Let artists, innovators and the public define our copyright system

May 21, 2013

Robert Goodlatte (R-Va.), the chairman of the House Judiciary Committee, has vowed to conduct a comprehensive review of our nation's copyright laws to determine whether they are "still working in a digital age." That's a long overdue task. But there's a danger that the process will be dominated by a handful of special interest groups that have long been reflexively hostile to technological progress.

Remember when the VCR was going to destroy Hollywood? (Sarah L. Voisin / The Washington Post)
Remember when the VCR was going to destroy Hollywood? (Sarah L. Voisin/The Washington Post)

Last year’s defeat of the Stop Online Piracy Act (SOPA) caused industry groups to intensify their lobbying efforts. And they haven't been subtle about it. In the wake of the SOPA defeat, Motion Picture Association of America chairman Christopher Dodd warned legislators: "Don’t ask me to write a check for you when you think your job is at risk and then don’t pay any attention to me when my job is at stake."

Goodlatte was one of the founders of the Internet Caucus back when Netscape and AOL were leading the country onto the information superhighway. With vision and backbone, he can modernize the law and end the grip that select special interests have on this highly specialized area of the law. If our legislators are serious about economic growth – this is long overdue. If he does so, he will have important allies. Thanks to the invention of the Internet and other modern technologies, copyright law is no longer just the domain of the movie and record industry.

The last major revision to copyright law was the Digital Millennium Copyright Act (DMCA), passed in 1998. That was three years before the iPod, six years before Google Books and nine years before the Kindle. Thanks to heavy lobbying from established industries, the DMCA restricts entire classes of technology and hampers innovative products and services from being offered to the public.

For example, some cellphone owners would like to unlock their phones after their service contracts have expired. This practice is legal in other countries, allowing for more intense market competition, as consumers can switch providers without buying a new phone. But under the DMCA, unlocking "for purposes of commercial advantage or private financial gain" may be punishable by five years in prison on the first offense.

The DMCA empowers the Library of Congress to grant exemptions, which must be renewed every three years. Unfortunately, the Library's decisions have been all over the map. In the last six years, cellphone unlocking was legal. In the current cycle, which lasts until 2015, unlocking will be banned. Last year, jail-breaking your iOS device in order to run software not authorized by Apple was illegal. Now it's legal — but only for iPhones, not iPads, and only until 2015. Why do we let the Librarian of Congress decide which uses of technology are legal? Congress should permanently legalize cellphone unlocking, jailbreaking, and other uses of digital devices that do not infringe copyrights (as Lofgren’s introduced legislation would do).

Of course, the content industry will oppose these kinds of reforms. They have a long history of opposing innovation and blocking new technologies. In the early 1980s, they fought to ban the VCR, which they saw as a competitive threat. Jack Valenti, the long-serving president of the MPAA, argued that "the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.” Content went after the digital audio tape, the first iPod (the Rio), the first DVR (ReplayTV) [this is just a small sample]. We shouldn't expect Hollywood to adopt a reasonable posture today.

So in its deliberations, Goodlatte's committee should ensure that Hollywood isn’t the only voice at the table. Both content creators and innovators desperately want to see copyright reform.

Brad Burnham, a principal at Union Square Ventures, has said that he avoids investing in companies related to the music industry because of the copyright risks. Congress should consider whether copyright law is chilling innovation in media technologies.

Hank Shocklee of Public Enemy, who makes a living producing copyrighted music, has spoken on how copyright has stifled their artistic expression and innovation – even changing the composition of their music from album to album as case law has changed. Congress should examine whether copyright law is hampering the creation of certain types of music through a more clear and effective policy of fair use.

Edward Felten, a computer science professor at Princeton, was once blocked from publishing his computer security research due to a legal threat based on the DMCA. Congress should study how to reform the DMCA to make it more hospitable to scientific research.

Pandora has argued that current copyright laws put it at a competitive disadvantage compared to terrestrial and satellite radio. Congress should evaluate this issue.

We can craft a system of copyright that compensates rights holders and incentivizes innovation for start-ups and new artists. It is not an either or proposition. But we'll only get a balanced copyright system if Congress hears from a broad range of voices. It can’t just be special interests controlling the debate, writing the amendments in backrooms, and writing big checks to members of Congress.

Derek Khanna is a Yale Law Fellow with the Information Society Project. He was previously a House and Senate staffer. His Twitter handle is @DerekKhanna.

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