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On Thursday's USPTO panel on copyright in the digital age

Last Thursday (December 12) the Department of Commerce hosted an all-day discussion\public meeting on “Copyright Policy, Creativity, and Innovation in the Digital Economy.” And thanks to the miracle of on-line streaming video, I was able to “be there” for most of it.

This event was part of a process that began with the release of a “green paper” back on July 31st that was an attempt to survey existing copyright law in its relationship to technology changes, and to see what updates might be necessary.

This is, of course, a healthy process. While we at IPI are strong proponents of intellectual property protection, no law is perfect. It’s important for defenders of IP to not simply be kneejerk defenders of the status quo, and in fact, if we are confident that we are correct in the obvious utility of IP protection, we should not be afraid of examination and even the need to update the law periodically.

So the green paper (PDF here) made some specific “next steps” recommendations, for the most part recommending that public comments be gathered in a few specific areas. After the public comment period, this public forum was to be held to further explore the areas in question.

IPI’s comments focused on some, but not all, of the questions:

  • Whether and how the government can facilitate the further development of a robust online licensing system (we trusted the private market to handle this and thought the only government action necessary was to live up to its existing obligations and not succumb to activist pressure);
  • On improving the notice and takedown system in the DMCA (we think that would be great but it’s not sure how that would happen in a way that pleased both sides)
  • On the legal framework for remixes (we thought this issue is overhyped for strategic purposes by the CopyLeft and isn’t really a problem).

So it was gratifying to see during the public forum that the panelists generally agreed with our take on these issues.

I’m not going to do a complete recap of the day’s events, especially since there is a pretty good one over at the Copyright Alliance’s blog.

We didn’t get into the issue of digital first sale in IPI’s comments, but it was good to see that the majority of panelists did not see a great, yawning need for the creation of a digital first sale doctrine. I find it more than a little interesting that many of the same activists who are calling for a digital first sale doctrine also oppose technical protection measures (TPMs) such as DRM. How on earth could you have a secondary market for digital goods if at the same time you succeed in killing TPMs? It just isn’t going to happen. The problem with TPMs, of course, is not the idea but the technology, and the fact that any TPM is eventually going to be defeated. So you have a digital good that is perfect and permanent, protected by a TPM that is temporary. That’s not a recipe for a working first sale doctrine regime, and most of the panelists recognized that, especially Professor John Villasenor from the University of California, who made that specific point. Allan Adler of the Association of American Publishers made the point that existing first sale doctrine has to do with used goods that deteriorate over time, which is not true of digital goods (although Sherwin Siy of Public Knowledge asserted that digital goods DO degrade, which is kinda nuts. The media might degrade, but as we are moving to the cloud, it’s clear that digital goods are going to become more robust and less subject to accidental loss and media degradation).

So the conclusion of the digital first sale doctrine discussion is that we just aren’t there yet—it’s not clear that there is anything approaching a working licensing scheme that could cover digital first sale, and it’s not clear that we have the technology to protect digital goods in a secondary market, either.

I was stunned by the assertion by John Ossenmacher of ReDigi that people who pay for digital goods would be less likely to purposely put those goods into the piracy stream. He might think that’s how it should be, but it simply isn’t the case. Indeed, many in the piracy community seem to think it’s an act of virtue to obtain some content and then introduce it into the piracy stream. It’s a way of hitting back against “the man.”

IPI did express an opinion on the question of a legal framework for remixes, and it was also good to see that the panel largely didn’t think anything was necessary there, and actively rejected the idea of expanded fair use or compulsory licensing for remixes, which IPI rejected in our comments.

I was particularly delighted to hear Jay Rosenthal of the National Music Publishers Association point out that the point of copyright is to protect the rights of creators, not to facilitate “ease.” Indeed, those who are constantly asserting that copyright has as much if not more duty to consumers as it does to creators are making that assertion out of thin air. It sounds perfectly reasonable, of course, to talk about how copyright has an obligation to balance the rights of creators with the “rights” of consumers, except that there’s no real factual basis behind the assertion. It’s easy, legally, to define the rights of owners of property. It’s near impossible to define legally the constantly morphing and changing demands of consumers. What is “ease of access?” For many in the CopyLeft community, that test won’t be met until someone hand delivers them an online library of every book, movie, musical performance and software package, available free of charge upon demand. And up until such time as that exists, copyright will be “tilted in favor of Big Hollywood and the RIAA.”

Rebecca Tushnet of the Organization for Transformative Works made a memorable appearance on the remix panel, asserting at one point that somehow there was a sexual discrimination aspect to remix licensing. Yes, she asserted that somehow women had a harder time than men at this, for reasons that escaped me. And, of course, she managed to work in that copyright is used for “censorship,” something that I’ve dealt with before here. And she managed to work in the names Larry Lessig and Cory Doctorow as well, so, okay, we get who you are and where you’re coming from, Rebecca.

Of course, the big game is the DMCA’s notice and takedown system, which the content industry thinks is broken because of the sheer volume of requests they have to submit, and because of the “whack-a-mole” problem. And the Internet companies, especially Google, think it’s broken for precisely the same reasons. The problem here is that each side wants to shift its problem to the other party, which won’t work. The solution seems to be a combination of continued technological innovation from both Internet companies of good will, and from content owners.  Some sort of wholesale shifting of liability to ISPs and Internet companies won’t work, and of course neither will a decision to start downplaying the problem posed by massive online piracy to the creative industries. I think we’re just going to have to continue to slog through this problem, hopefully assisted by continued technological innovation. And, as much as the DMCA gets bashed these days, I still think it has been a remarkably successful law in anticipating and dealing with the problem as best it could.

I was most struck that the overall impression of the day was that problematic nature of the topics in the intersection of copyright and technology are either being exaggerated by a small activist community, or simply do not rise to the level of significant concern by the overall community of stakeholders, contrary to what the very noisy CopyLefters would have us believe. If you mostly follow Mike Masnick, Larry Lessig, Cory Doctorow, Tim Lee and Derek Khanna on copyright, you would think that everyone pretty much agrees with them and that only a small but powerful cabal of corporations are holding back the very reasonable project of undoing copyright and turning it from a system of censorship and control into a very nice little system of attribution. But a day-long discussion by experts in the field suggests very much otherwise—that, in fact, our copyright law is pretty much getting things right. There may be a few adjustments here and there that are appropriate, and there may be a few problems that are simply not easy to fix without throwing out the baby with the bathwater.

Which we don't want to do.

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