Looking Deeper into MPAA's Copyright Agenda

It's time to rethink copyright law, say the U.S. Register of Copyrights and the chairman of the U.S. House Judiciary Committee. Hearings, speeches, and lots of quiet maneuvering have begun to shape "the next great copyright act."  Last week, Motion Picture Association of America president, former senator Chris Dodd, laid out his vision for copyright in a speech to the L.A. Copyright Society and an op-ed in the Huffington Post. Invoking the U.S. Constitution and the Founders as allies for Hollywood's cause, he dropped some hints about the positions that MPAA might take in the upcoming months and years.  If those statements are any guide, we’re going to have some misinformation to sort through.  Here’s a reality check.

Don't Be So Sure You've Got The Founders On Your Side

Dodd claims that copyright as we know it is what "the founders of this republic intended." Hardly. The first copyright act in the U.S, passed in 1790 by some of the same people who helped write the Constitution and the Bill of Rights, was very limited. It covered only books, maps, and charts - not music, theater, pamphlets, newspapers, sculpture, or any other 18th-century creative medium.  The Founders' copyrights lasted 14 years, with an option to renew for another 14.  Today, of course, copyright covers nearly all written, visual, sculptural, architectural, and performing art, not to mention computer software and games, and it lasts for the author's life plus 70 years.  We suspect that if anyone had described today’s copyright system to, say, Thomas Jefferson, he would have been shocked.  By all means, let’s look at how the Founders thought copyright should work, as one guidepost for fixing today’s law.

Sometimes Copyright Hinders Free Speech, And Denying the Conflict Doesn't Make It Go Away

Dodd told a gathering of entertainment industry lawyers "it bears repeating that copyright encourages free expression – it does not hinder it."  He seems to believe that because copyright helps some artists and authors earn income from their expression, copyright and free expression are never in conflict. Of course that's ridiculous. Practically weekly, people use copyright law, and laws like the Digital Millennium Copyright Act, to suppress and chill free speech. They silence critics with copyright takedowns. They make blogs disappear from the Internet based on nothing more than allegations of infringement. They threaten university researchers with crippling lawsuits for delivering papers on computer security.  That’s why any discussion about copyright reform should start by recognizing the importance of balance between the rights of copyright holders and other values we hold dear, like free speech and due process of law.

Copyright Should Accommodate Innovation - Not Just The Innovation That Hollywood Approves

Dodd notes that "technology and the marketplace are evolving faster than the law" and suggests that copyright  "should be broad enough to apply to new technologies that might develop in the future."  We agree, but we suspect Dodd has a different understanding of “apply.” We’ve seen decades of scorched-earth lawsuits against new technologies, most recently targeting Internet video technologies like Cablevision's remote DVR, Aereo's mini-antenna system, and DISH's Ad Hopper. Content industry lawyers seem to think that copyright owners should have veto pow