 Well, thanks everyone for joining us today for this webinar on 20 years of defending digital ownership You know, so I would say some of the basic assumptions of copyright policy particularly when it comes to user rights where the result of the way that copyrighted materials were distributed to the public on physical copies books CDs albums HS tapes and of course, you know, many copyrighted works are still distributed that way, but many aren't There have been famous instances of publishing houses attempting to limit what people can do with copies of works that they have purchased In the Bob's Meryl case in 1908 the Supreme Court held that you can't just slap a not for retap Not for resale sticker on a book to control the secondary market, which is a term you might hear in this panel a lot It just means the used market And in 2013 in the Kurtzang case the Supreme Court also held that publishers can't prevent the importation of books that were initially sold overseas And this distinction between the rights of authors and publishing houses the rights holders with respect to copyright But then the rights of users and readers with respect to specific copies that they have purchased I think has really served us well, but it's also it's something that developed over time I don't think it I don't think it was ever planned It just sort of fell out of the fact that you know People have certain expectations with artifacts that they buy and then the law essentially Backed up their instincts as to what they should be able to do and what they shouldn't be able to do But in the digital world We don't have physical copies of things that we can just freely move around lend and resell and in fact the contracts that people sign with the tech platforms and publishing houses and so forth over over buying Digital copies of works. Well, they actually say that you didn't buy anything You're just licensing it, which I think is it an entirely legally coherent Concept for what users are doing and in fact Apple is facing a class action lawsuit Over this right now But there you have it so so on this panel. I think we're gonna talk about You know, what is it that people should be at? What should the rights of users be with respect to digital ownership should there be a way for people to resell digital content that they have bought or leave it to their kids and their will Or things like that should there maybe be a resale royalty There's a lot of different options here, but I don't want to do all the talking today So I'm going to introduce our panelists and you know, let's get started. So Today we have Michael Weinberg who is the executive director of the Engelberg Center on innovation law and policy at NYE law Lila Bailey who's a policy counsel the Internet Archive IP3 award winner Professor of the Tief Matema Professor of law at Howard University School of Law founder and director of the Institute for intellectual property and social justice and Believe also an IP3 award winner There's like they're everywhere I can't you know, I can't swing a cat in this town without hitting an IP3 award winner and Michelle Wu retired professor of law at Georgetown University who is Not retired from her work in general, but no longer an academic apparently Right, so there's my panel and I'm gonna ask the first question to Michelle Wu and then And then after she answers the other panelists can just sort of pitch in and we'll just go like that So Michelle so you know many activities in the analog world Such as just sort of lending books and reselling CDs Like I just said that doesn't work with digital file with digital files So how much of this are like actual like restrictions that you know It's not legally possible to do what consumer advocates like me want to do Or is it really just like the business models of the publishers or just like the market pressure, you know, would you maybe talk about that for a little bit? Sure, so I think in combination of all of those obviously there's some legal Instruments that can be used with digital items that cannot be used with physical item You've already cited the cases that have that have determined that publishers can't put Downstream restrictions on physical items, but with print or with digital items. There are two different, I guess legal instruments that can be used Beyond what can be used with print items and so to give you two examples the first is contracting And the second is the DMCA itself. So the first in terms of licensing With the digital work Publishers can actually replace ownership with rental So if an individual who pays for access to work never actually gains ownership They also don't gain any of the rights that attach with ownership, right? So that's resale that's preservation that's interlibrary loan all of those never attached because there is no ownership the second example is the DMCA which is I Would argue it actually doesn't protect the interest of copyright. It doesn't protect a copyrighted work What it actually protects are the technological control that might be bundled with A copy of a copyrighted work. So what what the DMCA does is it actually extends Extraordinary protection to work under copyright that extend to be on traditional copyright law Now you asked this is about the law or is it about industry or is it about market? And I think the combination of all those right so obviously I've just described some legal structures that can be used But how those legal structures are used are determined entirely by the industry and the industry will or the industry has Justified some of their preemptive Restrictive actions that damage public use by saying we're driven to this because our markets will be damaged Otherwise if we don't take these actions if we don't use these license agreements Our markets will be down and I think what troubles me about that is industry has proven to be very Unreliable in being able to predict damage of new technologies take the beta max case So if you take a look at the news reports during that time they claimed irreparable harm mortal damage to their market and We've seen since then that instead of damaging market it actually gave them more revenue producing options than they have before hand So hopefully that answers the question does would anyone like to Answer or respond Because you know so one further question I have just from the sort of you know The the side of the argument that I might not usually take is that you know with digital files though You know, okay, I buy a book I buy a CD and I can sell but it's like it's limited, right? I it's one copy and sure you can make an unauthorized copy You know, but for the most part that's not like necessarily a huge worry If you didn't have DRM if you didn't have the protection for DRM that the MCA has and if you had some sort of You know, what's to prevent someone from saying oh, yeah, I just sold this but you know I'm just keeping a copy right so you can see if you're from the perspective of like a rights holder You're like, okay, you're just talking about you want to bring back for sale So that's fine and dandy But how do you how do you actually make it so that I continue to get paid when someone wants to buy something a new? And that the copies of my work don't just you know multiply through the back door Sure, so I have two responses of that One of which may be very controversial, but the first is separate law already allows foreign infringement So if someone has made more copies in a purchase Assuming that a vendor can track that down. They actually do have a cause of action within the copyright code already The second comment I have is I'm actually not against DRM I'm against the DMCA which is those are two very very different concepts, right? So if there were no criminal or civil tenants penalties attached to anti-circumvention If people could use a fair use argument to circumvent just like they can for infringement I would have no problem with vendors using DRM because then all of the fair use rights that are Given in the copyright code can actually be used So I'm not saying that vendors can't use DRM or that DRM is necessarily in and of itself bad I just think the formulation in the existing code went a little too far Okay and then um, so I do have a question for professor Matema which is uh So so basically You know from the perspective of communities of color marginalized groups There's there's it seems like there's two conflicted, you know, if you're a smaller creator you're losing You know, you might think how do I control my work? How do I monetize my work? You know digital technology makes everything so easy to copy And it's so hard to control the use of works in the digital environment because it is the nature of computers to just make copies of things But at the same time those same people want to use works and they don't want to necessarily be locked out of you know building on culture of the past They don't want to you know, and anyone might want to own works and be able to resell them So so how do you sort of balance those two? You know those two different constituencies or those two different perspectives on the of the effects of digital technology on copyright work uncopyrated works Yeah, thanks. John. I think that's a really excellent question because I think that As we way through these issues and as the years go by we come to the realization that small and independent artists Creators from marginalized communities including communities of color Are sort of like caught in between and a rock in a hard place in on this landscape Because you're absolutely right. I mean, you know artists both create Works and they use works and interestingly sometimes artists create by using works and so they are really Looking at it from both sides and when you are From a smaller marginalized community The current landscape Presents just an array of challenges. So first of all just in terms of you're to make use Of a pre-existing works Today, we have an availability problem You know If you are used to focusing in on a particular Genre or works that are of interest to particular groups or particular communities Um, increasingly some of that material is just simply disappearing from the uh, uh from public availability simply because Similar to but not quite as much of a challenge as what we had in the analog world, you know, if it ceases to become You know Commercially viable to produce certain works Then you know those works just are no longer available and if You're looking to a particular type particular genres that really only are of interest or primarily of interest to smaller communities or marginalized communities Then much of that work may not find itself in the uh on the digital in digital formats um So your ability to access the material that you're most interested in well that becomes restricted But then at the same time right when you Put your work out, right? um I would argue that the works of marginalized and other small and independent and just say out of the mainstream Creators are especially vulnerable In in this landscape because they're particularly unique Right and once they are placed in digital formats It's not just big corporate conglomerate Owned works that is vulnerable, right? It's the individual artist's work who is also vulnerable So if you're a small non mainstream creator This bright brave new world is particularly onerous, right? You can't find the stuff that you would like to use And then when you manage to produce your own stuff and put it out there Um, not only do you not have the tools to which uh to protect yourself But because your work is particularly unique Right, then your work becomes particularly vulnerable And and attracts more Let's just say unauthorized use And I I I tend to use that term because the thing of it is is that not obviously not every unauthorized use constitutes corporate infringement Right, so it's a particularly difficult situation. I think for Both creators from marginalized communities and for those communities themselves So I mean I'm gonna go to Leela pretty soon on the availability point, but I do have a follow up for you. So, you know, traditionally You had all these businesses whose whole Purpose is to like identify Authors musicians, you know, so you have record labels publishing houses even retailers bookstores. It's like they they select It's like, okay of all the people out there We've actually gone through and we filtered out who are the good ones and and then the retail stores, you know So you have this like filtration process. So if you're left out of that, it's it's terrible But it does mean that there is like a path from being an artist to like Reaching reaching a public and and I think it can you know, we all know that sometimes those Intermediaries can be exploitative and they make people sign their rights away and everything But still, you know, it does provide this this discovery mechanism And it does seem, you know, part of the issue with getting With copyright in the digital world Is there's this this wash of material because it could you can just go right from creating something to putting it on youtube You know, how you know, how can we sort of replicate the sort of social structures that sort of did that? Where readers would like also they would Rely on these other people to figure out who the authors who might be worth reading are And or the musicians who are worth reading, you know, they don't go through the slush pile by themselves If you see that as being a problem, too Just this this abundance of creative works and how do you stand out? How do you get discovered in this mix? Yeah, no, another good question, you know, one of the things that I have written about and and have been very interested in is the way in which this model of a conduit Of you know creators and then distributors in the middle Serving as the conduit to getting material to the public, which is what you just basically described How that has evolved over over the decades You know, originally you had something more of a partnership between creators And the uh distributors, I mean I'm thinking you can think of some some old movies in which, you know The author is sitting down with with oh, this is my publisher and they're discussing, you know What the next book ought to look like et cetera, et cetera And of course in in the modern world, you don't see much of that. I mean basically what Originally was sort of like a linear conduit with the distributor in the middle Evolved over time such that the role and the power and the influence of the distributor just sort of rose above And so what had been a linear relationship is now more like a pyramid, right with the distributor dictating down Terms to the author on one side and dictating terms down dictating content Down to the public in other words the top of the pyramid deciding Okay, well, this is what I think is commercially viable, right? And so this is the type of stuff, you know that that you're going to have access to So sort of like that filter mechanism Going awry Right, and I think that the answer to that One of the things that I've suggested is that I think that creators Should really start banding together And now the distribution Is real digital distribution is really within the hands of just about anyone, right? I mean you can digitize your stuff inexpensively and if you began to get to get together right and Distribute your your your material as as a collective Then you would have the artists sort of determining, okay, what sort of material you want to make available to to the public and I think that whereas The initial concern might be well, you know, how would an artist distribution model Compete with the current model Well, one you have the cheaper cost and two The fact of the matter is is that the principal advantage that traditional distributors have is a huge catalog Right, but if artists begin to band together And take over that role themselves Well, they will have certainly they'll have the the biggest new catalog Right, and of course people will be responsive to the fact that hey This is the material that the artist has just put out But this is the material that the artist Herself is saying this is some of my most interesting work or these are the people who I listen to and you may want to check them out So I think that that may be an effective means to sort of Evolve on the current landscape All right, thank you Lila So libraries, I think again, we all know that libraries serve many functions beyond merely providing access to cooperated works So, you know, you did their community centers They help you, you know, they do all kinds of things But nevertheless one of the one of the core purposes of libraries over over the years over the centuries Has been to allow people to access works And only that they usually don't have to pay for them, right? So that's a little controversial sometimes and it's sort of a Many people observe that if someone came up with the idea of a public library today It would be seen as some sort of socialist plot, but you know, they're sort of grandfathered in so that's wonderful So so I guess I have two questions So so first from a team are brought up this issue of availability And it seems that there's like two parts of that it is sort of Ironic but true that sometimes digital works become unavailable And so that's something the internet archive does preserving digital works But there's another thing internet archive has has done which I was hope which I hope maybe you could explain briefly Which is making print books that are otherwise not available electronically at all available So so how does internet archives sort of handle those two things? You know in terms of like the legal considerations and and then maybe if you have any thought on you know the question of like What do authors think of this? Sure, yeah, so there's already been so much rich stuff. I'd love to respond to everything Latif just talked about that so so many interesting ideas there on the event. So on the availability issue. I think When I was preparing for this thought I was thinking in particular about how the DMCA So the digital millennium copyright act the notice and takedown provisions at least in terms of how the internet archive functions That I think has actually allowed For more availability of what I would call the long tail the weird quirky ephemeral Less commercially interesting and viable stuff, right? We have all kinds of really interesting user uploaded collections Um, uh, one of them which is just posted in the chat here is our limbervox collection, right? This is regular people that read public domain books record the digital audio and then submit or sort of put those things into the public domain and we have this big collection of audiobooks that were created by regular people right not through a commercial intermediary We have a bunch of we have old timey radio We have old silent films. We have all kinds of non commercially available things up on the internet archive largely because the DMCA allows for users to upload those things and for us as a library to Have to host them without being overly I mean look we are stressed out about this but without being overly stressed out that if our users have made a mistake About whether it's commercially available whether a rights holder really does care about this We can rely on the rights holders to come to us and say actually I'm making use of this. Please take it down and then and then we do right So so this has allowed a huge number of those. What would I think otherwise be? basically digital orphans Like orphan works right that would disappear have been able to be collected and preserved by the internet archive So on the one hand, I think the DMCA has helped a bit with that long tail preservation But what letif was talking about was this availability actually of commercially interesting stuff right that stuff is actually weirdly More likely to go missing or to be unavailable to people So I think a really great example of this is from this this year's best picture nominees for the for the Oscars right Four of the best pictures were from some streaming service And so you had to buy access to hulu or netflix or amazon prime or all of them right in actually in actually to be able to Watch all of those best picture winners and none of those None of those movies is available to a library In any form there's no physical format that a library can buy and libraries aren't offered a subscription model either so so libraries are completely excluded from the ability to Purchase on the one hand because the other thing is when we talk about library books and other things being free They're free to the public, but they're not free to the library. Okay libraries paying literally billions of dollars for content For books for audio for for everything. So let's not forget that these things are not in fact free They are free to the end user, but they are not free to the library and in fact Our taxpayer dollars go hugely into subsidizing this so this idea that these things are free is really a bit of You know, it's it's not totally 100 accurate, right? But so so so this idea that The stuff that's actually commercially available is extremely restricted in our digital world is very counter-intuitive um to what we Probably all of us sort of in the you know, sort of 90s and early 2000s thinking like oh, wow There's going to be this amazing abundance of everything because no scarcity on the internet. Yay But the market really has Figured out how to recreate scarcity That that has that's actually been quite effective um, and so libraries are really stuck in this position in the middle where um The libraries are still trying to provide that access to anybody Regardless of whether, you know, whether you can afford to pay regardless of your zip code, right? To be able to sort of equalize access to information culture and knowledge But on the other hands, we're seeing publishers unwilling to license To libraries at any cost, right? Amazon recently has been criticized for this behavior exactly, right? Their audiobooks and their own kindle imprints Are not available to libraries at any cost not for sale not for license So so libraries really are finding we're finding ourselves in this very challenging position Of wanting our missions on the one hand demanding that we provide access and on the other hand the content distributors Really limiting and restricting that access so so one So one of the ways that we at the internet archive and I I am not going to take total credit for this This is actually Michelle Wu's idea. She is the godmother of the whole idea of What we call controlled digital lending but the idea of this is That libraries can take the collections of materials they already own, right? So the books the other materials that Have been legally acquired either through purchase or donation or other other means Digitize those materials and then make them available to users In lieu of the physical material, right? So so lending out a book to one reader at a time using Controversially maybe to some people DRM to make sure that we are mirroring the scarcity Of of the traditional library lending model. So that's something that Michelle conceptualized academically And worked with the internet archive over the years to develop an actual real working program Where you can go to the internet archive. Lots of other libraries are doing this as well And you can check out a book that is not available at all in any digital form Because we have digitized it and made it available in that way. So that's something that We at the internet archive and other libraries have been doing and that solves that sort of backward looking problem of materials That we already own that we've been able to own in the in the physical world But it really doesn't provide us a solution for you know, the materials that are born digital And and you know amazon or others Netflix and so on are not making available to libraries at all, right? That Might require break breaching a terms of service or breaking some DRM and that's not something libraries Are interested in doing libraries are rule followers libraries are generally pretty risk averse And so this has really put libraries in a pretty serious bind and I think without you know Legal or policy intervention in this area. I personally really do worry about the role of libraries in this ability to pry to access to Digital materials in the future So I just want to jump in very briefly and say wearing my other hat, which is the former law library director I will agree with lila that libraries are generally risk averse I will say the pandemic may have changed that so the pandemic I think made a lot of libraries realize that their fear of risk had put their communities and the Their access to information at risk during the pandemic. So there may be more that are willing to push that envelope now than there were before I actually think that's that is exactly correct. Um, we saw our our numbers of libraries participating in our open libraries program I think double Over the last year Oh, you know, I want I would love to see more risk-taking and daring behavior from libraries Um, so a lot of what we talked about here though so far has been about okay You know, we took books and we scanned them or we made ebooks You know, we took cds made some mp3s, right? But it's you know, the same kinds of works people They're basically consumptive uses for the most part. I want to read a book. I want to listen to music But there's more So digital technology allows entirely new kinds of uses of work And i'm gonna i'm gonna i'm gonna send this over to the innovation guy On the panel here, which is uh, michael Weinberg with two questions So one, you know, how does copyright law deal with things like, you know, machine learning right if I if I if I throw a million books at some You know Convoluted convolutional neural network or whatever the terminology is and it learns something Is that like a derivative work? Like do you have to license that work? Do you need permission? Have you made copies and is the learn is the model itself that is created? A derivative work. So that's one thing Um, and then I suppose the other question is to like, okay digital files Like so, I know you've done a lot on 3d printing for instance And I think we understand that 3d printed works Can be protected by copyright as say sculptures or something along those lines, but like Is the file that is a set of instructions for the 3d printer a copy of the Printed work or not because if it's not then there are no copyright. You know, it's just if there's no copyright issues at all But maybe it is I don't I don't know that seems like a very hard question I'm wondering if you could sort of tackle those sort of uh, those little logic problems. I've set out for you Yeah, um Always happy to tackle a logic problem See, I mean, I think at a high level One of the things that I think people who are you know have all sorts of different Relationships with copyright law and copyright policy will agree on is that there is a strength of copyright law That it is a reasonably flexible doctrine Um, and then it does at least have the capacity to Take a new idea and a new use and try and internalize it to existing law and case law um You know some ways that's a strength in some ways It's a sort of necessity because we haven't seen significant updates in the copyright act in so many years that You know things would really grind to a halt. That was not the case Um, and I think you know, sometimes you can look at that and say there are plenty of high-profile Examples, I mean you mentioned some of them at the beginning of a new use coming into the world And it being litigated to some level sometimes all the way to supreme court And ultimately finding that that use is accommodated within copyright law And that's really I mean those are encouraging examples, right? It's good that those sort of you know thinking about litigation around non-consumptive uses of For search engines or for machine learning like those have generally kind of gone a direction That feels like it's enabling new types of innovation At the same time, it's a really biased sample set, right? Because those are the cases that have An economic engine behind them that a law allows for that litigation And you know courts are not policymakers And so they're looking at the question in a specific context and don't look at questions that aren't pushed in front of them And so there's this I mean, this is a kind of classic public knowledge problem, right? Where when you're thinking about new innovative uses you often don't have a large kind of economic entity or a bunch of people at the beginning saying No, this is going to be really important We really need we really need to figure it out, right? This is a role that public knowledge has historically played over the years to say Well, you know, there's not a constituency for this yet that is big enough to fund a giant lawsuit Or to be able to sort of hold a big rally in washington But it's really something that is that is going to be important and we need to find a way to to accommodate it Um, you know, I mean, you know, we can we can talk about the kind of digital files represented in physical things And how to how to unpack that that's another example Yeah, I could talk about that for hours, but it's another example of of a kind of nuanced understanding of the facts That you need before you apply Copyright doctrines to it, right? If you're like a really thinking through a question like Does a digital file that represents a physical thing In itself as the file represent a copyrightable object or could it could represent infringement? You know like have you need to kind of unpack what is the thing? What is the file? What is the nature of the file? How does it relate to the original object or the new object and then apply copyright law to all of that? Um, that's the kind of thing where sometimes courts are good at that Sometimes policy makers try to be good at that and having uh having you know People in the room who are willing to step back and say let's just analyze The facts without a real economic interest in the outcome even if there's a policy interest in the outcome Um, it can become incredibly useful I do want to kind of touch quickly on on one thing that that's come up a couple times It's just sort of like balance shifting when you move from the physical world to the digital world um, that's actually happens sort of both ways, but You know one of the things that that we've seen this is a good example of courts are not policy makers, right? I mean it is completely legally defensible on a one-off basis to say instead of selling this good I'm going to lease it to you leases are well-recognized And people ask common law like it's a concept everyone's familiar with and one at a time it all makes sense But you step back 10 15 20 years later and you realize what was once a balance where the costs and benefits between Content creators and content, you know users However, you want to find those things were kind of equally ish distributed All of a sudden you've kind of realigned things where many of the benefits Are on the side of the distributors the large rights holders often and many of the costs have been shifted to to the users right to the to the public And I mean that's the kind of thing that's hard to deal with in court, but you think about it from a policy standpoint um You know we we we there are other cases where we make people make a choice between leasing and ownership and those choices have real Impacts, right? So you think about like I think the easiest example Is a kind of warranty of habitability right if you own a house You can choose to lease it to someone and there's a lot of benefits associated with that But that comes with an obligation to maintain the house And like to keep having a relationship to to keep the house going is a usable thing But in the upside is you get to keep the house, right? But the downside is you have an obligation to keep maintaining it The alternative is if you don't want to deal with maintaining the house you just sell the house and you wash your hands of it And I think that you could I mean conceptually that would that that could be a kind of thing where through policy You could say to rights holders. Look you've got a choice, right? If you want to lease these goods That's fine, but you have an obligation right in the case of software Maybe that means perpetual obligation to patch security vulnerabilities in the case of media It means a perpetual obligation to make it usable by you know up-to-date software And it may be worth it on balance for you to To work within those those boundaries because the lease is still a better option for you But if you want to wash your hands of those ongoing obligations that we think of in the context for lease Then you sell it and then you don't have to deal with those obligations But without a kind of policy intervention along those lines You get kind of both benefits of saying I have no obligation to maintain these or keep it going or anything like that And I also I get to keep control of it to the extent that I want and it's beneficial for me to do so Oh, yeah, that is a yeah, that is absolutely a fantastic point I mean when you lease a car people who lease cars, you know Maybe they're spending a little more month to month and they don't have all the benefits of ownership But they can give the car back and get a lot of money, right? You know, it's not like they bought a car and it's like, yeah, you don't really own it You can't resell it But also we're not going to take it back or give you your money back And we're going to charge you the same that we've always charged you. It's like, well, no, you don't just get to Change. Yeah, that's a great point So one of the one of the laws that can sort of get in a way of these sort of common sense approaches is the earlier mentioned dmca in particular The anti-circumvention provisions, you know section 1201, you know, one of the one of the things I'm supposed to remember to do Of course is to promote public knowledge's work. So yes, you know, I mentioned the Kurtzang case public knowledge followed a brief in the Kurtzang case. We did not file an amicus brief in the Bob's Merrill case In the early 20th century, but we do participate Frequently in the 1201 proceedings at the copyright office and I'll just explain them. These aren't things in the further panel so so that's basically You know, you're not allowed to circumvent drm to access a work But the copyright office is empowered to grant exemptions to that for particular uses This year, uh, a new public knowledge attorney, Kathleen Burke testified at the copyright office and and and we submitted Testimony saying that well people ought to be able to You know bypass whatever technological locks are in place that prevent them from repairing video game consoles Because that saves the money lets them continue playing their old games seems common sense yet. It's very controversial Uh in other areas, you know someone wants to bypass, uh, the drm on say Automotive software one of the reasons why the copyright office might deny that request is not to protect the copyright type interests of The automotive software itself The fear isn't people are gonna take out the automotive software on this honda and put it up on the pirate bay And then people will get free copies of automotive software. It's like it's useless if you don't have the car anyway Like they're getting money from the car But instead Other business interests like maybe they don't want you to unlock a particular feature that they want to have in the car But you have to pay to get it or and one of the reasons the copyright office might deny is to say Well, maybe it would be a danger to public safety if people were able to modify there And you know, you just talked about how courts aren't policy makers Yet the copyright office is in this role of a of setting policy On things like public safety in relating to agriculture and automotive and avionics That seem to have very little connection to copyright And i was just wondering if anyone wanted to reflect on this system and perhaps, uh, you know Propose if we maybe need to rethink, uh, any any of the procedures under which it operates I I as someone who's who's played in this system a number of times a number of ways I mean on one hand, I think you could point to this 101 system as a as a as a success In the sense that it is a place where The public has been able to organize to get exemptions for things But I think also that I think that's like a completely short-sighted feeling in the system. I mean, uh, for example, I for example I've been I've been helping with a 3d printer Related exemption for the last couple of cycles And it was so you could use whatever material you wanted in a 3d printer You'd have to buy it from the manufacturer and the first round of objections were like This could create problems for if 3d printers are used in to create airplane parts And it's like the copyright office has no Competency to evaluate that question and like that's not a copyright question If that's the problem the faa can step in but the idea of use of leveraging copyright To deal with that it's just like a bunch of people who don't know what they're talking about including me Fighting about an issue. They don't know what's going on And I think more importantly like the entire conception of the process is a little bit It's a lot Out of whack, right? So the entire system First of all assumes the existence Of a deep public interest community that can get together to organize On the side of various people asking for exemptions It also and then puts the government that is a publicly funded entity and it provides the funding for that side And it puts the government which is a representative of all of the people In a position of sort of trying to arbitrate between different between, you know, usually a large economic stakeholder And some sort of public interest organization It also kind of assumes that every one of the disputes that's going through the process reduces them to an economic Fight because you have a large rights holder that's paying a bunch of money to fight it And so you need a kind of economic angle to rally people around On the kind of pro exemption side But I mean, you know, I can tell you a story about why Using your own material in a 3d printer is a is a primarily an economic issue But I mean fundamentally it's not it's just a kind of it's a it's a it's a freedom to use your stuff issue And that doesn't necessarily come with like a huge number of of people who are willing to pay to do it That doesn't make it an illegitimate concern I mean, there are plenty of examples of other exemptions where people are trying to Break drm on dvds to like make their own You know to do commentary or things like that There are versions of that that are economic but a lot of them are expressive And to sort of say to that expressive Use you need to find an economic way to fund the request Where you're then going to where the where your government that is going to sort of sit in judgment and balance between What you're doing and someone in the any industry about who created the your controls the rights Um, it's just it's like a it's a completely distorted process That really doesn't seem to lend itself towards a wide range of just outcomes So professor metima. Yeah, so I was hoping to get your your input on this question because you know, it seems like You know, you're interested in in sort of the rights of small recruiters in particular And and it seems like the discussions that happen in this 1201 process at the copyright office are very disconnected From from that aspect of what I thought was the fundamental purpose of copyright law Yeah, yeah, and the reason one of the things that really prompted me to want to you know, even before you ask the question was that I really appreciated michael's observations and insights because In in my work, I have emphasized that we have for a long time had a problem In copyright and ip in general in terms of over emphasizing Only the economic interest and only the economic perspective In my work, I I have argued for many years now for a a social justice perspective towards these issues Which some people misunderstand and think that it just means, you know, some sort of like Crazy left us and blow up the whole system, but that's not really what it's all about it's just simply saying that there when you think about the role of Of intellectual property and intellectual property protection In the total political economy It covers a range of needs and impacts and and and and interests Because you're talking about Access to health you're talking about the advancement of our culture You're talking about technological innovation To look at all of that and to look at it only in terms of an economic perspective Is leaving a lot on on on the table and so I think that you know, what What what michael was was was was suggesting is that you know, we need to not Only look at this stuff through an economic lens And to to pick up on some of the things that both michelle and and lila were saying I think that Libraries is a perfect example of this Right, I think one of the things that we definitely have to do That we clearly did not do for example in constructing the dmca Was we didn't really give any real thought to library functions, right? in fact If you look at the way the dmca is structured, which kind of if if one looks at the history of where that came about I mean it grew out of what what I call like the pre of the pre dmca You know copyright wars it grew out of just as michael was describing, you know a very limited context Right. You had these lawsuits with entities like strangely enough playboy and The church of Scientology on one side interesting partners, but whatever and suing, you know people because of unauthorized uploading, you know of their material and you know, the dmca grew out of just focusing in on this Conflict as if it was simply a de-entrous conflict that it's like, okay, let's look at copyright owners. Let's look at internet purveyors And we're going to just sort of try to allocate responsibility between you two guys and you guys will solve the problem and what was missing from that was Not a thought about what's actually there's a third constituency in the room, right? It's called the public Okay, and you know the public We have to think about them And their interests and we have to think about them both from the perspective of rights and responsibilities Right and the fact of the matter is is that that the the dmca just really doesn't You know talk about that doesn't just really doesn't doesn't consider that and so we're left to this You know economic combatant, you know resolution Which is sort of a skewered perspective of what the entire in the entire topography is So I think that we're kind of really at a point now that I would argue that almost everybody like all constituents Have a major gripe with the current landscape and are saying that okay each Of the of the three legs of the stool could each come up with a great argument to say we need to revisit this Right and here's something that I think you've not thought about and I would like you to think about that and From from that perspective, maybe it is time for us to have a conversation You know a policy conversation Revisiting these issues and figuring out taking now that we have 20 years of of growth and retrospect retrospective with us to now figure out Okay, is is is the system working the way that it ought to work and if not, what do we need to do now? Yeah, I think that's a really great observation that there's really no constituency That is particularly happy with the status quo just the issue being Can the different constituencies find a way to agree on ways to fix it that they're all happy with or Are there what sort of trade-offs and compromises and deals have to be made because you know You know, I I you know, I view everything from the user perspective, but you know, I understand reality deals are possible It's just sometimes people don't want to give an inch, you know, because it because it doesn't do any good It doesn't do any good to like make a concession When there's no chance of getting a concession return because that becomes your baseline So you have a lot of problems, but no, I know michelle has as things to say on this general topic So I'd like to throw it over to her So I wish I didn't say I think what we have been pushing and this is what underlines the whole theory of CDL is that public The public interest is greatly served by the libraries and the costs that will be paid by the public if libraries don't have the right to preserve work will be extreme and will Uh last for many many years going forward So just think about historians who cannot verify information because libraries were not able to preserve information whether due to license agreements or non-circumvention Right, so the costs are significant and I think that's one of the reasons why we came up with CDL because Right now in a world where we have the chance to still buy things in physical format It allows us to at least convert that into a digital format for use purposes and also to preserve it because we retain the ownership rights So one of the sort of premises of CDL and I've seen versions of this argument in other contexts is like look We're going to do something with digital files that very closely emulates what we did with physical copies of things And you know, there's much more to the argument than that You've actually got to walk through the case law and the four factors of fair use But that's basically the strongest reason I think that to say that something is a fair use You know from a very high level policy perspective because that it's nothing new And it's what's already happened and it's happened for a long time But that doesn't actually necessarily convince every judge out there And the law is complicated, right? So while I strongly believe that CDL is a fair use You know, what happens if there is a judge out there who says no, it's not this is a profound change, you know You know, you know, how how does the library community? React to that and and you know, how should they react to that in in your opinion? And obviously I would love to hear lila's take on this as well Sure. So this particularly hard question to answer partly because I think CDL is such it's just common sense to me But aside from that Trying to Figure out the strategy if a judge comes down and says, okay, this is infringement. It's not fair use Really depends on the court's reasoning Because with a lot of fair use cases where you're dealing with technology If you read through the cases you can actually see a path to keep the concept and just revise how it's implemented So I think that's the first step is just take a look at the court case Look at the reasoning is there a way to keep CDL that just redesign how it's done Um The second approach is much more challenging because it does actually require libraries to be willing to take a lot of risk And that is challenging license agreements directly where we think that they are Um inequitable and undermine the public interest that was intended by the copyright act Um, and there are any number of ways to do this I know they're ready antitrust efforts to challenge differential pricing where in the print world a library and an individual Would pay exactly the same price for that book Whereas with licensing libraries will pay significantly more. Um, also in instances where the preservation right is Eliminated essentially. There's no ability to eliminate. There's no ability to preserve or to do interlibrary loan I think that there are possibilities Probably as controversial with more not more controversial than CDL Where libraries could challenge license provisions based on preemption based on antitrust based on misuse And based on just unconscionability But would be very very targeted to the purpose of copyright the unique role of libraries in preservation And access and it would have to be I mean all of those would be All of those would be as challenging as trying to defend CDL Lila Sure, so, uh, I guess like michelle. I I am I'm I feel CDL is so just reasonable on its face that Surely a court will agree with this and uh, if we look at the pattern of publishers And authors suing libraries for their common sense use of technology So far libraries have won they've won every single one of those cases So hopefully this comes out that same way And we are fighting really hard to make sure that happens in the case against the internet archive for our control digital lending program The other uh, so michelle raised a lot of really interesting ideas. I mean Look this whole fight could Be completely taken off the table if congress decided to just support control digital lending in a in a really like obvious way either by updating the copyright act or by Passing some kind of a resolution or something to sort of give the give an indication to the court that like look This is common sense this like as a policy matter. This Is something that congress supports, right? So so one can imagine a number of Even at the state level, but I think really at the federal level probably would have to be uh of policy interventions that could prevent 10 years and millions of dollars You know going down the drain fighting this fight and uh just end up with Laws on the books that codify control digital lending kind of like there's laws on the books codifying interlibrary loan which was practice that libraries had done for decades and decades and Congress just wanted to make it clear like yep, that's okay. We think that's a good idea Um, so that's another way to go. It's I I actually think that's Probably at the end of the day harder than winning the court case because our congress is What it is right now. That's pretty hard to get anything done On the other hand the music modernization act happened it got passed and It was a compromise, you know, there there is I will say that there is hope I I know a lot of folks that have been sort of fighting the copyright wars for a long time feel very beaten down by it Um, but I think the music modernization act showed like look on the one hand we want to compensate artists that have been screwed by a system for decades and on the other hand we want to also ensure access to Materials that are not commercially available or that are that should have been public domain, you know a long time ago We want to ensure access to those things Let's do them both and we got that done and so I would say it is not impossible to change copyright law Um in a in a way that actually does satisfy the needs of the public the needs of authors and creators And kind of make everybody happy I know some people are going to think i'm insane for saying that but I really do have hope I think I think this is not actually completely out of You know at a step. I think this is doable You know, and if if I could just tack on to that I mean, I think that you make a really good a really important point About compromise. I mean because you know, the first step is looking at one of the concerns on the other side and I think some of the complaints About the cdl aren't really about cdl as a concept itself It's really more about okay, but You know, it doesn't end up working out that way, you know, what happens when somebody Gets access to a copy and then they do things with it that they aren't supposed to do right And so the the thing of it is is that sitting down and trying to figure out, okay How do we address that part of the equation? Right because Addressing that part of the equation doesn't necessarily mean That we say well, we do away with cdl all together Right, I mean because I could imagine that for example if I were if anybody Ever was was crazy enough to actually want to pay for one of my law review articles because you don't get paid for that stuff and if I felt that somebody Had access to or made extra copies or they shouldn't have them up If the response was well, okay, let's see if we can figure out how to address that The only option from my perspective would not be no it shouldn't happen Right, I mean it might be if I'm interested only in economic side of it I might say well, okay, if you can figure out a way That my economic interest can somehow be accounted for in that And maybe I might not have you know so much more problem with it Um, so again, I'm not saying that that's the only you know only response But I I think that this comes back to we need to sit down and just accept realistically That the way in which people engage With expressive works in the digital world is just simply different From the way that we did in the analog world and to expect that people Will engage with expressive works the way that we need people to do so okay, and to just Lock ourselves into the premise That they're going to get a copy. They're going to open it They're going to look at it. Then they're going to put it back on the shelf and that's it Okay, that's just not the world that we live in today. And so we need to sit down and accept that We have a new reality and that there are some benefits that that flow From that reality there are benefits that flow for example to creators right there are new markets that open up as Michelle Explained it in connection with with beta max right, but then there are also new opportunities for the ways in which users Okay, can engage with works that was simply just not possible in an animal world So I think we need to stop resisting the fact that the future is here And begin to think about how do we accept that in a realistically way and legislate from there? I think that Fantastic way to close out this panel Just sort of looking to the future and really the need for Copyright policy can be quite contentious more so than really almost any other policy area I work on and really the different people Do we need to talk to each other in the spirit of mutual understanding and compromise or Or little is ever going to happen? You know, there's a huge list of questions I have when I got to like one percent of them as expected There are so many issues So I will just promote public knowledge at the end if anyone else has anything to say But you know, we're going to continue public knowledge We're going to continue to work on this not only the rights of users to like own and resell things But also right to repair making sure that copyright claims don't prevent people from like reselling phones and cars and and just like any number of issues as well as the rights of libraries and You know, stay tuned for our next panel, which just the graphic was just up I know it's going to say its name and it went away But there we go promoting the open internet through public knowledge history May 2021 net neutrality I probably will not be moderating that one, but another another key issue area for public knowledge. So Thank you everyone and especially Thank you panelists. I will applaud