Like, well, everyone else in class, I see very little constructive change on the horizon in copyright law. But this is for a variety of reasons, not just because constructive changes are extremely difficult to come up with. The nature of copyright in the 21st century is intrinsically tied to the nature of the information economy—and every year, our economy becomes more and more information- and service-oriented. The role of copyright in such an economy is of vital importance, and perhaps that’s why copyright is getting so much attention both in academia and out.
Despite not having found a silver bullet solution in class this semester, there seem to be some good ideas for interim methods of keeping the copyright playing field fair. With the Grokster decision now looming, copyright is set to shift significantly in one direction (more restrictive) or another (less restrictive). But even with important Supreme Court decisions on the horizon, copyright will continue to need fine-tuning. And while fine-tuning goes against my more anarchistic “free information” nature, small steps are more practical and achievable in today’s industry-friendly climate.
Attorneys’ Fees or Punitive Damages for “Fair Use” Defendants
As mentioned awhile back in class, attorneys’ fees are an interesting solution to a specific problem—namely, the failure of Fair Use. Fair Use was specifically put in place by Congress to legalize a wide variety of infringing actions. As such, a Fair Use defense should be first and foremost when it comes to copyright litigation.
But Fair Use has fallen to the wayside, not because of a flaw in the law, but because of a flaw in the system. When a Fair Use argument clearly applies, and would most definitely result in a judgment for the “infringing” defendant, it gets squashed before trial by the threat of legal costs. $250,000 to defend a 7-second snippet of a TV show in the background of your movie would, and should, seem excessive to almost any defendant, but copyright law provides very little protection in this area.
Granted, 17 U.S.C. section 505 does allow for attorneys fees to be awarded, but the allowance is by no means guaranteed, and the hope that attorneys fees would be rewarded is a big risk to take.
The solution might be an amendment to 505, not simply allowing but mandating attorneys’ fees in cases where Fair Use is a clear and applicable defense. Thus a defendant who relies on Fair Use can also rest easier knowing that, in especially egregious cases of copyright owners overstepping their bounds, bankruptcy can be avoided.
Another semi-solution (and one whose implementation I haven’t quite figured out) is somehow raising Fair Use from a valid defense to a removal of copyrights altogether. Rather than take the approach that there was infringement, but a defense exists, Fair Use could instead say there was no infringement period. The point may be subtle indeed, but if there is no cause of action at all, a defense does not need to be raised and no suit could even be brought. This approach would necessitate a much greater overhaul of copyright, however, in that every type of Fair Use defense would need to be written directly into the statute that discusses the infringement against which it is used.
The downsides of both of these Fair Use-oriented approaches, is, of course, the chilling of valid litigation. But given that lawsuits in copyright are hotter than ever, it might be worth the risk to see if such adjustments would benefit the community as a whole.
Another idea, one not mentioned in class, is outside the realm of copyright and perhaps an anathema to the entire legal profession. Right now, legal teams at production studios, music labels, and publishing houses send out thousands of cease-and-desist letters every year, warning infringers of the dire consequences of their apparently unlawful actions. But these letters are often scare tactics designed to achieve a quick and easy solution in favor of the copyright holder. Sadly, the actual legitimacy of the claims are often wanting (see this interesting anecdote, and note that Nintendo apologized and sent gifts), so maybe a harsh fine (in the range of $10,000 or so) to the lawyers or corporations issuing such obviously false letters would be in order. It seems to be a matter of legal ethics, and given the murky nature of copyright law, most cease-and-desists would undoubtedly be at least technically legitimate. Still, the threat of a fine for the brazen harassment of any and all persons who reference your copyright might provide some relief.
These are just two thoughts, both with fairly significant downsides and in need of further refinement. The overall point, though, is to adjust copyright so that the day-to-day existence of someone who deals with copyright from the user side isn't so scary. The big, sweeping changes are out of reach right now, if only because copyright is too complex and the medium it regulates is very much in flux.
But I think at the end of the day, copyright law is still malleable, if done in small steps. It can be adjusted by courts and by Congress and though the political tide has turned towards industry, it may turn towards innovation again some day. With the help of technology, the tide may already be turning.