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Reforming Copyright: Where’s the Balance?

Over on Ars Technica today, Timothy Lee has published an interesting piece called “Five ways Congress should improve the copyright system,” and while I’m not in complete agreement with the measures Lee suggests, I find them fairly reasonable, overall.

Lee hits some familiar notes; current statutory damages for copyright violation are excessive, copyright terms are too long, etc. Again, for the most part, I agree with him on those points. What I take exception to, though, is the lack of balance in these suggestions.

Is there no room for improving rights-holders’ lot in life in the process of copyright reform? Does the onerous cost of copyright litigation only negatively impact defendants? Is there really no means by which the middlemen in the equation — the websites, cyberlockers, search engines, hosting companies and other “Internet Service Providers” — can begin to shoulder some of the burden for preventing the illegal dissemination of pirated materials over their sites and/or networks?

The primary complaint that we hear from rights-holders here at DMCA Force (and that we have as rights-holders; several employees of DMCA Force have published works of their own) about the current state of affairs with online piracy is that the onus for combating piracy falls entirely on them. The rights-holder is the one who has to find his/her work being infringed upon on the web; the rights-holder is the one who has to send out the DMCA take-down notice (or pay for someone like us to do it on their behalf); the rights-holder is the one who has to incur the expense of filing a lawsuit to enforce his or her rights – and so on and so forth.

If copyright is ever to be reformed, perhaps as part of an upcoming “comprehensive review” of copyright soon to be undertaken by the House Judiciary Committee, there needs to be some balance in the mix.

So-called “copyright maximalists” need to acknowledge that certain facets of the law are outdated, that there is a big difference between commercial copyright infringement and noncommercial p2p file-sharing, and at least entertain the notion of dialing back the term of copyrights somewhat.

On the other side of the aisle, those who would take a chisel to existing intellectual property law need to accept that some measure of legal consequence for things like file-sharing is going to remain in place, even in the Internet Age, and rather than arguing for the abolition of copyright damages (or for the abolition of copyright itself, as some do) argue instead for penalties that strike them as more reasonable and measured.

By combining the suggestions of people like Lee with those of groups like the American Photographic Artists, who have proposed the establishment of a small claims court of sorts for copyright offenses, we might be able to get somewhere on this issue, some sort of middle ground that rights-holders, tech companies and consumers can all live with.

If the extreme sides of the debate stubbornly stick to their ‘no compromises’ rhetoric, on the other hand, we’re just going to continue to go in circles, and ending up right back where we started: angry, frustrated, and seriously at-odds with each other.