Spanish translation of the transcript (thanks Jose!)
The following is a transcription of Pamela Samuelson's keynote talk on Copyright Reform from the 2008 Free Culture Conference at Berkeley. Whether or not you are particularly interested in the law, Copyright is very relevant to all of us in this media age, and I really hope you will take interest. If you are interested, be sure to check out some of Pamela Samuelson's papers here.
I have lightly edited this transcript for readability, since spoken language doesn't tend to come across as well in writing, but the content and meaning are unchanged. The talk was about 30 minutes, so it should take you about 10-15 minutes to read. Enjoy!
Pamela Samuelson on Copyright Reform
Free Culture Conference, Berkeley 2008.
Thank you for the invitation to speak at this event. It’s very nice to meet some of the people at Berkeley who are involved in the Free Culture projects. I really would encourage you to interact with those of us at the law school who are interested in these issues. That includes Jason Schultz and Molly Van Houweling and me, and of course Brian Carver at the Berkeley Information School. I think we have some community here; we have a good group to work with students who are interested in these issues. Also, I want to thank all of you for sticking around to hear a talk on such a beautiful day in Berkeley. It’s really moving to me that you would spend time wanting to listen to a talk on Copyright Reform when there are lots of other things that you could do with your time.
I want to talk just a couple of minutes about why I think copyright reform is needed, then I want to talk about some different kinds of ways that copyright reform can happen. And then I particularly want to emphasize what the Free Culture movement can do, because I regard the Free Culture movement as really the vanguard of copyright reform in the United States, so I think you have a central role to play in moving this dialog forward. First a couple of things about reform.
The Copyright Act that we have in the United States today was enacted by Congress in 1976 to become effective in 1978. But it was actually drafted in the early 1960’s based on a set of studies that were done in the mid-1950’s. So the fundamental framework of the statute that we have today essentially reflects a kind of 1950’s modality. It just can’t possibly work well given the incredible changes in technology that have happened over time. So we have lots and lots of debates about whether something that’s, say, a reproduction of a work in the random access memory of a computer, is it a reproduction of the work and a copy that infringes the right? You know, it’s like we don’t know how to think about this well.
I think one reason that it’s really important to think about copyright reform is because really pretty much every 40 years there has been copyright reform. So it’s time to really get that conversation started. And a lot of what we need to do is move to better principals about what a good copyright law would look like. It shouldn’t be as long – current copyright law is 200 pages long, 300 if you buy certain editions – and it’s too complicated. I can’t make my way through about half the provisions because they’re so incomprehensible. Maybe it was ok that copyright law was really abstruse at a time when the only people who needed to know anything about it were the industry lawyers who essentially were mediating these kind of inter-industry disputes. If they knew what it meant and nobody else did, who cared, as long as it just applied to them. But now that copyright law is really affecting and regulating our daily activities, we the people deserve a copyright law that’s simple, that’s fair, that’s balanced, and that gets us to a much better way of thinking about what good role copyright law can play.
Like some of the earlier speakers, I worry a lot about the implications of copyright for the activities that all of you do on a daily basis. There’s a really fun essay that was written by one of my colleagues in Copyright, John Tehranian, entitled, “Infringement Nation.” What John does in the article is go through the average day of a professor (seems to be modeled on himself). He does a bunch of stuff on the internet, he goes to the gym, he works out with his tattoos on his shoulders, he plays loud music in his car, and he sings Happy Birthday to people in a restaurant, and by the time he’s finished with his average day, he counts 83 acts of plausible infringement, because some sort of copying was done. And he multiplies that by the maximum statutory damages – $150,000 per infringed work. So, just in one day, even without any kind of peer-to-peer file-sharing going on, John calculates 12.5 million dollars of potential liability for those ordinary infringing acts, and then of course, that’s just for one day, so if you multiply it times the number of days in a year, you end up with 4.5 billion dollars in potential statutory damages for an average day of your life, and that’s only one person. So, when you think about that, you sort of say, “Boy this thing is really out of whack! We really need to get into a better shape.” I could give you dozens of other examples, and actually some of the other people here today have given you other examples, but I want to concentrate instead on how to think about a reform landscape for copyright.
Now there are lots of different actors that can have some impact on copyright reform. The most obvious one is Congress, and I’ll come back and talk about Congress in a minute. Another place where copyright reform can happen is through the courts, through the decisions that judges make in some of these cases that people have been talking about earlier today. The Copyright Office and copyright policy-making by the executive branch is another potential place where copyright reform can happen. But a lot of the movement in copyright reform is happening in private initiatives, and that’s where people like you come in; that’s where the Free Culture movement, I think, will have an important, but not exclusive, role in moving this ball forward.
Now what does the Constitution do? It gives Congress the power to promote progress of science and the useful arts by conferring on authors exclusive rights for limited times. And the point of this, as the Supreme Court confirmed for a couple hundred years, is not to put the maximum amount of money into the hands of people who have created works or publishers who commercially make them available, but rather the primary consideration, the primary goal of the system is to promote the progress of science and the dissemination of knowledge that the public can have access to. So this kind of public access to knowledge is really what we’re trying to do. The grant of exclusive rights to authors is actually a means to that end. So we should tailor it so they have enough incentive to create, but make sure that we’re not giving so many rights that in fact it’s blocking access for the public rather than promoting it.
If you look at the Constitution and you look at the statements by the courts on what copyright is supposed to be about, you sort of say, “What happened?” Because Congress does seem to have abdicated its responsibility to pay attention to how the copyright law affects the public interest. And it’s done that over a period of years largely because the copyright industry people will come and say, “Oh this is so complicated, and you guys don’t have any expertise on this, so let us write the rules, and then once we get it straight amongst ourselves, we’ll bring it back to you and you can pass it, and everything will be fine.” And again, maybe that was not such a good thing ever, but it certainly isn’t such a good thing when now it’s our lives and the things that we do on a day-to-day basis that are being affected, and the doors are really shut to our kind of input into this process.
Economists use the language of public choice to explain what kinds of problems happen in the legislature where you have one group that is going to get concentrated benefits by passage of a certain kind of legislation, and where there are distributed costs, where the cost to every single individual who may be affected by it is relatively small and kind of difficult to assess. Where you have concentrated benefits and distributed costs, what you often find is that those concentrated industries, like the copyright industry, are very good at getting money to members of Congress, especially people who are on the key committees, and persuading them to pass laws favorable to them. And because most of the constituents aren’t saying, “Hey, this is going to affect us too!”, then there isn’t somebody out there standing up for the rest of us. So if Hollywood says “Do this, do this, do this,” and nobody else is saying anything, then the legislature thinks, “They’ll give me money if I do this, and nobody else seems to care, so why shouldn’t I do it?” So I think that helps to explain why we end up with some pretty lopsided legislation being enacted.
And the question is, can we overcome the public choice problems that now beset copyright policy-making in Washington DC? I think we can, but I don’t think that’s going to happen anytime soon. One of the things that I think has to happen if we’re going to do that is that there’s got to be some grass roots kind of organizations that are actually representing interests of people like you. And you’ve got to be willing to say, “This matters to me,” so that Congress will stop saying, “Well the only people who seem to care about this is Hollywood, and if they want it, and they have a big industry, why not do it?”
I think that there are other examples of where public choice problems in other arenas have been overcome by the public getting active, by organizations like the Electronic Frontier Foundation or Creative Commons that end up having a political movement associated with them. But you’re going to have to have people who are willing to let their legislators know that this matters and that balance rules really are important before we can really expect much of it to happen in Congress, although occasionally something good happens, but not really very often.
So since Congress doesn’t seem a very promising venue at least at this point, what next? Well, one of the things you can do is fix things a little bit through the courts. A lot of what you’ve been hearing about today is Fair Use reform, and there are examples as Jason [Schultz] mentioned. Sometimes if somebody threatens you by saying that what you’re doing is infringing, but, gosh, you’ve made this transformative remix and it’s really cool, then standing up for it and saying, “Okay, I’m going to get the court to declare that this is in fact a Fair Use.” And now that there are clinics at Stanford and Berkeley and American University and Harvard, and a number of other schools, there are actually people who would represent you without you having to pay money for a lawyer.
There are actually lots and lots of parts of copyright law that can be fixed through the courts. Fair Use is probably the most predominant one, but for example another is statutory damages. I’m working on a project trying to suggest that courts should develop guidelines about when and what kinds of statutory damages can be awarded in copyright cases where the damages would be a relatively small multiple over actual damages. Think about that case that was mentioned a little bit earlier. Some members of the jury wanted to award $750 dollars per infringed song – 24 songs. Some of them wanted to do $150,000 per song, and they settled for $9,250. Okay, now what was the principle guiding that? It doesn’t make any sense, especially given that she could have bought those songs on iTunes for $24. So, you know, maybe 3 times the actual damages would be, you know, $75? Maybe that’s a more reasonable sum than $220,000. There are things that judges can do to say, “Look, this is really out of whack, and juries ought not to be able to do it.”
I’m working on a project right now to try to persuade judges that they should look at Fair Use cases in terms of the policy interests that are at stake, and so in cases that involve free expression and free speech, they ought to be worried about things like chilling effects on free speech and freedom of expression, in cases involving parody, criticism, and misuses of copyright to try to censor speech, and I have a bunch of other clusters that I won’t bother you with now, but I really think this is actually a way that you can get more good decisions out of courts and make Fair Use more predictable. That’s one of my goals, because it’s the unpredictability of Fair Use that has, I think, the greatest chilling effect. So those are some things that can be done through the courts.
Now another venue for potential reform efforts is actually the Copyright Office or some part of the executive branch. The Copyright Office hasn’t exactly been the most proactive in the reform area, but they’ve actually done a couple of good things. On distance education I think they came up with some good proposals, I think their orphaned work study is actually really good, they’ve been pressing orphaned works legislation that would allow you, if you made some effort to find the copyright owner and couldn’t, to go ahead and use it, or to put it up on the internet, and maybe you wouldn’t get any damages against you if the work was in fact an orphaned work. And they’ve done a couple of other things that I think are actually pretty good.
But a lot of what needs to happen is actually reform of the Copyright Office itself. And so some part of what a group I’m working with is looking into is, are there things that you can do with the Copyright Office that would make things better? And one idea is, for example, to have a public interests ombudsman, somebody inside the Copyright Office whose job it was to think about how this is going to affect ordinary people. Another thing that could be done is more empirical work. Before you pass new legislation that’s going to make things stricter, maybe you ought to really do some empirical work and not just take the copyright industry’s viewpoint straight off. Maybe you should get some advice about what to do. And maybe there should even be some kind of small claims court where if you think you have a Fair Use, instead of having to hire a lawyer you can go through this adjudication process, and for a small amount of money be able to get a determination, “Yeah, that’s a Fair Use, go ahead and do it.” So those are some of the things that we’re looking into.
Private initiatives come in a lot of different flavors, and here’s actually the place where I think we really have to start, and work really hard at. Bravo to Creative Commons, and Science Commons, for really taking proactive steps to allow licensing that many of you find very amenable. The National Academy of Sciences is about to start a copyright reform project and they’ve been thinking about what kinds of ways, especially in an economic thinking, can be brought to bear on copyright policy, because right now lots of inefficiencies are out there. What can we do to make things better? That’s a venue that’s interested in it. Public Knowledge and the EFF have been working on some copyright reform projects too.
One thing that actually got started a couple of years ago and then didn’t take off, but maybe it’s time for it again, is a group called digitalconsumer.org. They began to develop a consumer bill of rights in copyright. So, what should we be able to do? I think one of the things that folks like you should be able to help with is this question of “What should we be able to do? What should be the user’s rights in the copyright system?” Because you’re not going to expect the copyright owners to try to develop that kind of list, but maybe that’s something that you and groups like digitalconsumer.org and Public Knowledge or EFF could try to do, and that I think would be a really good thing.
I’m actually doing some things myself, I’ve started convening a group of about 20-some people to meet on a regular basis to have conversations about copyright reform. What we’ve done is started making a list of things that we agree on, things that we don’t exactly agree on, and then we’re starting to articulate principals of a good copyright law, which, if we’re able to articulate, may actually be the basis for a simple model copyright law that I think would balance interests better than the law that we’ve got right now. So that’s my particular effort to do it.
I think that I want to end my talk with a reiteration of the point earlier, which is, you guys are in the vanguard. It’s wonderful that you just go out and create things and play with things and try new technologies, build new technologies, enjoy and engage, and contribute to culture without asking for lawyers. So bravo to you for doing that. You know, there haven’t been lawsuits brought by the copyright owners against remixes that have been shown on places like YouTube, and I think part of it is that – I’ve talked to people at some of the major movie studios – they think that’s Fair Use too! And even if some of them don’t, if it’s tolerated for a long enough time, it becomes a Fair Use de facto.
And so those of you who are engaged in the kind of playful engagement with culture, the law will eventually catch up to the kind of engagement and playfulness that you’re doing, and allow it. I think of Thomas Jefferson and James Madison occasionally and I think if they could see what you guys are doing, they would just be astonished. They would just say, “This is so cool!” Because what the founders wanted was not for big mass media publishers to be able to dominate the landscape, but rather what they wanted was for ordinary people of the United States to be educated, literate, to contribute to culture, and to participate in democratic discourse. So I think you’re following the founder’s intentions more than the copyright industries are at this point.
Thank you very much.
Q: In this category that you seem to think has the most promise, private initiatives, where would you put the initiatives or activities of large/private corporations in the copyright industry who themselves are trying to figure out how to behave and how to stake claims? I’m thinking about what I assume is to be an impending settlement between the publishers/authors guild and Google, which seems to me would have quite a bit of influence over how books are to be accessed over the internet. In that sense – this is going to be a private settlement, I don’t think it’s going to go to a court ruling, but maybe it will – that could have all kinds of effects, because the actors are so large, and I think that’s the kind of private set of decisions that have public effects, so what can be done around those kind of processes by groups that care about Free Culture?
A: Well, one has to say that copyright reform is kind of an uphill battle. And some days when I think about it I despair, but most days I just say, look, we can do better, and that means you have to say that there are some things out there happening in terms of private settlements that, if we were in a different environment, might not happen. And maybe sometimes some of those people are actually wishing for a better situation too, so I think that there are untapped resources out there in the private sector that would support copyright reform, if the conversation wasn’t wholly dominated by Hollywood. I’ve had some conversations with people elsewhere in the IT industry, and not just Google and the like, where people actually say, “I’m hungering for a better and more balanced copyright law.” In the meantime, they have business decisions that they have to make, and sometimes they make them in a way that doesn’t auger well for the copyright reforms we might want. But I don’t think we can let those kinds of things set us back from the larger task.
Q: You said that you were working with some other people to come up with simple principles for new copyright law, could you go over what some of those principles might be?
A: The group is still working, and the kind of agreement that we have right now is that nobody can speak for the group. We’ve been meeting for heading toward a year and a half, and we’ve had very productive meetings, and it’s a very respectful and good, substantive conversation. Like I say, we have agreed upon some things, but we haven’t articulated a set of principals yet. The assignment we gave one another this summer was to articulate some principals which we’ll talk about in November, and then at that meeting we may find some that we can agree on and some that we can’t. Regardless of whether this group is able to go forward with principles, and I’ll say this is not going to be that simple, because in addition to having some law professors who think sort of like I do, we’ve got some people from some other content industries who think differently. But I’m going forward with this no matter what.
Q: So you’re not at liberty to say any of the principles you’ve decided on; are you able to say any principles that you’ve been contentious on?
A: No, well, I think there’s some things that are easy to agree on, and some things that are not easy to agree on. One of the principles that I think we all agree on is that Fair Use is a critically important part of copyright law, and the only complaint that we have is that Fair Use is too unpredictable right now. So I’ve been proposing what I’m calling unbundling Fair Uses into various policy clusters, and if you look at the Fair Use case law in terms of the policies and those clusters, I think it becomes more coherent, it becomes more predictable, and it also doesn’t entirely lose the flexibility of a good law. An area where we’re going to have a little difficulty reaching consensus is with stuff like secondary liability. The secondary liability of ISPs or Google or other kinds of intermediaries for infringing acts that might be done by users – that’s an area that’s pretty hotly contested, and it’s going to be harder to reach consensus. But I think if you pitch the principle at the right level, then people might fight over how that principle is applied in certain situations, but I think it’s reasonably likely that we can find most principles where people can basically agree with each other. That’s what I mean.
Q: It seems that you take a very interventionist approach to dealing with these questions. Is that rare in your field? What do other legal scholars think, for instance, about judge education projects?
A: I was led to this reform project idea by the fact that I’ve been in the field of copyright law now more than 25 years and I’m getting tired of complaining. Complain, complain, complain. I think, if I’m so complainy about this thing, then that must mean that implicitly, somewhere in my head, I have an idea of what good copyright law would look like. And so if I think that’s true, then it’s incumbent upon me to more proactively try to articulate those things. I’ll speak to any audience, I’ll speak to judges, I’ll speak to the legislature, I’ll speak to the copyright office, I’ll speak to people in industry, and of course I love speaking to groups like this, this is a pleasure, not a duty. But if you’re going to change copyright law, you’ve got to intervene.
Q: You talked a little bit about how there’s a lot of infringement claims a person can have walking around throughout their lives, singing Happy Birthday, all sorts of things. Is there a way we can rat on our friends and show the world that we think we’re violating on a day-to-day basis? Are there any filings in courts that we can do on each other to kind of make it clear that they’re ignoring all these possible claims? Cause, you know, I’d rat on all of you guys. I’d stab you in the back. I just want to know if I can do that.
A: No, because frankly, except for people who are doing peer-to-peer file sharing, there’s very little interest on the part of major industries in going after individuals. For this Infringement Nation and these activities to be challenged, it would take dozens of copyright owners. This is a place where the cost of actually getting all these clients is so large in relation to what you would reasonably expect to get that a market really can’t form. So, to me, this is an example where you’ve just got to exempt the personal uses. Not say that personal use means that you can do anything – because, “hey, it’s for me!” – but the broad array of things that we do on a day-to-day basis interacting with stuff just ought to be exempt from copyright law, period. Now there are a couple of ways that you can do that, one is to create, as some countries have done, a personal use exception to copyright liability. Whatever little copies you might make, whatever distributions you might make, are exempt, partly because people might respect your privacy, and partly because it’s just not cost effective to enforce copyright at that level. Another way you can do it, is what the United States has mostly been doing, which is to say that it’s Fair Use. I don’t think John Tehranian thinks that all of those acts are infringing. He thinks that they’re all Fair Use. But the article was written to make a rhetorical point. So he was not encouraging you to start counting how may infringements you are engaged in daily, or that you should say, “He’s doing more than I am so he should get hit before me.” I don’t think that’s going to be constructive. But we’re trying to talk about a mass movement to educate Congress and policy-makers about how we’ve got to have a copyright law that works for everybody. Right now we don’t, and I think that that’s a message we ought to be carrying forward.
Q: Can we get the notes from your copyright reform meetings?
A: No. I’m not that open.
Thursday, November 13, 2008
Spanish translation of the transcript (thanks Jose!)