Sohn presented a very interesting viewpoint on the state of copyright in America today. The central argument of her talk was that "copyright law has become out of touch with our technological reality to the detriment of creators and the public...For the past 35 years, the trend has been nearly unmitigated expansion of the scope and duration of copyright, resulting in a clear mismatch between the technology and the law."
She complains that copyright laws have tightened in recent decades in a manner diametrically opposed to advances in technology. She cites four specific trends:
- Copyright protections has become longer and easier to get
- The subject matter of copyright has greatly expanded
- Secondary copyright liability has expanded and damages have increased
- "Paracopyright” laws like the anticircumvention provisions of the Digital Millennium Copyright Act, or DMCA, have limited access to and use of digital content by preventing the breaking of digital locks regardless of the reason for doing so
As an example of the problems inherent in existing copyright law, Sohn points to the lawsuits brought against Google by book publishers and the Authors Guild over the Google Book Search program:
Book Search allows anybody to search for passages contained in books that are part of Google’s system. When the search is completed, and if the book is under copyright, a user sees only the relevant passage plus two or three lines before and after it for context. The user is also given links to an online bookstore in the event the user wishes to purchase the book. In order to do such a search, Google must scan the books and index digital copies, much in the same way that it copies and indexes websites. The book publishers argue that by making a digital copy of an entire book without their permission, Google is violating their copyrights, even if the whole book is never visible to the user. If the court sides with the authors, then all of search may be in peril — as all search engines must make digital copies of websites in order to index information. Imagine if Google, Yahoo, Ask and MSN had to get prior permission from every single webpage owner whose works they link to!
I have written numerous posts over the past two years saying what a mistake I thought these lawsuits against Google were, most recently on April 27th here.
Sohn gets down to business in the second half of her speech. She offers six recommendations, which she describes as "modest changes to the copyright law that will help return some badly needed balance and relax some of the more onerous restrictions that have limited innovation, scholarship, creativity and free speech. "
The six changes are:
1) Fair use reform
2) Limits on secondary liability
3) Protections against copyright abuse
4) Fair and accessible licensing
5) Orphan works reform
6) Notice of technological and contractual restrictions on digital media
You can go here to read her actual speech or return to this blog tomorrow where I'll discuss the six reforms she is proposing.
At the least, Sohn's recommendations are provoking much needed discussion on the problems inherent in the current copyright law. Those laws were written at a time when print was the dominant media being protected. It's time that Congress recognize that updates are badly needed.