demanding as much money as possible upfront, making it almost certain that no digital service can go through the necessary growth period to build a sustainable, popular service that pays artists well. Instead, they strangle and cripple each new service to hit the market, demanding more and more upfront, such that we have a very limited marketplace, with few services that can succeed. At best, we’re left with one or two giant players, rather than a truly competitive market that helps to both support artists and to provide unique and valuable services to individuals. Unfortunately, Pallante’s talk does little to address this issue, other than to note that Congress may have a role in making licensing work better to reduce “gridlock.” We’ll see, but my fear is that this turns into another mess like the Copyright Royalty Board, in which you have a few ancient judges, with no understanding of the digital marketplace, setting ridiculously high rates.

Moving on to copyright term, as we reported, she calls for potentially rolling back the Sonny Bono Copyright Term Extension Act, such that copyright goes back to being life plus 50, rather than life plus 70, but leaves open the ability to get that last 20 years by proactively renewing for it.

Perhaps the next great copyright act could take a new approach to term, not for the purpose of amending it downward, but for the purpose of injecting some balance into the equation. More specifically, perhaps the law could shift the burden of the last twenty years from the user to the copyright owner, so that at least in some instances, copyright owners would have to assert their continued interest in exploiting the work by registering with the Copyright Office in a timely manner. And if they did not, the works would enter the public domain.

This both is and is not big news. It is big news in that this would be the first time that the US ever shortened copyright terms. From a symbolic standpoint, that is a big deal. It is also important in that it, at least, opens the door to returning to a system in which some portion of the copyright term requires proactive renewal. It’s not big news in the fact that life+50 is already insanely long and any competent copyright system should require proactive renewals way, way, way earlier in the process. As we’ve pointed out in the past, prior to the 1976 Act, most creators did not even bother to renew their copyrights after the first 28 years.

If the copyright holders themselves don’t value the copyright past 28 years, why are we automatically giving it to them for much longer. Now, obviously, Pallante is focusing on life+50 because that’s what’s in the Berne Convention, but we shouldn’t let the Berne Convention stop us from doing what’s right. And, some have suggested that you could potentially tiptoe around the Berne Convention by allowing renewals up to life+50, but not automatically going all the way there.

Next up, opting out of various collective licensing deals. Tragically, I had hoped she would also talk about the ability to “opt out” of copyright altogether, which isn’t really possible for the most part.

She discusses making copyright law more accessible. On this point, we agree entirely.

Finally, as noted earlier, the copyright law has become progressively unreadable during the very time it has become increasingly pervasive.

When the Copyright Act was enacted, it contained seventy-three sections and the entire statute was fifty-seven pages long. Today, it contains 137 sections and is 280 pages long, nearly five times the size of the original. As former Register Marybeth Peters observed in 2007, the current “copyright law reads like the tax code, and there are sections that are incomprehensible to most people and difficult to me.”

This is not merely a paradox; it is damaging to the rule of law. The next great copyright act should be as accessible as possible.

From there, she discusses “the policy process” itself, with a few head scratchers. In particular, I found it bizarre, and completely unsupportable, that she claimed that content from online business “can’t compete with that from traditional media businesses.” Really now? What is that possibly based on? And, even if you can make that statement today, will it be true next year? Five years from now? 20 years from now? Doubtful, at best. And, really, is the distinction even relevant any more? All businesses are online businesses today or they don’t exist.

Similarly, she jumps on the silly trope that “information wants to be free.” This statement tends only to be used by those who wish to mock the role of free information in the wider ecosystem, not by the digital natives it is often ascribed to. But, Pallante points to it, and then argues:

But in order to have a robust knowledge economy, we need content that is both professional and informal; we need content that consists of information, commentary, and entertainment, or sometimes all of these combined into one; and we need content that is licensed, content that is free, or in some cases, content that is licensed for free.

Whether or not all of that is actually needed may be an open question, but even if we assume it’s true, I find the implication that “professional content” needs be covered by copyright, fee-based and “licensed” to be highly questionable. I produce professional content for a living — you’re reading it right here, and yet we dedicate it to the public domain. While later on she does admit that perhaps some artists prefer “receiving credit to receiving payment” or to use Creative Commons and that “the law must be flexible enough to accommodate these decisions,” it still feels like she is suggesting that such uses are “amateur” and “informal” rather than professional.

I would think that if we’re doing a big rethink on copyright law, perhaps one key starting point would be to address the myth that copyright is the only way to make money from producing content. If we’re starting with that myth, then we’re going to end up in the wrong spot.

Finally, Pallante does, in fact, push for greater powers for the Copyright Office, effectively promoting it to full agency status, like the Patent and Trademark Office. While you can understand the desire there, and it is true that it might help the Copyright Office make some basic changes in policy on the fly without Congress (increasing flexibility), I think there is quite a reasonable fear that this will also lead to much greater regulatory capture. The revolving door between the entertainment industry and the Copyright Office has been well documented in the past, and we’ve seen how the Patent Office has tended to support gradual expansionism as well. Raising the Copyright Office up only seems likely to lead it to support more maximalism, instead of more reasonable policies.

In the end, she is thinking big, but there’s a lot to worry about in here, along with a few good things. Perhaps of even greater concern than Pallante’s thoughts, is that, for the time being any process in Congress will be lead by Rep. Bob Goodlatte, who chairs the House Judiciary Committee. While Goodlatte is slightly better than Lamar Smith — and, as he constantly reminds people in Silicon Valley, his son works at Facebook, Goodlatte has a long history of siding with the maximalists, and having little grasp of the importance of the public benefit in copyright.

Also telling is that nowhere in the entire speech did she mention anything about SOPA. Pallante was an unabashed supporter of SOPA, testifying before the House Judiciary Committee in favor of the bill back in 2011. The fact that the public rose up against it highlights how these issues have become a significant concern to the public, and one would hope that it would lead Pallante to make clear that any such discussion needs to take that into account.

Filed Under: , , , , , , , , , , , , , , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “More Details On Copyright Register Maria Pallante's Call For Comprehensive, 'Forward-Thinking, But Flexible' Copyright Reform”

Subscribe: RSS Leave a comment
Internet Zen Master (profile) says:

Keep out of the Safe Harbors

It’s rather impractical for service providers to be enforcers of people’s copyright, and if they shift the burden of enforcement onto the service provider, then it could limit people’s ability to upload content because there’d probably be an absurdly complex authentication process to make sure everything is either a) licensed, b) not violating copyright, and c) available to be monetized by the copyright holder [last one’s unlikely, but after what happened to Buffy vs. Edward and Lionsgate on Youtube, I wouldn’t be surprised to see something like that happen]

The question now is: who will be at the table for copyright reform? Will it be the actual public, or the content industries “acting in the best interest of the public”?

As the Zen Master says, “We’ll see.”

Jay (profile) says:

Re: Re: Re: Keep out of the Safe Harbors

No. We had a lot of technology support with SOPA. The public had to appeal out with public interest groups such as KEI & EFF. We need more people to shout down the mercantilist ways of Hollywood and recognize that they don’t represent the interests of the rest of the world. They don’t have a good distribution model, their movies are repeats, people are producing and making money without them, and they are locking up our culture for their private profit.

The way to change that is to fight them directly and in the courts for people’s fair use rights which they’ve scuttled with their insistence on DMCA takedowns, statutory damages, and destroying lives of people that try to archive or make information available.

It’s going to be a hard fought battle and it has to be fought on multiple fronts. Until better alternatives come up, these are the options available.

Anonymous Coward says:

Re: Keep out of the Safe Harbors

I am guessing that they want to remove the safe harbour of the DMCA and enforce the service providers to become copyright police is to make it a lot easy for the FBI and Hollywood etc. to after and shutdown file lockers and torrent sites etc. that allow for people to upload files.

Beech says:

Once more to the breach!

When anything close to resembling anything she’s talking about comes up before congress we need to proactively go SOPA on their asses again. Don’t wait for them to roll out the initial clusterfuck and try to push it through. The exact second a draft is even being considered we need to shout and shout loudly. Emails a-plenty. Phone calls non-stop. Snail Mail. Everything. We need to shout out the lobbyists before they can even get their voice heard, then keep shouting until an actually reasonable bill is passed.

It’s time to let congress know that enough people care about copyright and the internet that doing anything to jeopardize the PUBLIC’s best interest will be toxic.

Anonymous Coward says:

Re: The next great copyright law

Agreed. We should demand its abolition. Yes that means she will lose her job and she doesn’t want to do that but who cares. I’m sick and tired of politicians only acting in their own interests and in the interests of their jobs in the name of acting in the public interest. It’s nonsense.

out_of_the_blue says:


FIFTEEN PAGE-DOWNS in the main body! You’re going for quantity over quality, I guess.

My skim — baloney if anyone claims they read it — finds some parts contradictory IF a supporter of SOPA, so I’d bet a whole ripe cantaloupe that IF any “reform” occurs in this area that it pleases none of us. Let’s just return to 1970.

Take a loopy tour of! You always end up at same place!
If Mike supports copyright, why are the pirates here? Oddly, they take him same as I do: PRO-PIRACY!

Anonymous Coward says:

Re DMCA “balance” between authors and service providers, it is useful to keep in mind that an author can provide a notice one day to a service provider, the material taken down, and then the next day the very same material is once more available on the service provider’s site. At some point a service provider has to accept some level of responsibility. This is what the “red flag” provision was intended to address.

As for terms never being shortened, up until the 1909 Act was replaced by the 1976 Act, a necessary condition for rights under Title 17 was registration. Most “author’s” never registered, so in effect their term was “0” years. Signing on to Berne changed all that, and not what I would consider a good way. Now, registration is only a requirement to bring a lawsuit and to pursue statutory damages. While I do agree that terms have not been shortened over the history of copyright, excessive terms were kept in check by registration and renewal requirements. My point here is simply that what most view as excessive terms is of relatively recent vintage, and made particularly problematic by adopting “automatic copyright” upon a work’s creation.

Anonymous Coward says:

Re: Re:

“Re DMCA “balance” between authors and service providers, it is useful to keep in mind that an author can provide a notice one day to a service provider, the material taken down, and then the next day the very same material is once more available on the service provider’s site.”

And how, boy, is the service provider supposed to check to see if a file is the “very same material”, especially if the poster changes the file-name?

Anonymous Coward says:

three things will be needed to get a new, working, copyright bill into law that actually does what it needs to do.

a) leave Congress out of any/all discussions and decision making
b) leave the entertainment industries out of any/all discussions and decision making
c) include as many sensible and forward thinking public interest groups as possible so that the correct balance is found, not one that leans so heavily one way or the other that the past battles just continue
d) get things sorted out ‘in a timely manner’ or the new law will be as outdated as the last ones all have been. progress is happening at an alarming rate. trying to keep up is a monumental task on it’s own. err too far one way or the other and things will be as much of a disaster as they are now, with the entertainment industries wanting everything for ever and never giving anything, ever

Anonymous Coward says:

Re: Re:

As stated above:

“First, it locks in the large players like Google/YouTube who can invest in expensive filtering systems, but denies any new competition from entering the market.”

If a company relies on infringement for their business model, then they have a bad business model. That’s no one’s fault but their own.

special-interesting (profile) says:

Yea! She said ?But my point is, if one needs an army of lawyers to understand the basic precepts of the law, then it is time for a new law.? Say’s a lot but a long uphill bloody battle will ensue with many casualties (most of which I hope are large media conglomerates).

My best argument is how does the public establish the public domain as important to cultural growth and maturity as a nation. Such an, popularly digestable, argument would allow the public to shrug off of many of the protectionist demands of media and other monopolies.

What we need is a public greedy for the free use of Sonny (Bono) & Cher’s music regardless of how primped and cute they (once) looked together. How do we expose the massive selfishness that derives eternal copyright in such a way that shorter terms and more fair user oriented can benefit from? Can we show how much better our lives would be without the RIAA and MPAA (typ.)?

Speaking of culture and original-work proliferation (specifically did not say protection) we always need to consider the lifespan of the audience. Everyone has an interest in allowing their kids to actually use the fables and wisdom (or more likely the Simpsons) we teach them.

If the author does not keep in mind the needs of the intended audience there is great risk that such culture/ideas/fact/love will be wasted down the black hole of eternal copyright. 95% of all books/media are lost in this way already. Its a national shame.

A limit of 15-30 years is both socially and culturally defensible. No other argument I have heard has come close. Especially the ridiculous monopolistic claims for eternal copyright from typical media firms. This would allow proliferation of new culture not stagnation of old school rehashing.

There are plenty of storytellers and an abundance of listeners but we have somehow allowed a stranglehold on accessing such. What short sightedness would prevent us from sharing our own heritage and history?

Anonymous Coward says:

“is clearly being much more careful in these remarks — something that we should all appreciate”

Unless she clearly, publicly, and unambiguously advocates for copy’right’ abolition or for a substantial reduction of its scope, length, and impact we should assume she is a maximist and we should all aggressively criticize her and seek to replace her with someone who hates copy’right’ law.

anonymouse says:

The public!!!!

One of the things mentioned in my comment in the last post about this is that any law or change to the law must be something the public support otherwise no matter what they put in the public will just ignore it, But if they are fair and allow sharing for own use then people would possibly get behind other ideas, like having copyright for 28 years, which i think is hard for most to want to give.
Any copyright laws that do not allow fair use of any content is going to stifle new uses of content and that is something that should be highlighted as a failure.
Be fair to the public and give them what they expect and they will in turn support things they might not otherwise, but the public is not stupid, dropping or restricting copyright to 50 years is not going to affect anyone and is not giving anything other than words that are meaningless.Yes it might release some works that big business can now use without paying licenses to use, but how will it help the public.Remember we are talking about 50 years after the creators death so that is approx 100 years where content is tied up and cannot be used. now when we put that into perspective it means that only content from 1912 and earlier can be used freely and that is just crazy. Copyright needs to be 5 years, no more than that.

saulgoode (profile) says:

Entitlement is controversial

From the (expected) testimony:

To this end, I would like to state something that I hope is uncontroversial. The issues of authors are intertwined with the interests of the public. As the first beneficiaries of the copyright law, they are not a counterweight to the public interest but instead are at the very center of the equation. In the words of the Supreme Court, ?[t]he immediate effect of our copyright law is to secure a fair return for an ?author?s? creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.? Congress has a duty to keep authors in its mind?s eye, including songwriters, book authors, filmmakers, photographers, and visual artists. A law that does not provide for authors would be illogical ?hardly a copyright law at all.

No, this is not uncontroversial. That there may be an “immediate effect” of copyright law does not elevate that effect to being an “aim” of the legislation, nor does it place a “duty” upon Congress to continue the subvention of the effect.

A Department of Natural Resources might institute a program that places a bounty on certain pelts in an effort to control the animals’ populations, which might have the immediate effect of providing income to some number of trappers and hunters, but that does not mean the government has a duty to consider the entitlement of those trappers and hunters to such income in administering the program — that is not the “aim” of the program, even though it is an “effect”.

Likewise, the provision for authors and creators should never be confused with the aim of copyright policy. It may be an effect of the policy that is instituted, but it is not the goal. The goal, according to the Supreme Court’s statement, is “to stimulate artistic creativity for the general public good”.

ahow628 (profile) says:


Her title is Copyright Register yet copyright happens automatically – no need to register. Maybe we should 1) register all copyrights and 2) have multiple shorter copyright periods.

Part 1) accomplishes a few things. By requiring filing for copyright instead of granting it automatically, it protects the things that people actually want protected. It also would create a database with all copyrighted material in one place so you could find the owner and easily license the work.

Part 2) would allow things to move into the public domain sooner if the owner was seeing no more economic benefit from the work. However, someone like Disney could register their copyrights a couple of times so the monopoly on it would be longer (but not near the 100+ years it is now).

Bonus: Copyright Register gets to keep her job!

Anonymous Coward says:

Re: Interesting...

To be accurate, the formal title is of the individual is “Register of Copyrights”.

Your Part 1 generally tracks the law as it existed under the Copyright Act of 1909. It was changed, however, with the Copyright Act of 1976, a necessary change in order for the US to fully comply with the requirements of the Berne Convention. Quite unlike the US, which signed the Berne Convention but did not formally accept its requirements for about 90-100 years because of its almost total absence of formalities, most Berne Convention signatories were countries in Europe where the national laws were lax beyond belief. Copyright took effect upon creation, no need to register, no need to use a copyright notice, etc. In sum, “no nothing”. Even after finally formally accepting the Berne Convention, the US still maintained the requirement for the use of copyright notices in order for rights under copyright law to be recognized. This too eventually fell by the wayside because of treaty requirements. With this the last vestiges of the formalities that had been the hallmark of US law came to an inglorious end.

Your Part 2 was also required under the 1909 Act. At the time it was supplanted by the 1976 Act rights under copyright were subject to an initial term of 28 years, after which an additional term of 28 years could be secured…for a total of 56 years. With the 1976 Act this too fell by the wayside and a single term (actually, various terms depending upon works for hire and individual works not for hire) became the rule. To enact your Part 2 would be no small task given the requirements of the governing treaties.

Bottom line…your approach would amount to what would represent time-travel back to the 1909 Act. That happening borders between slim and none. Hence, the only way to implement your approach would require the amendment of various international treaties…and the likelihood of the other members to those treaties embracing such amendments would be quite difficult. BTW, these treaties in large measure reflect demands made by France, and as we all likely know the French are quite protective of their prerogatives under their national law.

Anonymous Coward says:

Re: Re: Re: Interesting...

The Berne Convention is the “granddaddy” of many concepts now embraced in “international” copyright law. It was no accident that the US, while an original signatory, refused to implement it for so many years. There is much to commend the Copyright Act of 1909 as it relates to formalities, which, unfortunately, did not strike a responsive chord with other countries that provided long terms, required zero formalities, looked down their noses at any suggestion that copyright notices should appear on works for which copyrights applied, etc. Most of my colleagues who have practiced under both the 1909 and 1976 Acts have expressed concerns over the years that the elimination of all formalities was a mistake. There are aspects of the 1976 Act that do have some merit, but eliminating formalities is not one of them.

Androgynous Cowherd says:

Moreover, although the Act is rightly hailed by many as an accomplishment in balance and compromise, its long trajectory defeated any hope that it could be effective into the 21st century In fact, former Register of Copyrights Barbara Ringer, who had worked closely with Congress for much of the 1976 revision process, later called it a ?good 1950 copyright law.?

The only good copyright law is a dead copyright law.

Ninja (profile) says:

Regardless of good and bad points I’m fairly sure there will be shitloads of lobbying from the MAFIAA to make it as bad as they can. The good part is that they are messing with far too many online players when they suggest safe harbors should make the burden more “distributed”. I believe this will spawn an opposing lobbying effort by almost the entirety of the internet that relies on user generated content and I’m including sites with comments and reviews sections such as Amazon. Talking about Amazon there’s another lobbying front that will come from resellers and gadget manufacturers.

What I see here is that battle in front of Minas Titith where the people are the city (can put some fight but not alone) in the form of representatives such as EFF, the MAFIAA is Sauron’s army and the barbarians who support them are the MAFIAA related companies in the other realms, the tech companies (mainly the internet based) are the Rohirrim and the army of the dead (that Aragorn leads) for me is incognito. This army of the dead will only rise if the MAFIAA pushes too hard I guess (like what happened with SOPA). I may have left someone out but they surely fit at some point.

Disney? At best the Nazgul, at worst Sauron himself 😉

Anonymous Coward says:

this is the ideal opportunity to correct so many things that are wrong with copyright at this moment, from the length of term, to the statutory damages amounts, to the ability to abuse greatly and as often as wanted the DMCA without any penalty at all. i will be interested to see whether this opportunity is grasped correctly with both hands or whether she, along with others in Congress, see this as another opportunity to screw over the citizens again and gain personal glory from the entertainment industries as well as increasing the size of personal bank accounts!

special-interesting (profile) says:

The preamble was interesting in its large ambitious scope and handled delicately several current hot original-works topics although couched with many reservations.

?Performance right? is misnamed as the word right unfairly describes self justification for something that does not exist. If they want to call it a fee,charge,tax,extortion thats OK but don’t let them call it a ?right?,

To pay for performance is just a silly scheme to skim money off of the everyday activities of life like listening to music or watching a video at a friends house. If you are so lucky to have more than 1 friend let alone 10 or more listening and watching with you how is that considered a public performance? Friends exist everywhere in your neighborhood, office, school and social occasions so charging anything at all for any reason is completely nuts. If someone not a friend overhears such normal usage so what as there are party crashers everywhere.

Charging for playing music must be the exception not the rule and there should be explicit rules for deciding what is a commercial event made for profit and fun. How do we free the everyday use of cultural items such as music, videos, etc. by people from any regulation (whatsoever) yet allow commercial exploitation of the same?

TV and cable stations already pay for the content they broadcast and its crazy that anyone would consider charging downstream viewers in any context or location be it a home or a commercial location be it a bar or street-corner news display. (News is just an excuse to draw in viewers to watch more ads.) They should be happy that more viewer are watching their program and paid advertisements. Such an open view policy would still allow for the resale of boxed sets of the programming to the public at large especially if the read about Cwf-Rtb and can add extra value.

?Congress decided long ago that since radio was a form of advertising for music? I actually like this attitude/approach. Take for example the realm of Star Wars or Star Trek or LotR or Led Zeppelin or etc. as each offer so much more than just the movie/TV-show/music one can absorb in one viewing. There are many opportunities to sell more to such a fan. Posters, T-shirts, other albums, other movies, comic books, toy light sabers… ad infinitum. Yes we want to encourage/entice/force such contributions to culture.

This is getting long so reserve an opportunity to post more later.

special-interesting (profile) says:

Distribution Also needs to avoid the term ?right?. One can use control/limitations/censorship/black-listing/monopoly or whatever but ?right? is wrong. (pun not intended but love the wordplay) The misused term ?right? is most likely clever doublespeak to dodge around the obvious insidiousness evils to cultural growth by taxation or charging for normal sharing/enjoyment. (charging a fee for every time you play a song has already been suggested) Not to mention (and not discussed enough) the privacy issues such control allows.

The mention of ?,there needs to be evidence of actual distribution to violate the distribution,? is basic to all judicial foundations of law. First person evidence must always be required or abuse will be legendary and on a national scale. We see hints of this already in the unprecedented DMCA take-down notice scheme.

A great common example of what happens without witnesses giving public testimony in person at trial by a jury of peers; Just look at the entirety of historical examples of Monarchy’s (kings and queens) ruthless domination over their kingdoms. The murder of anyone who opposed them and the brutal enslavement of serfs are the horrors known as the dark ages. Nobody wants this.

If more has to be said its obvious that not even one word spoken in history class entered the brain. (be ashamed)

Distribution has larger implications when considering an author’s intended use of their work. Obviously many authors and original-work creators do not want their good work portrayed in a bad light. Such opportunities of control brings up many controversial conflicting topics (of which are beyond my current awareness atm). Would Disney want their work played at a GLBT convention? Who knows, and who cares. Such opportunities for censorship should be prohibited in a blanket rule. If some author wants an ‘exception’ let them beg for it like we are doing now just to use the devices/media we have.

With an overly controlled distribution channels we have an unnatural opportunity to tax and charge for everyday usage and enjoyment of cultural items with friends and family. (See post above about ?performance right? wrongs.) Related are ?incidental copies? described better as more distribution complications. No such control over normal daily use of any original-work should be the rule not the exception. Making exceptions for every little new development that our clever society creates destroys market opportunities we need to grow rich and great as a country. (no less)

having fun picking on the political logic so maybe more later

special-interesting (profile) says:

Incidental copies are a funny thing when applying Internet technologies. Buffers, backup servers, mirror sites etc. and thats all before the copy gets to its intended destination/user/purchaser who probably wants to backup important data and books or media. Many computers have two or more possessors which complicates almost every software user agreement which stated (wow it looks so silly from todays perspective) that the user cannot run it on more that one processor at a time.

I have said this before but knowledge and important data must be more durable than one copy be it either a DVD, CD, tape or hard-drive. A single hard-drive is a guaranteed way to loose all your precious data and with hdd’s storing more than 2gb that can be a huge loss. At minimum a user needs a mirrored copy. A RAID array is ideal. If only one copy allowed its like shooting technology and Internet growth in the digital foot.

Most dangerous are the new USB connected hard-drives and quick removal/install non locking docking bays. A hard-drive’s most sensitive and critical moment is when it is reading or writing data. Removing or unplugging the drive at this time has a high probability of crashing the whole drive. Poof! They are so vulnerable that just wiggling the USB cord can blast your data to oblivion. Happens all the time. Power outages? Hahaha.

A remote copy is never going to work because of the inherent instability of companies and their hardware or technology. Its now famous that DRM’d media is licensed out of existence once the firm either stops earning enough to support the division, goes bankrupt or bought out by someone who just wants to sell off the assets. (Including the personal info collected on its customers.)

So if we want to preserve our personal history as recorded from our cameras, musical instruments and video recorders plus the books and other media we collect the current laws must be tossed. The flat out don’t work. Which brings us to enforcement.

thats for next next post. (this is mostly a dead topic now its a few days old but I just like to have fun with the details)

special-interesting (profile) says:

The problem we have with enforcement is, the worst of all situations, the fact that we are not allowed to use the material we purchase. Just reading a book or viewing a video is considered risk to the content owner. Just being able to memorize (to many?) quotes and saying (or acting them out) them in the wrong place when an copyright monitor agency is listening can get you large fees and likely fines in civil court and thats not even touching the bastardized new criminal laws being foisted on a hapless congress. Worse if the event was considered a public performance. (on and on)

The root of the problem is, based on the fact, that everyday use is NOT the norm but the exception. Everyday actions should not, even closely, be regulated in such a way as to incur felony convictions. Just handing a DVD of a movie to your kids or giving them access to the Internet should not be a, possibly, life threatening criminal event.

Even fair use is under attack and many times flatly ignored in media sweeping take-down notices. Fair use is an everyday use of copyrighted media. Writing a book report/letter/essay/book/memo with quotes and examples is vital for basic communication of ideas/thoughts/thinking.

If we want free and open ideas/comments/statements/facts in forums, BBS, blogs or whatever future format we must remove any fear factor involved with fair use. Make fair use NORMAL and NOT the exception.

Sorry for jumping to a somewhat sensible solution oriented attack without a detailed analysis of the above discussed laws. It is important that they be fought at every level and shown as such the horrible tragedy, foolish nonsense they are. Trying (been spending to long a post no one will read) to make up for that…

Current enforcement trend is the criminalization of civil copyright law. It was best to leave it in the civil domain as actual proof of violations have the potential to be reviewed by a jury. How can the justice branch afford the added cost of enforcing such broad law that makes almost everyone a potential (likely?) criminal? Yes this was foisted upon them by congress but don’t they have a clue?

With DMCA take-down there is no court. Poof. Freedom of speech is out the window. Gone. Vanished.

Six strikes also involves no court and only incrimination evidence is sufficient for fines and worse. It sounds more like water-boarding to gain supposedly real evidence. Some will ignore thus some smarts-ass layer will say they did not deny it. Many will pay some fee and (very) regrettably sign some paper admitting guilt even if they did nothing.

Statutory Damages. Its is embarrassingly common that congress, under the duress of whatever special interest group in vogue at the time, allows the word ‘deterrent’ to brain wash themselves into approving harsh/draconian/ruinous fines. Fines so out of proportion that it destroys the lives of the very consumers that support the economy. Fines for doing what? Making backups? Kids downloading music files? (isn’t that same music being payed on an Internet radio somewhere?)

Every 40 years or so this becomes an obvious problem and a ?realignment of federal sentencing law? concept bubbles up in the minds of voters.

Special-interesting yells ?Echo!? in the empty (room) post.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...