 podium for recording purposes, if no other. So let me start by thanking everyone here for the very kind invitation. It's lovely to be in Dublin. It's my first visit to Ireland, and I've enjoyed it immensely thus far, and I particularly enjoyed that story. I have a bit of knowledge of the history of Ireland in the copyright issues because, of course, not a thousand-plus years ago, but rather a bit more recently than that, the Irish publishing industry was, in fact, an enormous force. Those in England would say for piracy, those in Ireland would say for knowledge. So I think there's an enormous amount that history has to teach us about copyright, and I generally can't go back as far as that, but I think the past hundred years have actually given us a very ripe store of lessons to learn from. Particularly in regard to the topic I want to talk about here today, the question of innovation and copyright and the relationship between them. Certainly, in my view, copyright and new technologies have been entangled from their very outset. It's sort of old hat to say that copyright was the result, in essence, of the printing press. Prior to that, although it does appear there were battles fought regarding piracy long before the printing press, it was the printing press, of course, that really made it necessary to erect a legal regime to protect creators and other rights holders once it became very inexpensive, relatively speaking, to make reproductions. I could understand the king's decision to each, according to their effort put in the copy in a day when that effort was considerable. It became harder as technology moved along, and, of course, today with digital technologies, the challenge is still with us. So I want to say a few things about copyright and innovation, a few things about where we are today. I'm actually quite optimistic about where we are today in both for copyright owners and for innovators. Then I want to talk a bit about some particular examples that I think illustrate the importance of flexibilities in copyright to allow the kind of innovation that, of course, everyone I think in Ireland and elsewhere around the world wants to see. I know, of course, Ireland is in the midst of this copyright review process, which I think presents an enormous opportunity to really lead in Europe in the area of trying to find the right balance between innovation and copyright protection. So just to start first, then, I think it's important to emphasize that for so long copyright has been viewed in many quarters solely as a question of author's rights. I think, of course, that's an incomplete telling of the story, because, of course, copyright has also been pivotally important in letting us figure out what kinds of technologies, technologies of reproduction, technologies of distribution, technologies of broadcasting, how those technologies are developed, how they're used, has always been entangled with copyright law. And so to look at copyright solely as a question of author's rights, I think gives short shrift to the important role that it has played in innovation policy. It's been largely a silent role or a role underappreciated, I would argue, but it's always been there. One need only consider, for example, in the UK, the famous case involving Amstrad, which involved a cassette deck, a consumer cassette deck, a dual well cassette deck, whether or not that technology would be legal was tested in court. Similarly, in the United States, the first video cassette recorder, the now much forgotten Betamax, the format that didn't make it, obviously brought us a very important precedent in the United States establishing the principle that that technology was legal to be sold. One need only consider for a moment what the world would look like today in the absence of the VCR to appreciate the importance that copyright law plays for innovation and technology policy. And also to a very large extent for the creation of new markets, which of course the VCR created for the movie studios and television producers as well. So with that, I think it's important to sort of keep in mind that how you frame your copyright law will to a greater or a lesser extent dictate what kinds of innovators you get, how much risks they're willing to take, and in the end who will be willing to invest in their companies. All of these things matter endormously for growth and for innovation. The one thing we can say, I think, looking back historically, is that for most of a century, more than a century in fact, copyright owners, existing copyright industries in particular have viewed a lot of technologies with alarm. Whether one of my favorite stories is the story going back to the dawn of the player piano, when many copyright owners declared that the player piano would be in fact the end of music as we knew it, this in roughly 1900, 1902 time period in that area. And of course the player piano instead gave us the birth of recorded music, which in turn, I would argue, has been a boon not just for the citizens who now enjoy far more music than they could at the beginning of the 20th century, but in fact created the entire music industry that has been much larger and given far more incentives for creativity than the prior industry ever could. That story repeats itself over and over again for the entirety of the 20th century. New technology, whether it be broadcast radio, which was viewed with alarm and lawsuits in the United States, viewed also with alarm and regulatory incursion in the UK at roughly the same time, whether you're talking about VCRs, whether you're talking about cable television, which was viewed as a pure piracy in the United States when it was introduced. The stories repeat themselves with some regularity. And the other piece of the story that also has repeated itself with some regularity is that every one of those new technologies while initially causing alarm ends up making the copyright industries much wealthier than they had been previously. Now it may not be the same winners. The winners and losers may change. The sheet music producers in 1900 were not necessarily the winners of the player piano and the recorded music age. But if you look at copyright owners, if you look at the size of the industries that are supported, they have done nothing but grow in response to new technology. And I personally think there's no reason that we should believe that the Internet will be the first technology in 100 years to break with that story. In fact, I think right now I'm quite optimistic things are, in my view, looking up, both for technology and for copyright owners, thanks in large part to the Internet. So we are not here talking about a... I'm happy to say we're not here in the same place we were in 1999, when Napster in December of that year burst on the scene and really I think shocked everyone, really made people reevaluate a number of their assumptions about what copyright should look like, how it was going to work. I think in retrospect, I actually think most people who've paid attention these last 10 years to the growth of this issue would agree that 1999 was probably a great lost opportunity for licensing to solve many of the problems that Napster sort of brought to our consciousness. In fact, many people forget that the record companies in 2000, 2001 as Napster was still in its heyday of popularity, the copyright owners from the music industry rejected an offer of one billion dollars in royalties from Napster to be paid over the course of four years. It's interesting to ask today, 12 years on, what would the world look like if the industries had been able to strike that deal and had been able to monetize the file sharing from the outset? Would we be in the same place we are today or would we in fact be much further along? But in any event, I think things are quite a bit better and improved today than they were then. One need only look at the enormous amount of new creativity that is going on. If it is the role of copyright law to create incentives for new creation that would otherwise not exist, well, I think the story is quite a positive one. At YouTube alone, for example, we have 48 hours of video content that are uploaded to YouTube each minute. That tallies to an amount of video that each month exceeds essentially all the video created by the professional broadcast industry in the past 60 years combined. So we have a situation where there's an enormous number of creators who are online, who are making video. Some of them are profiting from it. Some of them are doing it for the love of it. And in fact, over time, I think we will see more and more creativity emerge from these new media. So the story there is relatively positive. The older sort of copyright industries aren't doing terribly either. You may think if you listen to just the press releases that the industry is suffering and doing nothing but suffering. But in fact, when you look at the trends, the trends are quite positive. Nielsen, which compiles, of course, the ratings of what consumers find most compelling, has recently published numbers to show that more music purchasing decisions are happening today than ever before. So this is not a story that suggests that the internet is that piracy is taking over. This is a story that suggests that consumers are finding more and more reasons every day to choose to buy through all different kinds of channels than ever before. Now, of course, they may be choosing to buy different things. In fact, Nielsen, the Nielsen ratings show that what consumers in the music space are increasingly doing is opting to buy singles rather than albums. So it is not a surprise to see the overall revenue tally perhaps fall. But that's a very different story from saying that piracy is making it such that consumers no longer care to buy music, far from it. Consumers are buying music. They're choosing to buy singles rather than albums. Whether you think that's a good thing or a bad thing, I think it's a different story than focusing on piracy as the whole of the story. The other thing I'll mention, because I just saw it the other day and I thought it was so fascinating, already today Amazon is selling more e-books than they do paper books. And this I think at a time when everyone agrees the e-book revolution is just beginning. Whether you have a Kindle or an iPad or a Nook or any of the various e-book reader sort of optimized technologies, I think we all have to admit whatever it is we have today will no doubt be completely eclipsed by what we'll have at our disposal in a year or two. In fact, I've really been stunned as an e-book sort of new e-book user myself. I just finished my first e-book about two weeks ago, which ironically was a book called In the Plex, which is a book that was just published, which I highly recommend that tells the story of Google basically, the history of the company to the extent one can refer to a history starting in 1998 as a history. It's actually a fine read and I read it, it turned out almost entirely on my mobile phone. I found in fact that it wasn't the tablet or the that I was doing the reading, it was on my mobile waiting in line for this or that five minutes here, five minutes there, time that previously it would never have occurred to me that I could use for reading a book because who wants to be carrying it all the time? Yet I found that because I have it on my mobile I was able to do that. A great example of new opportunities that are there for existing publishers. Let me talk a bit about some of the more detailed ways that I think a copyright law could be reformed in the 21st century to really support innovation, like the kinds of innovation that I've just been talking about, all of which of course are tied to the growth of the internet and other digital technologies. It's obviously a timely occasion for that in the midst of the copyright review that Ireland is considering. So let me sort of mention a few of the important details that I think as a copyright lawyer, I see influencing technology decisions every day at companies like Google and many other companies as well. It is a strange world we live in copyright lawyers because when I look at a technology online or even in a digital device, I see that entirely differently from someone I think who's not a copyright lawyer. I immediately say things like, ah, I understand. That's why I have to upload all my music instead of just them filling the locker for me or, aha, that's how come there's no advertising that runs on this page, but there is advertising that runs on that page. Those are all decisions that once you are steeped in copyright, you see everywhere. The design is influenced enormously by copyright. So a few of the specific doctrinal questions that bear, I think most importantly. Number one, intermediary liability. This is no surprise and certainly no surprise coming from Google, which of course is a preeminent intermediary in all kinds of providing all kinds of different services. But it's of course not just Google that is at stake when you talk about intermediary liability. Whether you hold a company that provides a platform responsible for every infringement that may be committed by a user is the question that tells you whether or not that platform exists. Without some reasonable limits on intermediary liability, there would be no Google, there would be no eBay, there would be no Amazon, there would be no Yahoo. None of the companies whose names are associated with internet innovation would exist, but for a sensible regime limiting intermediary liability. That's not to say that there should be no circumstance. Obviously, Google has long lived with the notice and take down provisions that require us to remove content when we're notified that it's infringing. We also terminate users of our services who are identified as repeatedly infringing copyright. Those are perfectly reasonable balanced approaches to trying to figure out how can we allow these platforms to exist and thrive while simultaneously making sure that piracy and infringement is not rampant and is not out of control. But without those balances, it would be essentially impossible to run a site like YouTube with 48 hours of video being uploaded every minute. There really is no way that you could try to basically police every video in real time in any other way. The other area where I think is very important is the question of remedies. As any lawyer will tell you, legal right is one thing, but of course the client wants to know how much trouble am I going to be in if I end up losing a case? An enormous amount turns on the so-called downside risk, as we like to say. And so it's very important to think about what kind of remedial scheme your copyright system provides. In the United States, for example, innovators have long said that the statutory damages remedy that we have, a mandatory financial penalty per copyrighted work found to have been infringed, that that is incredibly punishing and chilling for intermediaries who have millions of users who could be copying a number of different works without the intermediary having any way of knowing. So that and, of course, criminal liability is another issue that we have in the United States that many other systems don't. And that can also be very chilling for an intermediary who might, in fact, again, have no knowledge and effectively be innocent as relates to the end user who is actually committing the deeds. So to close here, I want to finish with a few specific examples of areas where we have in the U.S. traditionally relied on fair use. Another flexibility in copyright that's very important to accommodate innovation and new technology. So let me just leave you with sort of three examples where I think flexibilities in copyright have proven to be very crucial in the current environment. One, what are we going to do about all these remix videos? One cannot watch any videos on YouTube over any period of time and not be struck by the incredible amount of remix creativity that we see on a site like YouTube. Now, of course, YouTube can't take all the credit for that. It's a combination of video, cheap, inexpensive video editing tools. Every laptop from Apple or Dell or whoever has now software or can be equipped with software at very low cost that will allow you to basically edit video, including remixing audio from one source, clips from a film or a television program. You name it, it can be combined. And often those combinations are the lifeblood of all kinds of creativity on YouTube and elsewhere. Whether you're talking about the sort of typical, here is yet another video of my cat doing yet another thing that no one else should care about. Or whether you're talking about on the other end of the spectrum, the kinds of videos that we've seen posted throughout the Arab Spring, where often you have lots of citizens who are unable to reach Al Jazeera or other kinds of media in their home nations who are making those things available through YouTube and in fact commenting on them as well. So that's one area where traditional copyright laws often have failed to make room. It implicates the reproduction right. It implicates the adaptation right. How do we accommodate this kind of creative, transformative, expressive remix? It seems to me copyright law should have a place for that. It is not piracy. It is not a substitute for the original. It's hard to see any economic harm that comes to the rights holder from that kind of creativity. In the United States, fair use has been the safety valve for those kinds of new kinds of activities. There are some similar things available in Europe through various limitations and exceptions approved under the European directive. But it's important to think, how can we craft a system that is flexible enough to accommodate that? The last thing we need is a world where the people who are uploading all of these videos are going to be treated at least by default as somehow having broken the law. A second category to think about is personal copying. So this of course is as old as the reproduction technologies that we've enjoyed since the 1970s. Whether you started by making copies for your own use on audio cassette, on to time shifting television with a VCR or more recently with a digital video recorder or more now today, consumers clearly want to be able to enjoy their personal media from the cloud. Amazon, Google, Best Buy, the number of companies that have introduced so-called lockering services in the cloud are now growing almost weekly. And that responds to a very clear demand. The truth of the matter is I don't want to have to carry my iPod and my mobile. Why? It's just as well I should be able to access all my media in the cloud from my mobile from one device and frankly from any device, whether I'm sitting in front of my laptop, have my mobile in my hand, listen to it, have my iPad on my knee, consumers who have personal media no longer want to feel shackled to a particular device or to say, oh, I don't have my compact disc because I'm in the office, I left it at home. These are all things that the technology obviously makes, you know, we can solve that problem. How does copyright address that? In Europe, the traditional model has been a private copying exception, which I will note, neither the UK nor Ireland currently enjoys. But even in countries in Europe where a private copying exception has been adopted, there is an open question about, well, what about moving that into the cloud? There shouldn't be a different set of outcomes. Just because I make a personal copy onto a CDR or onto an iPod, then if I wanted to make a copy that basically gives me the same capabilities in the cloud for a service provider, whether it be Google or Yahoo or Microsoft or Apple or whomever. So that's another area where flexibilities are important. Fair use has been a very important part of that in the US. But again, there are other approaches in Europe that should be considered as well. And finally, I would like to emphasize the need for flexibilities in copyright to facilitate competition and consumer choice. This is an area where people often overlook. They think, ah, copyright is just about content owners like music companies and movie studios on the one hand and, you know, end users and fans and audiences on the other. Increasingly, however, there have been uses of copyright that have really been premised on preventing competition and choice. And where that happens, the need for a flexibility in copyright seems particularly evident. One example that comes to mind is in the United States, there has been a globally, actually, a robust culture of hobbyists who have so-called jail broken their iPhone. So as some of you may know, if you have an iPhone, Apple has designed that product to only run software from one source, the iTunes app store. You can't get software from anywhere else. Software, you have no other choice in terms of where you can purchase software to use. Hobbyists, however, have figured out how to modify the phone in order to allow you to get software from any place of your choice. And should copyright be the restriction that prevents you from doing that? Certainly Apple made that argument and said, no, no, no, it is a copyright infringement for users to make copies of the operating system and to modify the operating system in order to be able to obtain software from other alternate sources. So a good example in the United States, the US Copyright Office actually addressed that issue and found that it would be a fair use for an owner of an iPhone to make those modifications to the phone to use software obtained from an alternate legitimate source. So I think an important reminder that flexibility often can play a role in competition and choice as well as the sort of more traditional examples I used. So just to sum up here then, I think it's important to understand that flexibilities in copyright are not about radical change or radical evasion of copyright. In fact, quite the contrary. I think flexibilities in copyright are critical in order to leave room to sort of live up to the spirit of existing exceptions and limitations, to live up to the spirit of existing public policy priorities like competition and consumer choice. That's where we need flexibilities so that we are not bound by just the letter of the limitations and exceptions that we already have, but courts should also be free to essentially adapt copyright a bit in order to allow us to encompass the spirit of those exceptions and limitations. This isn't about throwing the doors wide to pirates. This is about leaving enough room to build technologies that give us the same feeling that we used to have when we had a analog cassette in our Walkman, but today it's our mobile phone getting our music from the cloud. So again, I would like to conclude by saying Ireland has an exciting opportunity. In fact, I think a number of countries are looking at exciting ways to reform copyright law to encourage innovation. I just came from Amsterdam where they just announced a new project that they're calling Amsterdam, where they intend to really encourage the development of app developers in Amsterdam, create a real center to attract app developers, of course, at burgeoning new business for entrepreneurs. Canada recently had a bill that would have introduced the first UGC, user-generated content exception, that would allow remix videos on sites like YouTube. This was part of Canada's Bill C32, which would probably have become law if Canada could have held their government together for more than a few weeks at a time. And then finally, another area in Europe where I think there's exciting experiments is in the Nordic countries. Sweden, Norway, Denmark are all basically eager to use their existing extended collective licensing systems, which have been in place for a long time, to facilitate solutions to new problems like licensing for orphan works, licensing more generally for new uses. So Ireland is not alone in having this opportunity, but I think there is this opportunity to really encourage innovators to find Ireland as the place to start an experiment, to choose to come here to launch new digital businesses instead of choosing, say, Berlin or Amsterdam or, as Spotify has shown us, who knew Sweden would be such a hotbed of innovation as well. So I thank you for your attention. I'm happy to take questions and chat about the issues I covered or other issues relating to copyright, and thank you very much for your attention.