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The 10th anniversary of the DMCA is not the only infamous 10th anniversary that Public Knowledge gets to “celebrate” this week. Yesterday was the 10th anniversary of the enactment of the Sonny Bono Copyright Term Extension Act of 1998. That law extended copyright terms from 50 years after the life of an author and 70 years in the case of corporations, to 70 years beyond the life of an author and 95 years in the case of corporations. Named after Sonny Bono, the late Congressman best known for his musical and personal partnership with the performer Cher, the law has taken countless works out of the public domain, greatly weakening the wellspring of creativity and knowledge from which new creativity emerges.
Unlike the DMCA, whose unintended consequences have been well documented, it is much harder to quantify the harms caused by the Sonny Bono Act. How can you measure the number of new works and new wealth that were not created because of the extended terms? Or the number of new orphan works created? But since it has been shown that about 98% of copyrighted works lose their value between year 55 and year 75 of protection, we know who has profited from the law – large, multinational media companies like Disney, Fox and NBC-Universal, who maintain a vise-like grip on works that should have belonged to the public years ago. Suffice it to say that the Sonny Bono Act was nothing more than corporate welfare for big copyright holders. Even a copyright industry sympathizer like Representative Howard Berman has admitted to me that in hindsight he believed that voting for the extension was a mistake.
The Good News About Two Bad Laws
Ok, I got that off my chest. Now let me say something positive about both the DMCA and the Sonny Bono Act. The simultaneous passage of these two copyright strengthening bills, despite the strenuous objections of libraries, arts and cultural organizations, consumer electronics companies, and cyberliberties groups clearly hit a nerve, and became the impetus behind the copyright reform movement. Before 1998, the Electronic Frontier Foundation had little noticeable presence on copyright issues; and with the exception of the Digital Future Coalition, which was organized primarily to fight the DMCA, there was no consistent voice representing the public interest in copyright matters in Washington (although Jamie Love’s Consumer Project on Technology – now Knowledge Ecology International, was doing – and still does -- wonderful work overseas). Public Knowledge was conceived in 2000 and launched in 2001, alongside the Creative Commons and Duke Law School’s Center for the Study of the Public Domain These organizations (thanks to initial funding from the now defunct Center for the Public Domain), along with Larry Lessig’s Supreme Court challenge to the Sonny Bono Act, helped to raise the profile of copyright reform to a place it had never been before – front page news.
Copyright Reform's Victories and Losses
During the past 10 years, the copyright reform movement has had some significant victories and significant losses. In the legislative/policy realm, the news has been mostly good, at least up until this year. The infamous Hollings Bill (which would have mandated copy protection in all digital devices), the “Induce Act,” (which would have broadened secondary liability for device manufacturers), the broadcast flag and attempts to close the analog hole and to give the Justice Department power to bring civil suits have all been defeated. The bad news is very recent – passage of the Higher Education Reauthorization Act, which includes a provision that requires higher educational institutions to implement technological deterrents to illegal P2P activity, and the IP Enforcement bill, which strengthened the penalties for criminal copyright infringement and increased the liability of online providers for the infringing acts of others. And while we’ve stopped many bad things from happening, we have not yet been able to get any law or policy adopted that would bring some balance (or sanity) back to copyright law.
Efforts to bring balance back to copyright law through litigation have been a bit more mixed. On the positive side, attempts to abuse the DMCA by garage door opener and printer cartridge manufacturers seeking to keep out competition failed. Efforts to find search engines liable for using thumbnails and for linking to infringing websites were rejected by the federal courts. And EFF’s lawsuit against Sony BMG for its rapacious rootkit DRM forced the company to pull all of its CDs using that technology from its shelves. These victories have been tempered by the Supreme Court’s 2005 Grokster decision which has given lower courts the ammunition to increase secondary copyright liability. The Second Circuit’s 2002 Corley decision permitted the DMCA to inhibit lawful speech. And the 6th Circuit in the Bridgeport Music case found that even the most nominal, transformative use of music samples necessitate a license.
Where copyright reformers have perhaps succeeded most has been in the court of public opinion and in the marketplace. Threats of lawsuits and public shaming have tamped down efforts to limit criticism and other lawful speech in a number of instances, including the RIAA’s threats to sue Princeton Professor Ed Felten for presenting his circumvention research at a conference and claims by music publishers asserting ownership of This Land is Your Land, which was used in a satirical online video. Public outcry expressed in the marketplace effectively killed DRM for online music. And alternatives to draconian copyright restrictions like Creative Commons licenses and Free and open source software have been used by Fortune 500 corporations, not just free culture activists.
Copyright Reform at a Crossroads
10 years after the two greatest legislative losses for creativity and innovation, copyright reform stands at a crossroads. With the exception of an occasional op-ed or two, our leader Lessig has left the fight to try and fix the ill that affects every just about every major social and economic problem that exists in our country today – the effect of money on the political process. Some of the companies that have been PK’s strong allies on copyright issues have been wavering of late – cutting deals with content providers or deciding that other issues are higher priorities. Some foundations have been browbeaten by Hollywood to stop funding “anti-copyright” organizations. When PK was founded in 2001, we dreamed of building a “movement,” and it seemed as if every media reform organization and foundation wanted to add copyright issues to their portfolios. Yet 7 years later, it is still largely EFF and PK fighting domestic copyright battles on behalf of the public. Other than the Digital Freedom Campaign, there is no meaningful grassroots support for copyright reform. Meanwhile, the content industries are ratcheting up their efforts to strengthen copyright – witness the formation of industry-supported Copyright Alliance and Arts + Labs and the co-opting (some would say purchase) of the U.S. Chamber of Commerce. Add to that the formation of the Anti-Counterfeiting Trade Agreement, the push for selectable output control and mandatory copyright filtering and the unabated continuation of lawsuits against P2P file-sharers.
How Copyright Reform Can Succeed
So is it time to waive the white flag on copyright reform? Not yet. Copyright reform’s greatest asset is that as the public morphs from couch potatoes to creators, they too will understand the negative effects of unbalanced copyright. But if copyright reform efforts are going to succeed at all, several things will need to happen in the not too distant future:
1. Full participation from technology innovators and corporate allies both on defense and on offense. The time has come for innovators, telecommunications and technology companies to decide whether they want Hollywood and the recording industry to tell them how to run their companies. Much of the focus of the last Congress was on IP enforcement, and many of PK’s corporate allies did not want to appear to be “soft” on that score, even though the bill that ultimately passed increased their liability for illegal acts engaged in by others. But nobody should be fooled – the content industries are still intent on pushing for the three technology mandates they talked about in 2001: the broadcast flag, closing the analog hole, and a “solution” to P2P (that now being network-level filtering via deep packet inspection). And their litigation strategy seeks to shrink fair use and expand secondary liability. Tech companies drew the line at the Hollings Bill and the Induce Act. I think it is time for them to draw a line again: no further strengthening of copyright and no new tech mandates. But as they say in DC, you can’t fight something with nothing. So we need our own affirmative copyright agenda. PK has proposed one such agenda and is working on draft legislation. But we don’t have any pride of ownership, so long as copyright reformers have a full blown agenda (including DMCA and orphan works reform) we can say yes to.
2. Broadening of the copyright reform coalition to include more artists organizations and others concerned about media concentration and content. The nonprofit participants in copyright reform tend to be the usual suspects – libraries, higher education, consumer groups, cyberliberties organizations and some media reform groups. While the Digital Freedom Campaign is doing great work reaching out to individual artists, national artists’ groups are not engaged. Nor are many groups concerned with media concentration, even though strong copyright further exacerbates the control large media companies have over content. This is not a partisan issue – we need more right of center groups to join us.
3. An affirmative litigation strategy. Every successful movement – civil rights, environmental, women’s rights had a carefully planned litigation strategy with plaintiffs, defendants and courts chosen to achieve certain goals. Largely for resource reasons, EFF has had to play defense most of the time, and has done a fabulous job defending individuals and innovators against the litigious content industries. If copyright reform efforts are ever to become a true movement – we need to have a well-thought out affirmative strategy for achieving some of the balance we cannot through legislation.
4. A grassroots movement for more balanced copyright. If we can achieve numbers 1 and 2, it is likely that the content industries will not be able to push through any new legislation or policies. But without engaged and active grassroots support, we will not be able to swing the pendulum back to balance. Building this support will take on-the-ground work and the kind of resources that no copyright reform organization currently has.
So let the 10th anniversaries of the DMCA and Sonny Bono Act be a wake up call for all of those who believe that the current copyright regime limits innovation, creativity and civic discourse to the benefit of the world’s largest media companies. We have a lot of work to do lest we have little to celebrate, and more to lament, when their 15th anniversaries come along.