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Aug. 25, 2011AU Global Congress1 CHANGING TECHNOLOGY & PUBLIC INTEREST LEGAL REFORM Pamela Samuelson, Berkeley Law Global Congress on Public Interest in.

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Presentation on theme: "Aug. 25, 2011AU Global Congress1 CHANGING TECHNOLOGY & PUBLIC INTEREST LEGAL REFORM Pamela Samuelson, Berkeley Law Global Congress on Public Interest in."— Presentation transcript:

1 Aug. 25, 2011AU Global Congress1 CHANGING TECHNOLOGY & PUBLIC INTEREST LEGAL REFORM Pamela Samuelson, Berkeley Law Global Congress on Public Interest in IP August 25, 2011

2 Aug. 25, 2011AU Global Congress2 OVERVIEW Advances in technology have been disruptive forces for IP-intensive industries For the most part, these disruptions have beneficial for public interests in IP Yet, there are some countervailing forces What strategies should we employ for legal reform in an age of rapidly changing technology environment?

3 Aug. 25, 2011AU Global Congress3 YESTERYEAR’S DISRUPTORS Photocopy machines –Williams & Wilkins v. US: close call for library photocopying of research articles as FU –HUGE issue in legislative history of 1976 © Act –Levies in many other countries VCRs –8 years of Sony Betamax litigation DAT machines –Moratorium on importation initially urged by RIAA –AHRA in US was interesting compromise, but a failure ultimately; MP3 players, computers bypassed

4 Aug. 25, 2011AU Global Congress4 PUBLIC INTEREST EMERGES Williams & Wilkins: in public interest for medical researchers to advance knowledge by being able to have copies of research articles; NIH being careful about # of copies, etc. Sony v. Universal: public has a legitimate interest in access to technologies with substantial non-infringing uses –Presumption of fairness of private, noncommercial copies –Need for proof of meaningful likelihood of harm to © markets to overcome presumption Levies elsewhere = liability rule, not property

5 Aug. 25, 2011AU Global Congress5 COMPUTERS AS DISRUPTORS As early as 1965, some began to recognize the disruptive potential of computers –Should inputting copyrighted texts into computer memory be infringement? Authors Guild v. Google may test this yet –Can computers be authors of works? –Computer programs as © subject matter? Late 1970s-mid-1990s: software © scope wars Other computer-related issues went dormant till mid-1990s

6 Aug. 25, 2011AU Global Congress6 WHITE PAPER, WCT Digital networks perceived to be lawless –And this was before Napster!! Only if © rules are much stronger will content be made available in digital environment: –Temporary copies in RAM as infringement –Strict liability for ISPs, others for infringements by others (even in transmission) –No need for fair use, other exceptions because of licensing possibilities –Anti-circumvention rules to protect TPMs

7 Aug. 25, 2011AU Global Congress7 PUBLIC INTEREST VICTORIES WCT did not adopt “worst” of the WP proposals Alliances formed of ISPs, telcos, Internet companies, educators, research institutions, developing country representatives WCT endorsed new exceptions & limitations in digital networked environments DMCA could have been a lot worse –Safe harbors, no duty to police, no duty to read TPMs –Anti-circumvention exceptions, triennial rule-making provides opportunity to make records, consensus emerging that some privileged uses OK despite TPM

8 Aug. 25, 2011AU Global Congress8 PUBLIC INTEREST VICTORIES Article 2B/UCITA seemed inevitable –Enforce mass market restrictions involving licensed information, expected to pass in all states, int’l norm –But anti-UCITA forces mobilized successfully vs it EU-style database legislation –Proposed treaty in 1996 –US initially positive about it –Became highly controversial at WIPO, dropped quickly from agenda –US firms mobilized vs. it; off the agenda Broadcast treaty (so far) has failed to move forward

9 Aug. 25, 2011AU Global Congress9 RECENT DISRUPTORS Peer-to-peer file-sharing technologies –This has been the single most toxic development affecting © policy –Huge pressure on ISPs, considerable litigation vs. ISPs, individuals –Yet probably no iTunes without p2p infringements –Despite many millions of infringements, MGM could not persuade SCT to abandon Sony SNIU standard Mass digitization projects such as GBS What will cloud computing do to ©?

10 Aug. 25, 2011AU Global Congress10 BENEFICIAL DEVELOPMENTS Proliferation of relatively cheap technologies has allowed user-generated content, such as remixes & mashups, which have helped to expand fair use, widen range of tolerated uses –Tip of the hat to Peter Jaszi for best practices guidelines Web 2.0 phenomenon more generally has engaged millions of people as creators of content, sharing norms Groups are able to use social networking technologies to organize, spread the word about positive or negative developments Colleges & universities, among others, are making huge amounts of curated content available, usually on open access basis Internet Archive (e.g., 9/11 searchable TV archives)

11 Aug. 25, 2011AU Global Congress11 MORE DEVELOPMENTS Google Book Search –More information from books is available now than ever before –UM, UC working toward making orphan works available, allowing nonconsumptive research –Has galvanized others to emulate (e.g., Europeana) Many innovative technologies being developed, deployed in marketplace (e.g., iPhone apps) Some limits on patentable subject matter –Genetic material, software, non-technological SMs Some patent reforms will make challenges easier

12 Aug. 25, 2011AU Global Congress12 COUNTERVAILING MEASURES Proliferation of TPMs, not just with ©’d content, but even in biological materials Proliferation of licensed content that may disappear if stop subscribing; bag-tag licensing of seeds Intense pressure on ISPs to enforce © –Graduated response, push to expand liability ICE, domain name seizures, PROTECT-IP Act High protectionists successful in setting agendas for domestic, int’l policymaking General public only rarely engaged Setbacks in some judicial decisions (e.g., erosion of exhaustion of rights rules)

13 Aug. 25, 2011AU Global Congress13 REFORM STRATEGIES? Pushing for transparency in international negotiations such as ACTA and TPP Pushing for WIPO Development Agenda Building on positive developments at the national level –Sharing information about successful developments in one place, helping to spread good ideas –Using technology to facilitate this kind of exchange Enlisting technology firms as allies

14 Aug. 25, 2011AU Global Congress14 REFORM STRATEGIES? Talk with the more open-minded people within the “other” camp (CPP experience) –Understand their perspective better –Help them understand that sometimes less is more –Conversations can lessen potential for demonization, help us think of other ways to accomplish legitimate objectives –They are aware that some developments (e.g., $1.92 M statutory damage award vs. file-sharer) bring © into disrepute

15 Aug. 25, 2011AU Global Congress15 © & PERSONAL USES John Tehranian in Infringement Nation imagines an ordinary person going through an ordinary work day –Forwarding or news stories to friends or colleagues –Downloading pictures from website and making collage –Making backup copies of information on his computers –Making copies of news articles for class –Playing CD loud in his car with windows down –Displaying tattoos at his health club –Singing happy birthday to friend at restaurant Each of the 83 acts recounted are plausibly infringements under strict interpretation of US © law –Potential exposure = $12.5 M in statutory damages per day! –Up to $4.5B in statutory damages on annual basis, even without engaging in p2p file-sharing of sound recordings, for just 1 guy! –This doesn’t make any sense; reasonable zone of personal uses should be fair or exempt, as in some countries

16 Aug. 25, 2011AU Global Congress16 MODES & VENUES OF REFORM Legislatures & international organizations such as WIPO are not the only venues in which reform can take place Engaging & educating policymakers in agencies –Making submissions in response to rulemakings –Showing up at meetings to advance a public interest agenda –Consumer protection agencies, antitrust authorities too Forming coalitions with others in creative ways Private ordering can make a difference –Private law reform efforts, such as Wittem Group © proposal –Model legislation development by organizations such as ALI –Creative Commons, open source SW –Open access policies of universities, et al.

17 Aug. 25, 2011AU Global Congress17 MORE ON MODES OF REFORM Best practices guidelines –Efforts to reach consensus with high protectionist rights holders is likely to be an exercise in futility –But if done carefully, with consultation within a community of creative re-users (e.g., documentary filmmakers) or public interest users (e.g., libraries), these can help a lot –Proactive way to bring balance to IP practices –May eventually help to inform better legislation (e.g., on orphan works)

18 Aug. 25, 2011AU Global Congress18 CONCLUSION Ithiel de Sola Pool wrote about Technologies of Freedom Too bad he is not with us today to update this book or write a sequel, as technologies have become ever more liberating and widely available to the public Though we face many challenges in bringing broader sense of public interest to IP policy, let us celebrate the freedoms we have & ways in which technologies have advanced the public interest There’s a whole new generation of people who use technology to interact constantly with ©’d content My conclusion at Stanford: “There are more of them than there are of us. We are the past; they are the future.”


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