Public Knowledge’s tepid proposals for copyright “reform”

by Stephan Kinsella on February 29, 2012

Patent and copyright should be abolished, of course–and the sooner the better. They are both–especially copyright–threats to human freedom and prosperity.1 As I noted in Patent Reform is Here! O Joy!, incremental reform would be welcome too–as long as it’s significant, and unambiguously positive. And, I would add: non-trivial, i.e. significant, substantial, meaningful.

I laid out some suggested incremental patent and copyright reforms in Radical Patent Reform Is Not on the Way and How to Improve Patent, Copyright, and Trademark Law. In the case of patents, significant reform would include things like:

  • Reducing the Patent Term
  • Removing Patent Injunctions/Providing Compulsory Royalties
  • Adding a Royalty Cap/Safe Harbor
  • Reducing the Scope of Patentable Subject Matter
  • Providing for Prior-Use and Independent-Inventor Defenses
Recent patent reform, however, made almost no appreciable improvement, with the exception of a broadened prior-use defense (see The American Invents Act and Patent Reform: The Good, the Meh, and the Ugly).
Real copyright reform would include:
  • Radically reduce the term, from life plus 70 years to, say, 10 years
  • Remove software from copyright coverage (it’s functional, not expressive)
  • Require active registration and periodic re-registration (for a modest fee) and copyright notice to maintain copyright (today it is automatic, and it is often impossible to determine, much less locate, the owner), or otherwise make it easier to use “orphaned works
  • Provide an easy way to dedicate works to the public domain — to abandon the copyright the state grants authors
  • Eliminate manifestly unjust provisions of the Digital Millennium Copyright Act (DMCA), such as its criminalization of technology that can be used to circumvent digital protection systems2
  • Expand the “fair use” defense and clarify it to remove ambiguity
  • Provide that incidental use (e.g., buildings or sculptures appearing in the background of films) is fair use
  • Reduce statutory damages
  • Make the losing copyright-plaintiff pay the victim’s fees (see my explanation in  “This is Why I Pirate”: How A Groundless Copyright Threat Destroyed A Young Film Student’s Dreams and Career)

Now, according to an ars technica report, Why wait? Six ways that Congress could fix copyright, now, “Public Knowledge (PK for short)  has released an Internet Blueprint—six bills that the group says could “help make the internet a better place for everyone” and that “Congress could pass today.”

Let’s take a look at these six proposals, to see if any of them are non-trivial and unambiguous improvements to the current situation (none of them will “fix” copyright law; only abolition will do this). I’ll quote the ars technica summary for each:

Shorten copyright terms

The current copyright protection time window is quite large: life of the creator plus a whopping 70 years (or 95 years total for corporate authorship). It’s hard to believe that when the Republic was young, copyright lasted 14 years, renewable by another 14.

“Continually expanding the term of copyright comes at a cost,” the new Blueprint contends. “By giving an author a monopoly on an expression, it prevents other people from building on that expression to create new works.”

The Public Knowledge reform proposal isn’t particularly radical, though—it would reduce most copyright terms to life of the author plus 50 years, or “a flat 50 years if the author was an employee.”

This is trivial. Going from life+70 to life+50 will do little to solve the copyright problem. And it’s probably illegal anyway under the Berne Convention. We need to get out of the Berne Convention and cut terms back to the original 14+14 at least.

Stop abuses of the DMCA

The Digital Millennium Copyright Act allows copyright holders and their representatives to file takedown notices against sites that they claim are hosting infringing content. The original content poster can file a counter-notice, but the content still has to stay down for ten days.

The problem, PK says, is that right now there isn’t much risk in sending a site a bogus takedown notice. “When it comes to takedown notices, it often seems like alleged infringers are assumed guilty until proven innocent,” the Blueprint contends.

The proposed fix: Harmed defendants should be able to ask for damages from $200 to $2,500. A judge should be able to boost that upper limit forfeit by a factor of ten if she finds that the takedown demander was lying.

Greater penalties would be better–or better yet, get rid of the DMCA’s takedown provisions altogether–but this is a minor change I would welcome.

Cracking DRM

At present, if you deploy some kind of device to cut through the DRM on a DVD, you are a law breaker, even if you plan to utilize the copyrighted content legally. Public Knowledge has been calling on Congress to address this inconsistency for quite some time (as has Ars Technica’s Tim Lee), allowing users to bypass digital locks if they’re doing so for non-infringing purposes.

“That means that only lawful uses—such as uses with the copyright holder’s permission, fair uses, or other uses under limitations and exceptions to copyright law—could legally circumvent DRM under these changes,” PK’s recommendation observes. The odds of this happening are slim to none; despite telling everyone who will listen that all of their works are being shared on the Internet, big rightsholders argue that making circumvention software legal in any scenario will lead to even more pirating of their works.

Fairly minor; but, okay, a slight improvement.

Stop copyright bullying

Some copyright lawsuits aren’t about copyright infringement, PK warns. They’re really about targeting speech that the plaintiff doesn’t like. So the group wants lawmakers to create a special procedure, a “motion to strike,” that would allow defendants to ask a judge to consider this possibility if the suit poses “a significant harmful effect on free expression.”

The motion would suspend the expensive discovery phase of a trial until the judge makes her call on the motion. Public Knowledge’s proposed legislation would also legalize “transient” copies.

“A simple fact of digital devices is that they necessarily make copies of the things that they process,” the Blueprint points out. “This technicality creates liability where there should be none—for instance, it should be uncontroversial that a CD player with a buffer to prevent skipping shouldn’t need a license in order to play a CD.”

If you have to be in court already to ask a judge to consider this, then this is a remedy that won’t do much good, since most people can’t afford to litigate and will cave early. So this does little to stop the chilling effect on free speech imposed by copyright. Further, all it does is restate the already-accepted “tension” between copyright and freedom of speech. Judges are already aware of this tension, and have to engage in a “balancing” already. The problem is that copyright and free speech are incompatible. You are going to have a “tension” and a need to balance, so long as both incompatible provisions are considered to be the law. (For more on this see Copyright is UnconstitutionalSupreme Court Engages in Real Copyright PiracyWilliam Patry on How to Fix Copyright, Should Copyright Be Allowed to Override Speech Rights?)

Make “fair use” fairer

You might believe that you have deployed copyrighted content for some fair use, but if a judge disagrees, you could find yourself on the hook for up to $150,000 in statutory damages per infringing use. Public Knowledge wants Congress to pass an amendment that would eliminate statutory fines if a defendant shows that he thought he had reasonable grounds for believing his use of a work was fair (the plaintiff could still sue for actual damages caused by the use).

“The fair use doctrine in copyright is designed to allow the public to make use of works without permission of the original author,” the Blueprint notes. “The risk of a lawsuit, however, often hinders people from taking advantage of all that fair use has to offer.”

I don’t see this provision helping that much, but any expansion or clarify of the fair use defense is to be welcome.

[Make Copyright-related Trade Agreement Negotiations Public]

Finally, Public Knowledge wants legislation requiring the US Trade Representative to publicly disclose any copyright or intellectual property-related proposals it makes to drafts of trade agreements. And any USTR advisory groups, which general include plenty of people from the “industry,” should include “representatives of the public interest unaffiliated with industry.”

Once you register at the Internet Blueprint site you can vote on these proposals, and submit your own.

“Our goal is for people and organizations to propose their own ideas that can also be turned into draft legislation on other topics that will evolve into a positive agenda for Internet change,” says PK’s Michael Weinberg.

I think this one is important: trade agreements negotiated in secret that contain copyright enhancment measures, like the already-signed ACTA or the looming TPP, are a huge concern.

But these tepid proposals for reform avoid almost any real reform. In there proposals there is:

  • No proposal to radically reduce the copyright term
  • No proposal to remove software from copyright coverage (it’s functional, not expressive)
  • No solution to the “orphaned works” problem: no requirement for active registration
  • No way to get rid of copyright or to dedicate works to the public domain
  • No proposal to totally eliminate the provisions of the DMCA that criminalize technology that can be used to circumvent digital protection systems
  • No proposal to provide that incidental use (e.g., buildings or sculptures appearing in the background of films) is fair use
  • No proposal to reduce statutory damages
  • No proposal to make the losing copyright-plaintiff pay the victim’s fees

My overall assessment: meh. You can do better. Easily.

  1. See Patent vs. Copyright: Which is Worse?Where does IP Rank Among the Worst State Laws?The U.N. Threat to Internet Freedom; Masnick on the Horrible PROTECT IP Act: The Coming IPolice StateThe Ominous PROTECT IP Act and the End of Internet Freedom. For examples of copyright censorship, see Libraries: Prepare to burn foreign books, courtesy copyright lawThe Patent, Copyright, Trademark, and Trade Secret Horror Files); Paramount Trying to Ban “Godfather” Sequels with CopyrightCopyright Censorship versus Free Speech and Human Rights; Excessive Fines and the Eighth Amendment. See also  Patent Trolls Cost The Economy Half A Trillion Dollars since 1990Yet Another Study Finds Patents Do Not Encourage InnovationEU newsflash: patents are anticompetitive!Intellectual Property Advocates Hate CompetitionIP Rights as Monopolistic Grants to Overcome the Public Goods Problem; also Samsung, Apple continue patent disputeApple accuses Motorola, Samsung of monopolizing markets with patents–or, you’ve got to be kidding meWe Hope Apple Wins the Patent WarsAndroid Patent Trouble Worsens: Motorola Considers Collecting IP RoyaltiesApple vs. Microsoft: Which Benefits more from Intellectual Property?EU: Apple-Samsung row could be stifling competitionEU Injects Itself Into Apple-Samsung Patent War. []
  2. As explained here: “[W]hile it may well be fair use for an individual consumer to store a backup copy of a personally owned DVD on that individual’s computer, a federal law has nonetheless made it illegal to manufacture or traffic in a device or tool that permits a consumer to make such copies.” Chew on that one. It reminds one of the proposed thought crime of leaving the US with the intention to use drugs  in another country where they are legal… []
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