 a policy brief that was issued and then was drafted by the Republican Study Committee. And it was asking some pretty fundamental questions about the basis of our copyright laws and a lot of assumptions that we take for granted in the debates around copyright law. And we at Public Knowledge have been interested in copyright reform for quite some time. Some of the more specific ideas you can find on the internet at internetblueprint.org. But the occasion of this memo, I think, it raised the need for a broader conversation on copyright, addressing some more fundamental issues. A conversation that's not gonna left nor right, and it's one that takes a step back and reassesses how the system of laws that's almost as old as the country itself has changed dramatically in just a few decades after the bicentennial. So we need to assess how our copyright laws and whether they fulfill their constitutional purpose to promote the progress of science and musical arts. And also to see how they fit in with and how they reconcile themselves with more fundamental and older principles of law, such as people's rights in real property, in personal property, and in the right to free expression. So to discuss these issues today, we have Jerry Breedon, who's a senior research fellow at the Mercado Center, and an active professor of law at George Winston University. Also Mario Kaminski. Matt Shears, who's vice president of law and policy at the Community or Communications Industry Association. And I'll be joining him as well. My name's Sherwin C., I'm vice president of Legal Affairs and Public Knowledge. So as for the format, will each of us spend about five minutes discussing some of the background issues involved with copyright law and some of the tensions that have arisen between it and its original purpose. And then have a short discussion amongst ourselves about potential solutions and potential ways forward out of these tensions. Then we'll open it up for some questions. So, is that up for the original? Jerry. Thank you, Sherwin. Sherwin said my name's Jerry Breedon, and I'm the editor of a new book called The Copyright Compounds that was sensitive to excess. And it is a pre-market case for copyright reform. It includes essays by conservative and libertarian thinkers such as Rick Lanzalong, Patrick Groening, David Post, Tom Bell, Christina Mulligan, Guy Arado, and others. Now, maybe I won't get too deep into economics. But the thing about it is that copyright's property is more akin to something like tradable commercial conditions. It's this is called a market failure. So if you create a cap and trade system and cap emissions and you have tradable emissions permits and you hand out those permits and they're tradable in the market and they're property. Right? But they're different. They're a statutory property. You can think of also taxicabin downings as statutory created property. You have market failure congestion. You want to ration sort of traffic. So you have these medallions like New York City has that allows taxis to operate. These are very valuable. It costs a million dollars for a taxi and they're on New York City. They're definitely property that they're pretty different. And that's what copyright is more like. Now, when you have statutory created property, it's going to be subject to a three-year cocktail called a knowledge problem. And the thing about a knowledge problem is it deserves a libertarianism. We are very aware of this problem in regulation, right? But the data required for rational economic planning is distributed among individuals. It's sort of outside the possible knowledge of a central planning authority, right? You can't plan, they're also agreeing with how much we need to grow or how many squares to make. Today, you really can't plan what to write down by mental emissions. This is sort of central to conservative with respect to thinking. And it also applies to copyright. How do we know what the right contours of copyright are? Framers, you know, the framers of the Constitution are sort of constitutionally ratified in 1789. And a lot of the same folks were working in the same Congress, in the first Congress, I should say. And in 1790, they passed the first copyright act, right? So they understood what sort of powers they were giving themselves in that first Congress. And they created a copyright act that was limited to 14 years for copyright term, pretty old for 14 more, and included formalities, meaning that you had to register as soon as you get copyright, and you had to renew the copyright for a second term if you wanted to. Today, we have a life of the author plus 70 years, which is a big expansion, and there are no formalities. So, which is right? How do we know? Is it somewhere in between where the framers belong or are we right now? It's very difficult to find out. Now, because the contours of copyright are planned by contours, there's another problem. This is a public choice problem, right? And we, as concerns and returners are very aware of this problem in other areas, right? This is a problem that's causing great benefits and defuse costs. You can think of resumon subsidies where organized special interests will log in to get a government subsidy, and who bears the cost of that? It is a defused public that who does not have, they're going to sort of be, they're going to have to organize to combat that. The same exists in copyright. You have organized special interests, such as Hollywood recording industry in New York publishers, who lobby for stronger and longer copyright at the expense of the public, who get shorter and less tax-based. That was a public end of the term. It's not clear. So, one more thing I think the returns of contours need to be aware of, I think it's going to be a math that's going to touch on, which is that copyrights are not being administered through the common law force as property traditionally is. More and more it is being administered through regulation. So, I think what the RC memo showed is that Republicans, especially of the coming generation, are beginning to understand this, all right? The battle against SOCOM, which I'm going to be sure to remember, was 11th part, 15th part of the act. Republican cosponsors of the bills were the first to drop out. And who stayed until the bitter end was subpoena, when the shift was going down, defending it. I was outframing it, a member of the Screen Act in school. So, as we say in the book, a belief that needs to reform copyright is the correct, limited government position, and it's perfectly compatible with a strong kind of dependent for property rights and free market. So, that's all I'm thinking of. So, my name is Mark Khminsky. I'm the executive director of the Information Society Project at Yale Law School. And I've been researching writing and teaching in this area for a number of years. I'm going to try to stay relatively non-technical, if possible, and touch on three points in my five commitments. The first point I want to touch on is actually a little bit different. Jerry talked about how a more liberal version of copyright or less maximal version of copyright is compatible with a Republican or conservative agenda. I'm going to talk about how a copyright is actually bipartisan or non-partisan. The second point I wanted to make has to do with the role of free trade agreements, which is an area I tend to focus on, and might be surprising to some of you that that actually has interplay with the copyright policy discussion. And the third thing I wanted to discuss briefly is what I'm calling the speech intuition, which has to do with how the American public reacts to copyright law, versus how policymakers can see the copyright law. So, at first point is that copyright is bipartisan or non-partisan as an issue. This might not be as obvious from where you all sit, although it should be, because Congress has been making copyright laws since the 1970s with support from both parties. That same kind of bipartisan agenda exists on the other side as well, where people have been opposing what Congress has been doing from both parties. And this has been reflected in my experience of different organizations I've worked at, where people have worked with academically. So instead of uniting by party line, people tend to unite over intuitions about the nature of copyright, and what copyright naturally is. Whether those intuitions are reflected in US law or not reflected in US law at all. So, I wanted to make two points about the academic understanding of US copyright law. Point one is that US copyright law is the result of constitutionally granted discretion to Congress. It's, as Jerry was saying, not a right. It's Congress's power to make laws in this area. So, academics tend to see copyright as something subject to Congress's discretion. The second point is that copyright law is a distortion, and that distortion might be created to fix market failures, but it is a distortion from what would otherwise occur if copyright law didn't exist. So, the academic puzzle tends to be why does Congress use its discretion the way it does to ramp up the distortion, and why has the treatment of the distortion been moving only in one direction over basically the last 40 years? And this looks to academics like sort of a structural puzzle. It doesn't look like a political issue. So, I just wanted to flag that there are two ways this can be handled by Congress in general. It's either an opportunity for bipartisan collaboration, which is what occurs naturally in this area, or it's an opportunity for one party to really claim these issues and own them, and represent the side that normally doesn't get a voice in Congress. So, the second area I wanted to discuss briefly is the role of free trade agreements. Congress has, as Jerry has mentioned, has a number of people discussed a number of different policy levers that it can use with respect to copyright. There's no one way that copyright law has to look. So, those policy levers include things like term likes, the amount of statutory damages that are provided for in the law, and whether or not they're formalities. So, over the last, I guess almost 100 years at this point, the US has been binding itself to various international agreements that restrict how you can play with those policy levers. And those restrictions vary from being somewhat general. So, for example, Sherman and I were talking earlier about how the Brent Convention requires the US to have copyright formalities, but it's not clear that you have to have those formalities in place for all of the 75 years of US protection. It's also a requirement in a number of free trade agreements to have statutory damages, but it's not fair how big those statutory damages need to be. So, what I wanna do is encourage you to pay attention to what's going on in the free trade agreement area if you become interested in this space, because the USTR is making an executive branch land grab in this area and trying to negotiate entirely without congressional supervision. So, I'll come back to my recommendations at the end of this to say what I think you should actually actively do. And the last part I wanted to cover is to move a little bit away from the copyright as property or copyright is not property conversation, and talk about what's at the end of the other end of the spectrum. So, if copyright is on a spectrum, one end of which looks like property, the other end of that spectrum looks a heck of a lot like speech. And courts have developed a number of reasons why copyright is not in conflict with free speech rights. I don't necessarily personally agree with all of those reasons, but the usual ones that are enumerated are the expression of dichotomy, the existence of fair use, the fact that both the First Amendment and the copyright clause or IP clause exist in constitution. These get offered up as explanations for why the copyright and free speech are irreconcilable. The problem is that to most Americans, that sounds really technical. And so, when you use tools in the area of copyright law that you don't use in libel law, or you don't use what you're doing with hate speech, you run counters to an American intuition about what free speech is and get people upset to the point where they end up protesting legislation. So the big thing I wanted to flag in that area, and I'm sure somebody in the room who talked about this a great length during Q&A, is civil asset forfeiture or the seizure of domain names, where prior to many kind of trial, ICE has been seizing domain names, claiming that they are part of assets that have been used in the commission of copyright crimes. That, to your average American, is when you look like censorship. So, yeah. So, I just want to remind you that years and with the Interim Communications Industry Association, I also teach a little bit on my idea version. And actually, let me start when I teach. And the thing that first drew me to copyright, when I think about first, is what Margo referred to as the distortion. And I just wanted to define that really clearly. Because it's kind of interesting, it's counterintuitive that copyright, in fact, all intellectual property is a rectal policy choice. And it's a counterintuitive policy choice in this sense. It was a decision that in the short run, we're going to restrict access to ideas. We're going to control ideas. We're going to regulate ideas in some sense. Because we've come to the conclusion that doing that in a short run is actually going to create more access in the long run. So, it's cool in that counterintuitive way that inoculations are cool, right? You give somebody a little bit of something bad and it actually protects them from it. And so, I always found that really interesting. And that's one of the things that drew me to IP, is that we're restricting access to create more ideas. We limit ideas in the short run. And that's fun, but it also sort of points out that you can have too much of a good thing. And actually, if the SOFA pivoted maybe we had earlier in the year shows that anything, it's that there's broad consensus that there is definitely a point where we can cross way too much of a good thing. And so, it's in that context that we should think about this privacy, I'm sorry, property regulation thing that Jerry referred to. Because copyright is a sort of statutory property right, or a fiat property you can say, it's only property so much as we treat it like property and increasingly we don't. Long ago, we used to have rules that said who owns what. There was a big book that you could go and consult somewhere. And people generally think about that. When you talk about copyright, everyone sort of assumes, well, I can go to the PTO and I can see who owns every patent, right? So surely, surely I can do that with copyright. Because I can do that with real property. Here in the district, you can go down to the department of real estate assessments or whatever and figure out who owns every square inch of the district. We know that, that information is recorded. And yet with copyright, we threw that record out the window. It happened internationally about a century ago, but the US didn't actually make the decision to throw all those records away until we formally implemented the earned convention. And that was only in the 1980s. So in that sense, it really copyright is increasingly a lot less like property. And we now do a lot of other things that make it look less like property more like regulation. So we have under the Digital Millennium Copyright Act this sort of triennial rulemaking every year that every, sorry, three years, the Copyright Office puts out a notice and people who want to use copyrighted content that is secured by digital locks for certain purposes that the digital locks don't permit have to go to the Copyright Office and ask for permission to circumvent these locks. And so you have groups like Advocates for the Blind coming to the Copyright Office and saying, please, can blind people circumvent the locks on their e-books so they can read the e-books that they bought? And they have to ask every three years. You have media educators going and asking for the permission to break the digital locks on DVDs so they can form, say, movie clips. And this is particularly relevant in, say, film studies where you might want to compare Tarantino's direction to his predecessors or Hitchcock to someone else, right? You sort of need to make compilations of clips and the DVD encryption doesn't allow that so you have to break the lock, except, hey, that's illegal. And not like that, just downloading the software and distributing the software that allows media educators to do this. Well, that's a violation law too. So if people coming to the government saying, please, in this regulatory process, can we do these things? And that, I've sat through those things. You're in the bowels of the Copyright Office and I'm in this room going through all these hearings and that can be a lot of things, but that's not proper, right? That's regulation. I started my legal career as a regulatory lawyer and so I know what it looks like if it's pretty much the same thing. So it's only property so much as we treat it like proper and as I said, increasingly we're not doing that. So I mentioned the DMCA, Triennial Rulemaking, the fact that we don't have formalities. We also don't have what we now have in copyrighted, we call statutory damages. And those are sort of fixed arbitrary numbers that mean that if there's a violation of your right, you get some minimum, some maximum number, which is just more or less pulled out of the half by a judge and we don't do that with real property. If you trespass on land, if we get in a car accident and I injure you or I damage your car, if I destroy some property that belongs to you, no, a judge doesn't sort of pick a magical number out of a hat to say, this is how much you're entitled to. I have to show up and prove my harm. And this is sort of a common understanding of property is when one person has to compensate another for hurting someone or injuring or taking things, you have to demonstrate your injury. This is a common characteristic of a property that we've gotten rid of in copyright law. And perhaps there was some logic to it, but what's happened is that number seems like it's, it gets ratcheted up every year that it's the index for inflation in some developing country. And so every couple of decades we had a zero on hand and pretty soon you have these cases where there's $1 billion liabilities for technology companies, for example, that are being threatened for deploying new technology products. Again, this really doesn't look like property so much as it does in regulation. And then the last thing I'll mention is that sort of the DMCA triangle isn't the only kind of regulatory thing that the Copyright Act creates. We are right now in the midst of a discussion about the internet radio rates, which is, I think generally speaking, an example of government price-fixing. The way internet radio and all performance licensing is done is there's an argument or a proceeding for a government, a Copyright Office employee, a bureaucrat in the Copyright Royalty Board who after hearing from parties more or less sets a price and says, this is the price you have to pay for this good and that is, that's the price that's paid. There's no sort of free market negotiation and moreover, depending on the industry you're in, you pay different rates and so it shouldn't surprise people that the older the industry is, the more sort of established it is, you pay lower rates and newer industries like internet radio pay far higher rates. So we have this sort of classic example of a regulatory process that favors incumbents and discriminates against human rights and that's, again, not a very good example of property work. So there's solutions we can discuss for all of those things, but the one we, why don't we get back to it, okay? So thanks, I'm gonna throw my panelists out at this point. One of the things that I wanted to follow on what that was talking about, well, you knew something about some of the comparisons between thinking of copyrights and intellectual property as real property. I wanted to highlight instead a living tension between intellectual property and personal property and chance, the ability of people to control objects. And this is something that actually exists in tension with copyright law. For example, we give copyright owners the right to restrict certain uses of their works, to restrict the ability of people to reproduce them, the ability of people to make public performances of those works, the ability of people to distribute copies of those works and a variety of other things. On the other hand, if you're the owner of personal property, if you're the owner of channels, you should have the right to alienate those works, to alienate those things, those objects. I should be able to sell them. I should be able to give them away, lend them, rent them. I should be able to reduce them. I should be able to enjoy them as I want. I should be able to read a paperback that I own at whatever time I'd like, how I'd like. I should be able to run a computer program that I know or play an MV3. And the thing is, we actually see copyrights and those rights of personal property coming into contention with each other in a number of ways. So the right, the exclusive right of a copyright owner to restrict distribution, right? The fact that a copyright owner can say, you can't distribute copies of my book, comes directly into conflict with a consumer's right to have a lawful and made book and buy and sell it and rent it and lend it. We typically deal with that with the first sale doctrine. It's a piece of copyright law that's existed for centuries. And it says that the owner of a particular copy that's lawfully made gets to alienate that to where they want. They get to distribute it the way they want. The thing is, that resolution of this initial tension changes when we start talking about digital media. For example, my ability to lend or give away or sell something that I've bought as a digital file changes drastically because let's say I bought an MV3 off the web, I legally purchased a music track and it now lives, it's tangible assets. It lives as a series of bits on my hard drive. Now, if I bought a CD, I could give that away and that's not a problem, I could lend it and so on. What do I do with the file on my hard drive? I suppose I could give my entire hard drive to somebody or lend it to them, but what if I want to transfer that file to somebody else? Well, in that case, I'm making a reproduction of that file and that's not something that's included in the first sale doctrine. So, even if I were to send that file on to somebody else and delete all copies of it that I own, so I've washed my hands of it, I no longer own a copy of it that somebody else now has it. It's the same sort of one to one transaction as if I've just given them a CD and yet copyright law would call that an infringement. So the fact that we moved from a world of physical media to more of a digital media means that that tension between a copyright owner and the property owner is a little bit out of plan. Another example of how this works, I think nobody disputes the fact that somebody who buys a copy of a copyrighted work has to use that to get to player LP, to get to player DVD, read your book and so on. Now the problem, a problem arises when we're talking about digital media because pretty much every form of digital media that I'm going to use when I'm using copies that native it, that I run a computer program, copies of that computer program get made in the ram through the computer. If I play a movie that I bought it gets bothered or it gets, you know, copies of it get made when it's stored in long-term storage on my hard drive and chunks of that will get copied into ram because the hard drive isn't fast enough to play that movie to me. So every single time you use a piece of digital media music, movies and e-book, that work gets copies getting made. Now in 1980 Congress decided that we didn't want to hold every single computer user viable around a computer program so that these ram copies would result in infringements every single time. So we have in the law this exception that says that you can, that it's not the infringements. If copies are made of a computer program that's essential steps in the use of that program by the owner of that copy. Now a couple of problems are that in 1980 nobody anticipated that we'd have digital media that works computer programs. Nobody anticipated that the primary means of consuming media, of consuming copyrighted works was going to be digital copies. And so now every time I put play on an MP3 player, every time I put play to watch a movie on a computer there's an active question as to whether or not those ram copies are infringing. And that's something that law again doesn't account for. And this creates a thread of liability that persists throughout very visual works that we have. And as more and more works are more in a digital format and are going to be distributed on digital media like DVDs and CDs, we're going to see an increase in control of the distributor and the copyright owner and an increase in control of the consumer and the physical property owner. So that's a way in which I think we're starting to, because the law was written in certain ways, lose a balance between the purposes of the copyright law and its intent to balance the rights of the copyright and the rights of everyone else. So having set up these various issues and these various problems, I think we might start an open discussion, maybe start with Jerry and some of his ideas about what we might look for and where we're going. Okay, so I guess now we've sort of set up the problem and learned some solutions. I don't have sort of terribly prescriptive solutions. My interest is sort of mostly making the case that conservatives and libertarians should not be opposed to reform. And in fact, it should be leading this reform as part of a small government program. So that's, I can give you some sort of broad outlines. I think the first thing we should do is start out where we have a lot of common ground with folks who are more property rights oriented or the folks who are more reform oriented, what sort of common ground do we have? Recently in National Review, James B. DeLong, who's a law known conservative economist at the field of tech and telecom, he wrote an essay about TPRSC policy. And for those of you who know Jim DeLong, he is a very strong sort of property rights advocate and a very strong defender of copyright. I think he's testified that they were covered copyright enforcement in Congress. And so in his essay National Review, he disagreed with many of the arguments in the RSC policy, I think. But he has some things to say that worth. I thought I was just sort of refreshing the common ground that I spoke to. Here's what he said. I'm gonna quote Bear with me. I think this is important. I'm gonna quote him. He says, some of the specific problems noted in the paper in the RSC paper and elsewhere are very real. Copyright terms are too long. Rights are overly convoluted and hard to pin down. Transactions cost way too high. The easy availability of copyrighting is after failing to create a community or from works for which copyright holders are unknown and present problems. But list this long, you probably need a clean sheet rewrite of the copyright law. Now he goes on to not be very optimistic about getting that clean sheet rewrite. We'll probably take for that, I'm probably more optimistic. But boy, I agree with everything he's saying in there. Copyright terms are too long. You don't have any knowledge. So what does he propose? Well, he goes on. He has to specifically propose this. I'm gonna quote him again. Quote, many specific reforms should be enacted. My list would include shorter copyright terms, a requirement of registration and renewal to show seriousness, a one time requirement of registration of existing works to get rid of the work and work problem and centralized data pieces to reduce transaction costs. So now, that's just a long time who is again, conservative, concerned about property rights and very concerned about Congress. What he's saying matches up very nicely with the reforms that Tom DeVebel has outlined in our book. Tom DeVebel is a law professor and an expert in copyright at Chapman University School of Law. And he has several proposals that don't go through all. One is sort of escaping from the farm intervention. But among the others, he says, let's reinstate the Founders' Copyright Act, right? Do you remember? 1789, the Constitution was ratified, 1790, the First Copyright Act. It is 14 years for you, 14 more years, 20 years of protection. And you have them now, so you have to rest, you have to see that agreement. So given all that, I think we can see it as a broad agreement, certainly among those on the sort of big template, we think the terms are too long. The lack of formalities have created more and more some problem. And I would add to that that we need to be better, to have better due process in copyright enforcement, right? And so the libertarians have for years been concerned about to use passive work through laws to seize personal property by trial and the same is happening in our country. Thanks, Margo. Margo, I know you want to talk about a forfeiture, but you also mentioned the issue of formalities frequently, and that's something Jared just talked about. I was wondering if we could go a little bit into that. So the idea that you have formalities, it is the idea that you would require, like I guess before the U.S. Science and Burn Convention, it was a requirement for people to get a copyright that you would register at the Copyright Office for this. You'd have to go through a series of groups and pay with the, and so on. So I think the rationale for doing away with this is it would make it very difficult for people to get a copyright. So why would we want to re-institute that? Either of them would be good. Oh, I don't think we want to make it too easy. So this right now that I've written in some notes, this is now copyright. And so if anybody ever wanted to use this, I would have to license it to why create those transactions costs. We should make it a little bit difficult where if I, this is a serious work that I want protection for this, I should take a step. It's not, we shouldn't be an owner of a step. We have to earn that now. I could foresee in the future where formalities are back in place where I can go on my tool website and register running my work. Shouldn't cost too much, right? Because, again, it's going to be done digitally. But I should take some step to signal that I'm serious about that I want a copyright. So that's going to sort of shrink the number of works that are copyrighted to just that we actually want the copyright to be second. But it has sort of the effect of creating a register that it gets sort of the order of work from what we've been talking about. But also if somebody finds my work, at some point, wants to know if they get a license, if I'm going to be able to get it to find it. I just wanted to mention that one of the rationales for having no formalities internationally is that it was a hurdle where it was seen as a hurdle for an author to go into the new country industry with their work in the country and have to first register their work before it would be copyright contracted. I think with that rationale, I've been talking a lot about information costs and registries and what that looks like now versus what that looked like 100 years ago. A lot of rationale for having registration on an international level is disappearing and the cost of not having it tonight at this point would be higher. So you want to also talk about some of the issues about forfeiture. So I'm going to be really brief on my policies and projections. I think I'm out of two of three points I made. One is the speech point and the other is the trade point. So on the issue of speech, Zoe Loughman actually just put a proposal in front of Reddit, readers saying that she proposes putting some kind of amendment to the description of civil asset forfeiture in copyright law, which would require notice to web operators prior to the seizure of domain names and an opportunity for them to defend themselves before domain names are seized. I think that sounds like a fairly good proposal. The second area of trend forks is trade. Trade has two active issues right now. One is the anti-counterfeiting trade agreement, progress of supervision or lack thereof. The other is the trans-specific partnership agreement and progress of supervision or lack thereof. Currently there is no fast-track authorization in play or a reasonable trade promotion authority. So the US trade representative's office is going off and negotiating a trans-specific partnership agreement with a number of foreign countries, actually fairly common right now, they're in New Zealand. And there's no sort of rule of law for how that negotiation is going to end up actually coming back to Congress or it is going to at all. The reason I say if it's going to is because USTR has claimed that the anti-counterfeiting trade agreement does not ever need to come in front of Congress. And that was authorized by the Pro IP Act of 2008, which is very questionable. And I want to flag the massive nature of, I was just writing earlier as the executive branch of my grad in this area. Harold Coe, who was my transnational law professor full disclosure when I was in law school, has gone around describing Congress's opposition to the ACTA as a quasi-constitutional custom, a widespread and consistent practice of executive branch activity that Congress finds conduct has essentially accepted. And Congress's conduct in this area is doing nothing. So if you think that you approve executive branch negotiations in international agreements by doing nothing, you're gonna do nothing prospective active. If you would like to reassert control of the executive branch, please do something. That's a good idea. I do. So I actually didn't outline any sort of specific solutions and I do have some specific solutions that I'd like to put in front of all time. I also want to speak a little bit more not to belabor the point, but to the formalities issue because we keep talking about this. It's just fundamentally important. We encounter it every day, I'll say a half. So you go to a website and you buy a product and you buy a pair of shoes or something or you buy Jerry's book online. And then next week you start getting email from those guys. And you're like, I didn't think I wanted to email them. What happened is, is somewhere on the order form there was a box and it said, I'd like to get email from you about your updates and other interesting policy stuff or about what are their shoes yourself or anything. And the box was checked, it was pre-checked, right? You didn't check it, it started unchecked. You had to uncheck the box, you just didn't see it. Unchecking the box is opting out. So if the box is not checked, that's what we call an opt-in system. You have to make some sort of affirmative decision saying, I want this. And that's the way copyright was for a long time. The box was unchecked. You had to check the box. You had to make some affirmative step and say, you know what, I want my notes that I took today to be copyright protected. I wanted the emails that I'm sending to my colleagues to be protected. I wanted my Facebook posts and Twitter accounts. You had to check the box for all of those. And then the reality was, most of the time, you just didn't care about checking the box because nobody really wants 120 years of protection in their emails. Jerry doesn't want 120 years of protection in his notes. That is why. And so we sort of didn't have to worry about that. But then when you get rid of formalities, when you get rid of any need to go to the government or whomever and say, I want protection, that's like checking the box. Now you have to opt out of the system and say, I don't want this. Just the same reason you're getting those emails that you really didn't want. It's more trouble to uncheck the box often than it is to just deal with it. So what happens is every work, every time we fix something, every photograph you take, all those things are instantaneously protected whether or not the protectionally interests you. And what happens is that means that administrative costs, transaction costs, as economists would say, attach to everything instantaneously. And it's actually really hard to uncheck the box. So that's a policy choice we made. We went from an opt-in system to an opt-out system. And now we're finding that because people didn't opt out decades ago, it's really hard to use work. So press pool photographs from World War II. It's difficult to preserve those. They're rotting away in libraries, old films. The Holocaust Museum has preservation problems because they don't know who owns certain copyrighted works that they're in their possession. And it may well be that the owners are deceased and the survivors don't know that they inherited those rights. So these administrative costs have serious consequences. This is what we call the working works problem. And I think I publicly disagree with Jim DeLong on a lot of things, but on this issue, he and I are on the same page, that having an opt-out system has created a lot of administrative costs. So Congress has considered orphan works legislation in the past. It's actually gotten a lot of consideration that advanced substantially some years ago. And that's something that could be considered. Another thing that can be considered is, as I refer to statutory damages, reconsidering the circumstances in which those apply. Having them apply in all cases at all times, particularly in relation to secondary liability where you're suing a third party for something that somebody else did, that probably merits reconsideration. And finally, I think sort of deregulating, I don't mean deregulating the common sense, but getting away from the sort of regulatory nature of copyright is really important. And the Internet Radio Fairness Act is one example of trying to make copyrights administration more equitable and less sort of regulatory. We also discussed the DMCA-triennial process, which is very regulatory, and while there's nothing before Congress that they could address that, that's certainly something that could also merit consideration. So there are a number of solutions that can be explored. Those are just some discreetness about. Thanks. You know, actually, Matt, you mentioned the idea that it being sort of an opt-out system leads to all sorts of problems. It leads to an orphan works problem because you have all of these powers and penalties that are automatically assigned, whether you know who has the power to wield them or not, right? So some unknown person has a copyright in these photographs that need to be reproduced if they're going to be preserved. It leads to another problem, though, the fact that you have this opt-out system, and that you would end up with a system of liability that's incredibly powerful and incredibly pervasive. The fact that these notes are copyrighted, that my blog post was copyrighted, that my email is copyrighted automatically, means that I now have the ability to bring suit against somebody for making particular uses of those things. Somebody who forwards it on has made copies of it. Now, what sort of books do I have in litigation? Now, that might not go all the way, it might not be enough for me to prevail in court, but it's certainly enough for me to, without getting sanctioned, send a nasty letter to somebody threatening to tell them to stop doing whatever it is that they're doing and making fun of me. And that puts a chill on speech generally. It provides a means by which people can use our existing system. So that's, I think that there's some need to discuss what the remedies are that we have available for copyright and how flexible, how it could be made more flexible, how to get more certainty within those ranges that we have, those incredibly large ranges of damages that we have. Also, I think I was talking about the ability of consumers and the owners of copies to be able to make use of those copies to treat them as their personal property. I think making sure that we have amendments in place to the Copyright Act that let them do that, that will update the way that we can serve for the sale, the way that we can serve essential steps in using things digitally is necessary. People's ability to actually own the things that they bought, it's not just a consumer issue, it's just a fundamental issue of personal property. And that applies both to restrictions that have come up almost by accident by virtue of the way computers work. And it also applies to active restrictions that manufacturers will place upon digital media, such as digital rights management or other, or maybe contractual terms that you include in these long end user rights and agreements that contractually reward the restrict of how people can use their things, even though it's buried within pages and pages of 10 point text, that you actually, if somebody actually tried to read all of those texts, it would end up costing the country billions of dollars in productivity every year. So I think there's a handful of ideas that can be forward on there. I was just gonna say, you described, if you remember, the Amazon, the human example over there, were they actually also built from Dewey's novels? Oh yeah, yeah, yeah, I mean, yeah. So the fact is, if you buy a new book, you click a big button that says buy, you'd like to think that means that you actually own that copy of that book. But regardless of where the original lies in the title, since technologically, the publisher often has the ability to delete that from the Kindle or from your notebook, there were people who had bought copies of 1984 of all things on Amazon. And these copies of 1984 ended up disappearing down the memory hole because there was some dispute with the publishers and Amazon decided to remove them from people's Kindles. Actually, even more basically, somebody bought some books from Martin Noble and they had them on their notebook. And they canceled one of their credit cards. The credit card that they had used to buy those particular books. And since they had been identified by their credit card number and not by some other account, when they canceled that credit card, the book disappeared. So there's many ways in which some of them legally, some of them technologically, people are having less and less control over the things that they thought. So unless the panel has any more thoughts to add to this, I welcome any questions in the audience. Such as the registration requirement. So would you be imposing a more honorous option requirement or you said that that was an option requirement as it applies to all revenue? So the point is that this is true that in order to propose a statutory damage is one will need to register to work. Of course, that generally doesn't happen until litigation is contemplated. So the vast majority of the life of the vast majority of works, there is no registration unless the right holder did so ahead of time. So in the example that Sharon referred to about say, intimidating litigation. So one example that comes to mind is the voting machine manufacturer, D-Bolt, was, had technology was compromised more or less. And so it's possible to commit vote from by messing around with the machines. And so an advocacy organization put these emails which leaked that more or less, I think acknowledged the problem but didn't do anything about it on the internet. And they, the voting machine company attempted to suppress this conversation by bringing copyright litigation against the advocacy group. So people wouldn't know their machine was compromised. Now that suit, statutory damages isn't really an issue. And practically speaking as a litigation matter, you don't have to perfect your registration in that case in order to send people a lot of nasty letters. So it is true that if you want statutory damages, you got to jump through the hoops in the copyright office but from a practical matter, you're intimidating a fact of litigation to be achieved one before you have to write your registration. I think also part of your question was, is it's overpurposing more or less? And the answer is no, because right now the folks who are serious about exercising the copyrights and wants to literally take a cap to register is exactly what we're proposing. We're saying people who are serious about their copyrights should, you know, basically if you want that privilege, you should sort of signal that's what you want. So it's no more or less. Now me, I don't want to exercise my copyright over my notes. So I don't need to register. So it's not any more or less for me because I'm not going to follow the copyright for this and yeah, that's fine. That's right. If you want protection, no problem. You can have protection, all you have to do is just go to a website, fill out a form, you can have protection for me. Finally, that, don't have to do it. So just one nice detail on that report. When you have an opt-out versus opt-in system, it really, it says a lot about what you think the majority of people are on their want. So generally speaking, you have to opt-in to magazine institutions, right? It's not like so many magazines start showing up in your house and you have to send them all back, but that would be really onerous because the reality is you probably don't want many magazines, maybe a few of them, well, sorry. The one place where we have to opt-out and everybody thinks it's a hassle is junk mail, right? I mean, it's a hassle. You actually have to go through and jump through some moves. I just moved getting a ton of junk mail in my house because I just couldn't help it. If you haven't gotten an opt-in out and sending the notice to the direct marketing association, those guys say stop sending me junk mail. So I'm not getting a lot of magazines in my house. We get any wire, but not a lot of others, but I am getting a lot of junk mail, right? Because the sort of how we set the default rule represents what we think here. And so the way we have the default rule set right now, it represents our policy assumption that everybody wants protection over everything and all the time. And that's probably something that merits re-examination at a very philosophical level. But that means you don't have to wrestle with that very complicated, not complicated, but very foundational question before you start looking at other sort of narrower cases that we've talked about. Do you think that there's actually any way for digital goods or items without sort of also dealing with some sort of a technological mechanism or software-based mechanism to ensure actual transference occurs? I don't think you need to have that in the legislation necessarily. I mean, if you want to have, if you want to make it legal for somebody to forward and delete, you can do that without requiring forward and delete systems as long as you make it so that intent matters, so that how that transfer happens matters. And you know, the idea of intent mattering in areas of copyright liability isn't a radical one either. I mean, you can see how it applies in very use, right? Anytime that you're asking whether or not something's of fair use, you're asking what the intent was of the use. So I mean, I think we don't have requirements when people sell CDs online that there'd be some sort of enforcement mechanism to make sure that they never copy it. You don't have an enforcement mechanism with something that sells a book to make sure that they have a Xerox stick in the past. So I don't think that needs to be built into the statute. Now, certainly we want a system where if somebody reported to be doing forward and delete, and they never did delete part of it, they'd still be liable. I don't think that's a difficult statute for this. So I know that a number of proposals for reform encounter severe obstacles because of treaties. Treaties that when they're sold, they may be sold on the basis that they don't require any changes in US law, but also they don't permit any changes in US law. And I'm told that in the TPP, for example, even though most people think that the current copyright extension to life was 70 years was a mistake, at least the draft that was leaked last year of TPP would mandate globally the mistake that we made, which might not require a change in the law, but would prohibit us from fixing that mistake in US law. On formalities under the Byrd Convention, on copyright term under trips, I think it was, on the copyright term as it may be extended further in TPP, how do we make these changes? You know, yeah, that's an excellent question. And I think it depends, some of these changes are harder than others. I would imagine that where you have sort of explicit remedies for countries against each other for violation for breach of terms of a particular agreement, it gets a lot harder. So we try to not copyright terms back below the burden minimum would actually be very difficult. On the other hand, if you're talking about just agreements that are sort of or that don't necessarily have trade penalties between countries, it's basically a question of asking, well, if another country wants to consider the laws of the United States and breach, they might do that and can have an association on that. In the meantime though, it's really not the place of the US trade representative or the executive branch to determine what the laws of the United States are. That is entirely in Congress. So my short answer is I think you've been on exactly the major problem with policy reforms in this area, which is that we're stuck based on what USTR is doing in this direction and so on. No, so I certainly have to suggest that I think it would violate international obligations. So we could rationalize our statutory damages. There's no international strength there. In fact, most countries don't have statutory damages. And we go around saying, well, you should have something like this and then, you know, fund use that. Getting away from our sort of regulatory price facing approach that we see in copyright and the copyright work proceeding. Certainly, getting away from the system that discriminates against one industry or another. There's no strength there. Making our DMCA process a little bit less bureaucratic, we have engaged in some free trade or bilateral free trade agreements. And generally, the DMCA part of it has been one of the more controversial parts. So we do have some flexibility to fix those things. There's a lot of things that we can do without running a file of international obligations. Although it is true that we have tied our hands on some of these questions like formalities and the sort of the long term. Even our, the fiber property that our previous register or copyrights acknowledged that it comes to take this long. But yeah, we do have international obligations on that that sort of set the floor there. And that's unfortunate, but we can work around some of the problems with these other cases too. And I think, you know, I don't want to be advocating purely for, you know, unilateralism in international agreements. You know, sometimes I can be a good thing, but I think the main point isn't so much that we should just go forward and do this, but that just because something's been included in a bilateral free trade agreement, that it's been sort of part of the template that we've used in international negotiations before doesn't mean that it's something that we need to accept as we give and never to be negotiated and never to be addressed again. The policies of the United States change over the years. The laws of the United States change over the years. And the same should be true of what we push for in our international agreements. I would agree with what everybody said, and maybe I'll be the more sort of full-stop optimistic here and say that we can really negotiate, so we can. It all sort of matters what the United States and what you certainly consider it. Yeah. You guys have talked to a certain extent about when the universe is at a year, basically. If you don't like it the way that it is now, and how much shore should it be, or on what levels or what is, you know, just sort of, and what's the market equilibrium there, I guess, in order to still make sure that the author is, you know, has the ability to be properly compensated for their work versus their political work. I mean, I think it's, as I said, it's a very, very tough capital to do because there's so many parameters that you have to consider, such as the length of the term, but it's also to have them now with what sort of things are included in copyright versus what sort of different moving parts. Look, I was commenting. Tom Bell recommends that we go back to the founder's copyright. It's 14 years, we need to workforce more for the 28 years of protection. I think the answer lies somewhere between, you know, that, because it's called a floor, and it's called what we have now, ceiling. So somewhere between that, I think it's a lot closer to that beginning than it is to what we're now. So it's something that has been exercised for Congress, but we're way past whatever that in the following analysis, I think. I think it also might be nice to shift the burden of proof a little bit to the current distribution system and ask what we're getting out of those extra last years of copyright protection protection, because I think there's not, to my knowledge, a whole lot of evidence about what 70 years after death does versus what 50 years done, sort of 30 years done, sort of 20 years does. Yeah, I can just say one thing, that this is a variable, which is really odd. So a 10-year-old who has come to think that today if I was to copyright and lived to be 100, gets his life to 70 years, now a 70-year-old who if I was to copyright today and dies tomorrow. It gets completely different for the same types of works as completely different works, that's not rational. Those are very least. They should be sort of system-typed and things like that, so we all are the same. So the whole reason why we went to this sort of life of the author plus the term was in part designed, to protect heirs, and the thinking was, oh well, we wouldn't want these author's children to be penniless, because then the author dies and suddenly they lose all their protection. So we'll protect the heirs of him, so that's what we have in the language. And then we decided, well, we should protect the heirs and the heirs, and the heirs, and the heirs, and the heirs, and that's how we get a 70-year-old, which is sort of providing protection for the great-grandchildren of Robert Frost or whatever. So if you're wondering why we came up with that for a long time, I don't know if that's why. But to follow up on the question, the length of the term is one of the problems, but it's also the fact that there's no need to show up and say that you're still interested. So I don't pay my property taxes. If I demonstrate to the district company that I'm no longer interested in my house, there's a mechanism whereby they come along and they say, well, we can put this line to better views. There's actually a great example that Michael Huller describes in his book, Rilakkakon, where in the 50s, some serial company bought off neighbor land in the Yukon. They divided it up into inch-sized parcels, and they put the land to the inch of the Yukon and serialized all these different kids. It's like kids around the country were all excited because they only own each of the Yukon. Well, I mean, not surprisingly, most of those kids didn't pay their property taxes on their each of the Yukon. So what happened? Yes, it happens. And so what happened is, is the Yukon government was like, hey, yo, I don't need to pay taxes on this land. Well, maybe they seized it. And some smart guy sent a bag of toothpicks to the government and said, can you fence in my inch and I'll pay back the property taxes? But I mean, look, the vast majority of these people were really interested in this. And so we had this assembly mechanism, this was sort of Huller's point, that the administration of the property is a natural assembly mechanism when people demonstrate that they don't have interest in the property anymore. And there's no obligation on our systems that demonstrate you're still interested in their property. So if you had people had to come back and say, I'll pay a penny, I still want my copyright, a lot of people wouldn't do that and not to fix a lot of these problems. It's that you give the right and there's no obligation to demonstrate interest over a century. That's, it's the two things working together. It's the problem of absence of any sort of registry system and formality and the long term. It crosses this problem. Yeah. Oh, just with regards to the term line, I think there's, taking the founders fortune of fortune as a minimum, I think it makes some sense. I mean, just as a lower bound of what we're looking at. A lot of commercial copyrighted works, their value in exploiting them by the copyright owners is really the vast majority of them is recouped within the first few years of their release. There was a study fairly recently, and I'm afraid I'm right on by whom that suggested that most of the value of the vast majority of works will be gotten harder within the first 30 years of its existence or so. That's just one study. There's going to be numbers that will vary depending upon all sorts of variables, but I think it suggests that we are, that that's not a bad place to start looking. I mean, how this is going to sort of follow the one that you just said. Now this contract has, or registration requirements, you have to show up and say, I want the transaction. And at the end of those 14 years, you have to say, I want another. And the vast majority of folks who said they wanted the first 14 years didn't show up to ask for the second 14 years. And so it went into the public domain. And so to your point, if nothing else, that opting in, so that you could keep, this is not what I'm going to have again, it would be better if you just keep the terms that we have now, but maybe so that every couple of years you have to say, I want it. So you keep the same term. But by making sure you have to go in and opt in after 30 years, if that's the case, that's when you get exhausted. 30 years from now, people are really going to pay for my vibrates or probably not. So at that point, stop registering copyright and it goes into the public domain where anybody can use it. And there's all sorts of variants you can have on proposals like these. I don't think there's any sort of hard and fast rule. One of the things we can do is also we can adjust the amount of the availability of certain types of remedies, depending upon whether you're able or not. What sorts of damages, what sorts of injunctions are available to you depending upon whether or not you've exercised, and if you express that desire to continue exercising your copyright. Actually that's a good point because not to really geek out, but the international law generally leaves the countries their own choice about what remedies to provide, how to administer the systems. So if you want to adjust the remedies that are available based on registration, probably no international legal constraints to do on that. So I think we've gone past an hour or so. If there aren't any other questions, does anybody have an item or what is it like to wrap up? So I'd like to thank you all again for coming. Again, this is just the beginning of a much longer, much broader conversation there. I'd love to continue to do in the coming months and let the years to come.