July 24, 2013 | By corynne mcsherry

Real Copyright Reform Starts With Listening to Users, Not Just the Usual Suspects

In the next baby step on the long march toward reforming the Copyright Act, the House Judiciary Committee is holding hearings on the importance of the “copyright and technology sectors” to the U.S. economy. The first will be held tomorrow.

The Committee's approach has left us scratching our heads. For example, what is “the copyright sector” anyway?  After all, given that virtually any minimally creative expression is automatically protected by copyright, millions of Americans are copyright owners (though they may not know it). Are they the "copyright sector”? What about artists and fans that make noncommercial remix videos? Bloggers? Independent filmmakers, and comedians who have found ways to thrive in a changing economy? Academic authors? Innovative businesses like Aereo? If so, perhaps the hearings could offer an opportunity to educate Congress about how all kinds of creators are using new technologies to build and share new works, connect to audiences, and innovate. It could also be an opportunity to remind Congress of the essential role fair use plays in ensuring that copyright law fosters, rather than stifles, that creativity. And it could be an opportunity to remind Congress of the broad array of stakeholders that could be affected by changes in copyright law, from ordinary Internet users to software developers to vidders to libraries to political activists that rely on intermediaries to communicate and organize.

Sadly, if the witness list for the hearing tomorrow is any indication, Congress is going to miss that opportunity. Instead, it will mostly hear from the usual suspects: Sandra Aistars, head of the notoriously maximalist Copyright Alliance; Eugene Mopsik, American Society of Media Photographers; John Lapham of Getty Images, a massive stock photo agency; Tor Hansen of the American Association of Independent Music, and William Sherak of Stereo D, which does 3D imaging for major studios. The Copyright Alliance, American Society of Media Photographers, and the Association of Independent Music were strong supporters of the Stop Online Piracy Act, the dangerous Internet blacklist bill that was soundly defeated last year thanks, in part, to widespread opposition from Internet users. All have close ties to traditional content industries. 

For example, the main point of Sherak’s testimony appears to be that strong copyright protection for movies is important because if the major studios suffer, so too does the 3D industry. (We’re surprised they didn’t include a representative from the Popcorn Board to talk copyright, too). Committee members can expect to hear a lot about the importance of strong copyright enforcement, and precious little about the importance of fair use, first sale, and other elements of the copyright balance.  

That missed opportunity is only part of the problem. What should also concern Internet users is the persistent notion that “copyright” and “technology” are distinct and often opposed, and that the way forward on copyright is simply for Hollywood and a few major technology companies to make a deal. What Congress (and Hollywood) should have learned by now is that the people it most needs to consult on copyright and innovation are the users of the Internet—the millions of people who have found their voice due, in part, to the emergence of technologies and platforms that allow them to speak to a larger audience then ever before.

The battle to defeat SOPA/PIPA is an object lesson. The opposition to that legislation began when a broad coalition of public interest, consumer rights, and human rights groups saw how they would harm users, not just technology companies and platforms. Due in part to the hard work of this coalition in raising public awareness, millions of those users saw that, too, and they rose up in protest. Having succeeded in halting the runaway SOPA/PIPA train, Internet users don’t intend to just stand down and let a few tech companies and a few content industry associations speak for everyone.

If Congressional leaders want to avoid another SOPA, not to mention truly fix copyright, they need to start by including independent creators, innovators, and Internet users who are going to feel the real effects of an overly aggressive legal regime that, for example, facilitates attacks on platforms and services that we use to create, innovate, and communicate. Government enforcement efforts that temporarily or permanently shut down lawful websites—like music blog dajaz1—are based on nothing more than allegations of infringement.   

One more thing: they need to include the technologists who actually understand the collateral damage that can result when changes to copyright may impact fundamental Internet architecture, as well analysts who are developing real evidence based on hard data, not spin.

Watch this space for our reaction to the hearing. Who knows, maybe we'll be surprised.

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