From Congress to the courts, this has been a good week for those of us who care about copyright and believe it’s fundamental to preserving creator’s rights.
First up, on Wednesday, was U.S. Register of Copyrights, Maria Pallante’s highly anticipated testimony before the United States House of Representative’s Judiciary Committee, where she spoke about the “next great copyright act.” Her appearance there came on the heels of a lecture she gave earlier this month at Columbia Law School where she echoed many of the same themes. Those who believe copyright law is the enemy expressed cautious optimism after the Columbia speech thanks to her mention of rolling back the copyright term from 70 to 50 years, but I imagine that by the time she was finished her testimony on Wednesday, their optimism had turned to disappointment, and for that I am grateful.
Why am I grateful? I’m grateful because Ms. Pallante expressed a thoughtful (and modern) view of copyright law. Her presentation was pragmatic and positive. Like many others, she believes an update to copyright law is long overdue, but unlike voices of the anti-copyright lobby, she seeks a balanced approach, understanding how profoundly important copyright is to those who create books, films, music and more. As Sandra Aistars, executive director, Copyright Alliance wrote in a recent editorial in The Hill:
Should Congress take on the challenge of updating the Copyright Act, it must do so guided by sound principles, and its deliberations must be based in reality rather than rhetoric.
Chief among these principles is that protecting authors is in the public interest. Ensuring that all creators retain the freedom of choice in determining how their creative work is used, disseminated and monetized is vital to protecting freedom of expression. Consent is at the heart of freedom, thus we must judge any proposed update by whether it prioritizes artists’ rights to have meaningful control over their creative work and livelihood.
In her prepared testimony, which she read before answering questions, Pallante affirmed the need to keep the rights of creators at the core of any revision to copyright law:
The issues of authors are intertwined with the interests of the public. As the first beneficiaries of the copyright law, they are not a counterweight to the public interest but instead are at the very center of the equation. In the words of the Supreme Court, “[t]he immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.”Congress has a duty to keep authors in its mind’s eye, including songwriters, book authors, filmmakers, photographers, and visual artists. A law that does not provide for authors would be illogical hardly a copyright law at all.
Overall, her testimony was, in my view, refreshing and forward-thinking. Much has changed since 1998, the last time U.S. copyright law was updated via the Digital Millennium Copyright Act (DMCA) and revising the law to reflect the digital landscape of the 21st century is long overdue. Our culture is one where content of all kinds is disseminated with the click of a mouse. The recognition that digital content is as worthy of protection as its non-digital counterpart, provides a foundation from which a comprehensive revision can emerge. Surely we can find a means to protect the rights of creators while acknowledging the transformations that technology has brought to consumption and collaboration.
When Congress revisits copyright law I hope they revisit Section 512 (Limitations on Liability Relating to Material Online) otherwise known as the “safe harbor” provision.
(c) Information Residing on Systems or Networks At Direction of Users.—
(1) In general.— A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider—
(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
In the 14 years since President Clinton signed this law, technology has become exponentially more sophisticated. Unfortunately, thus far, these advances seem to have primarily benefited those engaged in IP theft. Why not turn that around? Why not mandate that websites implement appropriate technology to help safeguard copyright? Youtube’s Content ID system is a good example of what can happen when an online entity institutes reasonable measures to protect the rights of content creators. Why not revise the DMCA and add language to the safe harbor provision that requires websites to utilize reasonable technological measures to detect infringing content? The DMCA is routinely used as a convenient shield from legal liability by online entities that actively and knowingly engage in piracy for profit. Clarifying the law will benefit not only those who are victims of content theft, but those who wish to create legit businesses in digital distribution.
As Maria Pallante testified:
In revising the law, Congress should look to the equities of the statute as a whole, and strive for balance in the overall framework. It is both possible and necessary to have a copyright law that combines safeguards for free expression, guarantees of due process, mechanisms for access, and respect for intellectual property.
I believe that it is possible to find consensus and revise copyright law so that it will better protect the rights of creators in this digital age, while not hindering future artistic or technical “innovation.” Spin aside, these are not opposing goals, but naturally synergistic ones. In her speech at Columbia, Pallante touched on this notion as well:
In short, the next great copyright act presents an opportunity. All members of the online ecosystem should have a role, including payment processors, advertising networks, search engines, Internet service providers, and copyright owners. These strategies can be a mix of legislative solutions and complementary voluntary initiatives, but where gaps in the law exist Congress should not be absent.
One critical issue is the ability of law enforcement to prosecute the rising tide of illegal streaming in the criminal context. Streaming implicates the copyright owner’s exclusive right of public performance: it is a major means by which copyright owners license their rights in sporting events, television programs, movies, and music to customers, who in turn access the content on their televisions, smart phones, tablets, or video consoles. Under current law there is a disparity that may have once been of little consequence but is today a major problem: prosecutors may pursue felony charges in the case of illegal reproductions or distributions, but are limited to misdemeanor charges when the work is streamed, even where such conduct is large scale, willful and undertaken for a profit motive. As a practical matter, prosecutors have little incentive to file charges at all, or to pursue only those cases where the rights of reproduction and distribution are also at issue. This lack of parity neither reflects nor serves the digital marketplace.
This digital “marketplace” should continue to thrive. Revising the copyright law to protect the integrity of products disseminated via that marketplace will ensure that it does.
The other bit of good copyright news came today as federal appeals court affirmed a lower court decision against the BitTorrent piracy website Isohunt. Most notably the court held that website operators were not “entitled to protection from liability under the provisions of the Digital Millennium Copyright Act.” In their decision the court recognized that the site’s owner, Gary Fung, was in the business of piracy, not engaging in “free speech.” As I mentioned above, the DMCA’s safe harbor provision is often abused by piracy sites like Isohunt and although I’m an independent filmmaker, not a product of Hollywood, Henry Hoberman of the MPAA summed it up my reaction pretty well:
This ruling affirms a core principle of copyright law: Those who build businesses around encouraging, enabling, and helping others to commit copyright infringement are themselves infringers, and will be held accountable for their illegal actions It also strikes an important blow in the fight to preserve the jobs of millions of workers in the creative industries, whose hard work and investments are exploited by rogue websites for their own profit.
For a more comprehensive look at the decision, please visit Alexandra Goldstein’s analysis here. All in all, a very good week for copyright (and those who believe in it).