What Would You Say to the Copyright Office?
Next Thursday, I'm giving a lunchtime talk to the Copyright Office (part of a program called The Copyright Office Comes To New York). Send me your suggestions. This is my chance to say something sensible.
I thought I'd talk about the feeling of being in Canada in June 2003, during an otherwise uneventful ICANN meeting, when Lawrence v. Texas came down. The Canadians were feeling awfully smug and superior. They didn't have to tussle with any ridiculous anti-sodomy laws. They had even worked peacefully through the issue of same-sex marriage. They were waaay ahead of us, and surprised at our lame approach to these issues.
I'd mention with sadness the prospect of more election-year debate over same-sex marriage. (Fighting over who gets to marry whom seems completely pointless to me, and I'm embarrassed that those who govern us are even worried about it.)
Then I'd talk about the recent Canadian copyright decision to which Michael Geist has pointed us. Once again, our friendly neighbors to the north seem to be waaay ahead of us. According to Michael, the Court concluded that the Canadian analogue to the fair use affirmative defense “should be granted a large and liberal interpretation.” Indeed, Michael points out that the court shaped this “exception” to copyright infringement (in our parlance, this defense) as new copyright rights for users. Users' rights. Those Canadians have the idea that these rights need to be balanced against the rights of copyright holders. They also think that it's appropriate for manufacturers to presume that their machines will be used for lawful purposes — and they seem to think that copying for personal purposes is different and special. Hmmm.
Then I'd talk about some of the more outrageous elements of the broadcast flag proceeding (continued studio role as gatekeepers) and what's coming up next via the analog hole funnel (lingering on nomenclature here).
So: don't blame Canada, blame us if we can't get this right; don't press for more laws or tech mandates at the moment; keep the FCC out of copyright policy; let Congress decide the difficult questions of secondary copyright liability. Congress has been decidedly not technology neutral when it comes to the internet (section 230 comes to mind). We should want to avoid another Lawrence v. Texas moment 15 years from now – when we come to our senses after a great deal of wasted time.
Look forward to your comments.
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Following your report on the Canadian copyright decision that recognized the need to maintain the copyright balance you could go on to mention that we have to keep looking for new solutions to ensure that the social contract is upheld in the digital future. Following Jessica Litman's suggestion that we should consider regimes other than a copy based model, maybe we should move to a rights based model for intellectual property.