Reprinted from the Summer 2019 issue of the Authors Guild Bulletin.
Throughout the twentieth century, the United States led the world in intellectual property laws and legal protections that incentivized innovation and allowed our book, music, film and software industries to become the world’s gold standard. That is no longer true. In the last two decades, our copyright law and enforcement of intellectual property rights have not kept pace with Europe and much of the industrialized world. A major reason for this lag is that our lawmakers and courts coddle and overprotect internet platforms. The two main areas where we have seen copyright whittled away—and piracy explode as a result—are the overbroad application of safe harbors for internet service providers (ISPs) and the massive expansion of fair use.
In 1998, Congress enacted Section 512 of the Digital Millennium Copyright Act (DMCA) to provide incentives for internet companies to cooperate with copyright owners to keep infringing content off their services while reducing their exposure to lawsuits for third-party infringement on or through their services. If ISPs complied with several requirements related to removing and deterring pirated content, they would not be liable for the copyright infringements of their users. Section 230 of the Communications Decency Act (CDA), enacted in 1996, similarly protects internet platforms from libel, invasion of privacy, hate speech and other illegal actions by their users.
Section 512 of the DMCA and Section 230 of the CDA together played a central role in shaping the internet as we know it. But their interpretation and enforcement were left to the courts, and immunities that were intended as a balance between meaningful innovation in the internet sector and individual rights gave way to a broadly permissive attitude toward online platforms, which, in the guise of innovation, could do no wrong.
At the same time, U.S. courts expanded the definition of fair use to the point that copying and using someone’s work merely for a different purpose than the original one, or in a different context or technology, could be considered fair use. For instance, an electronic excerpt of a book for classroom use was found to be fair use in most cases while the same excerpt in a print format would not. In another case that many Authors Guild members will be familiar with, the Second Circuit Court held that Google was allowed to copy four million books without permission of the rights owners in order to create Google Books. Recently, a California court found that taking a Dr. Seuss book and simply adding Star Trek characters and making other small changes to the images, and text was fair use. (The Guild signed onto the Copyright Alliance’s “friend of the court” brief in the case.)
Internet platforms such as YouTube, Facebook and Google need “content”— i.e., your creative work—to capture eyeballs and grow their number of visitors in order to increase their value and advertising dollars, but they’re unwilling to pay for it. Instead of supporting creators and their rights, they have bought into the “information wants to be free” mantra of the early internet creators—which was initially a vision of a space free from government and corporate control— and used it for their own profit. Google and other big internet companies fund scores of organizations and academics to fight against the rights of content creators—including the right to hold intermediaries that distribute pirated content responsible. Meanwhile, thanks to the immunities and safe harbors the law provides, these companies have grown disproportionately rich and powerful.
So here we are at the close of the second decade of the 21st century, with the weakest copyright laws we have had in two hundred years and the ability to enforce copyright greatly diminished. The expansion of the fair use doctrine has made it virtually impossible for infringement lawsuits to succeed in courts unless the infringing copy substantially duplicates the original and competes with it. In other words, courts have allowed many types of unauthorized uses of copyrighted work that were previously considered copyright infringement.
As a result, even when the infringement is flagrant and obvious, it is difficult to enforce one’s copyrights today. The only way to do so under current law is to bring a federal lawsuit—which costs at least several hundred thousand dollars. Few claims are worth that much, and even fewer authors have the means or time to mount such lawsuits. Serial infringers know this, and it essentially gives them carte blanche to violate copyright.
Not all the news from the copyright world is bleak, however. In July, the Senate Judiciary Committee recommended the CASE Act [see page 40 for a full Senate vote], and as of this writing, 14 Senators and 100 House members have agreed to sponsor the bill. The House Judiciary Committee is expected to vote to send it to the full House in September. The Authors Guild has supported this very important bill from its early stages. Its enactment will create a feasible pathway for copyright owners to enforce their copyrights.
We have good news from across the Atlantic as well: the European Union’s Copyright Directive, part of its Digital Single Market program, went into force in June (see IAF article page 12). Crucially, Article 17 of the directive requires content-sharing platforms to make “best efforts” to get authorization from rights holders and to act expeditiously to reports of infringement. Article 18 further stipulates that authors and performers receive “appropriate and proportionate” remuneration for their work.
The Authors Guild is fighting for similar laws in the United States. As I told attendees at the Copyright Office’s Section 512 roundtable in April, “If the U.S. wants to protect copyright, then 512 must be amended. Internet platforms have drained money out of content industries. Shame on us if we cannot fix this.”
Last year, the Authors Guild also renewed its advocacy for a public lending right (PLR), some version of which exists in every industrialized country (see page 19) except the United States. PLR arrangements provide a small payment to authors (and in some cases publishers) for library loans. The fees do not come out of library budgets but are paid for separately by the government. We hope U.S. lawmakers will look to Europe and see that they, too, can enact laws that put some responsibility for piracy back on the companies that profit so dearly from it. All of us—members of the creative class—need to stand up and fight for renewed recognition of the importance of copyright. We need to take back the conversation and refocus on those who need support now. Creativity is what Americans do best. We need to protect this precious resource.