Major reforms to copyright law are possible and increasingly likely.

In November, the House Republican Study Committee (RSC) published a report, which I authored, that called for such major reforms to our copyright system while still supporting copyright as a concept. Among its conclusions, it noted:

… because of the constitutional basis of copyright and patent, legislative discussions on copyright/patent reform should be based upon what promotes the maximum ‘progress of sciences and useful arts’ instead of ‘deserving’ financial compensation.

Both before and after the report’s release, numerous conservative and libertarian organizations have come out in favor of copyright reform. In the wake of the RSC memo, none have come out against. Working for the RSC, I was aware that a number of conservative members were interested in moving forward on copyright reform. But, due to pushback, the report was subsequently taken offline, though neither disowned nor repudiated.

To many on the conservative and libertarian side, it is no longer a question of whether or not we need copyright reform—the operative question is, what does that reform look like?

Copyright is a thorny issue, because much of the work in this area of public policy lies in how we frame our questions. The dominant conservative and libertarian perspective is that copyright is not the same as traditional property and therefore, in accord with the Constitution, we are required to perform a complicated balancing test to determine what provides the greatest benefit to society while providing appropriate compensation to the content producer. Jerry Brito, Senior Research Fellow at the Mercatus Center at George Mason University, provides one such perspective, though not an uncontested view, on why copyright is different from traditional property rights in Copyright Unbalanced: From Incentive to Excess:

In contrast to traditional property, copyright was created by the Constitution; it did not exist in the common law. Without the Constitution’s copyright clause, there would be no preexisting right in creative works. What’s more, the copyright clause does not recognize an inalienable right to copyright, but instead merely grants to Congress the power to establish copyrights. Copyright therefore stands in contrast to traditional property in that the legislature has complete discretion whether to grant the right or not… [Further the] copyright clause allows Congress to establish copyrights for ‘limited times’ only. This means that unlike traditional property, copyrights must cease to belong to their owners at a certain point.[1]

The RSC report debunked three myths that have justified our current system of effectively indefinite copyright and the destruction of any future public domain:

1. The purpose of copyright is to compensate the creator of the content.
2. Copyright is free market capitalism at work.
3. The current copyright legal regime leads to the greatest innovation and productivity.

These points require critical examination because they each address how we approach the issue of copyright. I wanted to take on these issues in a manner that would achieve a transpartisan solution appealing to libertarians, conservatives, and liberals alike.

Let’s consider the first myth. Tom W. Bell, Professor at Chapman University School of Law, advocates going back to the system envisioned by our Founders: the 1790 Copyright Law provided a system of 14 years for copyright upon registration and a 14-year optional renewal. The Constitution provides a clear explanation for good copyright law, namely that it is for the promotion of science and the useful arts, and not, as the first myth would have it, to compensate the creator of the content. The Founders were onto something, and we should try to make our laws more similar to their first copyright act.

The second myth is exposed when we consider that our copyright system is actually a government-imposed system of regulation rather than something “organic” to a free market. As regulation, the relevant question is whether a given approach is the most effective. As an economist would ask, “is there a market failure that requires this level of government intervention and subsidy?”

The third myth asserts that our system is optimal in striking the intended balance of providing sufficient incentive to content producers without discouraging or eliminating new markets—that is, whether it satisfies what the report calls the “Goldilocks test.” This last point is critical because most people don’t know that our current copyright terms are comparatively long in historical perspective. The current law provides for the life of the author plus 70 years, and for corporate authors 120 years after creation, or 95 years after publication. That’s many times longer than the Founders’ copyright system (see Figure 1), but the dropping of the registration requirement from their system is also a major and unprecedented expansion in the scope of copyright.

Figure 1

Source: Wikimedia Commons, graph by Tom W. Bell.

Research further shows that our system of copyright is suboptimal at best and significantly counterproductive at worst. For much of our history, copyright required registration to receive the full benefit of the extension. If a longer copyright term were critical to provide sufficient incentive to content producers then we would expect, particularly when copyright terms were much shorter, that content producers would choose to extend their copyright. But during the era of registration, Congress found that only “a very small percentage of copyrights are ever renewed.”[2] They found that the rate of renewal in the 1880s was 15%, and less than half of all works were originally registered at all. If a much longer copyright term of life plus 70 years is so necessary, then why did all these content producers choose to only have 28 years of protection rather than the optional 42 years available at the time?

As William Patry argues in his book How to Fix Copyright,

Was there a single author in the world who said, ‘A term of copyright that only lasts for my life plus fifty years after I die is too short. I will not create a new work unless copyright is extent to last for my life plus seventy years’? There is no such person. (p 57)

Several studies have confirmed this as well. In 2009, a study on the production of movies in twenty-three countries that had extended the term of copyright (pdf) found no evidence that longer terms of copyright caused the creation of more works rather than the prior, shorter term. Another study from the University of Cambridge found that the optimal copyright term is 15 years (pdf), with a 99% confidence interval extending up to 38 years. Even the Congressional Research Service concluded that there was at most a small change in incentive in the extension of copyright term.

If there are no or only minimal benefits to this change, what are the costs? The RSC report argued that “[t]oday’s legal regime of copyright law is seen by many as a form of corporate welfare that hurts innovation and hurts the consumer.” Consumers are denied the ability to acquire content that would have been in the public domain, and also denied the opportunity to acquire derivative works. The report further argued that therefore, “[Our copyright system] is a system that picks winners and losers, and the losers are new industries that could generate new wealth and added value. We frankly may have no idea how it actually hurts innovation, because we don’t know what isn’t able to be produced as a result of our current system.”

It’s always difficult to speculate about alternative histories, but in this case there is sufficient information to consider the real impact of our copyright regulation upon new market models. Some real-world examples, such as the DJ/remix industry, have been ridiculed, but they are no laughing matter to an aspiring DJ who would like to make mixtapes without being sued. To a DJ, our copyright system is extremely destructive. The DJ/remix industry as a whole could offer export opportunities and provide not insignificant commerce within the United States, meaning that the impact is on more than just one or two DJs. And this example among others is why the report ultimately concluded, “Current copyright law does not merely distort some markets – rather it destroys entire markets.”

When regulation stops new market models or makes them prohibitively difficult to enter, we should be extremely skeptical of the benefits of that regulation. Much of our society’s economic growth in the past two centuries is a result of disruptive innovation. No one is alleging that the DJ/remix industry will have profound consequences comparable to the cotton gin or the semiconductor, but the DJ/remix market is not the only one affected, and we have no idea the actual economic costs of prohibiting other new market models.

Further, derivative works do not displace the original works. In fact, one could speculate that many of them actually increase sales of the originals. An interesting situation arose in 2004 when Danger Mouse put out The Grey Album (accessible here), which remixed Jay-Z’s The Black Album and the Beatles’ The White Album. As Jay-Z commented during an interview on NPR’s Fresh Air:

I think it was a really strong album. I champion any form of creativity, and that was a genius idea—to do it. And it sparked so many others like it. There are other ones that—you know, it’s really good—there are other ones that because of the blueprint that was set by him, that I think are a little better. But you know, him being the first and having the idea, I thought it was genius.

Jay-Z was specifically asked if he felt “ripped off” by the fact that Danger Mouse didn’t pay. He responded:

No, I was actually honored that, you know, that someone took the time to mash those records up with Beatles records. I was honored to be on—you know, quote-unquote, the same song with the Beatles.

Jay-Z in fact likely wanted this outcome.[3] He took the unusual step of releasing an a cappella version of his latest record for the main purpose of having DJs remix the lyrics with different beats. One can speculate that some Beatles fans may have even been introduced to Jay-Z for the first time and decided to buy his albums as a result, or vice versa with the Beatles.

And “by definition, a derivative work is an imperfect substitute; often it is no substitute at all.”[4] But EMI, representing the owner of the Beatles sound recording copyrights and Sony/ATV Publishing, owner of the compositions on the album, sent a cease and desist letter to Danger Mouse for copyright infringement nonetheless. This is just one prominent example from a field of artistic work that is being hampered by our copyright system’s overlong terms. We may never know what other sorts of works may arise, if only we let them.

Ironically, the Disney Corporation is one of the main proponents of our current copyright system, but Walt Disney made his early fortune and built his company around derivative works. His major works are derivatives of Grimm or other fairy tales – even Steamboat Willie.

The Big Battles

I have optimism that there is potential for major change on copyright. First, we are in the post-SOPA era. Members’ sudden, vocal opposition to legislation that they were co-sponsoring was nothing short of a watershed moment—but I would argue that it was proof of concept of something even bigger. SOPA proved that a united movement can stop legislation that is expected to pass despite overwhelming odds, special-interest cronies, and the support of powerful politicians. This coalition can and has already started to mobilize in favor of sensible policy, including copyright reform.

People are beginning to question why our copyright system is so dysfunctional and counterproductive. In 2018, Steamboat Willie is finally supposed to enter the public domain. There will be a major legislative push to re-extend copyright to life plus 90 years to protect it (making copyright, in effect, perpetual). There is already mounting criticism of our current copyright terms of life plus 70 years, which, with the prospect of effectively indefinite extensions, seems to be in direct violation of the Constitution’s requirement of a limited time for securing copyright. 2018 should be the year that copyright is no longer perpetually extended.

Second, in 2013, negotiations for the Trans-Pacific Partnership (TPP) Treaty may conclude, and the treaty would then be submitted to the Senate for approval. This treaty includes provisions on intellectual property that are above and beyond those in the Berne Convention. Setting controversial and contested copyright terms in stone through treaty was wrong then, and it’s wrong now. It’s an affront to the legislative process to try to “re-codify” legislative wins into treaty agreements. That would make it significantly more difficult to ever change course.

The length of copyright terms has always received significant debate and disagreement. This was likely the intention of the Founders in not specifying what a “limited time” meant within the Constitution itself. But current drafts of the TPP allegedly establish the law at life plus 70 years. Additionally, it would include or even expand portions of the Digital Millennium Copyright Act (DMCA) relating to anti-circumvention technologies. To be clear, I am strongly against unauthorized copyright infringement, but the DMCA outlawing of anti-circumvention technologies is extremely controversial—and rightfully so.

The DMCA created rules that until recently made it illegal to jailbreak your own iPhone or to develop a program to read a Kindle book aloud to someone who is blind. The DMCA still bars developing, selling, providing, or even linking to technologies that play legal DVDs purchased in a different region, or to convert a DVD you own to a playable file on your computer. Because no licensed DVD playing software is currently available for the Linux operating system, if a Linux user wishes to play a DVD that they have legally bought, they cannot legally play it on their own computer. The DMCA’s rules have also made legitimate fair uses of copyrighted material much harder. Using snippets of video for classrooms is legal fair use, but to do so, teachers have to use illegal technology to “rip” the DVD to a playable and editable file, or they must illegally download the file online.

Within the leaked details of the TPP Treaty there are many troubling features, but perhaps most troubling is the secrecy surrounding the negotiations. Members have been allowed to view documents, but most of their staff and the general public have been denied access. Outside of the national security realm, this type of secrecy in regard to a treaty is particularly troubling and perhaps unprecedented. Another troubling aspect is that despite this secrecy, there have been “stakeholder” presentations representing one particular side and vested interest, rather than the perspective of the general public or the requirements of our Constitution. One of the stakeholder presentations at the latest TPP negotiations was titled “The Walt-Disney Company: Creativity, Brought to you by Copyright.” At the same time, representatives from the Electronic Freedom Foundation (EFF) were denied access and not allowed in the building for recent negotiations.

For all these reasons, the TPP treaty will be a major battle in reforming copyright. The United States is the party asking for many of these provisions on intellectual property, and elected political leaders can and should get involved now to put an end to that. If a treaty is submitted that includes this type of language on intellectual property, 34 Senators should ensure that this treaty is not approved.

The Opportunity for Compromise

At the recent Cato event where Jerry Brito unveiled his new compilation on copyright reform, Mitch Glazier, Senior Executive Vice President of the RIAA, appeared open to some sensible reforms to the copyright system. There may be issues of fair use where both sides can come to agreement on a more sensible system, but so far content groups have not come out publicly in favor of such reforms.

But perhaps the best issue for compromise may relate to orphan works. Orphan works arise when the rights holder for a work is not apparent and it’s either too expensive or impossible to determine who is entitled to compensation. This creates a large number of problems for the content industry; if you can’t track down who owns rights in the work, you can’t use the work. This creates real-world consequences; the BBC has 1 million hours of programming in its archives that are unusable because the rights holders are unknown.[5] British museums hold 17 million photographs, of which 90 percent lack rights holder identification.[6]

In the original 1790 Copyright Act, creators were entitled to 14 years plus a 14 year renewal, but only if the author was still alive and registered—as a result, this system did not have the orphan works problem. But in today’s system of life plus 70, and a perhaps near future system of life plus 90, it is sometimes considerably more difficult to track down who owns rights, as authors move or die and companies to whom rights are transferred go out of business or sell those rights.

Tom W. Bell has described the system of copyright as an intellectual “privilege” rather than an intellectual “property,” and he might ask why orphan works should be entitled to such a privilege when they haven’t asked for it and can’t even receive it. This is also a big problem for the public domain because a large number of these works could otherwise be available for free. In a situation where the rights holder cannot be determined and their descendants cannot be compensated, can we not all agree that the authors themselves would doubtless prefer to have their works available and accessible?

Evidence demonstrates that usually once materials enter the public domain they experience a large spike in access and readership. Thus if an author’s overall goal for their life’s work was for it to live on in perpetuity and continue to inspire, we are doing them a true disservice by keeping such orphan works off limits.

Looking Ahead

There are several medium term opportunities to amend current copyright law where we can examine whether our system is working. It’s not difficult to imagine that in a near future world where 3D printers like the Makerbot are widely available, there will be an increased call for intellectual property safeguards. As storage space continues to increase and Internet speeds continue to grow faster, it will be even easier, as if it were not easy enough already, for average people to illegally download HD movies and 3D movies. This will allow for people to “subscribe” to download all new movies once available in HD illegally online.

To be clear, piracy is a problem, and some level of copyright is important to create an incentive to content producers, but we shouldn’t let the threat of piracy create laws that are ineffective and even counterproductive. We must be very careful in our application of laws to ensure that they are narrowly tailored to their objectives. Very often when one discusses copyright reform the retort is that copyright theft is costing billions of dollars. This may or may not be true, but this is not an argument in favor of a copyright system that extends to life plus 70 years.

As the RSC report concluded:

[Our] Founding Fathers wrote the Constitution with explicit instructions …for a limited copyright – not an indefinite monopoly. We must strike this careful Goldilocks-like balance for the consumer and other businesses versus the content producers.

It is difficult to argue that the life of the author plus 70 years is an appropriate copyright term for this purpose – what possible new incentive was given to the content producer for content protection for a term of life plus 70 years vs. a term of life plus 50 years? …

I hope we can all at least agree on that.

Notes

[1] See also H.R. Rep. No. 60-2222, at 7 (1909) (“The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural right that the author has in his writings … but upon the ground that the welfare of the public will be served… . Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given… .”)

[2] See H.R. Rep. 7083, 59th Cong., 2d Sess. 14 (1907).

[3] Also see the interview with Public Enemy’s Chuck D and Hank Shocklee in Stay Free! Magazine: “Public Enemy’s music was affected [by copyright issues for sampling] more than anybody because we were taking thousands of sounds… it was too expensive to defend against a claim. So we had to change our whole style… [in regard to others remixing his songs without permission] my feelings are obvious. I think it’s great.”

[4] William Landes Richard Posner, The Economic Structure of Intellectual Property Law. Cambridge: Harvard University Press, 2003.

[5] Digital Britain (pdf), Final report, Department for Culture, Media, and Sport, June 2009.

[6] Andrew, Gowers, Gowers Review of Intellectual Property (pdf), December 2006, p 6.

In both his memo for the Republican Study Committee and his opening essay for Cato Unbound, Derek Khanna points to several areas where commonsense reforms could make our copyright system more consistent with the Constitution’s requirement that copyright protections promote “the progress of science and the useful arts.” Reducing copyright terms is, as Milton Friedman put it, a “no-brainer.” I’ve also previously written about the anticompetitive effects of the Digital Millennium Copyright Act’s anti-circumvention rules. And we desperately need a solution to the orphan works problem.

I’d like to add another reform to the list: limiting the use of asset seizures to shut down websites in copyright cases. Libertarians have long opposed the use of civil asset forfeiture to enforce drug laws. Unfortunately, Congress expanded the use of this tactic in copyright cases in the 2008 PRO-IP Act. Since 2010, the government has used asset seizures to shutter hundreds of websites allegedly being used for copyright or trademark infringement. The owners of these sites have not gotten a chance to answer the government’s charges in court before they were shut down.

The government’s conduct since the passage of the PRO-IP Act confirms what any libertarian could have predicted: giving the government the power to seize private property without due process is an invitation to abuse.

Under the flimsy legal fiction that the property, rather than its owner, is on trial, civil asset forfeiture allows the government to take property without convicting, or even necessarily accusing, its owner of any crime. The practice raises many of the same due process issues in copyright cases as it does in drug cases—and some unique ones as well. Consider the case of dajaz1.com, a hip hop blog seized by the federal government in December 2010. The federal government claimed that the site hosted pirated music. But the site’s proprietor, Andrew Nasib, told the New York Times that “artists and record companies had sent him the songs for promotional purposes.”

After negotiations with the government proved fruitless, Nasib retained a lawyer and sued for the return of his domain name. The government dragged its feet for months as it sought more information from the recording industry. Eventually, the government returned the domains without explanation or apology in December 2011. Nasib himself was never charged with copyright infringement.

Unlike the property typically seized from accused drug dealers, websites are platforms for speech, and the courts have held that under the First Amendment, the government must afford a speaker due process before limiting his speech.

But the government failed to respect this principle in the Dajaz1 case. Nasib wasn’t given an opportunity to make his case to a judge before his website was shut down. The government deprived him of the ability to communicate with his readers for a full year without ever proving he had committed a crime. It’s hard to see how that is consistent with the First Amendment.

The pre-conviction seizure of domain names is inconsistent with Supreme Court precedents in another respect as well. In 1993, the Supreme Court ruled that the government must “afford notice and a meaningful opportunity to be heard before seizing real property subject to civil forfeiture.” Most drug war seizures are justified under an exception for “exigent circumstances.” For example, the Supreme Court has held that the government can seize a yacht suspected of being used for criminal activity, because otherwise its owner might sail the boat into international waters. But the Supreme Court has said that when the government wants to seize immobile property such as land or buildings, it must afford the owner due process before the seizure.

A domain name is simply an entry in a database. And for the domains the government has been seizing—mostly .com and .org domains—the relevant databases are operated by companies under U.S. jurisdiction. There is no danger that the owner of a domain will move, conceal, or destroy it, as he might with a yacht or a stash of cocaine. Therefore, the same logic suggests that the government has an obligation to afford website owners “notice and a meaningful opportunity to be heard” before taking their domain names. In recent years, it hasn’t done that.

The case of New Zealand resident Kim Dotcom, founder of the once-popular file sharing site Megaupload, is another example of the government abusing its power to seize assets. The site was shut down in a coordinated January 2012 raid involving law enforcement agencies from the United States, New Zealand, and other nations.

Before the raid, Megaupload was one of the world’s most popular websites. And there’s little doubt that many people used it to distribute infringing copies of copyrighted content. But Kim Dotcom argues that he qualifies for the “safe harbor” the Digital Millennium Copyright Act offers to online intermediaries such as YouTube. And in any event, Dotcom has a right to be presumed innocent until the government has proven its charges to a jury.

Yet the government’s mere accusation of copyright infringement was sufficient in effect to destroy Megaupload. The firm’s domain was seized, its servers were shut down, and its assets were frozen. Even if the courts eventually find Dotcom not guilty, it will likely be impossible to rebuild the company after a year or more offline.

Not only is that unfair to Dotcom and inconsistent with the rule of law, it’s bad for innovation as well. Many new media technologies have faced lawsuits from copyright holders. Some of these firms, such as the original Napster file-sharing service, were found liable for copyright infringement. Others, including the creators of the first VCRs, the first MP3 players, and YouTube, have been vindicated by the courts and went on to revolutionize the entertainment industry.

Crucially, all of these firms had the opportunity to make their legal arguments in court before their businesses were shut down. YouTube was allowed to continue operating its website while it fought a legal battle with Viacom. Its servers were not shut down, its assets were not frozen, and its founders were not arrested.

Personally, I think Megaupload was more likely to be the next Napster than the next YouTube. But that’s a call to be made by the courts after hearing arguments from both sides. It’s not a decision that should be made unilaterally by the U.S. government.

The risk of Dajaz1-style seizures and Megaupload-style raids will cause would-be entrepreneurs to give a wide berth to businesses that could be construed as infringing. Maybe that’s not such a bad thing if it means there are fewer Napsters in the future. But it’s a serious problem if it discourages someone from creating the next YouTube.

If Hollywood or the recording industry wants to shut down an online intermediary that facilitates infringement by Internet users, they should do it the old fashioned way: with a civil lawsuit. Civil litigation affords the defendant an opportunity to make its case to a judge before its business is shut down. The approach taken since 2010, in which the federal government unilaterally shutters websites before their owners have gotten a day in court, is inconsistent with the rule of law, unfair to website owners, and discourages online innovation.

I discuss the abuse of asset forfeiture and the broader problem of criminal copyright enforcement in greater detail in chapter 4 of Copyright Unbalanced: From Incentive to Excess, a collection of copyright essays edited by Jerry Brito and published by the Mercatus Center.

Whatever one thinks of Derek Khanna’s RSC memo about copyright reform, it has certainly sparked a vigorous public debate over why copyright exists and what its contours should look like. With Congress taking a breather from copyright after last year’s bruising SOPA battle, now is an opportune time to take a step back and consider what the proper governmental role in the market for creative expressions should be.[1]

In the wake of Khanna’s memo, interested parties have generally coalesced into two very different camps. In one, critics of copyright have embraced the memo, echoing its critique of copyright as a dubious governmental subsidy to creators of expressive works.[2] At best, these critics argue, copyright as it exists today is a necessary evil and should be narrowed considerably; at worst, it is supposedly antithetical to legitimate property rights and free markets.

In the other camp, defenders of strong copyright counter that creators of expressive works have a natural, Lockean right to reap the fruits of their labor.[3] Copyright is said to rest on the same solid foundations as “traditional” property rights in real and personal property. Therefore, just as government helps police against incursions on tangible property, creators of “original works of authorship” deserve the aid of government in excluding others from reproducing and commercially exploiting their expressive works. To many in this camp, copyright as it exists today is in need of only minor tweaks.

While both camps make some valid points, neither offers a complete and cohesive framework for determining the scope of legal rights that governments ought to recognize in expressive works. This essay thus envisions a “third way” to think about copyright, borrowing ideas from both sides of the debate.

We begin with Khanna’s lead essay. He labels copyright a “regulation” and a “subsidy,” justifiable if, and only if, it corrects a market failure. Yet copyright is no more a subsidy to creators than real property rights are to landowners; neither regime guarantees rights-holders a positive economic return, let alone any revenue whatsoever. Both regimes facilitate private and voluntary ordering, leaving to property owners and their assignees the decision of how to exploit their assets and enforce their legal rights. Libertarians should look favorably upon such voluntary transactions.

Khanna also contrasts copyright’s relative youth with the venerable common law tradition of property rights in land and tangible items. But this distinction has little bearing on the legitimacy of copyright, as Professor Adam Mossoff argues. After all, prior to the 15th century—before the invention of the printing press—there was little need for copyright protection.

A more serious criticism of copyright posits that it clashes with traditional property rights. Strictly speaking, there is some truth to this claim; absent copyright protection, someone who owns a printer is free to reproduce any document she hasn’t contractually agreed not to copy.

But of the myriad combinations of words or pixels that can be strung together into distinct expressive works, only a relative few are rendered off-limits by copyright. As far as restrictions on property rights are concerned, copyright’s practical imposition is minimal.

Such comparatively minor curtailments of property rights are not unique to copyright. Before the invention of flight, landowners’ exclusive domain was thought to encompass all the air above their parcels—and all the earth below it. As air travel proliferated, however, courts began to realize that aviation would not get off the ground, so to speak, if flying over a person’s land required his permission. For flights that traverse thousands of land parcels, transacting with each owner would be prohibitively expensive, while the loss to owners resulting from the unauthorized overflights is fairly inconsequential. A series of judicial rulings culminating with the U.S. Supreme Court thus abrogated the longstanding common law doctrine that each landowner’s property extends “to Heaven and Hell,” even though this entailed the sacrifice of an economically useful right.

On the other hand, defenders of robust copyright protection fall prey to another set of fallacies. They often begin with the eminently reasonable proposition that “people who create expressive works deserve to own them and benefit from them,” as Professor Mark Schultz wrote in response to Khanna’s memo. Yet this abstract appeal to natural rights offers little guidance in determining the proper scope of copyright protection. As we’ve already seen, rights in real property have never been treated as unbounded or sacrosanct—and for good reason. Natural rights may justify copyright, but they do not necessitate its existence in any particular form.

Countless individuals expend labor every day to create valuable and novel ideas. Many of these creators enjoy a positive return from their efforts, even though government only recognizes ownership—i.e., “quasi-property” rights that are good against the world—in relatively few categories of creations. For instance, trade secrets (i.e., confidential business plans) lose their protection as quasi-property if they become publicly known, even if by accident. And so-called “hot news” items, or brand new facts diligently gathered by news organizations for commercial distribution, enjoy very limited legal protection against the world. These are two examples of many valuable, non-rival intangibles in which government has refrained from conferring strong ownership rights.

Why don’t all intellectual creations deserve protection as property? The answer, unsurprisingly, lies in unintended consequences. As Professors Thomas Merrill and Henry Smith argue (pdf), recognizing idiosyncratic property rights “create[s] large third-party measurement and error costs and high administrative costs.” In the context of copyright, a work need only embody a modicum of creativity to qualify for automatic copyright protection. Thus, each time a new expression is fixed in a tangible medium, a new property right is created—enclosed by tall and often inscrutable legal fences. Copying these expressive works without the owner’s express or implied permission can entail harsh civil penalties—even though many rightsholders may not mind the appropriation of their works by third parties.

This is not to deny that effective copyright protection generates enormous social benefits. Rather, it is a reminder that policymakers must weigh real-world considerations—chiefly, maximizing human flourishing—in deciding the scope of copyright, just as they consider practical realities in developing property rights in land, financial instruments, inventions, and the like.

In this exercise, first principles and natural rights are relatively unhelpful; as Richard Epstein notes, “[t]here are … no ‘natural’ boundaries [in copyright], similar to the metes and bounds of land” to assist policymakers in designing copyright laws.[4] Indeed, defining and enforcing intangible rights in the modern world entails immensely complex tradeoffs, especially when the Internet is involved.

For all this talk of copyright, it is also worth mentioning that conferring upon creators of expressive works property rights that are good against the world—as opposed to contracts that merely bind specific parties—is far from the only public policy approach to content creation. As Professor Tom W. Bell observes in his upcoming book on copyright:

An author can use property law and tort law to keep his draft works private… . Even though the common law does not protect an author’s expression per se, it protects physical copies of an author’s work and the author’s person. Even absent copyright, then, authors can profit from selling such things as originals, signed copies, performances, and custom works. Authors can also benefit from the right, bestowed by common law on each of us, to transfer what we own on whomsoever we please.

Bell is quite right that copyright is not the only legal regime capable of helping secure to creators the fruits of their intellectual creations. Even so, under present conditions, common law arguably offers too little protection to expressive works. DRM (digital rights management) is too easily circumvented; policing breaches of “click-wrap” contracts is too costly; and tort law offers few meaningful remedies for most unauthorized commercial misappropriations of intellectual works.

To be sure, critics of copyright are right that the Copyright Act abounds with flaws and excesses. But defenders of copyright correctly argue that its core goals are fundamentally sound—and will likely remain so for the foreseeable future. Policymakers should seriously consider the suggestions of thoughtful free market copyright reformers (including Timothy B. Lee, Derek Khanna, and James V. DeLong), but they should think twice before writing off copyright as yet another incarnation of big government excess.

Notes

[1] The Stop Online Piracy Act.

[2] See, e.g., Techdirt’s Mike Masnick, Slate’s Matt Yglesias, and EFF’s Parker Higgins.

[3] See, e.g., Tom Sydnor and Debbie Rose, Professor Adam Mossoff, Precursor’s Scott Cleland, IPI’s Tom Giovanetti.

[4] Quoted in Copyright Unbalanced: From Incentive to Excess.

Derek Khanna’s lead essay, as well as his memo for the Republican Study Committee, urge libertarians and conservatives to rally around copyright reform as both good policy and good politics. While copyright law has its problems—like any statutory scheme, it is far from perfect—pursuing the “way forward” suggested by the lead essay is unlikely to yield policy or politics that are helpful or appealing to advocates of the free market.

If we embark on the path to copyright reform, where we end up very much depends on where we start. Given how the lead essay frames the discussion, it points us to a bad end. I addressed some of my general philosophical and policy disagreements with the RSC memo elsewhere. In this short response essay, I focus on the problems with the lead essay’s portrayal of copyright as “regulation.”

The lead essay describes copyright as a “government-imposed system of regulation.” I fear that this characterization confuses private ordering with government intervention. It proposes to put copyright on a path that likely would lead to more intervention.

In a superficial way, intellectual property rights may indeed seem to resemble the sort of economic regulations that provoke skepticism among free market advocates. For example, it appears that copyright prohibits the remix DJs discussed in the lead essay from freely employing their labor and selling the products of that labor.

The problem with the “regulation” label is that copyright law, in its broad strokes, does not tell anyone what he must and must not do.[1] Copyright only acts as a prohibition if a copyright owner chooses to use it that way. However, there is a vast diversity in how copyright owners actually choose to exercise their rights—they may sell copies at a fixed price, negotiate terms on a case-by-case basis, forgo payment entirely via a Creative Commons license, or simply choose to ignore or tolerate unlicensed uses. Or an owner may simply choose not to license at all. Fair use might override many of these choices, and, in any event, an unhappy potential buyer or user can always attempt to negotiate further.

Like other forms of property, copyright thus represents an invitation to a transaction and an opportunity to bargain. This opportunity for parties to transact and bargain is one of the key differences between property and regulation. A regulator has a duty to enforce the law—and if a regulator chooses not to enforce, then a court may order him to do so. Copyright owners need not enforce their rights, of course. Moreover, it is perfectly legitimate to offer a property owner money to forgo their right to enforce their copyrights; such commercial transactions are really the whole point of copyright. Make the same offer to a regulator, and you go to jail.

The distinction here between property and regulation ought to matter to conservatives and libertarians. We are rightly concerned that regulation impedes freedom. We typically embrace the exercise of property rights as furthering freedom. How we classify a copyright owner’s actions—regulation or property—makes a difference, particularly when they are stubbornly refusing to allow others to use their works in the way that others deem most prudent and efficient.

The rhetorical application of the “regulation” label tends to undermine support for the exercise of property rights. Advocates of free markets generally supported the rights of Susette Kelo and her neighbors when they resisted the city of New London taking of their property to give to another private party in the Kelo v. City of New London case. Nobody vilified Kelo and her neighbors as “regulators” for exercising their property rights, first by refusing to sell and then by fighting the city’s taking of their property. While Kelo’s opponents won anyway, their path certainly would have been even smoother if the city could have pulled the neat rhetorical trick of casting Kelo and her fellow plaintiffs as the bullying “regulators.”

Some will object that the analogy is inapt because tangible property differs from intangible property. While they do indeed differ in important ways, I’m not convinced that the difference matters in this context. The great virtue of property rights is that they push decisionmaking and power down to the lowest level possible, empowering owners to decide what uses best supports their needs to succeed and flourish in life. Property rights also put decisions in the hands of those with the best information and biggest stake in getting things right—the owner of the right and his customers and trading partners. These features make property rights both efficient and liberating. The virtues are the same whether the property is tangible or intangible.

I thus find it unfortunate when copyright owners’ exercise of their freedom to choose is characterized as regulation. The concern underlying such rhetoric seems to be solely for the freedom of would-be users of creative works, rather than those who created or financed them. Framing the issue this way loses sight of the virtues of the liberties supported by property rights.

An appreciation of the virtues of copyright-as-property can also highlight the possibilities for a different type of copyright reform—the continuous reform that results from private action. As property, copyright is incredibly malleable, allowing tremendous choice and freedom for owners and users to reach their own arrangements. And, in fact, they do.

Take, for example, the problem of anti-copying technology, or digital rights management (DRM). Around the turn of the century, DRM was a cause célèbre among academics and activists.[2] They feared that it would interfere with fair use, violate privacy, and severely restrict traditional uses of copyrighted works, such as borrowing and sharing among friends. Consumers also often found DRM annoying, as it made works hard to transfer among devices.

These objections to DRM have never been fully addressed or eliminated, but they have been greatly tempered by what one might call copyright reform without government intervention. Or, at least one might refer to it as business model reform in lieu of law reform. Over the years, DRM on recorded music has been dropped as Apple convinced record labels to ease control in order to better serve consumers. Some publishers publish e-books without DRM. Others, such as Amazon, attempt to emulate traditional forms of sharing by allowing limited sharing of e-books.

While none of these changes to DRM go as far as some advocates would prefer, they represent a significant evolution from the DRM policies of a decade ago. At least for consumers, we are far from the locked-down dystopia many anti-DRM commentators then feared. The private ordering enabled by copyright’s property regime has made these changes possible.

Perhaps more significantly, copyright’s private ordering regime facilitates important reform movements such as Creative Commons and the open source movement. These developments have allowed creators to address shortcomings in the copyright system through private action.

One potential problem with a copyright reform that views copyright owners as “regulators” is that it may insert government regulators (further) into the copyright industries to ensure that a proper balance is achieved. One problem with this result is regulatory complexity—complexity of the sort that smothers entrepreneurship. The Copyright Act already contains such provisions. For example, Section 111 contains a lengthy and complex compulsory licensing regime for collecting and divvying up royalties from cable television providers administered by the Copyright Office and the Copyright Royalty Board. A resource for documentary filmmakers referred to these “retransmission” royalties as television’s “multi-million dollar secret”, because of the complexity and expense of the process tends to leave out those with fewer resources.

Perhaps a palatable form of copyright reform might focus on the challenges that the copyright system poses to entrepreneurial “creative upstarts.” Unlike a reform that promotes an abstract and unattainable balance between individual and collective interests, a reform focused on emerging content providers would focus on making the copyright system work more efficiently for creators. For example, the DMCA’s notice and takedown system is often criticized for its chilling effects, particularly as that system is used by larger, established companies. However, independent creators can find the notice and takedown system both prohibitively time consuming and frustratingly ineffective. A worthy reform would make the system easier and more effective for creative upstarts.

Copyright reforms itself, given sufficient market incentives or effective civil society advocacy. The reforms may not be as deep or far-reaching as some may prefer. They may never address the issues that raise the greatest ideological passion, such as copyright terms. But for all that, copyright practices and copyright-based business models change greatly and frequently precisely because of the control afforded by property rights. Such private ordering is something that conservatives and libertarians can and should embrace rather than vilify as regulatory excess.

Notes

[1]Section 106 of the Copyright Act sets forth, in clear and simple terms, the rights of copyright owners, but it makes those rights subject to sections 107–120, many of which contain a myriad of detailed regulatory type provisions. I leave it the reader to determine whether such departures from a property regime are a feature or a bug.

[2] See for example the work of Professor Julie Cohen.

Libertarians love to argue about whether copyrights are better conceived of as a kind of property right or as a coercive regulatory scheme. The question is fun to argue about, but it’s also something of a distraction. That’s because the recent changes to copyright law that Derek Khanna and others have been criticizing aren’t defensible even if we grant Mark Schultz’s premise that copyright protections are just another kind of property right.

The asset seizure powers I explored in my essay last week are an obvious example. Libertarians have long regarded the government’s power of civil asset forfeiture a major threat to secure property rights. We should be just as outraged by the use of this power to enforce copyright laws as we are when it’s used to enforce drug laws.

Radia makes a plausible argument that copyright protections are not a government subsidy to authors. He’s right that when Congress establishes a copyright system, it doesn’t confer benefits on any specific person. Rather, it sets up a system where everyone has an equal opportunity to benefit by producing creative works that consumers wish to purchase. The market, not the government, decides who benefits.

But it’s much harder to make this type of argument for retroactively extending copyright protections on already-existing works. Retroactive extensions are not an open invitation for anyone to create new works and reap the benefits. Rather, they effectively transfer wealth from the general public to particular individuals who hold the copyrights for extant works. It’s hard to see how this kind of rent-seeking is consistent with free-market principles.

The comparison of copyright protection to other forms of property also underscores the need for orphan works reform. Property law has several legal doctrines, including those of adverse possession and abandonment, that ensure that real and personal property do not fall into a state of legal limbo where no one has the right to use them.

Copyright once had a similar set of rules. To get copyright protection before 1976, you had to print a copyright notice on the work, register the work with the Copyright Office, and renew the copyright after a fixed period of time. These formalities helped to ensure that copyright holders could be found easily. If you didn’t take these steps, the works would fall into the public domain so that others could use them.

Unfortunately, Congress dismantled that system. As a result we now have an “orphan works” problem, in which thousands of copyrighted works sit idle because no one knows who owns their copyrights. We ought to make the copyright system more like traditional property rights by creating a process where unused copyrights become available for use by the public. My first choice would be to re-institute the so-called formalities, but establishing an orphan works defense to copyright infringement would be another reasonable option.

Schultz’s analogy between copyright protection and traditional property rights is also unkind to the anti-circumvention provisions of the Digital Millennium Copyright Act. Digital rights management technology is often characterized as the digital equivalent of physical locks. But the DMCA is far more radical than laws governing traditional locks. In most states lock picking is only illegal if it’s done for an unlawful purpose. Picking the lock to your own house or car, for example, isn’t illegal. In contrast, the DMCA makes DRM circumvention flatly illegal—even if the underlying purpose of the circumvention is completely legal—unless the use has been approved by federal regulators.

Moreover, the DMCA criminalizes the creation and distribution of “circumvention tools.” That’s like making it a federal felony to manufacture or distribute lock-picking tools. Yet locksmithing is a legitimate profession. Practicing its digital equivalent is a felony.

So I’m happy to accept Mark Schultz’s argument that copyright can be usefully conceived as a form of property right. I hope he’ll join me in advocating reforms that would make our dysfunctional system work more like the traditional property system.

Timothy Lee implores us to descend from our theoretical perches and focus on concrete reforms to the Copyright Act. For his part, Tim asks Congress to revisit the law to address civil asset forfeiture, the “orphan works” problem, and the ban on tools that circumvent content protection.

I welcome Lee’s call to get specific on copyright reform. But before diving into the details, we should ask ourselves what an ideal copyright reform bill would accomplish. Should it focus on reining in the “excesses” of copyright in hopes of restoring “balance” to the law? Or should reform primarily seek to combat the widespread copyright infringement that accounts for a big chunk of Internet traffic?

Notably, Lee’s essay makes no mention of reforms that would enhance the enforcement of copyrights. By the same token, Mark Schultz’s essay does not discuss how to rein in the Copyright Act; instead, he proposes tweaks to the DMCA’s notice-and-takedown regime that would make it easier for “creative upstarts” to stop “video pirates from hijacking [their] work.”

This divide is telling. As I discussed in my previous essay, libertarian copyright reformers tend to come from two camps. One side believes copyright laws confer too much protection on expressive works; the other believes the law does too little to prevent the unauthorized commercial exploitation of these works. Areas of agreement between these two camps are few and far between.

Why such polarization? Perhaps it’s because libertarians who comment on public policy are understandably accustomed to fighting intellectual battles in which one side plainly has the better argument. For the most part, policy debates tend to pit forward-looking “dynamists” against authoritarian “stasists,” to borrow labels from Virginia Postrel’s wonderful The Future and its Enemies. In other words, channeling Thomas Sowell’s A Conflict of Visions, the “constrained vision” that recognizes tradeoffs and rational self-interest tends to square off against the “unconstrained vision,” which embraces central planning and moral perfection of humankind.

But if the questions surrounding the scope of copyright protection are as complicated and nuanced as I argue they are, the admirable doggedness that characterizes many libertarians may be counterproductive when it comes to copyright. It may lead libertarian skeptics of copyright to take an overly dim view of conferring quasi-property rights on expressive works, while also causing proponents of copyright to underestimate the social costs of fencing and enforcing exclusive rights in intellectual creations.

Both sides would be wise to recognize that Congress is unlikely to agree anytime soon on legislation that would decisively swing the copyright pendulum in either direction. On the one hand, aggressively ramping up enforcement is a non-starter, as last year’s SOPA saga illustrated. On the other, no one in Congress is seriously entertaining Tom Bell’s audacious proposal to restore the “Founders’ Copyright Act,” which would grant copyright protection to nothing but maps, charts, and books for a renewable 14-year term.

What would a balanced copyright reform bill look like? Let’s begin with the question of how to bolster copyright enforcement.

Improving Copyright Enforcement

While SOPA was undoubtedly an overreaction to the problem of “rogue websites” —i.e., foreign websites dedicated to trafficking in counterfeit goods and/or distributing copyright infringing content—it hardly follows that Congress should do nothing about these websites. To the extent that genuinely bad actors are profiting from infringement while ignoring legitimate takedown requests, U.S. laws should provide a legal process to restrict the rogue websites’ ability to monetize their activities using American payment processors and advertising networks. SOPA sought to create such a process, but it lacked adequate procedural protections and risked ensnaring innocent websites.

How should U.S. laws treat a foreign website that stands accused of intentionally committing copyright infringement, or of knowingly furthering its users’ infringing activities? Before any adverse action is taken, the website must have an opportunity to defend itself before a federal judge.[1] And regardless of whether the website’s lawyers even show up in court, a site should only be deemed a “rogue website” if and when the court is satisfied with the evidence implicating the site. Upon such a finding, U.S.-based firms that process payments for the rogue website, or serve ads on it, should be required to stop doing business with the site. These payment processors and ad networks should be compensated for any compliance costs they incur in cutting off rogue websites, just as current law provides for phone companies to be reimbursed for their costs of assisting law enforcement agencies with wiretaps.

What about websites based in the United States? Mark Schultz suggests that Congress revisit the DMCA notice-and-takedown process. He’s right. Under this 1998 law’s safe harbor provisions, websites that serve as electronic intermediaries—i.e., websites that host user-generated content—are generally immune from copyright liability for their users’ infringing actions so long as they meet certain obligations. Chief among these is that websites must promptly remove infringing material upon receiving a takedown notice from the content owner.

While this system has many virtues, and may well have played a major role in enabling the profound growth of user-generated websites—including YouTube, Facebook, and Twitter—the notice-and-takedown process has its share of critics. For instance, Doug Lichtman and Eric Posner argue that the DMCA safe harbor gives online intermediaries little incentive to do anything beyond the bare minimum to stop copyright infringement. Thus, Lichtman and Posner argue, the law inefficiently tips the scales in favor of service providers, hurting content creators—and, ultimately, consumers as well. Other DMCA critics often liken the notice-and-takedown process to the game of Whac-A-Mole, requiring rights holders to devote significant resources to taking down infringing files one by one. And given how quickly infringing files can be re-uploaded after being removed, even creators who vigilantly police the Internet for unauthorized copies of their works may find themselves unable to stem the tide of infringement.

Regrettably, I know of no smart legislative solution to these problems—but that does not mean no solution exists. The Senate and House Judiciary Committees should carefully investigate the legitimate criticisms of the DMCA safe harbor and explore how the law might be improved. To be sure, navigating these waters won’t be easy, and lawmakers must understand that serious unintended consequences could ensue if DMCA changes impose bigger burdens on Internet intermediaries to detect and combat their users’ copyright infringement activities. Some readers may doubt whether Congress can even agree on positive changes to the DMCA, imperfect though the law may be. But this type of legislative exercise—weighing complex tradeoffs, gathering evidence, and ultimately making tough policy choices under uncertainty—is crucial if beneficial copyright reform is to occur.

Reining in Copyright’s Excesses

We now turn to the dark side of the Copyright Act: its many draconian, obsolete, or borderline unconstitutional provisions.

In Tim Lee’s reaction essay, he makes a forceful case against the seizure of website domain names accused of facilitating copyright infringement. Without delving into the broader problems posed by civil asset forfeiture, Congress should at the very minimum revise the 2008 PRO-IP Act to strip the U.S. government of the power to seize domain names of alleged “pirate website” without a trial or even an adversarial hearing. [2] While this change might mean some genuinely bad actors could keep their websites up and running—and, potentially, facilitating copyright infringement—for a longer time period, this is the price we as a society must pay as long as our Constitution guarantees us due process of law and the freedom of speech.

Lee is also right to criticize the DMCA’s overbroad prohibition and criminalization of tools that circumvent digital rights management. [3] While DRM can be a valuable fence, so to speak, enabling content owners to better protect their expressive works from misappropriation, there are also many legitimate and lawful reasons to circumvent DRM. For instance, making fair use of a creative work may be impossible without first removing digital copy restrictions. Or an iPhone owner who wants to maximize her phone’s potential and use lawfully obtained applications may first need to “jailbreak” her device, which among other things entails circumvention of the iPhone’s digital rights management.

Yet under the DMCA’s anti-circumvention provisions, it’s illegal to “circumvent a technological measure that effectively controls access to a work protected under this title.” [4] Violators of this law are subject to copyright infringement liability—or, in severe cases, criminal prosecution. There is an escape valve in the law: the Library of Congress, in consultation with the Register of Copyrights, may exempt categories of circumvention from the DMCA ban. But this process is cumbersome, inexact, and fundamentally broken, as the Electronic Frontier Foundation has long argued.

How should the Copyright Act address tools that circumvent copy protection? The same way it has long addressed acts that further or contribute to the infringing activities of others: contributory liability. Companies and individuals who sell or create tools that materially contribute to copyright infringement should be liable for these infringing acts—unless the tools are capable of commercially significant noninfringing uses, as the U.S. Supreme Court held in its famous “Betamax” opinion in 1984. [5] With respect to firms that distribute tools that circumvent copy protection, courts should assess on a case-by-case basis whether these tools are designed and marketed primarily for legal or infringing purposes.

There are many other problems with the Copyright Act that Congress ought to address. For one, as Jim DeLong recently argued, Congress should impose a “one-time requirement of registration of existing works to get rid of the orphan-works problem,” and going forward, should mandate “centralized databases to reduce transaction costs.” Congress should also reduce statutory damages for copyright infringement, whereby infringers are liable for draconian penalties of up to $9,000 per work, as Jammie Thomas-Rasset learned the hard way.

The Road Ahead

The wounds that SOPA inflicted on politicians will take years to heal, making serious copyright reform a long-term hope at best. Meanwhile, Congress should seize this opportunity to explore the challenging questions that surround the future of copyright.

Notes

[1] See Professors’ Letter in Opposition to “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011,” July 5, 2011, at http://www.scribd.com/doc/59241037/PROTECT-IP-Letter-Final.

[2] See Walter Olson, Civil Asset Forfeiture and the ‘Piratical’ State, Cato at Liberty, May 21, 2012, at http://www.cato.org/blog/civil-asset-forfeiture-piratical-state.

[3] See Timothy B. Lee, Circumventing Competition: The Perverse Consequences of the Digital Millennium Copyright Act, Cato Institute Policy Analysis, No. 564, Mar. 21, 2006, available at http://www.cato.org/publications/policy-analysis/circumventing-competition-perverse-consequences-digital-millennium-copyright-act.

[4] 17 U.S.C. §§ 1201-05, at http://www.law.cornell.edu/uscode/text/17/1201.

[5] Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), at http://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Universal_City_Studios,_Inc.

There’s much I agree with in Ryan Radia’s latest missive. Ryan endorses reforms to the asset seizure provisions of the PRO-IP Act and the anti-circumvention provisions of the DMCA, and he shares my view that Congress should address the orphan works problem.

But I think Ryan paints a misleading picture of a balanced debate over copyright policy. It’s true, of course, that one side wants stronger copyright protection while the other side wants protections to be weaker—that’s how political debates tend to work. But Ryan fails to acknowledge just how lopsided the debate over copyright has been in recent decades. In the 80s, 90s, and 00s, Congress routinely passed bills extending copyright terms, increasing the penalties for infringement, and expanding copyright enforcement. Congress passed more than a dozen copyright bills between 1976 and 2008. Every single one of them made the copyright system friendlier to copyright holders.

Ryan complains that my previous piece “makes no mention of reforms that would enhance the enforcement of copyrights.” But that’s largely because there aren’t very many “enhancements” left to try. The reason Hollywood overreached in such a grotesque fashion with the Stop Online Piracy Act is that by 2011 Congress had already enacted all the less draconian ideas on the industry’s wishlist. Congress had already ratcheted up the penalties for enforcement (several times), banned the circumvention of DRM schemes, criminalized camcording in movie theaters, created an IP enforcement czar, given the government the power to seize infringing websites, and much more. If more enforcement powers were the key to stopping infringement, they would have done the trick by now.

I don’t agree with Ryan’s suggestion that the DMCA’s notice-and-takedown regime needs to be overhauled to make it more friendly to copyright holders. Doug Lichtman and Eric Posner argue that the law gives intermediaries insufficient incentive to take active steps to combat infringement, yet many intermediaries have done just that. YouTube has developed the ContentID system to automatically filter out (or allow rights-holders to automatically monetize) infringing uploads. Major broadband ISPs have signed onto a “graduated response” regime that will penalize repeat infringers.

That’s not to say there isn’t room for compromise. I don’t have an objection, in principle, to a legal process for cutting off the revenue streams of overseas sites dedicated to infringement. But given how far Congress has tilted the copyright system in Hollywood’s favor of the last four decades, it’s absurd to suggest that we should start by making the system even more friendly to large copyright holders.

Rather, as Derek Khanna and others have argued, the most urgent items on the copyright reform agenda are all in the opposite direction: shorter terms, asset seizure reform, fixing the orphan works problem, liberalizing the DMCA’s anti-circumvention rule, reducing draconian “statutory damages,” and so forth. Congress may be too beholden to major content companies to enact any of these reforms in the near future. But at least reformers now seem sufficiently well-organized to stop bills that would tilt the system even more in Hollywood’s favor.

Mark Schultz’s response essay fails to address the reforms put forward in my own essay. This despite the fact that in his reply to the RSC memo at Copyright Alliance, he stated that “we can and should debate many instrumental issues regarding the definition of rights and remedies – copyright term, damages, criminal penalties, and asset forfeiture are all fair game…” Copyright terms and damages were two of the major reforms outlined in our memo and my Cato Unbound lead essay. Schultz implies that I am against copyright and perhaps all intellectual property – to be very clear, I am strongly in favor of copyright and profit for the content producer. My strong and continued support for copyright does not change the fact that copyright’s term is far too long, the damages are absurd, and the fair use provisions stifle innovation and depress content and profit for all market participants.

Schultz’s argument, particularly in the Copyright Alliance essay, is premised upon natural rights and as such he discounts the idea that copyright is a government created instrument designed to foster innovation and provide compensation to the copyright holder. Outside of this conversation, content industry lobbyists and thought leaders have also argued that copyright is a natural right rather than addressing why a copyright term of life plus 70 years is appropriate. But natural rights are not a self-evident response to the reforms suggested and the problems outlined.

In addition, it is also not the system that we have chosen to adopt in the United States.

Schultz never addresses the proposed reforms to copyright length, damages, and fair use, and instead he appears to dismiss these outright as merely arguments in favor of sensible “regulation” – a term, regulation, which he doesn’t believe copyright to be. He does so despite the fact that the Supreme Court held in its first case on copyright, and in subsequent cases, “Congress… by this act, instead of sanctioning an existing right… created it.”[1] And Tim Lee points out that our current copyright law isn’t defensible “even if we grant Mark Schultz’s premise that copyright protections are just another kind of property right.”

Natural rights are not a counter response to proposals for reform, because if copyright is a natural right then where would that leave us? How is that the simple answer to every question? Would copyright therefore supersede the Constitution in a transcendental sense when they are in conflict? The natural rights argument is not a response because even in real property there are limits to property rights. The Constitution clearly limits copyright in duration and provides a very particular purpose for this privilege. Some on the left argue that copyright is a human right[2] that supersedes the Constitution, but I don’t think this is what Schultz and others mean.

The idea of copyright being a natural right is an interesting intellectual discussion, but that’s not the system that the United States chose to adopt. As will be shown, the Founders were aware of the argument holding that copyright was a natural right, and they rejected this argument and created a constitutional and legal regime designed to prevent it.

Our Founders were in fact quite familiar with copyright. Books were a content that they were very familiar with – many of them read more than we do – particularly the largely affluent property holders who were writing the Constitution and early laws. Far from being alien to the world of content creation, they had experienced a regime of indefinite copyright and they explicitly rejected this system. The limited copyright system in our Constitution was not the default conception of what copyright as a concept was – rather it reflected a conscious rejection of the ideology of indefinite copyright.

Yet today, a system of near indefinite copyright is precisely what we have.

The End of Perpetual Copyright

In 1710, the Parliament of Great Britain passed the Statute of Anne which “was designed to destroy the booksellers’ monopoly of the book trade and to prevent its recurrence.”[3] In so doing it limited copyright to two fourteen-year terms. The goal of the statute was to encourage content creation and ensure a public domain by putting an end to “the continued use of copyright as a device of censorship.”[4] The statute’s long title identifies its purpose as “an act for the encouragement of learning…”[5] This marked a radical shift from the previous ideology.

This was not a change without opponents; it was challenged in the British court system by those who argued that the statute was a violation of their natural rights – precisely the argument proffered by some in favor of indefinite copyright. It was challenged all the way to the highest court in the land, at the time the House of Lords, and the court rejected the arguments in favor of indefinite copyright.[6]

With some exceptions, British law was the law of the land in the colonies. Our Founders were on both sides of the copyright argument, and the ideas of natural rights and perpetual copyright were discussed, debated, and litigated all to the highest courts in the land in the 18th century.

As the British Parliament and court had done before, our Founders rejected that argument.

Codifying a Limited Copyright

Our Founders codified this perspective in the Constitution in Article I, Section 8, Clause 8. Law professors Joseph Singer[7] and Tom W. Bell explain that the Framers relied on the Statute of Anne when drafting the this clause, which reads, “The Congress shall have Power… to promote the Progress of Science… by securing for limited times to authors… the exclusive right to their respective writings.” The Copyright Clause was intended “to be the engine of free expression.”[8] This clause is the only clause in Article 1, Section 8, which outlines specific congressional powers, that conditions the enumerated power on a particular purpose.

Then our Founders fully fleshed out an optimal copyright system for their times, which is in many ways almost identical to the Statute of Anne, although it expanded copyright to maps and charts in addition to books. Singer explains that Congress directly transferred the principles from the Statute of Anne into the copyright law of the United States in 1783, first through a recommendation to the states to enact similar copyright laws, and then in 1790, with the passage of the first federal copyright statute. They tried to strike the careful balance of not too much or too little copyright protection. States passed their own copyright laws and seven states provided for two fourteen-year terms, North Carolina provided for one fourteen-year term, and three states provided for one twenty-one-year term.[9] At the federal level, the 1790 Copyright law had a fourteen-year term of copyright upon registration, and an optional fourteen-year renewal if the author was still alive. In critical distinction to copyright law of today, it was a system where the copyright owner had to opt-in to receive copyright.

Even so, codifying this perspective in the Constitution, in federal law and in state law was challenged by opponents to any limitations on indefinite copyright. The Supreme Court affirmed the system of opt-in copyright for a limited period of time. In the Court’s first case on copyright some decades after the ratification of the Constitution it held that, “Congress, by the act of 1790, instead of sanctioning an existing perpetual right in an author in his works, created the right secured for a limited time by the provisions of that law.”[10] It has reiterated this position and interpreted the clause as requiring the Congress to consider various interests such as maximizing content production and profit for all market participants and new business models while also providing for a public domain.

There are certainly legitimate arguments that copyright should be longer than that of our Founders because of certain market conditions that are different from their day – but there are not legitimate argument to say that a system of indefinite copyright abides by the Constitution or our the express intentions of our Founders.

Despite the American history on Copyright, some still argue that copyright should be or could be a perpetual right that exists forever. Many of them have lobbied successfully on a regular basis to ensure that certain highly-lucrative works never enter the public domain. Some against copyright reform hide behind the shadows of claiming that they are not for an indefinite copyright – but every twenty/thirty years they lobby to extend copyright from 56 years, to life + 50, to life +70. It’s very clear what their intentions are. They intend and have largely succeeded in destroying anything of value entering the public domain. Success in perverting the law should not be misinterpreted for constitutional fidelity despite their property law arguments using 18th century vernacular. These proponents are arguing for something very different from what the Founders believed.

Frankly they lost the argument 226 years ago. The Founders explicitly rejected this position.

Public Policy Questions

So property or regulation, the questions are largely the same (as Tim Lee argues here). The natural rights argument was rejected by the British system and our system but also fails to address many of the core public policy questions. What procedures and institutions should we have to protect copyright? How long should copyright last? Constitutionally, the answer can’t be forever. Should copyright be automatic or require some affirmative choice to opt-in by the copyright holder? If it’s automatic, that’s a radically different system from that of our Founders, but would that mean that even a note on a napkin to a friend would be under copyright? Isn’t there some limit to what a content producer is?

As for enforcement mechanisms, the natural rights argument is even less self-evident. We have created laws like the Digital Millennium Copyright Act (DMCA) that take a very particular approach to protect copyright that impacts free speech by enabling a hecklers’ veto even of political speech that people don’t like, and we have decided that many forms of technology are by their nature “contraband” for which the government can place you in jail for up to five years. Under this law, even discussing some of these technologies can result in fines, jail time, and your website being shut down. What are they? They are technologies like how to back up a DVD to your PC, how to unlock your phone to use a different carrier while abroad, and enabling an e-book to be read aloud to the blind. While the first two are completely illegal now, the later receives an exception every three years from the Librarian of Congress. These reflect a particular choice on how to effectuate copyright protection in positive law and they are not the only ways to do so or even the most effective – and it’s for these reasons that we have to decide the public policy considerations to craft smart sensible laws on copyright.

The relevant public policy–related questions on copyright are clear. How do we maximize content production? And how do we ensure authors and artists a large profit, but also ensure that new market participants can also make money – either 1) through derivative works after a copyright has expired or 2) under an expanded fair use policy while the content is under copyright?

Far from being against profit, I am in favor of more profit, for more artists and for new emerging and disruptive industries. I wholeheartedly support copyright, but not forever.

We must balance individual’s large earned profits against the importance of the public domain. With most works, after the first few years of a work’s publication it has exhausted most of its earnings capacity. As a result, having these works enter the public domain after a significant earning period ensures large profit for the content producers as was mentioned in my lead Cato Unbound essay, using supporting studies. There is simply no basis to justify the claim that life plus 70 provides new incentives to content producers. And here is a new study to add to the previous ones in support of that point. Instead, life plus 70 actually depresses the available content, limits emerging markets, and hinders innovation. Many works of art and nonfiction are building upon the content of previous works. As I mentioned, even Steamboat Willie is just one such example.

But in addition to the impact upon innovation, content creation, and businesses, we must also think of the personal impact. Imagine a child from a disadvantaged family who studies every day with hopes of being the first in his family to go to college. What would be the impact for such a child of a world where all literature and nonfiction works are eventually (after a suitably long time period for profit) available for free at the click of the button? The true value of the public domain in a web-enabled world cannot be understated. The societal impact, particularly on education, could be astounding. The Supreme Court has also recognized the importance of the public domain for this and other purposes.[12] Of course, as stated above, the importance of the public domain must be weighed against providing a profit for the content producer.

So my questions for Mark Schultz and others are:

1. How do you justify a copyright term of life plus 70 years?
2. Will you support extending copyright further the next time it’s up for extension when Steamboat Willie may enter the public domain in 2019?
3. Do you support a copyright protection law, that, as of Saturday, made it illegal to unlock your own phone?
4. Do you think it’s appropriate that courts can issue injunctions to shut down websites that even discuss how to unlock your own phone?
5. Do you think it’s reasonable that every three years groups like the American Foundation for the Blind have to lobby the Librarian of Congress to protect an exception for the blind allowing for adaptive technology allowing for books to be read aloud, because, without this exception, it would be a violation of the DMCA?

Notes

[1] Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834)

[2] Fischman Afori, Human Rights and Copyright: The Introduction of Natural Law Considerations into American Copyright Law, 14 Fordham Intell. Prop. Media & Ent. L.J. 497, 550 (2004)

[3] L. Ray Patterson, Understanding the Copyright Clause, 47 J. Copyright Soc’y USA 365, 379 (2000)

[4] Ibid.

[5] Statute of Anne, 8 Ann., c. 19 (1710).

[6] Donaldson v. Beckett, 1 Eng. Rep. 847 (H.L. 1774).

[7] Joseph Singer, Property Law: Rules, Policies, and Practices, 219-221 (2010).

[8] Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985).

[9] Craig W. Dallon, The Problem with Congress and Copyright Law: Forgetting the Past and Ignoring the Public Interest,” 44 Santa Clara L. Rev. 365, 418 (2004)

[10] Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 593 (1834)

[11] See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994); Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349-50 (1991); Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984), discussing the objective of copyright monopoly, which lies in the public benefit from the labor of authors; for a thorough review of the steadfast rejection of the natural law theory of copyright by the Court, due to the interpretation given to the constitutional clause, see Marci Hamilton, Copyright at the Supreme Court: A Jurisprudence of Deference, 47 J. Copyright Soc’y U.S.A. 317 (2000).

[12] See United States v. Paramount Pictures, Inc., 334 U.S. 131, 158, (1948); Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984).

Timothy Lee is skeptical that U.S. lawmakers can do much more to combat copyright infringement, given the myriad recent reforms that have tried—and failed—to tackle the problem. If legislative efforts spanning the past several decades haven’t stemmed the tide of infringement, why should we expect Congress to get it right the next time copyright reform comes up?

Lee’s argument is reminiscent of Professor Tom Bell’s 2008 Cato Unbound essay, Towards a Copyriot Act — And Away From It, Again. In it, Bell posits a future in which copyright infringement is rampant and worsening. In response, at the urging of content creators, lawmakers enact the “Copyriot Act” – a law that imposes the death penalty on anyone convicted of copyright infringement. Because individuals tend to overestimate the likelihood of especially dreadful risks, Bell explains, the government would only need to execute a handful of Copyriot Act violators to send a strong message to other would-be infringers.

Also echoing Lee’s argument, the Mercatus Center’s Adam Thierer observed in a 2011 essay that “[c]opyright is dying … bit by bit.” He frets that “[n]o amount of legislating or regulating will likely reverse” the erosion of copyright protection. Thierer hopes that as the Internet evolves, so too will business models and strategies for monetizing content that can thrive without copyright protection—including cross-subsidies, paywalls, ad-supported content, and vertical integration.

Lee, Bell, and Thierer are right to recognize that widespread copyright infringement is here to stay. So long as cheaply accessing unauthorized digital content remains immensely popular, nothing short of draconian penalties will suffice to deter such infringement. Even SOPA—which essentially sought to deputize Internet intermediaries under pain of DNS blocking—probably wouldn’t have made a major dent in infringement, as Larry Downes has argued.

Despite these sobering realities, however, lawmakers shouldn’t throw in the towel and declare copyright a lost cause just yet. Admittedly, it’s easy to overestimate the marginal benefits of legislative efforts to improve copyright enforcement. And some proposed reforms may even do more harm than good, as SOPA illustrated. On the other hand, imperfect enforcement “solutions” may be better than doing nothing at all, especially given how quickly modes of infringement evolve in response to litigation and enforcement.

Consider the January 2012 seizure and shutdown of Megaupload, a notoriously popular file-sharing website based in Hong Kong. Setting aside the illegal and gratuitously militaristic raid of the Megaupload CEO’s New Zealand mansion and the questionable criminal prosecution of the firm’s top brass—among many other serious procedural problems—ridding the Internet of Megaupload was almost certainly the right thing to do.

According to the U.S. government’s indictment of the site, its employees knew full well their users were exchanging infringing content on an epic scale. The site failed to terminate users who repeatedly uploaded content known to be infringing, while one employee even used the site to download an unauthorized copy of an episode of The Sopranos. At its peak, Megaupload reportedly accounted for 4 percent of global Internet traffic—and allegedly netted its owners a whopping 175 million dollars.

Yet had it not been for years of cooperation among law enforcement entities spanning the globe, Megaupload may well have continued to thrive to this day—at the expense of content creators and their fans. U.S. officials and international bodies deserve some credit for pressuring other governments to keep copyright laws up to date, even if the resulting agreements are anything but perfect.

Lee is probably right that more fruitful opportunities exist for Congress to rein in the Copyright Act’s excesses than to improve the enforcement of copyrights. I’d love to see Congress do anything to improve the copyright laws, even if it means leaving some problems to be solved another day. Given the perpetually dysfunctional state of Congress, however, I suspect we have much more time to discuss and debate copyright reform before it sees the light of day.

One of my biggest questions after reviewing the other responses as well as the lead essay is this: “Where are the creators?” The copyright policy debate is often rather vague on certain key points. Amid the discussion of weighing and balancing interests, “corporate welfare,” and tragic obstacles to remix culture, there is a notable silence.

Too often, the modern copyright debate overlooks the fact that copyright concerns creative works made by real people, and that the creation and commercialization of these works requires entrepreneurial risk taking. A debate that overlooks these facts is factually, morally, and economically deficient. Any reform that arises from such a context is likely to be both unjust and economically harmful.

I am genuinely puzzled when copyright discussions treat creative works if they are a pre-existing resource that the government arbitrarily allocates. They are not. They aren’t an imaginary regulatory entitlement, such as pollution credits. They aren’t leases or mineral rights on public land handed out to political cronies. Creative works are, instead, the productive intellectual labor of private parties. Real people make this stuff.

At this point in the discussion, a common rhetorical move is to reject what some scholars describe as the romantic myth of authorship. Copyright skeptics point out that authors build on the work of others and that many creative works are the work of corporations, not individuals. This argument was provoked by many decades—a couple centuries, really—of rhetoric that put the individual author on a pedestal. Even if one concedes that authors have, perhaps, been idealized, taking them for granted goes too far.

The absence of creators from the critique of copyright is one of many reasons I doubt the political (and moral) appeal of much of the case for copyright reform we have heard from a few libertarians and conservatives. At the risk of dredging up tiresome memories from the recent presidential election, the argument over “you didn’t build that” was very familiar to me as a scholar of copyright. In both instances, there is a divide between those who value (or, even, romanticize) individual achievement and those who emphasize how much that achievement depends on a social context.

Instead of rehashing that recent discussion, I will make a political point instead: Do aspiring libertarian and conservative reformers of copyright really expect their comrades to embrace a cause that recalls the refrain “you didn’t build that”? I’m skeptical that most free marketers, outside of the echo chamber of the blogosphere, are concerned that allegedly unbalanced copyright is rewarding copyright owners too much and believe that our primary concern should rather be social welfare. Regardless of the merits, I don’t see such arguments bringing conservatives and libertarians to the barricades.

I suppose a further response here might say that my talk of creators is misplaced. After all, this argument goes, big media corporations, not individual creators, are the true beneficiaries of copyright. This is the point in the discussion where people often try to point out how unsavory the entertainment business is by rolling out the Hunter S. Thompson misquote that the entertainment business is a long plastic hallway where pimps and thieves roam free. And, as Timothy B. Lee argues in his second response, these big companies have received everything they wanted from Congress these past twenty years. Everything, that is, except effective enforcement, as Ryan Radia points out in his reply.

Once again, I’m skeptical of the political appeal to libertarians and conservatives of a push for copyright reform, particularly based on a distaste for powerful corporations and their influence. Aren’t you the same people who defend oil and pharmaceutical companies?[1] Yes, it makes sense to worry about cronyism and public choice problems when big business meets big government. We have seen far too much of the dubious results of this union in recent years. However, there is a difference between auto and bank bailouts and bungled green energy subsidies, on the one hand, and media businesses looking for effective ways to enforce their rights against an onslaught of infringement, on the other.[2] I hope that most free market advocates can discern a difference between receiving a windfall of other people’s money and fighting to protect one’s own property.

I also hope that free market advocates understand the value of media corporations that finance the creation and distribution of creative work. We don’t vilify venture capitalists and others who seek a return after putting their capital at risk in the hands of entrepreneurs, and so we should not vilify media companies for seeking returns by making risky bets on musicians, movies, and other media products.

In any event, much of the urge to battle Big Media and its allegedly overbearing use of copyright seems increasingly outdated. Big Media is less big than ever before. Meanwhile, many parts of the creative industries are looking more entrepreneurial than ever before. As production and distribution costs fall (although it’s harder than ever to get noticed), creative businesses become more entrepreneurial.

We ought to get to know individual creators better. Let’s start by considering some statistics: Nationally (as of January 1, 2012), there were 905,689 businesses in the United States involved in the creation or distribution of the arts. They employed 3.35 million people, which represents 4.42 percent of all businesses and 2.15 percent of all employees. These are individuals and small businesses located all over this country—the sorts of entrepreneurs who are usually the heroes of free market conservative and libertarian discourse.

In my work with the Copyright Alliance, a membership organization that works to represent and educate creators across the country, I’ve had a chance to learn more about creators and their interests. Take, for example, the photographer Michael Stern. In an interview with the Copyright Alliance, Stern’s tremendous passion, work ethic, and love of independence shines through. For one of his works, a time-lapse video lasting about 30 minutes, he took 103,937 photographs and spent 60 hours on every 2 minutes of video. Such hard work is not supported by a large employer or a subsidy. Rather, he is a fiercely independent entrepreneur:

“The real benefit of being a self-employed photographer,” he says, “is that I can move through life on my terms and do what I want in the way I want to do it. That freedom drives me.” But, it’s not for everybody, he warns. “Nobody loves you like your mother, and even sometimes not even her. So ya gotta do it for yourself. If you don’t, you won’t have the drive needed to reach your goals.”

Similarly worth considering are the Copyright Alliance’s video interviews with musician Lucky Dub and with indie record label ESL Music. They speak of the importance of being both good businessmen and great artists, and the ability to secure a return on that art. These, and millions of entrepreneurial creators like them, are the face of today’s creative industry. They represent the sort of entrepreneurs that free market advocates justly celebrate.

If we are to have copyright reform, we must consider the interests of such creators first. Timothy B. Lee says we should have copyright reform that promotes property rights. Well enough. However, it is strange to find a libertarian prioritizing reforms such as orphan works and re-formalization in the name of property rights. In theory those reforms have some merit; in practice they threaten to make copyright owners’ rights less secure.

Why not instead wade into the morass of exceptions that condition and limit the rights of copyright owners to freely transact and negotiate prices? When I teach copyright law, I warn my students that the rights of copyright owners, set forth in 17 U.S.C. Section 106, seem deceptively simple. Section 106 constitutes an easily grasped scheme of property rights (albeit with its own complications). However, Section 106 includes the statement that those rights are “subject to Sections 107 through 122.” Those Sections[3] greatly condition and limit the rights of copyright owners, with their complexity often rivaling anything found in the Internal Revenue Code. Among other things, they set up schemes of compulsory licensing where an expert body, the Copyright Royalty Board, sets prices through proceedings with titles such as “Determination of Rates and Terms for Preexisting Subscription Services and Satellite Digital Audio Radio Services, Docket No. 2011-1 CRB PSS/Satellite II.”

Such provisions create the sort of problems that free market advocates would expect. As Hayek predicted, once government restricts the ability of parties to freely transact, and removes the price signal, then price-setting becomes a political issue. Industries are beholden to the government, and what once were market decisions become political decisions. Thus, Pandora founder Tim Westergren spends his time trying to set his prices by rallying public opinion and negotiating in the media and Congress, rather than with copyright owners. The bill that Pandora backs, the Internet Radio Fairness Act certainly is fair—to Pandora, but perhaps less so to musicians and other copyright owners. I’ll be more assured of their property rights commitments when reformers seek to simplify copyright and put transactions and pricing back into the private sector.

Other pro-creator reforms that we should consider are:

• Making copyright registration more accessible to individual creators and small firms. Those currently proposing to “re-formalize” copyright often fail to take into account the transaction costs imposed on creators. The system is set up well to handle high-value, low-volume works—for example, the output of a movie studio. The system is not set up well to handle low-value, high-volume works—for example, the output of a photography studio. As a result, the Professional Photographers of America estimates that only 1% of professional photographers register their work. Sound property systems are supported by clear titles, so registration, in theory, could be useful. However, it should take into account the needs of all creators.
• Making the DMCA notice and takedown system practicable for individuals and small firms. We have heard the stories for years about the potential chilling effects of the DMCA’s notice-and-takedown regime. Larger copyright owners find the regime frustrating and less than effective. However, the DMCA notice-and-takedown process is often a draining and debilitating game of Whac-a-Mole for individuals and small firms.
• A process for resolving small copyright claims without going to court. The US Copyright Office is already considering such a reform at the direction of Congress. Such a process would be a welcome development for creators attempting to address consequential, but small scale infringement.

Copyright law has been reformed in the past, and it likely will be reformed again. The goal of such changes has largely been to ensure that the Copyright Act remains relevant and useful to creators first, and the broad public second. Creators ought to remain central to any future copyright reform discussion. Most of the current proposals don’t really take the needs of today’s entrepreneurial creators into consideration.

Notes

[1] Not that there’s anything wrong with that.

[2] Not all of their legislative proposals have been great ideas—case in point, Rep. Howard Berman’s 2002 bill that would have allowed copyright owners to engage in hacking to thwart filesharing.

[3] Section 107 will be familiar to many as Fair Use, which is straightforward in its statement , but difficult to apply. I would wager that few outside the legal and media worlds (including would-be reformers) are familiar with many of the complex provisions in the sections beyond 107.