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Copyright Needs Limits, As It Restricts Innovation
In recent weeks, the chorus of calls for further "protections" for copyright owners has grown louder (see, for example, Mark Helprin's May 11 broadside in the Wall Street Journal against copyright critics: "Copyright Critics Rationalize Theft"). Yet these copyright apologists ignore how copyright owners overreach and hurt innovation. Representing more than 2,000 American technology companies, I see it differently - the rapid expansion of copyright laws threatens new and innovative products and services.
In 1979, I began my career by fighting copyright owners who had challenged the legality of the Sony Betamax VCR. In 1981, an appeals court actually held the VCR illegal and asked a lower court to block VCR sales. Fortunately for everyone, including Hollywood, the Supreme Court said the monopoly power of copyright owners had to be balanced against the needs of others. The Court ruled that recording of television is "fair use" and a product is legal if it has "substantial non-infringing uses." This Magna Carta for innovation became the basis of the technology revolution and the bane of copyright defenders.
The "fair use" right to manage content has allowed the Internet to grow and new companies to be created. But the content lobby disagrees. They told Congress that copyright should stop an individual from sharing an email without the creator's permission. They argued that computers copy when storing temporarily and thus that many computer functions are illegal. They kept trying to sell multi-song CDs when consumers wanted only one song. They fought rentals of movies insisting that consumers buy movies. In short, they have tried to restrict, tax or bar every type of recording technology.
Thankfully, politicians said no and courts generally stood by the Sony Betamax principles. For these reasons we have the Internet, camcorders, digital cameras, MP3 players, DVRs, removable computer storage and copy-and-edit functions on computers. And thus we have world-leading companies like Google, Facebook, Microsoft, TiVo and Apple.
American innovation is not just about content creation. It is also about inventions that allow society to benefit from the uses of content, for which Congress grants a limited monopoly in the form of a copyright. The right to control this content does not include the right to invention and innovation. This is what the Supreme Court held in 1984, and this is why we have these inventions today.
"Piracy" is not every unauthorized use of content. Nor does copyright grant a monopoly over all uses. Someone who legitimately acquires content (buys a CD or DVD) should have the right to use that content so long as it is not for a commercial purpose. Calling unauthorized uses "piracy" and equating such use with "theft" - as if it were stealing clothing - is sloppy. If you steal a dress from a shop owner, then the shop owner cannot sell that dress. If you use a copyrighted work without permission, then at worst the creator has lost an additional potential sale - unlikely if someone is simply excerpting from their own CDs.
But defenders of expanded copyright restrictions imply that content owners have been on a losing streak and have few tools at their disposal. Wrong.
Copyright owners have successfully intimidated entrepreneurs with ideas that involve fair use of content. Billions of dollars of "damages" for no harm? Yes. Copyright laws and damage provisions have mushroomed to create huge potential liability for good-faith innovation.
Consistently, lawmakers raise the stakes for infringement, even if there is no evidence of harm to content owners. A single infringement found later to be "willful" can cost $150,000. Multiply that by each work in a service provider's library that a personal computer, a software program, or a DVR might be claimed to "infringe" and you are into the tens of billions of dollars. This chokes innovation and begs a more reasonable law that protects small business and products and software, offered by legitimate companies, with new uses not yet evaluated by the courts.
And while the penalties have grown harsher, in just the past few decades, the term of copyright, which used to match the 19-year patent term, has now grown to more than five times that long. Congress has expanded the term 13 times since JFK became President, greatly expanding copyright owners' income with no discernible matching benefit for society or creation. Why? The content lobby is huge and politicians willingly accede to their requests.
The ultimate irony is that when innovators follow the law and license content as they have through a "creative commons" license, they are criticized as opponents of copyright. Such a view ignores the numerous successes by the army of content lobbyists, and the fact that those who occasionally oppose their excesses, like technology innovators, are less interested and reliant on lobbying and more dependent on free market forces.
The truth is that our national leadership in creativity depends on technology as well as content innovation. We Americans are creative for good reasons. It is genetic. It is not only our motion picture and music industries that dominate worldwide. We also have great writers, photographers, artists, and designers.
We have not only the most innovative technology companies - but we also lead the world in everything having to do with the Internet, from Amazon to eBay, from Facebook to Google to Zillow. And we innovate in technology. Apple, Cisco, Dell, HP, Qualcomm, Sun, TI, and others lead the world.
So this battle between innovators and content creators is misdirected. Rather, we need to ensure we attract and grow the best educated, most innovative people. This means we work together on our immigration, trade, tax, education and other policies to encourage both content creation and technological innovation. If we do, this nation of creativity will prosper and maintain its primacy.
Gary Shapiro is the president and CEO of the Consumer Electronics Association.
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Since music has gone digital and copied like crazy there has not been an Album/CD produced that has sold more than 30 million copies since the year 2000 - It was "1" by The Beatles. If artists are not protected from pirates then what is the point? To end up as a starving artist? Sure.
Or, now that people can discover thousands of artists online rather than a few dozen via radio, many more artists are being successful -- rather than one or two artists pulling in a billion dollars, there are thousands pulling in thousands.
Maybe. In my town the local bands are lucky to get a meal and drinks out of a gig. The Bar owner only pays them if X number of people show up. If not, they get a burger and a beer. They have to produce their own video, their own merchandise and have their own wheels and gear. Once they post their songs on their web site they get hit on at first but then after that people just steal/swap the music from each other. Free music is worth what you pay for it.
Is it me, or does it seem as though we're confusing fair use with copyright violations?
Consider this quote from the above post: "Someone who legitimately acquires content (buys a CD or DVD) should have the right to use that content so long as it is not for a commercial purpose."
I would argue that the "fair use" of previously purchased material on any type of device is the key to innovation, which, in turn, creates new formats via which the content can be viewed. (Did the iPod beget MP3 files or the other way around?) But stealing copyrighted content to claim as one's own in the creation of different content is not, by definition, innovative. "Innovation" implies never-been-done-before and invention of something new. Why shouldn't Disney retain the rights to their characters? They were the innovators in the early days of animation, and their characters still resonate with audiences today. Shouldn't their investment in commercial art reap the monetary rewards?
So I ask: How can stealing someone else's intellectual property be innovative? Isn't it just plagiarizing?
"Is it me, or does it seem as though we're confusing fair use with copyright violations?"
That's probably teh single most common misconception in teh area. Laymen have a very shallow understan ding of "fair use" and try to apply the common definition of "fair" without realizing that fair use is actually a very specific, codified doctrine with real limittations and established elements.
Why should Disney ever had "rights" to "their" characters in the first place? Who came up with the story of Sleeping Beauty? Snow White? The Little Mermaid? Aladdin and the Forty Thieves?
Nobody creates anything singlehandedly--we all build on the culture that is around us and came before us. Copyright is supposed to be an encouragement for people to build on and contribute culture by providing a means to make a living. It's not supposed to be a pension for someone who comes up with one hit book or song to live off the rest of her life.
Copyrights (along with patents) aren't "property" like a house or a car. They're government-granted monopolies that are way out of control.
People are making comments like somebody is going to lose their copyright five minutes after they create something. That's not where the problem is. The problem is gigantic corporate entities that want to hold onto rights for more than ninety years. Heck, good ol' Walt Dizzy himself wouldn't have been able to use half the characters he did if The Brother's Grimm held onto 'em that long.
The problem is that infringers aren't really interested in stuff that is so old. They only want to free ride on stuff that has current value. Hence the catch 22. The under-educated like KillThemessenger argue that there is no harm to the author caused by infringement but the reality is that if the copyrighted work did not have value that could be stolen from the author as a result of infringement, the infringer would have no interest in it in the first place.
Not at all. For example, look at the world of video games. Many gamers would love to be able to play arcade and console games from the 1980s, but the producers won't make the ROMs available.
Even when talking about current releases, saying that an infringement is "stealing" isn't accurate. It's been shown over and over that infringers generally fall into one of two camps: Either they buy or go see the production anyway, or they never would have in the first place, and in fact, most music and movie downloaders buy more music and movies legally than those who don't download.
And when you remove copyright, you'll have either nothing to steal or what you steal will be of the poorest quality.
Why should a professional artist or writer produce a work "for free"? Without copyright, they are not compensated nor do they have control of their work.
You'll end up with amateur garbage produced by wannabe writers or artists that doodle in their free time. Not exactly high quality. But hey, it's free.
You get what you pay for.
"You'll end up with amateur garbage produced by wannabes"
be nice. That's what KillTheMessenger sells for a living.
Amateur garbage like the Apache Web server, which runs 2/3 of the Web sites on the Internet? Amateur garbage like the just-released "The Hunt for Gollum"? Amateur garbage like the works of Beethoven, Michelangelo, and Shakespeare?
Copyright is a practical tool to encourage creation of art, but it's hardly the only option available, and the long copyright terms we have today don't provide any additional incentive to create, even as they do harm the public interest.
Mr. Shapiro-I have spent years fighting for stricter enforcement of existing copyright laws on behalf of individual creators, but that does not mean I am against 'fair use' or 'innovation', and I agree with many of your points, especially regarding the need to limit the 'rights grabs' of corporations whose only intent is to restrict, control, and punish fair use. I do, however disagree with your claim that content owners can be awarded billions of dollars for no harm. Proving 'harm' is one of the toughest requirements in a copyright case, making it almost impossible for individual artists, writers, photographers, & program developers to find legal representation, especially when they are fighting large corporations with in-house legal staff and a corporate policy of "it's easier to ask forgiveness than permission". And while the F.B.I. is willing to travel to China (at taxpayer expense) to raid fleamarkets and wharehouses on behalf of Microsoft, and major movie & recording studios, that protection is not given to individuals, even in cases of massive & willful infringement. That needs to change.
So if it is so hard to prove "harm", one logical possibility is that in many cases no harm was done to begin with. It amuses me to see how easily attorneys reject that notion. But then, of course, you wouldn't be making any money on the case, now would you?
:-)
Wow, you really have no concept of (a) reality, or (b) basic legal principles, do you.
The harm exists prima facie from the act of infringement. Th edifficulty is proving to a sufficient degree that the harm can be quantified sufificently for a fair judgment.
The simple act of infringement without a fair use defense is in and of itself "harm". The issue is how to measure such harm. In many cases, the harm may not be sufficiently immediate nor may it be readily apparent. Hence the statutory damages provided for under the 76 Act.
For someone who has spent years litigating copyright cases, I'm rather surprised you haven't heard of the concept of statutory damages. For willful infringement, copyright holders can recover up to $150,000 per work with absolutely no showing of harm whatsoever. So explain how proving harm is "one of the toughest requirements" when it isn't even necessary if the work has been registered?
Statutory damages are not automatic. There has to be actual damages in order to trigger recompense. Without damages or harm, it gets into the grey squishy area of fair use and the question of the effect that the alleged infringement would have upon the market for the original work. Statutory damages are a good starting point once actually awarded, the poster is referring to the difficulty in establishing sufficient ground for such damages to be awarded.
"So explain how proving harm is "one of the toughest requirements" when it isn't even necessary if the work has been registered?"
Obviously you're not an attorney nor do you know anything about this area as this is total tosh. Registration is a prima facie requirement for any damages to be awarded. No registration, no standing. That's basic black letter law.
We have the "Internet, camcorders, digital cameras, MP3 players, DVRs, removable computer storage and copy-and-edit functions on computers," due to the brilliance of certain creative individuals. People who want to "innovate" using those other people's concepts can easily do so - FOR A FEE. I am as anti-big-business and anyone, but without copyright, how many people would spend years working on an idea in their basement or garage? Without copyright, why give up years of your life, only to see someone with half the smarts you have, make money off your idea and you can't charge them a dime?
Tax profits, do away with capital gains, but leave the idea of copyright and patent alone!! (from someone who couldn't invent the straight pin if she tried).
"I am as anti-big-business and anyone, but without copyright, how many people would spend years working on an idea in their basement or garage?"
I do. That's what I make my money with. My company does not use any legal form of IP protection. Too expensive, too tedious, not effective whatsoever. Instead we tell our customers (and our competition!) how we do it, knowing full well that it will take them years to achieve the kind of perfection that our products represent. But if you can buy cheaply from us what would cost you years or your life and millions of dollars to replicate (poorly), why bother?
And you know what? To this day nobody has been successful in making money on any of our products they tried to copy. When the original is both good and cheap, no copy can ever win.
Yes, it is that simple.
It may well be that simple in regards to a small, insignificant company on the very fringe of the copyright issue, but that is of little or no consequence to the larger issue of copyright infringement, particularly in the area of singular creative works.
"My company does not use any legal form of IP protection."
wow. You just confirmed my incredibly low opinion of your intelligence.
Your idea might work if there were reasonable and compulsory licensing for patents, but that's not the case. Individuals or small companies who have a great new idea often *can't* use patented technology at any price, because (1) the patent system is so cluttered and redundant that a simple invention is likely to step on hundreds or thousands of patents, and (2) many patent holders refuse to license their patents or demand fees that are impractically high.
Furthermore, most of us who agree with Mr. Shapiro aren't saying we should get rid of copyright entirely, but Congress has forgotten that copyright is supposed to be a deal between the public and creators, and the scope of copyright has become way out of control.
"And while the penalties have grown harsher, in just the past few decades, the term of copyright, which used to match the 19-year patent term, has now grown to more than five times that long."
Ummmm. Exactly how long ago was copyright a 19 year term? You may want to add that fact in order to at least attempt a pretense of balance.
(I'll give you a hint; it was a heck of a lot longer than "in the past few decades").
1976, so about 4 decades ago. Even if it were much longer ago, though, the pace of life today would suggest that copyright should be even *shorter*--it doesn't take a year to print a book and ship it around the world anymore.
"The "fair use" right to manage content has allowed the Internet to grow and new companies to be created."
Ummm. Gross distortion of the holding of the case, much?
Sony v. Universal was based on the doctrine time shifting content to which one already had a legal right to use. It wasn't a carte blanche right to manage content in any way one desires, no matter how illegal.
A reality check may be a good idea, me thinks.
Ein, you seem to know nothing about the intricacies of IP protection and how they hurt even the artists themselves. Please ask a musician friend of yours how much it costs to play a song you have not written yourself! Please ask them why even making a copy of a single page of scores is two copyright violations and not one. Etc..
Ein, you seem to know nothing about the intricacies of IP protection"
Hmmmm, my entire practice is IP protection, specifically copyright licensing and internet law. I have written two books on the subject, I have an LL.M in Intellectual Property Law and I teach a law school course on licensing. Yeah. I'll take your opinion for what it's (not) worth, thank you very much.
Of course it wasn't, but the principle of evaluating technology on whether it had "substantial noninfringing uses" is precisely what gave technologists the assurance they needed that they wouldn't be sued into oblivion for making new products. Where would we be if car companies could be sued for making cars that could go over the speed limit (any speed limit, anywhere)?
Few realize that copyright actually started as a way for the government to prohibit entry into the printing market. Publishers were literally granted a right to copy by the Crown, and any other printing was considered illegal. This translates today into a protection for anyone thinking they have made something original being given a state-sanctioned monopoly on their product, which indeed does stifle creativity and innovation. If someone can do something great and make a profit, that's great, but by limiting competition it remains to be seen if this person has truly made the best product.
Ummm. Another gross misinterpetation. The Statute of Anne was a little different than your tin-fdoil conspiracy version.
Why don't you explain it in detail, then? No time, today? Got to bash Toyota on some other blog?
Umm, do you realize there were copyright regimes prior to the Statute of Anne? Sounds to me like vagabondvet is referring to the Stationers' Company. And while it may not be an entirely accurate description, it is reasonably correct. And hardly a "tin-dfoil [sic] conspiracy."
First off, thank you for posting such a well-reasoned and well-balanced article on this topic. Even though I am viewed by many as a "copyright guy" I find myself agreeing with most of what you say. The rights of copyright holders, in some places, gone too far and are also poorly targeted, in many cases, to actually support the needs of content creators.
I also agree that there are abuses of copyright law and that there are some cases where copyright holders have bullied away innovation. The betamax case was an example of a sound copyright ruling. However, the Grokster case, which was not mentioned, heavily altered it by adding another check.
The truth is that we haven't gotten the balance right yet. Many use this as an excuse to attack copyright law and call for its abolition, but that is an extreme step. The law needs to be retooled, perhaps drastically, but artists and creators do still serve some protection in their works.
I applaud you for taking the more measured approach. I may not agree with every point, but this is the type of reasoned and rational debate we need on this topic.
Copyright reform should be about balance and that is what you bring. Thank you.
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