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Late Recap of the Southwestern Conference About Copyright Reform, Panel 1

A few weeks back, I wrote a post about my views on a big issue in copyright reform and my paper, Copyright’s Hidden Assumption: A Critical Analysis of the Foundations of Descendible Copyright, which addresses what I think will yet again be a major theme in copyright reform: term extension justified as way to provide for heirs. My paper argues that the idea lacks both a historical and theoretical grounding.

As I noted in that post, copyright reform is on many folks’ minds. Southwestern Law School put on a full day conference, Reforming Copyright: Process, Policy and Politics, on the topic.

Here is a recap of the first panel. I do not have Rebecca Tushnet’s skill at live blogging (waiting a few weeks to post this material is evidence of that). The following is what I heard people to say.

The first panel at the Southwestern conference on Copyright Reform framed their topic as: What’s Wrong? The Need to Reform the 1976 Copyright Act: “This panel will consider whether the 1976 Act needs to be reformed and, if so, what form the revision should take. In particular, it will focus on whether reform should take place via gradual increments, as it currently has, or whether it would be superior to scrap the current version of the Copyright Act altogether and begin from a blank slate.”

David Nimmer began the session. He surveyed the history of reform and offered some interesting points. For one thing, the Copyright Office used to studies authorized by Congress to understand how to update the copyright. Nimmer argued that film studios, authors, publishers, music publishers, record labels all influenced the draft bill but broadcasters, juke box owners, and cable television had other interests that stopped a full revision from being passed. Today Consumer electronics, tech companies telcos, amateur authors, bloggers, EFF, ACLU, other NGOs, broadcasters, ISPs, privacy, consumers pull away from the film, professional authors, record labels, music publishers, who move towards a new copyright act.

I understood Nimmer to say that some forces converged on a central point that could agree on reform but there is a “high ratio of centrifugal forces pulling away” from that center. He further suggested that small reforms, what I might call tinkering, allow for a small, defined group of players willing to compromise and in those cases, Congress tends to act and reform/amend the Act. But when diverse, divergent interests are in play, (Markets and social norms at odds), Congress is less likely to act.

He offered that Congress may still be the conduit to achieve informed and balanced copyright legislation, favored new national commissions to evaluate how to proceed, and wondered whether one central person (e.g., the IP Tsar under the Pro IP act) would be able to handle the task of reform.

Jon Baumgarten

Jon Baumgarten was next. He disagreed that the 1976 Act is obsolete (or is at least angry about it) and challenged the idea that the law is as out of synch with world today. He offered that new expression, media tools, creators, and more are exploding. For him the act did not wreak havoc that some claim; instead it contributed to a better world: for example, the DVD can be seen as a child of the DMCA.

He then asked, why is there a call for revision? Perhaps court decisions that some think are out of synch and wrong. For every case that one hates (e.g., Grokster) there is a case one may love (e.g. Sony). In other words, yes, litigation has increased. But, is addressing novel, complex issues in litigation such a bad idea? Is there an alternative? Texaco begat the copyright clearance center. Viacom/YouTube cases seems to be fostering solutions. Google suit generated a settlement that from a copyright perspective has novel solutions to orphan works issues (ceded that other areas of the settlement need to be investigated).

For Baumgarten the Act’s complexity is a problem, but it is not a market failure.

DRM is not dead according to Baumgarten. There is no one stage solution to DRM (what a given industry needs). Yes there are serious questions, but the tendency to jump to the conclusion that there is a big problem is not wise.

Growing Up Digital (book) offers that there is a major change in the relevance of technology. Technology to recent generations is a given. The focus is on what it can allow one to do. For Baumgarten, it may be that we ignore the pros can cons about what technology can or can’t do and the harms or benefits.

Fred von Lohmann

Fred von Lohmann started by asserting that Nimmer is saying that odds for real reform are zero. For von Lohmann wholesale revision is absolutely necessary. The question is when? Wholesale revision not likely to happen in the midst of big changes in the industry. So it may need to change soon, but not too late either. Issues the industry is sorting out today will allow for revision. Litigation and Google settlement are going somewhere. It may be that within ten years the big friction points will be addressed

So when that happens what to do?

Four things to consider regarding private use of copyright

1 There is no good account for role of innovation in copyright ecology; as Litman has shown tech that has pushed industry forward were often if not always called pirate; without them industry would be less well-off.

Copyright has done well with allowing for disruptive technologies. When incumbent can pass law or threaten to chill the innovations, it will. Copyright has to its credit allowed disruptive technologies to operate. Schumpter’s view would want creative destruction. So © should keep that innovative impulse alive.

2 © not sensitive to private creation. FvL claims that YouTube has generated more content in the last three years than people realize. One study suggests that all the hours of video on YouTube is greater than all TV produced prior. The Act needs to take private creators more seriously.

3 It is an embarrassment that the law says nothing about private copying — simple private copying as opposed to remixing etc. We do not want to live in a world where everyone is a violator of the Act or must make a fair use argument.

4 Enforcement Collectives may be the way to address the issues at hand.

FvL concluded by suggesting that litigation and private ordering may be the best way to sort the issues out. He is optimistic that in about ten years the creative industries will be better off and have resolved their differences.

I will post some thoughts about the question period separately.