[A2k] Timothy B. Lee: Five ways Congress should improve the copyright system

Manon Ress manon.ress at keionline.org
Sun Apr 28 05:20:00 PDT 2013

Five ways Congress should improve the copyright system
A powerful congressman wants a "comprehensive review." Here are our

by Timothy B. Lee - Apr 26 2013, 9:00am EDT
In a Wednesday speech, Rep. Bob Goodlatte (R-VA) announced plans for a
"comprehensive review" of copyright law. The announcement is significant
because Goodlatte chairs the House Judiciary Committee, which has
jurisdiction over copyright issues.

"I am announcing today that the House Judiciary Committee will hold a
comprehensive series of hearings on US copyright law in the months ahead,"
Goodlatte said. "The goal of these hearings will be to determine whether
the laws are still working in the digital age. I welcome all interested
parties to submit their views and concerns to the Committee."

Goodlatte cited recent comments by Register of Copyrights Maria Pallante as
an inspiration for his initiative. And he drew a parallel to work by one of
Pallante's predecessors, Thorvald Solberg, which culminated in a major
overhaul of copyright law in 1909.

So here are five suggestions for improving copyright law that Congress
ought to consider. These ideas may be more ambitious than Goodlatte has in
mind, but dramatic changes are needed if we want the copyright system to
truly promote, rather than hinder, creativity.

Bring proportionality back to copyright penalties

Over the last three decades, Congress has repeatedly increased the
penalties for copyright infringement. As a result, copyright infringement
is now punishable by as much as $150,000 per work.

These disproportionate penalties have had devastating consequences for both
individuals and businesses. A decade ago, the threat of having to pay as
much as $150,000 per work forced the pioneering locker service MP3.com to
settle its lawsuit with major labels before it had a chance to appeal.

Single mother Jammie Thomas-Rasset has been fighting six-figure penalties
for close to a decade in one of the few file-sharing cases to make it into
a courtroom. She is accused of sharing just 24 songs, which have a retail
value of around $24.

And the threat of astronomical damages has been a potent weapon in the
hands of copyright trolls like Prenda Law. Prenda's Paul Duffy pointed to
the $222,000 verdict against Thomas-Rasset as a cautionary tale in his
communications with alleged infringers.

Penalties for copyright infringement are appropriate, but the punishment
should fit the crime. The current penalties are at least an order of
magnitude too large.

Rein in asset forfeiture in copyright cases

In January 2012, the federal government froze the worldwide assets of
file-sharing site Megaupload and its founder, Kim Dotcom. The operation was
made possible by the 2008 PRO-IP Act, which for the first time gave the
government broad authority to use the power of civil asset forfeiture in
copyright cases.

The seizures amounted to a corporate death sentence for Megaupload. With no
cash, the firm was forced to lay off its employees. Legitimate users who
relied on the service suddenly lost access to their data with no recourse.

Dotcom hasn't been the only target of copyright-related asset seizures. In
2010, the government seized a hip-hop blog called Dajaz1, holding it for
almost a year before finally returning it. Evidently, the government didn't
have a case against its owner.

Dajaz1 was just one of hundreds of domain names seized by the government
over the last three years as part of "Operation In Our Sites." While many
of these sites do appear to have been engaged in illegal activities, it's
troubling that the government has the power to shut them down before their
owners have any opportunity to defend themselves.

Megaupload may be guilty of copyright infringement, but the firm should
have had its day in court before having its assets seized and its site shut
down. The operator of Dajaz1 should have had a chance to respond to the
government's accusations before losing control of his site.

Pre-conviction asset seizures may be appropriate in conventional piracy
cases where, for example, the government finds a warehouse full of pirated
DVDs. But the tactic is simply too crude a weapon to use against websites
and online services.

Reform the Digital Millennium Copyright Act

Modern music software such as iTunes has long included a feature to rip
your CD collection onto your computer. Yet almost two decades after DVDs
were introduced, legal software to rip them is not available.

The difference is the Digital Millennium Copyright Act, which Congress
passed in 1998. It criminalizes circumvention of copy protection schemes
like the Content Scrambling System found on DVDs. The result has been
stunted progress in digital media technologies. Firms that have tried to
develop innovative technology related to the DVD without the permission of
the DVD cartel have faced ruinous lawsuits.

Even worse, the DMCA has been wielded to limit user freedom in areas that
have no plausible connection to piracy. In 2012, the Librarian of Congress
sparked outrage when it changed DMCA-related regulations to effectively
make it illegal to unlock a cell phone in order to take it to another
carrier. In another case, Blizzard used the DMCA to shut down the use of a
World of Warcraft bot.

Recently, some members of Congress have proposed narrow legislation to
legalize cell phone unlocking. But the deeper problem is the DMCA's
anti-circumvention rule itself. Congress should narrow the DMCA's
restrictions on circumvention, and should consider repealing the provisions

Reduce copyright terms

America's original copyright system granted authors 14 years of protection
with the option to renew for an additional 14 years. By the mid-20th
Century, that had been expanded to a 28-year initial term and another 28
years after renewal. But since 1976, we've been in an era of perpetual
copyrights. Congress added 20 years to older works and changed the term for
new works to the life of the author plus 50 years. In 1998, Congress
retroactively extended copyright terms by another 20 years.

As a result, the public domain has been practically frozen for forty years.
If a work was under copyright in 1978, it will probably still be under
copyright in 2018.

It's a virtual certainty that major copyright holders will seek yet another
extension of copyright terms before 2018. Congress should not only refuse
to grant another extension, but it should consider reducing the terms
already in effect. Copyright protections that last more than a century are
far more than are necessary to accomplish copyright's function of
encouraging creativity.

Create a mandatory database of copyrighted works

For most of the 20th century, getting copyright protection for a work
required marking it with a copyright notice and registering it with the
Library of Congress. Authors also had to renew their works after 28 years
in order to keep copyright protection.

But starting in 1976, Congress eliminated these requirements, known as
"formalities." Today, almost everything you write—your emails, your diary,
and sketches you draw on cocktail napkins—are copyrighted, whether you want
them to be or not. And that protection could last for more than a century
with no renewal requirement.

The result has been a huge "orphan works" problem. Thousands of books,
films, and other works created in the mid-20th Century are deteriorating on
our library shelves. Digitization and republication could give these works
a second lease on life, but doing so is legally hazardous because no one
can figure out who holds the copyrights. The problem will only get worse as
works published after 1978 start to show their age. These works may not
even have a copyright notice to identify their authors.

One argument for eliminating the registration and renewal requirements was
that they created too much of a burden for authors. But registration need
not be burdensome in the age of the Internet. Registration could be done
online and the Librarian of Congress could charge a nominal fee such as $1.
Renewal could be as simple as logging into the Librarian of Congress's
website and updating an author's contact information—the Librarian of
Congress could even send out helpful e-mail reminders when a work comes up
for renewal.

Congress should once again require registration as a pre-condition of
copyright protection and periodic renewal to keep copyright protection in
effect. That would allow the Library of Congress to build a national
database of copyrighted works. People who wanted to use older works would
either be able to use the database to identify a work's owners, or to
verify that the work has fallen into the public domain and was free for
anyone to copy.

Listing image by Moyan_Brenn
Manon Ress
Knowledge Ecology International
manon.ress at keionline.org
tel.: +1 202 332 2670

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