Rep. Howard Coble knows the reputation of intellectual property law—that it is dull and boring. But at a Congressional hearing on Thursday, he had a message for anyone who shared that viewpoint: “Get used to it, because IP is not going away,” he warned.
Yesterday’s hearing was the first that the Judiciary Committee held after its chairman, Rep. Bob Goodlatte, announced last month that he was beginning a review of the country’s copyright law. The hearing featured five members of the Copyright Principles Project, a loose association of copyright experts that began meeting in 2007. Their goal was to start identifying what worked about the country’s copyright law (some, but not much) and what could use an update (a fair bit of it).
What these proceedings demonstrated is that not only is copyright law not going away—it’s also anything but dull.
The project included experts on copyright law (mainly lawyers) who represented libraries and corporations, copyright owners like Disney and Warner Brothers, and big technology companies like Microsoft. The House committee called in these experts as an example of how to build consensus on copyright issues.
Copyright, however, is a realm in which everyone has a strong opinion and isn’t afraid to make it known. In fact, one of the accomplishments of the CPP — the members of which met three times a year for three years — was that the members managed to put together a report while avoiding “the climate of recrimination that has characterized so many copyright debates in recent years.”
“The significance of this achievement should not be understated,” the group’s members wrote in their 2010 report.
What normally happens when people with diverging opinions on copyright get together? I asked Pamela Samuelson — the Berkeley professor and expert on digital copyright law who organized the CPP — how, exactly, most discussions like this went. Just think about the raucous fight around the 2011 hearings on the Stop Online Piracy Act, she suggested. “Sometimes people like me have been described as communists for not adhering to high protectionist positions,” she said, in an email.
This contentiousness stems from the fact that copyright law, itself, is something other, or more than, dull. As it stands now, it’s intricate, confusing, and — most of the experts who testified yesterday more or less agreed — due for an update. But not quite everyone. “I think the notion in many circles that copyright law has become totally dysfunctional and counter productive is not the way the situation is,” said Jon Baumgarten, who once served as the general counsel to the copyright office.
This is what passed for consensus in this debate. The CPP’s final report, for instance, noted that “various members of the group maintain reservations and even objections to some proposals described as recommendations in this Report.” And so, they wrote, “we do not intend affirmative statements or the use of phrases, such as ‘we recommend’ or ‘we believe,’ to suggest that the group as a whole was uniformly in support of each particular view stated.”
There wasn’t even consensus on what constitutes consensus. On the question of whether this particular group of lawyers’ version of consensus between disparate interests should reign, Chris Castle, a music attorney who blogs at Music Tech Policy, writes, “there is not one creator on this list” of CPP members. While in an op-ed in Politico, singer-songwriter David Lowery, of Cracker and Camper Van Beethoven, calls the CPP a “group of Big Tech and Big Media companies and the lawyers and academics who love them.”
Dull? Frustrating might be a better adjective — especially for legislators trying to draft a new copyright law.
Disclosure: CJR has received funding from the Motion Picture Association of America (MPAA) to cover intellectual-property issues, but the organization has no influence on the content.
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