Discourage Infringement!

Matthew Williams
October 5, 2010

This spring, the Department of Commerce announced the creation of “an Internet Policy Task Force whose mission is to identify leading public policy and operational challenges in the Internet environment…”  The Task Force’s agenda includes “conducting a comprehensive review of the relationship of copyright policy, creativity, and innovation in the Internet economy.”  On July 1, the Task Force held a public meeting in Washington, D.C. to kick-off this review.  The meeting was conducted in coordination with the U.S. Intellectual Property Enforcement Coordinator, Victoria Espinel, who recently published a “Joint Strategic Plan on Intellectual Property Enforcement.”  Today, the Task Force issued a Notice of Inquiry.

As someone who believes that crafting balanced copyright and Internet policy should be a core focus of our government, I was pleased to watch thoughtful presentations at the July 1 hearing.  I fully hope that the Task Force will achieve its stated goal of “develop[ing] a deeper understanding of the relationship of current copyright laws to consumer welfare, job creation, international trade, and fundamental democratic values.” 

This is not, of course, the first effort to review the relationship between copyright and Internet development.  Recent examples of agencies studying discrete issues include an FTC workshop labeled “How Will Journalism Survive in the Internet Age,” an FCC examination of the “Future of Media and the Information Needs of Communities in a Digital Age,” and a Copyright Office rulemaking regarding the impact of the Digital Millennium Copyright Act on lawful uses.  However, our government has not taken a broad look at the interconnected nature of technological innovation and creative expression since the Clinton administration put forward a plan for the “National Information Infrastructure” in the 1990s.

At that time, the Internet was just emerging as a game-changer.  Now, we have years of empirical evidence regarding how radically expanded access to information in digital form affects business, education, entertainment, and politics.  Nevertheless, I worry that going-forward policymakers may be unable to ascertain the deeper understanding they seek due to the nearly opaque rhetoric accompanying copyright related debates – such debates tend to rapidly devolve into copyright owners claiming the sky is falling while technology advocates accuse copyright owners of secretly trying to destroy the Internet. 

I spent the last several years of my life representing individuals and companies in the entertainment industry, and I can promise you that large copyright owners do not want to destroy the Internet.  However, they do have a healthy fear of the Internet due to the apparently insatiable desire of some consumers to knowingly commit acts of obvious infringement (and the equally insatiable desire of many businesses to profit from such acts).  This fear has led copyright owners to seek strong legal protection.

In response, intellectual property skeptics have understandably become concerned about the unintended consequences of laws designed to reduce online infringement.  They point to burdens on free speech and overbroad theories of secondary liability that discourage investment in innovation as anathemas caused by overzealous copyright protection. 

Although these complaints often have merit, thus far they have failed to convince most policymakers.  In my view, this failure is not the result of corruption, as some prominent commentators claim.  Rather, most policymakers accept that copyright laws need to be stronger because the evidence of widespread online infringement is staggering, whereas Internet speech and commerce are clearly flourishing.  The facts, at least on the surface, simply favor the copyright owners’ arguments. 

Advocates of limited copyright protection can continue to blame online infringement on copyright owners’ failed business models and stubborn refusals to change, but this rhetoric fails to explain away the problem.  Those of us who want to protect the open Internet and preserve the balance between exclusive rights and users' rights should instead do our best to discourage acts that are unmistakably infringing, such as downloading commercial releases from peer-to-peer networks and online lockers.  If we want to prevent changes in law enforcement from hindering fair use and other lawful conduct, we should convince people that committing slavish infringement is not in their best interest. 

Thankfully, most commentators refrain from encouraging infringement, and some even discourage it on occasion.  However, these discouraging words are often afterthoughts or throw-away lines included in long discourses implying content companies deserve what they get for being so greedy and short-sighted.   Setting aside whether these diatribes occasionally contain nuggets of truth, they are counterproductive.  They simply provide people already inclined toward illegal conduct with an excuse to continue their behavior, which in turn provides justification for increased copyright protection.  

As has been noted elsewhere, so-called “educational efforts” by copyright owners and the government are unlikely to reduce infringement for the same reason that “just say no” commercials regarding “your brain on drugs” fell flat.  But some academics, tech gurus and public interest advocates have established themselves as trustworthy netizens, and thus they can impact cultural norms in some ways that Hollywood can only dream of.  In order to protect fair use, free speech and the future of the Internet, these advocates should make discouraging infringement a priority.  If blatant acts of infringement decline, the government will be in a better position to reassess the impact of our copyright laws on legitimate online activities and democracy.


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