A Framework For Copyright Reform

from the some-starting-points dept

I watched a large part of the House Subcommittee on Intellectual Property's first hearing on copyright reform, and came away somewhat disappointed. While the panelists presented a variety of interesting viewpoints and worked hard to highlight areas of agreement, many of the Congressional Representatives were clearly confused about the law, the Constitution and the nature of the debate itself. I came away with a few key concerns, but also with some ideas for a framework that any debate on copyright should necessarily take. First up, the concerns:

1. Too many Representatives flat out mis-stated what the Constitution says. They said that the copyright is "guaranteed by the Constitution" or that their Congressional mandate is to protect science and art. Neither is true. The Copyright Clause of the Constitution grants Congress the power to issue "exclusive rights" for the sake of promoting the progress of science and the useful arts. That is, it was never about "protecting" but about "promoting the progress." Those are very different things. For that matter, it had nothing to do with creative works, for the most part. If we go by the originalist mandate, "science" was the part that copyright was about, and it meant "learning." The framers of the Constitution were focused on promoting learning and education via copyright, not a specific entertainment business. That it does that now is fine, but don't claim that the Constitution says that Congress must "protect" the entertainment industry. Because it says no such thing. After all, that same section grants Congress the power to grant letters of marque to privateering ships to seize foreign ships. If copyright is guaranteed by the Constitution, then so would the right to demand your right to a letter of marque.
2. Too many representatives continued to set this up as a battle between "content creators" and "the tech industry." This is dangerously misleading. In fact, at one point, Rep. Deutch flat out said that any copyright reform must carefully benefit "creators and the tech industry, as if those were the only two stakeholders. The real stakeholders of copyright law, however, have always been the public, who were barely mentioned at all in the hearing. Or, when they were mentioned, it was often with the somewhat disparaging term "users."
3. Finally, the myth that "everyone just wants stuff for free" was brought up a few times, in an effort to defend the idea that greater enforcement is a necessity. Except, that's not true. As we've seen over and over again, consumers are actually spending more today on entertainment than ever before, according to the Bureau of Labor Statistics. And tons of studies have shown that the biggest infringers also tend to be the biggest spenders. You don't make good policy based on catchy myths, and this one is a myth. It should be stricken from the debate as false. And, I won't even bother with the one comment from Rep. Poe that "copyright won the cold war." Where do we get these people?

Given all that, if we wanted to look honestly at copyright reform, it needs to start from a few basic principles. Here are a few preliminary thoughts on a potential framework for discussing these things.

1. Pretty much everyone is both a content creator and a content consumer. Over and over again we heard about concerns of certain creators as if they were a separate class of people unrelated to the wider public. That's silly. Especially as we have copyright law today -- in which every piece of creative content is immediately covered by copyright at the moment the expression is set in fixed form -- we are all creators. Nearly every email you write is probably covered by copyright. Every creator is also a consumer of content, and that includes professional creators. Professional content creation often involves building off of the influences of other works. We should support that as well. Otherwise, we begin to treat copyright as a sort of welfare program for professional creators, which is never what it was intended to be.
2. Technology is just a tool. It is neither a competitor to, nor an enemy of, content creators. With so many Representatives setting up the debate as "content vs. technology," we start to go down a very dangerous and distorted path that has little to do with reality. As a tool, technology certainly can create challenges for existing and traditional business models, but also tremendous opportunity. Look at the success of platforms like Kickstarter today. Would anyone seriously argue that the "technology" company Kickstarter is "anti" creator? Similarly, we're seeing more and more artists succeed by embracing new technology platforms that enable them to do amazing things: Bandcamp, TopSpin, BandZoogle, ReverbNation, SongKick, Dropbox, SoundCloud, Netflix, YouTube, Facebook, Twitter, HumbleBundle -- and many, many, many more. The list literally goes on and on and on. These are the tools that so many content creators are embracing today to help them to be better able to create, to promote, to distribute, to connect and to monetize their works than ever before. To argue that this is tech vs. content, when the tech companies seem to be handing content creators the most useful tools they've ever had to be successful, seems ridiculous.
3. Every legislative choice has costs and benefits. Too often, it seems like those pushing a certain proposal like to only look at one side of that equation. If we're to have an effective debate over copyright reform, it should include an upfront look at the costs and the benefits, the conditions and the consequences of various decisions across the board on the public. The purpose of copyright law, explicitly, is to promote the progress. We should be weighing carefully whether or not each change really would promote progress of science and the useful arts.
4. Decisions need to be made based on empirical data. As we've discussed in the past, historically, copyright reform discussions have been almost entirely faith-based. This is why the claims of "everyone just wants stuff for free" are so concerning," since the data suggests that's not even close to true. Given the recent call for objective research that would be useful in the copyright debate, by the US National Research Council, I'm hopeful that we'll actually begin to see some useful data for this discussion. Hopefully those in Congress will actually pay attention to the data, rather than continue to insist that blatantly false claims must be true.
5. Finally, and most importantly, the focus needs to remain on promoting the progress of science and the useful arts. It's not about "protecting" any industry or any class. It's about what most helps to promote overall progress. Each proposal should be judged on that standard.

While it may be difficult, I think that if any discussion on copyright reform begins with those basic principles, it could end up being quite useful and informative.

Filed Under: congress, copyright, copyright reform, creators, facts, framework, mel watt, technology

How SOPA Creates The Architecture For Much More Widespread Censorship

from the easy-to-amend dept

We've discussed many times how the censorship provisions of SOPA and PIPA require US companies to set up a system that is technically identical to internet censorship systems in countries like China and Iran. This always upsets supporters of these bills, because they prefer to focus solely on what's being censored, with the argument being that as long as the target of the censorship is infringement, rather than, say, political speech, it's okay. I've had two different arguments for why that line of thinking is ridiculous. First, while the bill may target infringing works, it will, without doubt, end up censoring tons of non-infringing works, as with the Dajaz1 seizure. The second point is that countries have a history of censoring political speech under the guise of copyright law. So, even if the intent is not to censor political speech, we have enough examples of it happening that it seems like a perfectly legitimate point to raise.

However, Julian Sanchez has taken this discussion even further, and pointed out an additional reason that we should be quite worried about the censorship portion of the bill. Even if it's only designed to be used for stopping infringement, we'll have now set up the legal framework for censorship, meaning that it will be quite easy to expand the law to cover other forms of expression:

With the legal framework in place, expanding it to cover other conduct—obscenity, defamation, “unfair competition,” patent infringement, publication of classified information, advocacy in support of terror groups--would be a matter of adding a few words to those paragraphs. One sentence slipped in as a rider on some must-pass omnibus bill would do it: “Section 102(2)(B) is amended to add ‘or civil action under 17 USC §271′.”—voila, a nuclear weapon for patent trolls.

And it's not just the legal framework and architecture he's worried about. Once DNS providers are set up to easily censor sites at the drop of a hat, does anyone honestly believe that the government and the courts won't be tempted to just use it in other cases outside of what's covered under SOPA/PIPA?

Then there’s the technological architecture. If SOPA passes, thousands of commercial ISPs, colleges, small businesses, nonprofits, and other entities that maintain domain servers are going to have to reconfigure their networks, potentially at substantial cost, in order to easily comply with the new law. There is an introductory clause in the latest version of the bill stipulating that no network operator will be required to implement a specific technology or redesign their networks in any particular manner in order to be considered in compliance. But let’s think realistically about what compliance will look like. Genuine “rogue sites” often operate via dozens of different domains, which means we’re apt to see regular updates to the government’s standing blacklist, potentially adding dozens or hundreds of domains in one go. Any sane network operator is just going to build a filter that reads off the current list of banned domains from a government feed and automatically stops resolving them. (This will, incidentally, be an enormously attractive attack surface for hackers: Spoof the SOPA feed—either at the source or to a particular provider—and you’ve got an instant bulk denial of service attack!)

Once the up-front costs of implementing that filter mechanism are paid, the marginal cost of additional censorship is effectively zero for the providers. It won’t much matter to the providers, at that point, whether the blacklist contains 10 domains or 10,000. The technology itself, needless to say, will be indifferent to the rationale for blacklisting. The filter will just automatically implement the list of domains it’s given; it won’t know or care whether they’re being blocked for hosting pirated movies, Hamas propaganda, or the Pentagon Papers.

And, as Sanchez notes, once you've got those two pieces in place, the broadening of US censorship online is almost inevitable, because the "cost" of doing so becomes so low:

Political actors—or special interest groups—who want to expand the scope of blocking will no longer have to justify putting in place a wholly new system of Internet blocking. Instead, the rhetorical question will become: Now that we’ve got this whole filter architecture in place for music and movie pirates, how can we possibly justify not using it for sites that host terrorist propaganda or classified documents, for sites that implement a patented business model without permission, for sites enabling speech some U.S. court has held libelous, and for whatever new moral panic is gracing the cover of Time in five years. Surely you’re not suggesting that illicit downloads of Norbit are a bigger problem than whatever outrage Joe Lieberman is fulminating against this week, are you?

This is a major concern with SOPA/PIPA, and one that supporters of the bill keep trying to brush off, because they have no good answer to these concerns other than "trust us, the US government doesn't want to censor." I'd like to believe that's true. In fact, it very likely is true for many people in the government. But the scenarios Sanchez predicts are not out of line with what we already see regularly today. It happens so frequently, in fact, that it's difficult to imagine how Congress won't expand the law to make use of this censorship apparatus.

Filed Under: censorship, framework, law, pipa, protect ip, sopa, technology