Today’s copyright hearing will be talking about consumer
expectations with media. But these expectations are more than just what we want
out of commercial media; they’re based upon how we own our personal property
and live our lives.
Today at 1:30, the House IP Subcommittee is holding a hearing on new ways of delivering media and how consumer expectations have changed in
the decades since the Copyright Act was last significantly amended.
One of the big differences is that we use things as
information and not objects. Instead of having a physical photo album that I
pull off a shelf and pass around to my bored friends, I move data in an image
format from my camera to my computer, and from my computer to cloud storage or
to my friends. Instead of carting a half-typed sheet of papers (or even a
floppy disk) from home to the office, I send a text file from one computer to
This is not, for anyone in the 21st century,
riveting stuff. It’s humdrum, everyday, boring. It’s just how we do things. If
my friend, a semi-pro photographer, sends me a picture he took, he doesn’t care
that I might get it on my phone, my home computer, my laptop, or that it might
display as part of a screensaver on my TV.
Yet, somehow, the law does. Copyright law starts
scrutinizing activities when they involve making copies. So we’ve had lawsuits
about automatically made, temporary copies that never leave a computer and
never get seen by anyone but an authorized user. We see broadcasters and
webcasters having to look for special permission to make ephemeral copies in
the course of making a legal broadcast, even if no one ever gets those extra
copies. We see university libraries and Google sued for taking books they own
and scanning them into digital versions that no one can read. These privately
held copies, which don’t enter the stream of commerce, are all somehow
considered suspicious, and need to find permission—from copyright holders, from
statutory licenses, or from doctrines like fair use—to be made.
This is particularly strange because the law is happy to
draw a clear distinction between private and public displays of copyrighted
works, and private and public performances. Neither my photographer friend nor
the law care if I hang a photo he gave me in my living room. Nor does the law
care if I privately perform music at a house party, or watch a DVD with my
family. In fact, the law places no restrictions at all upon private displays
and performances of copyrighted works—copyright owners simply don’t have the
right to stop or demand money for those private uses.
This is actually a big part of the question in digital ownership.
If I bought or otherwise own a particular copy of a copyrighted work, I should,
at a basic level, be able to do whatever I want to with it—with the few
exceptions of those things that would interfere with the copyright holder’s
rights. Right now, the law doesn’t care if I give away a book I own, or if I
read it aloud privately. So why should it care any more if I scan it so I can
search the text on my computer for that one quote I was looking for, or move it
to my phone so I can read it on the train? At an even more basic level, it
certainly shouldn’t care that playing my DVD or running my computer program
makes automatic copies in my computer’s RAM.
This is actually something we focus on in our comments on the PTO and NTIA’s copyright green paper. In the section on “digital
first sale,” we discuss the idea that a lot of the copies that are made by
consumers as they use and move digital media shouldn’t be covered by the
law—any more than the sale of used books or the private performance of music
and movies do.
We have a very old tradition of granting strong rights over
personal property, and not trying to create laws that interfere with the
private use of that personal property. What copyright desperately needs to keep
up in the digital age is to recognize that, just as there is a difference
between private and public performance, there’s a difference between private
and public reproduction.
The witnesses’ submitted testimony shows a focus on talking
about how consumers buy media and expect to use devices, but when people say
thing like “consumers want to get their media anytime, anywhere,” it
sounds like we’re spoiled content junkies, demanding and impatient. But that’s
not what “expectations” are about. It’s not demanding a spigot of
content, it’s about being able to use my files and my devices in ordinary ways.
The idea isn’t that new technology means people want to get copyrighted works
in new ways; it’s that new technology has changes the way people use all
media—copyrighted and non-copyrighted, and the law needs ot be able to interact
smoothly with that reality.
Image: Flickr user Image by AlexandreVandeSande