Copyright's "Constitutional Moment"?

Netanel's anecdotes and analysis point out problems that arise from conflicts between copyright and free speech. The two easiest responses to these problems would be to either recommend solutions or criticize Netanel for overstating (or understating?) the problem. Netanel will do the first later in his book, so it makes little sense to do so here. Other posters have ably done the second.

So instead of taking either approach, I will do something different in this post, looking instead how solutions might be found, rather than what they might exactly be.

I want to suggest, boldly and broadly, that whatever one thinks about what copyright law should look like, we will soon face a "constitutional moment" in copyright.

As Netanel points out, a collection of unsettled or questionably settled issues at the intersection of free speech and copyright law cloud and obstruct debate about solutions. Copyright is increasingly viewed as a property right, rather than a malleable and optional element of policy. "Free speech" itself is poorly defined, with the line between expressive acts and true speech unclear. Fair use, intended to provide an escape valve at the copyright/speech intersection, is so complex and inscrutable that even legal experts have trouble defining its contours, with the result that much legal speech might be chilled.

Even before the explosion in computer technology over the past 10 years, copyright law was unclear.  Parody was not included in the definition of fair use until Campbell v. Acuff-Rose in 1994. The Alice Randall/Margaret Mitchell controversy Netanel repeatedly discusses illustrates how little Campbell resolved.

Lots of areas of law lack clarity, however, and if this were as far as the problems extended, copyright could probably have muddled on indefinitely, evolving in traditional common law fashion, supplemented occasionally by Congressional intervention. I have serious doubts about whether this is possible in 2008. Technology has changed content creation and distribution so much that courts will likely be completely unable to keep up. Efforts to use the courts, illustrated by Netanel's examples and, most notably, by RIAA Doe suits, descend rapidly into a farce that discredits the courts and copyright law itself.

As others have pointed out, these technological developments take two forms - those that make copying cheaper, and those that make new content creation, including remixing (broadly defined) cheaper. The former technology raises real enforcement and respect-for-law problems for copyright, but Netanel seems to believe (and I agree) that the latter technology is even more dangerous for the unsteady truce between copyright and free speech.

In a world where everyone has access to cell-phone video cameras, GarageBand,  and iMovie (Mac bias exposed); and in which everyone has access to YouTube or other means of internet distribution, can copyright law hold? If, as Carr suggests, we are moving towards a cloudsourced world, is copyright law structured such that it is possible (or wise) to police the cloud for violations? Vikas talks favorably about best practices codes, but are these workable in a world where everyone is a creator? Maybe. But even if they are, could courts possibly handle the load of copyright litigation, and if they could, do we want them to? These are difficult questions, and I am highly skeptical of whether the steady legal evolution we have seen in copyright to date can manage to answer them.

We may therefore be nearing the breaking point for copyright law as currently conceived. Technology will continue to spread and reduce copying, creation, and distribution costs. But technology is not the source of the problem - it has just exposed the sclerotic heart of a broken system. The only solution, I believe, is a complete, ground-up reconsideration of copyright. The time for incremental change is over. In a sense, we are nearing a constitutional moment for copyright.

What does this mean? To put it simply, I believe we (in public debate and through the lawmakers we elect) should scrap current copyright law entirely, and start from a clean slate. Settled expectations about property rights in copyright, about what "speech" is, and about the boundaries of fair use would all be up for discussion and renegotiation. Instead of these specific questions, we should ask the more general one - what is the minimum level of legal protection for creative work that we as a society think is necessary to encourage creation at a level we are comfortable with? The answer to this question depends fundamentally on the costs of creation itself, which are continually changed by technology.

In fact, it might be best to take the John Lennon position - Imagine: no copyright. What would the world look like? What would be wrong with it, and how might law fix it? The answer would surely be copyright in some form, but that might be very different in both form and extent from either what copyright law looks like today, or even what current law could reasonably be changed to look like. It is only by starting wholly anew that we can even really ask these questions.

While it is beyond the scope of this post to suggest what the "new copyright" that develops from such a clean state would look like (I would think Netanel will have something to say about it in the remainder of the book), I can at least suggest sources. First of all, we should look a behavioral economics. How much do people discount the future - how much of the prospective future value of a created work do people need to retain to encourage creation? Further, we should look at other societies, both historically and internationally. Other countries have greater or lesser copyright protections. Would we be comfortable with the balance they have struck?

One problem that might arise with a copyright "reset" is what to do with existing works. From one point of view, it makes sense to simply put them all into the public domain - there is after all no need to encourage their creation. Of course, this creates a disincentive for future creation since it is hard to credibly commit to never doing the same thing again. Another option might be a general tax used to fund a one-time payoff to copyright owners. This is probably unworkable since copyrights vary so dramatically in value - and it is impossible to predict what will be popular in the future. Another option would be to compromise by retaining existing copyrights but reducing their length. This seems reasonable, but given that copyright terms have been repeatedly extended, may be politically impossible. I confess that I have no easy solution to this problem, but it is at least possible that it doesn't matter. If all we want to do is set the incentives for creation correctly going forward, a purely prospective reset of copyright would be sufficient.

In sum, the system is broken and is being repeatedly exposed by technology. Copyright is losing its relevance and respect. Evolution of doctrine can't fix it. We similarly can't afford to just get rid of it entirely, but we should scrap it - and all of our expectations and preconceptions with it - and start anew. Sometimes the world changes so much that existing law no longer fits reality. When this happens to an entire society, the result is a constitutional moment, in which law and legal philosophy fundamentally change to match a new ordering of society. I suggest that just such a real-world change has occurred in the past 10 years - not a general societal change, but one in creation of content. It has been suggested that the democratization of content creation and distribution resulting from the Internet is the greatest such change since the printing press. It would seem foolish to attempt to govern a post-Gutenberg world with copyright law designed for the era of illuminated manuscripts. It seems similarly foolish to use 18th-20th century copyright law to govern a networked world. The solution, in both cases, is to start again from first principles and forge a new speech/copyright compromise from scratch.

The time for half-steps and incremental measures is over. We have nothing to lose but our intellectual chains.

Comments

[Frank_B]

I think the allusion at the end of your post is appropriate. You're talking about nationalization.

Perhaps we should have never considered copyright "property," but that's not much different from those who argued that mines and oil fields should have always belonged to the people.

I think there's too much built upon these settled expectations. You might be right that copyrights will become increasingly unenforceable, but that probability is built into their market value. Maybe they'll become increasingly worthless, but we probably shouldn't hasten their demise.

Non-retroactive change would be nice though.

[Ruben Rodrigues]

Nathan, your post made me think of a lot of different things. While i agree with you and Netanel that Copyright has some issues (especially vis-a-vis free speech), I actually think some small incremental steps can go a long way in remedying the situation rather than a complete bottom-up overhaul (what you've termed Copyright's "Constitutional Moment"). Though, maybe what I perceive as small changes, Disney perceives as a complete overhaul.

Before I talk about possible changes though I'd like to see what Netanel proposes in later chapters. From the rhetoric used in the first three chapters, my hunch is that he's more in the complete-overhaul camp.

The notion of a "constitutional moment" is an interesting one though, and it might not be as rare or as politically infeasible as you might think. In just over the past 40 years I can think 3 different "Constitutional Moments" for Copyright: The Copyright Act of 1976, The Berne Convention (US Implementation of in 1988), and the DMCA. The shift has been one from limited copyright, with a focus on formalities, renewals, and commercial publications, to an automatic regime, to the almost absolute property right embodied in the DMCA. I think most of these changes (like automatic copyright) have actually been positive and pro-free speech, though I definitely agree there are issues.

I think it's funny Netanel speaks fondly of moral rights, since much of the copyright changes of in the 1980's that I imagine he disagrees with were made to more greatly converge with European norms under the Berne convention... which really doesn't address American ideas of free speech at all.

[Nathan Richardson]

I share your skepticism about moral rights, Ruben - and for reasons I would have guessed that Netanel would sympathize with. It will be interesting to see how he handles them in later chapters.

[Chang Won Choi]

Although I believe that there is a need for clarity in copyrights laws and need to re-balance the rights of the copyright holder and the public, I am not convinced that we are nearing a constitutional moment for copyright.

First, there are some indications that the copyright holders are moving towards more liberalized stance in regards to copyright. For example, while the strong property rights position held by the music industry has been heavily criticized by some commentators, the music industry, ever so-slowly, has been moving towards more liberal copyright policy, notwithstanding its Doe lawsuits. At first, the music industry wanted no part in digitalization of music and brought lawsuits against music-sharing websites and services such as Napster and refused to provide any music online. Later, the music industry agreed to provide its music through Apple’s iTunes services, albeit in a restricted form using digital rights managements tools. Recently, the music industry has agreed to strip away digital rights management restriction on the music that is sold online.

Furthermore, it does not appear that the content producers are being substantially impacted by the copyright laws; it does not appear that the quantity or quality of contents that are being posted on YouTube has been impacted significantly by the threat of copyright lawsuits. Rather, it appears that people have learned from experiences from others and have changed their behaviors accordingly.

Also, while I do acknowledge that the high transaction costs in licensing may be a problem right now, I do not believe that this will be the case in the future. Again, people will change their behaviors accordingly. It could be that parties will contract into much more simpler licensing agreements between themselves such that a party that wishes to license or receive a release to use a copyrighted material does not have to track down all of the copyright holders.

Lastly, I am not certain that there will be incentives for politicians to “fix” the copyright system. In contrast to powerful media industries, I am unaware of any organization with sufficient political capital advocating who are advocating reforming the copyright system (for example, I don’t think organizations such as EFF has the necessary political clout to make any substantial changes to the current system; Google, however, might have the necessary political clout and finances to push for reforms). In addition, given that we have obligations under various international treaties (such as the Berne Treaty mentioned in the previous comment), it would seem implausible that we would withdraw from those treaties or be able to overhaul the system without having to withdraw from those treaties. (I haven't taken copyright class nor read any of the treaties so one question I have at the moment is how much flexibility do we have in reforming the copyright system given the obligations under the treaty; also, although Netanel acknowledges in his preface that his analysis is limited to the American system, I wonder how much of his analysis under freedom of speech can be carried over to other countries because very few countries have a fundamental right to freedom of speech).