Op-Eds


Copyright Law Needs a Digital-Age Upgrade

By Pamela Samuelson, San Francisco Chronicle

Did you ever imagine you could be held liable for copyright infringement for storing your music collection on your hard drive, downloading photos from the Internet or forwarding news articles to your friends?

If you did not get the copyright owner's permission for these actions, you could be violating the law. It sounds absurd, but copyright owners have the right to control reproductions of their works and claim statutory damages even when a use does not harm the market for their works.

The statutory damage rule of U.S. copyright law originally was designed to provide some compensation to copyright owners when harm from infringement was difficult to prove. U.S. law authorizes judges and juries to award such damages in any amount between $750 and $30,000 per infringed work - and up to $150,000 per work if the infringement is deemed willful - without proof of any actual harm. The statute says the award should be "just" but provides no guidance about what this means. In one extreme case, a jury ordered an individual file sharer to pay nearly $2 million in damages for illegally downloading 24 songs. Is that really "just"?

The statutory damage rule might have made sense in the 1960s, when the copyright law was drafted. Back then, copyright mattered only to professional authors, publishers and the like and mainly was designed to deter commercial-scale infringements. The copyright landscape has, however, changed radically since then.

Copyright law today touches the lives of ordinary people in ways that were unimaginable in the 1960s because advances in computing and communications technologies have transformed how we use and access content, most of which is copyrighted automatically by law. Millions of ordinary people also are becoming authors of user-generated content, such as videos, digital photographs and blogs, which they share on Web 2.0 platforms. This makes them copyright stakeholders, although the law was not drafted with them in mind, and it does not meet their needs.

Moreover, virtually every firm today has some copyright asset it wants to protect, such as a logo, an advertising motif, software, databases or website content. They have become copyright stakeholders, too.

Technological advances have destabilized many traditional copyright industry sectors because the economics of creating, publishing and disseminating information-rich works have dramatically changed. Many copyright industry groups have been slower to see the promise than the risk of the new digital environment.

Perhaps the most troublesome phenomenon of the current era is peer-to-peer file-sharing of commercially valuable music and movies. Although the recording industry has sued more than 30,000 individual file sharers and has succeeded in convincing courts that file sharing is illegal, the practice has not subsided. Several copyright experts have endorsed a licensing solution to this problem, but Congress has yet to seriously consider it.

Unfortunately, some entertainment industry executives are pressing for adoption of a "three strikes" policy, under which people would be kicked off the Internet if they are caught infringing three times. That would be a bad idea.

With so many new participants and technologies in the copyright system, it is time for copyright law to receive an upgrade. It must become more flexible to accommodate new uses and technologies. It must also become simpler, so that everyone who creates and consumes copyrighted works can understand and use the law effectively without having to call a lawyer every time they want to download a file from the Internet.

Damage awards

— Jammie Thomas-Rasset was ordered to pay $80,000 per song she downloaded (for a total award of $1.92 million), even though judges have ordered file sharers to pay the statutory minimum of $750 per infringed song in other cases. The Minnesota mom is in settlement negotiations with the recording industry after several years of litigation.

— Legg Mason, a Maryland financial services firm, was ordered to pay $19.7 million in 2003 for photocopying parts of newsletters to which it subscribed so that its research teams could share information.

— A judge in New York state in 2000 threatened to award $118 million in statutory damages because MP3.com had ripped music from CDs to build its "beam-it" service for users to listen to music they had already purchased. Faced with this threat, MP3.com settled the case for $53 million, even though it had not even started offering the service to consumers.

Revamping copyright law

"The Copyright Principles Project: Directions for Reform," of which Pam Samuelson is a co-author, explores 25 ideas for copyright reform. They include:

Modernize copyright office: Instead of one registry for all copyrighted works, certify registries run by third parties for photos, films, computer programs and more. The model is akin to the domain name registration system.

Refine scope of exclusive rights: Weigh commercial value when determining whether someone's exclusive right has been infringed. This shields non-harmful activity from the threat of highly punitive copyright claims and commercial harm.

Limit damage awards: Guidelines for awarding statutory damages need to be consistent and reasonable.
Reform judicial infringement tests: Courts apply different tests to assess copyright violations, leading to mixed interpretations of complex copyright law. Develop consistent tests to ensure greater coherence in rulings.

Limit orphan works liability: Enable libraries and others to preserve a part of our cultural heritage by allowing greater use of orphan works - copyrighted materials whose owners can't be found.

Create "safe harbors": Protect online service providers from excessive damage claims if they undertake reasonable, voluntary, measures to discourage peer-to-peer file-sharing. Providers that comply would be shielded from liability for user infringements.

Pamela Samuelson is a distinguished professor of law and director of the Berkeley Center for Law & Technology at UC Berkeley School of Law. She convened a group of legal experts over the past three years to draft reforms to U.S. copyright law. The project's proposals, in a report titled "The Copyright Principles Project: Directions for Reform," will be released this week and can be seen at links.sfgate.com/ZKIK.
9/26/2010