The Creative Rights Act of 2020

A New Deal for Promoting the Progress of Creativity

Justin M. Kaufman

Table of Contents
1. INTRODUCTION ......................................................................................................3 2. THE PROBLEM: COPYRIGHT IS SINKING............................................................7 2.1 THE RAM COPY DOCTRINE .......................................................................................................................... 8 2.2 WAR IN THE SAFE HARBOR ........................................................................................................................ 12 2.3 THE FIRST SALE DOCTRINE ........................................................................................................................ 19 3. THE PROMISE: REFORM THAT LIFTS ALL SHIPS ............................................ 22 3.1 A BRIEF HISTORY OF CONTENT ................................................................................................................. 23 3.2 THE FUTURE OF CONTENT ......................................................................................................................... 25 3.3 POLITICAL DIMENSIONS OF REFORM ........................................................................................................ 27 4. THE SOLUTION: CREATIVE RIGHTS ACT OF 2020 ........................................... 29 4.1 CREATIVE RIGHTS = COPYRIGHT + ACCESS-RIGHT ............................................................................... 29 4.2 THE DIGITAL RIGHTS OFFICE .................................................................................................................... 33 4.3 SUBJECT MATTER OF ACCESS-RIGHT ....................................................................................................... 36 4.4 EXCLUSIVE RIGHTS OF ACCESS-RIGHT ..................................................................................................... 40 4.5 THE NEW DEAL FOR USERS ....................................................................................................................... 44 4.6 DIGITAL CONTENT FINGERPRINT DATABASE ......................................................................................... 47 4.7 THE NEW DEAL FOR ONLINE SERVICES AND CONTENT OWNERS ...................................................... 51 4.8 THE NEW DEAL FOR THE PUBLIC .............................................................................................................. 55 5. CONCLUSION ........................................................................................................ 56

The Creative Rights Act of 2020 Justin M. Kaufman 1. Introduction Technologists distinguish between two types of change: change in degree, and change in kind.1 The leap from gas-powered cars to hybrid and electric vehicles was an example of change in degree; the car became more energy efficient, but the functionality remained largely the same. Changes in kind can be harder to spot, but consider the recent invention of the driverless car.2 Clearly, the driverless car is not merely a sleeker upgrade to the existing automotive lineup. Rather, autonomous vehicles will fundamentally alter the nature of human transportation, and thus represent a change in kind. The law tends to be more adaptable to changes in degree than to changes in kind.3 For instance, as cars become more fuel-efficient a change in degree traffic laws remain logical and effective. Far less clear, however, is how existing laws might translate on the driverless roads of the future. And even if old laws can govern in an era of autonomous vehicles, that does not mean that they necessarily should. Many existing traffic laws date back to the 19th century, when horse-drawn carriages dominated the roadways.4 Consequently, policy makers already anticipate the need for new legislation before driverless cars might be introduced to the public.5 This paper is premised on the claim that, with the advent of digital media technology and the internet, lawmakers mistook and continue to

1 2

See Rebecca J. Rosen, The Thorny Combination of Old Laws and New Tech, THE ATLANTIC

See John Markoff, Google Cars Drive Themselves, in Traffic, N.Y. TIMES (Oct. 9, 2010), http://www.nytimes.com/2010/10/10/science/10google.html (describing the development of Googles autonomous car). See David Friedman, Does Technology Require New Law?, 25 HARV. J.L. & PUB. POLY 71, 85 (2001) (arguing that major technological changes require new laws). John Markoff, Google Lobbies Nevada to Allow Self-Driving Cars, N.Y. TIMES (May 10, 2011), http://www.nytimes.com/2011/05/11/science/11drive.html. See id.; 2011 Nevada Assembly Bill No. 511, Nevada Seventy-Sixth Regular Session (a recent Nevada law permitting the testing of autonomous vehicles on state roadways).

mistake a change in kind for a change in degree.6 Digital is not simply the latest in a line of successively more efficient content deployment formats. Nor is the internet merely a faster distribution platform. To be fair, the distinction is easier to recognize with the benefit of decades of hindsight. However, it must by now be clear that the convergence of these technologies arguably represents the most significant change in kind of our time. Yet neither development has apparently merited a bottom-up rethinking of the way the government fulfills its constitutional mandate to protect creative works for the public good.7 Indeed, the most recent major revision of copyright law was the Copyright Act of 1976 (the 1976 Act).8 The argument is not that copyright is obsolete. By definition, copyright is a system that protects copies of creative works.9 The books on the shelf; the artwork on the wall; these are the bread and butter of copyright, for their value resides in the copies themselves. If the copy of the artwork hanging on the wall is worth $100 dollars, then, presumably, two copies of that artwork have a combined value of $200 dollars. In a sense, copyright is fundamentally rooted in a simple formula: double the copies, double the value.10 Digital media does not conform to this formula no matter how ardently the content industry argues to the contrary.11 No value is gained in

Cf. Ben Depoorter, Technology and Uncertainty: The Shaping Effect of Copyright Law, 157 U. PA. L. REV. 1831, 1833 (2009) (stating that in copyright law, breakthrough technologies make it more difficult to apply existing rules by analogy); infra note 17. See U.S. CONST., art. I, 8 cl. 8. See Copyright Act of 1976, Pub. L. 94-553, 90 Stat. 2541 (1976) (codified at 17 U.S.C. 101-810). Copyright is the exclusive privilege [] of an author or proprietor to print or otherwise multiply, publish, and vend copies of his [productions]. Ballentines Law Dictionary, 3rd Ed., 18 Am. J2d Copyr 1 (emphasis added). Economists refer to goods that obey this rule as being rivalrous. Conversely, a good is considered non-rivalrous if the use of the good by one individual does not limit the amount of the good available for consumption by others. Non-rivalrous, IT LAW WIKI, http://itlaw.wikia.com/wiki/Non-rivalrous (last visited Mar. 29, 2012). See generally, Matt Miller, Perils of Pay for Play, THE DEAL MAGAZINE (Mar. 30, 2012, 12:00 PM), http://www.thedeal.com/magazine/ID/045645/features/perils-of-pay-for-play.php

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creating two, or two-thousand, identical copies of a digital music file on ones hard drive.12 And the Internet does not obey the rules of analog distribution platforms. In fact, the Internet is rapidly undermining the relevance of the traditional distribution model altogether.13 Taken together, there are few provisions of copyright law which these technologies do not strain. But this is not a paper about copyright reform. The once chaotic digital world is now rapidly organizing around the demands of the public and institutional actors. Herein lies a small window of opportunity to enact a new framework to complement copyright in the digital realm. A dichotomous regime that accurately reflects the unique and evolving character of the technological landscape might help steer society from its digital adolescence toward an age of creative abundance and economic prosperity. This paper is about the Creative Rights Act of 2020, a legal framework intended to seize this opportunity. Notably, the year attached to this act is not arbitrary. According to a survey conducted by the Pew Research Center, by the year 2020, the world will primarily access applications and content from remote server networks, or the cloud.14 Since the publication of that 2010

(describing the music industrys paradoxical position that a digital download constitutes a sale in litigation with artists, and a license in litigation with used-digital-download store ReDigi).
12

In fact, one could claim that there is actually a loss in value as the storage device becomes needlessly cluttered with duplicate copies of the same file. Consider streaming content services such as Spotify and Hulu. To state that these services distribute content to users is a mischaracterization. A more precise statement is that these services provide access to content. See 4 Patry on Copyright 13:11 (Interpreting the distribution right to encompass computer network transmissions not only conflicts with the plain language of the right but also with its legislative history.). See The future of cloud computing, PEW RESEARCH CENTER, http://pewinternet.org/Reports/2010/The-future-of-cloud-computing.aspx (last visited Mar. 13, 2012) (the study concludes that, by 2020 most people will access software applications online and share and access information through the use of remote server networks, rather than depending primarily on tools and information housed on their individual, personal computers); see also Amy-Mae Elliott, 9 Bold Predictions for the Digital World of 2020, MASHABLE.COM (Apr. 4, 2012), http://mashable.com/2012/04/04/predictions-digital-future (predicting that the term cloud will have disappeared from the phrase cloud computing by 2020, because the majority of computing will simply be assumed to be done in the cloud).

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study, numerous cloud content services have come to market,15 suggesting an even faster transition to the cloud-based future. Further, some lawmakers look to the five-year rule when considering the pace of the legislative process. The rule states that, on average, it takes at least five years from the conception of a bill to the date of its final enactment, even in the case of compelling legislation.16 In the specific context of major copyright legislation, the five-year rule likely provides an overly optimistic timeline.17 Thus, the moment to contrive new laws is upon us. This paper begins by surveying the incompatibilities of modern technology (namely, digital media and the internet) and copyright law. The goal is to substantiate the claim that lawmakers should cabin copyright as a system for the protection of physical copies of creative works, and create a complementary framework for digital works. The following section examines the economic and political dimensions of the content ecosystem,18 concluding that the law should foster the advancement of the cloud content model. The final section of this paper is intended to serve as an explanatory supplement to the Creative Rights Act of 2020,19 a bill that envisions one possible path forward.

15

In the past year alone, Apple, Google, and Amazon have all premiered cloud-based music services. See, e.g., Google Play, available at http://play.google.com (last visited Apr. 3, 2012). See E-mail from Ralph Oman, Former Register of Copyrights, to Justin M. Kaufman, J.D. Candidate 2013, The George Washington University Law School (Feb. 8, 2012, 20:09 EST) (on file with author) (describing the rule coined by the late Senator Charles Mathias of Maryland); cf. S. 1585, 95th Cong., 1st Sess. (1977) (the Mathias-Culver Bill, a popular initiative aimed at criminalizing depictions of minors engaged in sexually explicit conduct, apparently informed the late Senators rule of thumb). The studies and discussions which eventually gave rise to the 1976 Act began more than 20 years earlier. See, e.g., William S. Strauss, Study No. 22: The Damage Provisions of the Copyright Law (Oct. 1956), reprinted in 2 Omnibus Copyright Revision Legislative History ix-32 (George S. Grossman ed., 2001). The term content ecosystem, as used in this paper, refers broadly to the system or systems that facilitate the conception, production, dissemination, commercialization, consumption, usage, and enjoyment of creative works in society. See infra Appendix A (Creative Rights Act of 2020: A Bill).

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2. The Problem: Copyright is Sinking When a ship springs a leak, the natural inclination is to attempt to plug the leak and sail onward. When that ship continues to spring leaks, however, a responsible steward orders a careful assessment of the ships seaworthiness. In the early 1990s, as the internet was blossoming, the copyright-ship was springing leaks. The Clinton administration responded by commissioning a report to evaluate the sustainability of the Copyright Act of 1976 (the 1976 Act) the law then in effect in the new information age.20 The resulting 1995 White Paper expressed the following conclusion:
With no more than minor clarification and limited amendment, the Copyright Act will provide the necessary balance of protection of rights -- and limitations on those rights -- to promote the progress of science and the useful arts. Existing copyright law needs only the fine tuning that technological advances necessitate, in order to maintain the balance of the law in the face of onrushing technology. 21

Simply plug the leaks, the White Paper advised, and there will be smooth sailing ahead. In hindsight, there can be little doubt that the authors of the White Paper misjudged the dimensions of the new information age.22 Surely the 1976 Act would read differently had the drafters been exposed to cloud services like Google Play23 or Megaupload.24 Of course, even as late as 1995, it would

20

Information Infrastructure Task Force, Working Group on Intellectual Property Rights (Bruce A. Lehman, Chair), Intellectual Property and the National Information Infrastructure (White Paper), at 13 (Sep. 1995). Id. at 17 (emphasis added). Cf. William Patry, How to Fix Copyright, OXFORD PRESS (forthcoming 2012) (manuscript at 6) (on file with author) (according to leading copyright scholar William Patry, [w]e will never fix our laws unless we clean house and start all over again. [] Those who say our current laws need merely to be adapted rather than go through a top-to-bottom, systematic overhaul are dangerously denying reality). See supra note 15. See generally U.S. v. Megaupload Ltd., E.D. Va., No. 1:12CR3 (Jan. 5, 2012) (the website for Megaupload, a cloud-storage service, was recently seized by federal authorities).

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have been difficult to conceive of such services, as average internet access speeds were not yet fast enough to support them.25 Thus, far more disconcerting than the limited amendment26 approach espoused in the White Paper is the fact that this approach persists in Congress to this day.27 This section recounts the major leaks copyright has sprung since the early-1990s in an effort to reveal a ship that will surely sink without a digital counterpart in the near future. 2.1 The RAM Copy Doctrine
We decline to stretch or update statutory words of plain and ordinary meaning in order to better accommodate the digital age.28

The first and arguably most symbolic rattling of the copyright-ship occurred in 1993, when the Ninth Circuit held that the simple act of turning on a computer infringed copyright.29 Bizarre as this may seem, the court actually applied sound legal reasoning in arriving at this conclusion.30

25

See Daniel J. Gervais, Daniel J. Hyndman, Cloud Control: Copyright, Global Memes and Privacy, 10 J. Telecomm. & High Tech. L. 53, 57 (2010) (pointing out that [o]ne of the main reasons for the rise in popularity of Cloud computing has been the increase in Internet download and upload speeds). White Paper, supra note 16, at 17. The most significant amendment to copyright law since 1976 was the Digital Millennium Copyright Act (DMCA), enacted in 1998. However, this legislation left the foundation of the 1976 Act largely intact. See Digital Millennium Copyright Act, Pub. L. No. 105-304 (1998) (codified at 17 U.S.C. 101, 104, 114, 512, 1201-1204 (1994 & Supp. V 1999)). U.S. v. Aleynikov, No. 11-1126 (2d. Cir. 2012) (Chief Judge Dennis Jacobs of the Second Circuit writing for a unanimous three-judge panel). See MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993) (according to the court, the loading of operating system software into RAM, which occurs when turning on a computer, creates an infringing copy of that software), cert. dismissed, 510 U.S. 1033 (1994). But see Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) (reasoning that [w]hen technological change has rendered [copyrights] literal terms ambiguous, the Copyright Act must be construed in light [of its original purpose]); cf. Depoorter, supra note 6 (noting that [e]ven when courts seek to apply the relatively bright-line rules of copyright doctrine, the exact entitlement of the rights may be surprisingly uncertain when applied to novel technology).

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Copyright owners have the exclusive right to reproduce their work.31 When a person turns on a computer, the operating system (OS) software, which resides in the computers permanent storage, is copied into the computers random access memory (RAM), a temporary storage medium where it resides until the computer is turned off (see Figure 1 below).

Figure 1 - The RAM Copy32

Thus, because the act of turning on a computer technically causes a temporary reproduction of a copyrighted work to be created (i.e. the OS software in the computers RAM), turning on a computer infringes the OS

31

See 17 U.S.C. 106(1) (the owner of copyright has the exclusive right to reproduce the copyrighted work). Operating system (OS) software resides in a computers permanent storage. When a user turns on a computer, the computer copies the OS software from its permanent storage to random access memory (RAM). When a user turns a computer off, the computers RAM cleared, destroying the temporary copy of the OS software created at startup.

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owners copyright.33 This rule, which was also adopted by the Fifth Circuit and the District of Columbia Circuit, became known as the RAM Copy Doctrine.34 If the RAM Copy doctrine only implicated a computers OS software, then perhaps a mere fine tuning35 of the 1976 Act would have sufficed to remedy this malady. However, the process depicted in Figure 1 (whereby content residing in a computers permanent storage is temporarily copied to the computers RAM) actually occurs every time a user accesses anything on a computer. Opening a digital music file (i.e. an MP3), or a digital image file (i.e. a JPEG) or even a PDF of this paper (if you happen to be reading this on a computer) causes a temporary copy of that file to be created in a computers RAM. Thus, the RAM Copy doctrine actually reveals the most fundamental disconnect between digital technology and copyright: in the digital realm, accessing content is synonymous with copying content. In the analog world, copyright functions effectively because copying is not prerequisite to the perception of creative works (i.e. one need not duplicate the artwork on the wall to render it visually perceptible). However, enforcing copyright law in the digital world is like pulling over a driverless car because the driver-side seatbelt is not fastened. In my view, the Ninth Circuits decision in MAI Systems signaled the clear insufficiency of copyright as a legal framework for the digital age. The fact that turning on a computer often a precursor to creative pursuit could violate a law whose sole purpose is to promote creativity, seems indicative of a

33

Even though the RAM copy disintegrates instantly when the computer is powered down. See MAI Systems, 991 F.2d at 519. See Stenograph L.L.C. v. Bossard Assocs., Inc., 144 F.3d 96 (D.C. Cir. 1998); Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988); see also Ira L. Brandriss, Writing in Frost on a Window Pane: E-Mail and Chatting on RAM and Copyright Fixation, 43 J. Copyright Socy U.S.A. 237, 249 (1996) (noting that the MAI holding established the RAM Copy Doctrine). See supra note 20.

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problem far too fundamental to be reconciled with mere fine tuning.36 However, Congress opted to plug the leak by amending the Act to permit the creation of a temporary copy of a computer program, but only as an essential step in [its] utilization.37 Of course this amendment did not address the fact that digital works other than computer programs are also copied when they are utilized.38 Congress essentially plugged one leak but left the ship vulnerable to others. And for its part, the Copyright Office touted the judicial rule as gospel, stating in a 2001 report that the making of temporary copies of a work in RAM implicates the reproduction right so long as the reproduction persists long enough to be perceived, copied, or communicated.39 The most significant judicial rebuke of the RAM Copy doctrine came in the form of a 2008 decision regarding television provider Cablevisions Remote Storage Digital Video Recorder (RS-DVR) system.40 In that case, the Second Circuit held that a temporary digital copy must be fixed (i.e. exist) for a period of more than transitory duration to infringe the reproduction right.41 While the decision directly undermined the Copyright Offices directive,42 it did not solve the problem, as temporary digital copies often exist far longer than the 1.2-seconds at issue in this case.

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The purpose of copyright law is to promote the Progress of Science and the Useful Arts. U.S. CONST., art. I, 8 cl. 8. However, the decision in MAI Systems effectively turned computer users into de facto copyright infringers. Pub. L. No. 105-304, 112 Stat. 2680, 2887 (1998) (codified at 17 U.S.C. 117) (the essential step requirement is ironic in the sense that copying is virtually always a necessary step in the use of a computer program). Id. A Report of the Register of Copyrights Pursuant to Section 104 of the Digital Millennium Copyright Act, at xxii (U.S. Copyright Office, Aug. 2001) (available at http://www.loc.gov/copyright/reports/studies/dmca/dmca_study.html). See Cartoon Network, LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008). Id at 130 (the copies at issue were fixed for no more than 1.2 seconds before being automatically overwritten). See id. at 129 (stating we are not persuaded after considering the Copyright Office report).

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Thus, to this day, the public is constantly infringing copyright simply by accessing digital content (other than computer programs) on a device. In an illuminating hypothetical, a person who in a single day responds to some e-mails, shares personal digital pictures with family members, and records a cellphone video of some friends singing Happy Birthday at a birthday dinner (among a handful of other unremarkable activities), commits dozens of acts of infringement, exposing himself to millions of dollars in liability, all without ever even opening a file-sharing program.43 2.2 War in the Safe Harbor Consider a different hypothetical. Jane gets home from work, powers up her laptop, and connects to her wireless router. Jane is now connected to the internet through Verizon, her internet service provider (ISP). Jane proceeds to open a web browser, which automatically loads her homepage: Googles search engine. She types in the name of a television show she missed the night before, and clicks Search. The top search result brings her to a website containing a link to an MP444 file of the episode she missed. Jane clicks the link, downloads the MP4 file to her MacBook, and watches the episode. She is delighted to find that there are no commercial interruptions in the video. Later that evening, Jane posts the episode on the video-sharing service YouTube, and sends the link to three of her co-workers. By the time Jane goes to sleep, fifty people have watched the episode, and none have paid a dime. This hypothetical raises two important questions. First: does Jane violate copyright law? Second: if so, who is liable? The answer to the first question is yes, at least twice. When Jane downloads the video to her

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See John Tehranian, Infringement Nation: Copyright Reform and the Law/Norm Gap, 2007 Utah L. Rev. 537, 547 (2007) (by the end of this ordinary day, the subject has committed at least eighty-three acts of infringement and faces liability in the amount of $12.45 million). MP4 is one of several popular formats for digital video.

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computer, she infringes the owners reproduction right.45 Later, when Jane uploads the video to YouTube, she infringes the owners distribution right.46 Finally, Jane may even face liability for sharing the link with her co-workers.47 The answer to the second question is less straightforward. Technically, Jane could be held liable for infringement, but the chances that she will face liability are virtually zero. Millions of infringing videos have been uploaded to YouTube, and, so far, not a single user has been sued by the content industry.48 But if not Jane, then who? YouTube would seem to be the next logical target. After all, without YouTube, Jane could not have made the video available to the public. Perhaps Google should bear some responsibility as well. With over a trillion websites on the internet, it is safe to assume that Jane would not have stumbled on the free download without Googles help.49 Finally, none of this would have been possible without Verizon, Janes ISP. Thus, the question remains: who will face liability for Janes infringing acts? Under the doctrine of secondary liability, an online service may be subject to liability for the infringing activity of its users.50 Jane may have pulled the trigger, but Verizon put Jane in touch with Google, Google told

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See A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. 2001) (holding that download[ing] files containing copyrighted music violate[s] [the copyright owners] reproduction rights). See Maverick Recording Co. v. Goldshteyn, No. CV-05-4523, 2005 WL 2892371, *3, 2006 U.S. Dist. LEXIS 52422, at *8 (E.D.N.Y. Jul. 31, 2006) (holding that [d]ownloading and uploading copyrighted files [] constitutes, respectively, reproducing and distributing). See Gershwin Publg Corp. v. Columbia Artists Mgmt., 443 F. 2d 1159 (2d Cir. 1971) (holding that one who induces, causes, or materially contributes [to an act of infringement] may be held liable as a contributory infringer). See A Guide to YouTube Removals, available at http://www.eff.org/issues/intellectualproperty/guide-to-youtube-removals (last visited Apr. 3, 2012) (according to the Electronic Frontier Foundation, no typical YouTube user has ever been sued by a major entertainment industry company for uploading a video). See John D. Sutter, How many pages are on the internet?, CNN.COM (Sep. 12, 2011), http://articles.cnn.com/2011-09-12/tech/web.index_1_internet-neurons-human-brain (estimating that the [t]he Web holds about a trillion pages). See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005).

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Jane where to find the gun, and YouTube, it can be said, helped Jane spread the fire. Of course, if these services faced liability every time a user infringed copyright, it would be impossible to stay afloat. Thus, in an effort to protect online services from possible attack by the content industry,51 Congress enacted the Digital Millennium Copyright Act (DMCA) in 1998.52 Though the DMCA did not alter the foundation of the 1976 Act,53 it did create a safe harbor from infringement liability for online services, provided they comply with three basic requirements.54 First, the service must not have actual knowledge of infringing content or activity on its system, nor be aware of facts or circumstances indicative of infringing content or activity (hereinafter, the knowledge requirement). 55 Further, if the service becomes aware of infringing content or activity, it must act expeditiously to remove or disable such content.56 Thus, if YouTube discovers Janes infringing video and does nothing, it loses safe harbor protection. The second requirement is that the service must not receive a financial benefit attributable to infringing content or activity that it has the right and ability to control (hereinafter, the financial benefit requirement).57 This

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See S. Rep. No. 105-190, p. 8 (1998) (remarking that without clarification of their liability, service providers may hesitate to [invest in the Internet]. In the ordinary course of their operations service providers must engage in all kinds of acts that expose them to potential copyright infringement liability In short, by limiting the liability of service providers, the DMCA ensures that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will continue to expand). See generally Digital Millennium Copyright Act, Pub. L. No. 105-304 (1998) (codified at 17 U.S.C. 101, 104, 114, 512, 1201-1204) (DMCA). The foundation of a creative rights regime, as used in this paper, refers to the statutory provisions establishing the subject matter and exclusive rights of that regime. Cf. 17 U.S.C. 102, 106 (describing the subject matter and exclusive rights of copyright). See 17 U.S.C. 512 (the DMCA safe harbor provision). See 512(c)(1)(A)(i)-(ii). See 512(c)(1)(A)(iii). See 512(c)(1)(B).

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means that if YouTube can control the content on its service, and earns a profit from Janes infringing video, it loses safe harbor protection. Finally, the service must designate an agent to field notifications of allegedly infringing content, and respond expeditiously to remove the infringing content (hereinafter, the notice-and-takedown requirement).58 Thus, if YouTube receives a notice that it is hosting Janes infringing video and does not act expeditiously to remove the video, it becomes ineligible for safe harbor protection. To Congress credit, the DMCA safe harbor may have been the reason many popular Web 2.059 services (like YouTube and Facebook) sprung up in the United States.60 However, in recent years, the safe harbor has become problematic for both content owners and online services.
* * *

In 2007, after sending YouTube more than 100,000 DMCA takedown notices, Viacom (a mass media company) filed a lawsuit seeking $1 billion in damages.61 The crux of Viacoms complaint was that, despite responding expeditiously to its takedown notices, YouTube facilitated and profited from countless infringing videos posted by users.62 YouTube claimed that it was shielded from liability by the DMCA safe harbor.63

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See 17 U.S.C. 512(c)(1)(C).

Web 2.0 is the loosely defined intersection of web application features that facilitate participatory information sharing, interoperability, user-centered design, and collaboration on the World Wide Web. Web 2.0, WIKIPEDIA, http://en.wikipedia.org/wiki/Web_2.0 (last visited Apr. 2, 2012). See, e.g., David Kravets, 10 Years Later, Misunderstood DMCA is the Law That Saved the Web, WIRED.COM, http://www.wired.com/threatlevel/2008/10/ten-years-later (last visited Apr. 2, 2012) (contending that the modern internet is largely an outgrowth of the much-reviled Digital Millennium Copyright Act). See Viacom Intl Inc. v. YouTube Inc., 253 F.R.D. 256 (S.D.N.Y. 2008). See id.

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See Viacom Intl Inc. v. YouTube, Inc., 718 F. Supp. 2d 514, 516 (S.D.N.Y. 2010) affd in part, vacated in part, remanded sub nom. Viacom Intl Inc. v. YouTube, Inc., 10-3270-CV, 2012 WL 1130851 (2d Cir. Apr. 5, 2012).

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Thus, the task for the district court was to determine whether YouTube satisfied the requirements for safe harbor protection. The record clearly indicated YouTubes compliance with the notice-and-takedown requirement.64 Further, the court decided that if YouTube satisfied the knowledge requirement, then by definition, it also satisfied the financial benefit requirement (reasoning that the ability to control and financially benefit from infringement requires knowledge of the infringement).65 Accordingly, the critical inquiry was whether YouTube satisfied the knowledge requirement. To grant YouTube safe harbor protection, the district court needed to conclude that YouTube [did] not have actual knowledge that material on [its] system [was] infringing (i.e. actual knowledge), and that, in the absence of such actual knowledge, [was] not aware of facts or circumstances from which infringing activity [was] apparent (i.e. red flag knowledge).66 At first glance, it is difficult to imagine how a service that receives a constant stream of DMCA takedown notices could not have red flag knowledge of infringement. However, the court reasoned that the actual knowledge and red flag knowledge standards both meant knowledge of specific and identifiable infringements of particular individual items.67 Applying this standard, the court determined that YouTube satisfied the knowledge requirement, thus qualifying for safe harbor protection.68 The reasoning that enabled the court to morph facts or circumstances into specific particular individual items is far from straightforward.69 The opinion even noted that a jury could find that [YouTube] not only [was]

64

See id. at 519 (It is uncontroverted that all the clips in suit are off the YouTube website, most having been removed in response to DMCA takedown notices.). See id. at 527 (concluding that a service provider could not control and financially benefit from infringing content unless it was aware of such content). 17 U.S.C. 512(c)(1)(A)(i)-(ii). Viacom, 718 F. Supp. 2d at 523. Id. Id.

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generally aware of, but welcomed, copyright-infringing material being placed on [its] website. Such material was attractive to users, whose increased usage enhanced [YouTubes] income from advertisements 70 In my view, the court believed that YouTube was precisely the type of service Congress intended to protect with the DMCA safe harbor, and construed the statute accordingly.71 In either case, the decision reveals a basic structural flaw with the safe harbor: it is unrealistic to expect online services to remain unaware of infringing activity as they receive takedown notices from content owners. In other words, combining a notice-and-takedown requirement and a knowledge requirement (particularly, a red flag knowledge requirement) in the same provision inevitably burdens the judiciary to stretch statutory language around services that seem deserving of protection. However, this is not to suggest that the safe harbor is simply in need of fine tuning. Rather, the safe harbor was never adequately designed to address the root issue: the infringement of users. By the time a court rules in a dispute like Viacom, several years will have passed since one or more people made a creative work available to the public online. And once a digital work is made available to the public online, there is no putting the genie back in the bottle. Stated simply, by the time a legal dispute arises, the damage is already done. Viacom and Google (which owns YouTube) continue to pour millions of dollars into litigation over the DMCA safe harbor,72 yet outside the courtroom, the two companies seem to work happily together.73 Why,

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Id. at 518. See generally id. (roughly one third of the opinion is a discussion of legislative history).

See Viacom Intl, Inc. v. YouTube, Inc., 10-3270-CV, 2012 WL 1130851 (2d Cir. Apr. 5, 2012) (remanding the case back to the district court for further proceedings). Michael Learmonth, Inside The He-Said, She-Said Of The Viacom-YouTube Dispute, BUSINESS INSIDER (Mar. 19, 2010), http://articles.businessinsider.com/2010-03-19/tech/29975272 (noting that the the bizarre aspect of this case is that both YouTube and Viacom generally work happily together today, and Viacom has no problem with the way YouTube identifies copyrighted content).

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then, are these companies intent on waging this costly legal battle to the bitter end? Perhaps Viacoms primary motivation is the potential for a sizable judgment. Or, perhaps both companies are looking to the court to answer a simple question: who is responsible for enforcing intellectual property rights on the internet; content owners or content services? Of course, the answer should be neither. The founding fathers believed that the protection of individual property rights must be the first object of government.74 Further, in the information age, the value of intellectual property is rapidly increasing.75 Thus, in my view, the war in the safe harbor is actually emblematic of the governments failure to adapt traditional notions of intellectual property rights and protections to the realities of the internet age. In the analog era, the government applied principles of personal property to the protection of intellectual property, because, for the most part, the two were inseparably linked. If a person stole a book from a bookstore, the societal expectation was that law enforcement would be dispatched. The Copyright Act (of 1976), and even recent legislative initiatives such as the Stop Online Piracy Act (SOPA) continue to reflect this reactive, analog paradigm of enforcement (namely, that the best way to protect intellectual property rights is to dispatch law enforcement after the crime is committed).76 However, in the internet age, this reactive approach to the enforcement of intellectual property rights is backwards. The analog era book thief runs from the store with one copy of a book; the digital era book thief makes the stolen book available to the entire world in an instant. A reactive enforcement

74 75

Federalist No. 10, at 78 (Madison (C. Rossiter ed. 1961)).

Cf. John Biggs, A Dispute Over Who Owns a Twitter Account Goes to Court, N.Y. TIMES (Dec. 25, 2011), http://www.nytimes.com/2011/12/26/technology/lawsuit-may-determine-whoowns-a-twitter-account.html (describing a lawsuit in which a company, intent on aggressively protect[ing] [its] intellectual property, is seeking $340,000 in damages over a disputed Twitter account). See Jack C. Schecter, Online Piracy Legislation: Is the Cure Worse Than the Disease?, FED. LAW., April 2012, at 20, 73.

76

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regime no matter how robust will never put the stolen book back on the digital shelf.
* * *

In short, despite the enactment of the DMCA, the foundation77 of the copyright framework continues to reflect the pre-digital world in which and for which it was conceived. The DMCA reinforced this dated foundation with new layers and exceptions.78 However, the advent of digital technology and the internet so fundamentally reshaped the creative landscape that merely accommodating these developments within the 1976 conception of creative rights is like erecting a skyscraper on top of a house. In both cases, the result is an inefficient and perplexing structure. 2.3 The First Sale Doctrine The first sale doctrine is the iceberg that sinks the copyright-ship. The doctrine permits the owner of a lawfully made copy of a work to sell or otherwise dispose of that copy without the authority of the copyright owner.79 This rule has generally functioned effectively in the context of usedrecords and video games,80 and now, online service ReDigi believes the same should be true in the context of used digital music stores. According to the banner on its website, ReDigi is The Worlds First Used mp3 Store! Now Digital Music has Monetary Value Forever.81 The second question on the FAQ page of the companys website comes right to the point: Is ReDigi Legal?82 ReDigi claims that its service is legal

77

The foundation of a creative rights regime, as used in this paper, refers to the statutory provisions establishing the subject matter and exclusive rights of that regime. Cf. 17 U.S.C. 102, 106 (describing the subject matter and exclusive rights of copyright). See, e.g., 17 U.S.C. 512, 1201-1205, 1301-1332; 28 U.S.C. 4001. 17 U.S.C. 109(a) (codifying the first sale doctrine).

78 79 80

See, e.g., Trade-In Offers: Special Offers for Trading in Your Old Games, GAMESTOP, available at http://www.gamestop.com/collection/trade-in (last visited Apr. 4, 2012). ReDigi Used Digital Music Store, http://www.redigi.com (last visited Nov. 24, 2011). Id.

81 82

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because it has technology that enables it to verify that each file comes from a legitimate source; to ensure that the sellers copy of the file, along with any other copies the seller might have, are deleted from all of the sellers devices; and to facilitate the transfer of a digital music file from one user to another without copying or file sharing.83 If ReDigi is in fact able to transplant a lawfully purchased digital music file from a sellers computer to a buyers computer both without copying, and without leaving any copies of the file on the sellers devices, then ReDigi may push copyright to the brink. In a letter to the company, the Recording Industry Association of America (RIAA) argues that ReDigi cannot claim that its conduct is protected by the first sale doctrine [as that doctrine] does not permit the owner to make another copy, sell the second copy and destroy the original.84 In support of this claim, the RIAA points to a 1988 case about a person who made and sold ceramic tiles. In that case, the Ninth Circuit held that purchasing a book, tearing out certain pages containing artwork, gluing those pages to ceramic tiles, and selling the custom-mounted tiles, was not permitted under the first sale doctrine.85 In contrast, the court acknowledged that it would be permissible for the defendant to simply resell the purchased copy of the book outright.86 The RIAA asserts that the first sale doctrine does not apply to ReDigi because its service infringes the reproduction right.87 What remains to be seen, however, is whether the reproduction right is also infringed in an online

83 84

Id.

Letter from Jennifer L. Pariser, Senior Vice President of Litigation, The Recording Industry Association of America, to John Ossenmacher, ReDigi, Inc. (Nov. 10, 2011) (on file with author). Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341, 1344 (9th Cir. 1988) (holding that the right to transfer applies only to the particular copy of the book which appellant has purchased and that the mounted tiles constituted derivative works which cannot be resold under the first sale doctrine). Id. See 17 U.S.C. 106(1).

85

86 87

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file transfer that leaves only a single copy of the transferred file in existence (if such a process is indeed possible, as ReDigi claims). However the court rules, the application of the first sale doctrine to the digital marketplace highlights the widening gap between copyright law and the subject matter it governs.
* * *

As the narrative of this Section suggests, not all problems are best solved by plugging leaks (even if they do slow the sinking of the ship). Further, even when lawmakers enact forward-looking, proactive legislation (and, as noted in Section 2.2, the DMCA was arguably proactive in 1998), the steamroller of technology is never far behind.88

88

See The Legal Impact of Cloud in Entertainment, GMO CLOUD AMERICA (Nov. 3, 2011), http://us.gmocloud.com/company/thinkcloud/2011/11/03/the-legal-impact-of-cloud-inentertainment (last visited Mar. 3, 2012) (quoting Barry Slotnick, Chair of the Intellectual Property and Entertainment Litigation Practice Group at Loeb & Loeb, stating [t]he law will always be behind technology [the DMCA] was useful about a year into the millennium).

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3. The Promise: Reform That Lifts All Ships In the previous section, I argue that copyright requires a complementary framework for the protection of creative works in the era of digital technology and the internet. The purpose of this section is to analyze the historical, economic, and political dimensions of the content ecosystem, in order to extract a set of goals and guiding principles for such a framework. To be sure, certain principles must be at the heart of any creative rights regime. The Constitution mandates that the framework be designed to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.89 These words contain at least three important guidelines: (1) the framework must be principally aimed at promoting the progress of creativity;90 (2) this goal is to be accomplished by granting authors exclusive rights to their work; and (3) these rights must eventually expire.91 The crucial task is determining which exclusive rights, if conferred to authors, would best promote creativity. Since 1790, Congress has relied on a copy-centric bundle of exclusive rights as the primary fuel of creative pursuit. This longstanding focus on copying can make it difficult to envision the contours of an alternative scheme.92 However, the law can have a powerful shaping effect on the evolution of the subject matter it governs. Thus, a new framework should be informed by the lessons of its predecessors, attuned to

89 90

U.S. CONST., art. I, 8 cl. 8 (commonly referred to as the Copyright Clause).

In 1787 (the year the Constitution was adopted), the term Science was intended to refer to knowledge in a general sense. This phrase is understood to mean that the purpose of creative rights must be to promote the creation and publication of free expression. Eldred v. Ashcroft, 537 U.S. 186, 219 (2003); see also Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985) ([T]he Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of ones expression, copyright supplies the economic incentive to create and disseminate ideas.). The Constitution only permits Congress to secure the exclusive rights of authors for limited Times. See supra note 89. It will also inevitably make the logistical transition to a new system more challenging.

91

92

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the realities of the current creative landscape, and designed to promote the most desirable content ecosystem for the future. 3.1 A Brief History of Content In 1790, books were the primary creative work of the day.93 At that time, authors hand-wrote manuscripts.94 If a publisher was interested in a manuscript, the authors handwritten pages would be delivered to a printing press, where they were mass-produced in printed-and-bound copies for commercial distribution.95 Consumers purchased books from local bookstores, and borrowed books from local libraries. From an economic perspective, the value of a book resided initially in the authors manuscript, and, following publication, entirely in physical copies. In 1790, the best technology available to the average consumer trying to forge a copy of a book was a pen, paper, and a great deal of time. Even with those tools, a person with a steady-hand could hardly create a copy of printing-press quality. Accordingly, to effectively protect the creative works of authors in 1790, the law needed to account for the value of the authors manuscript, the value associated with an authors liberty to publish a manuscript, and the value of a printed copy of a book. Congress accomplished this with a law weighing in at just half of a page in length.96

93

To be sure, the Copyright Act of 1790 also protected maps and charts, though not paintings, drawings, or music. See 1 Stat. at 124. The first author to submit a typewritten manuscript to a publisher was Mark Twain, with his book Life on the Mississippi in 1883. See Typewriters: History of Typewriters, Typing, and Qwerty Keyboards, http://inventors.about.com/od/tstartinventions/a/Typewriters.htm (last visited Mar. 22, 2012). In 1800, the state of the art printing press could print 480 pages in an hour. See The Printing Press, http://en.wikipedia.org/wiki/Printing_press, (last visited Mar. 22, 2012). The text of the law was published on the half of the first page of The Columbian Centinel, a Boston newspaper. See The First U.S. Copyright Law, http://www.earlyamerica.com/earlyamerica/firsts/copyright (last visited Mar. 22, 2012).

94

95

96

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The Copyright Act of 1790 (the 1790 Act) provided authors with the sole right and liberty of printing, reprinting, publishing and vending copies of their works. 97 The law penalized infringers by requiring them to forfeit all and every copy [] and all and every sheet [] to the author or proprietor [] who shall forthwith destroy the same [] and pay the sum of fifty cents for every sheet which shall be found in his or her possession.98 Thus, federal copyright law was born in the United States. Over the course of the next century, creative technologies continued to evolve. The typewriter became a popular tool for authors, as well as an improvement over the pen-and-paper method for would-be copiers. The market for player pianos and perforated rolls of music (i.e. piano rolls) took root.99 In 1905, recognizing that the creative landscape had changed, President Theodore Roosevelt delivered the following message to Congress:
Our copyright laws urgently need revision. They are imperfect in

definition, confused and inconsistent in expression; they omit provision for many articles which, under modern reproductive processes, are entitled to protection; they impose hardships upon the copyright proprietor which are not essential to the fair protection of the public; they are difficult for the courts to interpret and impossible for the Copyright Office to administer with satisfaction to the public. 100

Roosevelt urged Congress to avoid the temptation to simply amend the 1790 Act, arguing that recent developments necessitated a complete legislative overhaul.101 Congress responded with the Copyright Act of 1909 (the 1909

97

See Act of May 31, 1790, ch. 15, 1 Stat. 124, repealed by Act of April 29, 1802, ch. 36, 2 Stat. 171 (1802) (Copyright Act of 1790). Id. See, e.g., White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1 (1908). See H.R. Rep. No. 60-2222, at 1-2 (1909). Id.

98 99

100 101

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Act), introducing, among other things, publication and notice requirements as new thresholds to statutory protection.102 Between the beginning and middle of the 20th century, another wave of technology challenged the efficacy of copyright law. The advent of television, motion pictures, and sound recordings dramatically reshaped the creative landscape. These technologies not only gave rise to new types of works, they also represented new distribution platforms. Despite the obvious need for major copyright reform, Congress moved at a snails pace in the twenty years leading up to the passage of the Copyright Act of 1976.103 The resulting legislation remains in effect today. If there is a single theme encapsulating this multi-century narrative, it is that copyright is the laws periodic response to technological change.104 Further, this response has rapidly become less rooted in principle, and more geared toward the specific technologies of the day.105 The discussion in Section 2 stands for the proposition that, if the law is to remain effective in the face of rapid technological change, it must be based on principles that make sense today, and embrace the possibilities of tomorrow. 3.2 The Future of Content People become famous issuing predictions about the future usually because those predictions turn out to be wrong. In 1927, H.M. Warner (of

102 103

See generally Copyright Act of 1909, 35 Stat. at 1075 (Mar. 4, 1909; repealed Jan. 1 1978).

Between 1955 and 1961, committees worked on a report of the state of copyright. Between 1964 and 1976, countless versions of the bill that would ultimately become the Copyright Act of 1976 appeared on the floors of the House and Senate. See H.R. Rep. No. 94-1976 (1976). See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984) (noting that [f]rom its beginning [] copyright has developed in response to significant changes in technology). Compare Copyright Act of 1909, ch. 320, 1(e), 35 Stat. 1075 (providing a principled list of exceptions to the public performance right), with Copyright Act of 1976, 17 U.S.C. 110 (providing six pages of highly specific exemptions to the public performance right), and 17 U.S.C. 110(5)(B)(i)(I) (the exemption for establishments that do not serve food or drink and are smaller than 2,000 square feet, to perform music using no more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space).

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Warner Brothers) famously proclaimed, who the hell wants to hear actors talk?106 In 1962, Decca Records denied the Beatles a record deal, stating that guitar groups are on the way out [and] the Beatles have no future in show business.107 Last year, spiritual leader (and radio host) Harold Camping predicted the world would end, twice.108 Suffice it to say, the future can be quite elusive. Nevertheless, I offer the following prediction: In the future, the devices we use to access and enjoy content will have no permanent storage capacity. We will no longer contemplate whether to purchase the 16 GB or 32 GB model of a device, because those distinctions will not exist. Our digital lives e-mails, pictures, music, videos, books, software, games, and any other content we dream up will exist in the cloud. The devices of the future will simply be our passports to access that content. And while we will each individually own one (or more) of these devices, they will only become personal once we log into them. A device with no loggedin user exists in largely the same state as before it was taken out of the box. Even the cautious among us who insist on backing up their data will do so in the cloud (presumably with services that operate massive storage farms, and offer to mail subscribers physical media containing their content in the event of a loss). Todays external hard drives will sit in boxes collecting dust alongside yesterdays photo albums. Figuratively, we will be closer to our content than ever before; literally, we will never have been farther separated. Finally, most content creation will also take place in the cloud. Content creators will have access to cloud-based content production tools capable of seamlessly mapping the human creative process into high-quality digital

106 107 108

Michael Freedland, The Warner Brothers, ST. MARTINS PRESS at 119. The Beatles, The Beatles Anthology, San Francisco, CHRONICLE BOOKS (2000).

Camping predicted the world would end on May 21, 2011. When the sun rose on May 22, Camping declared that, in fact, the apocalypse was scheduled to arrive on October 21, 2011. See Alexandra Ludka, Harold Camping Admits Rapture Prediction A Mistake, ABC NEWS, (Mar. 9, 2012, 2:18 PM), http://abcnews.go.com/blogs/headlines/2012/03/harold-campingadmits-rapture-prediction-a-mistake (last visited Mar. 29, 2012).

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expressions. Creators will also have unprecedented opportunities for cloudfacilitated collaboration with others. This will be the shape of things in 2020. Yet these predictions only envision the future creative infrastructure (i.e. the tools and methods of creation). Our task today is to create policies that might positively shape the creative character of society in the next decade. Will there be an abundance of high-quality creative content? If so, will this content be created by a small number of established creators, or will there be broad participation in the creation of new, high-quality content? Will greater access to more sophisticated content production tools reduce the number of intermediaries that participate in todays production process (thus positioning creators in greater proximity to their audience)? The longer Congress delays revision of our legal framework, the less likely we are to get the answers we desire. 3.3 Political Dimensions of Reform While some of the goals underlying this particular framework may be unique, I am mindful of the fact that there is no shortage of ideas for reform already in circulation.109 Indeed, this rising mountain of yet unheeded proposals casts a pessimistic shadow over the copyright reform community. There is the sense that the potential for compromise among the major copyright stakeholders a historical threshold to legislative action110 is

109

See, e.g., Mark A. Lemley & R. Anthony Reese, Reducing Digital Copyright Infringement Without Restricting Innovation, 56 STAN. L. REV. 1345, 1405-1425 (2004); William Patry, How to Fix Copyright, OXFORD PRESS (forthcoming 2012) (manuscript at 1-3) (on file with author); Michael Weinberg, Introducing The Internet Blueprint (Feb. 28, 2012), Public Knowledge, http://publicknowledge.org/blog/introducing-internet-blueprint (last visited Apr. 5, 2012). Copyright stakeholders (historically, representatives of the content and distribution industries) traditionally reach internal compromises to address new technologies, and lobby Congress to enact their solutions. This approach has been generally effective in influencing legislation. See, e.g., Performance Rights Act of 2009, H.R. 848, 111th Cong. (2009); Intellectual Property Enforcement Act of 2007, S. 2317, 110th Cong. (2007); Inducing Infringement of Copyrights Act of 2004, S. 2560, 108th Cong. (2004); but see Stop Online

110

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elusive at best. Consequently, I believe reformists must acknowledge the political dimensions of the copyright system if they intend to have a voice at the negotiating table. This means serious proposals for reform should justify their provisions to all copyright stakeholders, in light of their respective interests and concerns. It is true that the Constitution identifies only two constituents authors, and the public as the intended beneficiaries of copyright.111 And ideally, legislative progress should not depend on compromise between entrenched corporate and institutional actors (indeed, the existing framework is the result of this approach).112 However, the reality is that the law is unlikely to change without the support of the content and technology industries.113 Thus, I attempt to justify the proposal outlined in Section 4 (The Solution: Creative Rights Act of 2020) by connecting its provisions to the interests of authors, the public, the technology sector, and the content industry.

Piracy Act, H.R. 3261, 112th Cong. (2011) (this bill, aimed at combating rogue websites that facilitate online piracy, was derailed when the technology sector lashed out in protest).
111

See U.S. CONST., art. I, 8 cl. 8 (while authors are the only explicitly named group in the Copyright Clause, it is well established that the public is the intended beneficiary of the promotion of the Progress of Science and the Useful Arts). Cf. Jessica Litman, Real Copyright Reform, 96 IOWA L. REV. 1, 7 (2010) (discussing the depressing history of copyright legislation that has benefited copyright industries at the expense of both creators and the general public). See id. at 6 (recalling that, during deliberations over the Digital Millennium Copyright Act, telephone companies and Internet service providers were able to block [provisions sought by the entertainment and software industries] until liability safe-harbor provisions for ISPs were added to the bill).

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4. The Solution: Creative Rights Act of 2020 In the previous sections, I argue that copyright is not the proper framework for the protection of digital works in the internet age; that a complementary framework, guided by the economic and political dimensions of creative rights legislation, should be enacted to protect such works; and that this framework should not only be designed to better govern the existing creative landscape, but also to promote the most desirable content ecosystem in the future. This Section outlines the Creative Rights Act of 2020, a bill intended to accomplish these goals.114 4.1 Creative Rights = Copyright + Access-Right
The distinctions [in copyright law] are very subtile [sic] and sometimes, almost evanescent.115

Title 17 shall be amended to limit the scope of copyright protection to creative works fixed in rivalrous media of expression,116 and establish accessright117 as a complementary protective framework for creative works fixed in non-rivalrous media of expression.118 Further, all existing copyright

114

This Section frequently makes reference to the text of the bill; thus, it might be useful to read this Section alongside the bill, which is located at Appendix A. Folsom v. Marsh, 9 F. Cas. 342, 344 (C.C.D. Mass. 1841) (No. 4,901) (as observed in an opinion written by Supreme Court Justice Story). A work is fixed in a rivalrous medium of expression if the possession, perception, or other use of the work, in that medium, by one or more persons limits the capacity of other persons to possess, perceive, or otherwise use the work. Appendix A at page 6, section 2(b)(30) (Rivalrous). The term access-right refers to the system for the protection of works described in section 102A, by the exclusive rights provided in section 106(b), and any associated provisions under this title. The author of a successfully registered work is the owner of access-right. Appendix A at page 2, section 2(b)(2) (Access-right). A work is fixed in a non-rivalrous medium of expression if it is fixed in a digital format, or, if the possession, perception, or other use of the work, in that medium, by one or more persons does not necessarily limit the capacity of other persons to possess, perceive, or otherwise use the work. Appendix A at page 5, section 2(b)(21) (Non-rivalrous).

115

116

117

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provisions relating to digital works, the internet, and/or online services providers, shall be repealed.119 This new border gives legal effect to the principle that copyright should only protect physical works, such as sculptures, and the physical embodiment of other creative works, such as hardcover books and paintings. In all cases, copyright shall continue to prohibit the unauthorized reproduction of protected works in physical (or rivalrous) copies. However, copyright shall not be amended to prohibit the digitization of physical works.120 Creative works fixed in both rivalrous and non-rivalrous media of expression e.g., books published in both print and e-book formats are protected exclusively by the provisions of their corresponding framework (copyright and access-right, respectively). Currently, copyright vests upon fixation.121 Importantly, access-right does not vest prior to the successful registration of a work. Further, neither framework confers or implies any rights or privileges of the other. Thus, the owner of copyright in a work fixed in a rivalrous medium must register the non-rivalrous version of the work before access-protection vests.122 To conceptualize the dividing line between copyright and access-right, consider The Beatles USB Apple Collection depicted in Figure 2 below.

119

See, e.g., infra Appendix A at page 24, section 10(b) (repealing 17 U.S.C. 106(6), relating to the public performance of a sound recording by digital audio transmission). See generally infra Appendix A at page 11, section 4(a) (Separation of subject matter and rights). See 17 U.S.C. 102(a). See supra note 120.

120

121 122

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Figure 2 - The Beatles USB Apple Collection

In late 2009, the Beatles sold these USB apples as limited edition collectors items.123 But what exactly is the USB apple? The left-most graphic depicts the exquisitely crafted [] green aluminum apple124 as it appears out of the box. The center graphic reveals that, by pulling the stem, a USB thumb drive can be separated from the apple (and the right-most graphic depicts the USB drive and the apple fully separated). The USB drive contains the entire remastered Beatles music catalog in higher-quality digital format than provided in the CD or Apple iTunes versions, as well as 13 mini-documentary films about the making of each of the studio albums, all of which can be accessed through a custom-interface by inserting the USB drive into a PC or Mac.125 This product is emblematic of the enduring relevance of copyright, but also of the impending need for access-right. Clearly, the apple itself satisfies the definition of a rivalrous work. If I possess the apple, the capacity of others to possess the apple is impaired. Thus, the Beatles would probably seek to obtain copyright protection for this

123

See Daniel Ionescu, Beatles Due Soon on USB -- But Not From Apple, PCWORLD MAGAZINE (Nov. 4, 2009, 6:51 AM), http://www.pcworld.com/article/181381/beatles-due-soon-onusb-but-not-from-apple.html. See The Beatles [USB] [Limited Edition, Box Set], available at http://www.amazon.com/TheBeatles-USB/dp/B002VH74PO (last visited Apr. 2, 2012). The songs are provided as FLAC 44.1 Khz 24 bit digital audio files, a lossless format. See id.

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product as a sculptural work.126 However, the digital songs and videos on the USB drive are non-rivalrous. By plugging the USB drive into a computer, a person can create any number of identical copies of its contents without depriving any other person of the same. Thus, the Beatles would also want to secure access-right protection for the digital contents of the USB drive (which contains both audial and audiovisual works). What complicates the analysis is the fact that, under existing law, the sound recordings fixed on the USB drive would also seem to be eligible for copyright protection.127 However, the rivalrous/non-rivalrous distinction is the compulsory starting point for determining which framework applies. The digital files on the USB drive are non-rivalrous, but the physical USB drive containing those files is rivalrous. Thus, copyright would prohibit a person from forging an unauthorized reproduction of the stemmed-USB drive containing the Beatles catalog, but not from copying the files on a computer. While the terms rivalrous and non-rivalrous are the precise statutory terms used in this framework, the term digital frequently appears in place of the term non-rivalrous medium throughout the remainder of this Section. Digital is currently the universal standard of non-rivalrous content media, and as such, is a more accessible term for grasping the intricacies of the proposed framework. However, the use of this term should not be interpreted as precluding the possibility that, in the future, a non-digital standard of nonrivalrous media might emerge.
* * *

Generally, as creative content is increasingly fixed and disseminated in digital media, the value of a physical production of a work will increasingly reside in the limited supply of authentic copies of that work (such as the

126

See 17 U.S.C. 101 (defining pictorial, graphic, and sculptural works as including twodimensional and three-dimensional works [and] works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects). See 17 U.S.C. 101 (defining [s]ound recordings as works that result from the fixation of a series of musical sounds regardless of the nature of the material objects, such as disks, tapes, or other phonorecords in which they are embodied).

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Beatles USB Apple). Today, a record is generally regarded as a unique collectors item like a piece of fine art not as a competitive alternative to digital music.128 In the future, print-copies of literary works will share a similar fate.129 The distinction outlined in this section is the first step toward recognizing these significant changes in the content ecosystem. 4.2 The Digital Rights Office
The practice of sending a copy of your own work to yourself is sometimes called a poor mans copyright. 130

Under the proposed Creative Rights system, the Copyright Office will continue to administer copyright, and a new Digital Rights Office (DRO) shall be created to oversee the access-right framework:
A Digital Rights Office shall be created as an agency of the executive branch of the federal government. The President of the United States shall appoint a Register of Digital Rights, as director of the Digital Rights Office. All administrative functions and duties under the access-right provisions of this title are the responsibility of the Register of Digital Rights. The Register of Digital Rights shall serve at the pleasure of the President, and is removable by the President without cause.131

128

To be sure, there are still some who purchase music on records (although most music is no longer offered in record format), as well as those who contend that records offer a richer audial experience than digital formats. However, these niche groups are not representative of the average music consumer of today. See, e.g., Julie Bosman, The Dog-Eared Paperback, Newly Endangered in an E-Book Age, N.Y. TIMES (Sep. 2, 2011), http://www.nytimes.com/2011/09/03/business/media/mass-marketpaperbacks-fading-from-shelves.html; N.Y. TIMES, Daily Report: The End of the Line for Encyclopedia Britannica, N.Y. TIMES (Mar. 14, 2012, 7:21 AM), http://bits.blogs.nytimes.com/2012/03/14/daily-report-the-end-of-the-line-for-encyclopediabritannica (reporting that Encyclopedia Britannica, the longest ever running print publication, is going out of print). U.S. Copyright Office Copyright FAQ, available at http://www.copyright.gov/help/faq/faq-general.html (clarifying that the commonly held belief that sending ones self a copy of ones work is not a codified registration procedure) (last visited Apr. 12, 2012). Appendix A at page 7, section 3(a) (Digital rights office: Structure and purpose).

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Unlike the Copyright Office, which is a legislative agency of government, situated within the Library of Congress, the DRO will be located in the executive branch. The head of the DRO the Register of Digital Rights shall be politically accountable as a presidential appointee. This means that popular digital rights policies will be a boon to a Presidents political cache. Alternatively, should the agenda of the DRO clash with public sentiment, the President may replace the Register of Digital Rights to promote more popular policies. This represents a significant departure from the existing federal scheme. Currently, the Copyright Office engages in various regulatory activities that carry broad implications for the digital landscape and the general public.132 For example, every three years, the Librarian of Congress, guided by the recommendations of the Copyright Office, decides whether it is legal for a person to jailbreak an iPhone,133 or whether the blind should be allowed to enable read-aloud functionality for e-books on their devices.134 With more iPhones sold than babies born in the world each day,135 the power

132

See, e.g., 17 U.S.C. 1201(a)(1)(C) (providing that the Copyright Office, in coordination with the Librarian of Congress, shall periodically exempt certain technologies from the anticircumvention provisions of the DMCA). As sold, the iPhone prevents users from installing non-Apple-approved software; by jailbreaking an iPhone, a user can install any compatible software. As of the last round of DMCA rulemaking in 2009, jailbreaking smartphones was expressly exempted from the purview of the anti-circumvention provisions of the DMCA. Many e-books are sold with access controls that prevent the enabling of the books readaloud functionality, and currently, it is a violation of copyright law for a blind person to circumvent these access controls in order to listen to an e-book. See American Foundation for the Blind, Joint Comments of the American Council of the Blind and the American Foundation for the Blind, http://www.copyright.gov/1201/2011/initial/american_foundation_blind.pdf (last visited Apr. 9, 2012). Based on Apples first quarterly earnings statement of 2012, technologists have extrapolated that about 378,000 iPhones are sold each day, exceeding the roughly 371,000 babies born in the world on an average day. See Matthew Panzarino, More iPhones Sold Than People Born Every Day, TNW.COM, http://thenextweb.com/apple/2012/01/25/there-arenow-more-iphones-sold-than-babies-born-in-the-world-every-day (Jan. 25, 2012) (last visited Apr. 12, 2012).

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135

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to decide what people can and cannot do with these devices is of substantial import. And in light of the pace of the legislative process,136 it is critical that Congress enable certain federal agencies to adapt their rules to technological change. However, the exercise of regulatory authority by a legislative agency of government strains constitutional credibility.137 As a legislative agency originally created to serve in an advisory capacity to Congress, the Copyright Office (and the Library of Congress in general) enjoys a certain degree of insulation from public scrutiny. As such, empowering the Copyright Office to exercise broad rulemaking authority undermines its legitimacy as an agency properly located in the legislative branch. Put simply, as society becomes increasingly engaged in digital technology and internet-related policy, regulatory agencies like the Copyright Office, and the proposed DRO should be directly answerable to the public. The primary function of the DRO is to administer and maintain the access-right registry.138 To effectively protect digital works, the government must implement an online digital registration system that is readily accessible, secure, and useful to digital authors and content owners. The access-right registry, which is discussed in greater detail throughout the bill, is designed with these goals in mind. At this juncture, it is simply worth noting that, unlike copyright, access-right does not vest until a work is successfully recorded in the access-right registry.139

136 137

See generally supra page 6, note 11 (discussing the average pace of legislative change).

See Buckley v. Valeo, 424 U.S. 1, 138-41 (1976) (holding that Congress cannot delegate quasi-legislative authority to an agency located in the legislative branch of government). See infra Appendix A at page 7, section 3(b) (Digital rights office records: Access-right registry). See id. at page 11, section 4(b) (providing that access-right protection extends to works registered in the access-right registry).

138

139

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4.3 Subject Matter of Access-Right

Computer programs are a form of writing [that] can be read [and] understood by a human being.140

As previously discussed, half of the foundation of any creative rights regime is the subject matter the regime protects. Thus, this section describes the first of the two foundational components of access-right: subject matter. Like copyright, access-right is rooted in a provision delineating the protectable categories of works:
Access-right protection extends, in accordance with this title, to original works of authorship fixed in a non-rivalrous medium of expression and registered in the access-right registry, from which they can be accessed, perceived, communicated, or otherwise used with the aid of a machine or device. Works of authorship include the following categories: (1) textual works; (2) visual works; (3) audial works; (4) audiovisual works; (5) other non-interactive works; and (6) interactive works.141

Unlike copyright, this classification scheme attempts to divide digital content into its most basic foundational parts.142 While this approach is intended to make access-right more comprehensible to users,143 it also represents an attempt to make access-right scalable to future varieties of digital content (without the need to add more categories).144 Before delving into the nuances of the categories of access-right protectable works, it is worth noting that this provision directly imports

140

National Commn on New Technological Uses of Copyrighted Works, Final Report of the National Commission on New Technological Uses of Copyright Works, C1-C5 at 23 (1978). Appendix A at page 11, section 4(b) (Subject matter of access-right: In general). See 17 U.S.C. 102(a) (providing copyright protection for literary works, musical works, dramatic works, pantomimes and other choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works). For example, on countless occasions, artists seeking copyright protection have asked me to clarify the difference between a sound recording and a musical work, and whether two registrations are required to protect a single song. Imagine, for example, that the gadgets of tomorrow project holographs (as opposed to images on two-dimensional LCD displays). Copyright would arguably require the creation of a new category under 102 (i.e. holographic works). However, a holographic work would presumably satisfy the definition of an audiovisual or interactive work under access-right.

141 142

143

144

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copyrights originality requirement (i.e. protection extends to original works of authorship).145 This important threshold requires that a work contain at least a minimal spark of creativity in order to be eligible for protection.146 While it is possible that the courts might establish unique standards for determining originality in the digital realm, the basic principle is sound: like copyright, access-right protects only original, creative works. Further, this provision ensures that access-right protection applies exclusively to digital works (i.e. protection extends to works fixed in a nonrivalrous medium of expression).147 None of the categories of access-right even those that borrow their name from the subject matter of copyright are intended to interact in any way with the copyright framework.148 Finally, while access-right borrows the term fixed from copyright, the implications of a fixation requirement in access-right are less far-reaching, as it is impossible to register a work a prerequisite to protection that is not sufficiently fixed in a digital format in the first place.149 Thus, this Section provides a general survey of the five categories of works eligible for access-right protection (a variety of additional provisions relating to the subject matter of access-right can be found in the proposed bill).
* * *

Textual works are defined as works other than visual works, that consist of a series of related words, numbers, symbols, or other verbal or

145

See 17 U.S.C. 102(a) (limiting the availability of copyright protection to original works of authorship) (emphasis added). See Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991) (noting, however, that the requisite level of creativity [for copyright protection] is extremely low). See infra Appendix A at page 11, section 4(b) (as previously noted, access-right protection extends to works fixed in any non-rivalrous media, digital or otherwise). See generally infra Appendix A at page 11, section 4(a) (Separation of subject matter and rights). Further, the issues the courts have faced in considering whether a work is sufficiently fixed so as to constitute an infringement of the copyright owners reproduction right, are moot in the context of the access-right framework. See infra Appendix A at page 15, section 5(a) (access-right does not provide an exclusive reproduction right).

146

147

148

149

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numerical indicia, including other non-interactive elements, if any.150 This category is intended to encompass any and all creative digital text. Books, articles, essays, blog postings, e-mails, and any other creative compositions of text in a digital format are textual works. Visual works are defined as works other than textual and audiovisual works, that consist of a single, static image, including other non-interactive elements, if any.151 This category is intended to encompass any and all creative digital images. Pictures, photographs, graphics, and any other creative compositions of static, visibly perceptible pixels in a digital format constitute visual works. Audial works are defined as works that consist of a series of related sounds, including other non-interactive elements, if any.152 This category is intended to encompass any and all creative digital sound recordings. Music, audiobooks, recorded speech, and any other creative compositions of sound in a digital format are properly categorized as audial works. Audiovisual works are defined as works other than interactive works, that consist of a series of related images, together with accompanying sounds and other non-interactive elements, if any, that, when accessed with the aid of a machine or device, display the images in a particular sequence, at a particular rate.153 This category is intended to encompass any and all creative digital video recordings, with or without any accompanying audio. Movies, television shows, animated productions, documentary films, educational films, amateur video footage, a smartphone video of a kitten on

150 151 152 153

Appendix A at page 6, section 2(b)(32) (Textual work). Id. at 7, section 2(b)(34) (Visual work). Id. at 3, section 2(b)(5) (Audial work). Id. at 3, section 2(b)(6) (Audiovisual work).

38

YouTube any creative composition of images that comprise a video in a digital format qualifies as an audiovisual work.154 Other non-interactive works are defined as works other than textual, visual, audial, audiovisual, and interactive works, that, when accessed with a machine or device, communicate a creative pattern or sequence of sensory stimulation, other than aural and visual stimulation, to a subject. Other noninteractive works include, but are not limited to, works that can be perceived through olfaction, somatosensation, and direct neural stimulation.155 This category is intended to encompass creative digital works that communicate a work to a human sense other than the eye or the ear.156 In 2012, such works are not commonplace in the content ecosystem. However, the probability that we will eventually create digital works that stimulate our other senses merits the inclusion of this category.157 The other non-interactive work designation is to be used only for works that do not also include textual, visual, audial, audiovisual, or interactive elements. Works that do include one or more of these traditional components should be registered as such, and any other non-interactive elements of the work will be protected as well. Finally, interactive works are defined as works consisting of textual, visual, audial, audiovisual, and/or other non-interactive elements, that have an intrinsic utilitarian function that is not merely to portray the appearance of the work or to convey information, and that, when accessed with a machine or device, are capable of substantial user-interactivity, such that the state of

154

However, the definition of an audiovisual work is broad enough to encompass future innovations in the audiovisual arts (i.e. it is possible that content other than digital video could satisfy the definition). Appendix A at pages 5-6, section 2(b)(24) (Other non-interactive work). Obviously, the average modern-day computer is not equipped with the hardware necessary to communicate a work to our sense of smell or touch, but they might be in the future. See Charles Platt, Youve Got Smell!, WIRED MAGAZINE (Nov. 1999), http://www.wired.com/wired/archive/7.11/digiscent.html (last visited Apr. 20, 2012) (with the sub-headline, DigiScent is here. If this technology takes off, its gonna launch the next Web revolution).

155 156

157

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the perceptible elements of the work is substantially and discriminately influenced by a users interactions with the work.158 This category (which represents the most marked departure from the categories and principles of copyright) is intended to encompass computer programs, video games, web applications, and any creative digital work designed to facilitate interactivity with a human user.
* * *

Through the basic classification scheme proposed herein, the accessright system will be readily comprehensible to authors and the public, who currently require detailed explanatory pamphlets159 to grasp the meaning of the categories of copyright. 4.4 Exclusive Rights of Access-Right
We can continue to write copyright laws that only copyright lawyers can decipher, and accept that only commercial and institutional actors will have good reason to comply with them, or we can contrive a legal structure that ordinary individuals can learn, understand and even regard as fair.160

The exclusive rights represent the second half of the foundation of a creative rights framework. Copyright provides six highly elaborate exclusive rights;161 access-right entails just two:162

158 159

Appendix A at page 4, section 2(b)(16).

See, e.g., Copyright Registration for Computer Programs, Circ. 61, available at http://www.copyright.gov/circs/circ61.pdf (a five-page guide to computer programs). Jessica Litman, Revising Copyright Law for the Information Age, 75 OR. L. REV. 19, 39 (1996). Copyright provides the exclusive rights (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture of other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. 17 U.S.C. 106. Cf. David Nimmer, Codifying Copyright Comprehensibly, 51 UCLA L. REV. 1233, 1270 (discussing coherence as a defining characteristic of a well-written copyright law).

160 161

162

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The owner of access-right under this title has the exclusive rights to do and to authorize any of the following: (1) to make the protected work available to the public; and (2) to exploit the protected work for economic gain.163

Though it is not the purpose of this Section to provide a detailed comparison of the exclusive rights regimes of copyright and access-right, the disparity between the two, both in terms of length and complexity, is difficult to overlook (footnote 179 below contains the exclusive rights of copyright). No provision of copyright, access-right, or any other creative rights framework is more impactful than the exclusive rights. In a general sense, an exclusive rights regime reflects a societys creative values. What is the best way to protect authors while simultaneously promoting creativity in general? Should the system be within the grasp of the general public? Or is this an area of law that is simply too abstract to be both effective and accessible without the aid of a lawyer? A legislatures answers to all of these questions reside in the exclusive rights it provides. One need only glance at the exclusive rights provision of copyright to conclude that the ability of the public to directly engage with the system is, in Congress estimation, not necessary to promote the progress of creativity.164 Further, it is well-established that, to most effectively promote creativity, copyright must strike a careful balance between the rights of authors and the public. From this perspective, copyright explicitly protects virtually every conceivable use of an authors work, while offering the public a four-factor balancing test called fair use to ponder whether a use might be permissible despite these protections.165 As a balancing act, copyright certainly seems to tip in favor of content owners.

163 164

Appendix A at page 15, section 5(a) (Exclusive rights in access-right protected works).

If there is any doubt about this, simply ask a songwriter or even a non-copyright lawyer what a phonorecord is, and how it is different from a copy. The fact is, understanding these terms and distinctions is necessary to understand how copyright protects a song. See 17 U.S.C. 107 (the fair use provision of copyright).

165

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The exclusive rights of access-right represent a wholesale rejection of the copyright approach. In the digital age, the line between author and user is starting to blur. And this should be regarded as a positive development for the progress of creativity. Accordingly, access-right should be readily accessible to any person who invests their time in creating a work (without the added cost of legal aid). Further, access-right should provide the type of protection that digital authors actually desire, and that the public will not consider overly restrictive. The regime described in this section is a product of these goals. The right to make a work available to the public (the making available right) reflects the prevailing manner in which digital authors currently reach their audience. In the analog realm, authors reach audiences by distributing copies of their work (hence the emphasis on reproduction and distribution in copyright). In the digital context, authors reach audiences by making their work available on the internet, often through an online content service (like YouTube or iTunes). Further, on the internet, a single copy is all that is needed to reach a global audience (hence the lack of a reproduction or distribution right in access-right). What does the making available right entail? Initially, this right provides authors with a right of first publication. In other words, it is an infringement of access-right to make available to the public an unpublished protected work (registering another persons unprotected work without authorization is also a violation of access-right law). From there, the right can be broken down into its two components. The right permits authors to make available their work to the public. One can conceive of a variety of ways in which a person could make a digital work available on the internet: e-mailing the work to ones self; posting the work on ones blog; uploading the work to a cloud content service; publishing the work on YouTube or iTunes, and so on. A work is made available the moment a person transmits the work to a location that is accessible to that person online. The key distinction is the to

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the public qualifier. And this half is slightly more intricate. To begin with, what constitutes the public?
The term public, as used in this title, refers to any and all individuals outside a persons immediate social circle.166

This definition introduces a new term, immediate social circle, that is not defined in the bill. This is not an accident. The way society defines the nature and scope of a persons immediate social circle is best defined through judicial development in common law. In certain respects, the making available right is reminiscent of copyrights distribution right.167 Indeed, the question of whether the distribution right implies a making available right has come before the courts on several occasions, with varying results.168 However, the making available right is different from, and more versatile than copyrights distribution right. It promotes the most productive behaviors of content owners and consumers, while deterring the most destructive behaviors of both. Access-right also confers the exclusive right to exploit (or authorize others to exploit) a work for economic gain (the exploitation right). The primary function of this right is to grant authors a technology-neutral economic monopoly over their work. The secondary function of the exploitation right is to codify what the public already largely believes: that non-exploitative uses of a work are acceptable.169

166 167

Appendix A at page 6, section 2(b)(26).

See 17 U.S.C. 106(3) (providing the exclusive right to distribute a copyrighted work to the public). Compare Hotaling v. Church of Jesus Christ of Latter Day Saints, 118 F.3d 199 (4th Cir. 1997) (holding that an offer to distribute a protected work by making it publicly available infringes the distribution right) and Atlantic Recording Corp. v. Brennan, 534 F. Supp. 2d 278 (D. Conn. Feb. 13, 2008), with Atlantic Recording Corp. v. Howell, 554 F. Supp. 2d 976, 979 (D. Ariz. 2008) (holding that [m]erely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holders exclusive right of distribution). See The Policy Planning Group, Yankleovich, Skelly & White, Inc., Public Perceptions of the Intellectual Property Rights Issue (1985) (OTA Contractor Report) (when surveyed, the public identified the ability to make money from ones own work as the basis of copyright, and the profiting from someone elses work as the defining characteristic of copyright infringement).

168

169

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* * *

Thus, unlike copyright, access-right enlists a concise, principled approach to the exclusive rights of authors. Further, this exclusive rights regime not only encapsulates the primary ways in which content owners actually exploit digital works in the current content ecosystem, it is designed to be adaptable to any number of future landscapes. 4.5 The New Deal for Users
[T]his is the Participation Age of remix culture, blogs, podcasts, wikis, and peer-to-peer file-sharing. This new generation views intellectual properties as the raw materials for its own creative acts, blurring the lines that have long separated producers from consumers.170

Fair use is a raw deal for the public, because only judges have the power to determine how it works.171 Further, it is peculiar that a law aimed at promoting creativity for the public good makes little mention of the public. In this Section, I propose a new deal for the public: user rights. Not only will the user rights regime proposed in this section provide the public with much needed legal certainty in the digital realm, it will actually incentivize the public to engage in creative pursuit. Initially, user rights essentially re-codify fair use in a more useful way. For example:
[T]he following uses of a lawfully accessed, protected work do not infringe access-right: (1) in the case of an audial or audiovisual work, making available a portion of the work to the public for the purpose of criticism, comment, news reporting, teaching, scholarship, or research, where the portion made available is the smallest portion reasonably necessary for the intended purpose, and is properly attributed to the owner .172

This provision provides the public with the affirmative right to use a portion of a protected work for any of the established fair use purposes.

170 171 172

Madhavi Sunder, IP3, 59 STAN. L. REV. 257, 263 (2006). See generally 17 U.S.C. 107. Appendix A at page 14, section 5(b)(1) (User rights: In general) (emphasis added).

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In order to convert fair use from an ex post facto judicial analysis to a user-friendly right, this provision introduces the smallest portion reasonably necessary requirement. So long as a person uses the smallest portion of a work required for the purpose like a short clip of a song for the purpose of criticism the presumption is that the person is exercising a user right. The greatest strength of this provision (i.e. that it empowers users) is also its most significant potential weakness. For example, online music journalists might collectively decide that making available 90 second clips of 3 minute songs as part of their reviews represents the smallest portion reasonably necessary to provide an effective critique. Or a 20 minute portion of a 60 minute audial work. While the exclusive right to exploit a work for economic gain is designed, in part, to protect authors against patently unfair uses, this user right provision is well-balanced with clarification as to some specific upper limits regarding the portion of a work that can be used. Thus, a separate provision is created to provide guidelines and limitations for user rights:
A person who, without authorization (5) in the case of an audial work, makes a portion exceeding the lesser of: (A) 15 percent of the entire duration of the work, and (B) 3 minutes of the work; available to the public does not act within the scope of the user rights provided in section 107A.173

Obviously, determining the most equitable upper limits on user rights is an exercise in trial and error. While it is possible that the limits provided in the proposed 107B will be perceived as workable today, technological change may render them unfair in the future. Accordingly, the final provision of the proposed user rights regime requires the Register of Digital Rights to oversee a biennial review of user rights in which any party may participate. The biennial review is conducted following the election of a new President, and again two years into that

173

Appendix A at page 16, section 5(c)(5) (User rights: Guidelines and limitations).

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Presidents term. This enables the nation to make its position on digital rights clear to a new administration, and leaves the door open for a mid-term change of course if a policy is not working effectively. Perhaps the most striking aspect of the proposed user rights regime is the hand-off of the right to create derivative works from authors to the public:
[T]he following uses of a lawfully accessed, protected work do not infringe access-right: (6) creating derivative works from protected audial, visual, audiovisual, and textual works; [and] (7) making derivative works available to the public according to the procedures [specified herein].174

To be sure, the procedures a user must follow to make a derivative work available to the public are fairly stringent, but they result in the formation of an interesting deal between existing and future content creators: if I create a derivative work of a popular song, and make the derivative song available to the public, I am entitled to 25 percent of the revenue the derivative song generates, and the owner of the popular song is entitled to the remaining 75 percent. Indeed, this represents a paradigm shift from the way copyright has traditionally treated derivative works. However, the quote at the top of this Section describing the Participation Age represents the authors view of the creative landscape in 2006. In 2012, the remix/reuse culture the author describes is several times as pervasive as it was six years ago. And in truth, some degree of derivation has fueled creativity in every era. The Killers were influenced by the Beatles, who were influenced by Elvis, who was influenced by Johnny Cash, and the list goes on. Today, we can accelerate the evolution of our creative progress by incentivizing authors to create works the public considers worthy of derivation (i.e. by giving them a potentially substantial source of revenue in addition to the proceeds they receive from the actual work), and by encouraging newcomers to the creative market by giving them the opportunity to build on

174

Appendix A at page 15, sections 5(b)(6)-(7).

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the work of others (both for their own financial benefit, and as a means of establishing themselves as artists in their own right).
* * *

The implications of this new deal with users are far-reaching. If enacted, the proposed legislation would alter the contours of the creative landscape. In my view, however, incorporating users into the system, and providing all parties with an incentive to create high quality creative works, is likely to promote creativity more effectively than the current regime, which does neither. And best of all, if the country becomes dissatisfied with any aspect of this user rights framework, there is a built-in mechanism that enables its speedy repair. 4.6 Digital Content Fingerprint Database
The clip drained of color, with dialogue dubbed in Chinese appeared to have been recorded with a camcorder in a dark movie theater before it was uploaded to the Web. Still, filtering software quickly identified it as [a scene that appears halfway through the] film Kill Bill: Vol. 2175

The creation of a federally administered Digital Content Fingerprint Database (DCFD) will bring order to a chaotic, inefficient creative landscape in the digital age. Further, it will generate federal revenue, create a new private market for technological innovation, and form the basis for meaningful protection for digital authors. The proposed legislation includes the following provision:
The Digital Rights Office shall be responsible for ensuring the accessibility and integrity of a Digital Content Fingerprint Database. A digital fingerprint of all works recorded in the access-right registry shall be automatically captured, assigned a unique identifier, and stored in the [database]. The Digital Content Fingerprint Database shall be searchable by online content services, using any approved database interfacing

175

Brad Stone, New Weapon in Web War Over Piracy, N.Y. TIMES (Feb. 19, 2007), http://www.nytimes.com/2007/02/19/technology/19video.html.

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technology. The Digital Rights Office shall not independently create, publish, or endorse a database interfacing technology.176

This provision represents the second of the three major programs the Digital Rights Office (DRO) is responsible for administering.177 But what exactly is a digital fingerprint? In non-technical terms, a digital fingerprint is essentially the online-equivalent of a human fingerprint. By maintaining databases of human fingerprints, law enforcement agencies are able to rapidly determine whether fingerprints left behind at a crime scene belong to a known offender, or whether a suspect in custody is in fact the right person. This is possible, of course, because every human being possesses a unique finger (or palm) print.178 Similarly, every creative work can be uniquely identified and distinguished from all other creative works. The human brain performs this feat almost subconsciously. Even when presented with two highly similar works (e.g., a popular song, and a cover version of that song, or an old movie, and a modern remake of that movie), a person can almost instantly identify the work (provided they are familiar with the work in the first place) and distinguish from among a myriad of different versions of that work. And as the quote at the top of this Section illustrates,179 digital technology enables computers to perform the same task. One approach to digital content identification involves encoding information about a particular piece of content into the file in which that content is fixed before making the content available online. For a digital

176 177

Appendix A at page 10, section 3(d) (Digital content fingerprint database).

The first program, discussed supra at 4.2 (The Digital Rights Office), is the access-right registry. See Fingerprint, WIKIPEDIA.ORG, http://en.wikipedia.org/wiki/Fingerprint (last visited Apr. 14, 2012) (due to friction ridges on the human hand, no two finger or palm prints are ever exactly alike in every detail). Discussing the ability of digital fingerprinting software Audible Magic to seamlessly identify even an extremely low-quality video clip as a scene from a popular movie. See supra note 192.

178

179

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picture (i.e. a visual work), this might mean literally watermarking180 the image with identifying information. For a digital song, an artist might encode an MP3 with identifying metadata (i.e., song title, artist name, etc.). Some companies have experimented with Digital Rights Management (DRM) technologies, whereby a file containing protected content is encoded with identifying information, and encrypted so as to prevent undesired uses of the work (generally, undesired uses include copying and sharing the file, or accessing rented digital content beyond the rental period). All of these techniques involve adding information to, or manipulating the contents of a file in which content is fixed. In my view, this approach to organizing the digital content ecosystem is surely destined to fail, as it rests on a faulty premise: namely, that what is encoded in a digital file, stays in a digital file.181 The fact is, once a file is launched into cyberspace, not only is it possible for users to manipulate that file (i.e. by removing metadata or DRM encryption), it is virtually inevitable. Perhaps in recognition of this reality, in 2009, Apple abandoned DRM for the music it sells on its iTunes Store.182 In my view, the only truly effective way to organize the digital content landscape183 is for a non-content-industry actor (e.g., record labels, film studios, literary publishers, online content services, etc.) to oversee a

180

In the analog world, a watermark is a distinguishing mark impressed on paper during manufacture, visible when the paper is held up to the light. Watermark, Collins English Dictionary Complete & Unabridged, 10th ed. 2009, def. 1. Cf. Kashmir Hill, What happens in Vegas doesnt stay in Vegas, ABOVE THE LAW (Oct. 25, 2010 at 1:29 PM EST), http://abovethelaw.com/tag/what-happens-in-vegas-doesnt-stay-invegas (noting that the more popular moniker, what happens in Vegas, stays in Vegas, is not true if what happens involves digital postings on a social media website). See Brad Stone, Want to Copy iTunes Music? Go Ahead, Apple Says, N.Y. TIMES (Jan. 6, 2009), http://www.nytimes.com/2009/01/07/technology/companies/07apple.html; but see Janko Roettgers, Apples iCloud punishes honest iTunes users with DRM, GIGAOM.COM (Jun. 8, 2011 at 11:24 AM PST), http://gigaom.com/2011/06/08/apple-icloud-drm (pointing out that downloading certain songs through Apples iCloud service produces a copy with DRM). And creating organization in the digital marketplace is a precursor to economic efficiency, and thus, to the effective promotion of creativity.

181

182

183

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centralized, standardized database of fingerprints for protected works. Under the proposed legislation, the digital fingerprint of a work submitted to the access-right registry for protection would be automatically captured and stored in a government-managed database (the DCFD). To be clear, any security concerns that such a project might evoke are overstated, as the database will not actually store any content. The term digital fingerprint (i.e. the only information that is stored in the DCFD) is defined as follows:
A digital fingerprint of a work fixed in a non-rivalrous medium of expression is the minimum amount of data required to accurately and reliably identify subsequent fixations of the fingerprinted work, and any reasonable portion thereof, without directly comparing the subsequent fixation of the work to the work from which the fingerprint is derived.184

In contrast with the file-manipulation approach, digital fingerprints enable computers to identify protected content even if the file in which the content is fixed has been substantially modified from its original form. And while a fingerprint can be extracted from a creative work, a creative work cannot be extracted from a fingerprint. In fact, to be truly effective, the DCFD must be readily accessible to technology developers.185 The DROs role is merely to ensure the functionality and integrity of the DCFD. However, the DCFD is not a content filtering solution in and of itself. Indeed, the proposed legislation explicitly mandates that the DRO not create its own filtering software.186 The goal of this provision is to promote the development of a competitive private market for content filtering software that interfaces with the DCFD. For the purposes of the proposed safe harbor provisions

184 185

Appendix A at page 4, section 2(b)(10) (Digital fingerprint).

Accordingly, the DCFD should be constructed in consultation with (or perhaps even outsourced to) the technology sector to ensure maximum interoperability with software designed to connect to the database. See supra note 198.

186

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(discussed in Section 4.8 below), the DRO may approve content filtering programs as meeting minimum standards of performance,187 however, the DROs stamp of approval is not tantamount to a federal endorsement.188
* * *

The development of a new, specialized content filtering industry will not only promote economic growth in the technology sector, it will also bring affordable content filtering solutions to online content services of all sizes. 4.7 The New Deal for Online Services and Content Owners
[The plaintiff] has not established that the DMCA imposes an obligation on a service provider to implement filtering technology at all, let alone technology from the copyright holders preferred vendor or on the copyright holders desired timeline.189

In Section 2.2 (War in the Safe Harbor), I argue that the safe harbor provisions of the DMCA,190 though well-intentioned, have become a drain on the resources of the content industry, the technology sector, and the judicial system in general. Further, as a matter of economic efficiency, the law should align the interests of the content industry and technological innovators, not pit them against one another. After all, online services require content to attract visitors, and content owners require online services to reach consumers. This Section outlines a proposal to overhaul the DMCA safe harbor provision in order that the government might assume its rightful role as protector of intellectual property rights.
* * *

The proposed legislation (the broad strokes of which are illustrated in Figure 3 below) implement a new service provider categorization scheme.

187 188

Presumably, through a standardized software testing protocol involving a battery of trials.

See supra note 198 (providing that the DRO shall not endorse any particular content filtering solution). UMG Recordings, Inc. v. Veoh Networks, Inc., 665 F. Supp. 2d 1099, 1111 (C.D. Cal. 2009) affd sub nom. UMG Recordings, Inc. v. Shelter Capital Partners LLC, 667 F.3d 1022 (9th Cir. 2011) (ruling in favor of the now-defunct video service, Veoh; the decision ultimately represented a pyrrhic victory for the service, as the cost of litigation put the company out of business). See 17 U.S.C. 512.

189

190

51

The provision initially distinguishes an online content service from an internet service provider. Internet service providers are entities that provide Internet connectivity services.191 An internet service provider that offers nothing more than an internet connection enjoys unqualified immunity from civil liability for the infringing conduct of its subscribers.192 There are two categories of online content services: non-interactive and interactive. Non-interactive content services do not host any content at the direction of users, and are thus intrinsically insulated from claims of secondary liability for infringement of access-right.193 Alternatively, an interactive content service is an online service that hosts content at the direction of users.194 There are three categories of interactive content services: personal, hybrid, and public. These also represent the three primary safe harbors of the proposed bill. A personal content service is an online content service that enables a user to access content made available on the service at that users direction, but not content made available on the service at the direction of any other user.195 A hybrid content service is an online content service that enables a user to access content made available on the service at that users direction, and at least some content made available on the service at the direction of one or more other users.196 Finally, a public content service is an online content service that enables a user to access most or all content made available on the service at the direction of any user.197
* * *

191 192 193 194 195 196 197

Appendix A at page 5, section 2(b)(18) (Internet service provider). See id. at page 22, section 9(a)(b) (Internet services providers). See id. at page 22, section 9(a)(2) (Non-interactive content services). Id. at page 5, section 2(b)(17) (Interactive content service). Id. at page 5, section 2(b)(25) (Personal content service). Id. at page 4, section 2(b)(14) (Hybrid content service). Id. at page 6, section 2(b)(27) (Public content service).

52

While the bill describes the specific requirements for each category of interactive content service to qualify for safe harbor protection, the common criteria is the implementation of a Digital Content Fingerprint Database compliant content filtering application, approved by the Digital Rights Office.198 Indeed, the Digital Content Fingerprint Database (described in Section 4.6) represents the foundation of the revised safe harbor provision.

198

Id. at page 21, section 9(a)(a)(1)(C)(ii) (notably, this requirement is optional for personal content services, provided they meet other requirements).

53

Figure 3 - Section 512 Revised

54

4.8 The New Deal for the Public By far the most effective thing the government could do to combat online piracy while simultaneously promoting the progress of creativity is to accelerate the implantation of the National Broadband Plan. The logic is simple: the faster and more widespread the internet becomes across the country, the more types of content will be accessed from the cloud as opposed to stored locally. Once people stop storing local copies of content, they will depend on cloud access, which has proven to be more convenient than piracy. Of course new user rights come with new responsibilities. [Section in progress.]

55

5. Conclusion This Congress apparently takes great pride in our nations founding document.199 In fact, as I type these words, the Supreme Court is deciding whether the Constitution gives Congress the power to implement the Affordable Care Act (President Obamas signature health care reform law). And many are speculating that the Court is likely to strike down the law or at least parts of the law as unconstitutional. The constitutional power to enact copyright law arises out of a very particularly worded clause: the Congress shall have the Power to Promote the Progress of Science and the Useful Arts 200 If the argument advanced in Section 2 that copyright law is effectively impeding the progress of creativity in the digital age is even remotely convincing, then this constitutionally-minded Congress should waste no time realigning the Copyright Act with its constitutional purpose: to promote not impede the progress of creativity.

199

See Jennifer Steinhauer, Constitution Has Its Day (More of Less) in House, N.Y. TIMES (Jan. 6, 2011) (reporting that the House of Representatives read the majority of the Constitution aloud on the House floor). U.S. CONST., art. I, 8 cl. 8.

200

56

A BILL
To revise Title 17 to better promote creativity for the public good in the information age. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE; PURPOSES; TABLE OF CONTENTS. (a) SHORT TITLE This Act may be cited as the Creative Rights Act of 2020. (b) PURPOSES The purposes of this Act are (1) to protect the rights of authors and the public in creative works fixed in digital media; (2) to provide clear guidelines for improved relations between content owners and technological innovators; (3) to realize the full economic potential of the digital market for creative content through a standardized central licensing scheme; (4) to reengage the public with a more comprehensible and logical creative rights framework. (c) TABLE OF CONTENTS The table of contents of this Act is as follows:
Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Short title; purposes; table of contents. Definitions. Digital rights office. Subject matter of access-right. Author and user rights of access-right. Ownership and transfer of access-right. Duration of access-right. Registration of access-right. Limitations on liability of online services. Miscellaneous provisions of access-right.

2 SECTION 2. DEFINITIONS. (a) DEFINITIONS: SEPARATION OF TERMS Section 101A is created with the heading Definitions: Relating to copyright; section 101B is created with the heading Definitions: Relating to access-right; section 101 is retitled Definitions: Separation of terms; the existing text of section 101 is relocated to section 101A; subsections (a) and (b) are created under section 101; section 101(a) is amended by inserting the following: The terms and definitions in section 101A: (1) apply exclusively to copyright, and its associated provisions under this title; (2) constitute the entire terminology of copyright; (3) do not modify or extend the terminology of access-right; and (4) are not to be substituted with, modified by, or otherwise imported from terms and definitions in section 101B. and, section 101(b) is amended by inserting the following: The terms and definitions in section 101B: (1) apply exclusively to access-right, and its associated provisions under this title; (2) constitute the entire terminology of access-right; (3) do not modify or extend the terminology of copyright; and (4) are not to be substituted with, modified by, or otherwise imported from terms and definitions in section 101A.

3 (b) following: In this title: (1) ACCESS.A person accesses a work when the person performs a volitional act that causes or enables that person to perceive, possess, use, or otherwise experience the work. (2) ACCESS-RIGHT.The term access-right refers to the system for the protection of works described in section 102A, by the exclusive rights provided in section 106(b), and any associated provisions under this title. (3) ACCESS-RIGHT REGISTRY.The access-right registry is an online database, administered and maintained by the Digital Rights Office, in which ownership of access-right is recorded. (4) ARCHIVING.The term archiving, as used in section 108A, refers to any automated or semi-automated process of collecting and locally storing content made available to the public on the Internet. (5) AUDIAL WORK.Audial works are works that consist of a series of related sounds, including other non-interactive elements, if any. (6) AUDIOVISUAL WORK.Audiovisual works are works, other than interactive works, that consist of a series of related images, together with accompanying sounds and other non-interactive elements, if any, that, when accessed with the aid of a machine or device, display the images in a particular sequence, at a particular rate. (7) CLOUD CONTENT SERVICE.A cloud content service is an online content service that makes content hosted on remote server networks available to members of the public on demand. (8) COMPUTER PROGRAM .A computer program is an interactive work that, when accessed with the aid of a machine or device, brings about a particular result. DEFINITIONS: RELATING TO ACCESS-RIGHT

Section 101B of title 17, United States Code, is amended by inserting the

4 (9) DIGITAL.A digital format consists of data in the form of binary digits that, when accessed with the aid of a machine or device, is capable of communicating an encoded work. (10) DIGITAL FINGERPRINT.A digital fingerprint of a work fixed in a non-rivalrous medium of expression is the minimum amount of data required to accurately and reliably identify subsequent fixations of the fingerprinted work, and any reasonable portion thereof, without directly comparing the subsequent fixation of the work to the work from which the fingerprint is derived. (11) DIGITAL LICENSE EXCHANGE.The Digital License Exchange is a secure online interface, administered by the Digital Rights Office, where licenses to access-right protected works can be purchased, sold, transferred, and exchanged. (12) DIGITAL RIGHTS OFFICE.The Digital Rights Office is an agency, located within the executive branch of the federal government, whose primary responsibilities include processing registrations through the access-right registry, maintaining the Digital Content Fingerprint Database, and administering the Digital License Exchange. (13) ECONOMIC GAIN.A person or entity experiences an economic gain, as used in section 102B when there is a direct and reasonably foreseeable connection between one or more related acts, and a subsequent realization of a financial or commercial advantage, by that person or entity. (14) HYBRID CONTENT SERVICE.A hybrid content service is an online content service that enables a user to access content made available on the service at that users direction, and at least some content made available on the service at the direction of one or more other users. (15) INCIDENTAL.An infringement of access-right is incidental if the infringing act is unintentional, or, if the infringing act is not reasonably calculated to infringe access-right at the moment of action. (16) INTERACTIVE WORK.Interactive works are works consisting of textual, visual, audial, audiovisual, and/or other non-interactive elements,

5 that have an intrinsic utilitarian function that is not merely to portray the appearance of the work or to convey information, and that, when accessed with the aid of a machine or device, are capable of substantial userinteractivity, such that the state of the perceptible elements of the work is substantially and discriminately influenced by a users interactions with the work. (17) INTERACTIVE CONTENT SERVICE.An interactive content service is an online content service that hosts content at the direction of users. (18) INTERNET SERVICE PROVIDER.An Internet service provider is an entity that exclusively provides Internet connectivity services without exerting any influence on the content of the connection it provides. (19) METADATA.The term metadata refers to the unique, identifying attributes associated with a work and its fixation in a nonrivalrous medium of expression. (20) NON-INTERACTIVE CONTENT SERVICE.A non-interactive content service is an online content service that does not host any content at the direction of users. (21) NON-RIVALROUS MEDIUM OF EXPRESSION .A work is fixed in a non-rivalrous medium of expression if it is fixed in a digital format, or, if the possession, perception, or other use of the work, in that medium, by one or more persons does not necessarily limit the capacity of other persons to possess, perceive, or otherwise use the work. (22) ONLINE CONTENT SERVICE.An online content service is an entity that makes content available on the Internet. (23) ONLINE SERVICE PROVIDER.An online service provider is any entity that provides a service accessible on the Internet. (24) OTHER NON-INTERACTIVE WORK.Other non-interactive works are works, other than textual, visual, audial, audiovisual, and interactive works, that, when accessed with a machine or device, communicate a creative pattern or sequence of sensory stimulation, other than aural and

6 visual stimulation, to a subject. Other non-interactive works include, but are not limited to, works that can be perceived through olfaction, somatosensation, and direct neural stimulation. (25) PERSONAL.An act is personal if it involves only the actor, or only a small number of individuals within the actors immediate social circle. (26) PERSONAL CONTENT SERVICE.A personal content service is an online content service that enables a user to access content made available on the service at that users direction, but not content made available on the service at the direction of any other user. (27) PUBLIC.The term public, as used in this title, refers to any and all individuals outside a persons immediate social circle. (28) PUBLIC CONTENT SERVICE.A public content service is an online content service that enables a user to access most or all content made available on the service at the direction of any user. (29) REDUNDANT.A segment, portion, or other subdivided component of a work is redundant if its omission from the work does not materially alter the meaning, design, or function of the work. (30) REGISTERED OWNER.The registered owner of access-right is the person, persons, or entity, designated as Owner at the time of registration; or, if ownership of access-right is transferred subsequent to registration of a work, is the person, persons, or entity designated as Owner in the access-right registry. (31) RIVALROUS.A work is fixed in a rivalrous medium of expression if the possession, perception, or other use of the work, in that medium, by one or more persons limits the capacity of other persons to possess, perceive, or otherwise use the work. (32) TEXTUAL WORK.Textual works are works, other than visual works, that consist of a series of related words, numbers, symbols, or other verbal or numerical indicia, including any other non-interactive elements.

7 (33) VIDEO GAME.Video games are interactive works consisting of a series of related images, including any related sounds, the order and performance of which depend substantially on user input. (34) VISUAL WORK.Visual works are works, other than textual and audiovisual works, that consist of a single, static image, including other non-interactive elements, if any. (35) VOLITIONAL.An act is volitional if the actor intends to bring about the actual result, or if, at the moment of action, the actual result is a reasonably foreseeable consequence of the act.

8 SECTION 3. DIGITAL RIGHTS OFFICE. (a) DIGITAL RIGHTS OFFICE: STRUCTURE AND PURPOSE. Section 701A of title 17, United States Code, is created with the heading The Digital Rights Office: Establishment and by inserting the following: The Digital Rights Office shall be created as an agency of the executive branch of the federal government. The President of the United States shall appoint a Register of Digital Rights to oversee the Digital Rights Office. All administrative functions and duties under the access-right provisions of this title are the responsibility of the Register of Digital Rights. The Register of Digital Rights shall serve at the pleasure of the President, and is removable by the President without cause. The purpose of the Digital Rights Office is to administer and maintain the access-right registry; conduct the biennial review of exceptions to accessright; administer, maintain, and provide public access to the digital content fingerprint database; and administer the digital content licensing program. (b) DIGITAL RIGHTS OFFICE RECORDS: ACCESS-RIGHT REGISTRY.

Section 705A of title 17, United States Code, is created with the heading Digital Rights Office records: Access-right registry and by inserting the following: The Digital Rights Office shall record the registration of eligible works, as provided in section 102B of this title, in the access-right registry. A record of registration must include (1) the title of the work; (2) the name(s) of the author(s) of the work; (3) the name(s), or title(s), of the registered owner(s) of access-right in the work; (4) contact information for the registered owner(s); (5) the date of creation of the work; (6) the effective date of registration of the work; (7) the unique identifier for the work in the Digital Content Fingerprint Database; and (8) any required metadata for the specific category of registered work, as provided in section 705B.

The access-right registry shall be accessible online to the public for the purposes of registration, record location, record modification, and transfer of ownership of access-right. (c) DIGITAL RIGHTS OFFICE RECORDS: METADATA.

Section 705B of title 17, United States Code, is created with the heading Digital Rights Office records: Metadata and by inserting the following: In addition to the requirements provided in section 705A, a record of registration in the access-right registry should include the following metadata: (a) in the case of a textual work, (1) the full name of the file in which the work is fixed; (2) the size of the file in which the work is fixed; (3) the format in which the work is fixed; (4) the type of textual work, including, but not limited to, books, essays, articles, and quotes; (5) the length of the work, as measured in units of alphanumeric characters, including spaces and other textual symbols; (6) the name of the author(s) or artist(s) associated with the work, if different from the registered author(s) of the work; (7) the name of the compilation(s) or series to which the work belongs, if the work is intended as part of a compilation or series; (8) the name(s) of non-authorial contributors to the work, if any; and (9) the genre of the work; (b) in the case of a visual work, (1) the full name of the file in which the work is fixed; (2) the size of the file in which the work is fixed; (3) the format in which the work is fixed; (4) the resolution of the work; (5) the length and width of the work, as measured in units of pixels; (6) the name of the artist(s) associated with the work, if different from the registered author(s) of the work; (7) the name of the compilation(s) to which the work belongs, if the work is intended as part of a compilation; (8) the

10 textual content of the work, if any; (9) the name(s) of non-authorial contributors to the work, if any; and (10) the genre of the work; (c) in the case of an audial work, (1) the full name of the file in which the work is fixed; (2) the size of the file in which the work is fixed; (3) the format in which the work is fixed; (4) the bit rate of the file in which the work is fixed; (5) the sample rate of the file in which the work is fixed; (6) the duration of the work; (7) the name of the artist(s) associated with the work, if different from the registered author(s) of the work; (8) the name of the album(s) or compilation(s) to which the work belongs, if the work is intended as part of an album or compilation; (9) the spoken words or lyrics contained in the work, if any; (10) the name(s) of any non-authorial contributors to the work; and (11) the genre of the work; (d) in the case of an audiovisual work, (1) the full name of the file in which the work is fixed; (2) the size of the file in which the work is fixed; (3) the format in which the work is fixed; (4) the bit rate of the file in which the work is fixed; (5) the duration of the work; (6) the dimensions of the work, including length, width, and any other dimensional attributes, as measured in units of pixels; (7) the name(s) of the artist associated with the work, if different from the registered author(s) of the work; (8) the name of the compilation(s) or series to which the work belongs, if the work is intended as part of a compilation or series; (9) the textual content of the work, including embedded subtitles, if any; (10) the name(s) of nonauthorial contributors to the work, if any; and (11) the genre of the work; (e) in the case of an other non-interactive work, (1) the full name of the file in which the work is fixed; (2) the size of the file in which the work is fixed; (3) the format in which the work is fixed; (4) the bit rate of the file in which the work is fixed; (5) the hardware required to fully access the work; (6) the type of sensory stimulation the work is designed to effect;

11 (7) the name of the artist(s) associated with the work, if different from the registered author(s) of the work; (8) the name of the compilation(s) to which the work belongs, if the work is intended as part of a compilation; (9) the textual, visual, audial, audiovisual, and interactive elements included in the work, if any; (10) the name(s) of any non-authorial contributors to the work; and (11) the genre of the work; and, (e) in the case of an interactive work, (1) the full name of the file(s) in which the work is fixed; (2) the size of the file(s) in which the work is fixed; (3) the format in which the work is fixed; (4) the compatibility of the work with related technological platforms, if any; (5) the type of interactive work, including, but not limited to, computer programs, video games, and certain online applications; (6) the name of the author(s) or artist(s) associated with the work, if different from the registered author(s) of the work; (7) the name of the compilation(s) or series to which the work belongs, if the work is intended as part of a compilation or series; (8) the name(s) of non-authorial contributors to the work, if any; and (9) the genre of the work. Upon submission of a work, the access-right registry may automatically calculate some or all of the metadata required under this section. The registration of a work, unaccompanied by some or all of the metadata required under this section, may be processed in the sole discretion of the Register of Digital Rights. (d) DIGITAL CONTENT FINGERPRINT DATABASE.

Section 302A of title 17, United States Code, is created with the heading Digital content fingerprint database and by inserting the following: The Digital Rights Office shall be responsible for ensuring the accessibility and integrity of a Digital Content Fingerprint Database. A digital fingerprint of all works recorded in the access-right registry shall

12 be automatically captured, assigned a unique identifier, and stored in the Digital Content Fingerprint Database. The Digital Content Fingerprint Database shall be searchable by online content services, using any approved database interfacing technology. The Digital Rights Office shall not independently create, publish, or endorse a database interfacing technology.

13 SECTION 4. SUBJECT MATTER OF ACCESS-RIGHT. (a) SEPARATION OF SUBJECT MATTER AND RIGHTS . Section 102A is created with the heading Subject matter of copyright: In general; section 102B is created with the heading Subject matter of access-right: In general; section 102 is retitled Separation of subject matter and rights; the existing text of section 102 is relocated to section 102A; and section 102 is amended by inserting the following: Copyright does not confer or imply any rights or privileges to the author of a work fixed in a non-rivalrous medium of expression. Access-right does not confer or imply any rights or privileges to the author of a work fixed in a rivalrous medium of expression. In the event of a conflict between a provision of copyright and access-right, the copyright provision shall govern if the conflict is predominantly related to the rivalrous fixation of a work, and the access-right provision shall govern if the conflict is predominantly related to the non-rivalrous fixation of a work. (b) SUBJECT MATTER OF ACCESS-RIGHT: IN GENERAL

Section 102B of title 17, United States Code, is created with the heading Subject matter of access-right: In general and by inserting the following: Access-right protection extends, in accordance with this title, to original works of authorship fixed in a non-rivalrous medium of expression and registered in the access-right registry, from which they can be accessed, perceived, communicated, or otherwise used with the aid of a machine or device. Works of authorship include the following categories: (1) textual works; (2) visual works; (3) audial works; (4) audiovisual works; (5) other non-interactive works; and (6) interactive works. (c) SUBJECT MATTER OF ACCESS-RIGHT: TECHNICAL STANDARDS

Section 102C of title 17, United States Code, is created with the heading Subject matter of access-right: Technical standards and by inserting the following:

14 For the purposes of registration, a work described in section 102A must be fixed in a format designated by the Register of Digital Rights, and conform to the following specifications: (a) (1) in the case of an audial work, the work must consist of no less than 10 seconds, and no more than 120 minutes of non-redundant, recorded sound, including durations of silence, if any; (2) in the case of a visual work, the work must consist of no fewer than 100 square pixels, and no more than 4-million square pixels of nonredundant, visually perceptible content; (3) in the case of an audiovisual work, the work must contain no fewer than 10 seconds, and no more than 180 minutes of non-redundant, recorded video; (4) in the case of a textual work, the work must (A) consist of no less than 100 non-redundant, alphanumeric characters, including any spaces, symbols, and other non-verbal indicia; and (B) not exceed the maximum size for a textual work, if a maximum size is designated by the Register of Digital Rights; (5) in the case of an other non-interactive work, the work must not include a textual, visual, audial, audiovisual, or interactive element; (6) in the case of an interactive work, the work must (A) consist of no fewer than 25 kilobytes of non-redundant data; and (B) not exceed the maximum size for an interactive work, if a maximum size is designated by the Register of Digital Rights. (b) Only the best version or edition of the work shall be registered, if multiple versions or editions exist. (c) A single work, other than an interactive work, that exceeds the maximum size or durational standards provided in this section may be subdivided into multiple parts, such that each subdivided part conforms to

15 the standards in this section. For the purposes of access-right registration, each subdivided part shall be considered to be a discrete work. (d) SUBJECT MATTER OF ACCESS-RIGHT: AUDIAL WORKS Section 102D of title 17, United States Code, is created with the heading Subject matter of access-right: Audial works and by inserting the following: Certain audial works, including, but not limited to, musical samples intended for use as an element of a larger audial work, may not be independently protected as audial works. Such works may be separately protected as components of interactive works, according to the provisions of section 102C relating to interactive works. (e) SUBJECT MATTER OF ACCESS-RIGHT: INTERACTIVE WORKS

Section 102E of title 17, United States Code, is created with the heading Subject matter of access-right: Interactive works and by inserting the following: Interactive works include, but are not limited to, the following categories: (1) computer programs; and (2) video games.

16 SECTION 5. AUTHOR AND USER RIGHTS OF ACCESS-RIGHT. (a) EXCLUSIVE RIGHTS IN ACCESS-RIGHT PROTECTED WORKS Section 106 of title 17, United States Code, is amended by renaming the section Exclusive rights of copyright and access-right, moving the existing text of section 106 under a new subsection (a), with the heading Exclusive rights in copyrighted works, and, under a new subsection (b), with the heading Exclusive rights in access-right protected works, adding the following: The owner of access-right under this title has the exclusive rights to do and to authorize any of the following: (1) to make the protected work available to the public; and (2) to exploit the protected work for economic gain. (b) USER RIGHTS: IN GENERAL

Section 107A of title 17, United States Code, is created with the heading User rights: In general and by inserting the following: Notwithstanding the provisions of section 106(b), and subject to the guidelines and limitations set forth in section 107B, the following uses of a lawfully accessed, protected work do not infringe access-right: (1) in the case of an audial or audiovisual work, making available a portion of the work to the public for the purpose of criticism, comment, news reporting, teaching, scholarship, or research, where the portion made available is the smallest portion reasonably necessary for the intended purpose, and is properly attributed to the owner according to the provisions of section 106C; (2) in the case of a visual work, making the work, or a portion thereof, available to the public for the purpose of criticism, comment, news reporting, teaching, scholarship, or research, where the work is properly attributed to the owner according to the provisions of section 106C; (3) in the case of a textual work consisting of less than 1,000 characters, including spaces, making the work, or a portion thereof, available to the

17 public for the purpose of criticism, comment, news reporting, teaching, scholarship, or research, where the work is properly attributed to the owner according to the provisions of section 106C; (4) in the case of a textual work consisting of 1,000 or more characters, including spaces, making available a portion of the work to the public for the purpose of criticism, comment, news reporting, teaching, scholarship, or research, where the portion made available is the smallest portion reasonably necessary for the intended purpose, and is properly attributed to the owner according to the provisions of section 106C; (5) in the case of an interactive work, capturing one or more representative visual works from the interactive work, and making such visual works available to the public for the purpose of criticism, comment, news reporting, teaching, scholarship, or research, where the quantity and selection of visual works made available are reasonably necessary for the intended purpose, and are properly attributed to the owner of the interactive work according to the provisions of section 106C; (6) creating derivative works from protected audial, visual, audiovisual, and textual works; (7) making derivative works available to the public according to the procedures set forth in section 710 of this title; (8) editing, adjusting, decompiling, repurposing, or otherwise modifying the work, where the use is personal and not undertaken for economic gain. (c) USER RIGHTS: GUIDELINES AND LIMITATIONS

Section 107B of title 17, United States Code, is created with the heading User rights: Guidelines and limitations and by inserting the following: A person who, without authorization, (1) makes an entire protected work available to the public for any purpose;

18 (2) makes an interactive work, or any interactive portion thereof, available to the public for any purpose; (3) makes a derivative work available to the public without adhering to the procedures set forth in section 710; (4) makes multiple portions of a protected work available to the public, such that the sum of the portions, if properly assembled, constitute the entirety of the protected work; (5) in the case of an audial work, makes a portion exceeding the lesser of: (A) 15 percent of the entire duration of the work, or (B) 3 minutes of the work; available to the public; (6) in the case of an audiovisual work, makes a portion exceeding the lesser of: (A) 5 percent of the entire duration of the work, or (B) 5 minutes of the work; available to the public; or, (7) in the case of a visual or textual work, makes the work, or any portion thereof, available to the public without properly attributing the work to the owner according to the provisions of section 106C, does not act within the scope of the user rights provided in section 107A. (d) USER RIGHTS: BIENNIAL REVIEW

Section 107C of title 17, United States Code, is created with the heading User rights: Biennial review and by inserting the following: The guidelines and limitations provided in section 107B shall be subject to public review and revision, according to the process described in section 107D. The Register of Digital Rights shall conduct and oversee this process on the first day of the third month in the first year following

19 the inauguration of an elected President of the United States, and on the first day of the third month two years thereafter.

20 SECTION 6. OWNERSHIP AND TRANSFER OF ACCESS-RIGHT. (a) OWNERSHIP OF ACCESS-RIGHT. Section 201A of title 17, United States Code, is created with the heading Ownership of access-right and by inserting the following: Access-right in a work protected under this title vests in the registered owner, as recorded in the access-right registry. Access-right may be transferred, in full or in part, on either an exclusive or non-exclusive basis, conferring to third-parties the right(s) to make the work available to the public and/or to exploit the work for economic gain. (b) ACCESS-RIGHT AND MATERIAL OBJECTS.

Section 202 of title 17, United States Code, is amended by inserting after all instances of the word copyright the following: or access-right. (c) following:. A transfer of ownership of access-right is invalid unless it is conveyed through, and recorded in the access-right registry. TRANSFER OF ACCESS-RIGHT.

Section 204(a) of title 17, United States Code, is amended by inserting the

21 SECTION 7. DURATION OF ACCESS-RIGHT. (a) DURATION OF ACCESS-RIGHT. Section 302A of title 17, United States Code, is created with the heading Duration of access-right and by inserting the following: Access-right in a work, other than an interactive work, vests in the registered owner or owners immediately upon successful registration, the procedures of which are provided in Section 408A, and endures for a term coextensive with the term specified in copyright. (b) WORKS IN THE PUBLIC DOMAIN.

Section 302A of title 17, United States Code, is created with the heading Duration of access-right and by inserting the following. Upon the expiration of the term of access-right, all exclusive rights divest, and works become part of the public domain. The Library of Congress shall make all works in the public domain available to the public online.

22 SECTION 8. REGISTRATION OF ACCESS-RIGHT. (a) REGISTRATION OF ACCESS-RIGHT. Section 702A of title 17, United States Code, is created with the heading Registration of access-right and by inserting the following: Access-right in a work vests in the registered owner or owners immediately upon successful registration, the procedures of which are set forth in Section 408A. (b) PROCEDURE FOR DERIVATIVE WORKS.

Section 710 of title 17, United States Code, is created with the heading Procedure for derivative works and by inserting the following: It is an infringement of access-right to make a derivative work available to the public without authorization, except by the following procedure: (1) The creator must register the work as a derivative work in the accessright registry; (2) the record must accurately reflect the work or works from which the new work is derived; (3) the derivative work must be enrolled in the Digital License Exchange, whereby the creator of the work is entitled to 25% of the revenue the derivative work generates, and the owner of the original work is entitled to 75% of the revenue the derivative work generates; (4) if the work is based on more than one work by more than one author, the 75% revenue share is split evenly among the authors. (c) ACCESS-RIGHT IN GENERAL.

Section 202 of title 17, United States Code, is amended by inserting after all instances of the word copyright the following: or access-right.

23 SECTION 9. ONLINE SERVICES AND INFRINGING CONTENT . (a) LIMITATIONS ON LIABILITY RELATING TO MATERIAL ONLINE. Section 512 of title 17, United States Code, is amended by striking the existing language and subsections, and by inserting the following: (a) Online content services. (1) Interactive content services. (A) Personal content services.A personal content service shall not be liable for monetary, injunctive, or other equitable relief, for infringement of access-right by reason of content made available on the service at the direction of a user, nor compelled to disclose information about a user in response to a subpoena issued in connection with a civil cause of action, if the service (i) implements security measures that effectively prevent users from accessing content hosted at the direction of other users; and (ii) does not encourage, or otherwise facilitate the ability of users to make content available to other users, or to members of the public; or (iii) implements a Digital Content Fingerprint Database compliant content filtering application, approved by the Digital Rights Office. (B) Hybrid content services.A hybrid content service shall not be liable for monetary, injunctive, or other equitable relief, for infringement of access-right by reason of content made available to the public on the service at the direction of a user, if the service (i) implements a Digital Content Fingerprint Database compliant content filtering application, approved by the Digital Rights Office; (ii) verifies the identity of any user who, following clear notice by the service that the content the user is attempting to make

24 available on the service has been identified by the content filtering application as protected, proceeds to make such content available to the public; (iii) does not encourage, facilitate, or derive a direct financial benefit from the infringing activity of users; and (iv) acts expeditiously to remove, or disable access to, infringing content, at the request of the Digital Rights Office. (C) Public content services.A public content service shall not be liable for monetary, injunctive, or other equitable relief, for infringement of access-right by reason of content made available to the public on the service at the direction of a user, if the service (i) registers as a public content service with the Digital Rights Office; (ii) implements a Digital Content Fingerprint Database compliant content filtering application, approved by the Digital Rights Office; and, either (iii) does not host content identified by the content filtering application as protected for which the service does not possess the proper license; or (iv) verifies the identity of any user who, following clear notice by the service that the content the user is attempting to make available on the service has been identified by the content filtering application as protected, proceeds to make such content available to the public on the service; (v) automatically reports the making available to the public of content identified as protected by a user to the Digital Rights Office; and

25 (vi) acts expeditiously to remove, or disable access to, infringing content, at the request of the Digital Rights Office. (2) Non-interactive content services.An online content service that does not make available to the public any content at the direction of users, including information and content location services that do not exert a direct influence on the information or content they locate, shall not be liable for monetary, injunctive, or other equitable relief for contributory, vicarious, or any other form of secondary infringement of access-right. (b) Internet service providers.An entity that exclusively provides Internet connectivity services, and that does not exert a direct influence over the content of the connection it provides, shall not be liable for monetary, injunctive, or other equitable relief by reason of the infringement of access-right by a user. (b) INFRINGING ACTIVITY ON A REGISTERED CONTENT SERVICE.

Section 512A of title 17, United States Code, is created with the heading Infringing activity on a registered content service, and by inserting the following: The Digital Rights Office shall mediate in the event of a dispute between owners of access-right and registered online content services in compliance with the requirements provided in section 512(a)(1). The Digital Rights Office shall only mediate disputes involving works recorded in the access-right registry, and included in the Digital Content Fingerprint Database. The owner of access-right may, in good faith, report apparent incidences of infringement by reason of a protected work being made available to the public through an online content service registered with the Digital Rights Office.

26 The Digital Rights Office shall review all reported incidences of infringement and, in the sole discretion of the Register of Digital Rights, take the appropriate action, if any.

27 SECTION 10. MISCELLANEOUS PROVISIONS OF ACCESS-RIGHT. (a) ACCESS-RIGHT PROHIBITIONS. Section 302A of title 17, United States Code, is created with the heading Accessright prohibitions and by inserting the following: Knowingly registering a work for access-right that is already copyrighted by another person or entity, without such person or entitys authorization, shall result in a civil penalty of no less than $5,000 dollars per registered work. The owner of copyright shall also have a private cause of action against a violator for actual monetary damages. The attempted or successful registration of a work containing data, information, or other programming designed to perform a function on a machine or device in furtherance of an unlawful purpose, or beyond the scope of functionality indicated for that work, is a punishable offense. (b) EXCLUSIVE RIGHTS OF COPYRIGHT.

Section 106(a) of title 17, United States Code, is amended by striking subsection 6, relating to the public performance of a sound recording by digital audio transmission. (c) COPYRIGHT AS CLAIM TO ACCESS-RIGHT.

Section 302B of title 17, United States Code, is created with the heading Copyright as prima facie evidence of claim to access-right and by inserting the following: Ownership of copyright in a literary work, musical work, pictorial or graphic work, motion picture or other audiovisual work, or sound recording work is prima facie evidence of a claim to access-right in that work.