Post: U.S. Copyright Law Needs a Reboot
The digital age has undermined U.S. copyright laws that weren’t built for the Internet-driven challenges of the past 15 years, law professor and author David Post said Wednesday.
Post, a professor at Temple University’s Beasley School of Law and author of “In Search of Jefferson’s Moose: Notes on the State of Cyberspace,” asked students to imagine the Internet as a new world — Planet Internet — with no existing copyright laws.
Current U.S. law offers copyright protection to every single piece of work posted on the Internet, Post said. Every hour, copyright protection automatically covers millions, or even billions, of works including e-mails, blog posts, photographs, audio documents and videos.“If you try to answer that question, ‘What kind of copyright law would make sense for the Internet?’, it’s so obvious, it’s even self-evident, that you would not come up with anything even remotely resembling the copyright law we have, down to its very fundamentals,” Post said.
“That’s a very odd rule to have, I think, in a place where original works of authorship are being created in such unimaginable numbers. You couldn’t keep track of copyright ownership on the Net if you wanted to,” Post said. “There is no processor big enough or powerful enough to keep track of who owns what — not at this scale, not with these numbers.”
The copyright protection automatically granted to works violates the Internet’s very essence, Post said. After all, reproduction is vital to the Internet’s very existence.
“You don’t have an Internet — at least you don’t have this Internet — without reproduction of information,” Post said. “The Internet doesn’t really do much other than that. That’s how it does its job — that is its job: getting information from one corner of the network to another, each step presumptively infringing — a violation of the copyright holder’s rights unless you can point to an exception or a defense.”
Post said the problem is rooted in the current copyright law, which doesn’t scale appropriately. Before the Internet, laws were capable of offering protection without squelching creativity. On Planet Internet, the current copyright law protects too much, thereby classifying billions of works as illegal infringements. It is ill-equipped to address new forms of collaborative authorship and creative work.
The ideal copyright law, he said, would incentivize people to create works they wouldn’t otherwise have made while permitting the widest possible distribution, dissemination and reuse of works already created.
Post was inspired to approach the issue of copyright law in a new era of technology by Thomas Jefferson’s approach to the New World. When Jefferson became the U.S. ambassador to France, he had a moose carcass shipped to his home in Paris and assembled in his front hall. The moose, Post said, was a grand gesture intended to debunk the prevailing belief that the animals in the New World were smaller versions of their European counterparts.
“The moose wasn’t just big, it was new. Jefferson was killing two birds with one moose — the big and the new. Jefferson wanted to dazzle; he wanted to show people in the Old World that there were, in the New World, things they had never seen before. It was part of a lifelong project to create the New World. . . to start fresh, to wipe the slate clean of old ideas, old ways of doing things, so we could design a new system more appropriate for the new place.”
Post presented his “moose” — a video and audio compilation featuring dozens of musicians playing different songs. Post said the remix was an example of work that would be impossible to create legally under current copyright law. It would be impossible to identify and contact all the musicians and obtain rights to the musical works, sound recordings and visual effects.
Post said he does not have the answers to determine how the law for Planet Internet should look. Instead, he said, members of the legal community should tackle reform together.
“Reasonable people will disagree, of course, about what kind of copyright law will be best in this thought experiment,” Post said. “That’s the conversation we should be having, it seems to me. What kind of law makes sense in this environment? If it’s not the law we have right now, then how do we transition from here to there?”
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