Copyright Office Boss Admits Copyright Law Is Broken And Needs A Rethink... But Still Focused On Bad Ideas

from the a-lot-to-worry-about dept

We posted one short post about a key comment from Register of Copyright, Maria Pallante, suggesting that the focus of copyright law should be on large scale piracy, rather than the teenager downloading at home. Many in our comments rightfully cheered on this line, but as the hearing is concluding it's worth pointing out that there are a number of things she's brought up that should be equally, if not more, troubling.
"I've never thought that copyright inhibits innovation."
Throughout the hearing, she repeatedly emphasizes her old line about how copyright is "first for the author" and then later for the public. This is a rewriting of history. Copyright is for the public, period. The means to do that is to create a benefit for authors. She's absolutely correct that these two things can and should be aligned, but those things are only aligned when you put the public interest first and then look to see how to create the best incentives following that. It's a different approach, and I'm troubled by her repetition of it being about "the artist first." It's not.

Also, troubling, was that she more or less endorsed large parts of SOPA as a proper solution for going forward. Specifically, she calls out the "follow the money" approach, which was a key part of SOPA, as a solution she believes would be effective for enforcement. This ignores the massive unintended consequences associated with that approach -- including the ability to shut down and kill off all sorts of innovations early on. A "follow the money" approach would have killed off radio, cable TV, the photocopier, the VCR, the MP3 player, the DVR and more in their early days. Do we really want that?

She also goes back, repeatedly, to saying that we need to make the public performance right a felony, rather than a misdemeanor -- another piece of SOPA. This is the "streaming" question. She wants to let law enforcement throw people in jail for streaming works, even if they do no host or even touch the content itself. That's pretty scary. She talks about the horrors of people "streaming the Super Bowl," ignoring that the Super Bowl isn't suffering from this at all. They're raking in tons of cash from advertisers. And yet, she claims that making streaming a felony is one of her "top 3" priorities on fixing copyright.

In a rather bizarre exchange with Rep. Chu, Pallante agrees with Chu that DRM is a form of innovation and that this shows that copyright inspires innovation. Furthermore, she insists that DRM is a required part of a functioning copyright system. Why? That is not explained.

Elsewhere, she mostly just focused on how things were "broken" and needed to be explored -- but held off on making specific proposals. That's a perfectly reasonable position to take, but it's worrying that there's little to no discussion about why the copyright system is broken. That is, we're talking about fixes to certain parts and a rethinking of those parts, but not looking at the very crux of the issue: whether or not copyright actually is creating an incentive, and if that incentive is useful or necessary. There's no discussion of why or how people create -- nor is there any discussion about how the vast majority of creation today is not for direct monetary benefit anyway, and yet is still locked up by copyright law. Without examining the core issues, the overall reform process is just going to produce another, outdated and broken law.

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  1. identicon
    Anonymous Coward, 21 Mar 2013 @ 6:12am

    Re: Re:

    First, if you're talking about the site that is actually hosting the content, then, no problem, you can already go after them via the distribution right.

    Wrong. The public performance right is distinct from the distribution right. A person can violate one or both. It is possible to be violating the public performance right while NOT violating the distribution right.

    If you're talking about a site that isn't hosting the content, then, what exactly are you going after?

    Other sites/operators that assist in the infringement could potentially be liable under either an accomplice or conspiracy theory. You don't seem to grasp these basic criminal law concepts.

    You're going after a site that is linking to content -- a guide that is pointing people where to go.

    And assisting others to infringe makes one just as liable as the direct infringer. Again, basic legal concepts that I assume you ignore because you don't like them.

    That should NEVER be felony material, because you're talking about someone who isn't involved in any actual infringement.

    If they are assisting in the infringement, then they are involved in the actual infringement. Again, basic legal concept. Don't ignore it because you don't like it.

    Go after those hosting or uploading the material.

    Sometimes those people are unknown or out of the jurisdiction. Are you seriously suggesting that aiders and abettors should be allowed to assist others in crimes with no repercussions? Truly amazing. Regardless, the law has NEVER taken that view, and it instead punishes those who help others commit crimes just the same as if they had committed the crimes themselves. Again, basic legal stuff that for whatever reason--willful blindness/pirate apologism/dishonesty--you ignore.

    But "streaming" it just opens up so many problems, especially given that most video hosting platforms have an easy embed feature -- potentially making tons of people felons. That's where the danger comes in. Embedding a stream is seen as a perfectly reasonable activity today. Making it a potential felony will have massive unintended consequences.

    It's already a tort and a misdemeanor. How would making it a felony open up so many problems that don't already exist? You love to throw out the "unintended consequences" FUD argument, but where are all those consequences now?

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