Coalition Claims to Seek Balanced Copyright

balanced?.001Once again, a confederacy of the usual suspects has regrouped, rebranded, and relaunched a campaign on copyright in the digital age. They call themselves the Re-Create Coalition. David Lowery on the Trichordist referred to them as “getting the band back together,” and it is true that this familiar list of mostly Google-funded organizations (with bizarrely similar logos) has been trying to get its act together, a bit Keystone Cop-like, ever since the defeat of SOPA in an effort to relive that glory day. Once again, they are eager to rally citizens to their point of view on copyright, though that point of view may be hard to discern if you’re looking too carefully for specifics.  Broadly, the coalition says it wants to balance the rights of creators, consumers, and innovators, which happens to be more or less the goal of every copyright professional since James Madison. So, the only thing that matters is what’s behind those pretty words.

Does copyright need changing in the current market?  Sure. Register of Copyrights Maria Pallante was on Capitol Hill this week offering testimony in the final round of hearings on that very subject.  But like any complex system that might demand revision to conform to a new market, it’s reasonable to assume we’re talking about tweaks, not radical overhaul. Or to paraphrase author and attorney Elizabeth Wurtzel, law requires “granularity” to make it work. Because on the whole, copyright is relatively balanced except in the eyes of extremists and really big Internet corporations, who consider the whole legal framework (not to mention legal frameworks in general) a nettlesome barrier to their dreams of world domination.

Funding source alone does not negate the arguments or a point of view of a group or organization.  Nearly all organizations are funded by private industry in one way or another.  But readers should bring at least a dash of salt to the party when the company that’s been described as the most powerful in the world (i.e. Google) walks into the room and says, “We want a level playing field.”  In general, populist words alone don’t mean anything; mission statements are usually boilerplate.  There are plenty of organizations out there that use terms like freedom and fairness and American ingenuity while behaving as the most industry-serving, right-wing, bigoted group of grumpy white men you ever wanted to meet.  So, cutting through the fog a bit, what does the Re-Create Coalition appear to care about?  Based on their stated agenda, they seem to be focused on two things above all:  fair use and safe harbors. So, let’s look at those …

Take the example of my friend Sarah, cited in my last post, who inadvertently committed copyright infringement on the assumption that her use of a photograph as a supplemental asset on her blog was a fair use.  If we were to, say, broaden the application of the principle to include her use in this instance, that would not be balancing copyright so much as it would erase the purpose of having a fair use exception mean anything at all. It would simply be a free-for-all. If, on the other hand, we review statutory caps on awards for damages so that honest mistakes like hers cannot induce undue financial burden, perhaps there is room for some nuanced adjustment to the law. And admittedly, this appears to be one focus of the coalition. But …

Even the matter of statutory limits might be pretty tricky.  Potential damages function as a deterrent to unlicensed use.  Lower those barriers too far, and it’s not just the big corporations who can get away with anything.  Although it’s not a copyright case, the recent story about the couple whose engagement photo was used without permission on the cover of a cheesy, self-published erotica novella makes a pretty good example of what the market might look like without barriers (what Jaron Lanier calls levees) — rampant violation of several forms of IP rights.  Ironically enough, it probably wouldn’t take too many incidents of personal photos being ripped from social media and used in unpalatable ways like this before people started to think twice about sharing photos on social media.  So, IP barriers play a role in what the Re-Create Coalition folks call the “innovation economy,” too.  And ultimately, why should Amazon earn dime one from the sale of this self-published book (or perhaps hundreds just like it) when those sales involve printing and distributing a couple’s photo without their permission and in a way they find degrading?  So, fair use is good; we all like it.  Is it a doctrine in need of “re-balancing?”  Certainly not if all it does is tip the scales in the favor of one industry.

Perhaps more telling is that this old group with the new name sounds rather keen on calcifying safe harbors within the DMCA (Digital Millennium Copyright Act) and the CDA (Communications Decency Act), both authored in a time when the Internet functioned very differently than it does today.  So, when they say they want to balance copyright to protect the rights of creators without standing in the way of innovation and opportunities provided by the digital age, they don’t necessarily mean they want to update statutes that have protected mass infringers in a manner in which the law never intended.  For instance, YouTube has profited from mass infringement thanks to these safe harbors, yet this group’s call for “balance” in this regard is to leave that puppy alone.

Don’t get me wrong, I’ve said in other posts that these safe harbor provisions are important; they’re important to copyright interests as well.  But what’s happened in the case of YouTube is that the application of these provisions provided a free ride to that company, which in turn enabled market dominance it could then leverage to effectively force, for instance, musical artists to accept their lousy Music Key contracts.  The outcome is not only unbalanced, but it’s a worse deal for creators than some of the most underhanded recording contracts ever written. Yet, this progressive-sounding, forward-looking group isn’t talking about updating these 20-year-old components of copyright law.

Are there abusers of copyright?  Absolutely.  And they are as despised by serious copyright defenders as they are by anyone else. Nobody who believes in a set of principles likes to see those principles misapplied.  But abuse is the exception, not the rule; and laws should be written to support the rule.  Speaking of exceptions and rules, here’s a familiar refrain by Executive Director of the R-Street Institute Andrew Moylan, cited on the press release announcing the new coalition:

“The Internet has lowered the barriers for everyone. As technological innovation continues to advance at a rapid pace, copyright law must catch up. Overregulation protects past success at the cost of future opportunities and allows for exploitation of the current system.”

Sounds reasonable, but allow me to translate.  “Copyright terms are too long and only used to protect corporate rights holders (*wink* Disney), and this stands in the way of new creators entering the market.”

But here’s the market reality:  No matter how long or short copyright terms are, devaluation of works due to mass piracy as well as predatory practices by Silicon Valley interests have reduced investment in viable avenues for professional creators.  Thus, while the Internet does “lower barriers” for creators to showcase their works, the companies that dominate digital space have contributed substantially to the reduction of opportunities for those same creators to turn the prospect of discovery into sustainable entrepreneurism.

Meanwhile, to paraphrase Robert Levine, author of Free Ride, “It doesn’t matter if copyright is life plus 50 years or life plus 70 years. Because on the internet, copyright lasts about ten seconds.”    So, balance that, and then maybe we can talk.

© 2015, David Newhoff. All rights reserved.

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  • As always, I welcome your cautions as the various players wade back into copyright quicksand that is the DMCA, and I’m glad you agree that the DMCA is in need of work–what with the auto manufacturers association now claiming that home mechanics can’t mess with the software running their cars and other excesses of overreach. But I have to object to your repeated characterization of EFF as a “Google-funded” group, or a group otherwise beholden to Silicon Valley interests. Their interests are very much aligned with a respected academic and legal community working in copyright, including Pamela Samuelson, Daniel Solove, Chris Hoofnagle, Paul Ohm and others. If you have concerns about donors whose wealth involves Google’s money, I hardly think that makes EFF a load of corporate stooges, any more than PBS is a Big Oil mouthpiece because they take ExxonMobil money.

    • David Newhoff

      As I say repeatedly, funding alone is not a smoking gun. I have criticized the EFF on substance many times; and while those names you list indeed are respected, they are also among the academy of copyright reformers with whom many of their peers disagree. Academics are largely against copyright right now, which I personally believe is folly, so the list alone doesn’t matter to me per se. When we get into the nitty gritty of debating copyright review or reform, it should be a debate among equally-balanced experts, and I’m not one. But I will gladly criticize, for instance, Pam Samuelson’s PR statements and generalizations because I think they are grossly misleading.

      All that said, in terms of dollars buying policy, it is a matter of record that Google alone has more funding into think tanks, academic institutions, activist groups, and outright lobbying than most people begin to realize. And this spending far exceeds resources spent by organizations with opposing interests. It is also pretty clear I think that Google has an ideological agenda that goes way beyond mere profits (at least if Schmidt means anything he says) and that the EFF just so happens to echo that agenda with some frequency. Above all, none of these organizations (with the possible exception of the librarians) has any serious credibility with the creator community they claim to include in their vision for balance.

      And of course, when I mention DMCA, it is on the subject of its uselessness as a mechanism to protect creative authors. I might care about the auto thing in theory, but it’s not related to this post.

    • First, you mention Academia. Unfortunately it has become as polluted with influence money as our political system. Google has provided several million dollars to Stanford to create their Internet and Society wing with the sole goal of being a mill to turn out anti copyright papers and graduates. Google installed Lawrence Lessig to run that and paid him extremely well to promote the copyright is evil and silicone valley can do no wrong agenda. On a second point, you are saying the EFF is really about promoting rights and freedom? Google and other tech companies invade your privacy on a daily basis, storing all the lurid details of where you have been with government and private entities for profit. Now one of the things I learned in school is that a part of our freedom is our right of privacy. That is why it is highly illegal to reads one mail or invades one’s home without permission. So if the EFF is such a freedom fighter, why are they not leading the charge to give us the same rights of privacy in the digital world as are legally protected elsewhere? Because Google does not want that and they are the number one funder of the EFF. Google does not want that and they are the number one funder of the EFF.

  • Off topic, but your ‘motto’ from Stephen Hawking doesn’t sound like anything Hawking would say, probably because he didn’t:

    • David Newhoff

      🙂 Come on, though. How perfect is that? A blog questioning the value of the Internet to fulfill its promise to spread knowledge and has been perpetuating a misattributed quote found in countless places around the Internet? You have to like that just a little. Well done, David. I shall reattribute to Mr. Boorstin. Probably time for a new quote anyway.

  • The DMCA is something that indeed needs to be repealed. I think the idea that an alleged copyright holder can, without evidence of any wrongdoing, throw down an injunction on someone else’s content is just awful. It is one of the biggest judicial imbalances. The whole anti-circumvention section is a restraint on free speech and computer security research as well.

    • Derivative Dog

      The DMCA safe harbors were sought by ISPs, who didn’t want to be subject to ordinary rules of tort liability. They would raise a louder cry than copyright owners if the DMCA were repealed.

      • Except that the Telecommunications Act shields ISPs from all the actions of their users, including other illegal behaviors not relevant to the DMCA. It’s actually copyright that is the stringent “safe harbor” to maintain BECAUSE of the DMCA. For any other law, eg. drug smuggling, ISPs just have to not be directly involved. Only copyright gets the “benefit” of extrajudicial protection.

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