Proposals to fix Copyright

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.

3 Responses to Proposals to fix Copyright

  1. J DeVoy says:

    Re: point 1

    17 U.S.C. § 512(f) already does this. The proposal seems to partially incorporate some of the penalties available under § 1203, but for $200 as a minimum statutory damage, I don’t know if it would do much. I think allowing for a multiplier of attorneys’ fees under 512(f), and guaranteeing their award (as opposed to seeking them under 505) would further the trail made by Lenz v. Universal.

    512(f) has the potential to be one of the most powerful tools against the use of copyright law against free speech. Yet I can only think of two cases where it’s been used – Lenz and Megaupload (regarding takedowns of the Mega song on Youtube). Its not applicable in every case, but it should be powerful enough to be used and known like any other anti-SLAPP statute, as opposed to some esoteric provision known only by copyright nerds.

    • 512(f) isn’t tough enough, clearly… a multiplier would be sweet.

      • J DeVoy says:

        Might be available anyway, it’s just not in the statute. The math is something like this:

        1) Take 512(f) case on split-contingency basis (half up front, half after judgment)
        2) Allege costs and/or fees as damage – something the Lenz court approved
        3) Get lodestar multiplier
        4) PROFIT!!!!!

        Now I just need to sit around and wait for the once-every-few-years 512(f) comet to fall on my head.

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