Is it time to completely reform U.S. copyright law?

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Is it time to completely reform U.S. copyright law?

Mon Apr 05, 2010 @ 10:15AM PST

Today we've got another attorney guest post. Ben Sheffner is a copyright lawyer who has represented movie studios, TV networks and record labels. He's currently an attorney in the NBC Universal Television Group, writes one of our favorite law blogs (Copyrights & Campaigns), and is a columnist for Billboard, where this piece first appeared ...

By Ben Sheffner

It’s hard to find anyone who loves the current U.S. copyright law.

The law frustrates record labels and movie studios, which complain it’s inadequate to combat rampant infringement on the Internet. It infuriates music entrepreneurs, who fear the imposition of bankrupting awards of statutory damages if they guess wrong about whether their device or service requires licenses from the labels and publishers — licenses that they probably couldn’t afford in the first place. It baffles the general public, which doesn’t know whether it’s legal to copy a CD or a DVD onto an iPod. (The labels say it’s generally OK, and the studios say “no.”) And it earns the ire of copyright skeptics in academia and self-proclaimed “public-interest groups,” which argue that copyright law is abused by big corporations to stifle technological innovation and quash artistic freedom.

So what to do about it? Is it time for wholesale reform of the system?

The last complete overhaul of the Copyright Act came in 1976, the culmination of a long series of consultations and deliberations that started in the ‘50s. And the 1976 act replaced the 1909 act, which lasted 67 years, through the advent of recordable music and the rise of radio and TV broadcasts, both developments arguably as transformative as the Internet.

Since 1976, the world of entertainment has seen further technological leaps, from easy home recording of music and TV shows to the advent of the World Wide Web, the first technology that allowed average people to disseminate copyrighted works around the globe, at a minimal cost.

Congressional efforts at “reform” since 1976 have tinkered around the edges, with ad hoc approaches to new technologies. Some of these new efforts have been important. The 1992 Audio Home Recording Act, which set out to establish rules for the use of digital audio tapes, wound up enshrining the legality of noncommercial home copying by consumers. And the 1998 Digital Millennium Copyright Act, which addressed the issues raised by the then-nascent consumer Web, still serves as the basis for governing how copyright owners and technology companies respond to digital copyright violations.

Other partial reform efforts, like a proposed statue to address the problem of “orphan works” — those works whose owners can’t be located — have fizzled in the face of disagreements among different constituencies of copyright owners and users.

So is it time to convene a grand copyright conference to again rewrite the statute? While a few academics have suggested such a path, their efforts remain largely, well, academic.

Respected copyright professor Jessica Litman of the University of Michigan Law School released a widely discussed paper titled “Real Copyright Reform,” in which she calls the current statute “a swollen, barnacle-encrusted collection of incomprehensible prose” and advocates a simpler system that would shift power away from intermediaries and toward artists and users. But Litman is also profoundly pessimistic that her ideas will find their way into U.S. law, noting, “I see no plausible route by which we could get there from here.”

Similarly resigned is William Patry, now chief copyright counsel at Google, who calls the current law "grotesque" in his 2009 book “Moral Panics and the Copyright Wars.” Patry, who previously worked at the U.S. Copyright Office and as a staffer on the House Judiciary Committee subcommittee with responsibility for copyright, blames the dim prospects for reform on general partisan sclerosis on Capitol Hill and the influence of lobbyists.

But I think the reason reform prospects are gloomy goes much deeper than complaints about process. Rather, the main barrier to reform is substantive: The major players in the debate — big copyright owners, artists, distributors, technology companies, libraries and groups purporting to represent “the public,” among others — simply have profound, deeply felt and entirely legitimate disagreements over what king of “reform” the system needs.

Different players live on different planets: Some look around today and see a world with too much infringement. Others see too much enforcement. And that isn’t a gap easily bridged through compromise.

So copyright owners and other interested parties will continue to do what they’re been doing: muddle through. There may be small legislative fixes, and federal judges will continue to play a major role in shaping the law. But don’t expect to be reading the obituary for the 1976 act anytime soon.

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