It Begins: Congress Proposes First Stages Of Copyright Reform, And It's Not Good

from the of-course-it's-not-good dept

Thu, Dec 8th 2016 11:44am — Mike Masnick

The House Judiciary Committee has been "exploring" various copyright reform proposals for a few years now, asking for feedback, holding a "listening tour" and more. Through it all, it seemed pretty clear that the Judiciary Committee is (reasonably) fearful of getting SOPA'd again, and thus was trying to figure out some less controversial proposals it could push forward first to see how they worked. Two, in particular, have been brought up multiple times: moving the Copyright Office out of the Library of Congress... and creating a "small claims court" for copyright infringement. And it appears that's what the Judiciary Committee is now moving forward on, even though both are pretty bad ideas.

Of course, showing how fearful they are of a SOPAlanche, Reps. Bob Goodlatte and John Conyers are kicking this off with a bland and detail-free one pager tossing out both suggestions, along with a similarly weird and bland YouTube video explaining the proposal, with unnecessary background music (what is that about?):

Note the very careful "these policy proposals are not meant to be the final word on reform in these areas." That's code for "okay, okay, we're testing the waters here, are people going to freak out about this...."

Anyway, the proposals in question are not horrible, but they're certainly not good either. Most of the attention will be focused on the Copyright Office stuff, but it's the small claims court proposal that is potentially much more nefarious and a much bigger deal. There are almost no details here, but this is what the proposal says:

The Copyright Office should host a small claims system consistent with the report on the issue released by the Copyright Office. The small claims system should handle low value infringement cases as well as bad faith Section 512 notices. The Register should be given the authority to promulgate regulations to ensure that the system works efficiently.

As we've seen, already copyright is often used as a way to stifle free expression. Mere threats of lawsuits, along with DMCA takedown letters, have become a very effective way to create chilling effects against content someone doesn't like. Adding in the ability to more easily sue and take people to court -- even if the eventual judgment may be for lower dollar amounts -- is tremendously problematic. If anything, it will just become an incredible tool for copyright trolls. It will legitimize their business model, which is to get a large volume of settlements that are in the hundreds or low thousands of dollars anyway. Obviously, the fact that this court might also handle "bad faith Section 512 notices" (i.e., DMCA takedowns) is designed to appease people who are concerned about the chilling effects here, but it's not clear that will help very much.

Also, somewhat bizarre is that earlier in the document (which we'll get to), they say that the Copyright Office should remain in the legislative branch. Which would then make this small claims court a part of the legislative branch. And that just seems... weird. I guess that's why they refer to it as a small claims "system" rather than a small claims "court."

The issue that's going to get more attention, however, is the attempt to pull the Copyright Office away from the Librarian of Congress' control. This has been something that the Copyright Office itself (and Hollywood and its friends) have been agitating for for some time. The proposal here looks like (again) the Judiciary Committee wants to thread the needle of not technically moving it out of the Library of Congress (the proposal doesn't say one way or the other), but basically giving the Copyright Office full autonomy from the Library, and making the head of the Copyright Office subject to Congressional appointment, rather than at the will of the Librarian of Congress:

The Register of Copyrights and Copyright Office Structure

The Copyright Office should remain part of the Legislative Branch where it can provide independent and timely advice to Congress on copyright law and policy. Furthermore, the Copyright Office should have autonomy over its budget and technology needs.

Currently, the Register is not subject to the same nomination and consent process as other senior government officials. To ensure that the American people have an opportunity to provide input into the selection of future Registers of Copyright through their elected officials, the next Register and all that follow should be subject to a nomination and consent process with a 10-year term limit, subject to potential re-nomination. The Copyright Office should also add several positions to advise the Register including a Chief Economist, Chief Technologist, and a Deputy Register.

Copyright Office Advisory Committees

As copyright creation and distribution rapidly changes due to technological advances, the Copyright Office needs to have quicker information regarding marketplace changes as it develops policies and provides guidance to federal agencies. Other federal agencies have standing advisory committees that enable a more efficient knowledge transfer from the private sector to federal agencies. This model should be duplicated at the Copyright Office.

The Copyright Office of the future should have a combination of permanent and ad-hoc advisory committees to advise the Register on critical issues. Members of these committees should reflect a wide range of views and interests. Permanent advisory committees should be created that focus on issues that include but are not limited to the registration and recordation system, public outreach efforts, access for the visually impaired, and issues related to libraries, museums, and archives. To ensure that a diverse set of voices is represented, committee membership should be term limited and the ability of individuals to serve on more than one committee should be limited.

The advisory committee plan again seems like it's trying to appease all sides, but one wonders how it will work in practice. As we've seen with the USTR, the advisory committees have become basically captured by industry lobbyists (despite rules against lobbyists being on those committees), and the end result is that the USTR tends to take instruction from a small group of large, entrenched interests, rather than the public. It seems likely that the same thing would happen here. A Chief Economist is also a loaded position. There are plenty of economists who would look at the actual public benefit to different copyright proposals, but too many economists are likely to just focus on the topline monetary impact on legacy industries, painting a skewed portrait and continuing the false notion that the point of the Copyright Office is to create more and more copyrights, rather than create a plan that actually "promotes the progress of science" as the Constitution requires.

Since the Judiciary Committee insists that this is just them putting out some ideas for comment, it's going to be important that we let them know the many, many pitfalls of these suggestions -- and let them recognize that if these plans are, as seems likely, weighted just to benefit a legacy industry that has a history of fighting innovation -- that will not be acceptable to the public.

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Filed Under: bob goodlatte, copyright, copyright office, copyright reform, house judiciary committee, john conyers, library of congress, small claims court

26 Comments

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That One Guy (profile), 8 Dec 2016 @ 11:48am

The mists are clearing, I can see it now...
The small claims system should handle low value infringement cases as well as bad faith Section 512 notices.

Given the current state of things, where the DMCA is regularly abused with malice and/or indifference, and punishments for such are a whopping nothing, if history is anything to go by this would just take a bad idea and make it all the worse.

Trolls would be able to shake people down even easier, and if the courts have turned a blind eye to abuse of the DMCA rules before, I don't exactly have high hopes that that will suddenly change with a 'small (copyright) claims court.'

Trolls will almost certainly be able to use the same excuse that they've always used, 'Oops, looks like by bot made a mistake, sorry about that' and the courts will likewise almost certainly give the same response as always, 'Well, so long as you're sorry...'

If this is an indication of the type of 'changes' they're looking into implementing it does not bode well for fixing the system in the slightest, and if anything indicates that it's going to get even worse if they manage to get their ideas passed into law.
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Anonymous Coward, 8 Dec 2016 @ 11:57am

The Copyright Office should remain part of the Legislative Branch where it can provide independent and timely advice to Congress on copyright law and policy.

So they get to propose the law that they enforce. Do they get to keep fees and fines as well. This could work as well as civil forfeiture.
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Anonymous Coward, 8 Dec 2016 @ 12:36pm

Expiration ++ 75yrs;
Kick the can into the next century, if possible.
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crade (profile), 8 Dec 2016 @ 12:36pm

Re: The mists are clearing, I can see it now...
The trouble with this idea is not really the idea.. This *could* be done just fine. Depending on the implementation, many of the problems that cause the current copyright system to be such a net drain *could* be fixed. The lack of accountability on the copyright holder, the ridiculous "damages" that can be awarded, the jurisdiction shopping.. The trouble is because we know the state of regulatory capture in this area, you can kindof predict that the details are going to make things worse instead of better
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crade (profile), 8 Dec 2016 @ 12:39pm

Re: Expiration ++ 75yrs;
Yeah otherwise we might have some actual progress again.
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TripMN, 8 Dec 2016 @ 12:52pm

We think we should be allowed to pick -Legislators
Anyone else see the Register of Copyright becoming another favor currying football that the legislators can use to appoint great nominees... I mean, their friends and toadies to?
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Anonymous Coward, 8 Dec 2016 @ 1:09pm

Abolish Copyright
Copyright doesn't need to "reformed", it needs to be abolished.
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Anonymous Coward, 8 Dec 2016 @ 1:20pm

Re: We think we should be allowed to pick -Legislators
You do pick them, well along with several others. They typically fill seats in the house and congress... heard of them?

If you want to take the issue seriously start writing your critters... yes it is pain but sometimes they listen... especially if you can raise an issue big enough that threatens their jobs. If you make them afraid of that, then they will bend over backwards for you just like they do for all of those special interest groups with money that keeps buying their favor.

The problem? Getting your fellow citizens with big "talk" but no "walk" to join you and that is a lot of work and a real challenge.
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Anonymous Coward, 8 Dec 2016 @ 3:27pm

Mike Masnick just hates it when copyright law is enforced.
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Anonymous Coward, 8 Dec 2016 @ 3:27pm

Trumpah Lumpah Doopity Doo
Good thing we've got Hillary as president elect to make sure that the TPP and its backdoor SOPA/PIPA get enacted into irrevocable treaty-law.
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Anonymous Coward, 8 Dec 2016 @ 3:33pm

Re: Re: We think we should be allowed to pick -Legislators
One "easy" fix we need for our electoral process is the negative vote. You can either apply a vote for a candidate, or a vote against, which serves as a negative 1 to the vote total for that candidate. This would allow people to not have to vote for the lesser evil to vote against stuff they hate. OFC there would still be a game theory situation going on, but it would be less biased towards the lesser but STILL EVIL direction.
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Anonymous Coward, 8 Dec 2016 @ 3:37pm

Re: Expiration ++ 75yrs;
It always bugs me that insightful and funny are our only two positive options. Your comment is both of those, but also depressingly accurate. We need a sadface of some sort. Not for shit we disagree with, but for shit we wished we didn't.
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Thad, 8 Dec 2016 @ 3:53pm

Re: Trumpah Lumpah Doopity Doo
The other day I mused about how irritating it was that people brought up Clinton every time a Techdirt article mentioned Trump.

I think this is the first time I've seen someone bring her up when an article didn't mention *either* of them.
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Wyrm (profile), 8 Dec 2016 @ 4:00pm

"The American People", really?

To ensure that the American people have an opportunity to provide input into the selection of future Registers of Copyright through their elected officials (...)

Let me fix that for you

To ensure that the copyright lobbies have an opportunity to provide input into the selection of future Registers of Copyright through their elected officials

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Anonymous Coward, 8 Dec 2016 @ 4:52pm

Re:
How's that campaign for Adam Sandler's "The Cobbler" working out for you, bro?
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Uriel-238 (profile), 8 Dec 2016 @ 5:01pm

We need to reform what IP law does before we enforce it.
As it currently is, every story published is one less story the rest of us cannot tell, is a dozen or so fewer characters we can never use, is another fifty-plus tropes and plot turns that no-one after them can invoke.

Much like every song published is not just words that can never again be arranged in that order, but countless sounds, beats and arrangements that can never be organized those ways again.

Copyright is becoming censorship, where it is becoming impossible to express a thought or idea without plagiarizing someone else, given the amount of content protected and the breath of the spectrum that is qualified to be infringing.

No one speaks for the public domain.

No one speaks for fair use.

And at this point there little left that can be freely said.
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Uriel-238 (profile), 8 Dec 2016 @ 5:03pm

Does copyright cover typos or grammatic missteps?
As it currently is, every story published is one more story the rest of us cannot tell, a dozen or so more characters we can never use...
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Anonymous Coward, 8 Dec 2016 @ 5:14pm

Article I tribunals are not such a strange thing. There are actually quite a few of those. (See https://en.wikipedia.org/wiki/Federal_tribunals_in_the_United_States) Decisions by a small claims copyright tribunal in the legislative branch would be subject to review in a proper Article III court (presumably the Court of Appeals for the Federal Circuit), similar to decisions by the Article I bankruptcy courts or the Patent Trial and Appeal Board.
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Bobinator, 8 Dec 2016 @ 8:59pm

What does this do for the public domain?
When the public receives no property for rendering the privilege of copyright, then the public has no reason to participate in copyright, and all media loses it's intrinsic value to society as the public becomes jaded, like swine, from the unabated consumption of media. This results in publishers watering-down the content of works to compensate for it; this is a regime in-which everyone is producing and consuming absolute garbage.

The argument that the public benefits from "increased availability of works" under a total ownership regime is an argument that's a few centuries old, where the empirical proof provided has always been propaganda produced and delivered by those whom are the most capable in society of doing so.

The world does not need, nor has never needed, a never-ending parade of privately owned caricatures-turned-string puppets to generation-ally indoctrinate the public in the aristocracy's narcissism; let the proletariat make, publish, and sell their pornography involving centuries' old fairy-tail characters. Like for millennia before this whole mess started, let the public rip, mix, and burn those stories in their own way, and let the publishers borrow those stories, for a limited time like they always have, so the public can occasionally benefit from a novel or expert recollection of a tale.

It has never been the psychographics or psychovisuals that has made a tale riveting; it's the drama.
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Anonymous Coward, 9 Dec 2016 @ 12:41am

Re: The mists are clearing, I can see it now...
American culture is honestly starting to make the core anarchists' goal look like it's necessary.

Regrettable, but necessary.
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Ninja (profile), 9 Dec 2016 @ 2:23am

Remember this is just the start. Expect a real parade of horribles. And plenty of secrecy if they can sustain it. The MAFIAA doesn't want the pesky public involved as it would spawn ideas that actually benefit the public. Dangerous, dangerous...
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Anonymous Coward, 9 Dec 2016 @ 8:36am

Bare minimum, reform must include removal of the "good-faith" loophole and make *any* false DMCA takedown mean facing charges of Perjury.

Let's face it - such a sensible reform won't see the light of day.
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TripMN, 9 Dec 2016 @ 8:40am

Re: Re: We think we should be allowed to pick -Legislators
If you want to take the issue seriously start writing your critters... yes it is pain but sometimes they listen... especially if you can raise an issue big enough that threatens their jobs. If you make them afraid of that, then they will bend over backwards for you just like they do for all of those special interest groups with money that keeps buying their favor.

You make my point for me. As long as the people are fighting against the dirty money and corruption, then it is nearly impossible to get the legislators to do things that benefit the people. When a massive uprising has to happen just so the congress-critters don't line their pockets at every turn, the system is rotten to the core.
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Anonymous Coward, 9 Dec 2016 @ 10:31am

Re:
Yes, and the world NEEDS billion dollar budget blockbuster movies!!!
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That One Guy (profile), 9 Dec 2016 @ 11:05am

Re: Re: Trumpah Lumpah Doopity Doo
Give it a few years, say four at a minimum, and they might stop bringing up Hilary every five gorram seconds.
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Anonymous Coward, 10 Dec 2016 @ 12:43am

Re:
I don't think strict liability for incorrect DMCA takedown notices, actually is sensible. It would be highly unusual to use strict liability for this area of law. Strict liability is typically only used for torts based on dangerous situations or for mere violations (like traffic tickets). It would also be unusual to change the mens rea required only for a very specific type of perjury.

Rather, I think the sensible solution is to require more those filing takedown notices to make more specific statements under penalty of perjury.

For example, instead of requiring a statement that they have a "good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law", make them state under penalty of perjury that
1) they have personally reviewed the contents of all of the allegedly infringing URLs,
2) the allegedly infringing URLs actually do use the copyrighted work,
3) the use is not authorized by the copyright owner or its agent, and
4) they specifically considered whether the use might be a fair use, and have a good faith belief that it is not.

That's assuming the government ever bothered prosecuting false DMCA takedowns, which probably doesn't happen under either of our proposals.
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