Now that SOPA’s dead, five easy ways to reform copyright law
By Brad Plumer,
After the battle over the Stop Online Piracy Act (SOPA) earlier this year, Internet groups showed they could rally to defeat anti-piracy laws they didn’t like. But can they band together to make positive, constructive changes to copyright laws?
Now that SOPA’s dead, what’s next?
1. Curbing abuses of copyright takedowns. Under the Digital Millennium Copyright Act (DMCA), if a copyright holder — say, a record company — comes across pirated material on a site like YouTube, it can fire off a takedown notice. YouTube then has to take down the material for at least 10 days while it evaluates the claim. The problem, Public Knowledge says, is that this law is prone to overreach. All content is “assumed guilty until proven innocent.” Perfectly legitimate material can get muscled offline until its owner files a counter-notice. (And companies have been known to abuse this right, as when Wal-Mart got a comparison-shopping Web site taken down by inaccurately claiming copyright infringement. See a list of examples here.)
In order to prevent such abuses, Public Knowledge suggests that innocent defendants can ask for damages, ranging from $200 to $2,500, if the takedown request turns out to be frivolous. Copyright holders would also have to make their takedown requests public and would face penalties for misrepresenting their cases.
2. Shortening copyright terms. Back in the early days of the republic, an author owned the copyright of his or her work for just 14 years (with an option to renew for another 14 years). But Congress has lengthened copyright protections over the years — often at the behest of companies like Disney, which isn’t keen on letting the copyright on Mickey Mouse to expire. Right now, a copyright lasts for the entire life span of a creator plus an additional 70 years. Public Knowledge argues that this has gone way too far and is stifling innovation. They suggest whittling the length of copyright ownership back to life of the creator plus 50 years. (Corporate copyrights over an employee’s creation would drop from 95 years to 50 years.)
3. Clear up “fair use” rules. “Fair use” is a rather murky doctrine in copyright law. In theory, you can use copyrighted material without permission for certain purposes — say, quoting the passage of a book in a review. The problem is, it’s not always clear what use counts as fair use (the artist Jeff Koons famously lost a case on this after parodying a banal photo of puppies). And if you’re wrong, you can be hit with a fine of up to $150,000 in statutory damages, regardless of how much actual harm was caused by the copying. Public Knowledge argues that this curbs innovation, and wants Congress to do away with the statutory fine. (A copyright holder could still sue for any actual damages he or she suffered.)
4. Protect against overbearing copyright claims. This one is a relatively modest proposal, but Public Knowledge wants companies to stop claiming copyright powers that they don’t actually hold. For instance, the NFL often states during telecasts of football games that “any pictures, descriptions, or accounts of the game without the NFL’s consent, is prohibited.” The NFL doesn’t actually have the legal power to prohibit such things, and Public Knowledge wants to make it illegal to say so. Likewise, the group wants Congress to clarify that making “transient” copies of copyrighted objects (for instance, when a CD player buffers parts of an album to prevent skipping) is okay. While most of these things sound minor, the idea is to make absolutely clear what people are and aren’t liable for.
5. Allow the breaking of Digital Rights Management software for legal purposes. Many DVDs come with DRM protection that makes it harder to copy or excerpt the works. And fair enough. But this can lead to some odd consequences. It’s illegal to break these digital locks even if you’re using the material for perfectly legal purposes. As Public Knowledge puts it, “if you wanted to use a clip from a movie in order to criticize it, taking the clip itself is legal, but breaking the DRM on the DVD in order to do so is not.” (Currently, there are a few exceptions — university professors are allowed to break the locks to show film clips in classes — but these exceptions are murky and have to be relitigated every few years.) The group wants it to be legal to crack DRM technologies for legal purposes.
All told, Public Knowledge’s proposals seem to revolve around a few core notions about copyright. Namely, that piracy isn’t a huge problem, that copyright holders, like the record and movie industry, abuse their legal powers, and that we should make it easier to promote creative and innovative uses of copyrighted materials.
Not surprisingly, these proposals are likely to be controversial in Congress. After all, the 1998 Copyright Term Extension Act — the “Mickey Mouse bill” pushed heavily by Disney — passed the House and Senate by overwhelming margins. Then again, everyone thought that bills like SOPA would pass easily just a year ago, so it’d be foolish to rule out further mood shifts in Washington.