A Promotion for Progress: Seeking the Third Way for Copyright

07/16/2010 10:13 pm ET | Updated May 25, 2011

A week ago, the damages award heard around the copyright world came with United States District Court Judge Nancy Gertner's decision to slash the damages award the jury found in RIAA v. Tenenbaum against Joel Tenenbaum from $675,000 to $67,500.

While a dearth of news articles and blogs are covering the obvious, that the mighty industry trade association plaintiff, the graduate student defendant and copyright scholars and activists alike are not happy with the decision, Tenenbaum stands as the most public example of where the system has allowed copyright to go. In the wake of Eldred v. Ashcroft, now seven years ago, we still have a system that at times works more so for large corporate interests and at other times works for no one.

The political rhetoric? "Pirates" and a game where the interests are framed as "cops and robbers."

The legal strategy? Go after anyone and everyone, pursuing a deterrence strategy that has proven to deter no one (except those who have challenged the suits or settled out in sums to the tune of $3,000 to $5,000 on average).

The counterculture? A movement pushed forward by those who believe that their illegal downloads are a way to fight the content conglomerates or those who simply do not want to pay for the content.

The alternative legal solution? A system that is often misunderstood in its license implementation and does not come with the same type of enforcement mechanism that accompanies our laws.

A fellow attorney made an apt point today regarding the state of copyright: there is no room for reasonableness in having discussions on the way our system works and taking steps to reform it. The last ten years have played host to a cultural intellectual property shift with no clear winners.

Seven years ago, the Supreme Court was forced to go back to the basics by exploring the Copyright and Patent Clause, Article I, Section 1, Clause 8 of the United States Constitution, which reads:

"Congress may...promote the Progress of...useful Arts, by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries...."

The outcome of the case referenced, Eldred v. Ashcroft, was the extension of copyright terms, with the majority of the Court reasoning that unless copyright terms could be extended to compensate for the impact of digital technology and the Internet, the content providers may not be willing to distribute their works in digital formats.

Industry interests may have been able to the keep "The Cat in the Hat" (Dr. Seuss Enterprises was involved), but this decision had the effect of dousing lighter fluid on the dissent that had already formed against interests like the Motion Picture Association of America and Recording Industry Association of America. While giving birth to alternative licensing schemes like Creative Commons, it also propelled anger amongst those who believed in the acquisition of "free content" and the sharing culture. The efforts of both camps since are not leading to a place where they will eventually meet in the middle on these deep philosophical differences on content ownership and how to promote creativity. It has taken us into a space where you are "CopyLeft" or "CopyRight." While one side may appear to have the economic advantage, both were given the "license to ill" in different ways (credit to the Beastie Boys).

This state of affairs leaves us with decisions like Tenenbaum, which highlight the absurdity of going after individual file sharers and undermine the rights of small content producers trying to protect their works at the same time. Huh?

I make a living both protecting content creators and advising companies who wish to stay out of copyright trouble. What I have learned is that this is not entirely a system of bad actors, but individuals struggling to figure out what to do with what in some cases is bad and outdated law and legal precedent.

What all this amounts to is a clarion call for a new genre of copyright operator: the CopyPragmatist. Article I, Section 8 is not just some lofty ideal; it outlines a practical exchange to promote progress.