Time for Action on Copyright Reform!

Now is the time for action on copyright reform!

In April of 2001 I began working in the position from which I now write, Director of Information Technology Policy at Cornell. As a law student, I had elected to take a course in intellectual property.  Most of my classmates had engineering degrees and were headed for patent law as a career.  I was another "Eng." major, English Literature, and wanted to know why publishers of the J.D. Salinger biography had pulled it before it hit the shelves.  Turns out, the author had included full texts of letters Salinger had written a long-term lover.  The author had access to the letters, but she did not have the copyright in them.  A fair use defense would not have sufficed under the circumstances.  Consequently, the publishers removed the letters before publication.

I graduated in 1995, just as the Internet was emerging as a world-historical phenomenon.  I also had the very good fortune to be married to a research engineer who introduced me early to that world; I can still hear the screech of the modem and feel the excitement of what it meant to be "on-line."  Peter Martin, pioneer law professor at Cornell Law School early introduced us to "search."  Although one could not find the world "technology" in my vita, I was not as improbable of a choice for the role of "Policy Advisor" as I may have seemed.

I still had a great deal to learn, not least in the area of intellectual property.  Let it be said that copyright has gone from the backwaters of a law school curriculum or specialized legal practice to front and center of American and global politics because content is king.  As fantastic as the technology that supports the Internet is, it would not be the world-historical phenomenon if it were not the vehicle for content, communications and commerce.  Moreover, given the intersection of these three areas, it is no wonder that copyright now has intimate connection with foundational legal principles such as free speech and assembly, global markets and foreign relationship, teaching, learning and research world-wide.  That is why copyright law matters to users everywhere.

A month after taking this position, I attended my first copyright conference in Madison, Wisconsin.  So many heavy-hitters were there, it remains one of the most exciting professional experiences of my life.  Brought up in academia under the historians Eugene and Elizabeth Fox-Genovese, I had attended many academic conferences and learned the proper protocol for listening, challenging and discussing ideas.  At the end of James Boyle's talk I threw protocol to the wind and leaped to my feet in applause.  I was not alone.  When the copyright registrar, Mary Beth Peters, opened her talk by explaining how the airlines lost her luggage, we all sympathized.  But as she delved into the unnecessarily complicated intricacies of copyright law one could feel tension rising.  Why was the law so convoluted, and what market factors made it so?  Slowly the politics of copyright began to rise from the legalize.  Like clouds in the sky, I began to see patterns.  The J.D. Salinger debacle was the tip of a very big and powerful iceberg.

My friend and colleague, Pat McClary, associate university counsel for Cornell, attended the conference too.  I don't know why were at the registration desk at the hotel about half way through the conference, but there stood Miriam Nisbit, now the U.S. Archivist, and at the time legislative counsel for the American Library Association.  I had attended her talk and thought her magnificent in every way: how and what she presented, her manner and her politics in perfect pitch.  I complimented her on the talk and she shared that she was receiving a fax that contained final edits of the TEACH Act.  At the risk of revealing my boon-docks origins, I marveled at being that close to something smart and impassioned that would make a difference in our world.

I marvel to this day.  For over ten years now I have been on some aspects of the front lines of where higher education and copyright meet: copyright education for the constituents of our colleges and universities; observer of how the publishing industry has gone after our universities, and the "copyright wars" between students and content owners as DMCA Agent for Cornell University.

As the problems with copyright law became more clear to me, the anomalies that Internet technologies have created in the technology-legal paradigm established with the last Copyright Act promulgated in 1976 (and by virtue of the Berne Treaty, extended internationally), I began to wonder why wouldn't we call for reform?  Inside-the-beltway sages looked at me as if I were literally surrounded by boon-docks weeds.  "No one wants to open that Pandora's box!"  The fear was that content owners -- powerful, experienced lobbyists -- would take full advantage of the opportunity to weight the scales further in their favor.  So for ten years, I backed away.

Let's jump into the ring!  The ripples of dysfunction that emerge as a result of our fear outweigh the risk.  With infringement so rampant, displacement of blame a dangerous distraction and so much at stake -- from fundamental notions of citizenship for youth to the virtual abetting of organized crime that impedes a healthy global economy -- we cannot hold back hope.  How much worse can copyright law get?  What do we have to lose, really?  Finally, take a look around, because there is evidence of a bright new day.

Where?  The concept of "transformative uses" that ripples through copyright case law in the last thirty years.   The Georgia Tech decision.  And this week, HathiTrust.  Notice I did not mention Google.  Whereas ten years ago one might have expected that Google would ride into this conundrum on the white horse of reform, the Internet giant has failed to be our knight in shiny armor.  That's okay.  Not only is it a recognition that Google is a publicly traded company and must observe its own fiduciary obligations that will pull it back from white knight action, but higher education is its own white knight.  Producers and consumers, not-for-profit institutions can raise public policy concerns honestly and in the name of the public good.  We are natural leaders in this area.  Let us have the courage to accept the mission.