House Judiciary Committee Hears Concerns From Silicon Valley About Copyright Law
from the now-what? dept
Yesterday afternoon, for about two and a half hours, members of the House Judiciary Committee took part in what they're calling they're "Copyright Review Listening Tour" for a roundtable in Silicon Valley. There were 20 participants in the roundtable, mostly made up of people who work in and around the technology industry. Today, the Representatives will host a similar roundtable down in LA, which will be mostly made up of entertainment industry folks. Unfortunately, this aspect of the tour seems to reinforce the silly idea that copyright law is a battle between "Silicon Valley" vs. "Hollywood" -- and that what's good for one is bad for the other.
Reps. Blake Farenthold, Darrell Issa, Jerry Nadler. Photo by Parker Higgins, EFF, CC BY
That whole line of argument is ridiculous and counterproductive -- as a few of the panelists at yesterday's hearing made clear. Good copyright law enables new platforms to rise up and that provides more opportunities for content creators to create, to distribute, to build a fan base and to monetize. Bad copyright law recreates a gatekeeper-based system where only the elite can choose what content is allowed to reach the public. In short, the innovations that are being created are actually helping content creators and are living up to the Constitutional requirements for copyright: that it "promote the progress." But it's frequently not copyright that's doing that job -- it's the technology innovations.
Panelists Timothy Vollmer, Brianna Schofield, Zoe Keating, Michael Keller & Brewster Kahle. Photo by Parker Higgins, EFF, CC BY
And the key thing that we heard yesterday was how copyright was actually counterproductive in that it has frequently blocked innovative services from existing or from providing the best services for content creators. There were a few key themes that became clear throughout the hearing:
- Statutory damages are an absolute disaster and create massive chilling effects for free speech and innovation. Multiple panelists discussed how much of a problem statutory damages are for innovation. They highlighted how frequently they are abused to stifle innovation and to create fear among people for doing something most people think should be legal. The disconnect between the actual "infringement" and the punishment is a major problem. Somewhat surprisingly (in a good way!), the members from Congress seemed quite interested and concerned about the problems of statutory damages. Rep. Jerry Nadler, who historically has basically supported the RIAA position on all copyright-related issues, surprised me by agreeing that statutory damages seem like a real problem, and noting that basically all other torts require a showing of actual damages. Rep. Darrell Issa admitted that it was unlikely Congress would be able to dump statutory damages "in the next decade," but asked for ideas on ways to "bend" the system in a more reasonable way. The panelists made a few suggestions -- including a personal use exemption and a "good faith" defense for sites (and users, I guess) where they don't believe what they're doing is infringing. Such a defense, if successful, would take away statutory damages, and only allow actual damages. A potentially better alternative was requiring the copyright holder to prove "bad faith" to move from actual damages to statutory damages. That Congress even seems open to this is a huge step in the right direction.
- Fair use is important and shouldn't be cut back. Lots of good discussions from panelists about the importance of fair use and how bad decisions create real chilling effects on innovation. When the one "Hollywood" person on the panel, CreativeFuture's Ruth Vitale, made a slightly nonsensical argument that increasing fair use was bad for creators, other panelists quickly pointed out that's not even close to true, and tons of content creators regularly rely on fair use to create content. Rep. Nadler (again, long a supporter of expanding copyright law) noted that he believes fair use needs to be made "less dangerous" for people to embrace it. That was really encouraging.
- The problem of bogus DMCA takedowns is massive and there needs to be real punishment. Brianna Schofield, from Berkeley, pointed to research showing that companies that actually review DMCA takedowns are now rejecting between 40 and 60% of them as bogus takedowns, designed to censor content, rather than legitimate copyright claims. And Alex Feerst (and some others) suggested that what's really needed is real teeth to Section 512(f) of the DMCA, which is supposed to punish those who send bogus DMCA takedowns, but, as we've seen, is entirely toothless based on the way courts currently interpret it. Rep. Issa actually asked if there should be criminal punishment for bogus takedowns, which I think took people by surprise, and probably goes too far.
- The DMCA's 1201 anti-circumvention provisions are a disaster and the idea that people need to re-apply every three years just to fix products they own -- because of copyright law -- is messed up. Again, it was nice to see that the Representatives really seemed to get this fact and seemed interested in looking at ways to fix Section 1201 -- such that you couldn't use digital locks and DRM for anti-competitive purposes or to control other aspects of your business.
- Orphan works are a problem and the Copyright Office's solution is a disaster. Multiple panelists pointed out that the orphan works problem remains a big, big problem -- and they're concerned that the most recent suggestion from the Copyright Office (which requires "registration" to use an orphan work) is an absolutely terrible solution. People suggested going back to the previous Copyright Office proposal from a few years ago, that just required a diligent search for the copyright owner -- but that plan died when photographers freaked out after misreading the proposal. The Internet Archive's Brewster Kahle even brought up the suggestion of fixing the orphan works problem by returning to a system of "formalities" in which a copyright holder is required to register to get the copyright (rather than automatically getting it) and then would need to renew the copyright every five years with another payment. As Kahle pointed out, this would also help solve some of the concerns Congress has over funding the Copyright Office. This is a suggestion that many have made over the years that had been mostly ignored -- but at least a few on the panel seemed interested in the idea, with Rep. Issa rightly pointing out that the patent office already works this way.
- Modernizing the Copyright Office: The panelists went back to this issue multiple times, in part because it's hot in DC right now, though much of the tech industry has basically avoided the discussion. Both the Copyright Office and the Library of Congress (which is where the Copyright Office is housed) are antiquated, with terrible and broken technology. Hollywood is strongly pushing to take the Copyright Office out of the Library of Congress and set it up as its own independent agency to try to give it more power (and because they don't like that the Library of Congress actually takes into account things like what's good for the public...). Ruth Vitale kept arguing for a separate Copyright Office, but when pressed on why, the only thing she could come up with was that the Library of Congress needs more room to store all of its books. Really. Michael Keller, the University Librarian at Stanford, rightly pointed out that pulling the Copyright Office out of the Library of Congress wouldn't fix anything -- it would just create more "chaos" and leave us with two dysfunctional organizations, rather than one.
The biggest point that went totally missing from the debate was the TPP and other existing trade agreements. It's worth noting that for all the talk of fixing DMCA 1201 or solving the orphan works problem, doing so would almost certainly violate what the USTR just put into the TPP agreement that Congress needs to ratify (or not!) in the next few months. It was a little disappointing that no one raised this issue, and the fact that if Congress doesn't want to give up its power to make these kinds of fixes, it should vote down the TPP. Similarly, ideas like Brewster Kahle's return to copyright formalities requirements would violate the Berne Convention, and other changes suggested would violate a variety of other existing trade agreements. Of course, Congress should be willing to do exactly that in order to fix a terribly broken copyright system, but with at least the TPP currently on Congress's docket, it seems important to remind them that, in many ways, the TPP can bind Congress's hands in addressing many of the problems brought up at the hearing.
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Filed Under: 512f, copyright, copyright reform, darrell issa, dmca, dmca 1201, dmca 512f, fair use, house judiciary committee, jerry nadler, orphan works
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I'm not sure. If we're going to go by the legal fiction that intellectual property is... well... property, then a bad-faith takedown is an attempt to destroy/vandalize someone else's property. Why not treat it as such?
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why does it go too far? the entertainment industries, through their usual bribery and corruption channels in Congress, got copyright infringement reclassified as a criminal offense, rather than a civil offense, just to through greater and more severe punishments at people. let those who put out false copyright infringement charges suffer the same punishment. after all, what's good for the goose should be good for the gander too!!
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Only large-scale commercial copyright infringement is a criminal offense.
You can't expect to introduction disproportionate punishment against DMCA abusers while at the same time trying to scale back disproportionate punishment for copyright infringement.
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If he's selling reproduction prints, there's a high probability that it's not fair use, and actual copyright infringement.
if he's using a picture of your painting to comment on your artistic talents (whether positive or negative), then there's a pretty strong argument for fair use here (for good reason).
If he's using a digital image of your painting as his computer desktop wallpaper... wtf do you care? I'd be flattered, personally.
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In other words, the reproduction prints would be kosher because the copyright fee wasn't paid, and thus it is unregistered.
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And there's no real reason to charge a registration fee. A searchable online registration system can be setup with very little overhead by the government. You could also charge a single fee for a group of works. There's ways to manage this without shouting "what about the starving artists!" It's not about extracting money for copyright - it's about having a way to know what is protected and what isn't.
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But that doesn't mean there shouldn't be a fee. It just means the the fee should be based on whether and if so how much a fee promotes progress, rather than how much it costs the government to set up and run a registration system.
Personally, I think that a fee of $1 is appropriate. If copyright is free, it would be sought automatically for everything. A fee requires authors to think about whether or not a copyright is appropriate for each work. After all, if an author would've created and published without copyright, no copyright is justified. But it keeps the fee small enough that there's little chance that a work that copyright might have encouraged the creation of won't be created due to the steep fees undercutting whatever incentive the possible profits provide.
All told, it's just a useful token amount to keep the system from being abused or under productive.
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If people like your paintings so much that they want to copy them, then you should be able to command a higher price for your paintings. It's not like copies can replace the original, and sharing might actually increase your reputation and lead to commissions.
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And by funny I mean sad.
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If you expect people to "value" your work in the same way as you do, then you are truly living in a delusional world. Much art only gains its value long after the artist is dead and a new generation comes along. There are few who actually capture the general population's imagination during the time they are alive.
In fact there are few who will ever be considered great, so if you have the expectation of being the "best of" then you might want to have a very real reality check first to see if you make the grade.
I value my grandchildren's artwork with much favour and value because they made it for me (out of love for their Pa) not because it is some grand work of art. You may value it as no more than chook scratchings. Therein lies the difference.
The way to gauge a profit is not in the amount of currency (fiat or crypto) that you get for it, but in the satisfaction you get in making it and for who you are making it.
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The only reason they fight against these things is because someone's getting paid to fight against these things - not because any of these issues would seriously impact their bottom line.
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So, Mike, do you believe that copyright law should permit anyone to distribute any content, with or without licenses? Serious question. Thanks.
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Serious question, there seems to be a serious logical disconnect between the comment and your question.
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Logic isn't average_joe/antidirt's strength, and it shows.
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Serious question, there seems to be a serious logical disconnect between the comment and your question.
He says "good copyright law" supports new distribution platforms, while "bad copyright law" prevents content from being distributed. I'm asking if he thinks the distribution platforms supported by "good copyright law" have any limitations as to the content that can be distributed, such as found with "bad copyright law." In other words, does he think any limitations on content distribution are "good." Or does he think that any limitations on what content can be distributed are "bad." He appears to think that all platforms should be able to distribute whatever they want, copyrights be damned. If that's not the case, I'm wondering what limitations he supports.
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I can't answer for Mike, but for myself, I'd say 'Yes, sometimes.'
For example, under current copyright law, any licensed distribution is lawful, so far as copyright law goes. Not sure why you'd have a problem with that. Also, any copy which has been previously sold by the copyright holder may be redistributed by any other person without a license. That's thanks to the First Sale doctrine, codified at 17 USC 109. Doesn't matter what the particular content is, so long as the copy at issue has been previously sold.
Mostly though, I think that the passage you quoted actually means that a copyright should only pertain to the copyrighted work. It should not grant power over those who develop technologies that can be used in conjunction with those works, even though it might limit the practical application of those technologies in certain circumstances.
That is, if Alice invents a replicator as in Star Trek, which can perfectly duplicate anything, Bob should not have the right to prohibit the use of the replicator merely because he holds the copyright to statues that could be copied by the device. Bob certainly could have a right to prohibit the specific use of the replicator to copy his statues, but not a right to insist that Alice accommodate his wishes by, e.g. adding special statue-recognizing software or removing the ability to replicate bronze, or what have you.
Bob should simply have to watch for abuses of Alice's technologies on his own, and pursue infringers on his own. That infringers might use Alice's technology should not cause Alice to owe Bob anything, whether money or a veto power. Maybe that's not perfect for Bob, but that's life.
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Copyright holders should not have a right, due to their copyrights, to control the public distribution of the works of other copyright holders.
Let's consider the AHRA, which required that certain consumer-grade audio recording equipment not make copies of other copies. A copyright holder who cannot afford professional-grade equipment, much less industrial-scale manufacturing, has a legal right to make as many copies of copies of their own work using that equipment as they like. However, the concessions of the AHRA to elite record labels actually interferes with the right of independent copyright holders to control their own ability to make copies of their works.
Similarly, the independent copyright holders have the right to license third parties as they see fit. If an independent copyright holder wishes to license the public to make and distribute copies of copies with consumer-grade audio recording equipment, that's perfectly fine. Yet the AHRA interferes with this by making the copyright holder's license meaningless -- the devices, due only to the requirements of a law that was passed because of the wishes of an established elite, are hobbled in such a way as to make it impossible for the rightful licensees to exercise their rights under the license.
So why do you want to take away the right of copyright holders to control the public distribution of their work by limiting the avenues by which they can do so?
The better solution is for all copyright holders to have only legal remedies, and no technical remedies or self-help; if someone pirates a work, sue them. But attempting to limit technologies or impose secondary liability on third parties is completely unacceptable.
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Really?
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Really?
I'm not asking him to "give me the answers I want to hear," I'm asking him to explain the distinction he's drawing between "good" and "bad" copyright law. For a guy who runs a think tank dedicated to the abundance of ideas, you'd think he wouldn't be so scared to discuss his own.
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I've watched on numerous occasions when Mike held his nose and *again* attempted to get you to understand his point of view. For whatever reason, you don't want to and refuse to. Is it any surprise that he'd want to cut his losses and just walk away now?
You're not fooling anybody, you know. It's impossible to believe you can read this article and not see yourself and your liege lords as the problem which is being discussed. Others are discussing a problem and looking for solutions all can agree with. You're pushing your agenda and ignoring anyone who says differently.
Yours is the shame, not Mike's.
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Yeah, I'll bet.
Mike's concern is about gatekeepers controlling "what content is allowed to reach the public." You're talking about how content reaches the public, not what content is allowed to reach the public.
Same difference; you're just being willfully blind.
Incumbents -- in this case your typical major publishers -- are always inherently opposed to newcomers -- such as independent authors. Controlling the means of distribution is a perfect way to control the material that is distributed or at the very least to exclude the lesser players from the lion's share of the profits that are to be had.
Following my earlier example, if the means that an author chooses to reach the public is serial copying by members of the public -- which the author, as copyright holder is free to do -- restrictions on the equipment they own, imposed at the behest of the major publishers, impairs the ability of the author to do this. This prevents the work from reaching the vast majority of the public. It is even likely to discourage the author from trying to publish independently at all.
This suits the major publishers, since this pushes authors to publish with them, for a cut of the profits. And it puts the major publishers into a gatekeeping role, where there are more authors than the publishers intend to publish, letting them pick and choose what works will be published as they see fit.
Also, even if the major publishers who use copyright policy and litigation to gain effective control / veto power over publishing platforms deign to allow these platforms to exist, they both 1) tilt the playing field so that while independents can publish on the platform, it's artificially kept from being as viable for them as it otherwise could be (see e.g. YouTube being more attentive to bogus takedown notices sent by publishers, while ignoring counternotices sent by independents), and 2) act to prevent new platforms from emerging (e.g. if all platforms are required to use expensive, difficult-to-make tools like ContentID, this adds a barrier to entry for new platforms).
While you might think that anything less than 100% control over publishing is technically not a restriction on what works can reach the public, the reality is that a lesser degree of dominance can work far too much mischief to be tolerated.
You're fond of inane gotcha questions that are irrelevant to everyone and everything, and of complaining when people ignore them, as they should. But here's a germane question for you:
Do you believe that copyright law should empower a copyright holder to use their copyright, threats of litigation, persuasive power with law enforcement, or market power, in such a way that it interferes with the freedom of any other copyright holder to lawfully create or publish works by any means, or grant licenses, as the other copyright holder sees fit?
As an illustrative example: If Alice creates a movie and publishes it on a CSS-encrypted DVD, then later has a change of heart and unilaterally grants a license to the world to decrypt that movie using decrypting software not licensed by the DVDCCA, do you believe that the MPAA or its members should have a right to prohibit the development of or distribution of the unlicensed decrypting software, on the grounds that even though it could be lawfully used for decrypting Alice's DVDs in accordance with her license, it could also be unlawfully used to decrypt other DVDs for the purpose of circumvention?
My prediction: You will say that you do believe that copyright law should empower such bad behavior or you'll ignore the question entirely because you can dish this sort of thing out, but can't take it.
Why I think you'll say that: You're an ass. Also I believe that you think that copyright law should favor major copyright industry players over smaller ones, and that it should favor the copyright industry in general over other industries, such as consumer technology, regardless of the actual value of the copyright industry to our economy under 1) the current regime, and 2) if we reformed copyright law to not allow this sort of thing to happen.
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Stupid question: what is AHRA? Googling this gets me either a medical imaging society, The Arabian Horse Association, or the American Hot Rod Association, none of which have anything to do with audio recording.
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I see you're making a stink down below about this in your usual trollish manner. I'm not sure what you think you're proving, other than making yourself look foolish.
However, to be clear, you have (intentionally?) misread what I wrote above. What I am saying is that good copyright law enables new platforms to rise up that help content creators: we see tools like YouTube and SoundCloud and Vimeo and Kickstarter and Patreon and Spotify that have been built that allow *content* creators to take control over the distribution of their work, while also offering opportunities to monetize that work in many cases.
For many, many years, copyright did not do that. Instead, what it did was set up a system whereby content creators had to beg/plead with gatekeepers (i.e., labels, studios) for the chance to *give up their own copyright* just so those labels/studios would release/promote/monetize their content. That seems like a pretty bad copyright system that harms the vast majority of content creators, helping only a tiny, tiny fraction at the top, but helping those gatekeepers tremendously in the meantime.
My point (which perhaps was not too clear for someone intent solely on attacking me) was that we're seeing wonderful new platforms these days that put the power and control back into the hands of creators, and are enabling SO MANY MORE creators to create, to release, to promote, to distribute and to monetize their works. I would think you'd agree that's a good thing, unless you really don't support content creators, as you claim.
Given that, it seems clear that any copyright law should try to support the rise of such innovative platforms that enable so much more creation... rather than burdening them with liability that makes them impossible to exist, and pushes us back towards that first world of gatekeepers.
Finally, in answer to your whining below: my TIME and ATTENTION are scarcities. You have no right to them, no matter how often you act like a spoiled child in my comments. I know you've done this for years and years at this point. Most children grow up. I'm surprised you have not.
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Nope. YouTube is still currently an "enabler". Anyone can use YouTube to publish their creative works to the world without needing approval from major movie studio or an A&R man or a publishing house.
You can read more about "enablers" vs "gatekeepers" here:
https://www.techdirt.com/blog/innovation/articles/20121214/00194921385/are-old-enablers-becomin g-new-gatekeepers.shtml
Youtube could possibly shift over onto the "gatekeeper" side of the equation in the future, but I don't think they will. I doubt that Google could remove the single most appealing aspect (ability to self-publish) of YouTube without destroying the entire YouTube brand.
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They want them to have bots and AI that automatically filters out content that may be infringing with a takedown first, notify second approach. They want YouTube to ban users with takedowns.
If the platforms mentioned are becoming gatekeepers, it is mostly from legal pressure from the existing legacy gatekeepers.
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Thanks for responding. I really do appreciate it.
However, to be clear, you have (intentionally?) misread what I wrote above. What I am saying is that good copyright law enables new platforms to rise up that help content creators: we see tools like YouTube and SoundCloud and Vimeo and Kickstarter and Patreon and Spotify that have been built that allow *content* creators to take control over the distribution of their work, while also offering opportunities to monetize that work in many cases.
YouTube is chock-full of infringing material. How does that help creators? Many are strong-armed into choosing between constantly sending takedown notices or monetizing their content on YouTube's take-it-or-leave-it terms. How is that fair? What if they simply don't want their stuff on YouTube? Wouldn't "good copyright law" also help them protect their copyrights in a meaningful way? I don't see YouTube as representative of letting creators control their works. I see it as the opposite. It's a free-for-all where they constantly must work to keep their works from reappearing. I'm curious what you think should be done about it. You don't think YouTube should be blamed--you don't believe in third-party liability. You don't think the uploaders should be blamed--that's attacking "fans." What do you think should be done to make YouTube a place to "allow *content* creators to take control over the distribution of their work"? You can't seriously suggesting that that's the case now.
For many, many years, copyright did not do that. Instead, what it did was set up a system whereby content creators had to beg/plead with gatekeepers (i.e., labels, studios) for the chance to *give up their own copyright* just so those labels/studios would release/promote/monetize their content. That seems like a pretty bad copyright system that harms the vast majority of content creators, helping only a tiny, tiny fraction at the top, but helping those gatekeepers tremendously in the meantime.
And yet artists sign deals with the labels all the time because of the value that the labels bring to the artists. They don't just own the copyrights--they promote the artists. Nothing prevents artists from going it alone or choosing to sign. That's the great thing. Why do you want to take away the opportunity that so many want to sign up for? For someone who advocates an abundance of ideas about what works, you seem to have a very narrow sense of things.
My point (which perhaps was not too clear for someone intent solely on attacking me) was that we're seeing wonderful new platforms these days that put the power and control back into the hands of creators, and are enabling SO MANY MORE creators to create, to release, to promote, to distribute and to monetize their works. I would think you'd agree that's a good thing, unless you really don't support content creators, as you claim.
I think it's great! And I agree with you that innovation and creation industries have a symbiotic relationship. But I don't understand why you have such a narrow view of what creators should be doing. The fact is that the labels and the studios turn out the most popular stuff, and it's copyright that makes those investments in talent possible. Many people have success with other methods too. That's great! I don't get why your abundance of ideas is so narrow, though. You say that "[b]ad copyright law recreates a gatekeeper-based system where only the elite can choose what content is allowed to reach the public." But what's so bad about it? People love the content the industries produce. If other industries want to create great content that doesn't rely on copyright, then they can compete in the market just like everyone else. The reality, though, is that the copyrighted stuff is what people mostly want. And nothing's stopping anyone else from trying anything else. Why damn the successful industries? Doesn't your abundance of ideas recognize more than one path to success?
Given that, it seems clear that any copyright law should try to support the rise of such innovative platforms that enable so much more creation... rather than burdening them with liability that makes them impossible to exist, and pushes us back towards that first world of gatekeepers.
This is where you lose me. For example, you thought that Zediva was "innovative," when all they did was hook up DVD players to the internet, charge people to watch movies, and not take out licenses for the public performances. On the one hand, you advocate that "*content* creators" should "take control over the distribution of their work," but then you support "innovative" services like Zediva that gave them no control and no royalties. Which is it? Do you think that *some* services go too far, or do you think it's all good. You recently wrote for the Hill that you believe that copyright owners should focus on innovation and not enforcement. Can't it be both? Do you really think there should be no enforcement, and that "innovative" services like Zediva should get to compete with services that take out licenses? How does that make sense?
Finally, in answer to your whining below: my TIME and ATTENTION are scarcities. You have no right to them, no matter how often you act like a spoiled child in my comments. I know you've done this for years and years at this point. Most children grow up. I'm surprised you have not.
My time and attention are scarce too, yet I'm happy to make time to discuss these important ideas with you. I appreciate your taking the time to respond, and I hope you'll do so again. [speaking of time, I need to leave so I haven't proofread the above--sorry about any typos!]
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Yes, artists have a choice today because of the opportunities that exist now. It wasn't all that long ago that the only way to get any exposure at all was by signing all of your rights away to a record label. Period. End of story. That's what we need to prevent from happening again.
AFAIK, Mike has never wanted the demise of the record labels. He has argued in the past that they can still serve a valuable service to artists. He simply argues against them being the sole controller of an artist's destiny.
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Was thinking of how best to respond to this and I think I'm going to turn it into a full post, rather than just a comment... and the more I worked on it, the bigger a project it became, so it may have to wait until I have the time to really go through it all. So... stay tuned.
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Thanks, man. I look forward to reading it.
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1) Statutory damages are not inherently bad, just mis applied. They do provide leverage in negotiations between parties and are a deterrent to commercial exploitation of a work but generally should not be applied to small entities and private citizens. The small entities and individuals are may not be acting maliciously and generally are not aware of the infringement. i.e. "I didn't know I couldn't do that."or" I thought it was fair use.
2) Fair use is a foundation of our system and should not be stifled. The use really needs to be analysed and The Fair use factors provide for it. Perhaps a tiered system of use and licensing would make the process a lot less maddening and provide for a more streamlined system as opposed to the case by case basis where Fair use is an affirmative defense.
3) Where are the teeth to 512f? It is written into the statute but never enforced and as a result abuse runs rampant.
4) In theory there would be no deterrent to circumventing if there were no penalties but in some applications (You can't use other coffee pods in our coffe maker) it is clear the anti-competitive effect of the provision is detrimental.
5) Orphaned works are a problem and using them should be easier. I am against having to jump through hoops and spend money to be afforded protections written in the Constitution. They are currently and should be automatic. It could also set up a situation where copyright protection is lost because a company is waiting to exploit works' of others by having the resources to monitor the failure of others to re-register.
6) At a recent panel, the office acknowledged the need to modernize. It would better serve creators and right's holders to have the office more efficient, with less gray area. But more importantly, it would better serve the public. That is the Constitutional purpose of copyright and this should never be forgotten.
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"Leverage" is hardly a good reason for statutory damages -- especially when no such thing exists in most other torts. The fact that statutory damages are so bad they've basically become a *business* model for some suggests that they should be dumped.
5) Orphaned works are a problem and using them should be easier. I am against having to jump through hoops and spend money to be afforded protections written in the Constitution
I believe you have misread the Constitution. The Constitution does not "afford protections" to you. It merely grants Congress the power to create monopolies for the purpose of "promoting the progress of science." Congress is free to determine how that should best work -- and for most of copyright's history that included a registration requirement. To pretend that going back to that would somehow take away a Constitutionally protected right is to be ignorant of both history and the law.
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Thanks!
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Perhaps, but deterrence is the main purpose of statutory damages. The statutory damages are a civil equivalent to minimum/maximum penalties found in criminal law with the assumption the entity knew what it was doing when it decided to infringe. In addition, they are only available to registered works.
"I believe you have misread the Constitution. The Constitution does not "afford protections" to you."
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the 'exclusive right' to their respective Writings and Discoveries"
This "exclusive right" has been enumerated in 17 USCA section 106 by congress to include, among others, the right to reproduce copies and prepare derivative works. This exclusive right granted by the Constitution, as defined by congress, affords protection against others attempting to exercise these enumerated rights. Registration is necessary for statutory damages, However, upon creation, congress has deemed a copyright protection automatic and no registration necessary. To allow statutory damages only to registered works would seem an acknowledgement of your position. However, to suggest going back to copyright methodology from the eighteen hundreds would seem to ignorant of the changes in society that have occurred in the last century and a half.
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Wrong. Copyright has no provisions for punitive damages; statutory damages are strictly meant to be compensatory in nature. The only justification given for their existence is the occasional difficulty in calculating actual damages.
This exclusive right granted by the Constitution
Wrong again.
The Constitution grants Congress the power to enact copyright laws. It does not obligate them to do so, and aside from a few broad prerequisites, doesn't require Congress to adhere to any particular formula, or to exercise the full scope of its authority. It certainly does not grant copyrights to authors, nor does it give authors a claim to copyrights if Congress chooses not to exercise its power to its fullest extent. Your reading comprehension seems poor.
However, to suggest going back to copyright methodology from the eighteen hundreds would seem to ignorant of the changes in society that have occurred in the last century and a half.
First, it's been longer than that. Your math skills are bad too. Second, there have been no fundamental changes requiring a reassessment of copyright policy. The utilitarian purpose of copyright holds up, as does the calculus of the promotion of progress. Hell, the underlying idea can be traced all the way back to the ancient Greeks. There's nothing new under the sun.
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This is demonstrably false. Damages can be compensatory, e.g., revenues lost by the plaintiff, or restitutionary, e.g., profits made by the defendant. Moreover, the fact that the range of damages increases for willful infringement and decreases for innocent infringement shows that it's not only compensatory in nature. The range shifts up or down based on the defendant's state of mind, not the damage sustained by the plaintiff.
And the reporters are full of references to damages serving a deterrent role. For example:F. W. Woolworth Co. v. Contemporary Arts, 344 U.S. 228, 233 (1952) (emphasis added).
I can find many more cites, if you're not convinced that you are wrong.
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True; I apologize for my sloppiness in lumping both together as compensatory damages.
I can find many more cites, if you're not convinced that you are wrong.
As it happens, I'm not convinced. The fundamental problem with the idea that statutory damages are, in part, punitive, is that it's just ass-backwards. Statutory damages are capped at -- and I know a number of people will laugh about this -- fairly low amounts. They're intended for use in cases where actual damages and profits are difficult to show, and for cases where actual damages and profits are easy to show but are minimal. Truly major infringers, the worst of the worst, are best handled under actual damages and profits, since there's more money at stake.
Why would Congress want to provide punitive damages to deter the small fry, while not attempting to similarly deter the industrial-scale infringers? I think that the Court's attempt to divine what Congress intended turned out to be wrong. That's nothing new; they get things wrong all the time. I don't think that mere cites to cases following Woolworth's reasoning will be of much use here.
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I will, again, ignore reference to reading comprehension and address your argument.
"It does not obligate them to do so, and aside from a few broad prerequisites, doesn't require Congress to adhere to any particular formula.."
No, it states why Congress should "To promote the Progress of Science and useful Arts" and the mechanism to do so "by securing for limited Times to Authors and Inventors the 'exclusive right' to their respective Writings and Discoveries." In the same section, directly preceding, Congress is granted the power "to establish post offices and post roads" Directly following,congress is granted the power "To constitute tribunals inferior to the Supreme Court," By your rationale, Congress was not obligated to establish the post office nor tribunals inferior to the supreme court. I do not agree and trust, after much debate, items in the Constitution were placed there purposely.
"First, it's been longer than that. Your math skills are bad too. Second, there have been no fundamental changes requiring a reassessment of copyright policy."
First:Copyright under the Berne Convention must be automatic; it is prohibited to require formal registration 1886.(139 years, forgive me)
Second: The Copyright Act saw major revisions in 1909,1976, and 1998. Congress do not agree with your assessment.
Your statutory damages argument has been addressed by another reader.
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The US didn't sign on on to the Berne Convention until the Berne Convention Implementation Act of 1988 was implemented in 1989.
Copyright registration in the US was required up until the Copyright Act of 1976 was put into force on January 1, 1978.
It's been less than 40 years that registration has not been a requirement. This isn't a notion from the 1800's at all, it's something that was changed in my lifetime.
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I slightly misspoke here. Works created under the Copyright Act of 1909 prior to 1964 did not require registration for the first 28 years as long as they were published (made available to the public) and had a properly affixed copyright notice. Copyright registration was required in order to gain another 28 years of protection. Works after 1964 automatically gained renewal with the passing of the Copyright Renewal Act of 1992. The Copyright Term Extension Act of 1998 extended protection for those works another 20 years.
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In other words, 85% to 95% of creators didn't need copyright longer than 28 years.
http://copyright.gov/history/studies/study31.pdf
(Appendix C is the interesting stuff)
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Table 1 has the renewals broken down by "class", but I haven't found a key that indicates what is what.
Although, there is a hint in the paragraph describing Table 1:
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I have stated before and also believe copyright terms are too long. However, I do believe copyright protection should be automatic, without registration.
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You don't seem to be grasping the fundumental fact that the US didn't actually sign on to the Berne Convention until over hundred years after it existed. We basically ignored it, mainly due to the moral rights requirements.
However, I do believe copyright protection should be automatic, without registration.
Yes, I know. You seem much more worried about the inconvience of having to register your works over fixing the tragic problem of losing massive amounts of our society's culture and history because nobody can figure out what is copyrighted and whether anyone exists to claim those copyrights.
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No, I grasp it quite well. The concept of automatic protection is almost 150 years old and has been accepted in the U.S. and around the world. I think a writer writing a book, someone read it like it, copy it and sell it, without compensating the author, with no recourse because he/she didn't register it, is unjust. A songwriter needing to register a song every time they write and record one or else someone can copy it verbatim and sell it is what our system, as implemented today, is supposed to protect. I think you are failing to see the benefit to the creator from automatic protection. Having a simple system to use orphaned works such as a waiver stating they tried to find the copyright holder, couldn't, but if they surfaced could get a statutory amount for use is a possible solution. If you are claiming the only way to remedy orphaned works is by eliminating automatic copyright protection upon creation, it's not that I'm "more worried about the inconvenience," I just don't agree.
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Prior to the 1976 Act a rights holder did not have any recourse against infringement unless they registered the copyright. You didn't have standing to sue unless you registered. Even today, if you don't register your copyright prior to infringement, you cannot sue for statutory damages or legal costs.
I think you are failing to see the benefit to the creator from automatic protection.
Well, copyright's main purpose is to benefit the public. The rights we give to the creator is only the means to achieve that end. The benefit to the public outweighs any annoyance it may cause the creators, in my opinion.
Let me put this another way, inventors have to register their patents in order to gain protection, so why should copyright be any different? The creators are being granted a sole monopoly on their creations, so why shouldn't they have to work a little bit in order to gain such a valuable right?
You seem to imply that copyright has tremendous value to you, but not enough for you to actually do a little work in order to receive it.
Having a simple system to use orphaned works such as a waiver stating they tried to find the copyright holder, couldn't, but if they surfaced could get a statutory amount for use is a possible solution. If you are claiming the only way to remedy orphaned works is by eliminating automatic copyright protection upon creation, it's not that I'm "more worried about the inconvenience," I just don't agree.
Such a system may help our current situation some, I agree. I think we need to fix the system going forward so we don't have to rely to these "fixes" in the future. The problem is only going to get worse and I am worried about my grandchildren and their children who will inherit this problem further down the road.
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You keep missing the power that all it does is grant Congress the power to do this. Not the requirement. And, furthermore, the preamble part of promoting the progress of science is there to LIMIT the power of Congress, saying that it should not issue monopolies for any other reason.
In the same section, directly preceding, Congress is granted the power "to establish post offices and post roads" Directly following,congress is granted the power "To constitute tribunals inferior to the Supreme Court," By your rationale, Congress was not obligated to establish the post office nor tribunals inferior to the supreme court. I do not agree and trust, after much debate, items in the Constitution were placed there purposely.
You are actually quite correct that the Constitution in no way mandated that Congress must do either of those things. It simply granted them the option of doing so. Congress is free to kill off the Post Office or the lower courts if it decides that's appropriate. And, the first option may actually happen one of these days. The second... not so much.
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Yes, the Constitution is a limiting document meant, by construction,to remove any ambiguity as to the powers of government. It seems strange to argue the powers granted to Congress were done without the belief and surety of their use. You make it seem as though the power to lay and collect taxes, to regulate commerce with foreign nations, to coin money, and to raise and support armies was granted without the expectation that Congress would do so. Yes, Congress could abolish the Post Office. However, there is little doubt, there was an expectation they would create one.
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And yet there are things in Section 1, Article 8 that the Congress chooses not to do, such as "grant letters of marque and reprisal." Even if your Constitutional scholarly knowledge is lacking, you are still missing the point and moving the goalposts.
I was not arguing that Congress need not have any copyright law at all. You started off this conversation by insisting that a registration requirement was the same as Congress removing your Constitutionally granted right.
You were wrong on multiple accounts. 1. the right is not constitutionally granted. 2. Copyright law in the US was without a registration requirement for many, many years.
You are now moving the goalposts rather than admitting that you made incorrect statements.
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That is correct. In fact, cases dealing with the jurisdiction of federal courts often point out that Congress is not obligated to create inferior federal courts, and has broad leeway in defining their jurisdiction and the appellate jurisdiction of the Supreme Court.
But here's another enumerated power of Congress for you: Article I, Section 8, Clause 11: The Congress shall have Power ... To ... grant Letters of Marque and Reprisal
If you're unfamiliar with this, it means that Congress can grant legal sanction to privateers, which are basically pirates with some degree of legitimacy, depending on which side you're on. Congress has failed to use this power since, AFAIK, 1815. It's still on the books though, and even if the US were to formally sign a treaty prohibiting the practice, which I don't believe we have (though we have long had a policy of adhering to the prohibition voluntarily), treaties aren't binding on Congress anyway. In fact, Ron Paul was trying to revive the practice just a few years ago.
Your reasoning suggests that Congress is obligated to grant letters of marque and reprisal to anyone who asks for them, which clearly just isn't the case.
First:Copyright under the Berne Convention must be automatic; it is prohibited to require formal registration 1886.(139 years, forgive me)
As has been noted, the US didn't join Berne until 1989 and even now we are famously not in compliance with it.
Second: The Copyright Act saw major revisions in 1909,1976, and 1998. Congress do not agree with your assessment.
The first Copyright Act was from 1790, and the omnibus revisions are from 1831, 1870, 1909, and 1976. While 1998's CTEA and DMCA were and still are controversial, they're not that major.
More importantly though, I never said there have never been significant changes to the Copyright Act, I said that there have never been fundamental changes requiring a reassessment of copyright policy. The language of the Copyright Clause dating to 1789 is still controlling, and the policy behind it is still rock-solid. And that policy -- that copyright is permissible if in the public interest -- dates back to the Statute of Anne from 1710, and to the Venetian Patent Statute of 1474, and can even be found in an obscure joke from ancient Greece.
Setting aside issues related to new technologies that were unknown at the time, were we to revive the 1790 Copyright Act just for the books and maps it originally dealt with, we would probably be doing better with regard to those types of works than we are now. There's nothing particularly bad or outdated about late 18th century federal copyright statutes. This isn't to say that they're perfect, or that I would want to revive the 1790 Act, but it's dead wrong to treat it like totally useless trash.
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I can't answer for Mike, but for myself, I'd say 'Yes, sometimes.'
For example, under current copyright law, any licensed distribution is lawful, so far as copyright law goes."
These statements cover 2 major issues. 1) the desire for open source of other people's work is strong and people just can't help themselves. 2) companies are granting themselves licenses to other people's work. facebook, twitter, paypal, pinterest. all have user agreements that grant themselves licenses to publish and use in their advertising anything uploaded to their sites. So fine, an artist can choose not to upload to their sites. However, facebook in particular will go out and scrape content and then post it to their site. There are insufficient protections for original content creators against powerhouses like these.
The argument I keep hearing against takedown notices directly effects artists. We need to be able to request takedown of our works if they have been unlawfully scraped.
For example, I used to work in print advertising and the artist would get paid for their work showing up in ads. Now with companies automatically self-granting license to other people's work, the artist is not paid.
I do understand the desire to spread knowledge around the globe, but it is narrow thinking to presume that all copyright holders are pharmaceuticals, technology or the movie industry.
And yes, I was arguing that requiring registration hurts the small guy. Particularly when the concept of orphan works is introduced. Not everyone can afford to pay the fees to register all of their works. It becomes very easy then to claim a work as orphaned and then just print away.
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I have literally no idea what you are trying to say here.
[F]acebook in particular will go out and scrape content and then post it to their site
If Facebook is doing this on their own, they're inviting litigation and would almost certainly lose. As the victor in an infringement suit can seek costs and attorney's fees, among other things, the resources of Facebook should not pose any obstacle. OTOH, if Facebook users are posting material in such a way that is an infringement of copyright, secondary liability would be the issue, and if Facebook stays within the DMCA safe harbor, they're protected; this would be a classic case of information residing on a system at the direction of users.
[Artists] need to be able to request takedown of our works if they have been unlawfully scraped.
You can. If Facebook is itself liable, you can't send them a takedown notice under the DMCA, but an ordinary cease and desist letter will suffice. Or you can skip that and just jump directly to suing them, if the prerequisites for an infringement suit are met.
If OTOH, a Facebook user is to blame, send your properly drafted DMCA takedown notice to: Facebook, Inc., Attn: Facebook Designated Agent, 1601 Willow Rd., Menlo Park, CA 94025. This took literally but a moment's googling to find.
I do understand the desire to spread knowledge around the globe, but it is narrow thinking to presume that all copyright holders are pharmaceuticals, technology, or the movie industry.
It's also narrow thinking to presume that the only works worth spreading are those of major industry players. Independents should have their works spread widely too, for the same reasons. Size doesn't matter.
And yes, I was arguing that requiring registration hurts the small guy. ... Not everyone can afford to pay the fees to register all of their works.
Well, I understand that the fees should not be onerous; that's why I like the idea of a nominal $1 fee per registration. OTOH, no works should ever be granted copyright protection unless it is necessary to do so in order to encourage the author to create and publish those works. If the author would create and publish without copyright, that's the better alternative for the public, much like how if someone is willing to wash your car for free, that's better than paying to have it washed, all else being equal.
Copyrights, as an economic incentive for authors, are a business matter; if an author doesn't expect to turn a profit by exploiting the copyright on the work in some manner, accounting for the costs of doing so, copyright can't incentivize him -- he should either not create and publish the work at issue, or he is clearly doing so for other reasons, and doesn't deserve a copyright.
So I just don't see this as a plausible reason to not impose registration fees as a necessary formality for protection. If an author has a massive number of works, each of which merits protection because copyright was a necessary incentive, the author should structure his business so that the works he can immediately afford to copyright generate income to help pay for the later registrations. Or perhaps he should seek financing from a third party.
But I think that this will be so rare as to just about never happen. More usually, an author will only have one or a handful of works that he actually needs a copyright for. Even a prolific photographer only would need to seek protection for the works he actually intends to publish (and can probably enjoy group registrations for additional convenience); unused pictures can be kept private, will wind up in the public domain sooner or later, and will eventually get published or not.
Meanwhile, a tremendous number of works are created every day by people who absolutely do not care about getting copyrights on their works. We need an opt-in system for copyright though, because these same people who don't want copyrights, and don't need copyrights, also don't care enough about copyrights to waste their time expressly putting their works into the public domain early. Automatically not granting copyrights unless the author specifically requests them (including, in part, by paying a fee) is the only viable solution.
And as it happens, most of the posts on Facebook are of exactly this type; people just want to publish photos and messages and such, and are determined to do so, but would certainly fail to get copyrights on them if they had to lift so much as a finger in order to get them. They just don't care. And if they don't care, why should anyone else?
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It IS a Battle of SV vs. Hollywood (Sadly)
But Mike, it IS. Well, let me dissect that.
1) It totally IS a battle, because the two sides feel differently about it, and have opposing views about what will be good for their businesses and the nation.
2) It should not be a battle, because the Hollywood side is (and has repeatedly been) dead wrong about what is good for themselves, and the nation. In fact, the opinions of the IP reduction side ARE in fact better for everyone, Hollywood included, and especially artists.
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One word:
Those changes would involve a decrease in copyright law, when historically it's always gone up. They'll fight such ideas tooth and nail because they cannot allow people to even begin to think that copyright might be excessive currently, and perhaps need to be re-worked downwards for once.
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SLAPPY
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...It's worth noting that for all the talk of fixing DMCA 1201 or solving the orphan works problem, doing so would almost certainly violate what the USTR just put into the TPP agreement that Congress needs to ratify (or not!) in the next few months...
You seem to have already shown why he might be showing support he feels he has nothing to lose because he thinks TPP will be ratified and can then say oh well, we tried guys.
However if he is genuine then he will vote down on the TPP or other agreements because that is the only hope of reforming copyright.
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