This is too long for a blog posting, but here it is -- my lunchtime address to the Copyright Office. 

I'm delighted to be here this afternoon, and thanks to my hosts.  Particularly appropriate that you've come here to Cardozo, which has one of the top-ranked IP programs in the country.  I'd tell you we were ranked sixth, but that information is under lock and key until this afternoon.

I'm proud to be talking to you.  The copyright office leads the establishment of copyright policy for this country.  You provide invaluable domestic and international policy advice and take part in treaty negotiations.  You're a vital congressional agency

The copyright office serves the nation and communicates to the public about copyright policy.

You understand the copyright balance better than anyone.  You understand that copyright is a tradeoff between exclusive rights being accorded to authors and copyright owners, on the one hand, and public, lawful use of works on the other.  You know that we provide statutory intellectual property incentives to innovators to produce new creations -- because we have a desire to provide to society a steady stream of follow-on innovations that lead to further gains.

But I'm here to tell you during this peaceful lunchtime in this lovely setting, right here at the intersection of 12th and 5th, that copyright policy is being taken away from you

And you may never get it back; and if you're told that you're in charge of it, as you assist with international negotiations, you're not being told the truth.

Where is copyright policy for the internet age being made?

three quick examples: 

first -- the story of the clever state statute

As you probably know, bills to protect cable and movie companies, based on an MPAA model, are moving rapidly through numerous state legislatures. The only problem is that we don't really know what this legislation will end up doing, and it's very broadly drafted.

The MPAA says these are just updating telecommunications and cable- theft laws to reflect rapidly changing digital technologies.  They call them "theft of service" legislation, and often there is no discussion of these bills at all before they're passed.  The form of these bills is changing,  but they're continuing to be mounted in the states.

But the laws as drafted go far beyond protecting the copyright interests of cable and movie companies. The bills reach into homes to control what kinds of devices consumers may use in connection with the services they've paid for. Consumers have never needed the "express authorization" of their cable or phone company before buying a new TV, VCR or PC.  But now they may.  

So, they're called "theft of service" laws but can be understood as "theft of copyright policy" laws.  As the people who know about copyright policy know, a copyright owner hasn't in the past had the ability to proclaim what kind of machine can get access to his content.  Last time I checked, it was still the law that a copyright owner’s statutory monopoly will not reach a device so long as that device is “merely …capable of substantial noninfringing uses.”

Next:  I'll call this The Case of Policy By Demand

Another way in which copyright policy in the internet age is being shaped is by demand letters being sent under the authority of the DMCA.  You're probably familiar with the genre -- there are many recent particularly egregious examples:

Diebold used DMCA demand letters to attempt to cut off political speech about the competency of its machines

Chamberlain claimed that the DMCA's anti-circumvention provisions prevented competitors from developing products that inter-operated with Chamberlain's garage door openers,

Sony claimed that game enhancer software violated the DMCA (by outlawing avoiding country codes for games).  this gave Sony control over complementary games and stopped competition with Sony's OWN game enhancer

Sony, again, used the DMCA to threaten hobbyists who created competing software for Sony’s Aibo robot dog.

Lexmark threatened aftermarket laser printer toner vendors that offered toner cartridges to consumers at lower prices. 

This seems like anticompetitive behavior -- controlling markets by controlling anti-circumvention techniques, and using demand letters to do it.  This was not what Congress had in mind when enacting the DMCA.  And you know that better than anyone.

And those are just the things we know about that have become lawsuits.   You might suspect that many demand letters are going out that don't ripen into lawsuits because the demandee just doesn't want to spend the money to fight.  And ISPs receiving letters like this may be cutting people off so as to avoid hassle.   Even though many of these claims are far away from what the DMCA's job was supposed to be. 

What does this tell us?  that copyright policy is perceived to provide an engine of control over aftermarkets -- not the balanced regime you know it is.

And finally:  the Case of the Breathtaking Reach

The FCC's recent rulemaking in the broadcast flag matter raises significant questions about where copyright policy is going.  The name of the proceeding was changed at the last moment from "copy protection" to "content protection."  But it's really all about copyright.

The video content industry has successfully convinced the FCC that television broadcasts need to be protected against online redistribution by people who receive such broadcasts.  This fight is not (really) about television broadcasts.  This fight is really about the protection of the video content industry's business model.  This 20th century industry is very afraid of the effects of the online world on its ability to protect content from unauthorized distribution.  The friction of the offline world (the cost and difficulty of making hard copies) does not exist online, where perfect copies can be made instantly of the largest conceviable sets of bits.  So distribution control is made much more difficult online.

The broadcast flag rule, distilled to its essence, is a mandate that all consumer electronics manufacturers and information technology companies ensure that any software or device that touches digital television content protect the content against unauthorized onward distribution.  In order to make this happen, the FCC has established a new and extraordinarily broad regulatory regime that mandates the use of "authorized" content protection technologies by virtually every consumer electronics product and computer product -- including digital television sets, digital cable set-top boxes, direct broadcast satellite ("DBS") receivers, personal video recorders (PVRs), DVD recorders, D-VHS recorders, and computers with tuner cards. Until the FCC can settle on a new regime for approval of "authorized" technologies, it itself will decide which technologies manufacturers are allowed to use. 

In effect, the broadcast flag rule represents a (so far) successful effort by the content industry to shift the costs of protecting controlled distribution of their product from their shoulders to those of  the high-tech and consumer electronics manufacturing sectors in this country.  Rather than have encryption or other protection travel with the content, and having the evasion of such encryption be subject to enforcement actions under the DMCA, the idea is that protection of such content will be assured by machines after they have received it.

The broadcast flag proceeding started off in August 2002 entitled "In the Matter of Digital Broadcast Copy Protection."   The NPRM clearly stated in its first paragraph that the issue with which the FCC was concerned was about protecting copyright rights:

"Without adequate protection, digital media, unlike its analog counterpart, is susceptible to piracy because an unlimited number of high quality copies can be made and distributed in violation of copyright laws."

The FCC's logic appears to have been that without a broadcast flag scheme in place, "high value" content would migrate away from broadcast and towards cable and satellite systems -- in which content was encrypted before it was sent out, and thus protected against infringement.   The FCC was clearly concerned about protecting the copyright rights of the content owners. 

The flag is itself a very simple signal that will have to be listened to and implemented by a huge array of devices and software programs.  It is the implementation of the flag that matters -- the mandate that devices have to follow its dictates.  And once one device in a home follows the flag's rules, all content received by that device, whether broadcast or not, in the public domain or not, copyrightable or not, can't be sent outside the home.  It's the vampire rule -- once I bite you on the neck, you're mine.  All consumers will be protected against their own "unauthorized uses." 

Also, slightly inside baseball, the Commission is being urged to create a definition of a PDNE (personal digital network environment) within which copying and transmission can occur.  This is an incredibly broad request to do something incredibly constraining.  The MPAA is suggesting that the Commission define a "local environment" within a tightly defined geographic area.

Wait a minute.  I have content provider bona fides.  Both my parents are composers.  But this is the era of the internet.  Things don't happen in a "local environment" any more, and to suggest that they do seems to attempt to avoid involvement of the internet in digital media altogether.

This is, quite simply, breathtaking.  And once the public figures out what's going on in the name of protecting copyright policy, they'll be furious. 

And I'm not even going to start with the effort to close the analog hole.

these are just sketches of what's going on.  And I'm a centrist on these matters.  But the polemics of copyright policy has become these days like a threat -- if you're not with us, you're against us.  There's the rising perception that copyright owners have control over all unauthorized uses.  As if the mere right to control is the ultimate end of copyright policy.  It's the new normal.

But you know that this new normal isn't reflective of actual copyright policy as was intended in the Constitution or by the framers.  And that the enlistment of neutral third parties in the implementation of this new normal (manufacturers, ISPs, software companies) is overreaching.

A key part of the copyright policy response has to be resisting the claimed "newness" of this situation.  The same arguments are still being made over and over again about bad generation of internet users feeling they have an entitlement to listen to music while, meanwhile, new business models are taking off -- and the video guys will have the same experience.

In fact, this isn't so new.  It certainly doesn't require new laws, new bureacracies, or new asymmetries of information [Koh talk about Patriot Act compliance].  What do I mean by that?

What authorities don't copyright owners already have?  We need to ask that question.

We need some demonstration that the authorities already given (like the DMCA) have been wisely used.

We need to question whether new institutions should be making copyright policy -- why does FCC get to start making copyright policy?

Why does the "new normal" include such asymmetry of information?  Content owners can get all information about uses of their content, but there's no evidence that we're getting more or better content as a result -- no tradeoff for this

Technology is not a substitute for ideas; even new threats do not require new rules (new legislation), new bureaucracies (such as the FCC), or new asymmetries of information (in any mandated DRM context).  We need to resist the claimed necessity for these things, and, overall, the idea of the new normal.

It's gotten to the point where even mainstream manufacturing companies are worrying about balance -- recent report by the Committee for Economic Development, a group of mainstream US businesses that has taken strong public positions on the Marshall Plan and campaign finance, evidences this, where we took a hard look at the effects on economic growth of the nation of implementing the "new normal" in the digital world.  And these companies weren't happy.

You, the copyright office policy makers, are the keepers of the flame.  Don't let this happen.  Don't let copyright policy be made without you.