August 1, 2013 | By corynne mcsherry

"Tech Sector" Does Its Part to Promote Reality-based Copyright Policy: Will Congress Listen?

This morning the House Judiciary Committee held the latest in a series of hearings designed to set the stage for a deeper dive into copyright law and its discontents. Last week, the Committee heard from the "copyright sector"; this week it was a "tech sector." (We still believe those are essentially meaningless categorizations, but anyway). In sharp contrast to last week's hearing, which was largely populated by the usual suspects — industry association representatives, heads of traditional content corporations and so on — the witnesses this week came from a variety of small to mid-size companies and nonprofits that are experimenting with new technologies and new business models. Their overriding message: we, and our users, are innovating despite, not because of, intellectual property restrictions and the traditional development and distribution models that depend on those restrictions. 

Danae Zingelmann of crowdfunding platform Indiegogo testified that the company was born, in part, from her frustration at watching her parents struggle for years to get funding for their small business, and then later her own unsuccessful efforts get funding for her artist clients. "You had to know the right people." Today, she noted, anyone with a good project can use crowdfunding and other strategies to make it happen. For musicians, for example, the growth of alternatives to the traditional music label system means "You don't have to choose between being Britney Spears or being a starving artist performing at a coffee shop."

Nathan Seidle of Sparkfun explained why his company has chosen to sell its products without patent protection (the company also shares its software via a CC-license).  

Attempting to stop pirates is a waste of time. Show me an anti-piracy law or technology and I’ll show you a dozen 15 year-old girls and boys who can crack it. The resources spent stopping pirates comes at the expense of innovation and improving the business practices that actually serve the customers and industry. The most efficient way to get reimbursed for creative work is to make it easy to purchase and consume that content. How do you get the market to buy your product or service? Provide better support, better quality, better price, and better availability. If you show the consumer that you are a better company with which to do business, they will shop with you. This is not a new business model. This is how business has been done for thousands of years. There is no need to waste time, energy, money and resources suing infringers or pirates; our time is better spent innovating.

Yes. Not surprisingly, Seidle got by far the most pushback from the members, who seemed to have difficulty understanding that Seidle was not saying patents and other IP protections shouldn't exist at all, but rather that they are not necessarily crucial to many types of innovation. "Innovation moves faster than the shield of IP protection."

Jim Fruchterman of Benetech turned the conversation back more directly to copyright, pointing out that Benetech's Bookshare project, a massive online library for individuals with print and learning disabilities, depends on both relatively narrow but strong copyright exceptions for people with print disabilities, and broad and flexible limits such as fair use. He also noted, however, that digital right management technologies are impeding the accessibility of ebooks.  

Finally we heard from Rakesh Agrawal of SnapStream (a videorecording and search service) and Van Lindberg of RackSpace.  Both noted that their companies are built on and also facilite new creativity. Like Fruchterman, Agrawal stressed the importance of fair use to the success of the company and its users. (Last week, of course, the witnesses pointed to "fair use creep" as a threat rather than a benefit to creativity).

Without fair use and the ability to make recordings, the creative satire and comedy of programs like the Daily Show, and, in many cases, the public awareness and spirited public debates they create would not be possible. 

Lindberg, for his part, stressed the centrality of open source development to RackSpace's success and to its ability to contribute to a broader community.  Lindberg highlighted OpenStack, an open source cloud computing system jointly developed with NASA:

In the past three years, OpenStack has grown so rapidly that it’s not only used by NASA but by other operations across the federal government. It is an engine of growth, backed by hundreds of companies worldwide, including technology giants such as Cisco, Dell, HP, IBM, and Red Hat. This one project — OpenStack — is directly responsible for tens of thousands of new American jobs and has driven billions of dollars of growth and investment.

OpenStack is even more astounding in the human dimension. There are over a thousand individual contributors, who have collectively written enough code and documentation that, if it were all printed out, would reach to the moon.

These companies and these people are both technologists and content creators. This massive contribution to innovation is the result not of exclusive and tight control over their copyrighted content, but of the deliberate spreading and dissemination of their efforts.

For many of us, stories like this are not news. But we suspect that they are news to many Congressmembers.  

Linderberg also noted that his company regularly receives improper DMCA takedown notices, from a jewelry maker complaining about its own authorized retailer, to a  movie studio demanding the takedown of its own website. These takedowns, Lindberg suggested, were largely caused by companies sending takedowns without human review. Linberg also reported experience with DMCA takedowns clearly intended to censor critical speech.

For a hearing on copyright, a surprising amount of time was spent talking about patents. Because no hearing about technology could be complete without a Star Trek reference, Representative Tom Marino ask Seidle if a kid who had worked for years to invent a transporter shouldn't have a chance to reap the financial benefits. Seidle responded that the inventor could seek a patent, but it could leave him with a false sense of security and potentially foreclose an alternative approach: letting others copy his machine and then building a better machine based on others' improvements. Lindberg made an equally crucial point (and brought the conversation back to the present) by pointing out that Congress should be less concerned about patents on fundamental inventions (like, presumably, a transporter) than the many trivial patents that should never have been granted in the first place.

We'll see whether the members keep this testimony in mind when they turn to copyright reform in earnest this fall.  We'll be working to make sure they do, and we'll need your help. Stay tuned.

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