Judge Marilyn Hall Patel, otherwise known as the judge who killed Napster, spoke at Fordham Law last Monday and proposed a reform of copyright for the digital age. Her plan called for the establishment of a new organization, with representatives from both the public and private sectors, that oversees all things copyright. Specifically, the agency would have authority over the licensing of musical works, setting and administering royalties for the use of works, and “adopt[ing] rules and regulations to carry out these purposes.”
Although disconcerting, not all of Patel’s suggestions are necessarily bad. It is true that copyright law, as it currently exists, can’t seem to keep up with the constant change in technology. As a result, and as Patel highlighted, “our copyright laws have become a patchwork of amendments that are adopted as emergencies arise.” Today, technology is far ahead of copyright law, so much so that it is difficult to use the same approach for digital works that is used for copyright of analog works. For example, when a person downloads a song on his or her computer, a plethora of rights are implicated for one simple download—reproduction rights, delivery and distribution rights being just a few—that it proves challenging to regulate.
One particularly frightening piece of Patel’s reform is requiring developers and manufacturers to obtain approval from the copyright organization before any technology is released to consumers; what Patel described as “sort of like the FDA, but much faster.” While her comparison of the copyright body to the FDA is most likely serving as an analogy for how the approval process would work, it is quite egregious. The FDA serves a distinct purpose: protecting citizens and consumers from harmful food and drugs. The proposed regulatory agency would do nothing of the sort, protecting instead the hypothetical monetary interests of a particular set of industries. It is preposterous to think that an inventor, marketer, or software company needs permission from an organization because its products will ‘maybe’ infringe upon another work. The FDA protects lives, not financial interests.
Furthermore, if Patel desires to stifle any kind of innovation when it comes to what can and cannot be copyrighted, she is on the right path, because that is exactly what would happen. If a body is permitted to have veto power over what can and cannot be released into the market, it ensures that all innovation would be outsourced overseas and other nations would rapidly “leapfrog” the U.S. in technological development.
Patel is justified in her call for change. However, the method upon which her proposal is based is flawed. Patel believes that the issues have been over-legislated, which has resulted in the “patchwork” state of copyright law. She believes that legislation is not the answer. However, if done properly, legislation could prove to be the answer. For example, since the Napster case, complaints of music piracy have skyrocketed, and many individuals have been sued. Some argue that the method for punishing those who illegally download music is excessive and the law as it currently exists is unconstitutional. As such, with a new incoming administration, now could be the perfect time to bring to the forefront a reform of copyright law similar to the Telecommunications Act of 1996: a revamp catered to the digital age.