Copyright Report Shows (Mostly) Positive Shift In Copyright Debate

The demise of SOPA and PIPA seems to have left its mark on policymakers in the copyright realm – and that’s a good thing. A report released today by the U.S. Department of Commerce (DOC) Internet Policy Task Force reflects a much better understanding of the fact that copyright policy affects just about everyone these days – including individual Internet users of all stripes.

In the report, the DOC calls for a series of public discussions and meetings to address the multi-faceted nature of the U.S. copyright system. The good news is that these discussions aim to go well beyond the black-and-white debate of rights holders vs. pirates and the tech industry vs. Hollywood. Of course,, there is no guarantee that multi-stakeholder dialogues will lead to meaningful reform to U.S. copyright policy. The political reality is that the sides in the copyright battle remain firmly entrenched and largely polarized.

Still, the report offers more positive than negative in moving the conversation about digital copyrights forward. In particular, CDT is pleased that the report calls for an inquiry into the application of statutory damages to both individual infringers and Internet-scale services. There is a place for statutory damages, but the exiting rules were written well before the Internet age and are in desperate need of reform.

Additional positive takeaways from the report include: support for solutions to the orphan works problem; support for licensing reforms to promote continued development of the lawful online content marketplace; a new initiative to revisit the question of digital first sale; an examination of the legal treatment of remixes; new attention to important nuts-and-bolts issues like copyright registration and information databases; and express recognition that fair use is not a fringe exception, but rather a “fundamental linchpin of the U.S. copyright system.”

Other suggestions in the report could raise some concerns. The report promises a dialog on how to improve the operation of the DMCA’s “notice-and-takedown system” – a topic that is sure to yield some controversial proposals. Free expression advocates will need to engage actively to counterbalance a possible push towards (for example) more ongoing content monitoring.

The report seems inclined to embrace certain tactics, such as domain name seizures by law enforcement and voluntary filtering by Internet intermediaries, that CDT believes merit caution. More broadly, the report expresses general support for voluntary, collaborative enforcement measures by private parties. While CDT agrees that voluntary measures offer some important advantages over legislated approaches, serious questions remain about how much law enforcement activity should be turned over to private hands and what safeguards would be needed.

Overall, the report does a solid job of not picking sides in the copyright reform debate and it demonstrates considerable progress in reflecting the complexities of copyright when applied to the Internet. CDT looks forward to being a part of the discussions moving forward and is hopeful this report can spur some positive progress.

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