Who Knew Discussing A Long Repealed Copyright Law Could Be So Interesting...

from the copyright-geeking dept

(http://www.techdirt.com/articles/20090501/0113064710.shtml)

I wasn't at all sure what to expect yesterday when I went to a conference in honor of the 100th anniversary of the US's Copyright Act of 1909. After all, that law was superseded by the Copyright Act of 1976, and so it hasn't even been in effect for 33 years. However, the program was organized, in part, by Eric Goldman and Pamela Samuelson, and had some really big names on the speaker list, so I figured I'd at least check it out. Looking over the schedule, I figured I'd sit in on a few sessions and probably head out. However, the program actually turned out to be so interesting, that I stuck around for almost the entire thing (had to duck out for a bit at one point). Bill Patry joked that only a bunch of lawyers could get excited to discuss a law that was "repealed" 33 years ago, but what was so interesting was how much of the discussion was really about what's going on today.

The summary? Copyright law is so screwed up that even if you put a significant number of the top copyright scholars and students in an auditorium for a day, they'll disagree on almost everything, and only agree that the system is a total mess. Even simple questions like "how should copyright be handled on blogs" created a collective shoulder shrug, with everyone effectively admitting that copyright law has no answer for such basic questions. That should worry people. If the intention of copyright is to "promote the progress of science" then it shouldn't be so incredibly ambiguous and contentious. All in all, it seems to reinforce the point that copyright law has been stretched and twisted in so many different ways over the years, that it may be fundamentally broken. Basically, copyright law is adjusted every so often not based on any look at whether or not it actually promotes the progress, but based on whatever new technological innovation comes along that throws some legacy providers' business models into doubt. That industry freaks out, and politicians respond with some patch that protects that industry, but has little to nothing to do with actually promoting progress.

This goes all the way back throughout history. One speaker pointed out that the big innovation of the 1909 copyright was compulsory licensing on mechanical rights. This was put into place for one reason: fear about player pianos and how they would dominate the market and destroy the need for musicians. Within a matter of decades, the player piano market was effectively gone... and yet, these massive changes designed solely to deal with the player piano have stuck around ever since. Now apply that same story to basically every other technological innovation, and that gets you copyright law.

If there was a key theme running throughout the conference, though, it was on the single biggest change that the '76 Act brought into play: switching the copyright system from opt-in to everyone-automatically-in (not even to "opt-out" realistically speaking). In the terminology of copyright lawyers, in the '09 Act you had "formalities" to get copyright. In the '76 Act, you don't. While it was heartening to hear an awful lot of support for the idea of moving back to an opt-in system (i.e., if you want copyright protection, you need to proactively register/add a notice to get it, rather than automatically getting it on everything at the moment of expression), there was plenty of disagreement. Registrar of copyrights Marybeth Peters (who has a long history of supporting worrisome expansion of copyright law) kicked off the day by talking about why it was a good thing to switch to automatically in, because the old system resulted in too many questions about whether or not something was in the public domain.

Later on, Jon Baumgarten, who also participated in crafting the '76 Act, berated supporters of an opt-in system, saying that having practiced under it, it was only good for the lawyers, because everyone spent all of their time trying to determine ways to prove that someone had screwed up registering their copyrights, and thus the end result was lots of works accidentally fell into the public domain. On this last point, Peters concluded her remarks with the rather stunning statement "I'm so glad that copyright law no longer allows so much stuff to get into the public domain." (I'm paraphrasing the exact statement, but it was close... hopefully video will be up shortly and I can get the exact quote).

Think about that for a second. Yes, the context is important: her problem was mostly with items getting into the public domain because of confusion in the registration process, but it suggests a mindset that says "the public domain is bad." Later speakers pointed out that the difficulty of putting a copyright on creative works was actually a feature of the system, intended by the Founding Fathers to be difficult on purpose, because they believed how important it was to have a large and fruitful public domain.

Also, what was stunning was how much the "old guard" such as Peters and Baumgarten insist that an opt-in system can't work because it was such a mess under the '09 Act. They seem to be confusing the '09 implementation with the entire idea of opt-in. Sure, things were a mess before '76, but perhaps the problem was with the specifics of the "formalities" rather than with the concept itself. And, they don't even seem to acknowledge that modern technology could (and, in fact, should) change the entire thinking around copyright and how any sort of registration/opt-in process might work. And, in fact, David Nimmer's final keynote suggested that new technological solutions (he discussed a hypothetical system amusingly named "the panopticon") has shifted his thinking from being totally 100% against formalities to now believing that an opt-in system absolutely makes sense.

This post is long enough, even though there were plenty of other interesting discussions, but I did want to bring up three separate points that were interesting:

• Bill Patry (whose blog is seriously missed) tried to hammer home the point that it's absolutely ridiculous that Congress doesn't ever look at copyright law in terms of whether or not it promotes the progress, and totally trashed anyone (including Supreme Court Justices) who seem to think that the "to promote the progress..." part of the Constitution is meaningless preamble, even noting that in 1909 the legislative history made it quite clear that anything that did not promote the progress was outside the scope of Congress's power. It's sad that both Congress and the Supreme Court now seem to ignore this point.
• International trade agreements are evil when it comes to copyright. Sorry, but it needs to be said. There was a lot more talk about whether or not certain changes in copyright law would keep us in line with either the Berne Convention or TRIPs (and soon, ACTA!) than about whether or not it made sense. Basically, these trade negotiations, often pushed by industry reps without considering consequences for the public, have locked us into a narrow range of bad options. We simply can't do what's best for society and creativity, because we agreed to be bound by some really bad trade agreements. No wonder the industry loves them. They get to put a stranglehold on pertinent discussion (does this promote the progress?) and force people into discussing something entirely separate (does this violate our trade agreements?). It gets everyone focused on the trees and missing the forest.
• There's a lot of bubbling concern about conflicts between copyright law and the First Amendment. I'd mentioned how often this issue seemed to be coming up lately, and this event was no exception. While the old guard again insists this matter is settled and there's absolutely no conflict between the two, a large number of scholars disagree, and point out that it's a big open question, and some earlier rulings conflict and leave open some big loopholes to be challenged in court. Expect this issue to get a lot more play in the coming years.

All in all, a very interesting event that generated lots of thoughts and discussions.