Zombie Copyright Laws

The question of whether we as a global society need to rethink copyright laws is probably the least interesting or controversial part of the current debate. Yes – of course we do. Perhaps the best illustration of why we need to overhaul these laws comes from the US Court case of Captial Records versus ReDigi back in 2012 and 2013.  ReDigi is an innovative software company that seeks to all buyers of digital music the same ability to resell that music that those who buy records, tapes, and CDs enjoy. Below is the story from NPR’s Planet Money with the details of the case.

A transcription of the final decision of the case is as follows:

“Finally, ReDigi feebly argues that the Court’s reading of Section 109(a) would in effect exclude digital works from the meaning of the statute. (ReDigi Mem. 21.) That is not the case. Section 109(a) still protects a lawful owner’s sale of her “particular” phonorecord, be it a computer hard disk, iPod, or other memory device onto which the file was originally downloaded. While this limitation clearly presents obstacles to resale that are different from, and perhaps even more onerous than, those involved in the resale of CDs and cassettes, the limitation is hardly absurd – the first sale doctrine was enacted in a world where the ease and speed of data transfer could not have been imagined. There are many reasons, some discussed herein, for why such physical limitations may be desirable. It is left to Congress, and not this Court, to deem them outmoded. Accordingly, the Court concludes that the first sale defense does not permit sales of digital music files on ReDigi’s website.”  US DISTRICT OF NEW YORK No. 12 Civ. 95 (RJS) CAPITOL RECORDS, LLC, VERSUS REDIGI INC.

Notice that Judge Sullivan rules that the law only protects the owner’s right to sell a “particular phonorecord”, not the digital recording itself. In other words, if you want to sell the songs you don’t want on your iPod, you have to actually sell your iPod.  Judge Sullivan continues, stating “It is left to Congress, and not this Court, to deem (any shortcomings) outmoded.” If this is not a plea to Congress to clarify and improve it’s copyright laws, then it’s hard to imagine what is.

The need for copyright reform is made that much more clear by Lawrence Lessig in his TED Talk, “Re-examining the remix”.

In his talk, Lessig talks about how important it is that we find a middle ground, one that both encourages commercial production of content but also a “read-write” culture that feels able to remix and re-create that content in new, original forms.  Lessig notes that these ideas find support from both liberals and conservatives, and he quotes from Julian Sanchez, writer for the CATO Institute:

“Copyright policy isn’t just about how to incentivize the production of certain kind of artistic commodity. It’s about what level of control we’re going to permit to be exercised over our social realities, social realities that are now inevitably permeated by pop culture. I think that it’s important that we keep these two different kinds of public goods in mind; if we’re only focused on how to maximize the supply of one, we risk suppressing this different and richer, and in some ways even more important one.”

The need for copyright law overhaul is probably more clear than the proper way we should teach about it.  How do we help students, and teachers, find a middle-ground that avoids both unnecessary fear of publishing anything and a ‘copyright abolitionism’ that is often found among kids today? What’s even harder, how do we help kids understand these issues when they live in a country like Vietnam where it is virtually impossible for them to rent a movie legally? If they go to a DVD store to rent something, the copies are all pirated, and if they try to stream it legally from the internet it is often so slow that it is unwatchable.

I have spoken a few times with both our Tech Director and our MSHS librarian about copyright and attribution laws. Thus far, no one has been able to give me full clarity on the issues.  Part of the problem is the ambiguity of both Fair Use and attribution rules under Creative Commons.  I think that to be fair to our students we need to ‘teach the controversy’ and present this as an interesting but somewhat ambiguous situation. I would love to teach about this as a mock court case or debate. Is there an obvious middle ground solution that would help everyone but just can’t get political traction, or is it inherently muddled?

The ability of students to participate in modern popular culture with creation, re-creation, and imagination is greater now than any time in the past century.  One of the best TED talks I saw on this was by Kirby Ferguson, called Embrace the Remix.

Media companies may be trying to cling to their copyrighted content as long as they can, but in the long run it seems like that will only backfire. If kids today are told to follow unreasonable laws, then when they are the majority we may well end up swinging to the opposite side of the pendulum.