Next Great Copyright Act Conference, reform

Modes and Venues for Reform

Moderator: Nancy E. Weiss, U.S. Institute of Museum and Library Services (IMLS)

Troy Dow, The Walt Disney Company

Need to ensure meaningful and not merely symbolic protection to authors as well as users; otherwise it’s not a copyright law at all. Goodlatte announced review: not necessarily reform. Proceeding section by section through the code. Easy to kill legislation, hard to get something done. All the more true in increasingly partisan environment, though copyright is mainly nonpartisan. Rules of Republican caucus place term limits on committee chairman; this colors the ambition/agenda of any given committee and weighs against longer term projects.  Too often there’s a focus on users without regard for authors, or authors without regard for users. 

Concerned about difficulty of finding a proposal not immediately labeled “son of SOPA.”  Two weeks ago 25 tech companies wrote to chair of finance committee, urging opposition to trade authority—anti-TPP.  Said it was first step to internet censorship/pressures ISPs to monitor users.  Democracy will cease to exist. You might wonder what’s so cataclysmic: the claim was that takedown and ask questions later will chill innovation. This is reference to the same DMCA safe harbor provisions described yesterday as foundation of internet as we know it, with calls to leave it alone. So which is it?  (RT: Excluded middle?) EFF says that the TPP insists on notice and takedown, while intermediaries ought to just pass on notices. We can debate approach, but 512 is notice and takedown and EFF is still calling for opposition to TPP to prevent slow erosion of rights on the internet.

Dep’t of Commerce’s Green Paper was balanced stock-taking exercise with a number of recommendations, and no sooner had it been released than White House received a Stop SOPA 2013 petition, reference to administration’s continued support of provision that would close a gap in criminal provisions that don’t provide for criminal penalties for streaming.  Fear of revived SOPA; this isn’t true but it’s in the petition and now has enough signatures for a White House response.  So has a Stop SOPA 2104 petition, in response to the DMCA stakeholder meeting.

We need to have a discussion where we discuss shared objectives.  Not suggesting that this stream flows in only one direction. Needs no reminder about Jack Valenti. Not assigning blame, but we need to have a conversation.  (If I were a suspicious person, I might hear this as: you put down your biggest weapon, which is the occasional ability to mobilize the public, and we will … continue to not be popular with the public, though we will keep our checkbooks.  Sounds fair, right?)

Our experience with UGC principles: sat down (with whom? Hint: big content, big ISPs, not so much “users”) and agree on set of principles.  Shared set of common goals.  We all agreed: ideally, we’d support a robust, legitimate UGC environment free from infringement. If there were commercially reasonable, technologically effective means to achieve that, we would work together to implement it. Foundation for discussions that led to UGC principles. We wouldn’t have gotten to the end if we hadn’t put ourselves in each other’s shoes.  (And will you stand in my shoes if I agree to stand in yours?)

Judge Mary Margaret McKeown, Ninth Circuit Court of Appeals

Dance between Congress and courts goes way back. Courts sometimes have stepped in first in looking at new tech, and Congress followed: Justice Holmes, 1911, Court extended copyright to motion pictures.  Piano roll case: not like sheet music, reasoning by analogy, metaphor, and example. Congress fixed that.  Fast forward to late 60s/early 70s. Court wrote about “drastic technological change”: retransmission of TV broadcast without permission.  Sound familiar?  Courts found no infringement, but Congress quickly blunted that ruling with compulsory licensing.

In most of the early cases, courts wring their hands about the tech, make a decision, then almost invite Congress to step in if they’re wrong.  Doesn’t see that much in recent years—there’s always handwringing about tech change and judicial uncertainty, but you don’t see courts asking Congress for help. Courts are letting chips fall where they may. Doesn’t think it’s because Congress doesn’t know how to step in when it wants to—Lily Ledbetter case about calculating the statute of limitations, Congress quickly responded to Justice Ginsburg’s eloquent dissent. But perhaps as Lessig intimated, copyright doesn’t have the same policy appeal as other social issues.

When Congress leads: 1976 Act has been amended/supplemented at a staggering rate. Reflects modern industrial policy, set out in alphabet soup terms (NET Act, DMCA, SOPA/PIPA). Congress has stepped out incrementally in many ways.  Stepped out in terms of congressional authority—Eldred; Golan.  But there have been very few SCt cases on copyright, aside from Eldred and Golan, which are more about constitutional authority. The remainder is very few cases that tell courts how copyright ought to be interpreted—Kirtsaeng is an exception. Despite tech change and circuit splits, little guidance. Action has been in the “inferior” courts.

Courts as a venue for the next act. Courts will remain in the vanguard because inevitably there will be statutory, contractual, and other disputes needing resolution.  There is a danger of courts learning tech outside the record; we need instruction from lawyers. Deal with change through metaphors; also look at privacy and 4^th Amendment cases, because many more of those cases involve tech.  At some point you will have a post-Napster judiciary.

Courts have a skewed docket. Many key issues are resolved by business deals, settlement, or otherwise. A single technology may be at issue (Betamax, Grokster, Aereo), but we decide and lawyers/subsequent courts are left to extrapolate.  Fair use will continue to dominate some legal battles.  We need not the judgment of Solomon but the dexterity of Houdini.

Jennifer Rothman, Loyola Law School, Los Angeles

Four types of private ordering: licenses, fair use guidelines, alternative copyright regimes, and private agreements. 

Clearance culture/reliance on risk avoidance. Many corporate counsel always recommend licensing; even EFF says that if you’re risk averse. Can make sense in individual cases even with good fair use defenses, but Rothman is concerned that courts incorporate these risk averse customs into their legal analysis—example from Ringgold v. BET, where Ringgold’s art appeared for less than 30 seconds, never as a focal point, and court found no fair use in large part because of industry custom to license background scenery. §107 should make explicit that the existence of licensing markets should not weigh against fair use, correcting an error of relying on clearance culture.

Formalized trade practices/agreements.  Classroom Guidelines: Publishers and authors sat down, with minimal representation of universities, teachers, no voice for students. Universities/libraries all opposed the guidelines, but they were put in legislative history, and courts subsequently looked at them for fairness—violation of guidelines which were supposed to be floors/safe harbors but courts treated them as ceilings. Need more representative group, and make clear that these are safe harbors whose violation doesn’t reflect negatively on anyone claiming fair use.  Also, more informal guidelines developed in valiant effort to give use communities guidance and encouragement to assert fair use: many out of Center for Social Media. Helpful to many who are lost and ideally insulating them from willful infringement. Despite the positive value, there are reasons to discourage codification/judicial reliance on them as the standard of fair use.  Many statements were developed without particularly representative groups, like large content providers, and sometimes overclaim fair use; other times underclaim fair use (e.g., statements about photos; suggesting that one can’t edit to the beat or spill over in a documentary, or fashion a documentary about a copyrighted work). Legislation could clarify that private guidelines don’t affect the scope of fair use; consider broader educational guidelines.

Regimes that overlay copyright. Creative Commons: greater freedom than the default. David Byrne; White House; Al Jazeera have all used them. Should largely not interfere with them in legislative process, but some areas for intervention. Attribution is ubiquitous desire, now standard. This preference for attribution is across the board and users want to do it.  Shouldn’t make failure to attribute dispositive, but put thumb on the scale in factor two or factor three.  Another potential legislative reform: what happens when a private license is violated? Some courts might view violation as weighing against fair use; particularly concerned about this with ShareAlike license, where commercial documentarians might want to use a work—should clarify that violation of license should also not affect fair use.

Use of contracts to go beyond copyright/fair use.  Private agreements about technology, e.g. Content ID used to take down works despite fair use.  Build into legislation restriction on ability to limit through contract or tech the ability to assert fair use. Preemption might also be an area to address this. Fair use isn’t an evil to be tolerated. Copyright should continue to provide breathing room, perhaps codify some more safe harbors; private ordering has often been generated by uncertainty—more safe harbors for news, documentaries, UGC would help.

Legislation could address downside of private ordering/clearance culture, and push back against obsolescence of fair use in the face of contracts/tech.

Plan B: if courts consider customs in fair use, customs should be certain and not disputed; representative of different groups; not create slippery slopes (filesharing); motivated by efforts to establish appropriate boundaries (not by fear).

Pamela Samuelson, UC Berkeley School of Law, BCLT

Some things only Congress can do (term), but not the only actor. Courts’ role: more modest reforms, such as inconsistency in liability standard for nonliteral infringement. Copyright Office: more role for focus on economics—need a Chief Economist, as PTO has—or at least see how an economist would think about it. Likewise a chief technologist or tech fellow; Pallante stumbled on testimony about SOPA because she didn’t appreciate some things about the tech. More rulemaking could be good, though raises delicate constitutional question, and she’s also enthusiastic about small claims potential. Would like to revive Office of Technology Assessment, which could talk to stakeholders, but that’s not going to happen.

Scholarship: we have to hope someone will pay attention, though mostly they don’t. Treatises however have served as a mode of copyright reform where the law is unclear. Copyright is impenetrable; judges are unsure what it means; normative basis is not evident from reading the statute; judges assume that treatise authors have analyzed the cases and thought about them, and sometimes treatises can point law in one direction or another. Aereo: that may matter. Pet peeves: sometimes treatises contribute to overturning clear expressions of congressional intent, as with Baker/§102(b). But who elected Nimmer and Goldstein? Why do they get to say what the law is when the rest of us have something to say?

National Academy of Sciences: evidence based policy making is a good idea. American Law Institute does principles on a regular basis; ALI has brought people together on various controversial issues before. High standards for review/good processes, so ALI might be good at distilling some core principles. This could help sit on top of the statute and make it more consistent, then over time evolve into the basis for new legislation.

Social norms: also part of what’s happening. Norms have evolved a lot.  Effort at K-12 copyright education—she doesn’t think that will go very far, nor will DRM. Relaxation about Web 2.0 UGC, fan fiction, etc.: things that might have looked infringing 10 years ago are less stressful now. Darwin: not the strongest or smartest or even the ones with best lobbyists who survive; it’s the ones who can adapt.  There are more of them than there are of us. We may be the past; they are the future. How does copyright survive?  (I think in this statement I am the “them.”  In honor of that and of Samuelson’s Darwin adaptation, here’s a fantastic mashup vid using the same Darwin quote; it’s Battlestar Galactica/Terminator: The Sarah Connor Chronicles.)

New act won’t be soon, but it’s time to start imagining it.

Q: anything achievable in near future?

Dow: depends on how you define it.  Not necessarily 20-year revision process. Pallante mentioned things in the system for some time.

Andrew Bridges: agrees we should seek more moderate language. But one of the hyperbolic debates you discussed, TPP as new SOPA, seemed a pretty accurate characterization because they feel like juggernauts that feel impossible to stop—SOPA came without hearings.  Do you know what’s in TPP? Can you tell us?

Dow: I haven’t visited the USTR to look at it, but many people on all sides have done that.  What he’s seen is what most have seen, which is text that was distributed.  Know generally.

Bridges: all I know is that I don’t know what’s in it and I have to rely on someone else. We’re talking about a trade system that binds the US to norms being negotiated in secret.  Calls for an up and down vote on restrictions on what Congress can do. Is Congress even relevant if trade agreements restrict what Congress does? What is the role of trade agreements as engine/obstacle for copyright reform?

Dow: ongoing discussion, and members of Congress may know more than you or I. They are relevant.  I’m more concerned about characterization of substance than I am about substance.  (I bet you are!)

Samuelson: given lack of transparency about TPP/ACTA, many of us are worried. Leaked provisions didn’t seem to be about counterfeiting but about strengthening rules in ways that would tie Congress’s hands. Usually in treatymaking you at least get to see drafts; transparency adds legitimacy. The idea that for a trade negotiator to tell the Euro. Parliament about the treaty would violate national security is ridiculous.  That doesn’t add legitimacy to copyright conversations.

McKeown: depends also on whether it’s self-executing.

Q: Leval says we should eliminate the fair use factors, and say fair use isn’t infringement, leaving the rest to the courts.  What is the role of judicial discretion in copyright law/reform?

McKeown: discretion unbounded is tyranny. But you could figure out which factors make sense and which have required courts to go further. Courts are incremental. We have multiple infringement tests, and at a minimum the SCt ought to step in to harmonize.  Look to the past for what courts have done as a foundation for fair use going forward.  Courts are supposed to take the law we have, not reform. 

Q: what’s the role of big players in litigation? Samuelson has criticized Rule 23 as copyright reform/class action as de facto way of making reform when Congress is paralyzed (I believe Qer means the Google Books settlement). What confidence should we have when major players are the ones making copyright law/policy for the rest of us? We’ve heard from photographers without as much representation (Qer says “skin in the game” but I think Mopsik thinks they’ve got nothing but skin in the game, along with plenty of abrasions).

McKeown: there’s definitely dominance in plaintiffs. But simply because you have a dominant plaintiff doesn’t mean they make policy. Many interesting decisions out of very small cases.  (*cough*Garcia*cough*.) There are areas of uncertainty, and the more cases you bring the more issues you will tease out. But access to the courts generally is a huge issue. ADR is encouraging.

Samuelson: this is another area where statutory damages are really of concern. Google Books: 3 authors from the Authors Guild tried to represent all authors of scanned books. Judge Chin certified the class; reversed; it will be difficult for one small group to adequately represent interests of all authors/creators, but it’s statutory damages that makes everything toxic.  If $750 is the statutory members, where there’s more than a small number of works, that gets really big really quick, and especially tech companies are at enormous risk because they make products that interact with bunches of works.  Sometimes big Ps do us a big favor though—yay for Perfect 10 bringing so many suits. Google was able to defend where colleges/universities couldn’t take on that risk.

Peter Jaszi: a bit about best practices.  Doesn’t want anyone who’s unfamiliar with this to come away with the impression that it’s an attempt to replicate negotiated classroom guidelines. Couldn’t agree more with Rothman’s critique of that failed process. Best practices are different: try to document the real and aspirational values of practice communities around fair use and make sure info is conveyed both to members of the community, who sometimes find it liberatory, and to other actors in the system. Can’t go into detail on theory, but there are many examples of ways in which these documents do seem to have liberated scholarship, teaching, filmmaking. We’ve tried extraordinarily hard to avoid lock-in or any suggestion that what communities can agree on is an outer limit on fair use. Does Rothman have examples of instances in which projects she regards as fair use have been foregone because of anything in best practices?

Rothman: She thinks it’s a great project in pushing back on some clearance culture—likes its aspirational nature. But based on looking on larger body of industry practices and social norms, and how courts react, she concludes that some courts react by incorporating those practices as limits on fair use. It’s that context which concerns her: if they were codified or used as reason to reject/find fair use without independent scrutiny. Librarians disagree about some things, too—we could ask whether different user groups were adequately represented.  Jaszi says the Classroom Guidelines weren’t representative and not valuable; but best practices doesn’t represent everyone either.  (I suspect Jaszi would say that’s why the best practices define themselves as the best practices of the user communities.)