Experts Recount Last Quarter-Century of Copyright Advocacy at PIJIP Forum Honoring Prue Adler
April 22, 2019
by William New
On April 17, several generations of experts gathering at American University law school to remember, retell and relive highlights of 25 years of public interest advocacy around copyright and information access, and to look ahead – all with a focus on the unifying guidance of library advocate Prudence Adler, known to all as “Prue.”
“The Power of Coalitions: A Forum on Public Interest Intellectual Property Advocacy Honoring Prudence S. Adler” was held at American University Washington College of Law on April 17. The speaker bios and archived event webcast is available here.
American University Law Prof. Sean Flynn opened the event, referring to the long speaker list as a “congregation of the faithful” who have advanced the view that intellectual property “can, should and does ultimately promote the public interest.” Flynn is Associate Director, Program on Information Justice and Intellectual Property, American University Washington College of Law.
The half-day event, he said, would be a “retelling” of the long journey of copyright law over recent decades, with a focus on the role of Prue Adler, who is retiring as Associate Executive Director, Federal Relations and Information Policy at the Association of Research Libraries, as “the glue that has held this community together.”
Panels covered historic issues such as the defeat of database protection, the Digital Millennium Copyright Act (DMCA), lessons from the last 15 years, and the current moment in IP policy advocacy. Many details were revealed about the start of a significant movement.
Defeat of Database Protection
There were four panels, starting with some of the “elders” of copyright law, in Flynn’s words, who “made the road by walking so that we can all walk on that road.” The first panel consisted of:
- Peter Jaszi (moderator) Professor of Law Emeritus, American University Washington College of Law
- Miriam Nisbet, Former Director of Office of Government Information Services, National Archives and Record Administration
- Greg Babyak, Global Head of Regulatory Affairs, Bloomberg LP
- Ted Whitehouse, Senior Counsel, Willkie Farr & Gallagher
- Markham Erickson, Partner, Steptoe
- Edward Black, President and CEO, Computer & Communications Industry Association
Jaszi began by describing how, by the mid-1990s, a broad-based coalition organized by Adler successful resisted a major push to enact so-called “sui generis” rights in data, above and beyond the the protections that compilations already enjoyed under copyright. A foundation for the debate was a constitutionally-based 1991 Supreme Court case, Feist Publications, Inc., v. Rural Telephone Service Co., which established that facts as such cannot be protected under copyright even if gathering them involved effort and expense.
The response was a series of legislative proposals, starting in 1996, that aimed to secure new IP rights for database vendors under the Commerce Clause, Jaszi said. He noted that meanwhile the issue also was playing out in the European Union and at the World Intellectual Property Organization as well.
Nisbet opened by saying Adler was a guide for her and for all of them. In discussing the database legislation, she said libraries were “alarmed,” because bills like those “just kept coming” with a “potentially disastrous effect on the public domain,” shrinking the public domain and tying up access for scholarship and teaching, “fundamental” things that libraries “care deeply about.”
Those who think of themselves as protecting the public found themselves attacked, particularly by publishers, for their position that this was a bad idea, she said, and were called “pirates”.
And while she said does not think of them as “elders”, the members of the coalition against database protection that formed almost 25 years ago, and they “still have that sense of community.”
Babyak, rasked about motives behind the “sui generis” initiative, said people owning databases could understandably have an interest in monetizing them, but that a balance was needed. Bloomberg (his client) itself has thousands of databases, he said, and has to be able to protect them, including with intellectual property rights where they can show sufficient originality. And he remarked that when the “other side” was asked for examples of a database not being adequately protected, there was never an example given.
Nevertheless, concerned over how the internet would affect their business, database proprietors went to Capitol Hill, and drawn out debates ensued. The House Commerce Committee tended to look more broadly at what information means to the economy, he said, while the Judiciary Committee reflexively favored intellectual property. In this case, the Commerce Committee view ultimately prevailed,
Whitehouse said the Feist decision “gave them hope,” with its rejection of the “sweat of the brow” approach to data protection. The case was a “gilded edge invitation” for legislative challenges to limits on database protection. He noted at the time even stock exchanges saw it “catastrophic” for their business model, and the National Association of Realtors worried about non-members getting to multiple listings. Jaszi added in that the sports industry also saw the value of tying up sports data – if they could.
Whitehouse said in a post-Feist district court case involving yellow pages directories, the plaintiffs went so far as to call to their competitions as “pirates,” which led one lawyer to open saying, “I represent the pirates,” and then proceeding to argue why they were not.
Erickson began by noting that at the time of Feist decision, the legal and regulatory framework around these issues “was not yet what it would become.”
He raised the point that it took some time for internet companies began to realize the passage of sui generis copyright legislation as “potentially damaging” to their interests. AOL, Yahoo, Amazon and eBay were the only ones in a position to be involved at that time, but were not unified in their view. For one, eBay had sued a competitor (Bidder’s Edge) for scraping its data data and having “thrown the kitchen sink” at them, had ultimately prevailed.
But most in the new industry came around to the position that if information was not universally accessible, the internet would stop functioning, he said. Among the new entrants, Amazon opposed database protection, focusing on the value downstream data streams, and once Yahoo entered the discussion it proved a strong supporter of openness; after 1998, Google began to reach out to the opponents of new protection. Ultimately, Erickson said, “we felt vindicated that not having database protection has been good for consumers.”
Black was asked why the debate ended, and said the tech industry was not yet powerful and was “fearful” of Washington, and had many other interests, so the issue was on the radar of a small number of companies. But the tech industry’s involvement was still critical, he said.
Also, after not getting the protection for seven or eight years, it became hard to make the argument that it was vital. As well, the tech industry was seen by many as in the interest of the public by making information accessible, and some “extreme claims” by the copyright industry “scared people” concerned that everything would have to be paid for, with the concept of a “toll booth” every step of the way, he said.
In the discussion that followed, Nisbet emphasized the importance of the broad-based coalition that Adler helped organize to the success of the resistance to sui generis protection. Babyak said another key factor in the effort was the eventual support of the US Chamber of Commerce, which even “key voted” the issue as one of their top issues of the year at one point. Erickson said there was a belief by some that the copyright side did not come up with the best policy arguments — perhaps because they never been tested so strongly. Black mentioned that a helpful factor might have been that with the tech industry on the rise, legislators may have been inclined to withhold judgment. Babyak described how abstract concerns about the implications of sweeping new legislation were made concrete – by pointing out (for example) that it could lead to everyone in the financial industry having to seek licenses from the New York Stock Exchange to quote price data. Another example that got some traction was the idea that a biographer of baseball great Ted Williams would need permission from Major League Baseball get permission to mention his legendary season batting average of .406.
Jaszi added the movement for database protection in the U.S. lost some steam when an effort to get a database treaty at WIPO stalled. He suggested that this whole story needs to be told as a part of the story about this “spectacular non-event.” Black offered a closing warning that this issue is not entirely closed even now, as related ideas are “alive and well and living in different clothing.”
DMCA and the Copyright Wars
The second panel addressed the DMCA and “Copyright Wars”, with the following speakers:
- Michael Carroll (Moderator) Professor of Law, American University Washington College of Law
- Jonathan Band, Owner, Jonathan Band PLLC
- Robert Schwartz, Partner, Constantine Cannon
- Sarah Deutsch, Attorney, private practice, Board Member, EFF, ICANN; Former Vice President and Deputy General Counsel Verizon Communications
- Seth Greenstein, Partner, Constantine Cannon
- Michael Petricone, Senior Vice President, Government Affairs, Communications Technology Association
Prof. Carroll opened the panel by discussing the origins of the internet infrastructure, how copyright was at “center stage” from early on, and how in the waning days of the 1998 Congress a deal was struck on the DMCA in which neither side got all they wanted. He talked about the branches of government preparing the now-historic white and green papers outlining early administration and oversight of the internet.
Band highlighted the work of Adler and the Digital Future Coalition, and pointed to three issues in the mid-1990s: database protection, internet service provider liability, and technical protection. He said the coalition coalesced as parties interested in the issues came together, and involved a for-profit and non-profit alignment with an “unusual amount of trust that is traditionally not the case.” A lot of the credit goes to Adler for fostering an environment of “trust and transparency,” he said. “We really got along,” said Band, and the coalition’s spirit continues.
Schwartz told about efforts to educate policymakers on technology being used by the copyright industry to control content. He shared anecdotes about demonstrating at the time how industry was secretly tracking listeners of a Barbra Streisand song in the 1980s and having to put explanations in common, non-technical terms to get the point across, ultimately with success. They also managed to get some key questions about copyright protection in the government green paper in the late 1990s, he said.
Deutsch, who represented the telecom industry in the DMCA negotiations, recalled that copyright was new to them as they were “the phone company.” She was the only copyright lawyer working for telecom and saw that the green paper took the position that the best approach would be to hold ISPs liable for copyright infringement occurring on their networks. She took the issue to a meeting of the various Bells (after the AT&T breakup), and they were joined by AOL, Prodigy and others. But the telecom industry was not all on the same side, she said, yet they ultimately got Section 512 (limitations on liability for material online) in the DMCA.
Carroll raised the point that at the international level, the World Trade Organization had negotiated the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which went into effect in 1995 but did not include mention of the internet as it was largely a product of the late 1980s. Neighboring WIPO, which was laboring to slowly move a model copyright law, seized on this opening, helping it to get past its frustration of being pre-empted by WTO.
Greenstein said he was sent to WIPO in 1992 to negotiate what eventually were the two so-called 1996 WIPO Internet treaties, on recorded performances and on copyright. Video recording was “right around the corner,” he said and the internet was coming in, and the WIPO negotiators were pushed to consider these developments.
Issues included digital encoding, exclusive right of copyright owners, use of technological protection measures to lock content, and a question of limitations and exceptions to copyright, he said, including the concept of fair use that took hold in the United States. He and Deutsch described spending several weeks in what became known as “the bunker” at WIPO during the intense negotiations that followed.
Petricone pronounced that people in the room, despite being underfunded, won the biggest victory of the biggest industry in Washington. “What this [group] did was monumental and remains monumental,” he said.
At the time, the VCR was seen as “amazing” because it gave so much control over television, leading the movie industry to see it as a major threat rather than the opportunity it later turned out to be when people would use it to watch the industry’s movies rather than copy them. Recording Industry Association of America head Jack Valenti referred to the VCR as a “tidal wave offshore”, and as the equivalent of the Boston Strangler. And yet, Petricone said, technologies such as this have led to the “golden age of television” with Netflix, Spotify and so on.
A lesson he said can be learned from this history is that “if a law is written in an extreme way, someone will take it in an extreme way.” And Petricone concluded also with a warning that the internet is facing threats now that far exceed what it faced back then, encouraging the experts to look back but also look forward “because the job is not yet done.”
Band made a point that the outcome in the DMCA showed an inherent limitation to the coalition, as Section 1201 on circumvention of technological protection measures has better exceptions for some commercial sectors like the insurance industry than for libraries, as legislators are more responsive to commercial interests.
Schwartz compared lobbying on these issues to painting an oil painting every day, and every night someone came in and changed everything. Many other anecdotes were shared, such as the WIPO elevators having floor rugs with the day of the week in French, that were changed every day (told by Deutsch), or that in moving the DMCA, Sen. Orrin Hatch (R-UT) convinced Sen. Roger Coble (R-TN), who was pushing for databases and boat hulls, to choose boat hulls. Another story (from Schwartz) was that a speaker in a hearing who followed songwriter Johnny Cash quipped that so much litigation would follow if the bill passed with such vague language, it could be dubbed, “A Bill Named Sue.”
Lessons from SOPA to Marrakech
The third panel ranged across developments in the US and internationally in the last 15 years. The panelists were:
- Christine Haight Farley (moderator) Professor of Law, American University Washington College of Law
- Victoria Phillips, Professor of the Practice Law, American University Washington College of Law
- Ryan Clough, General Counsel, Public Knowledge
- Hilary Brill, Practitioner in Residence, Glushko-Samuelson Intellectual Property Law Clinic, American University Washington College of Law
- Nancy Weiss, General Counsel, US Institute of Museum and Library Services
- Carrie Russell, Director of Policy Advocacy, American Library Association
Phillips began with a discussion about the effort to overturn the trademark of the Washington Redskins and other logos and mascots widely considered to be overtly racist and derogatory. She said more “stories” are needed, and highlighted a report from the Center for American Progress (“Missing the Point”) based on interviews with Native Americans on how they view and feel about such mascots. There has been some change, she noted, such as the Cleveland Indians baseball team retiring the leering image called Chief Wahoo, and at some colleges and high schools.
Clough talked about the high-profile defeats of SOPA (the Stop Online Piracy Act) and PIPA (Protect IP Act) in Congress in early 2012, which he said few if any predicted. The debate made Congress’s wrestling with special interests “very public,” he said, as well as set off debates of techie versus non-techie, and highlighted the dichotomy of censorship versus openness.
He noted somewhat gravely that if the issue came up now, it might have a different outcome, as the public is currently having trouble understanding issues that are not in a political context, typically taking a more emotional stance. It is unclear how this will play out in future battles over copyright, he said.
Brill noted that in the past fair use was not a partisan issue, and when SOPA came up she thought it would be the same as other perfunctory copyright and access debates, ending in passage with, say, one amendment out of 50 passing. Instead, it was clearly a change in policy, she said, especially accentuated by the internet blackout led by Google, Wikipedia and many others around the world. Members’ casual support for the bill “dropped like flies,” she said, likening it the effect of shutting down Instagram today.
Weiss talked about the process in the US of participating in negotiations at WIPO for the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. The treaty, which allows special format texts to be shared across borders with a copyright exception, will take effect in the US on May 8 of this year, following a number of other countries since the treaty’s adoption in 2013. Key components for getting US support included ensuring it tracked with US law, and having interagency involvement, she said, noting that in the beginning, the US did not have a treaty in mind.
Russell talked about the strength of libraries, calling them “really impressive,” and echoed the view that libraries really represent the public as they are in every district. She predicted that more young people are going to be coming in as well as more advocacy and social media.
The Current Moment
The last panel of the event included speakers looking at what’s happening right now and in the future. The panel was:
- Meredith Jacob (moderator) Assistant Director, Program on Information Justice and Intellectual Property; Public Lead, Creative Commons USA, American University Washington College of Law
- Sasha Moss, Senior Director, Insight Public Affairs
- Ali Sternburg, Senior Policy Counsel, Computer & Communications Industry Association
- Sherwin Siy, Senior Public Policy Manager and Counsel, Wikimedia Foundation
- Prue Adler, Associate Executive Director, Federal Relations and Information Policy, Association of Research Libraries
Moss kicked off by noting that the administration and Congress treat copyright differently than other types of intellectual property in terms of jurisdiction. As to what to expect now in Congress, she said she sees movement in the House on the Case Act (which would establish a small-claims style court of three judges with the Copyright Office for copyright infringement cases). The bill has particular support of photographers, while CCIA and a coalition her group helps run have opposed it, she said.
Another bill she sees coming up in the House is a “shrouded modernization effort” that would remove the ability of the Librarian of Congress to appoint the Register of Copyrights, giving the authority to the executive in conjunction with the House and Senate, working with the librarian. Moss’s group opposes the bill, which passed the House last Congress but died in the Senate, and she thinks it will face difficulty again.
In the Senate, there are more patent arguments, she said, such as Section 101 reform, subject eligibility matters, and inter partes review are “hot topics” for two senators – Chris Coons (D-DE) and Thom Tillis (R-NC).
She noted that searching for current bills about intellectual property shows a long list for this Congress and the last, but that the last Congress passed only one, the Music Modernization Act. This is because many House members introduce bills but because they are not on committee or are junior or for other reasons they do not move, while they may introduce it anyway to get media attention. Most bills originate in the House, she noted. The rare bills that are introduced first in the Senate tend to be more carefully thought out and developed, she said.
In addition, Moss said “as a woman of the right” she would like to see some sort of statutory damage reform, which is “very near and dear to conservatives’ hearts” and has a chance of happening in this Congress or the next. Also possible is some kind of copyright troll reform, she said, and there could be an attempt to import a measure (Article 13, now renumbered to Article 17) from the European Union’s newly passed copyright directive that would require internet companies to prevent copyright infringing material from appearing on their platforms. The Trump administration is not supportive of this, concerned that it could negatively impact US business, Moss said.
Finally, she mentioned that International Trade Commission reform may be in the works. This involves patent jurisdiction of the administrative court, allowing the domestic business requirement to be modified. The bill looks like it may be re-introduced later this month, and could pick up some steam, she said.
Moss also mentioned that it is “not great” being a tech lobbyist at the moment, during the current tech “backlash” in Congress and around the country. She said it could be helpful to view intellectual property as a purely legal issue related to consumers, not as a tech issue.
Sternburg talked about the EU Copyright Directive, arguing that it is “not over yet,” despite Parliament’s “disappointing” recent passage, because it still needs to be implemented in member states, creating further opportunities to influence how it is applied. She said the power of coalitions could still overcome the directive.
Siy said Wikimedia provides the back-end work for the more than 200 projects of Wikipedia, and clarified the difference between what is called the foundation, the community, and the movement. The foundation can assess what policies benefit the community and movement that it in essence represents.
Adler had the final word, thanking everyone who spoke during the day for their nice words, and said it seemed a lot of participants got emotional during the event. “We worked so closely together for so long, we were family,” she remarked. And she emphasized that it was the work of everyone in the room and the others who could not make it that “made the internet what it is today.”
In closing, Jaszi said the topics of the day were rich territory for further study, and Jacob said it is hoped the event would be the start of a conversation going forward.