What are the major criticisms of the copyright laws in the US?

What are the major criticisms of the copyright laws in the US?

As with any complicated statute, copyright laws burden some groups and help other groups. There are four common criticisms of US copyright laws that are applicable and relevant to the general public:

(1) Copyright laws don’t actually serve their intended purpose of “helping” the public.

(2) The laws are so overly broad that they actually stifle an individual’s creativity rather than encourage it.

(3) The laws are so complicated and unclear that they can be easily abused by companies with access to lawyers.

(4) It’s too complicated and expensive for individual artists to actually enforce the rights that the law gives them.

(1) Copyright laws don’t actually serve their intended purpose of helping the public

The official purpose of U.S. copyright law is to “stimulate artistic creativity for the general public good," but the public’s interest in getting the full ability to copy, reproduce, and get value from creative work is sometimes directly opposed to the media industry’s interest in making money off of its works for as long as possible. Some argue that the media industry’s successful campaigns to increase restrictions on the public’s ability to copy and improve on work has hurt cultural and scientific progress.

Historian Eckhard Höffner argues in "No Copyright Law: The Real Reason for Germany's Industrial Expansion,"  that Germany's rapid technological expansion and superiority by the late 1800s and turn of the 19th century was due directly to Germany's relaxed copyright laws. Using this reasoning, if copyright laws are truly there to benefit the public, they should be as flexible and fluid as possible. People who share this view take offense to the fact that lawmakers make copyright laws more stringent to support the financial interests of corporations at the expense of the public, whom the laws were originally created to protect.

For example, the Walt Disney Company was integral in lobbying for the extension of copyright terms to protect their ability to control and make money off of characters like Mickey Mouse who were created in the first half of the 20th Century.

Understandably, the people who have the strongest interests in lobbying lawmakers to change copyright laws are the companies that will make more profit if their works are protected in perpetuity. It’s not surprising, then, that these companies lobby for extensions to copyright terms whether or not they might benefit the public at large. Jack Valenti, the President of the MPAA (the lobbying organization for the film industry), even proposed that copyrights should be extended to last forever less one day.

One of copyright law’s highest profile critics suggests that because the general public isn’t properly educated on these matters, the public also carries this “erroneous” belief that intellectual property should be owned forever. “This view of the naturalness of intellectual property is not…the product of campaign contributions and insider corruption. The reality is that it reflects the understanding of ordinary people, too. The ordinary person believes, as Disney's Michael Eisner does, that Mickey Mouse should be Disney's for time immemorial. The ordinary person doesn't even notice the irony of perpetual protection for Disney for Mickey, while Disney turns out Hunchback of Notre Dame (to the horror of the Victor Hugo estate), or Pocahontas, or any number of stories that it can use to make new work.”  

In the June/July issue of Innovate from 2011, Stephen Marshall takes a look at the problem from the point of view of U.S. educators arguing that copyright law has to be rethought “in the face of Web 2.0 technologies…and suggests that, if educators do not speak up, copyright law will be taken over by corporate forces interested only in profit, to the detriment of educational uses of media.”

(2) The laws are so overly broad that they actually stifle an individual’s creativity rather than encourage it.

Many remix or use others’ copyrighted work to create new, innovative works. But these remixes occupy “a precarious grey zone of uncertainty.”  Whether they are legal or not depends on if the new work qualifies as “fair use.” This uncertainty and risk of being sued for infringement may stop people from creating the new work.

(3) The laws are so complicated and unclear that they can be easily abused by companies with access to lawyers.

The main defense to copyright infringement is fair use. But it is just that: a defense. What is and isn’t fair must be judged on a case-by-case basis, at an expensive trial. Both the uncertainty of the result at trial and the expense of going to trial gives large companies significant advantages over the alleged infringer. This may result in the alleged infringer settling and stopping her use, even though her use may be legal.

(4) It’s too complicated and expensive for individual artists to actually enforce the rights that the law gives them.

Even when a creator has a clear right to take legal action against an infringer, it’s often the case that the financial damage is so minimal or a case of copying is so difficult to prove that it’s not worth taking any further action. The complexity of the law and the high cost of hiring a lawyer to even evaluate a case makes it prohibitive to bring formal legal action against someone.

If one chooses not to litigate, one can attempt to enforce their rights through (A) cease-and-desist letters, (B) DMCA takedown notices, or (C) private dispute resolution mechanisms.

A. A cease-and-desist letter is a notice sent by an attorney that informs a potential offender of what he or she is doing that constitutes infringement, and advises them to stop doing it or else face some manner of legal action. A person receiving this letter may comply, but in some cases the recipient may seek legal counsel if he or she feels that no infringement is actually taking place. Without the real threat of a lawsuit though, there is often little to no reason to respond to a copyright holder’s request for the infringing party to stop infringing.

B. A DMCA notice (which stands for Digital Millennium Copyright Act) is a type of cease-and-desist letter sent by either copyright holders or agents representing them to online service providers (like web hosting companies or Facebook) that informs them that one of their clients is committing copyright infringement. The company that is hosting infringing content is legally required to take down the offending content and contact their client to inform the party whose content was taken down of the notice.

C. Finally, the only other way to solve a copyright dispute without resorting to potentially complex, expensive, and time consuming legal procedures are what I call “private dispute resolution mechanisms.” This just refers to various informal ways that people regularly solve disputes without hiring lawyers. For example, Internet message boards tend to have a policy of deleting offending content and banning users who post it. This is done privately, without legal or official representation. Moreover, celebrities can pressure large companies to make changes by appealing to their fan bases to boycott a service.

Professor Robert Merges proposes a very persuasive argument that the difficulty of enforcement actually helps correct the problems raised earlier about the uncertainty of the law. “Enforcement [of copyright law] is costly, therefore imperfect, therefore reality leaves generous margins for de jura illegal behavior to exist, which in fact becomes ‘legitimate’ due to practical enforcement problems. In simple words, much unlicensed remix is thriving under the present regime without actual threat of lawsuits for copyright infringement.”

Said another way, Professor Robert Merges argues that because the law is so difficult and expensive to work, it allows the market to allow gray-area or even illegal creativity to go on unpunished. Formal legal action is only taken when there are costly issues and it makes economic and business sense. Using Merges’ logic, clarifying the law to make it easier to sue and better defining the lines between infringement and non-infringement would only lead to creators and their creativity being stifled by litigation that doesn't make economic or business sense to engage in.

Zohar Efroni from Stanford's Center for Internet and Society makes the opposite conclusion, arguing that copyright law should be changed to reflect the practical realities of modern life and technological advancement: “Perhaps the fact that so much uncontrolled, unlicensed and illegal activity is happening should help to recognize that the law, in its present form, does not pass the most important test. You can call it the reality test.” 

Copyright laws will always have their critics as well as their staunch proponents

For more information, see... why does the United States have copyright laws

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