The House Judiciary Committee, tasked with copyright reform in the Next Great Copyright Act process, has taken its long-running hearing show on the road. This week, members of the committee attended sessions in northern and southern California. The line-up of experts in Santa Clara yesterday was diverse and impressive, and included people like Internet Archive founder Brewster Kahle, noted musician Zoe Keating, iFixit CEO and DMCA activist Kyle Wiens, and of course EFF’s own staff attorney Kit Walsh.
Given the wide range of experts, the conversation covered a lot of ground. More than other hearings in this series, though, it got deep into some of the specifics necessary to address shortcomings in current law. Here are four crucial points that got discussed.
1. Statutory damages are far too high, and bringing them into rational territory could help solve other problems.
Many of the panelists and congressmembers touched on the fact that the stratospheric levels of statutory damages in copyright litigation can make taking any copyright risk—including engaging in protected fair uses—into an existential dilemma. Although the maximum statutory damages are rarely if ever awarded, even the possibility of $150,000 per work hang like the sword of Damocles over any possible litigation. Basing those penalties instead on the actual harm caused by an act of infringement, or limiting them in cases where the infringer had a reasonable basis to believe their conduct was lawful, could make fair use less risky, and even encourage platforms to defend users from copyright bullies.
The risk was emphasized by panelist Ted Ullyot, who works for the tech investment firm of Andreessen Horowitz. As he noted, the well-established tech companies—like the ones in his firm’s portfolio—may be able to take risks and afford to litigate. The casualties of ruinously high penalties are upstarts and smaller competition. Copyright damages shouldn’t be inhibiting those companies’ ability to innovate and challenge incumbents.
2. The Digital Millennium Copyright Act’s DRM provisions urgently need reform.
The fact that the Librarian of Congress largely granted EFF’s requests for exemptions to these provisions does not mitigate the fact that this process is fundamentally unsound—and worse, unsustainable as more and more of the things we own come wrapped in technical restrictions. Walsh noted one area where legislation could be helpful: some courts have interpreted the DRM provisions in Section 1201 to prohibit circumvention even for lawful purposes, like fair use. Even if Congress can’t muster the appetite to strike that section altogether, it could clarify it with legislation to specify that it doesn’t apply to breaking DRM for otherwise lawful purposes. In fact, one member of the Committee has already proposed such legislation: the Unlocking Technology Act.
Instead, the rulemaking process has ballooned in recent years to cover more and more classes of circumventions, which drives home an important point about efforts to modernize the Copyright Office: are processes like the 1201 rulemaking unnecessarily time consuming?
3. Fair use has to do a lot of work, so it’s a good thing judges have enabled it to do so.
One encouraging trend in the world of copyright litigation has been the tendency for judges to find fair use in novel situations. Perhaps the most prominent recent example is mass digitization of books, where a panel of Second Circuit judges handed a big fair use win to Google Books last month. There may not be direct opportunities for legislation to support this trend, but the lawmakers at yesterday’s session seemed to understand the importance of staying out of the way of fair use, both for innovative start-ups and end users who need to make copies in order to read, share, and comment on the culture around them.
4. It’s not just copyright—End User License Agreements have diminished our ownership rights.
Many of the panelists and congressmembers seemed concerned about the ways in which copyright and DRM get in the way of traditional ownership. Panelist Kyle Wiens, who has previously written about the plight of farmers who are prevented from modifying or repairing their tractors, highlighted some examples that seemed to resonate. But beyond the copyright and DRM restrictions, end-user license agreements (or EULAs) have cut into our traditional ownership rights.
After yesterday’s session, it seems clear that the lawmakers understand the importance of copyright issues to technology users and companies. As we approach the third anniversary of Register Maria Pallante’s call for a Next Great Copyright Act, we hope the committee can find a way to get those user-protective reforms into motion.