Copyright Revision’s On The Agenda

By: Deborah Goldman

Forget everything you know about copyright law, it may not be the same for long.

House Judiciary Committee Chairman Bob Goodlatte (R-VA) announced in late April that the Committee would undertake a comprehensive review of our nation’s copyright laws. Since then, there have been four related hearings; no comprehensive legislation has been introduced. Some have argued that the Committee is taking the wrong approach by framing the debate as a fight between content creators and the tech industry, and for not including ordinary users in the discussion.

Current copyright law has been widely criticized. The duration of a copyright, currently the life of the author plus seventy years, has led to many things being kept from the public domain. Recently, a lawsuit was filed seeking declaratory judgment that the song “Happy Birthday To You,” originally written no later than 1893, is in the public domain. Additionally, the Digital Millennium Copyright Act’s (DMCA) notice and takedown provisions, intended to enable rightsholders to report infringing content online and have it removed, have been misused to censor disfavored speech. These takedown notices often place the costs of removing infringing content on internet companies, and automated notices often target legitimate uses. The number of requests sent is staggering, and the percentage of notices resulting in takedowns may suggest that these notices are abused. On the other hand, those representing the content industry suggest that this process is too burdensome, as it requires them to send a notice specifically pointing to each instance of infringement.

Perhaps the highest priority in the revision process is reducing online piracy. While the content industry continues to insist that piracy is a growing problem, a recent study by the National Academies suggests that we are lacking evidence about the actual effects of infringement. Measuring so-called “lost sales” may be a poor proxy for determining if the incentives for future creation, the underlying purpose of copyright, are diminished. There may be real losses to particular industries, but not the economy as a whole. Additionally, there is evidence that those who engage in online file sharing are larger customers of the same copyrighted content than those who don’t. Some in the content industry have realized that, suggesting that piracy leads to more paying subscribers in the end, and that being the most pirated program in the world is “better than an Emmy.”

There have been multiple studies suggesting that the best way to reduce piracy is to offer good, affordable legal alternatives. Some reports credit Netflix as significantly reducing video piracy. Indeed, it’s the lack of legal access to content that is said to increase piracy. Some have noted that the recent conflict between Time Warner Cable & CBS, which has led to a blackout of CBS networks, has triggered an increase in online piracy. Ultimately, piracy is best described as a “signal of unmet demand.”

While we may not be certain of its ultimate impact, piracy is by no means justifiable. Stakeholders have recognized this, and entered into voluntary agreements to help combat it. For example, the Copyright Alert System (CAS), launched earlier this year, is an agreement between five of the major internet service providers (ISPs) and representatives of the content industry. Under this agreement, copyright holders will report instances of infringement from certain internet protocol (IP) addresses to ISPs, who will then send users notices. After repeated notices, ISPs may take mitigation measures, including throttling users’ speeds. This program is intended to educate users to wrongful activity taking place and gives them the opportunity to remedy it. Another voluntary agreement, the Best Practices Guidelines for Ad Networks, is aimed at making piracy less profitable. When ad networks receive notice from copyright holders that a site using their services is engaged in infringement, the network can cut off ad revenue. This relatively uncontroversial process leaves end users generally unaffected.

While some people may believe that copyright law isn’t relevant to their lives, that just simply isn’t the case. The first sale doctrine affirms your right to sell or lend your copy of a copyrighted work, such as a book or DVD. The Chafee Amendment enables authorized entities, such as Bookshare and libraries, to make accessible copies of printed works for the visually impaired. The fair use doctrine lets us record television programs to watch later, record musical parodies, and permits cache copies made by internet browsers. Every fixed, original work of authorship is protected by copyright, whether or not it’s registered. This includes blog posts, YouTube videos, and original pictures posted on Instagram. The recent controversy over the Library of Congress’s decision to no longer permit cell phone unlocking under the DMCA highlights the breadth of copyright’s scope.

It remains to be seen whether any substantive change will come from this review. While stakeholders are engaged, this Congress has many other issues on its plate that may take precedence. Whatever happens, this is one debate that everyone should watch and weigh in on. After all, in the internet age, we’re all copyright holders, whether we realize it or not.

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