Dear Congress: Please Consider These Points for Your Massive Copyright Overhaul…

…from the desk of Paul Resnikoff, publisher, Digital Music News.

Dear House Judiciary Committee Chairman Bob Goodlatte, Members of the Subcommittee on Intellectual Property, Competition, and the Internet; and Other Concerned Members of Congress,

I write to you as someone in the trenches of a media industry in disruption, and a firsthand witness of the problems created by our outdated, pre-Millennial body of copyright law.  As you know, last March, Register of Copyright Maria Pallante called for a serious overhaul in copyright law, while speaking of the opportunity to create the ‘next great copyright act‘.  I applaud the decisions by members of Congress to move forward and closely consider such an overhaul, and I hope you’ll consider these important issues as you shape your thinking on the matter.

(1) The Digital Millennium Copyright Act (DMCA) makes limited sense in 2013, and it has largely become a loophole with destructive consequences for artists and copyright owners.

The DMCA, as you are aware, was crafted in a very formative period of the internet, one that didn’t feature P2P networks, BitTorrent sharing, on-demand streaming, complete content portability and smartphone mobility, widespread broadband or anything close to the computing power and connectivity enjoyed by millions today.

Technological innovation, already at hyper-speed, has progressed more than fifteen years since the statute first appeared, rendering large portions of the DMCA antiquated, moot, or loopholed.  This is especially true for aspects related to infringement liability for online sites and networks.

Instead of protecting online services from liability from unknown users and uploaders, the DMCA has now devolved into a weapon for legally devaluing music.

Massive companies like Google can safely insulate themselves from liability by complying with DMCA-mandated takedown notices; they have billions at their disposal to handle these requests.  But even the largest media companies cannot effectively police Google (and certainly not the broader internet) for every violation, even if they too have billions at their disposal.

In today’s internet, that means that copyrighted and unauthorized content reappears almost instantly after being removed.  The DMCA, and its compliance thereof, has now become a cynical loophole instead of an effective policy.

It has also created opportunities at the great expense of copyright owners.  Companies like Grooveshark, for example, are actively building business models around DMCA loopholes (and enraging copyright owners in the process).  On many levels, it is unfair to blame the companies themselves for using the law to their advantage – laws are laws – but the end result feels extremely unfair to copyright owners (who themselves, also must follow the laws as written).

There must be a better, more reasonable middle ground that responds to the current internet and technological realities.

Google is currently getting flooded with unprecedented levels of DMCA takedown notices, with great resources being wasted on both sides.  This is a distraction to both technological progress and creativity, because the more time spent waging DMCA wars, the less time spent focusing on building, creating, and supporting innovators across technology and art.

(2) The DMCA itself is a confusing law.

Even the law itself, as written, is extremely confusing.  This became painfully clear in a recent decision by the Supreme Court for the State of New York (Appellate Division), who ruled in April that pre-1972 recordings were not covered by DMCA protections.  That opens the possibility, at a state level or otherwise, of internet companies facing extreme liability on older recordings.  The opining judges were reading the law as written; they called for Congress to clarify the statute.

In the absence of such an overhaul, companies will continue to litigate, investment across both art and technology will be cooled, and companies will continue to burn inordinate resources on both legal and compliance concerns.

(3) Someone is always making money off of ‘free’ file-sharing. So let’s determine who that should be.

Over the past decade, the content industry has been forced to adapt to an environment predicated on ubiquity, not scarcity.  A large percentage of content created these days can be duplicated an infinite number of times and shared with an unlimited amount of people.

That shift comes with extreme benefits, and extreme risks.  The distance between the artist and fan is now effectively zero, and on many levels, music and content distribution has been liberated.  And companies need to adapt: it is difficult to expect a company, like a record label, to still survive by selling $16.98 CDs in the current environment, nor should we expect Congress to insulate such antiquated models.

But the notion that other actors, including sites that illegally aggregate audiences around unauthorized content, should profit as a result seems ludicrous.

At first blush, these seem like matters that can be resolved by law enforcement and our courts, except that the DMCA has helped to fertilize these problems.  Google, for example, routinely serves networked ads on these sites, and many times, offers search results (often auto-search recommended) to illegal storehouses of content.

Google often makes money off the resulting traffic, along with the illegal site itself.  Yet the content owner is forced to issue takedowns to deal with the problem, if the content owner has the resources to deal with it.  Which means that even the content owners that genuinely want to adapt are instead getting dragged into policing roles.

Let the companies that can’t adapt die; while creating an environment that rewards innovation and risk-taking.  But the marketplace we’ve created isn’t fair at all; it’s not a friendly environment for real, adaptive innovation.

(4) Pandora doesn’t need your help.

As mentioned earlier, technology has progressed considerably over the past decade.  This has also transformed business-to-business (B2B) relationships, and transactions thereof.  A company like Pandora can now negotiate its own licenses, and even choose among several companies specialized in managing the details of these royalty arrangements and payouts.

In this direct licensing system, content owners – like recording companies – can name and negotiate their own prices.  Pandora can accept or reject those prices, just like any other free market exchange.  Pandora has a limited catalog and a manual entry and evaluation process, which mitigates the challenges of implementing a direct licensing schema.

This is also happening on other levels: labels like Big Machine Records (whose stars include Taylor Swift and Tim McGraw, among others) are negotiating direct licenses with radio conglomerates like Clear Channel Entertainment and Entercom Communications.  They don’t need Congress to tell them the rates.

In this environment, companies shouldn’t need Congress to referee their negotiations for raw materials (ie, content), especially if the mechanisms exist for a free market exchange.

Of course, internet radio is a young and struggling industry, but not every young industry deserves to grow old.  Every business needs to construct a viable business model, and thrive or fail on those models and the execution thereof.  This is how fledging sectors truly grow into new industries.

(5) Longer copyright protections are not protecting artists or motivating creativity.  They are only benefiting large content owners and heirs.

As a society, we should make the decision that artists should be compensated for their works, and laws should protect that right.  But our current protection levels are abnormally long, often resulting in royalty payments to second, third, or even fourth-generation offspring and bickering within artist estates.  Or, more likely, payments are collected by the media corporation that owns the copyrights themselves, with the artist or heirs not receiving a proper share.

In many cases, these authors or heirs wouldn’t bother to renew their copyrights, anyway.

These long-term protections seem to have little motivating impact on creativity itself.  Just stroll the streets of Austin, Texas during SXSW, or walk into any club on any night in Williamsburg, Brooklyn, or San Francisco, or Athens, Georgia.  Or, stroll the streets of the internet, where literally millions of bands are waiting to play.

A vast majority of these groups are getting nothing for their creativity, and are certainly not motivated by long, stringent copyright protections.  Which means our culture (musical or otherwise) wouldn’t be damaged by shorter copyright terms; in fact, more limited terms could serve to promote greater reinterpretations, remixing, and content discovery.

Maria Pallante has also called for shorter copyright terms, specifically something along the lines of life plus fifty years if the rights owner fails to reinstate the copyright.  That still sounds long, but represents a step towards more sane copyright thinking.

Your steps towards overhauling copyright are to be applauded.  Thanks again for considering these important points as we move towards building a copyright law that fits these times, and the decades ahead.

Let’s truly create the ‘Next Great Copyright Act’.

Paul Resnikoff, publisher.

Digital Music News

49 Responses

  1. Svantana
    Svantana

    Life + 50 years??? Why not 20-year copyright terms? It works for patents. In fact, I fail to see that any creator would decide not to work on a project because they couldn’t monetize beyond 5 years or so.

    We should remember that copyright is an exclusive right given by society, limiting the freedom of others – not some human right as some people seem to view it.

    Reply
    • Visitor
      Visitor

      “Life + 50 years??? Why not 20-year copyright terms?”
      Because nobody would take it seriously.
      I personally think Life would be great — a lot of stuff would be so much more fun — but that’s not realistic, either.
      Life + 50 is the best we can hope for this time around, so that’s what you should lobby for. If you want any influence, of course.

      Reply
      • Drug Company
        Drug Company

        Can we at least change patent law to be Life+50 (and 95 years for non-living entity) too then? IP law harmony is a good thing.

        Reply
        • Faza (TCM)
          Faza (TCM)

          No, because patents are different that copyrights.
          A patent gives you a monopoly over a non-exclusive process – one predicated by the laws of nature, not your individual creativity.
          The first person to register a patent is rewarded for their discovery of an application for such a process and their willingness to build a (hopefully) socially beneficial product on top of this discovery, but we’d be foolish to think that they are the only ones who could make such a discovery or such a product. The patent, however, makes it impossible for anyone else to legally exploit this discovery commercially, even though they may have developed it completely independently.
          Copyright, on the other hand, protects individual works – not classes of work. If it protects one love song, for example, it doesn’t stop anyone else from writing their own love songs (that will also be eligible for copyright protection). “Battle Royale” being protected by copyright did not stop the publishing and subsequent success of “The Hunger Games”.
          Copyright only comes into play when you want to exploit an existing work – something you’re never actually forced to do. It does not stop you from creating and exploiting other works (unless they blatantly appropriate portion of an existing expression). In practice, copyright protections could last forever and have no negative impact on the creation of non-derivative works. Unlike patents.

          Reply
          • Visitor
            Visitor

            Nonsense. Patents protect inventions not ideas. There many examples of drugs that treat the same condition but are different formulas thus different patents. Patent law actually encourges research because it’s needed to get around violating someone’s patent in the first place.

    • Casey
      Casey

      Companies and heirs that want to profit off of dead people woudn’t take it seriously. Everyone else would take it seriously because 20 years is ample time.

      The duration of copyright might not effect music all that much in reality, but it does effect other industries. Books, movies, TV shows, video games. A lot of creativity waiting to be reborn.

      Reply
      • Visitor
        Visitor

        “Companies and heirs that want to profit off of dead people woudn’t take it seriously.”
        It’s not that simple. The consequences of changing any detail are huge.
        But I have to admit that your 20 years proposal got my head spinning.
        The possibilities…

        Reply
        • Visitor
          Visitor

          “But I have to admit that your 20 years proposal got my head spinning.
          The possibilities…”
          On the other hand…
          I know for a fact that my music would be considerably less original if I were free to recycle any pre-1983 material.
          The good thing about a strict copyright law is that it makes you walk the extra mile.
          And that is really valuable. Perhaps not for the artist, but for art and society.

          Reply
          • Visitor
            Visitor

            But you can say that for patents too, for fuck sakes the time these things last are entirely arbitrary.

    • David
      David

      The comparison with patents is superficial. The protection provided by patents is shorter but stronger than that of copyright. Patents give the patent-holder the exclusive right to produce (or licence) the patented innovation, even if other people are certain to find the same innovation independently during the term of the patent. In contrast, copyright law provides protection only against copying as such. If someone can show that they have independently ‘discovered’ the same creation (e.g. a melody) they have a defence against copyright claims. In reality the subject matter of patents and copyright are radically different, and it is unfortunate that the framers of the United States Federal Constitution lumped them together in a single clause – probably just to save space!

      As for ‘human rights’, the idea that copyright is a natural human right is a very old and respectable one. I could not put it better than the Massachussetts statute on copyright of 1783, which states that ‘the security of the fruits of their study and industry to themselves’ is ‘one of the natural rights of all men, there being no property more peculiarly man’s own than that which is produced by the labour of his mind’. See also Article 27(2) of the Universal Declaration of Human Rights.

      Reply
      • Visitor
        Visitor

        But copyright is both limited in duration and scope of the kind of things that require permission from the copyright owner. It’s not a infinite, absolute right so it can be played around with to be balanced differently (less duration, smaller scope).

        Reply
      • Casey
        Casey

        Actually many would argue Copyright is stronger than patents. Copyright lasts longer. It is much easier/cheaper to obtain. It is universally accepted, where as patents are exclusive to that country. Patents are not all powerful either unless you have endless cash reserves to protect them. Reverse-engineering can be used to bypass them. Foreign countries like China don’t give a crap about patents and will ship their products overseas without thinking twice. There is no easy way to protect against that in the US and no way to protect against it from happening in foriegn countries unless you own the patents in every country. One of the best examples truly is the shake flashlight. They absolutely flooded the market about 10 years ago. The company that invented them sued for patent infringment but was unable to stop the flood of infringing products.
        Software companies (with the exception of trolls) use copyright as their first line of defense, not patents.

        Reply
    • Visitor
      Visitor

      Even if they don’t end up changing the duration, I fair use should consider how old a work is, that is, a use is more likely to be fair use not only based on how it is used, but how old that work is.
      Example of how this could work:
      Standard fair use apply from day one, and the fair use argument becomes easier to argue for the standard fair use cases the older a work is. In addition,
      – After 5 years, non-commerical remixes (deriv works) are fair use.
      – After 10 years, public performance on small scales (order of 50 people or so) are fair use.
      – After 20 years, commerical remixes are fair use (deriv works for profit).
      – Also after 20 years, libraries and archives get a blanket copyright exception to copy works for preservation purposes.
      – After 30 years, filesharing with friends and family is fair use.
      – After 40 years, non-commericial filesharing over the Internet is fair use.
      – After 50 years, the public performance right is entirely fair use for all purposes commerical and non-commerical.
      That way you can envision copyright as more of a gradient then black and white.

      Reply
      • Visitor
        Visitor

        When I say remix I mean taking an existing work and producing another work that advances the art. Small changes in the original work wouldn’t qualify as a remix.

        Reply
    • Visitor
      Visitor

      All rights are “given by society”.
      All rights “limit the freedom of others”.
      There are no exceptions to either of these axioms.

      Reply
    • Visitor
      Visitor

      It is a human right, even recognized by the United Nations, to be able to get livelihood from your work. Many, probably most, artists and creators live more than twenty years after the creation of a work. And they are mostly likely to need the income in their later years.

      Reply
      • Visitor
        Visitor

        Everyone needs income in their later years. That doesn’t mean employees at an assembly plant should get paid for their service 50 years after they worked there. Artists need to get the “We created something godly and should be paid for the rest of our lives” mentality out of their heads if they ever wish to get support from the general public.

        Reply
  2. Visitor
    Visitor

    Thank you for spending so much time on this.
    It’s good writing, it’s balanced and it’s going to make a difference.
    I hope you’ll send it to other news sites.

    Reply
  3. Satan
    Satan

    Nice effort Paul but this is what the politicians hear:
    “Blah blah blah blah………
    Someone is always making money off of ‘free’ file-sharing. So let’s determine who that should be.
    blah blah blah blah blah blah blah blah……….
    Google often makes money…
    blah blah blah blah…”
    Sorry

    Reply
    • Visitor
      Visitor

      “blah blah blah blah blah blah blah blah……….Google often makes money…”
      Blah blah blah… and so does Hollywood. 🙂
      Let me repeat:
      The purpose of copyright law is to serve humanity and the arts — not Google, Hollywood, pirates or artists.
      Legislators across the world and throughout history have understood and respected that for centuries — not because of conservatism and tradition, but because art is fragile and needs protection.

      Reply
      • Satan
        Satan

        “The purpose of copyright law is to serve humanity and the arts”
        Quite the contrary. In the U.S., copyright law was originally thought of as a personal property right for the benefit of authors. The idea that the rest of humanity also benefits from copyright was incidental. http://www.copyhype.com/2012/05/myths-from-the-birth-of-us-copyright/
        If you gathered all of the “Legislators across the world” together, less than 1% would truly understand copyright law.
        That is why they leave it up to the lobbyists to draft the language for them.

        Reply
          • Casey
            Casey

            And the copyright we have now wouldn’t have survived.

            How does the long term duration of copyright positively affect society? Would artists stop producing music if their copyright only lasted 20 years? I think not. But fair use would flourish. I don’t see how that could harm society in any way.

          • Visitor
            Visitor

            “How does the long term duration of copyright positively affect society?”
            Again, I would prefer a shorter period. Most artists would.
            Life would be very nice. Or maybe even, say, 50 years. And I do understand those who dream of 20.
            But that’s not realistic as of now.
            Life + 50 is…

          • Satan
            Satan

            “But that’s not realistic as of now.”
            Exactly my point.
            Politicians are interested in one thing only and that is getting re-elected. If beneffiting society would get them re-elected then they would be all for it.
            Right now Google and their big tech friends have the money and the influence and guarantee re-election, so any copyright law that adversely effects their bottom line will not pass.
            Google will simply say “Don’t touch the DMCA safe harbor provision but go ahead create a law putting the burden of regulating advertising on sites that promote copyright infringement on us (just write it so that there are many loopholes and extremely high legal standards to prove liability). Thanks!”
            Done

          • GittesPrivateEye
            GittesPrivateEye

            Casey, how does the even longer term length of every other form of property or asset positively effect society? Would people stop making businesses if they could only keep them for 20 years? Would they stop buying land or other investments if they could only hold on to them for a period of twenty years before the government swooped in to collectivize?
            I think not.

          • Casey
            Casey

            Yes, they would stop. Land is so damn expensive right now you would be lucky to pay it off in 20 years. But land and copyrighted music have absolutely nothing in common. You are grasping at straws.

          • Visitor
            Visitor

            Casey, you have the same amount of evidence for your assertion that 20 years would be sufficient for artists as you do for your assertion that 20 years would be insufficient for everyone else:
            Zero. Zip. Nada.

          • Anonymous
            Anonymous

            Well, there was an interesting paper by Rufus Pollock, which can be found here: http://rufuspollock.org/papers/optimal_copyright_term.pdf
            In it, he does a lot of math, which I admit is over my head, and comes up with 15 years. Whether you agree or disagree with his conclusions, this is what we need: serious economic analysis to determine what the minimum amount of copyright needed to incentivize authors to create and publish the maximum amount of works. If you’ve got some other studies of this sort, I’d appreciate it if you could link to them.

      • Visitor
        Visitor

        “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;…”

        Reply
        • Visitor
          Visitor

          “To promote the Progress of Science and useful Arts”
          Yes, that is the purpose.
          “by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”
          Yes, that is the method.
          So?

          Reply
  4. Yves Villeneuve
    Yves Villeneuve

    Liked most of priorities in this article.
    Don’t know why people need to have shorter copyright durations. I think the duration should be unlimited. If Science can prove a specific song is a cure for Cancer or Depression for instance when there aren’t any other effective song options then the government would be allowed to regulate that song monopoly.
    Moreover, a melody shouldn’t be identical to a musical inspiration unless you are willing to share the royalties with the original innovator. A melody can be almost identical to another melody if it was unintentional and can be proven as such.

    Reply
    • Visitor
      Visitor

      “Don’t know why people need to have shorter copyright durations”
      I am a firm believer in copyright.
      But here’s my favorite reason why it would be a good idea (one fine day, in a distant future) to not only shorten the period from Life + 70 to Life, but also to loosen up a bit in general:
      You have to ask Chuck Berry’s grand grand children for permission until at least 2083 if you wish to use material from Beach Boys’ Surfing USA.
      That doesn’t make sense to me on any level.

      Reply
    • Yves Villeneuve
      Yves Villeneuve

      I think Life plus whatever years is arbitrary. Laws that are entirely based on unquestionable logic is most often the best option. However, pragmatic laws are needed under extreme and unusual circumstances.
      Life would encourage the death of artists by non-heirs (such as organized crime syndicates) who will try to profit from it without copyright infringement consequences. I would rather take my chances that my heirs (if they actually know they are in my Will) won’t terminate me if infinite duration is the norm.
      Surfing USA is not needed under any situation when anyone can write and record a song about ‘surfing in America’, possibly a better song. If Surfing USA is taken off the market, this is one less competitor to the new ‘surfing in America’ song which is entirely a new innovation beyond the lyrical topic which the latter cannot be copyrighted.

      Reply
      • Visitor
        Visitor

        “Life would encourage the death of artists by non-heirs (such as organized crime syndicates) who will try to profit from it without copyright infringement consequences.”
        Well, I dislike copyright infringers as much as the next guy, but this is bizarre…
        “Surfing USA is not needed under any situation when anyone can write and record a song about ‘surfing in America’, possibly a better song.”
        I’m all for making up new stuff instead of recycling old ideas, but I humbly suggest that you — and anyone, for that matter — compare Surfin’ USA and Sweet Little Sixteen again and ask yourself if Mr. Berry’s grand grand children really deserve to own the rights until at least 2083…

        Reply
        • GittesPrivateEye
          GittesPrivateEye

          Life or 100 years (whichever is longer) would be my term length of choice.
          Anything less makes content creators second class citizens, anything more is unnecessary.
          With that said, term length of copyright is currently irrelevant since the actual term length of a work these days is about 30 minutes. Until enforcement measures grow teeth and piracy stops comprising a huge percentage of daily Internet bandwidth the world over, discussions on term length will continue to be pointless.

          Reply
          • Visitor
            Visitor

            “the actual term length of a work these days is about 30 minutes. Until enforcement measures grow teeth and piracy stops comprising a huge percentage of daily Internet bandwidth the world over, discussions on term length will continue to be pointless”
            Couldn’t agree more.

  5. me
    me

    Why don’t you just call this site “Ihategroovehsark.com” considering how much you despise them? lol
    No I don’t work for Grooveshark. I just think it’s amusing how much this site bashes them, yet Grooveshark continues along its merry way.
    Now I must go back to my Grooveshark tunes… 😉

    Reply
  6. Guest
    Guest

    The problem with radio conglomerates making direct deals with record labels for performance royalties is the artists don’t get paid when it goes through the labels.
    If there was a statutory performance right for ALL types of radio, it would go through SoundExchange, and artist will get paid directly. I know you have problems with SX, but they do pay artists directly, and have paid out over $1B since their inception to labels and artists (on a 50/50 basis).

    Reply
  7. Michael McCarty
    Michael McCarty

    Paul

    One of the most reasoned, logical articles I have yet seen (except for shortening copyright term).

    I hope all those in Washington read it.

    Reply
  8. Yves Villeneuve
    Yves Villeneuve

    The reality is a work of art is property like any other property, such as land and business ownership.
    Should the government or the public confiscate all your property including stamp collection and income producing assets following your death?

    Reply
  9. wallow-T
    wallow-T

    Congress, don’t forget to regulate or ban CD-R burners in the next revision of copyright law.

    🙂

    Reply
  10. Music Observer
    Music Observer

    I fail to see how the open letter to Congress is journalism as opposed to advocacy.
    I’m not saying that people don’t have the right to post an opinion — as in the editorial pages of a newspaper — but DMN seems to have or come close to jumping the shark in its journalistic credentials. It no longer appears to want to report the news but instead tries to become the news.
    Please go back to covering the industry as a journalist and let other participants advocate positions pro and con.

    Reply

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