European Commission Consultation On Copyright Reveals Chasm Between Views Of Public And Publishers

from the now-they-can't-deny-it,-but-will-they-act-on-it? dept

In January of this year, we urged Techdirt readers to express their views on copyright by participating in the European Commission's consultation on the subject. It seems that many of you did, judging by the final numbers, which have just been published by the Commission (pdf):

The public consultation generated broad interest with more than 9,500 replies to the consultation document and a total of more than 11,000 messages, including questions and comments, sent to the Commission's dedicated email address. A number of initiatives were also launched by organized stakeholders that nurtured the debate around the public consultation and drew attention to it.

Some 5600 response came from the public, 2400 from authors/performers, and a thousand or so from companies. The European Commission has published an analysis of the comments on a question-by-question basis. This makes it slightly hard to get an overall sense of what the various sectors are saying, but fortunately Leonhard Dobusch has tackled that problem in an illuminating post on the Governance Across Borders blog:

I tried to have a look at the bigger picture here: what do we learn about the state of copyright at large? And what overall direction should copyright reform take?

Here's how he addressed those questions:

What I have done is to check for each of the 24 issue sections whether one of the respective stakeholder groups sees a need for copyright reform or is content with the current copyright system (for details check out a public Google spreadsheet with original quotes). The results are not entirely surprising and very clear: we have a strong divide among copyright stakeholders with end users and institutional users (e.g. libraries, archives, universities) strongly in favor of copyright reform and authors, collective management organizations, publishers and producers in favor of the current copyright system.

He then turned that information into two striking graphics:

For those that can't view those images, they show the public massively in favor of reforming just about every aspect of copyright, and publishers massively against doing so. As Dobusch writes:

the two charts above indicate that current EU copyright is very unbalanced. When one side is completely satisfied with the status quo and the other is very unhappy then this is not a balanced situation. Given that a good compromise should leave everybody equally unhappy, the results of the consultation also show the direction for copyright reform efforts of the new EU Commission: re-balancing copyright requires at least some reform as demanded by end users and institutional users, most importantly a more harmonized and flexible system of exceptions and limitations.

This is what Techdirt and many others have been urging for years. What's important here is that with this significant response to the consultation, it is now impossible for the European Commission to ignore the chasm between the views of the public, hugely unhappy about the current imbalance of copyright, and those of the publishers, desperately trying to keep things as unfair and as profitable as they are currently. Whether the Commission does anything about it is quite another matter.

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Filed Under: copyright, copyright reform, eu, eu commission, europe, public, public interest, publishers

5 Myths We're Likely To Hear At Tomorrow's DMCA Hearing

from the and-some-debunking dept

Tomorrow, the House Judiciary’s Subcommittee on Courts, Intellectual Property and the Internet is holding a hearing on the safe harbors of the Digital Millennium Copyright Act, Section 512, as part of a continuing reexamination of U.S. copyright law.  We cover this important framework frequently, because it has been instrumental to the growth of the Internet – by many accounts online safe harbors “saved the Web.”  Now that the DMCA is over 15 years old, a number of pervasive misconceptions have developed about its safe harbors.  Let’s consider some of the top DMCA misconceptions that we’re likely to hear tomorrow.

(1) “No one anticipated there would be so many DMCA takedowns.” (Also, “filter because whack-a-mole.”)

One of the critiques of the DMCA is that because it is used so frequently, it must not be working.  It is strange to argue that a system isn’t working when demand for it is going up, but I hear ‘the Internet must be filtered because whack-a-mole’ so often that if I owned the Whac-A-Mole trademark I’d be worried about it going generic.

It is true that DMCA takedowns are increasing.  This suggests rights-holders see value in the system, and that third-party takedown vendors are enabling more rights-holders to outsource policing their content at lower cost.  When Congress enacted the DMCA, it specifically legislated that online services have no continuing obligation to monitor Internet content, in Section 512(m)(1), acknowledging that there would be continued costs to enforcing rights through the DMCA.  Congress recognized that assigning this responsibility to online service providers ill-equipped to execute it would hamper the growth of online commerce.  It thus forged a compromise, ensuring that rights-holders would need to initiate takedowns, but would receive expeditious, extralegal relief in response to a complaint without the time and expense of going to court.  Some would prefer to unwind the compromise struck in 1998, however, and shift more of the burden of enforcing copyrights to service providers, perhaps through some form of content filtering.

(2) “Anyone can see there’s a lot of copyrighted content on the Internet.”   

It is not possible to ascertain on sight which works are copyrighted and which are not.  U.S. copyright law no longer requires ‘marking.’  More importantly, even for works with identifying information, it is impossible to determine which uses of works are licensed, or otherwise authorized by law.  One might simply assume that every digital file is copyrighted and be right most of the time.  This blog post, every email and selfie, and every cat video receives instant copyright protection.  With copyright’s low threshold of creativity, instantaneously attaching protection, and exceptionally long terms, it is hard for something not to be copyrighted.  But what should one do with the knowledge that every photo and email gets a century-plus of protection?  Obviously, no one wants to censor the famous Oscar “selfie” that went viral just because the copyright is owned by Ellen DeGeneres (or Bradley Cooper, or Samsung, or whomever…).  The fact that something is protected does not mean the rights-holder doesn’t want it online.

Often, when people refer to “copyrighted” content in this context, they actually mean “industrially produced creative works.”  More specifically, when someone says “there’s a lot of copyrighted content online,” what they really mean to say is “there’s a lot of stuff online that seems so professional that we should assume it was made by an industrial content producer, and that we should also assume they don’t want it online.”  Of course, this isn’t a particularly clear line: what metric should a hypothetical army of content reviewers apply in deciding how professional a work should be before it is purged from the Internet?

Even if there were a clear line, rights-holders of industrially produced creative works often approve of works being used online for promotional purposes.  And it isn’t just Oscar selfies.  In the Viacom v. YouTube litigation, it came out that Viacom’s marketing teams were secretly uploading its own works to YouTube, even after the lawsuit began, and its lawyers sued over works that had been uploaded to the site by its own personnel.  

Given billions of indexable pages, the absence of a reliable list (government-maintained or otherwise) of who owns or has licensed what, and the inherently complex contours of copyright’s exclusive rights and exceptions, only rights-holders are positioned to begin the process of enforcing their own rights.

(3)  Infringing content is “illegal.”

It is common to refer to infringing works as “illegal,” but this actually clouds the fact that the Copyright Act regulates actions, not content.  That is, a pirated work itself is not what violates the Copyright Act; the law is violated by the act of reproducing a work without authorization or as permitted by an exception.  In many cases this distinction doesn’t matter.  That doesn’t mean the point is mere semantics, however.  Because two different acts reproducing the same protected work may be alternately permitted and unlawful, depending on who did it and why, it is important to separate the infringement from the content.  For example, a law professor posting to YouTube the copyright announcement on an NFL game for her students to analyze in the classroom would constitute fair use, whereas an individual doing the same without any educational purpose might be labelled an infringer.  There’s nothing illegal about NFL football games (well, usually): it’s the act that matters.  Thus, it is important not to lose this distinction.

(4)  “Services filter for other illegal content; so they can filter for infringement.”

The previous point leads to this logical flaw.  The notion is that because some services attempt to filter wholly unlawful content, such as child pornography, they should also filter for lawful content whose use may be unlawful.  However, filtering any unauthorized Harry Potter for example, might also filter out Harry Potter reviews, book reports, and cultural studies.    Again, lawful content, used unlawfully, is not the same as unlawful content.  One cannot filter when lawfulness is context- and user-dependent, and even if that were possible, it is rarely stated when a use has been authorized.

(5) DMCA compliance is mandatory.

It isn’t.  Service providers may comply with the DMCA in exchange for the promise of liability limitations, and many services within the US and abroad (over 66,000 at last count) do so.  Notwithstanding that DMCA compliance can be a significant expense, particularly for smaller services, it is viewed by many as the cost of market entry: a regulatory obligation undertaken by responsible businesses.

That being said, DMCA compliance is not compulsory, a service can decline to comply with takedown requests — or even ignore them altogether.  As a standard business practice, this is a terribly bad idea, because of the potential exposure to copyright’s notoriously large statutory damages.  At times, however, online services can and do rightly refuse to comply with abusive requests by bad actors.  Attempts to get one’s business competition kicked offline, or to suppress criticism, embarrassing news, or disfavored speech are increasingly common.  (E.g., [1], [2], [3], [4]).  In each case that an online service stands up for users, however, it risks extraordinary liability if a court should later side with a complainant who the service initially concluded was not acting in good faith.

Reposted from the Disruptive Competition Project, DisCo

Filed Under: copyright, copyright reform, dmca, house judiciary committee, notice and takedown, safe harbors

Australian Copyright Reform Goes Into Reverse: 'Fair Use' Out, 'Three Strikes' In

from the what-a-waste dept

Techdirt first wrote about Australia's plans to reform copyright back in August 2012. In April 2013, we passed on the news that the final report was likely to include a fair use provision. The final report was released just a couple of weeks ago, and did indeed recommend the introduction of a fair use exception to Australian copyright law. However, something happened during this long process: Australia held a general election, leading to a change in government. The new Attorney General, George Brandis, lost no time in making his views known, saying that:

he "remains to be persuaded" that Australia needs a fair use clause in its copyright law.

That's politician-speak for "I'm throwing the Australian Law Reform Commission's amazingly professional, diligent and balanced 478-page report based on evidence drawn from 109 consultations and 870 submissions into the rubbish bin, and replacing it with dogma-based policy based on my own blinkered views." Some of those were on display in a radio interview Brandis gave this week on the subject of Internet piracy. It starts off badly:

The fact is that people don't have a right to download pirate copies of songs or movies or television programs because the people who make those programs or other items have a right of property in them. The way artists earn their living is through royalties and that's the way they are remunerated for what they do.

It's one of the ways, but certainly not the only one, as Techdirt's "The Sky Is Rising" report explained. The interview gets worse:

To pirate a video or a song without paying the fee for it through iTunes, and so on, is an act of theft, it's pure and simple.

Brandis continues parroting the copyright industry by saying:

The ISPs, in my view, do need to take some responsibility for this because they provide the facility which enables this to happen.

That's even though the Australian courts decided in the iiNet case it was simply not reasonable to require ISPs to pass judgment on those accused of unauthorized sharing. Unfortunately, given his powerful position in the new Australian government, what Brandis says matters, because he can turn his wrong-headed ideas into wrong-headed laws. The Guardian has a report of a speech he made a couple of weeks ago in which he made it pretty clear what he planned on the copyright front:

"The government will be considering possible mechanisms to provide a legal incentive for an internet service provider to co-operate with copyright owners in preventing infringement on their systems and networks," Brandis told the copyright forum. "This may include looking carefully at the merits of a scheme whereby ISPs are required to issue graduated warnings to consumers who are using websites to facilitate piracy."

He said his preference would be for the industry to police itself, rather than have the government impose potentially burdensome regulations.

It's a familiar threat: come up with totally "voluntary" co-operation schemes or we'll impose them on you using our exquisitely painful "legal incentives". But what's really striking here is that not only is Brandis regurgitating bad ideas that haven't worked anywhere, he's doing this in preference to building on the great ideas that were presented to him by people who knew what they were talking about, and who cared deeply about Australia's digital future. When it comes to making copyright fit for the 21st century and promoting the online economy, it seems that the country's new government is determined to snatch defeat from the jaws of victory.

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Filed Under: australia, copyright reform, fair use, george brandis, three strikes

MPAA Head Chris Dodd: I'm Willing To Discuss Copyright Reform As Long As Nothing Changes

from the your-input-will-be-ignored-in-the-order-it-is-received dept

Chris Dodd, head of the MPAA, has decided that, 16 years after the Napsterpocalypse (which singlehandedly killed the recording and motion picture industries, both of which are now nothing but vague memories for pre-Gen Xers), it's time to meet the tech industry in the middle and start working together.

But, as is Dodd's way, "in the middle" means drawing a line inches away from the MPAA's position and "working together" means making heavy concessions to the incumbent industries. Here's what the Grand Dame of the movie business had to say while attending a celebration of US-Germany film collaborations.

"New technology has made the international exchange of cultural and entertainment content faster, easier and increasingly, a two-way street," he said. "Technology and content need to live with each other. … Technology needs content, and content needs technology."

So far, so good, even if it is a rather obvious statement. And so far, this preamble echoes the recent words of Jean Michel Jarre, who also began with an open-minded position when discussing the tech/content relationship, shortly before zipping it shut entirely and declaring copyright industries entitled to $300-400 of every smartphone sale.

Dodd says it's a two-way street... then sets about hanging new one-way signs all over the place.

Addressing copyright rules, Dodd said he was "not frightened of reviewing or reforming copyright," but said copyright rules shouldn't be "eroded."

Great. Dodd's perfectly happy to discuss or reform copyright, just as long as nothing changes. Life +70 forever, then? Or more? The only thing that's "eroded" over time is the public domain. The original copyright "rules" stated that these rights would be secured for a limited time. Life +70 years is limited in terms of the entire history and future of the world, but it's certainly not "limited" in any logical sense of the word. Life +70 years is, on average, 110-130 years of copyright protection, which is more or less 50% of this country's total length of existence.

So, let's "review" copyright, but only if we're looking to "strengthen" the rules (read: expand and extend). And let's "reform" copyright, but only as long as nothing at all existing changes. Thanks for the invite, Chris, but this hardly looks like a promising discussion. All Dodd's looking for is concessions from the tech industry -- more permission forms and licensing fees and so on, until long after everyone has forgotten such tech blips as Facebook and Twitter and The Pirate Bay.

The only way the copyright industry (and I don't mean creators, I mean the gatekeepers who have watched their cherished gates erode into nearly nothing) is going to keep up with the tech industry is to actually meet somewhere in the middle. And the industry needs to do a lot of catching up. We're seeing industry figureheads finally recognize they can't keep treating each new tech advance as the enemy, but it's been a long, long time coming. They still seem to put 90% of their effort into enforcement, rather than innovation, and Dodd's half-assed "halfway" gesture indicates the MPAA is unwilling to consider anything that doesn't keep its extended-to-the-point-of-surreality copyright protection intact.

Filed Under: chris dodd, copyright reform, mpaa

A Rare Invitation To Help Shape European Copyright Law

from the seize-it dept

Back in May last year, we wrote about how the European Commission's "Licences for Europe" initiative had turned into a fiasco, with public interest groups and open access supporters pulling out in protest at the way it was being conducted. The central problem was the Commission's attempt to force everything into the straitjacket of copyright licensing, refusing to allow alternative approaches to be discussed. Fortunately, its public consultation on copyright, launched back in December, and closing soon, does not make this mistake, and is broad in scope:

The consultation invites stakeholders to share their views on areas identified in the Communication on Content in the Digital Single Market (IP/12/1394), i.e. territoriality in the Single Market, harmonisation, limitations and exceptions to copyright in the digital age; fragmentation of the EU copyright market; and how to improve the effectiveness and efficiency of enforcement while underpinning its legitimacy in the wider context of copyright reform.

Although it's regrettable to see so much prominence being given to enforcement, at least there is a mention of taboo topics like limitations and exceptions -- something that was forbidden during the licensing talks.

Even though this is about European copyright laws, submissions can be made by anyone. Full details about how to do this can be found on the European Commission's Web page on the subject. There is a consultation document, which consists of dozens of questions on different areas of copyright. Navigating this can be daunting, so a broad coalition has put together a site called youcan.fixcopyright.eu. It is designed to offer a quick way of selecting groups of questions that are most likely to be of interest to specific kinds of respondents -- for example, online users, teachers, parents, bloggers, etc. As a further alternative, replies can be sent directly to markt-copyright-consultation@ec.europa.eu using Open Document Format, Microsoft Word or PDF. The closing date for submissions is 5 February.

As Techdirt has reported, all too often in the past, the public has been shut out from the decision-making process when it comes to copyright policy. Here, for a change, is a welcome opportunity for ordinary citizens to make their views known. Let's hope people take it.

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Filed Under: copyright, copyright reform, europe

The Most Nefarious Part Of The TPP Proposal: Making Copyright Reform Impossible

from the the-tricks-they-pull dept

So with yesterday's revealing of the IP chapter of the TPP, there are plenty of great analyses out there of what's in there, but I wanted to highlight some parts that are the most nefarious and downright slimy in that they represent parties (mainly the US) pretending to do one thing while really doing another. These are tricks pulled by a dishonest, shameful USTR, entirely focused on making his corporate buddies richer at the expense of everyone else. Remember, our current USTR, Michael Froman, has a long history of this kind of crap. While he hasn't been there throughout the negotiating process, it shouldn't be surprising that he "delivers" this sweetheart deal to a few legacy industry players.

Watch closely, and you'll see supporters of TPP, and especially USTR employees, make the claim that nothing or almost nothing in the TPP will require legal changes in the US. They'll say that this is just about "harmonizing" norms across borders to make it easier for businesses to do business internationally. This is a lie.

It's a lie in two different ways. First, there are multiple provisions in here that will absolutely require changes to US law. We'll discuss a few in other posts, but what's much more nefarious and downright obnoxious, is that this would lock in a variety of really bad copyright policies, making it nearly impossible for Congress to go back and change them. And that's a real issue, because, as we've been discussing, Congress is actually discussing copyright reform again. The head of the US Copyright Office, Maria Pallante, has proposed a bunch of changes to copyright law (some good, some bad), and astoundingly, just as Congress is at least trying to have the discussion about whether or not those and other ideas make sense, the USTR is looking to effectively tie everyone's hands by saying "these things cannot be changed," including many of the reforms that Pallante has directly proposed.

That's really quite incredible if you think about it. On the one hand, you have the very head of the Copyright Office suggesting some reforms, and you have Congress beginning the process to explore that. On the other, you have the USTR totally ignoring the sole power of Congress to make copyright and patent law, and effectively saying "you cannot make any of the suggested reforms." And then the USTR has the gall to ask Congress to give up its power to challenge specific provisions in the agreement? While we're concerned about the Congressional copyright reform process, at least it's being done in the open. The USTR has been hashing out the plan in TPP in total secrecy for years.

Who the hell does the USTR think they are that they can flat out override the Constitution and the Congressional process, and effectively block them in and stop any meaningful attempt at copyright reform? All done via a process driven entirely by a few special interests? It's anti-democracy. It's pure corporate cronyism by the worst cronies around.

Now, defenders of this proposal will lie. They'll claim that technically (1) Congress has to approve this and (2) nothing in a trade agreement can limit Congress's ability to pass laws. Neither point is really true (the fun with things that are "technically" true, but false in reality). As mentioned above, the USTR (and President Obama) is pushing extra hard for Trade Promotion Authority, which basically is Congress granting the USTR full power over the TPP. Normally, Congress would be able to debate, challenge and reject questionable provisions in the agreement. But, with TPA "fast track" ability, Congress could only give a yes/no vote on the whole package. And, yes, some will claim that they can just vote no, but the reality is that there are other parts of this agreement that are designed to make that nearly impossible. There are all sorts of little things that we'll be told we "need." TPA is a bit of theater. What's delivered to Congress will almost have to be passed -- so if it's granted (before it's even public what's in the full agreement) -- Congress has effectively approved the whole agreement.

As for the claim that Congress' hands cannot be bound by a trade agreement, this is again technically true, but it ignores that it becomes realistically impossible. The second that Congress tries to change a law that goes against the TPP -- such as, say, reducing the term of copyrights from the insane level today to merely crazy -- lobbyists and pundits will come screaming from every direction about how we can't abandon our "international obligations." We'll hear horror stories about how breaking the agreement will have widespread implications, including trade wars, tariffs and other horrible things. Once it's in the trade agreement, "breaking it" becomes effectively impossible.

The lobbyists for the entertainment industry know this stuff cold. Over the past three decades they've perfected this process of getting crap they can't get done in Congress pushed through in various trade agreements, and then they use that to mold US law to exactly how they want it. They're not even shy about it, admitting this is exactly how they got the DMCA in the first place. Considering that the TPP has a form of DMCA-on-steroids, it shouldn't be a surprise that they're using an even bigger trade agreement to do the same thing.

All of this should lead to a basic question: why is the USTR and President Obama directly trying to undermine Congress' sole authority over copyright and patent policy? Are they proud of the tricks they tossed in the agreement? I imagine that when the USTR staffers move on to their jobs in the same industries that pushed them to write the agreement this way, they'll all laugh about that time they fucked over the American public.

Filed Under: congress, copyright, copyright reform, maria pallante, michael froman, tpp, transparency, ustr

Two Key Points: Copyright Isn't The Only Business Model; And When Done Wrong Makes Other Models More Difficult

from the keep-those-in-mind dept

We've already discussed how the House subcommittee on Intellectual Property is taking the exact wrong approach for its copyright hearings, trying to set this up as if it's "copyright vs. technology." Even worse, when you looked at who the actual hearings involved, the first hearing wasn't about actual creators, but rather legacy means for funding content creators. And, not surprisingly, the argument they made was "more copyright, more enforcement and less fair use." They built their business models around copyright, and they just want it to be stronger.

But that doesn't mean that's best for actual creators or for the public who are supposed to be the beneficiaries of copyright law.

Thus, the second hearing, which was supposed to be about the "technology" really showed a number of companies who demonstrated alternative business models that don't rely on copyright and have found that many of those alternative means are not only quite profitable, but better overall. In many ways, the two hearings weren't "creators vs. tech" at all -- but rather "business models that rely on copyright and business models that either don't rely on copyright, or which rely on fair use." It's worth watching the hearings, which you can see here: As part of this, they demonstrated a key point: despite claims to the contrary, there are all sorts of ways to make money that don't rely on copyright and, on top of that, excessive copyright or excessive copyright enforcement can actually create all sorts of problems. In fact, the focus on just using copyright as the only model can be counterproductive. As Nathan Seidle from Sparkfun pointed out:

Attempting to stop pirates is a waste of time. Show me an anti-piracy law or technology and I’ll show you a dozen 15 year-old girls and boys who can crack it. The resources spent stopping pirates comes at the expense of innovation and improving the business practices that actually serve the customers and industry. The most efficient way to get reimbursed for creative work is to make it easy to purchase and consume that content. How do you get the market to buy your product or service? Provide better support, better quality, better price, and better availability. If you show the consumer that you are a better company with which to do business, they will shop with you. This is not a new business model. This is how business has been done for thousands of years. There is no need to waste time, energy, money and resources suing infringers or pirates; our time is better spent innovating.

Unfortunately, some on the subcommittee (and some commentators) seemed to get the wrong message, thinking that the panel was arguing for no copyright. They were not. But they were making the key point that, contrary to what some believe, copyright is not the only way to make money, and setting policy based on the false belief that copyright is the only way may actually do more harm than good, by limiting many of those other means -- other means that may be more effective, more available to more people, and more beneficial to the public. Worse, when copyright policy is focused solely on trying to protect the business models built to rely on copyright, then it can actually do tremendous harm to all those other models and opportunities.

For example, many legacy copyright middlemen have been pushing strongly to make third parties liable for stopping infringement. But, in many ways that would be disastrous for so many artists and so much of the public. That's because increasing secondary liability -- such as forcing companies that allow user generated content to police for infringement would mean that (a) many of those companies wouldn't exist, as the liability would just be too high and (b) that those that do exist would offer much more limited services, making it that much more difficult for content creators to be able to create, distribute, promote and monetize their works today.

The message being sent wasn't to do away with copyright -- but to recognize that if the goal is to incentivize creativity such that the public benefits, you need to look at the whole market. That's why it still seems like a much more beneficial effort would have been one that had the kinds of representatives seen on both panels plus content creators plus people who make use of these various platforms in a variety of ways. Then you get a fuller picture of the ecosystem -- and understand why a narrow focus on merely "strengthening enforcement" or merely trying to "stop infringement" will often miss the bigger picture, and make things more difficult and less beneficial for both creators and the wider public.

Jonathan Band highlights this point in his discussion about the hearing:

Congress and the Executive branch also constantly call for more copyright education, which typically means teaching consumers about the penalties for infringement and artists about how to better enforce their rights. Indeed, at yesterday’s hearing, several members asked the Rackspace witness about how small rights-holders could better use the DMCA to remove infringing content stored on Rackspace servers. These members missed the point made by the Indiegogo and SparkFun witnesses that most individual creators may well be better off financially pursing open distribution models rather than the traditional copyright model. The government, at the urging of large media companies, has been educating artists about copyright enforcement, when it probably should have been encouraging them to explore alternative means of generating revenue.

This is really the key point we've been trying to make for years. This has never been about technology vs creators, as some would like it to be. Many of these services are providing tremendously powerful new opportunities to creators, if they choose to embrace them. The concern is that along with the freedoms that enable many of these platforms and services to exist, it is true that they can sometimes also be used for infringement. That's only a serious problem if you rely too heavily on "copyright" as the only business model you use. Yet these speakers were showing that there are other ways to do things, and often those ways aren't just better, but they're less adversarial towards fans and the general public.

In other words, there is a way to make these things work in a manner that really does benefit creators and the public without cutting off the powerful communications channels that so many people have become accustomed to.

Filed Under: business models, copyright, copyright reform, house judiciary committee

Next Two Congressional Hearings On Copyright Reform Show The Exact Wrong Approach

from the setting-it-up-as-a-fight dept

As Congress kicked off its latest effort towards comprehensive copyright reform, I noted some talking points that raised a really big concern: many in Congress appeared to suggest that copyright reform was a fight between "content creators" and "technology companies" and that any eventual result would be a balance between what those two sides were squabbling for. This is very concerning for a variety of reasons. First off, neither of those groups should be the primary concern of lawmakers. The Constitutional mandate for Congress when it comes to copyright is to "promote the progress of science" (the useful arts stuff is about patents...). The key beneficiaries are to be the public.

So, the first concern, obviously, is that if the focus is on "content creators" on one side and "the tech industry" on the other, the public is not represented. That's a really bad idea. The second problem with setting it up as a battle between those two sides is that it suggests that what's good for one side is bad for the other, and this is a push and pull whereby when one side wins something, the other loses, and the "ideal" result is one where both have to compromise. Thus, you get talk about how copyright law needs to "balance" the interests of "both sides." Again, this ignores that there are a lot more than "two" sides here, but more importantly it ignores the idea that this is not a zero sum game.

The history of the tech and content industries shows that -- while they often squabble about things -- success goes hand in hand. Each and every major innovation from the tech world has resulted in greater opportunity for content creators. It's getting old to say this over and over and over again, but a mere four years after Jack Valenti told Congress that the VCR would be "the Boston Strangler" to the movie industry, home video sales for Hollywood were bigger than box office sales. Technology isn't anti-content creator -- it opens up new and greater opportunities. The focus shouldn't be on figuring out who has to "give up" what for "balance" but to seek out a scenario that is more likely to increase the opportunity for everyone (whether or not everyone grasps the opportunity may be a different story).

Thus, the key focus should be on what kinds of things should be in any copyright reform proposal that will "promote the progress" by building up those opportunities for everyone -- increasing innovation, not locking it down. That means bringing together everyone to figure out how they can help each other and the public -- not dividing them up and putting them on certain "teams."

But... this is Congress. And that's not how Congress works.

Instead, we're getting two separate hearings, one about how awesome copyright is, and another about how awesome technology is. As if those two things are in conflict.

Congress needs a fight between "this side" and "that side," preferably with each side involving giant multinational companies with giant lobbying budgets. Because, when you have a fight like that, both sides ramp up their donations to Congress to make sure "their side" is heard. Congress loves to set up fights between two big wealthy industries, because that just means more money for them. This is also why this won't be resolved any time soon (the longer you drag it out, the more money pours in).

So, it should come as no surprise at all that the next two hearings that the "Intellectual Subcommittee" have called are designed not to move the ball forward on real copyright reform, but rather to set up the "two sides" in the war. First up, next week, there will be a hearing on "Innovation in America: The Role of Copyrights." The following week? Same thing, but "the role of technology" (official title hasn't been released yet, as far as I can tell, but I've seen a few variations floating around, that basically just involve substituting "technology" for "copyrights") -- as if technology is inherently "anti-copyright."

The end result will be lots of home team cheering from people who solidly identify with one side or the other, coupled with ragging on "the other side." But there will be little or nothing to actually look at how those two "sides," along with many others, can come together to best serve the public benefit in terms of furthering the incentives to have important cultural and intellectual works created, experienced and shared.

Filed Under: congress, copyright, copyright reform, creators, promote the progress, technology, zero sum

Innovators, Public Interest Groups & Open Access Supporters Pull Out Of Talks On EU Copyright In Protest

from the squandered-opportunities dept

Back in February we reported on a worrying attempt by the European Commission to reframe the discussion about modernizing copyright in Europe purely in terms of licensing, reflected in the name of the initiative, "Licences for Europe". Although originally a series of discussions were promised to "explore the potential and limits of innovative licensing and technological solutions in making EU copyright law and practice fit for the digital age," in practice moderators shut down discussions of things like exceptions or even Creative Commons licensing. As far as the Commission was concerned, it seemed the answer to updating copyright for the modern age was just old-style licensing and nothing else.

Those events took place in one of the four "discussion" groups, covering user-generated content (although there weren't many representatives of the users present -- 75% of the participants turned out to be from the copyright industry.) However, it seems that things are equally dire in the group supposedly coming up with solutions for text and data mining (TDM), a technique whereby new information is gleaned by analyzing and comparing large quantities of pre-existing digital texts. Again, the problem was the licensing straitjacket that the Commission insisted on imposing on the discussions.

This inflexibility led to a group of eminent signatories drawn from Nobel prize winners, technology SMEs, research councils, university associations, learned academies, publishers, libraries and law academics from across Europe to send a letter to the European Commission outlining some of the key problems with that approach (pdf). Among other things, it pointed out:

Organisations in the modern world access the internet, or buy and subscribe to digital content in order for humans and computers to read and develop new ideas from what they have lawfully read. We do not accept that the right for computers to read, extract facts and formulate new ideas is a separate right to the right of humans to freely perform the exact same activities.

This is a crucial point: by insisting on licensing as the only solution to text and data mining, the publishers are trying to carve out another monopoly right, and to set themselves up as gatekeepers over the knowledge contained within the articles they publish, as well as controlling access to the articles themselves. Clearly, that places unacceptable burdens on academics, and will throttle research and innovation in Europe, simply for the sake of being able to extract a further monopoly rent for the work carried out by others.

But the European Commission paid no heed, and insisted that licensing was the only way forward for handling text and data mining in Europe. Now a group of researchers, SMEs, civil society groups and open access publishers who were participating in the text and data mining talks, have had enough, as their recent letter makes clear (pdf):

We believe that any meaningful engagement on the legal framework within which data driven innovation exists must, as a point of centrality, address the issue of limitations and exceptions. Having placed licensing as the central pillar of the discussion, the "Licences for Europe" Working Group has not made this focused evaluation possible. Instead, the dialogue on limitations and exceptions is only taking place through the refracted lens of licensing. This incorrectly presupposes that additional relicensing of already licensed content (i.e. double licensing) -- and by implication also licensing of the open internet -- is the solution to the rapid adoption of TDM technology.

This approach also undermines the considerable work that has been done in Europe to increase the amount of Open Access content available and encourage its exploitation. We are concerned, therefore, that our participation in a discussion that focuses primarily on proprietary licenses could be used to imply that our sectors accept the notion of double licensing of as a solution. It is not. We firmly believe that "the right to read is the right to mine".

The European Commission's refusal even to allow people to discuss that issue left only one option:

Given the above, and the fact that we need to prioritise our limited resources in a way which will best help the Commission to create an appropriate legal and environmental framework for data-driven innovation within the EU, we believe our contribution will be more productive outside the "Licences for Europe" framework. Therefore, we can no longer participate in the "Licences for Europe" process.

This is a real slap in the face for the European Commission, and for those who have organized these discussions in such a narrow and uncompromising way. As we saw with the user-generated content track, the sessions there were stacked with industry representatives that supported the Commission's line, thus depriving its outcome of any kind of legitimacy. With the withdrawal of such an important group of stakeholders from the text and data mining discussions, the same is now true for this key area.

As a result, the entire Licences for Europe strategy lies in tatters, since it consists almost entirely of the usual copyright maximalists talking amongst themselves, studiously ignoring the changes brought about by the Internet, and simply demanding even more while offering nothing of value. What's disappointing is that in the wake of ACTA's defeat last year it seemed that the European Commission had finally realized that it could not simply keep applying the upward copyright ratchet, and had recognized that things needed to change if it wanted to avoid more people taking to the streets in protest. The Licences for Europe fiasco shows that the Commission has in fact learned nothing.

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Filed Under: copyright, copyright reform, data mining, eu, licensing, text

RIAA: The Copyright Reform We Need Is To Make Everyone Else Copyright Cops

from the they-just-don't-get-it dept

The RIAA is gearing up for the big copyright reform battle doing the only thing it knows: whining that everyone else won't fix its own broken business model. Despite heavy budget cuts and layoffs, the RIAA hasn't yet realized that singing the same old debunked song isn't a winner. It's claiming that the DMCA's safe harbors are broken and need to be fixed. It's really quite incredible. They talk how they've sent 20 million DMCA takedowns to Google, and then complain that the process isn't working. Seems odd, then, that they would send so many. Perhaps they should have knocked it off earlier, and focused on things like teaching people how to have better business models.

But, that's not how the RIAA functions.

Rather than having a useful employee, like a VP of new business models, the RIAA has a VP of anti-piracy (I actually believe they have a few), and one of them, Brad Buckles, wrote the latest misleading screed against the safe harbors. The short version is basically: everyone else needs to prop up our business models by randomly taking down content that might, possibly be infringing. Of course, this makes no logical sense, no matter how much the RIAA wants to play pretend. Already, we see stories practically every day about how the copyright holders themselves -- including the RIAA -- send bogus DMCA takedowns all the time. And those are the guys who are supposed to know what's infringing.

And yet they magically expect some third party, who has no idea if the content was put up in an authorized manner or not to make that determination for them? Really? Do they not realize (or not care) what a massive chilling effect that would have on innovation? If service providers are required to proactively guess at what is infringing and what's not -- and face liability for guessing wrong -- then the obvious is going to happen: a lot less innovation in any service that includes user generated content. The risk of liability would be way too high. That may not matter to the RIAA, who has never been a fan of the internet, but it sure as hell matters to the public, who has received tremendous value from the internet. I'd also imagine it matters quite a bit to tons of musicians who are not a part of the RIAA machine, who now use the internet to have a better career than they ever had under the old system.

So, here's a suggestion for the RIAA, while they're laying off a bunch of staffers (despite giving boss Cary Sherman a hefty raise to $1.5 million per year). Maybe layoff the "anti-piracy" team -- since clearly that's not working for you -- and hire a "new business model" or "innovation" team, and give them a shot to help your members.

Filed Under: copyright, copyright reform, dmca, notice and takedown, safe harbors
Companies: riaa