It's time to rethink copyright law, say the U.S. Register of Copyrights and the chairman of the U.S. House Judiciary Committee. Hearings, speeches, and lots of quiet maneuvering have begun to shape "the next great copyright act." Last week, Motion Picture Association of America president, former senator Chris Dodd, laid out his vision for copyright in a speech to the L.A. Copyright Society and an op-ed in the Huffington Post. Invoking the U.S. Constitution and the Founders as allies for Hollywood's cause, he dropped some hints about the positions that MPAA might take in the upcoming months and years. If those statements are any guide, we’re going to have some misinformation to sort through. Here’s a reality check.
Don't Be So Sure You've Got The Founders On Your Side
Dodd claims that copyright as we know it is what "the founders of this republic intended." Hardly. The first copyright act in the U.S, passed in 1790 by some of the same people who helped write the Constitution and the Bill of Rights, was very limited. It covered only books, maps, and charts - not music, theater, pamphlets, newspapers, sculpture, or any other 18th-century creative medium. The Founders' copyrights lasted 14 years, with an option to renew for another 14. Today, of course, copyright covers nearly all written, visual, sculptural, architectural, and performing art, not to mention computer software and games, and it lasts for the author's life plus 70 years. We suspect that if anyone had described today’s copyright system to, say, Thomas Jefferson, he would have been shocked. By all means, let’s look at how the Founders thought copyright should work, as one guidepost for fixing today’s law.
Sometimes Copyright Hinders Free Speech, And Denying the Conflict Doesn't Make It Go Away
Dodd told a gathering of entertainment industry lawyers "it bears repeating that copyright encourages free expression – it does not hinder it." He seems to believe that because copyright helps some artists and authors earn income from their expression, copyright and free expression are never in conflict. Of course that's ridiculous. Practically weekly, people use copyright law, and laws like the Digital Millennium Copyright Act, to suppress and chill free speech. They silence critics with copyright takedowns. They make blogs disappear from the Internet based on nothing more than allegations of infringement. They threaten university researchers with crippling lawsuits for delivering papers on computer security. That’s why any discussion about copyright reform should start by recognizing the importance of balance between the rights of copyright holders and other values we hold dear, like free speech and due process of law.
Copyright Should Accommodate Innovation - Not Just The Innovation That Hollywood Approves
Dodd notes that "technology and the marketplace are evolving faster than the law" and suggests that copyright "should be broad enough to apply to new technologies that might develop in the future." We agree, but we suspect Dodd has a different understanding of “apply.” We’ve seen decades of scorched-earth lawsuits against new technologies, most recently targeting Internet video technologies like Cablevision's remote DVR, Aereo's mini-antenna system, and DISH's Ad Hopper. Content industry lawyers seem to think that copyright owners should have veto power and a cut of the profits from any value created by new technologies and new business models that use copyrighted works. That's not actually what copyright law says - some things, like public performances of creative works, are given to the copyright holder to profit from, while some things, like private transmissions over the Internet from a lawful source, are free for everyone to do. And that is as it should be.
On the other hand, new technologies sometimes take away the rights of users, consumers, tinkerers, and remixers. Copyright law may need an update to fix these problems. For example, we could use some clarity on whether digital works can be resold, lent, given away, etc., just like physical books. We also need a strong affirmative right to repair and tinker with our devices – even if those devices include software locked down with DRM.
Democracy Is Messy When You Actually Let The People Participate
Dodd laments that "today, the copyright debate, as we have all learned, is far more polarized," and he worries that "consensus on these issues . . . will not be easy." This is of course a reference to the defeat of SOPA and PIPA, which were to be Dodd's major legislative victories when he left the Senate for the MPAA in 2011. But that wasn’t the result of polarization – it was participation. Millions of Americans made their voices heard on SOPA and PIPA, moving the debate out of the smoke-filled room and into the sunlight. Making law with the consensus of just a few industry leaders may be easier, but it’s not better. And after SOPA, copyright law just can't be made that way anymore.
And Now, Down to Business
So what changes will MPAA be pushing for? It's clear that they have not abandoned their efforts to force Internet companies that handle user-generated content to become copyright police. Whether through taking down entire domains (as SOPA would have done), cutting off sources of funding, or being able to threaten Internet companies with massive lawsuits, the entertainment industries still want the power to decide what can be on the Internet and what can't. Expect also an effort to extend the term of copyright yet again - in Mr. Dodd's words, to "promote distribution and enjoyment of America's most beloved stories and characters."
At EFF, we have a different agenda. In the coming months, we will be writing about, and organizing to promote, real copyright reform. Copyright law belongs to all of us, and it can reflect the values we want – if we all stay involved. We hope you’ll stand with us.