Copyhype

Fred von Lohmann, former staff attorney of the EFF and currently Legal Director of Copyright at Google, has been presenting a talk recently on “Revising the Copyright Act for the 21st Century.” While the views Lohmann expresses in the talk may not necessarily reflect the views of Google, it is reasonable to assume that there is close alignment.

The talk is motivated by review efforts that have begun in earnest by various government entities in recent months: the House Judiciary IP Subcommittee, the Copyright Office, and the Internet Policy Task Force in the Department of Commerce. In it, Lohmann makes a range of points about the current state of copyright and its future; while I haven’t been able to find a video or transcript of the talk, the Yale Information Society Project (among others) livetweeted an October 15th presentation, which seems to be fairly comprehensive.

Lohmann calls for an aggressive reshaping of copyright law, not only domestically but internationally as well. Many of the fundamental changes would clearly benefit large online service providers like Lohmann’s employer; very little is said about ensuring that individual creators have meaningful rights that enable them to build sustainable creative careers.

One of Lohmann’s major points is that “Copyright is badly ‘fit for purpose.’” The law “assumes that full rights apply to all works, even given the sheer quantity of creativity enabled by digital tools.” According to Lohmann, “Ninety-nine percent of copyrighted works today are not incentivized by copyright.” Lohmann suggests that YouTube and Instagram users, for example, aren’t incentivized by the law’s specific features, such as its duration or reversion rights. He asks, “Is [the] classic copyright incentive story necessary or appropriate for all these categories of works?”

Lohmann’s question is premised on the flawed claim that the sole reason for securing copyright is to incentivize creation. That is only part of the reason for copyright. Just as important – if not more so – is the role copyright plays in providing incentives to publish and disseminate the works that authors create.

The Supreme Court made this crystal clear less than two years ago in Golan v. Holder. “Nothing in the text of the Copyright Clause confines the ‘Progress of Science’ exclusively to ‘incentives for creation.’ Evidence from the founding, moreover, suggests that inducing dissemination—as opposed to creation—was viewed as an appropriate means to promote science.” The Southern District of New York echoed this idea last summer. “There is a strong public interest in the copyright system’s function of motivating individuals to make available their creative works and increase the store of public knowledge.” ¹ABC v Aereo, No. 12-Civ-1540(AJN), order denying preliminary injunction (SDNY, July 11, 2012).

It may seem odd to suggest to anyone who has spent more than five minutes on social networking sites to suggest that incentives are needed for users to share things publicly. But much more is needed beyond the design of a particular social networking service to make it widely used or widely ignored – and some services, such as Myspace and Digg, have seen just how quickly a service can go from the former to the latter.

There are many factors that individuals and internet uses consider when making the choice of what and when to share something online. Most often, these are noneconomic considerations.

Barely a week goes by without a new privacy or term change that draws outrage. Earlier this month, Google announced that it would be “placing the photos, profiles and comments of some users in advertising endorsements across the Web.” In September, Facebook released a new “Statement of Rights and Responsibilities” policy that caused the FTC to begin an inquiry (Facebook is governed by a 2011 agreement with the FTC that requires it to get explicit consent of its users before making material changes to its privacy policy). As Mashable reported, “Most alarming to users was the understanding that their profile data, including their profile picture, name, and personal information, could show up as part of a Facebook ad their friends may see on the site.” And nearly a year ago, Instagram faced consumer ire over terms that would let it commercialize photos uploaded by users.

Sometimes it’s not even an actual change but the perception of change that will cause users to think twice about disseminating their creative work. This past spring, there were reports that users were fleeing Tumblr once it was announced that the service would be purchased by Yahoo. Some have suggested that the motivation over leaving (or threatening to leave) the free service were concerns that Yahoo would change the characteristic of the community, tighten content standards, or overrun the site with advertisting.

The outcry that accompanies such announcements demonstrates quite clearly that many users factor into their decision to share photos, comments, and other content what will happen once its uploaded. Maintaining some control serves as an incentive to sharing in the first place. And if we want to encourage such dissemination, we need to continue to recognize that individuals have rights to their expression.

A large amount of those who share personal photos, writing, thoughts and other creative expression on social networking sites don’t typically look to commercialize such expression. Likewise, they rarely need incentives to create such expression. But they do have some expectation when disseminating their expression that their work won’t appear in advertising, as stock imagery for political causes they might not agree with, as endorsing some brand or cause. In other words, maintaining some level of choice and control over our stuff gives us an incentive to share our stuff.

Of course, much of these issues are governed by a particular site’s terms of service or privacy policy. But these agreements are not enough. They can mediate the relationship between user and service, and users are able to make their own decisions about where to upload based on what terms are acceptable – though much more could be done to make such terms more transparent and understandable as well as address the issue of how easily services can change terms subsequently.

But contracts only go so far – terms of service and contracts don’t extend to non-contracting third parties. Copyright serves as a backstop to what non-contracting parties can do. It’s not the only mechanism, of course; various torts and statutes may govern what third parties can do with users’ expression. But it certainly plays an important role. Again, copyright doesn’t force anyone into sharing or not sharing their expression. It just prevents corporations and other parties from making that choice for them.

What’s more, copyright reinforces First Amendment values that may come into play. Not only does it “motivat[e] individuals to make available their creative works and increase the store of public knowledge,” but it also protects the freedom not to speak—a necessary complement to the freedom to speak. ²Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 US 539, 560 (1985).

Copyright aligns with internet users’ free speech rights and their expectations about what should happen with their photos, writing, and other expression once it is made available to the public online. We shouldn’t be in such a rush to declare it a “bad fit” and start thinking of ways to toss it aside or turn it into something that only benefits large internet companies at the expense of the public. That’s not to say that there are specific areas of the law that could be made better, but the basic principles of copyright law are just as applicable and vital today to the 99% of creators today.