October 19, 2006 , , , ,

I just returned from three days in the Bay area, and the highlight of my trip was getting a tour of, and giving a policy talk at, the Google campus in Mountain View. It was everything you may have heard about, and more – terrific free food, a top of the line health club, water treadmills, Segways, scooters, even washers and dryers, complete with free detergent and fabric softener. While these amenities were remarkable, I was more struck by the touches of whimsy – each conference room named after a foreign city (I had a meeting in the Bangui conference room – anyone know where that is?), massage chairs in the waiting rooms, and a “mouse” made from a basket, carefully placed in a stairwell to look like a rodent had taken up residence. Many thanks to Google Policy Analyst Rishi Jaitly for his hospitality.

But the policy talk, entitled “From Capitol Hill to Silicon Valley: Copyright, IP Law and Innovation was serious, as was the meeting I had beforehand with several of Google's top product lawyers (old friends Daphne Keller and Glenn Otis Brown), as well as its top copyright lawyer (and new friend), Alex MacGillivray. With its recent $1.65 billion purchase of You Tube, copyright law and the prospect of future litigation weighed heavily on the Googler's minds. And well it should, since Universal Music just announced that it was bringing lawsuits against two other video sharing sites, and And even though You Tube has licensing agreements with several of the large music companies, those agreements don't cover Hollywood, or people like video journalist Robert Tur, who is claiming that You Tube “induces” copyright infringement. Moreover, to the extent that those licensing agreements include uses of copyrighted works that could be considered fair use, there is concern about setting a precedent that presumes that such uses need to be licensed. Another concern is that once the content companies get their feet in You Tube's door, that they will demand design control and other concessions regardless of the value they receive from the promotion that You Tube and its brethren provide.

All of the discussion around You Tube and copyright (enhanced by Mark Cuban's remarks that all Google had bought itself was a mess of copyright troubles) brings to the forefront a question that Congress has avoided answering as technology has radically moved us from a society of consumers to a society of creators: Does current US copyright law, which was last overhauled 30 years ago, make any sense in this day and age?

The short answer to that question is easy, but the way to ensure that copyright law reflects the actual practices of Americans is much harder. I will explore some possibilities in a series of blog posts to follow. For much of the past five years, Public Knowledge has largely been forced to say “no” to laws and policies proposed by the content industries (with initiatives like DMCA reform, orphan works and open access the notable exceptions). Now it is time to say “yes” to an affirmative agenda to bring balance back to copyright law and allow the public to engage in creative expression that is no longer the sole province of movie studios and record companies.