On Copyright, Creativity, and Compensation; Reason, February 12, 2024

 DAVID POST, Reason; On Copyright, Creativity, and Compensation

"Some of you may have seen the article by David Segal in the Sunday NY Times several weeks ago [available here] about a rather sordid copyright fracas in which I have been embroiled over the past few months...

What to make of all this? I am not oblivious to the irony of being confronted with this problem after having spent 30 years or so, as a lawyer and law professor, reflecting on and writing about the many mysteries of copyright policy and copyright law in the Internet Age.

Here are a few things that strike me as interesting (and possibly important) in this episode."

Online Copyright Piracy Debate Ramps Up Over Proposed Legal Fix; Bloomberg Law, March 23, 2022

Riddhi Setty, Bloomberg Law; Online Copyright Piracy Debate Ramps Up Over Proposed Legal Fix

"Sen. Patrick Leahy (D-Vt.) and Sen. Thom Tillis (R-N.C.), the leaders of the Senate Judiciary Committee’s Intellectual Property Subcommittee, recently proposed the SMART (Strengthening Measures to Advance Rights Technologies) Copyright Act of 2022, which aims to hold service providers accountable for fighting copyright theft... 

New Tools

The SMART Act proposes to create a new Section 514 of the Online Copyright Infringement Liability Limitation Act, with a new set of technical measures, called Designated Technical Measures or DTMs, which would be automated tools for identifying and protecting copyrighted works online. 

The librarian of Congress would be responsible for designating DTMs. Failure to accommodate these technical measures would result in statutory damages for service providers, but wouldn’t threaten their safe harbor. The damages range from a minimum of $200 to $2.4 million per action of copyright holder, according to the draft law.

Tillis and Leahy said in a fact sheet that the bill would require the agency to hire a chief technology adviser and chief economist and that the office would start a public process to assess which existing technologies should be made standard for public use.

Free Speech

One of the primary concerns about the bill is how it might impact free speech if it becomes law. 

The SMART Act doesn’t provide technical details about how the filters would be set or what percentage of uploaded material would be required to be a match to an underlying copyrighted work to be flagged.

“Algorithms are designed to be over inclusive—when you’re designing them you want them to catch as much as possible and the problem is you can’t have a computer tell what is fair use and what is not,” said Rose. She anticipates that while the protective filters the Copyright Office would set up under this act would fix the problem for some, the collateral damage would be the free speech of possibly millions of internet users.

Joshua S. Lamel, executive director of a coalition of creators called Re:Create, said he didn’t think the Copyright Office could find the balance between taking down copyright infringing content and taking down content that is covered by fair use. “We as a society shouldn’t be violating privacy to that level and creating so much of a Big Brother-like situation in the name of policing for copyright infringement,” he said."

U.S. Copyright Office Consultation Triggers Massive “Upload Filter” Opposition; TorrentFreak, February 16, 2022

Ernesto Van der Sar, TorrentFreak; U.S. Copyright Office Consultation Triggers Massive “Upload Filter” Opposition

"Late 2020, Senator Thom Tillis released a discussion draft of the “Digital Copyright Act” (DCA), which aims to be a successor to the current DMCA.

The DCA hints at far-reaching changes to the way online intermediaries approach the piracy problem. Among other things, these services would have to ensure that pirated content stays offline after it’s taken down once.

This “takedown and staydown’ approach relies on technical protection tools, which include upload filters. This is a sensitive subject that previously generated quite a bit of pushback when the EU drafted its Copyright Directive.

To gauge the various options and viewpoints, the Copyright Office launched a series of consultations on the various technical tools that can help to detect and remove pirated content from online platforms.

This effort includes a public consultation where various stakeholders and members of the public were invited to share their thoughts, which they did en masse."

Is the staggeringly profitable business of scientific publishing bad for science?; Guardian, June 27, 2017

Stephen Buranyi, Guardian; Is the staggeringly profitable business of scientific publishing bad for science?

"The idea that scientific research should be freely available for anyone to use is a sharp departure, even a threat, to the current system – which relies on publishers’ ability to restrict access to the scientific literature in order to maintain its immense profitability. In recent years, the most radical opposition to the status quo has coalesced around a controversial website called Sci-Hub – a sort of Napster for science that allows anyone to download scientific papers for free. Its creator, Alexandra Elbakyan, a Kazhakstani, is in hiding, facing charges of hacking and copyright infringement in the US. Elsevier recently obtained a $15m injunction (the maximum allowable amount) against her.

Elbakyan is an unabashed utopian. “Science should belong to scientists and not the publishers,” she told me in an email. In a letter to the court, she cited Article 27 of the UN’s Universal Declaration of Human Rights, asserting the right “to share in scientific advancement and its benefits”.

Whatever the fate of Sci-Hub, it seems that frustration with the current system is growing. But history shows that betting against science publishers is a risky move. After all, back in 1988, Maxwell predicted that in the future there would only be a handful of immensely powerful publishing companies left, and that they would ply their trade in an electronic age with no printing costs, leading to almost “pure profit”. That sounds a lot like the world we live in now."