*Author’s Note: The following presents context and discussion in response to a Washington Post blog discussing copyright access and Internet freedom, and specifically to five proposals authored by freedom advocates for consideration in the next copyright infringement debate.

If you are one of the many people who sent an email, made a phone call, posted on facebook, or otherwise acted in the fight over SOPA and PIPA, your call to action may come again in the not so distant future. Yes, SOPA and PIPA in their original forms are “dead,” but the push to address copyright infringement is paramount for the movie, music, computer software, and other industries. In his February 8th op-ed in the New York Times, Cary H. Sherman, chief executive of the Recording Industry Association of America (RIAA), expressed interest in “help[ing] come up with constructive alternatives” in the wake of the vast public outcry. Congressman Stephen LaTourette added that Congress would probably revisit the regulations next year. In the meantime, both sides of the debate will have the chance to reevaluate and negotiate position on the highly contentious pieces of legislation.

To that extent, Brad Plummer of the Washington Post wrote an excellent blog regarding five elements for Internet freedom advocates to inject into the debate over copyright infringement on the Internet. The ideas come from Public Knowledge, an organization dedicated to “preserv[ing] the openness of the Internet and the public’s access to knowledge.” While thoughtful and progressive, they all deserve context and compromise. The following considers each of the five major points.

1. Curbing abuses of copyright takedowns

The shoot-first-ask-questions-second method of taking down copyrighted materials is no doubt problematic. Under section 512(c) of the Digital Millennium Copyright Act (DMCA), service providers like YouTube are required to “expeditiously remove, or disable access to, the material that is claimed to be infringing or be the subject of infringing activity.” All that is required by the party owning the copyright is a “good faith belief that the use of the material . . . is not authorized by the copyright owner, its agent, or the law.” This low threshold standard is easy to overcome for copyright holders and the only punishment is a penalty of perjury. The damages that Public Knowledge suggest may give pause to copyright owners who play the game in a sloppy manner. Alternatively, amending the good faith belief standard to a stronger standard such as pleading sufficient facts to survive a motion to dismiss could also eliminate these frivolous claims.

2. Shortening copyright terms

One matter that lends to copyright infringement is simply the fact that copyrights last for a very long time: the lifetime of an author plus seventy years. While shortening that time is certainly a legitimate argument, there are two significant counterpoints. First, nations that are parties to the Berne Convention, an international copyright agreement, all have as their copyright length lifetime of the author plus seventy years. In addition, there is reciprocity of copyright recognition between member nations. To opt out would put U.S. policy in discord with the international community. Thus, to reduce the term of copyrights in the U.S. would put Americans at a disadvantage relative to international copyrights. If this term was reduced to fifty years, an American work would fall into the public domain and be freely traded twenty years before a foreign work would. This would allow the world to profit off of such a work before Americans could profit from a foreign work from a Berne Convention nation.

3. Clearing up “fair use” rules

Fair use is perhaps the most malleable issue in copyright law today. Public Knowledge makes four proposals to amend fair use in the United States. The third argument proposes that the government expand examples of fair use. The expansion would include “incidental, nonconsumptive , or noncommercial personal uses.” These are all areas that arguably would allow for the use of copyrighted materials under a fair use analysis already. For example, it would almost certainly be a fair use for a single consumer to rip a song from a CD that was legitimately purchased, copy it within a computer from the hard drive to its RAM, then finally copy that song to an iPod for personal use. Even the RIAA concedes that this hypothetical would not break the law. Having Congress add clarity to this issue would open fair use a little wider to individuals who could perhaps use greater security in using copyrighted materials in ways that would not “supersede” the original work (see Folsom v. Marsh).

4. Protecting against overbearing copyright claims

Two points are made here. The first is that false warning statements regarding copyright ownership should be prohibited by law. The most notable false warning statements come during sports broadcasts that pronounce that descriptions or accounts of a broadcast without consent of the copyright owner are prohibited by law. This is not the first time that overbroad claims have been targeted for overstating their copyrights. It is clear that under fair use, a New York Jets fan can recount to a friend any description or accounts of a Jets versus Patriots telecast without fear of punishment. Correcting misinformation like that is certainly a fair point to raise in the copyright discourse. The second point is that “transient” copies of copyrighted objects should be permitted under the law. This point seems a bit unnecessary in the face of Cartoon Network, LP v. CSC Holdings, Inc. In that case, the Second Circuit held that buffering between telecommunications servers did not meet the duration requirement to be considered a copy. This case law may already pave the way for “transient” copies.

5. Allowing the breaking of Digital Rights Management software for legal purposes

Digital Rights Management (DRM) prevents copying a copyrighted work after it has been purchased by a consumer. Public Knowledge makes the point that this system prevents the fair use of legally obtained copyrighted materials and should be eliminated. This simple concept is not unreasonable and not unprecedented. In 2007, Steve Jobs wrote an open letter titled “Thoughts on Music.” His central thesis was that DRM-encrypted music should be eliminated and that open music would benefit the entire music market. In 2009, Apple was able to do just that. Between January and February 24, 2009, Apple sold four billion songs, one billion shy of what they had sold in the previous five years. Public Knowledge is right to point out that this method could also provide fair use protection to other copyrighted materials like film and books and should be part of the anti-piracy conversation.

The next debate on copyright infringement will require a fair discussion of these issues and others that are likely to impact every person in America. It is right and fair to seek adequate protection for copyrighted materials. It is equally just to balance that interest with consideration for the consumers of copyrighted materials—those who made the system profitable in the first place.

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