Michael Carroll, Professora of Law, Villanova School of Law (moderator)
Allan Adler, VP, Legal and Government Affairs, Association of American Publishers
Pail Fakler, Partner, Moses & Singer, LLP
Stanley Pierre=Louis, VP and Associate General Counsel, Viacom, Inc.
[DISCLAIMER: These are notes of a fast-paced conversation on a "best efforts basis, actual details of the conversations may have varied.]


Michael starts by pointing out that we have a culture to support in a market based society so we need to find ways to get people paid. As soon as some form of coded creativity is created there will be competitors who will get a chance to take profits. Copyright is a temporary monopoly, a form of exclusion. Exclusive rights apply only to those with sufficient capital to invest in being a competitor. This form of law, because of the way that it's written, applies to this all, and its one-size-fits-all form poses problems today. To panel: what are the top 3 issues?

SP-L: Discussions of how to reform copyright is a discussion among elites and academics, but real threat is how innovators are innovating the payment scheme. Some exciting technologies don't really include an infrastructure and not the content, others bring the content. MC: Apple was able to go to market with iPod without getting a license, maybe they should be required to have a license. SP-L: Seeing people resolve this through business relationships (COMMENT: This is key, copyright is about defining terms for a relationship). PF: Need to avoid confusion between iPod and iTunes. Labels wanted to get paid on iPod, the hardware - a really bad policy. Wouldn't see a whole lot of products going to market. AA: That would also inhibit innovation in the content creation arena as well. PF: Oftentimes the problem resolves itself over time.

MC: So copyright has some value, where's the need for reform? AA: For the first time ever, copyright has become a civil rights issue, I would disagree, the way that it's been written by Congress and enforced by courts it prevents that, but digital technology brings more people in contact with copyrighted materials than ever before. AP-L: Grokster case, people camping out on court steps for days. People came by bus, by air. AA: Can be traced to advent of digital technology, when we were kids you had contact with movies if you snuck in to the theatre or paid to get in, no real TV contact, except for Million Dollar Movie. Now movie makers can sell the same movie six times - theatre, rental, purchase, on cable, on broadcast, etc. Now can see two versions in a DVD. Has dramatically changed relationship with consumer, so now they feel that they have more of a vested interest.

PF: There are aspects that need to be reviewed, current copyright act long in the tooth, initially a 20-year project, since then changes are by and large industry driven kludges when business models are threatened, not always with a lot of thought as to how it will affect the rest of copyright law. Needs to balance competing interests, can't rewrite it every five years. A fundamental change to how law changes happened, in 1990s with Republican Congress most copyright legislation drafted by lobbyists, which was not so much the case in the past. Who's going to do it nowadays? The tone of the debate used to be calm, now it's polemic, talking about piracy, theft, these rhetorical devices make it hard to get to a real discussion. On the other side of the debate reaching out to human rights rhetoric, that may not help either.

MC: RIAA seeks statutory damages, If they're in it for the money you may be able to determine profits, statutory damages based on number of items. The legitimacy of these claims are called into question when everyday individuals are claimed to owe millions of dollars. AA: You can't point to too many of these verdicts. MC: College kids know that it's USD 5-10,000 to settle, but then the headlines give copyright a bad rap. AA: Statutory awards were supposed to be a deterrant, but largely they haven't acted as a deterrant.

MC: Mom puts up a cute video dancing to a Prince song, Prince's record company sends a take-down order, is that appropriate? AA: Why aren't fair use advocates more aggressive about challenging movie producers, students stopped from using 10-15 seconds of film in a school project, knowing that a Federal judge will rule for fair use. Now advocates from Stanford who will deploy themselves to expand incrementally fair use via cases. Reality is that fair use remains alive and healthy. PF: Fair use is area in which the other side of the equation has the upper hand. Transforming for new uses is being embraced by the courts to short-circuit the work that juries have to do for fair use. SP-L: Soldja Boy video on YouTube, used commerical cartoon characters, not one take-down notice. Fair use is seeing a lot of shift on both sides of the equation. All companies are beginning to see that significance, that's why you're not seeing significant fair use cases going to the Supreme Court. PF: Fees awarded in fair use are rare because damages are difficult to determine. When you mount a successful case, it's rare to get attorney's fees and hard to bond appeals. AA: Cases are really the exception for fair use, fair use is alive and well in large part because there is so much that occurs without challenge. SP-L: Usually happens when there's monetization.

MC: That's what Google is doing to build their search engine. AA: Not all true, as a policy and as a practical matter they operate under a doctrine of implied consent. Clearly they're not the same, fair use implies that you don't need consent. PF: Shouldn't be mutually exclusive. AA: Judges are aware of doctrine, know how to apply it.

MC: Congress seems to say that we need more tax dollars spent on enforcement of existing laws on copyright. AA: Criminal enterprises figured out that there's big money to be had in piracy, idea of having Federal government to protect a part of the U.S. economy that exports heavily shouldn't be surprising. SP-L: If you put together all industries using copyright it's still significant, it's not as if people stopped pressing albums. MC: Sounds like you're doing OK, maybe the government shouldn't be involved. AA: Most owners do get involved, but it's still an appropriate role for government. PF: Legislation proposed would compel the government to spend a particular amount. Industry brought this to Congress, said we want this. Wouldn't say that Congress is crying out for this. Sometimes that's legitimate, but it's not like that the Justice Department cannot decide to take this on themselves.

MC: If copyright really broken? AA: Not hearing it from here. SP-L: In many businesses, new devices are invented by three guys in a garage, an enormous demand for copyrighted products and so a big demand for new devices, but enforcing copyright is not on the product checklist. MC: RedLasso, takes video content, clips it, lets clips get propagated. Doesn't have the money to take care of that. AA; A responsible technologist will assess the risks and will evaluate if it creates legal liability. PF: All you have to do is to get a secondary liability case to Supreme Court directly they're not going to help map old law on new technology. Would help if both sides would be along at the same table.

MC: You write a doodle, you're a copyright owner. Do YouTube video owners belong in the room? AA: Consumer manufacturers belong in room, networks, nobody belongs out of the room now. Now question is whether we can still write general rules that are technologically neutral. MC: Other knock is that it lasts too long. Economic value expires, orphan works crop up, don't know how to do the right thing so culture is stifled. New bill, would have allowed limits on damages, do a good faith search, was killed because one particular interest felt it would affect photographs. Maybe a nice case study of sector specific deals. On orphan works, if you can't fix term, can we do sector by sector deal? AA: Most people don't realize that book industry didn't take a position, publishers of Hemingway might look at this, but others looking at educational markets can't wait for it to go to public domain. Difficult to generalize, photographers will be affected differently, etc. How much that's going to continue different to say. SP-L: Not much new since DMCA, now Time Warner spinning off Time Warner Cable, changes what their position will be, angles change. AA: Most people identified as copyright owners are also extensive users of copyrighted content.

MC: Most people are users and producers, new angle: is there a vision baked in to copyright of the "good society" that's at odds with what the digital technology says it should be? I may not be at the top of the 1 percent who can write Harry Potter, but if I engage in slash fiction and make the characters gay, should author be able to control my product? Technologies invite people in. Dangermouse mashups, does copyright have it right? AA: Difficult to put culture on a pedestal when Paris Hilton is on a pedestal, original author may deserve recognition, but derivative authors are owed recognition as well. Have to remind people that facts and ideas are not copyrightable, this allows genre dramas and so on. Plenty of room to acknowledge creativity, but probably would be hard to draw a clear conclusion. SP-L: Many cases flip every time that they're heard. PF: Can't take transformative aspects out of copyright law. AA: What' sufficient transformative use? It's never been about Google's snippets, it's been about creating the largest digital library when they could have just as easily gone to copyright owners.

Have to wrap this up, my concern out of this panel is that copyright law has been trying to define so many gray angles on copyright law that we really are losing any sense of a coherent law. Copyright holders are pursuing cases against all aspects of copyright law fairly arbitrarily, without a sense of the broader issues outside of their narrow interests. In the process of doing so, people's productivity through copyrighted materials is reduced and the productivity of copyright holders to make money from their works clearly and effectively is reduced. To some degree this is why DRM software was so appealing: it's like a stone-walled castle in a realm of arbitrary forces outside their gates. All we have are the opinions of a wide array of judges in a wide array of cases in a wide array of jurisdictions, none of which makes commerce more clear. This makes it harder for people to make use of copyrighted content for derivative works and fair use - and society's overall productivity suffers as a result. Specific to Google, Google enables people to do things that original works usually don't allow one to do - they're creating and index for a database that enables people to see new patterns from existing content. The question isn't whether copyright holders should be paid when they're supposed to be paid, the question is what type of publishing is creating more value for society? In general, most new value in publishing over the past ten years has been created by derivative works. So why enable a less productive end of the economy have leverage, even if they are owed some rights? This is not to say that works with rights to them cannot provide and reap more value if given the right technology, but by tying that value to distribution instead of rights to value at the point of consumption then original works holders are working the thinner end of the value equation overall.

Labels: copyright, copyright clearance center, intellectual property, legal