CLS and IP part 3

Panel 3: Politics and the Public in IP and Info Law Policy Making

​Michael Burstein, Assistant Professor, Benjamin N. Cardozo School of Law

1990s: powerful actors wrote copyright laws as they wished. Tech companies arrived on the scene with hands in multiple issues, distinct from telecom/cable providers and from Hollywood. Maturation of public interest communities: Public Knowledge, EFF as forces.  Rise of grassroots/netroots that tends to be more organized than public interest/grassroots movements that worked against term extension/in telecom in the 1990s.

Range of issues has also changed; issues moving out of silos. Interested in tech? You can’t follow just telecom, or just copyright.  Cybersecurity; free expression; entrepreneurial policy/funding concerns—end up talking about securities regulation and crowdfunding.

Number of forums in which issues are debated and policies made have expanded. Private self-help deeply enmeshed in public policies; treaty negotiations; new regulatory actors, including the Copyright Office which now is taking an active role in policymaking.

​Derek Khanna, Visiting Fellow, Information Society Project at Yale Law School

Copyright isn’t coherent now.  It’s the result of lobbyists who’ve succeeded in perverting the law and the way we frame issues relating to copyright.  Success in doing so shouldn’t be confused with constitutional fidelity—invoking natural rights or constitutional rights doesn’t make copyright now consistent with the Founders. Myth: copyright is free market capitalism at work, not a gov’t monopoly. Myth: copyright leads to innovation; truth is that too much and not enough are both bad, and we have too much.  Wanted to reform statutory damages, reform fair use, deal with false DMCA takedowns, and limit the copyright term.  After the memo came out, endorsed by major conservative organizations, but then taken down.  Some industry lobbyists on the right called Khanna a Marxist for wanting more economic growth.

Strategy: reform copyright with small victories. This will take a generation and a movement. But we can’t just stay on the defensive, watching for the next SOPA. If we slumber, they’ll sneak provisions into other laws. Already happening—using ICE to go after websites; using treaties like TPP.  Convinced payment processors to shut off funding. Much of SOPA has been implemented without codification in law. Current laws are nearly as nefarious as SOPA would’ve been. Progress requires bipartisan support, so we need strategic choices. Focus on areas of common interest.  And on asymmetrical warfare. 

First battle: cellphone unlocking. Major misstep by other side: Jan. 26, became illegal for individuals to unlock their own phones, using a SIM card from another carrier. Pro-free market activity that exists in every other market in the world.  AT&T & Verizon asked for it to be illegal, but over 100 wireless carriers on the other side were ignored. 32 million Americans potentially became felons.  Well, will anyone be arrested? Laws that are seldom enforced but could be broadly enforced are the most nefarious.  White House petition; reached out to members of Congress, who didn’t care. But when the White House reversed previous position and endorsed unlocking, FCC announced an investigation. 6 bills introduced and 2 pending. If you take an isolated, asymmetrical battle you can often proceed in positive reforms.

Next battle: accessibility tech for the blind and deaf to deal with media.  Existing exception requires blind person to develop code herself to closed caption a movie. The idea this has anything to do with piracy is absurd. We can create a coalition of the willing (!).

​Jessica Litman, John F. Nickoll Professor of Law, University of Michigan Law School

Congress has essentially delegated lawmaking to copyright lobbyists, for more than 100 years. Pattern of lobbyists getting together, excluding people at whose expense they hope to change the law.  If targets find out, they show up and can block the bill.  CTEA was opposed by bars and restaurants who didn’t like paying ASCAP; this delayed term extension for several years until the bill added an exception to allow bars to play music; this makes us violate TRIPS, but that was the price bars were able to exact.

Copyright lobbyists never seem to invite targets to negotiate/take interests into account, which is how to block the bills.  Why? Copyright lawyers learned from their own battles that there’s a real strategic advantage in being able to design the initial bill, which you can do with targets out of the room.  DMCA is a combination of several different bills. One piece—WIPO treaties implementation –is 1201 anticircumvention provision. Another part is ISP safe harbor, 512, initially drafted by phone companies and ISPs. Copyright owner lobbyists decided they didn’t get a good bargain with notice & takedown, and people who negotiated 1201 exceptions have decided they’re all useless because they’re so narrow. So the sense is: if you can make the architecture, you can narrow the damage from other interests.

Some copyright lobbyists have views on who is and isn’t a legitimate participant in the bargaining. In the aftermath of SOPA, Paramount sent out a corporate VP to talk to law students all over the country. We learned that the story the studios were telling each other about what happened to SOPA was that Darth Google whipped people into a frenzy by telling them lies.  Students asked questions about SOPA provisions; there was a secret manager’s amendment that didn’t have some of those provisions, and Paramount felt that it was improper for the public to respond to the only bill text that was public.  Don’t yet regard audiences as people with right to have views, nor Google as an entity with a right to sit at the table.  Public Knowledge is at the table, but not necessarily heard.

Pessimistic story: the pendulum has swung toward public involvement in IP, but it will shortly swing right back. Copyright lobbyists control the process & realize that ordinary people may make trouble, so they have strategies & tools to damp it. Controlling the initial draft/limiting exceptions; maintain control and secrecy by going overseas and making this a treaty. If it’s a treaty, no matter how sympathetic the Administration has been elsewhere, it’s adamant that we have no right to know what we’re signing away in treaties.

Optimistic: politicians are beginning to pay attention to the fact that citizens are paying attention.  PK and EFF are figuring out ways to harness the attention.  Cellphone unlocking and open access to federally funded research are successes—at least the White House thinks ordinary people are legit voices. But what Litman learned with the DMCA is that lawmaking is a job done better by professionals. Amateurs screw it up.  We got played; they whooped us.

Rick Whitt, Vice President and Global Head of Public Policy and Government Relations, Motorola Mobility, Inc.

Zoe Lofgren said: SOPA went from inevitable to unthinkable in a single day. A success that will be difficult to replicate.  Crystallized concerns; hit at the right moment, when White House had its own second thoughts; required a lot of organization; could lose novelty and impact over time. 

Internet engineers carefully pointed out issues with SOPA, including how it would harm the DNS and harm substantial innocent uses; sent letters to Congress that went unread. There were a number of countermeasures that could be employed by people getting around the mandate—both overbroad and underbroad.  Those voices weren’t heard, and even today the lobbyists on the other side are trying to “harness the users”—maybe tell our side of the story before every movie starts. Still no meeting of the minds.

Sherwin Siy, Vice President of Legal Affairs, Public Knowledge

Don’t disparage the engineers! That primed a number of members’ offices; members didn’t know much about the issues, and might have been sold on cosponsorship by being approached by others who said this was an uncontroversial enforcement bill.  Maybe the letters didn’t make them challenge party leadership, but that was enough to get some idea that there was an actual controversy with at least one other side. Public protest had more legitimacy because of the groundwork.  Not just an elaborate digital prank.  (Build a Death Star, anyone?)

There isn’t as much of a left/right divide, but different approaches.  Silicon Valley v. Hollywood—a lot of members do see that as real and will look at “both sides,” though publishers, libraries, etc. don’t make it into that consideration.

Maria Pallante’s testimony about the next great copyright act: seemed to have nostalgia for the past in which scholars debated fine points with people involved in repeat transactions with IP—a collegial environment. That room in the 1950s, 60s, 70s was a collusive atmosphere. A club with implicit rules and norms as well as explicit rules that ended up in the statute.  Example: first sale, where one argument against the ultimate result in Kirtsaeng was “oh, we’ll never sue Toys for Tots for reselling a foreign made work.” But some individual would get sued (Kirtsaeng!), because small entities and individual consumers are distributors/competitors of copyright owners. New players—consumers, users, hobbyists—will be sued because enforcement is easier than ever in terms of which infringing acts are visible because they’re networked. People aren’t swapping mix cassettes or CDs, but online.

​​These are the assumptions baked into the heads of legislators, and these are the attitudes we need to challenge. 

Copyright reform is coming.  Register is saying it’s time for a fresh look. We will be addressing not just safe harbors and circumvention, but possibly 106 generally. Our system for digital audio public performance being wildly different from nondigital is a strange artifact. Fundamental questions coming up. 

Hear a lot in DC: don’t open up these issues. If we open it up, we might lose ground. If you say that, you’re saying copyright law is as good now as it will ever be.

Q: how much does concentration in telecom and content create a problem? Copyright alert system exists because a few stakeholders could agree to essentially private law.

Siy: definitely a big deal.  (He notes: Siy’s boss is on the advisory board of the copyright alert system.)  It’s not just the alert system, which could exist with plenty of competitors; it has teeth because there’s not much competition.

Litman: As a historical matter, Congress rather unreflectively appears not to have believed that the copyright statute in fact affected individual viewers and readers as recently as the early 1990s.  Why?  Unclear.  Seemed to be general consensus, also shared by the Copyright Office, that the copyright law didn’t make individual personal copying illegal. There is still some political salience to the idea of listener’s rights, consumer’s rights—the first sale story is an effective one.  A lot of members of Congress may be willing to respond to it. Some DMCA pushback came from questions and stories about people using Bookmobiles, and whether this would still be legal. To the extent this is a problem for Joe Constituent, that’s one wedge that might be effective. Congress never sat down and said “let’s make every citizen liable for thousands of dollars in statutory damages.”

Khanna: Important for people to analyze issues of a law that makes everything illegal, even if unenforced.  For innovation, it’s a dangerous threat. Aereo: not many are willing to take the risk of huge multiples of statutory damages.

Frischmann: from a CLS perspective, isn’t the ITU a good thing?  US hegemony on internet governance through ICANN is exactly what’s being challenged by lots of countries that don’t have a say?

Whitt: there are some good arguments from countries concerned that the US through its contract with ICANN and general influence has too much sway and needs to be pulled back. The problem is that the ITU is the wrong kind of instrument—a government-to-gov’t treaty organization; private citizens can’t become members; deliberations aren’t public; third parties typically not invited; corporations can become members, but not with full access.

Polycentric governance gives the internet its great power—volunteers (though many come from corporation) who propose and debate standards.  End-to-end and openness were under attack at the ITU.

Burstein: Litman said professionals are needed; Khanna says we need winnable fights.  For those of us who inhabit the academy, is what we write relevant?  What more can we do to make what we do more relevant to the policy process?

Whitt: the garbage can of politics—different elements mix together in the political stream. (1) Identifying problems—what lots of members of Congress like to do. (2) Identify what solution might look like. (3) Actual political process then of getting solution enacted and implemented. Need all three to be successful.  Problem identification occurs sporadically, through policy windows/big event or slow steady movement of people. Then you get competition among solutions. Members of Congress often do want to understand and try to come up with good solutions. That’s when academia can be translated into solutions.  Engage people from the bottom up as advocates.

Khanna: legal academic can be useful when people throw out silly counterarguments taken as gospel.  Response to his memo from content industry was that he was a Marxist and that copyright was a natural right.  Tracing the history of natural rights argument is important for policy. 

Thinking that piracy is bad and that therefore current copyright saves jobs is like thinking that terrorism is bad and that therefore the TSA is the best way to protect us on airplanes.  (This line apparently kills among conservative audiences.)  Talking about inhibiting innovation has broad credence on the right, and support on the right is needed.  Accessibility for the blind and deaf; parents dealing with porn—these are useful.

Siy: Staffers don’t read law review articles. Five pages is too long. They have time for one page. They have a lot on their plates.  That doesn’t mean the law reviews are useless, because they back shorter pieces that can come out of the academy or elsewhere that provide the necessary background and actual research that gives those arguments credence.

Litman: as someone with no Hill experience, what you can do, at least once you have tenure, is infect folks with the virus of your ideas so they don’t know where it comes from.

Siy: proposals come from offices that have concepts whose origins they don’t know (does anyone? Sorry, had to say it).

Q: What will the industry do in response to a populist uprising now that they’ve seen it, for example Aereo?

Siy: Someone trying to fix Aereo wouldn’t cause an uprising; not enough people directly affected, so the dynamics are different.

Khanna: DirecTV and others may really get involved in using the tech, and if they’re using that for retransmission you may have a sizeable amount of lobbying power on the other side.

Siy: there are so many things broken in public performance and retransmission consent, not just in copyright but in telecom, that someone trying to act is going to trigger a bunch of controversy. Unlikely to slam through an Aereo fix.

Litman: cheaper to buy the company and shut it down.

Q: will we see anything like the Pirate Party in Europe?

Khanna: Unlocking in particular, he wanted to do civil disobedience; people were afraid of being arrested. IP community isn’t as acclimated to the tools of civil disobedience as other communities of the past.

Litman: OTW started as civil disobedience but succeeded in nudging the law. It decided to host fanworks despite the risk, even though it was a community committed to continuing its activities—weren’t necessarily taking more risk except by regularizing their efforts and their audience. Also, academics all over the world are putting textbooks up on servers so students won’t have to pay; students ignoring mandatory education about how they shouldn’t get music from bittorrent.  (I’d add professors in the US using courseware sites.)

Siy: Carl Malamud digitizing codes in which people claim copyright, putting them up online; DC backed down from copyright claim, and he didn’t really want to get sued, but he thought it was important enough to do.  Civil disobedience isn’t the same as wanting a free album.  Thoreau: he was in prison for refusing to pay taxes to support the Mexican War. Connection between the law he violated and his political objective wasn’t as tight as we ordinarily want—someone with a generalized grievance against the government generally shouldn’t just stop paying taxes.

Whitt: civil disobedience is about posting/speaking online, not necessarily getting arrested in the Library of Congress. If you want to make a point, though, chaining yourself to the LoC is more understandable to those with low tech savvy.  SOPA/PIPA was largely online, though.

Q: Smith was reelected with 63% despite proposing SOPA.

Whitt: Texas; safe district; other issues resonated more with people in his own district.

Siy: unless it’s a particularly nerdy district, copyright is unlikely to be an election issue. Staffers ask where callers are from.  This is the job: represent the citizens of the district.

Khanna: We need to learn the DC rules, and then hack the process.  We need to primary bad candidates. Keep ammunition going after the White House petition; AT&T & Verizon created an astroturf campaign saying “don’t take away my subsidized phone”; “this will lead to more phones being stolen.”  Specious, but we need a way to keep our campaign going with letter-writing, drafting candidates to run for office. Innovation caucus.