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Fixing the “clear mismatch” between technology and copyright law: six ideas

In the 1980s, the gap between technology and copyright law was epitomized by …

A lobby group from the free-speech, fair-use side of the tracks just presented a six-step reform program for outdated US copyright laws. Public Knowledge president Gigi Sohn presented the plan in a New Media conference speech at Boston University recently and expressed no patience with the "disconnect between the law and the technology" of media production and distribution.

"For the past 35 years, the trend has been nearly unmitigated expansion of the scope and duration of copyright, resulting in a clear mismatch between the technology and the law," she said. Advances in technology keep making it easier to copy and distribute songs, movies, books, and so on. Meanwhile, the kind of legislation that gets big-money lobby support from content producers makes it increasingly illegal—but not necessarily harder—to use these new powers of information and entertainment.

The question is: how to fix it? According to Sohn, fair use reform is at the top of the list. The US must allow for more incidental and non-commercial media uses; it is currently far too easy to break the law without knowing it, as anyone who has ever worked in a library knows. Sohn also argues that the landmark Betamax decision from 1984, which gave consumers a green light to make use of recorded materials at home and to "timeshift," should be elevated from a mere legal precedent into actual law. Innovation in media distribution is currently harmed by the fear of spurious lawsuits, as Big Content argues that the Betamax decision should only be interpreted in the most limited sense (as only applying to analog signals, and only applying to timeshifting on a VCR).

She also criticizes the DMCA, arguing that it needs some limitations to keep the number of frivolous takedown notices to a minimum. Sohn suggests that copyright holders be given a dual-edged sword: give them power, but also punish them for "knowingly or recklessly" demanding takedowns without a real case. In other words, shut down the SLAPP suits and the other forms of censorship that comes via the DMCA.

Then there's the whole kerfuffle with digital radio. Sohn thinks the music industry suffers from a "byzantine" licensing system in need of a clear and simple legal framework. Traditional radio broadcasters enjoy lower royalties than their new-media rivals (e.g., web radio) thanks to "solely a historical accident," and the playing field needs to be leveled. At the same time, it's simply too hard to find the rightful owners of a composition and its recorded performance and get cleared to use them. Public Knowledge wants that quagmire cleaned up, too.

That leads into Sohn's fifth suggestion, which calls for relaxed rules around orphaned works. You should be able to sing a song or use a picture if a "good faith copyright search" can't turn up the owner. Text search tools like Google make that task easy enough for text-based or easily describable media, but "imagine trying to find the owner of a picture of Fenway Park when the only way the registry will permit you to describe it is as 'a photograph of Fenway Park,'" Sohn said. Hence, there should be a searchable directory of image rights somewhere—complete with full images or at least thumbnails. Admittedly, at this stage Sohn appears to be dreaming. Putting together a database like this would be quite a feat, and who would maintain it, pay for it, etc.? The restrictions on orphaned works should be relaxed, but the problems of identifying such works won't be solved anytime soon.

Finally, Sohn wants to take license notices down from pages of fine print to "clear and simple" instructions that mention what you really need to know, and nothing else. Drop the legalese and tell people what their rights are in everyday language, without resorting to sports-broadcast-like copyright claims which make it seem like a crime to even talk about a game.

To end the speech, Sohn said that it's time to stand up against an entertainment industry that's "turning 'fair use' into what Lawrence Lessig calls 'the right to hire a lawyer.'" Really, that's what this whole debate comes down to. With "fair use" being little more than an affirmative defense in the views of copyright holders, the environment has become hostile to consumers and innovators. 

You may not agree with every proposed change Sohn suggests, but at least serious discussion about these issues is taking place—and that's an important first step from Public Knowledge's point of view. Fair use reform is needed. It's too bad that the Fair Use Act falls so short of the mark.

Channel Ars Technica