Kimberly Bonner, executive director, Center for Intellectual Property, UMUC (Moderator)
Steve Worona, director of policy and network programs, EDUCAUSE
Higher Education Opportunity Act (HEOA): What the law doesn’t say: original proposal would have had Secretary of Ed. be the copyright enforcer for the university system, identifying top DMCA-notice-getters and singling them out to review their plans to prevent illegal downloading and requiring them to implement technology-based deterrence. But number of notices has nothing to do with the amount of infringement; doesn’t vary with time of year, new business models for tracking claimed infringements, etc. Almost nothing of this proposal made it into the law. Also not in the law: requirement that every institution “thoroughly analyze its computer network” to determine whether it is being used to transmit “copyrighted works.” How long would it take to determine that? Well, you can’t not transmit copyrighted works. (This partakes of a long tradition in the content industry, demonstrated also in Greg DePriest’s presentation yesterday, to say “copyrighted” when meaning “produced by the major content industry players.” They sure like everything about the rise of copyright rights, except for the parts where other people might have copyrighted works worth thinking about.) BBC blogger interviewed the legislator, who says the language came from the MPAA.
Conference report: tech-neutral, not favoring or requiring any particular tech measures because tech changes a lot. Each institution should be able to have its own plans for complying, including those that prohibit content monitoring.
HEOA requires three things, as of July 1, 2010: (1) implement a plan to effectively combat the misuse of its networks (language was the result of a big fight, taking out “prevent” and “detect,” the former of which was impossible and the latter of which would require content monitoring); (2) use one or more technology-based deterrents; (3) periodically review plan to assess its effectiveness based on relevant assessment criteria (which doesn’t mean it has to do better each year, just that it still has to effectively combat misuse—if infringement generally goes up).
You have to offer legal alternatives; the university can determine what that means—does not mean you must contract with a provider to offer a site license; the day this was announced, Ruckus, the only provider of such a contract went out of business. iTunes does not offer site licenses, and putting Apple out of business on college campuses couldn’t have been the intent. So, legislative history means providing a list of alternatives and being sure not to block those alternatives. Educause has a list of alternatives, which the regs say can be used for compliance. Finally, you have to provide information to your community on the civil and criminal penalties for violating copyright and the policies you have. There is set language summarizing copyright law that you can use that was worked up by consensus.
Regs ID four types of tech-based deterrents, one or more of which may be sufficient. (1) Bandwidth shaping, done by almost all campuses, whether for compliance or not; (2) traffic monitoring; (3) accepting and responding to DMCA notices, done by everyone; (4) commercial product designed to block filesharing. He reiterates: one may be enough. You are likely already in compliance.
We have always done more than required, acting as if we were stored content providers when we’re not; commercial ISPs don’t do as much.
Problem: people arrive on campus having been sharing files since third grade; need education. HEOA: opportunity to take a careful look at what we’ve been doing all along, document it, put it in a set form, and show what we’ve been doing. Almost entirely self-assessed. No reporting requirements other than the general certification that we are following DoE regs that registrar fills out every year. Allows innovation of BAYOU—be aware you are uploading. Allows outsourcing of IST.
When ill-conceived laws are proposed by people without our best interests at heart, it’s still possible to do ok.
Maria Pallante, Copyright Office: This Congress has not been focused on our issues. Subcommittee on IP has been abolished, and IP is now before the full Judiciary Committee, which has a lot on its portfolio, which is why we haven’t been able to restart orphan works/§108 reform, but are meeting with them a lot and trying to tee them up. §108 is where we really need reform; the executive report is divided into areas of consensus and areas where everyone agrees there is a need but can’t agree on what to do. Libraries should be able to use private contractors to exercise their rights, for example. There should be some criterion for qualifying as a library—some public interest benefit. Etc.
Really exciting question: what can libraries do in terms of public access/site display? There were no recommendations from the §108 study group; Copyright Office’s recommendations are tied up in GBS, because we don’t want a for-profit company to be able to do something libraries can’t.
International issues: Berne’s three-step test is an issue when proposing limits/exceptions for things like mass digitization. Easier to pass when you’re dealing with public-oriented institutions. But if you’re a museum, you almost certainly need a for-profit publisher to distribute your book for you. Harder to justify an exception for them under the three-step test. Which means that the museum is going to be asked to indemnify the publisher. (I don’t think this is what the three-step test means, and I’m assuming she omitted a number of steps in her reasoning for purposes of the presentation. Among other things, there is no indication that Berne is directly applicable to a private lawsuit/private rights, so if there were an exception in the Copyright Act that applied, any problem would be the US’s and not the publisher’s or the museum’s.) So then we think about collective licensing. A mandatory license for any actor meeting the criteria (libraries at the top of the list) who wants to make a use within the specific purposes outlined (that aren’t already fair use). In Europe, they’re ahead of us, because they don’t have fair use; libraries etc. are used to licensing everything including preservation; but then again they also have more funding from the government to pay for digitization.
Possibilities: further activism to require or encourage library exceptions/limitations, starting with on what’s going on around exceptions/limitations for the visually impaired. Let libraries send special-format books across borders, to places with no exceptions of their own.
Brandon Butler, director of public policy initiatives, ARL: ACTA and Victoria Espinel’s report from this week on IP enforcement. Good and troubling news on both.
ACTA: Not from any established international forum. Negotiating about tariffs is usually secret; this was negotiated as a trade agreement and thus kept secret. This made people very nervous. Finally it was made public, assuaging some fears—does not require amendment to US law. Problem: there are a lot of things that are in US law that aren’t in ACTA that are important to the way copyright law works; ACTA only has the restrictions, not the protections for libraries, etc. Net effect is to produce something very different from US law for people elsewhere—all of the hammers for content owners and none of the shields for users.
A lot of the agreement really is about counterfeiting. Drugs etc.—if you figured out balance in the internet chapter of the agreement, or get rid of it, opposition would go away and we could get counterfeiting taken care of. Internet chapter exports statutory damages and secondary liability but without any of the US’s restrictions like fair use, which protects Google here. Elsewhere, secondary liability is very limited, and damages are usually actual damages; Google can survive losing a few cases in Belgium—weak penalties balance out lack of exceptions. ACTA changes the penalties and the liability of information organizers without adding the exceptions.
Europeans also want GI provisions, which may tank the whole thing (so raise a glass of sparkling wine to the Europeans!).
IP enforcement coordinator, Victoria Espinel, position created by the PRO-IP act. Ended up in OMB; some rightsholders felt she should be in a place with more guns, but OMB’s business is coordinating agencies so he thinks it’s the right place. Joint strategic plan, just released: encourages private action by ISPs but preserving the norms of free speech, fair process, legitimate competition, and the privacy of users. In his opinion, this means no three strikes because of the significant interference with free speech without judicial factfinding. Report endorses incentives of copyright, but also the ways in which fair use generates creativity as well—building upon others’ work is not the thing to target. The report emphasizes balance, fairness, and process.
Espinel in recent hearing recognized that there’s a lot more to IP enforcement than P2P. Counterfeit drugs and other goods are a vital focus. Also a question about the data/assumptions behind lost profits claims from industry—is a download really replacing a $30 purchase? A lot of studies presume a one-to-one substitution rate, which is ludicrous. GAO pointed out that there is no good data, even though we’re sure it’s bad. Still, Congress relies on these studies claiming hundreds of thousands of jobs lost and billions of dollars. There are further rounds on these issues coming!
Pallante: note that the Obama administration is friendlier to balance than we’ve seen in a while. It’s tiring to fight, but you do have to show up for the fight. We are really proud of our exceptions and limitations. It would be easier for American businesses if they existed other places, just from a business efficiency perspective. Complication: the way the legal regime has worked to date is treaty with minimum rights, and you’re free to go home and choose limits/exceptions. Americans are very good at showing up on Capitol Hill and asking for exceptions. What if a country doesn’t have our democracy/Constitution (First Amendment)/history of common-law development? Is ACTA the right vehicle to export limitations? Should we instead be doing more education/model laws? Is it fair to ask the trade representative to include all sorts of exceptions in a counterfeiting measure? (I would ask: Is it fair to ask the trade representative to include internet provisions in a counterfeiting measure?)
Keynote Address: William Patry, Senior Copyright Counsel, Google, Inc.
Copyright Panics and the Copyright Wars
It’s not true that those who push for ever-greater rights are pro-copyright and those who resist are anti-copyright. False binaries. Shameful rhetorical ploy to call people “copyright haters.” Personal vilification is a blood sport in DC. “You’re either with us or you’re against us.” There are heroes and villains and nothing in between. It’s ok to question the mission.
Canada recently introduced a copyright reform bill, to much praise and some criticism on anticircumvention rights, which don’t have exceptions for things that are authorized in the analog world like format-shifting and time-shifting. In a speech defending this provision, a minister of commerce said that opponents don’t believe in copyright at all, pretend to be experts but find any excuse to drum up fear, mislead, misdirect, push people in the wrong direction and undermine a comprehensive effort to get things right. Technical, nonsensical, fearmongering opposition. (Clearly referring to Michael Geist, though Patry did not name him, nor did he even name Canada.) Opponents become archetypal Other, strange people not just unlike us but dangerously so. Best thing to do: confront them, defeat them.
Wars need weapons: courts, legislatures, international agreements, even language. The first casualty, as in all wars, is truth. Another casualty: loss of faith in our laws. We want them to be fair, fit to purpose, and accountable to reality. People don’t respect and won’t follow laws that conflict with the reality of their own lives. We also want effective laws. Tom Tyler’s work: why do people obey law? He’s written on compliance with copyright law specifically. Calls into question the idea that harsher remedies will lead to more compliance. The threat of being caught and punished is not a key driver of compliance. You would have to have an amazing number of police, high certainty of punishment, and high severity of punishment—intolerable in a democratic society. China has executed a number of people for copyright infringement; some copyright owners applauded that, but it’s not going to happen here (and, I might note, has not necessarily done what copyright owners hoped in China, either).
Effectiveness of IP laws depends on voluntary cooperation. So how do you get it? When he was drafting legislation, he’s embarrassed to admit, he didn’t think about that. What’s the difference between 5 years in jail and 10 for criminal infringement?
First, figure out what the public thinks is fair. You don’t want to pass laws based on a survey or on focus groups. But substantial divergence from fairness means noncompliance. Even show suits against a few violators won’t work in those circumstances.
Second, procedural legitimacy. People want to believe that laws were passed in a fair way. Those who wanted a say were able to have it before a decision was made, and decisionmakers genuinely listened and considered. Then, people will generally follow the law even if they disagree, though of course there will still be lawbreakers who can legitimately be punished. Note the controversy around ACTA’s non-transparent nature. No one is well-served by international agreements regarded as illegitimate.
Law is not an answer to business problems. A disturbingly high percentage of copyright law disputes are in fact business problems. We’re fooling ourselves (and have been for the last 30 years) when we think that we can change our laws in ways that lead to better business solutions. A faith-based, morality-focused approach to copyright won’t work. Policymakers have accepted the idea that we create our own reality: extending copyright term 20 years will lead to the creation of more works. That’s just demonstrably false, and yet we treated it as if we were true. Saying that you need to make out the case for more rights doesn’t mean you can’t do so, just means you have to make your case like everyone else.
He heard someone say that giving money to corporations must mean that they’d create more: but that’s ridiculous. Corporations have a duty to maximize money, not creativity. Even if all you do is make movies, you’ll be deciding on what will give you the most money over a very short term. It’s not 95 years. That sort of belief, that if you simply throw money at corporations, you’ll get a better result, is pure faith.
Morality and language in the faith-based approach: showed a clip of Jack Valenti in a talk at Duke from 2003, a great lobbyist. Said the same thing behind closed doors as he did in public. His talks were efforts to create moral panics: exigency that could only be dealt with by giving his clients what they wanted. This is what Patry wants to analyze and advocate against.
In response to questions, Patry expressed hope for recognition of the utility of formalities—you could require some sort of formality before enhanced damages/damages beyond reasonable royalty would be available. Another change: realization that collective administration of rights is the only way forward for various genres, most clearly photographers and musicians. Copyright has always been equated with control, spurring top-down forms of regulation. And the assumption has been that control equals money, so that if you take away control you take away money (and if you have control you will get money). But you can’t control any more; a control focus in copyright will not work. Should skip straight to the money. Those people who love to create will do so anyway; if you care about the money, skip the nonenforceable exclusive right and focus on what reality is digitally: the need to get people paid. Collective administration of rights is probably the only efficient way to do that.
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