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Wednesday, August 14, 2013

Congressional #Copyright Hearings Continue with Focus On #Technology



House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet wrapped up the second of a pair hearings focusing on innovation and copyright. Both of these hearings were part of the subcommittee’s ongoing review of existing copyright law; the latest was titled Innovation in America: the Role of Technology.

Anecdotal evidence needs to be recent to be relevant.

As witnesses repeatedly pointed out, technology moves fast. To keep up, players need to innovate, and to innovate they must experiment. However, these experiments do not always work out the way we would hope. Reference was made to Nine Inch Nails and Radiohead, who both released albums on a pay-what-you-want model. Those releases were important events in terms of the digital music marketplace, but neither ended up defining today’s digital music business model. It’s also interesting to note that, since releasing those albums, bothNIN’s Trent Reznor and Radiohead’s Thom Yorke have reexamined this approach. Furthermore, in both cases, the experiments benefited from fanbases established with the artists’ many years at major labels. By over-focusing on a pair of high-profile releases from the previous decade, the panel did not address current realities for today’s working musicians.

Similarly, Ringelmann’s citation of Kevin Kelly’s article on how artists might make money in the future seemed somewhat anachronistic. Kelly’s piece documents a quaint, starry-eyed thinking that was prominent seven years ago (once again, citing Radiohead’s release of In Rainbows!). But since then, the creative industries have evolved further, and we’ve seen business models emerge during that time (including the rise of streaming) that are inherently copyright-dependent.

Exemptions for disabilities need not be controversial.

Jim Fruchterman of non-profit company Benetech used the hearing to tell the story of his Bookshare service — a non-profit tool which provides access to a large library of books for people with disabilities. He emphasized that what allowed the service to function was two exemptions in copyright law: Fair Use, and 17 USC § 121 — “limitations on exclusive rights,” which allows authorized nonprofit entities to create accessible versions of copyrighted books without the need to request permission from publishers and then distribute them exclusively to people with qualifying disabilities.

Copyright makes exceptions to otherwise exclusive rights to better serve the public interest, but for some reason, discussions around creating exemptions to accommodate the visually-impaired or otherwise disabled are treated as hot-button issues. To us, this usually seems unnecessary, as the opportunity costs borne by copyright owners are small. Copyright exemptions extended to services directed at people with disabilities seem like a common-sense measure that artists can get behind.

Notice-and-takedown” protocols are not universally embraced.

When it comes time to enforce copyright laws online, copyright owners often rely on the takedown procedures provided by theDigital Millennium Copyright Act to request the removal of their content from an allegedly infringing site. These procedures are subject to criticism from both the rightsholders making these takedown requests and the companies that have to field them.

Rackshare’s Van Lindberg expressed frustration of automated takedown requests served up by “bots”; he’d prefer to resolve such conflicts “person to person, business to business.” There’s little doubt that automated takedown requests have resulted in some false positives, where a notice is aimed at clear examples of fair use or links that don’t even include infringing content. But also it’s worth considering why bots are used in the first place: infringement is too widespread for rightsholders to keep up without employing automated takedown (and even these automated tools are out of reach for smaller indie players).

At the same time, it’s important to remember that DMCA “safe harbors” — which protect online services from liability for infringing content posted by users, provided they comply with specific provisions in the law — allows for the development and continued existence of platforms that artists (and millions of others) use every day. It’s safe to bet that the details of how takedowns should occur will be a hot issue moving forward.

#dmusicnews

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