This speech is also available in PDF format.
By Gigi B. Sohn
Presented to the New Media and the Marketplace of Ideas Conference
Boston University College of Communication
October 26, 2007
Thank you for inviting me to speak today about copyright and the challenge of balancing creators’ and users’ rights in the age of digital technologies and high-speed broadband networks. It’s great to be back at my undergraduate alma mater and it is particularly gratifying to return to the College of Communication, where I majored in broadcasting and film when it was called the School of Public Communication.
My premise is simple: copyright law has become out of touch with our technological reality to the detriment of creators and the public. Pre-VCR copyright policies must be transformed to embrace our new user generated culture. Today, I will give you my perspective on the current creative marketplace, and prescribe six policy changes to allow it to flourish.
Even though I am here to talk about copyright law, at heart and in experience I am a communications lawyer. This is in no small part thanks to the efforts of one Professor T. Barton Carter, who was my mentor here at BU and wrote my recommendations to law school. And during my 20 years of working on communications policy, I have seen radical changes to our media and telecommunications systems, changes that have led to increasing decentralization of the media into the hands of hundreds of millions of ordinary people world wide. When I started at the Media Access Project in 1988, analog broadcasting was the dominant medium, and the few opportunities for public access were quickly eliminated by the deregulatory fervor of the time. Less than a decade later, the Internet was beginning to become a staple of people’s daily lives, allowing inexpensive point-to-point and point-to-multipoint digital communications. Crucial to the success of the Internet has been the free availability of the World Wide Web, which gave Internet users a simple interface through which they could find information and create new works online.
As these decentralized networks developed, so too did devices built along the “edge” that gave users incredible flexibility not only to watch purchased media anywhere and at any time, but also to create their own media and show it to the world. These devices include video cameras, TiVos, iPods and most importantly personal computers and modems.
As our communications system has become more open and accessible to the public, access to the copyrighted content that travels over that system has become more closed and proprietary. Over the past 35 years, as the public has gained greater access to the means of communications, copyright law has increasingly placed limits on the public’s access and use of that content. These limits fall into four categories: First, copyright protection has become longer and easier to get. In 1972, copyright terms were 28 years with a 28-year renewal. By 1998, those terms were extended to 70 years beyond the life of an author and 95 years in the case of corporations. This has had the effect of shrinking the public domain, which is the reservoir of unprotected information that serves as the lifeblood for new creativity. In addition, in 1976, registration requirements were eliminated, which means that the moment somebody puts pen to paper, that document is protected by copyright. This puts the power to sue for copyright infringement in the hands of millions while at the same time making it more difficult to find a copyright owner. Second, the subject matter of copyright has greatly expanded. In 1972 “all writings of an author,” motion pictures, photographs, printings, engravings, maps and charts were copyrightable. By 1995, that list also included pantomimes, choreographic works like dance, analog and digital sound recordings, audiovisual works and computer programs. As a result, virtually anything that can be fixed in a tangible medium can claim protection. Third, secondary copyright liability has expanded and damages have increased. The seminal decision that sets the terms under which a technology manufacturer may be liable for the copyright infringement of others is the Supreme Court’s decision in the Sony Betamax case. Hollywood sued Sony, the manufacturer of the Betamax recorder that was the predecessor to today’s VCR, claiming that the device was nothing more than an illegal “copying machine.” The Court disagreed, and by a 5-4 decision held that if a technology is “capable of substantial non-infringing uses,” then the manufacturer could not be held liable for the illegal acts of others using the device. The Sony decision was narrowed by the Supreme Court’s 2005 Grokster decision holding the commercial peer-to-peer network liable for the infringement of those using its software. The court expanded secondary liability to include any distributor of a technology that induces or otherwise encourages copyright infringement. But perhaps the most troubling part of that case was the court’s observation that the distributors of peer-to-peer software did not employ technologies to filter or block infringing files. Already, courts are interpreting this observation as a mandate. This expansion of secondary liability, combined with damages that can amount to up to $150,000 per infringement, have forced entrepreneurs to seek the copyright industries’ blessing to develop new products. Fourth, “paracopyright” laws like the anticircumvention provisions of the Digital Millennium Copyright Act, or DMCA, have limited access to and use of digital content by preventing the breaking of digital locks regardless of the reason for doing so.
As the law has given Hollywood, the music industry and large book publishers even greater control over their content, the public’s ability to access that content has shrunk. Like any monopoly, the copyright industries have set licensing fees so high as to prevent all but the wealthiest companies from reusing those works. And aided by damages that would bankrupt most companies and individuals, these powerful companies regularly threaten litigation for even the most incidental uses of copyrighted works, turning “fair use” into what Lawrence Lessig calls “the right to hire a lawyer.”
Now this won’t necessarily be shocking news to many of you. As the means of communication become affordable for more individuals and the making and distributing of digital copies have become easier and cheaper, the copyright industries have sought to protect their centralized business models by expanding laws that were originally intended to protect authors from thieving publishers. And understand that these efforts are not just about so-called “piracy.” In an effort to restrain competition, these same extensions of copyright law are being brought to bear against the innovations that enable the inexpensive creation and easy distribution of content by anyone.
The disconnect between the law and the technology has made for some strange and undesirable consequences. For example, while the law gives the copyright holder the exclusive right to make “copies,” a computer makes a copy every time it opens up a document for editing. Online audio and video services must make temporary “buffer” copies before streaming a performance, and you are making copies of your CDs when you rip them to your computer or download them to your iPod. And if you think that the copyright industries would never seek a licensing fee for buffer copies or personal copies of a CD you have lawfully purchased, think again. Their position is this — every copy on every device, no matter how ephemeral, demands a licensing fee. It is this mindset that underlies the studios lawsuit against Cablevision’s network DVR service, which is essentially a TiVo service where copies reside on the cable companies’ server.
Another example of the mismatch between reality and the law is the legal battle between Google, book publishers and the authors’ guild over Google’s Book Search program. Book Search allows anybody to search for passages contained in books that are part of Google’s system. When the search is completed, and if the book is under copyright, a user sees only the relevant passage plus two or three lines before and after it for context. The user is also given links to an online bookstore in the event the user wishes to purchase the book. In order to do such a search, Google must scan the books and index digital copies, much in the same way that it copies and indexes websites. The book publishers argue that by making a digital copy of an entire book without their permission, Google is violating their copyrights, even if the whole book is never visible to the user. If the court sides with the authors, then all of search may be in peril — as all search engines must make digital copies of websites in order to index information. Imagine if Google, Yahoo, Ask and MSN had to get prior permission from every single webpage owner whose works they link to!
Similarly, the fights between content companies and YouTube over user-generated content highlight the shortcomings of current copyright law. The safe harbor provisions of the DMCA protect online service providers like YouTube and Internet service providers like Verizon and Comcast from copyright liability if they remove protected content when notified by a rights holder. Since the rise of sites like YouTube, the use of these notices has increased enormously — YouTube receives approximately 1,000 takedown notices a month from just one copyright holder — NBC Universal. But a recent study by Jennifer Urban and Laura Quilter demonstrated that a full 30% of takedown requests by copyright owners were improper. The companies demanded removal of works that couldn’t be copyrighted, to which they did not own the copyright, or works that were used in the context of criticism, commentary or parody that would be considered “fair uses.”
One of those false positives has now become something of a legend — Stephanie Lenz posted a 29 second video of her baby son running around with a push toy to the strains of Prince’s “Let’s Go Crazy” playing in the background. Let’s take a look. Even though the use was clearly non-commercial and transformative and would have no impact whatsoever on the sale of the Prince song, Universal Music Group, the copyright holder, sent a takedown notice. And Ms. Lenz is now suing UMG for abuse of the takedown process. What a courageous woman!
Current copyright law also draws distinctions that were far clearer in the days of print than they are today. For instance, libraries can distribute “by lending,” implying they can’t simply give away permanent copies for free. But how does that translate to a digital context? If the library has available a digital text, they could burn it to a CD, and insist the reader come to the library to check it out and return it, but why? Binding the law to a physical medium frustrates the very advantages the digital revolution promises.
Another example of this disconnect is the proliferation of recording technology. Before consumers could record public performances themselves, the line between the distribution of a physical copy and the live or broadcast performance of a work couldn’t have been clearer. And so the legal obligations that went with each were also clear. It should be equally apparent that the difference in how we use an audio stream compared to how we use a download should lead to distinct sets of obligations for each. But because the definitions of copyright law are still so often tied to physical copies, overzealous litigants like the recording industry can argue with a straight face, as they have in their lawsuit against XM radio, that they should be paid two or even three times for a single performance, depending on whether or not the radio receiver comes with a digital recorder attached.
So how can we bring copyright law more in line with current technological realities and user practices? In an ideal world, we would start from scratch and create a new copyright regime less tied to the printing press model. However, a complete overhaul of the copyright laws will not be politically feasible in the next decade, if ever.
Therefore, I suggest six more modest changes to the copyright law that will help return some badly needed balance and relax some of the more onerous restrictions that have limited innovation, scholarship, creativity and free speech. They are: Fair use reform; limits on secondary liability; protections against copyright abuse; fair and accessible licensing; orphan works reform; and notice of technological and contractual restrictions on digital media.
Fair Use Reform. No less a lover of copyright than Justice Ruth Bader Ginsburg recognized in the Eldred v. Ashcroft case that fair use is a critical factor in ensuring that copyright does not violate the First Amendment’s command that Congress “make no law abridging freedom of speech.” But with large copyright holders threatening litigation over even the most incidental uses of copyright, reliance on fair use has become the province of only the bravest of artists, academics and commentators. While one might argue that the flexible four-part legal test for fair use is a good thing because it allows for new fair uses, there are some uses, like commentary and criticism, which are explicitly set out in the law. It is time to add several more. Thus, I urge Congress to add incidental, transformative and non-commercial personal uses to the list of fair uses enumerated in copyright law. Congress should also expressly provide that making a digital copy for the purpose of indexing searches is not an infringement.
Critical to any effort to reform fair use is an amendment to the anti-circumvention provisions of the DMCA that would permit breaking a technological lock for lawful reasons. Something is amiss when most research universities must employ a DMCA officer to advise computer scientists and engineers whether they can engage in legitimate research, including research on computer security. Closer to home, the DMCA prevents lawful consumer uses like putting a legally purchased DVD on a video iPod. In order to make this amendment meaningful, the manufacture and distribution of circumvention tools must be permitted for lawful purposes.
Limits on Secondary Liability. The VCR, TiVo and the iPod did not become wildly popular because they were blessed by the copyright industries. They became wildly popular because they challenged the status quo. The Silicon Valley mantra of “innovation without permission” is the standard we should preserve in the law, and it should be done like this:
First, the Sony Betamax standard should be codified. Again, that standard protects a manufacturer or a distributor of a technology from liability for the infringing activity of others so long as that technology is capable of substantial non-infringing uses. Second, so-called statutory damages for secondary liability should be repealed. Should a technology not meet the Sony standard, the copyright holder is still entitled to actual damages if they can prove that there has been financial harm.
Protections Against Copyright Abuse. The Let’s Go Crazy Baby and the many other cases of misguided takedown notices demonstrate that there is little risk for the copyright holder in issuing overbroad demands. These actions do have consequences for free speech — individuals may not know their right to contest the takedown notice or they may not want to test the litigious nature of powerful corporate copyright holders. Currently, the DMCA punishes a copyright holder only if it “knowingly” sends a false copyright notice. To deter this scattershot behavior, the law should instead punish a copyright holder who “knowingly or recklessly” sends out a false notice.
Similarly, there should be relief for copyright abuse outside the realm of the DMCA. Congress should legislate an affirmative cause of action for allegations of copyright abuse, and the Federal Trade Commission should declare that notices, like those used by sports leagues that overstate a copyright holder’s rights are unfair and deceptive trade practices under the Federal Trade Act. You’ve heard the notices: “This telecast is copyrighted by the XYZ league for the private use of our audience. Any other use of this telecast or of any pictures, descriptions, or accounts of the game without the XYZ League’s consent, is prohibited.” The problem with this notice is that it completely misstates the law. The Computer and Communications Industry Association has filed a complaint asking the FTC to rule that these notices constitute an unfair trade practice.
Fair and Accessible Licensing. It is doubtful that there are ways to make copyright holders set reasonable prices to license uses of their works that are not fair use. Nor am I sure that it is fair to force them to do so, since after all, their limited monopoly gives them the right to license their works for a million dollars or $1, or refuse to license it to anybody at any price. We are starting to see copyright clearinghouses, like the Copyright Clearance Center, which allow for simple licensing and payment schemes. And of course there are alternatives to the current copyright regime such as the Creative Commons, which permits a copyright holder to license their works under terms more favorable than the traditional “all rights reserved” standard. For example, my work is made available under a Creative Commons license that permits any use so long as it is attributed to me, is for non-commercial purposes and anybody reusing my work makes it available under these same terms.
Music, which is already subject to a variety of government mandated license schemes, is another story entirely. Without getting too deeply into the weeds, suffice it to say that the business of licensing music is completely Byzantine, in large part because of the existence of numerous publishers from whom the rights to the musical composition must be obtained. A potential licensor must also get permission from an artist or record company for the right to the sound recording, but that is usually easier. Congress has made one failed attempt to simplify the clearing of the composition right — it should try again.
In addition, Congress must resolve the problem created by the Copyright Royalty Board’s recent decision to raise by 300-1200% the royalties that Internet radio services pay to record companies. The rate has now been set so high that it threatens the viability of all but the largest webcasters. While bills have been introduced in Congress to restore the rates to what they were before the Board’s decision, Congress should instead require over-the-air broadcasters to pay these royalties and set the rate across platforms of approximately 3% of gross revenues. Broadcasters’ exemption from this performance royalty is solely a historical accident and the result of tremendous lobbying power. But there is now no reason to treat them differently from satellite and Internet radio. One other caveat to requiring that broadcasters pay this performance royalty is that the artists should receive 100% of their share, and none of that share should be assignable to record companies for any reason.
Finally, the law should make clear the distinction between a performance and a download. A copyright holder should not be able to collect two license fees merely because a device that plays performances can also record them, particularly if those recordings cannot be moved from the device to other devices.
Orphan Works Reform. The by-product of the elimination of formalities like registration is that every time something is fixed in a tangible medium, it automatically receives copyright protection. This speech, for instance, is entitled to all the protections of copyright. The lack of registration requirements makes it difficult, in many cases, for an artist or educator who wants to license a work to find the copyright holder. When a potential user cannot find a copyright holder after a good faith effort, we consider the work to be an “orphan” work.
Because copyright infringement is a strict liability violation and damages can be as high as $150,000 per infringement, no one would dare take a chance on using an orphan work and risking the owner showing up and running to court. The result? Hundreds of thousands of works are languishing in the dustbin of copyright, unable to be used by anybody.
In 2005, the Copyright Office proposed that anyone who does a reasonable search for the owner of a copyright but nonetheless cannot find them should only be liable for “reasonable compensation” should the copyright owner resurface. Objections from photographers, book illustrators, textile and furniture manufacturers have held up potential legislation, but their problems are not so much with an orphan works solution than with the fact that it is virtually impossible to find visual arts like these using the Copyright Office’s text-only registry. Imagine trying to find the owner of a picture of Fenway Park when the only way the registry will permit you to describe it is as “a photograph of Fenway Park.”
Sophisticated image recognition technology permits the development of accurate visual registries, and Public Knowledge has advocated a system of Copyright Office certified competitive registries that operate much like the competitive domain name registries that have dramatically lowered the cost of obtaining a domain name. Congress should act to limit damages for the use of orphan works and at the same time open the door to the creation of a new registry that should greatly benefit visual artists.
Notice of Technological and Contractual Restrictions on Digital Media. While there is not a lot of love from copyright reformists and consumers for digital rights management technologies, the fact is that for good or for ill, they will be used in some way, shape or form on digital media for the foreseeable future. However, if these technological locks are going to restrict lawful uses of that media, at a minimum, copyright holders should be required to provide clear and simple notice of any technological or contractual limitations on users’ ability to make fair or otherwise lawful uses of their products. This gives the purchaser the information she needs to decide whether or not to purchase the product. As Boalt Hall Law Professor Pam Samuelson has urged, failure to notify a purchaser of a copy protected CD, for example, should be considered an unfair or deceptive trade practice under the Federal Trade Act, and failure to notify the purchaser of the prohibition on circumvention of the copy protection should be a defense against any DMCA claim. Similarly, any failure to notify a purchaser of any licensing restriction should invalidate that restriction. Long click through licenses in tiny print would not qualify as notice.
So there you have it. I hope that these six steps will start a conversation about how to make a pre-VCR law consistent with a YouTube world. For the past 35 years, the trend has been nearly unmitigated expansion of the scope and duration of copyright, resulting in a clear mismatch between the technology and the law. Over the past decade copyright reformers like Public Knowledge have stopped the pendulum from swinging even farther away from digital reality. Now it is time to move the pendulum towards the future and away from the past. I look forward to your comments. Thank you.
