Fred von Lohmann, former staff attorney of the EFF and currently Legal Director of Copyright at Google, has been presenting a talk recently on â€œRevising the Copyright Act for the 21st Century.â€ 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 havenâ€™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 Lohmannâ€™s employer; very little is said about ensuring that individual creators have meaningful rights that enable them to build sustainable creative careers.
One of Lohmannâ€™s major points is that â€œCopyright is badly â€˜fit for purpose.â€™â€ The law â€œassumes that full rights apply to all works, even given the sheer quantity of creativity enabled by digital tools.â€ According to Lohmann, â€œNinety-nine percent of copyrighted works today are not incentivized by copyright.â€ Lohmann suggests that YouTube and Instagram users, for example, arenâ€™t incentivized by the lawâ€™s specific features, such as its duration or reversion rights. He asks, â€œIs [the] classic copyright incentive story necessary or appropriate for all these categories of works?â€
Lohmannâ€™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 â€“ if not more so â€“ 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. â€œNothing in the text of the Copyright Clause confines the â€˜Progress of Scienceâ€™ exclusively to â€˜incentives for creation.â€™ Evidence from the founding, moreover, suggests that inducing disseminationâ€”as opposed to creationâ€”was viewed as an appropriate means to promote science.â€ The Southern District of New York echoed this idea last summer. â€œThere is a strong public interest in the copyright systemâ€™s function of motivating individuals to make available their creative works and increase the store of public knowledge.â€ 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 â€“ 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.
Sometimes itâ€™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 donâ€™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 wonâ€™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.
But contracts only go so far â€“ terms of service and contracts donâ€™t extend to non-contracting third parties.Â Copyright serves as a backstop to what non-contracting parties can do. Itâ€™s not the only mechanism, of course; various torts and statutes may govern what third parties can do with usersâ€™ expression. But it certainly plays an important role. Again, copyright doesnâ€™t force anyone into sharing or not sharing their expression. It just prevents corporations and other parties from making that choice for them.
Whatâ€™s more, copyright reinforces First Amendment values that may come into play. Not only does it â€œmotivat[e] individuals to make available their creative works and increase the store of public knowledge,â€Â but it also protects the freedom not to speakâ€”a necessary complement to the freedom to speak. 2Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 US 539, 560 (1985).
Copyright aligns with internet usersâ€™ 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 shouldnâ€™t be in such a rush to declare it a â€œbad fitâ€ 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.
|↑1||ABC v Aereo, No. 12-Civ-1540(AJN), order denying preliminary injunction (SDNY, July 11, 2012).|
|↑2||Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 US 539, 560 (1985).|