Modernizing Copyright Law for the Digital Age

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Telecommunications and Electronic Media Practice Group, was recorded on March 31, 2020 during a live teleforum conference call held exclusively for Federalist Society members.

 

Micah Wallen:  Welcome to The Federalist Society's Teleforum Conference Call. This afternoon's topic is titled, “Modernizing Copyright Law for the Digital Age.” My name is Micah Wallen and I'm the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

     

      Today, we are fortunate to have with us our Moderator, Professor Adam Mossoff, who's a Professor of Law at Antonin Scalia Law School at George Mason University, as well as a Senior Fellow and share of the Forum for Intellectual Property at the Hudson Institute. Adam will be introducing his fellow panelists today.

 

      After our panel gives their opening remarks, we'll then go to an audience Q&A. Thank you for sharing with us today. Adam, the floor is yours.

 

Prof. Adam Mossoff:  Thank you, Micah. And it's a real pleasure to be here. And I'm very excited to be moderating this teleforum today, discussing with the authors of a fantastic new book new book on copyright and hearing commentary and reactions from a highly regarded and renowned law professor who will be commenting on their insights and policy proposals.

 

      The book is called Modernizing Copyright Law for the Digital Age: Constitutional Foundations for Reform, which was just published a couple weeks ago. The authors are Randy May, who's President of the Free State Foundation, and Seth Cooper, Directory of Policy Studies and Senior Fellow at The Free State Foundation. They are both on our teleforum today and they will be kicking off our panel by providing some remarks about their book and its prescriptions for some of our concerns today about copyright in our new digital age.

 

      After they speak, Professor Michael Risch, Vice Dean and Professor of Law at Villanova University Charles Widger School of Law will provide commentary. Then, we'll open it up to the audience for a question-and-answer period. I'm not going to list all their accolades and achievements over the past years because there are too many and you don't want to hear that. You actually want to hear them talking about the substance of their book. And so without much further ado, I'm going to, first, turn it over to Randy May, who will kick off our panel and give remarks about his newly issued book. Randy?

 

Randolph May:  Thanks, Adam. And first of all, I just want to say, on behalf of The Free State Foundation, we know many of you, of course, that might be listening, we hope everyone is well and stays well. That's the first order of business. Thanks to The Federalist Society for hosting, to Professor Risch for participating, and especially to Adam Mossoff for moderating this session.

 

      If you are listening in to this call, I almost certainly don't need to tell you that Adam Mossoff is one of the country's foremost scholars in the intellectual property field. And Seth and I, along with so many others I'm sure, are indebted to Adam for his leadership. I'm just going to briefly set the stage for the discussion and leave the heavier lifting, at least initially, to my co-author, Seth Cooper.

 

      So before saying just a word about our new book, I want to take a minute or two to say something about our earlier IP book, titled The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective, just in case you happened to miss the FedSoc teleforum discussing that book, back in October 2015.

 

      The purpose of bringing up the earlier book is not only to get you to buy that one too, although that would be nice. But to help you understand the philosophical disposition that informs and grounds our thinking. You'll note that the subtitle of Modernizing Copyright Law for the Digital Age is constitutional foundations for the forum. So constitutional foundations is part of the title of both books, and for good reason.

 

      The first book set forth in, hopefully, clear terms for related foundational premises. One, that each person has a natural right, that is a right not bestowed at the sufferance of government, but rather one that preexists the formation of government to enjoy the fruits of his or her own labors, including intellectual labors. Number two, that the fruits of those labors become that person's property. Three, that a primary purpose of civil government is to protect that private property. And four, that this natural rights understanding to property is a principle underpinning of the "exclusive right" given to authors and inventors by the founders in the Constitution's Intellectual Property Clause.

 

      The first book explained how those foundational principles informed the development of IP rights from John Locke through, and right after, the Constitutional Convention, through the first Congress, and up to Abraham Lincoln's thinking about Free Labor. In 1847, for example, Lincoln wrote, “each individual is naturally entitled to do as he pleases with himself and the fruits of his labor.” Or, as he put it to the same affect in his more colloquial way, "I always thought the man that made the corn should eat the corn."

     

      So the new book, simply put as we say in the introduction, aims to connect constitutional principles and historical insights to specific recommendations and policy prescriptions for modernizing U.S. copyright law to meet the marketplace and technological challenges of the digital age.

 

      This new book picks up the story, more or less chronologically, where the first book left off. And in so doing, by design, it is much more topical in the sense that it addresses current copyright modernization issues right up to the present. So before turning over the mic to Seth, I just want to list some of the subject areas addressed in the book, all in the context of the copyright modernization project, international trade, public contracts, private contracts, compulsory licensing, and rate regulation, antitrust, NIT, so-called moral rights, the music licensing regime, and civil and criminal enforcement reforms relating to securing IP rights. 

 

      So with that, Adam, I'm going to turn it over to Seth and look forward to rejoining you when we have questions. Thank you.

 

Prof. Adam Mossoff:  Thank you. Seth?

 

Seth Cooper:  Well thank you, Adam. Yes, our new book, Modernizing Copyright Law for the Digital Age: Constitutional Foundations for Reform, it sets out, Randy and I, a number of ways that Congress should update copyright law, particularly for digital media formats. That would make them more protective of copyrights. And protection of the copyright owners exclusive rights to the proceeds in their creative works. I'll briefly here, in the time I've got, touch on a few of those.

 

      First and foremost, we advocate that Congress should modernize the Notice and Takedown Provision contained in Section 512, the Digital Millennium Copyright Act of 1998. That's a mouthful to say, but the Notice and Take Down Provision, that's a process that we have in place for addressing and removing infringing copies of copyrighted works on websites. So, in a nutshell, how it works is, Section 512 gives online internet services, online platforms, safe harbor from copyright infringement claims for infringing copies of content posted on their websites when those services respond expeditiously to take down requests that are provided to them by the copyright owners. So the copyright owner notifies them that fringing copies of their works on their website, and they point to it. And if the online platform sees that their user had, in fact, posted that and they remove it expeditiously, then they're immune from liability for civil copyright infringement.

 

      And I think in 1998, the way the law was written, it made a lot of sense back then. I certainly remember using the internet, then, as a college student. There were far fewer internet users. Less than three million websites, I believe. And there were far fewer web surfers, far fewer services. And the platforms that we had were certainly more in the order of very passive conduits with really limited ability to upload anything of, certainly, any media size. And we certainly had limited ability to download or move things around because many of us were on 56K dial up modems. And so, the problem today is that the Notice and Takedown systems become overwhelmed by extraordinarily high volumes of uploads of copyrighted movies and TV shows and songs on some of the very popular online platforms.

 

      So users of YouTube or Vimeo or Facebook will upload these things. And how it comes about is that sometimes a copyright owner will have to issue several hundred takedown notices regarding a single work, created work of theirs, on a single website. It could be because it's posted on numerous webpages across their sites. And so as soon as they issue a number of takedown notices, new infringing copies are posted. So the process begins, and they've got to send out new notices. And then new copies pop up and they've got to continue. And so this state of affairs is particularly burdensome for the individuals. And the small and medium size business that are copyright owners, they simply lack the means to proactively monitor the online platforms and promptly issue those kinds of mass takedown notices.

 

      And one other factor that goes into why the system needs to be modernized is not simply the overwhelmed by volume, it's also the major online platforms that we've discussed have changed. You can now have a user upload HD Video, phones, and websites. Everybody's connected now with highspeed internets, Wi-Fi, ubiquitous smartphones, and devices like that. And also, the major online platforms have changed in the sense that they are not mere passive conduits anymore. They make their content, the user upload, content indexable and searchable. They'll recommend to users new content for them to check out, based on their perception of the user's interest, things they've liked before. And it's in their interest to keep you there because they like to intersperse or run ads alongside whatever content is there and draw substantial revenue from advertising dollars.

 

      Factoring, yet again, into why we think it should be modernized, and we go into it in the book, is that court decisions interpreting Section 512 have made it more difficult for copyright owners to establish, or basically get movement, from the online service providers or to try and establish that they didn't comply with their duties and obtain the safe harbor.  Basically, in a nutshell, copyright owners now effectively have to show that an online platform had specific knowledge about a specific copyright work on a specific webpage. An online platform's frankly more likely to avoid legal responsibility by remaining oblivious. Because it's created a scenario where the more they're aware of the infringing content on their site, the more responsible they are for taking it down.

 

      So this year, the Senate Subcommittee on Intellectual Properties is holding some hearings on the DMCA, a DMCA review hearing process, and they've already held a couple of hearings, one in February, one in March. And my hope is that through those hearings, or through other legislation, that Congress will look to transition Section 512 from a Notice and Takedown system to more of a Notice and Stay Down system. And under a Notice and Stay Down kind of scenario. One the online platform's to be given a notice by copyright owner that a particular copy of an infringing work is on their site, a particular movie, a particular TV show, a particular song, once that service has noticed the online platform that that work is there, across it's website, then the duty would be on the online platform to  expeditiously remove the infringing content—the websites that are identified—but also it would have a duty, then, having received notice to more proactively monitor and remove future postings of that same particular infringing work and relieve the copyright owner of the burden of having to issue all of those new notices.  And certainly, then, there'd be less notices going even to the online service provider for that work.

 

      So that's one important way that Congress can modernize copyright law. A related way, that would maybe go a little step toward alleviating the situation with online copyright infringement would be for Congress to setup a small-claims process for dealing with infringement. The costs of copyright owner pursuing a civil infringement case in federal court can easily reach a six-figure amount. Go to 100, $150,000. And that's particularly unrealistic for copyright owners who are individuals, meaning small business. The economics of that just don't work.

 

      So right now, in Congress, we've got the Copyright Alternative and Small Claims Enforcement Act, also known as the CASE Act. And that's a promising measure. It's an access to justice measure for copyright owners with more modest means. It would set up within the U.S. Copyright Office a less expensive, voluntary venue for bringing claims where the damages are 30,000 or less. And that would encompass a number of online infringement type of claims. So the tribunal to be setup would consist of three member who have a background on copyright law. To bring the claim forward would require, not only a petition by the copyright owner, but the alleged infringer would have to consent. And then the decisions would be, like an arbitration decision, could be legally enforced in a court of law.

 

      So the CASE Act HR-2426, it passed the House of Representatives in October of 2019, but it stalled there. So we need to see some action in the Senate. And with the last couple minutes here, a minute or so, I'll offer one more way Congress could modernize copyright laws by more fully recognizing that sound recording owners have rights to request compensation when their songs are played on AM/FM radio stations.

 

      Under current law, if you've got a copyright owner of a sound recording, satellite radio providers, Sirius XM, plays their music. Or a webcaster, like Spotify, plays that sound recording to subscribers. Those music services have to pay a public performance royalty to the copyright owner of the sound recording.

 

      AM/FM commercial radio stations, however, are exempt from this. So they've got a special carve-out. So they don't have any obligation to pay public performance royalties when they're broadcasting copyrighted sound recordings over the air. And so from a competition policy standpoint, I think that's pretty obvious that that's an unfair advantage for broadcast commercial radio stations. Give them a leg up on Sirius XM and the webcasters. But it can also mean a deprivation of compensation for the copyright owners. They're not getting the public performance royalties for their sound recordings. And I'll just add to that interesting facet is a 2015 study by the U.S. Copyright office, noted most of all, the industrialized nations out there have a wider public performance right for sound recording than the United States, because we don't. It creates a lack of reciprocity for our folks in foreign countries and it causes them to forego royalties they otherwise would have received for foreign usage of their songs or creative works.

 

      So I'll quickly point to the Ask Musicians For Music Act, that's the AM-FM Act that's now pending in Congress. That's S.2932 and H.R. 5219. The AM-FM Act would give commercial radio stations -- well, it would require them to get consent from the copyright owners of sound recordings before they broadcast them. And so what this would do is basically give the copyright owners of sound recordings recognized for them, a choice. They can continue to let the radio stations play their music for free over the air, and perhaps many of them would do that. They would find there's a kind of an in-kind compensation for the publicity. But it would also give them the choice, as well, to require compensation first. And I think that choice should be in the law. I don't think the law should come down on the side of radio and make that decision. It should belong to the copyright owner, who can decide what to do with their creative and intellectual labor.

 

      And so those are the three issues we touch on in our book, particularly in chapters four and eight, and I look forward to further discussion. Thank you.

 

Prof. Adam Mossoff:  Great, thank you Seth, and Randy for both doing great jobs summarizing your scholarship research and monographs on these important issues. And so now I'll turn the panel over to Professor Risch.

 

Prof. Michael Risch:  Hi. Thank you. Thanks for having me. As I get into just a brief discussion of some of these issues, I guess the first thing that struck me as I was reviewing some of the proposals from the book and hearing it now, is that a lot of this depends on your priors. So, for example, if your priors, obviously, are Lockean view, then you will definitely come down one way. Of course, it also depends on how you view the Lockean view that is, for example, do you have a view of Locke that supports fair use and what does that mean?

 

      But even as we talk about paying for public performance for AM/FM, which I'll mention only briefly, on the one hand, it makes perfect sense that we would pay for public performance. We do so for digital performance. On the other hand, the history of sound recordings in this country was that there was no public performance right for sound recordings. There never was. And in fact, paying any kind of royalty, or protecting at all, sound recordings for public performance, for digital performance, is in fact, the aberration. The change from a historical perspective.

 

      So it all depends on where your starting. I don't have a strong view on that. I've always found it odd that we have one regime one way and one regime the other way. I tend to fall on the historical side, that if we've never covered it before, there's not a great reason to cover it now. But I suppose I could be persuaded.

 

      The DMCA, I think, is an interesting point. Because both sides have been complaining about how awful the DMCA is, basically, since the day it was passed. And that's always made me wonder if the DMCA strikes the right balance in the sense that the folks who are copyright owners say that the DMCA requires them to send hundreds, if not thousands, of takedown notices. The folks who are service providers or people who are uploading to service providers are saying, we're getting these takedown notices for stuff that's fair use. And you ought to have to do a little more work, especially when people are putting up stuff that's licensed and there are takedown notices for stuff that's already licensed. And nobody's doing any kind of discretion. We should put a little more burden on the copyright owners to figure out what's going on.

 

      So to me, and this is where the priors matter, this is like a Coasean problem of the Lockean rights distribution. On the one hand, do we give the initial rights to the copyright owner to say, you can't use unless we permit. Or do you give the initial rights to the service providers, where it says, we can use unless you say we can't.

 

      Now, of course in the Coasean, no-transaction cost world, it wouldn’t matter who we gave the rights to. They'd work it out. But we do know there are transaction costs. And so where we start really matters and each side has its arguments. One side says, look we have to send in all these tens of thousands of takedown notices. The other side says, look you're not accounting for fair use. Most copyright owners have money and have more education than the un-monied people who are uploading snippets of code. Like I said, I don't have a strong view on that, other than my priors, we want to minimize those transaction costs in this Coasean world, and I'm not sure that shifting all the rights to the copyright holders does that.

 

      Although, I'd agree with the authors of the book, with Seth and Randy, that some of the case law has been developed not so great. So for example, the red flag. It'd have to be a red flag on every single item, as opposed to a red flag for how the website is operating. To me, I've never really liked that. That doesn't make sense to me. In part, because of my view of these transaction costs. The next frontier, I think, where this is being fought is in fair use. The question of whether or not copyright owners have to determine that it's not a fair use before sending a takedown notice. This, too, is just an allocation of initial rights. And where you fall depends on what you think's important. Where you think the money is, where you think the harm is. And I don't have strong feelings on that, but I think it's important to recognize the priors. That a lot of the view of what's right depends on who you think should have the rights, even in the Lockean world.

 

      So with that, I will send it back to Adam to keep going.

 

Prof. Adam Mossoff:  Thank you Michael. Fantastic and it was a great opening panel. I'll kick off the discussion period with the panelists by coming back to all the panelists. Because Professor Risch, you've also done a lot of very extensive historical research. Really excellent historical work, as well. In the sense that I wanted to ask, though, Seth and Randy in particular, about the historical foundations and, I've caught up with the theoretical justification for copyright. And maybe push back a little bit on the issue of, was copyright even historically really justified by natural rights, and not just viewed as a simple economic policy judgment by the American legislatures and judges.

 

      And one example that one often hears, for instance, is that copyrights were actually not viewed as securing the natural rights of the fruits of one's productive labors is that, the U.S. did not provide for copyright protection of foreign authors for a very long time. For almost approximately 100 years after the creation of our country. And that would seem to run counter to a natural rights justification for something like intellectual property, more generally even, in the sense that one's particular basis from a particular country shouldn't be relevant from a natural rights perspective. So do you have any responses to that? And also, I'd love to hear what Professor Risch has to say, as well.

 

Randolph May:  Adam, maybe I could just say a bit, and then also let Seth respond. But I just want to say, first, that having heard Professor Risch, I really do appreciate your being with us. And I thought your comments were helpful in framing the way we think about, the way you referred to, the priors. Because I think in my introductory remarks, I was quite upfront and explicit in terms of suggesting that our philosophical disposition towards the natural rights theory informed our thinking about these issues. And I think what you said validates that and how, depending on that philosophical disposition or historical understanding, you might tend to approach it one way or another. And I thought, and I'll get back to Adam in a minute, but the way you talked about the DMCA and which side of some of these issues you would come out on that, in terms of the allocation of the initial rights, in that case, whether to the creator, I think you put it, or the service provider. I think it really suggested that that's an important point.

 

      And so I would just emphasize that, again, a lot of this is -- it's even more than a lot, it's really pretty much what the whole initial book was about, the constitutional foundations of intellectual property, really was an attempt to suggest that, in the Constitution, that the Founders were making a determination to incorporate natural rights thinking. And we discussed these in the book, the caveats, and there are some exceptions. But that was the import of the book.

 

      I guess on Adam's specific question about the recognition of the rights of foreign authors. Maybe they had an America first policy back then. No, I'm saying that ironically. I'm not sure of the extent to which that was discussed. But certainly, you could point to that as one of the ways in which the philosophical disposition and understanding wasn't carried all the way through, or in logic. But I think without really defeating, or undermining, what I would think would be -- what we think is the weight of evidence that grounds, really, the Intellectual Property Clause. I'll leave it at that.

 

Seth Cooper:  Well thanks, Randy. If I could jump in here and add a little bit to this. The interesting point, there, about the lack of recognition of copyright of foreign authors in early America. That's an interesting subject. It's something we touch on, actually, in the first chapter of our book. What we found there was that, the case, it hadn't been recognized to that point in the early part of the first century, or so, of the United States. But the early advocates for international copyright, by which I mean, the Americans who wanted to see that their copyrights were secured and were willing to accord that reciprocal treatment to foreign authors, they made a case based on natural rights. And they thought the real problem was that that wasn't being enforced and the rights were being denied them. And they tried to make, also, the case that bringing that about and recognizing copyrights for foreign authors would allow the American authors to get their due respect and their rights for their works overseas.

 

      And so I think that was -- natural rights arguments were very much prevalent. And as we argued in the first chapter of the book, really the arguments against it were -- they were kind of “America First” sorts of arguments, and they were practical ones. The government was just getting going, it wasn't that big and would have difficulties enforcing.

 

      And there's certainly American publishing houses that had monopolies that were at risk there. So if they were to stop pirating Charles Dickens works, for instance, and pay authors, that would really start to hurt them. And as far as the historic development, also, of other aspects of copyright protection and sound recordings and things like this, we go into that in chapter eight and some of our other aspects of our book.

 

      Just because a particular era, or string of eras, doesn't give full respect or treatment to what we believe to be a natural right, doesn't mean that it doesn't exist. But certainly, the context -- there's always a context when you're talking about natural rights, when it isn't just in the abstract. The context made it more imperative that those rights finally be realized, and it caused people to recognize the value that was there. It was being created by creative artists in different mediums and music, in particular, and in motion pictures.

 

      And then finally they would, the legislation would catch up. And so, simply because it wasn't there previously, I understand at a given time, Congress always needs to be careful. But in a sense, the history of copyright is the history of that kind of progression. Going from the Copyright Act of 1790 and everything since, Congress would slowly, bit by bit, recognize that there are new types of property being created, new sources of value, new creative works, and there is a creator.

     

      There is a creative labor. There's a value that's created. And so there is some kind of some way of obligation for protecting that value for the creative artist. And there are always judgment calls that got to be made and the context can change and technology and bring about new opportunities. But we think that the natural rights framework offers a set of principles for looking at that context and setting a policy that makes sense with the technological realities of the day.

 

Prof. Adam Mossoff:  Thank you. And you and Randy spent so much time on the overall view and then the particular policy prescriptions, I was hoping that we might get a little bit of filling in on some of the details on the priors that Michael was referring to and referencing as guiding this discussion. So that was excellent. Thank you.

 

      Michael, do you have any views on this matter, or contrary perspective than what's been provided by Randy and Seth?

 

Prof. Michael Risch:  I have some views, but not enough to extend the conversation too long. If we're looking at the time of when we created the Constitution, we have precious little information about what was considered. And we have different people have uncovered different things, like the French influence. And we've got Thomas Jefferson and Cicero and the whole bit. And so I think it's tough because you look at what was covered historically. Drawings, etc., were not originally copyright protected. What do we make of that; the fine arts? To me, it's hard. When the words of the Constitution say, promote the progress, but then what does that mean when we say, inventors and authors, etc., what do we mean by exclusive rights. It's hard and there are different views. And I'm sympathetic to the Lockean view. I wrote an article about the Lockean view of trade secrets. But it also included the Utilitarian view of trade secrets, because I am torn, and I continue to be so.

 

Randolph May:  This is Randy, if I could just add quickly, because Michael brought up the AM/FM exception to compensation for the sound recordings. And so this is a present-day issue and obviously the Founders didn't spend a lot of time thinking about sound recordings or AM/FM stations. But so you think about it fresh, but I think originally, I think that exception was based on the notion, or primarily on the notion, that radio -- when recordings were broadcast, that that was a benefit to the owner of the recording. And that was a good thing. And it was more or less, everyone was okay with it, with that notion.

 

      And this is an example, I think where, with the technology, it has changed, in our digital world, I think the sound recording property rights holders have other means of promoting their works and can do so in a variety of ways. And so I guess, in that case, it sort of an example where the presumption, the default premise for us, the prior would be that, if the owners of the recordings believe that they ought to be compensated for it, we can't find support for that in the Constitutional Convention. But the default premise ought to be that, because they created the work, did the labor, that that's under the natural rights theory and that's the way you would look at the trade-off with that presumption, in mind.

 

Micah Wallen:  We have three questions lined up as of now, and we'll go ahead and move to our first caller.

 

Mike Erickson:  Hi, this is Mike Erickson, from Utah, and I have a question about the small claims proposals that are being presented in Congress. When I've heard these discussed in forums like this, I've heard the perspective given of plaintiffs, and their need to avail themselves in a less expensive forum. I have not heard as much discussion and would like to ask about potential for providing such forum from the defendant's perspective. In my experience, with my practice, I have seen as much, if not more, abuse of copyright in federal court for small claims by plaintiffs that are attempting to use the leverage of statutory damages, or even in the cases without pre-infringement registration using federal court, and the expense of it, as a means to use litigation to obtain results that probably should not be obtained because of fair use or other defenses.  So I'm curious to hear what discussions are taking place as a possibility for relief for defendants who may need the ability to have their claims brought against them resolved in a small claims forum, just as much as plaintiffs may need that opportunity.

 

Randolph May:  Seth, do you want to take that?

 

Seth Cooper:  Well sure. I mean, I can't speak to your experience, of course, and I guess I will say that one aspect of the small claims thing is this is something of an experiment with the CASE Act. It would require the respondent to consent to the process. And so, if they're worried about something that's unfair, they could always simply refuse to consent. It could also -- certainly that kind of venue, any impartial or fair tribunal, we hope, would give a fair say to give opportunity for the respondent to say their peace and to make their defense. That would be my hope.

 

Prof. Michael Risch:  So I'll chime in, as well. I agree with you on the defense side. And in fact, they were talking about patent small claims, I submitted comments to the PTO in favor of patent small claims, in large part, for the defense cost. Because my view is, just because a claim is small, whether it be for patent or copyright, doesn't mean that it should be zero. And it doesn't mean that the only way to do it is to go into full-blown litigation that costs $5 million. And so there should be a way to have quick, cheap, easy litigation of these questions. My personal view is it shouldn't even be consensual. The claim is small, it goes to small claims, and it's fast, and it's done, and it's over with. But that's just my own view.

 

Prof. Adam Mossoff:  It was a great question that I think brought out some important institutional and procedural details that have been incorporated into the CASE Act and the development of the small claims court.

 

Micah Wallen:  All right. We'll move to our next caller.

 

John Meyer(sp):  This is John Meyer. My question begins with the point that the Constitution talks about patents and copyright for limited terms in order to support the privacy of useful arts, which seems to be the point, too, that the Constitution created an artificial type of property. And another point is, when your regular property, somebody appropriates it, you lose its use and enjoyment entirely. In the case of copyright, that is not true. You only lose the return. I think copyright has been expanding, and expanding, and expanding, and I actually think this is a very bad trend in particular. I think that they have almost repealed the Constitutional limit on copyright. It is not a limited term anymore. It's over 100 years, now. So my argument is that it's not a natural, it's an artificial one and that we need restraint. My final point is, it used to be true that non-profits basically got very easy treatment on that because the issue was mainly if you were trying to profit from use of somebody else's copyrighted work.

 

Prof. Adam Mossoff:  All right, well that clearly puts the ball back into Seth and Randy's court. Who wants to tee that up and lob it back?

 

Seth Cooper:  Well, I'm just going to go to our book and quote George Ticknor Curtis' treatus on law of patents for useful inventions. And I think he sets forth very eloquently, the view that we hold is, he stated that “in natural justice,—the ethics of jurisprudence by which civil rights are to be examined apart from all positive law, but on which positive law is usually founded,—the intellectual conception of an inventor, or a writer, constitutes a valuable possession, capable of being appreciated as a consideration, when it passes by his voluntary grant into the possession of another.” And we cite numerous others, Francis Lieber and others, who make a strong natural rights case for copyrights. I just simply disagree. I think that was overwhelming view, in early America, that was there when it was expressed.

 

      They always had other concerns in other America. But when they got to the point about why this is there, or why we should have these laws, that was a very common justification that was there, and I think it was genuine. I think it's correct. In terms of the Constitution's provision, yes. It provides for copyrights and patents for limited times. They recognized, I think, the Founders and later generations, that it doesn't make sense to have these rights and recognize copyrights in perpetuity forever. That creates practical difficulties.

 

      But the fact is, I think, that limited times is not in -- they could have said a particular term of years. They didn't do it. I think it makes sense, as time goes by, to always reevaluate and consider those things. And in an era when our lifespan's a little bit longer and our technologies are a little more advanced, I think it makes all the sense in the world to always look at these things. And I think the terms that we have make a lot of sense. And there's a lot of reliance on them now.

     

      And, I guess, getting back to the basic definition of what is a copyright, or even, what is a patent. And when we're talking about copyrights, it's a tangible expression  of an idea, a particular expression. And people are still free to come up with their own ideas, come up with their own things and touch on the same ideas. But express them in their own way. So I'll stand by the copyright terms that we have today, and I think that's fine.

 

Randolph May:  I'll just add quickly that the point about limited times in the Constitution's IP Clause is often brought up in this context. And I don't think it's my position, of course, that those words don't mean anything. Or that they don't impose some constraint, at all. But I think, it is my position, that ultimately that's a legislative judgment at least within the balance of sound reason and argumentation. We don't take the position, I think, in either one of these books, there wouldn't be an outer bound to what that limit is. And I don't think we take a position, really. We're not trying to address that, really, in specific terms what it should be, in either book. But that doesn't detract from the basic natural-rights premise that we've expounded.

 

Micah Wallen:  We'll go to our next caller.

 

David Emerson:  This is David Emerson of The Federalist Society out in Berkley. Question is more, relates back to the very first question that was raised about the small copyright claims. Like that speaker's experience, mine's been the same, that it's turned into what is a very significant problem from what was just a nuisance a few years ago, with the proliferation of the shake-down type of claims using a copyright troll approach to find de minimis violations and then extract small amounts from a large number, millions of people. 

 

      And I appreciate your response to the first question. But I wanted to focus more on the question of statutory damages and your thoughts on those, in this context. Because that's what tends to enable this behavior. Because most of the damages that were computed on a traditional basis are de minimis to the point of vanishing. But it's the statutory damages that enables the behavior. So I'd like to get your thoughts on statutory damages, or the whole damage process for handling these very small claims in view of your research.

 

Seth Cooper:  In chapter eight of our book, yeah, we go through, briefly, just the backdrop and the development of civil copyright protection and then the recognition of statutory damages. I agree with the views of the Congresses that enacted it. I think it's just simply necessary to be able to make the right practically enforceable. I understand, in any context, there can be abuses of any kind of law. It's a consequence of having any kind of legal power to enforce laws, is that some people can twist them to bad ends. Hopefully, a judge will recognize that, or a jury will recognize that in the case it may be. It can be very unfortunate, but we could talk about that in any kind of context, tort context, or otherwise. But I do think the statutory damages need to be there for copyright owners who are legitimately harmed to be able to vindicate their claims.

 

Micah Wallen:  And we did have another question lined up in queue, so we'll go ahead and move to our next caller.

 

Thomas Dillon:  Hello. It's Thomas Dillon here calling you from Geneva, Switzerland. Thank you for the fascinating discussion, but it's very odd, I think, that in this field, we're having a debate that essentially is taking place in the 18th century. And I wonder whether there isn't actually a problem with policy making on copyrights that the debate is constitutional, like Eldred v. Ashcroft. Everybody runs on debating what the Constitution means. But Congress isn't required to legislate. It's empowered to legislate. The real question is, should it legislate. So do you not think that the importance of this, this focus on Constitution issues, is actually some distraction in policy making.

 

Randolph May:  This is Randy, and I apologize. I'm not sure I could quite hear all of the question, but I think I got the drift of it. And I appreciate it, especially your calling in from Switzerland, so thank you. I think it's argued that, no, Congress always should, when it legislates, do that within the context of the constitutional backdrop, or even more specifically, be informed by constitutional constraints and dictates. And in this case, the Intellectual Property Clause is in the Constitution. It was actually the only federal right explicitly included in our Constitution.

 

      So I think that legislators today, in addressing the types of issues we discuss, can't and shouldn't ignore it. In fact, they should be informed by it. And again, I like the way that, when we started the discussion, Professor Risch talked about the priors and his understanding of the foundational premises. And our foundational premises. And we think that those have to inform, should inform, what Congress does. And that, not only, is required, but it also leads to proper legislation and sound policy, as well.

 

Prof. Michael Risch:  Yeah, I tend to agree with that. I think whether or not your view is Utilitarian or Lockean, or what have you, if you're looking at current legislation, you've got to have some basis to guide you. And so we may be looking back at the 19th, or even 18th century, but we're only doing so to consider how these bases guided policy then, and whether it should be the same way to guide us now.

 

Micah Wallen:  We have reached the end of the questions, for now. I'll toss it back over to you, Adam.

 

Prof. Adam Mossoff:  Yes. Excellent. It's actually perfect timing to wrap up the call, so I'll just bring it back to our panelists if they want to give any very quick closing remarks to close out the panel. Starting again, just going down in order, Randy, Seth, and then Michael.

 

Randolph May:  Well, I'll just quickly say, again, I appreciate Michael for joining us. Your remarks were helpful. I'm especially grateful to Adam for moderating. And all of his leadership. And you know, the subject at hand, I just thought it was a good discussion. I've participated in a lot of these teleforums, and I thought the questions were really good, as well. So I don't see the need to say anything further about this subject, but just to thank everyone again.

 

Seth Cooper:  Yes, I am grateful to you, Adam. I'm grateful to Professor Risch for joining us, two excellent intellectual property scholars. And if I could just say one more thing about our book, is that when you get a lot of discussions about copyright, or you read a lot on the internet, you're often dealing with legal practitioners and academics who operated at a very high, sophisticated level. I think our book tries to approach some of the contemporary issues from people who maybe have a public policy background, but not necessarily deep in copyright policy, and it can kind of give them a way into these issues and something that'll help in background and how to look at these issues. And I hope they will find it interesting.

 

Randolph May:  Hey, just quickly before Professor Risch, since Seth eluded to it, I will say bodaciously, we would not be unappreciative if you think you would want to buy the book. It's available on Amazon, even in a Kindle format. So if we've intrigued you, have at it. Thanks.

 

Prof. Michael Risch:  Yeah, thank you. I've enjoyed the opportunity to chat about this book, which is very interesting and provides, I think, a lot of well-grounded proposals, whether or not you buy into the philosophical underpinnings, I think a lot of the proposals make a lot of sense. And if you do buy into the philosophical underpinnings, I think they make a great deal of sense. And so I think it's a very provocative book and well worth looking at.

 

Prof. Adam Mossoff:  Excellent. And I just want to then close out by thanking both Randy and Seth for, not just your most recent book that we've been discussing, Modernizing Copyright Law for the Digital Age, but also your earlier fellowship as well, including The Constitutional Foundations of Intellectual Property. We all have found, unexpectedly, a lot more, perhaps, free time on our hands while we're waiting out the pandemic. Certainly, as Randy said, pick up a copy on Amazon, old dead tree format or Kindle version, and go to it. I'm biased, I have to say, but they're great page turners. And special thank you to Michael for coming and giving additional commentary and perspective on the book and on the issues that it raises.

 

Micah Wallen:  And on behalf of The Federalist Society, I just wanted to thank all of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.