Wednesday, June 28, 2017

What I said to the USTR

Thanks for the opportunity to participate.  I’m here on behalf of the Organization for Transformative Works, a nonprofit which has over 770,000 registered users who have created more than a million works, and our website receives over 115 million page views per week.  Our users, who are the creators of the next generation and today, come from all over, including substantial numbers in the US, Canada, and Mexico, and we have a strong interest in preserving a balanced copyright regime.

Copyright’s limitations and exceptions are vital to creative practices and to creators as well as to educators, journalists, and ordinary citizens.  Any renegotiation should ensure flexible limitations and exceptions, including the highly successful model of American fair use and Canadian protections for user-generated content and educational uses.

It’s also important not to repeat the SOPA/PIPA debacle through the trade route.  SOPA and PIPA tried to change the online copyright rules in ways that would have harmed America’s advantage in internet innovation; the ideas don’t get better when suggested as trade policy.  Negotiations shouldn’t be based on the prospect of tampering with internet service provider protections that have proven so successful for American companies operating worldwide.  The Section 512 safe harbors for internet service providers who respond expeditiously to notices of claimed infringement have enabled American internet companies to thrive and remain innovative.  Section 512 and Section 230 of the Communications Decency Act, which provides a broader safe harbor for non-intellectual property related claims, are far from perfect.  But that just makes them like democracy—the worst possible regime except for all the alternatives that have been tried or proposed.  Proposals in some of the submissions to change the law to require filtering after a notice of infringement would shut down huge sections of the internet, and piracy would still continue as it always does. 

Similarly, requests to require more countries to create quasi-copyright anticircumvention rights for digital locks hamper innovation and would make American products less attractive—why would a farmer buy a John Deere tractor when he knows he won’t be able to repair it himself because of the digital locks that only Deere can release?  The Copyright Office only last week proposed loosening the rules on anticircumvention measures.  Imposing rules on other countries we already know aren’t working well would be a mistake.  At a bare minimum, anticircumvention provisions should require a nexus to copyright infringement and exceptions to anticircumvention rules should be explicit and flexible, like fair use.

Likewise, we oppose negotiating with Canada to extend its domestic copyright term or restrict its limitations and exceptions and with Mexico, with its very different legal system, to impose significant statutory damages in domestic infringement cases—when statutory damages are already desperately in need of reform in the US.  Balanced copyright policy is an important goal that shouldn’t be sacrificed in any negotiations.


  1. Thanks for this important contribution. On the anticircumvention point, I have a paper in a symposium honoring Peggy Radin in the Cleveland State Law Review called "Exporting DMCA Lockouts," which argues that strictly limiting DMCA anti-circumvention exceptions will only harm us in the end: