A Balanced Approach to Copyright Reform
A Balanced Approach to Copyright Reform
A Balanced Approach to Copyright Reform

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    On July 1, the US Department of Commerce’s Internet Policy Task Force organized a day-long symposium titled “Copyright Policy, Creativity, and Innovation in the Information Economy.” The event, which featured speakers and panelists representing various government agencies, industry associations, media companies, tech companies, and civil-society groups, was designed to spark discussion on copyright and Internet policy, with an eye towards statutory reform. The National Telecommunications and Information Administration (NTIA) and the US Patent and Trademark Office (USPTO), members of the task force and hosts of the event, indicated that the public symposium, and the private “listening sessions” that preceded it, are steps in a broad policy review process, which will soon yield a Notice of Inquiry and a request for public comments.

    One very positive sign is that every government official who spoke on Thursday underscored the importance of balance in copyright policy: rightsholders and their agents obviously have interests that need protection, but they’re not the only ones affected by laws dealing with copyright and the Internet. Everyone who makes or uses technology, everyone who sells or consumes Internet access, and everyone who creates or enjoys culture has a dog in this fight, and it was heartening to see this recognized and emphasized by our policymakers, from the Cabinet level on down.

    A related issue, raised by many panelists, was how complex the interests and interactions of different stakeholders are. Just as content creators’ interests aren’t necessarily in perfect alignment with those of the intermediaries (such as book publishers or record labels) who promote them, as pointed out by UC Berkeley Law School’s Peter Menell, even the term “content creators” is overbroad. For example, commercial photographers, videogame creators, and independent filmmakers all have starkly different concerns, as demonstrated by the different presentations from their respective trade associations. Photographers who produce thousands of pictures a year are unhappy with the copyright registration system, and with the high costs of litigation that make it impractical to seek recovery from small-scale infringers. Gene Mopsik of the American Society of Media Photographers suggested reworking the copyright registration system, and instituting a copyright “small claims court” to efficiently handle low-stakes claims. Videogame makers, on the other hand, are more worried about traffic in devices like “mod chips” that enable circumvention of the copy-protection built into game consoles, so Ken Doroshow of the Entertainment Software Alliance argued in favor of continued enforcement of anticircumvention laws. Susan Cleary of the Independent Film & Television Alliance, meanwhile, complained that independent filmmakers are finding it harder to finance their works because the regional distributors who have traditionally invested in their films are unwilling to commit to distribution deals when they’re worried about competition from illegal downloads and pirate DVDs.

    Many stakeholders also have some internal tensions, making their interests less straightforward. As Menell noted, on one level, consumers like saving money in the short term. But on another level, every fan of movies has a long-term interest in the continued production of movies–which costs money. And while device manufacturers are rightly concerned with copyright’s chilling effects on innovation, he argued that their long-term interests are best served by symbiotic relationships with content creators, since content drives consumer demand for technology. And as Microsoft’s Thomas Rubin pointed out, many companies play more than one role. As an online service provider, Microsoft doesn’t want to be held responsible for user-directed infringement, but as a software company, it wants that infringement to go away.

    This already complex situation is made even more troublesome by the lack of solid, helpful data on either the real prevalence or the real effects of online copyright infringement. Keith Epstein of AT&T noted that, while overall Internet traffic on AT&T’s broadband networks has doubled since 2007, traffic identified as “peer-to-peer” (through analysis of packets, headers, protocols, and ports) has decreased not only proportionally but also in real terms. However, peer-to-peer traffic does not equate to infringement, and it is impossible to determine whether a given packet of data is infringing just by looking at it. In addition to these data-gathering problems, as pointed out by Piotr Stryszowski of the Organisation for Economic Cooperation and Development, assessments of the impact of copyright infringement tend to suffer from fundamental flaws in how data are interpreted. For example, statements about the effects of infringement are usually based on an implicit (or explicit) assumption about the level at which unauthorized downloads and illegal sales substitute for legitimate purchases–assumptions which are devilishly difficult to verify.

    Another key issue that was a cornerstone of the discussion was the role and responsibility of intermediaries. In 1998, as part of the Digital Millennium Copyright Act, Congress made the policy decision that online service providers shouldn’t be liable for infringement that occurs on their systems at the direction of their users, as long as they meet some requirements, including an obligation to quickly “take down” any content alleged to be infringing. Leslie Harris of the Center for Democracy and Technology noted that the Internet as we know it today–full of sites allowing people to upload and display content without needing to get it vetted beforehand–would look quite different if these “safe harbors” did not exist and every site was effectively obligated to screen every submission. And Jonathan Band, representing the Library Copyright Alliance, pointed out that the take-down provision amounts to an automatic injunction–a remedy that a copyright holder would normally need to meet a high burden to obtain. YouTube’s Lance Kavanaugh argued that the DMCA represented only a minimum standard, claiming that YouTube was creating a win-win-win situation benefitting itself, major content companies, and everyday people by going beyond its minimum legal obligations and providing a voluntary scheme granting copyright holders fine-grained control over how their content is used.

    In all, the symposium represented a broad cross-section of views, with a welcome emphasis on maintaining balance in copyright and trying to minimize unintended consequences and collateral damage. Let’s hope the Internet Policy Task Force remains levelheaded and open to comment from all parties going forward in its policy review process.