Public Knowledge proposes some ideas for how to fix copyright. (source)
Curb abuses of DMCA takedown notices. The best part of this is is that they propose broadening the penalties for bogus takedowns. I think this is a pretty good idea, as I have seen my share of DMCA takedown requests that targeted clearly fair use or were used to simply take down material that the requester did not like (for example, alleged defamation). I think it goes a little too far in seeking to penalize parties who use automated scripts to send takedown requests. While I appreciate that such a scattergun approach creates collateral damage, I also can see how copyright owners are fighting such a game of whack-a-mole, that I wouldn’t support this idea without some give-back to the content producers. The rest of the proposal seems pretty spot on.
Another proposal is to shorten copyright terms. I’m fully in favor of that. The continuous extension of copyright terms, to a now absurd length of “life of the author plus 70 years” is a threat to a robust public domain. These guys suggest trimming it to “life plus 50.” I actually think this is not radical enough. I think that copyright should be limited to an initial term of 25 years with a renewal period (sort of like the old act handled things) with the author or his heirs only being able to assign the initial period.
The best part is the proposal to strengthen fair use. Right now, if you are accused of copyright infringement and you have a viable fair use defense, it usually is still worth it to settle. Fair use is the compromise we make between free speech and protecting the rights of authors. PK suggests that statutory damages (and attorneys fees awards) in fair use cases should be reduced (or eliminated), even if the infringer loses on that defense. However, the alleged infringer must have had a good faith belief that he was engaged in fair use. Actual damages would still be available. I love this idea. This removes the chill that currently hangs over building upon prior works. Again, though, I think they should go further. I believe that if a copyright defendant wins on a fair use defense, that defendant has done us all a public service. Therefore, I believe that if someone wins on fair use, there should be a strict requirement that the losing plaintiff pays the defendant’s attorneys’ fees as well as some kind of statutory damages penalty. I’m all for enforcement of copyright, and I’m certainly not a copyright minimalist. However, I believe that fair use needs a much thicker spine.
Read the rest here.