Electronic copy available at: http://ssrn.com/abstract=1775886
DIGITAL COPYRIGHT AND CONFUZZLING RHETORIC
Peter K. Yu
*
*
Copyright © 2011 Peter K. Yu. Kern Family Chair in Intellectual Property Law and Director, Intellectual Property Law Center,Drake University Law School; Wenlan Scholar Chair Professor, Zhongnan University of Economics and Law. An earlier version of thisArticle was presented at the
Vanderbilt Journal of Entertainment and Technology Law
Symposium at Vanderbilt University Law School,the 3rd Global Forum on Intellectual Property organized by the IP Academy in Singapore, and the 8th Annual Works in ProgressIntellectual Property Colloquium at Boston University School of Law. The Author would like to thank Bruce Boyden, Laura Heymann,David Simon, Rebecca Tushnet, and the participants of these events for their valuable comments and suggestions. He is also grateful toCory McAnelly for excellent research and editorial assistance.
Electronic copy available at: http://ssrn.com/abstract=1775886
DIGITAL COPYRIGHT AND CONFUZZLING RHETORIC
2I
NTRODUCTION
The entertainment industry tells people they shouldn
‘
t steal music because they wouldn
‘
tsteal a car, but has anybody ever downloaded a car? Music fans praise Napster and other file-sharing services for helping to free artists from the stranglehold of the music industry, but howmany of these services actually have shared profits with songwriters and performing artists?Industry representatives claim that people use YouTube primarily to listen to or watchcopyrighted contents, but are they missing a big piece of the user-generated content picture?Artists are encouraged to forget about copyright and hold live concerts instead, but can all artistssucceed under this alternative compensation model?Over the years, policymakers, industry representatives, consumer advocates, civillibertarians, academic commentators, and user communities have advanced many differentarguments for or against stronger copyright protection and enforcement. Some arguments areconvincing, but others are not. Indeed, many of these arguments are quite confuzzling, as someinternet users would say. As the entertainment industry continues to push for stronger copyrightprotection and enforcement in the digital environment
—
which range from the introduction of thegraduated response system
1
at the domestic level to the negotiation of the Anti-counterfeitingTrade Agreement (
―
ACTA
‖
) at the international level
2
—
it is time we revisit some of theunconvincing arguments that have been advanced for or against online filesharing and digitalcopyright reforms.To help us better understand the rhetorical challenges in the present debate, Part Iexamines four unconvincing arguments that have been advanced to support reforms thatstrengthen copyright protection and enforcement in the digital environment. Part II thenevaluates four equally unconvincing arguments that have used to advocate the retention of thestatus quo or the weakening of the existing copyright system. In light of the lack of persuasionin the entertainment industry
‘
s hitherto efforts to drive digital copyright reforms, Part III outlinesfive strategies that seek to help the industry make its reform proposals more convincing. Part IVconcludes with two short stories to illustrate the tremendous difficulty for the public toappreciate the complexities in copyright law. The Article underscores the paramount importanceof making convincing arguments in the digital copyright debate.I.
F
OR
S
TRONGER
P
ROTECTION AND
E
NFORCEMENT
Although the entertainment industry has advanced a wide array of arguments to push forstronger copyright protection and enforcement in the digital environment, many of thesearguments are rather unconvincing. Thus far, the lack of persuasiveness has greatly hamperedthe industry
‘
s ability to debate with consumer advocates, civil libertarians, academic
1
The graduated response system provides an alternative enforcement mechanism through which internet service providers can takea wide variety of actions after giving users two warnings about their potentially illegal online file-sharing activities. These actionsinclude suspension and termination of service, capping of bandwidth, and blocking of sites, portals, and protocols.
See generally
Peter K.Yu,
The Graduated Response
, 62 F
LA
.
L.
R
EV
. 1373 (2010) (discussing the graduated response system).
2
See generally
Peter K. Yu,
Six Secret (and Now Open) Fears of ACTA
, 64 SMU
L.
R
EV
. (forthcoming 2011) [hereinafter Yu,
SixSecret Fears
] (providing an in-depth discussion of ACTA).
DIGITAL COPYRIGHT AND CONFUZZLING RHETORIC
3commentators, and user communities. Oftentimes, the two groups of players
3
talk past theiropponents in the debate, rather than engaging with each other.
4
The resulting debate is highlypolarized and emotion-laden. To help us understand the rhetorical challenges for both sides, thisPart begins by exploring four unconvincing arguments that the industry has advanced to push forstronger copyright protection and enforcement in the digital environment.A.
―
Oh, My, the Sky Is Falling!
‖
The textbook example of an unconvincing argument the industry has advanced is avariant of the argument that the sky is falling. Historically, intellectual property rights holdershad a tendency to initially complain about the adverse impact of new technologies only to findthese technologies later opening up new markets for their products and services.
5
For example,when well-known American composer John Philip Sousa testified before Congress about thechallenge created by the manufacture and sale of phonograph records, he declared:
When I was a boy . . . in front of every house in the summer evenings you would find youngpeople together singing the songs of the day or the old songs. Today you hear these infernal
3
It is important to note that the stakeholders in the digital copyright debate are not divided nicely into the pro-copyright and anti-copyright camp. Instead, these stakeholders accrue different benefits and incur different costs from the various copyright proposals.Their positions also often change according to the market, technologies, and consumer behavior.
See
C
OMM
.
ON
I
NTELLECTUAL
P
ROP
.
R
IGHTS AND THE
E
MERGING
I
NFO
.
I
NFRASTRUCTURE
,
N
AT
‘
L
R
ES
.
C
OUNCIL
,
T
HE
D
IGITAL
D
ILEMMA
:
I
NTELLECTUAL
P
ROPERTY IN THE
I
NFORMATION
A
GE
51 (2000) [hereinafter D
IGITAL
D
ILEMMA
].
4
See, e.g.
,
Daniel A. Farber,
Conflicting Visions and Contested Baselines: Intellectual Property and Free Speech in the ―Digital
Millennium
,
‖
89 M
INN
.
L.
R
EV
. 1318
, 1347 (2005) (stating that ―each side [in the copyright debate] tries to convince the other that its position is obvious and natural, whereas the other side‘s is radical and contrived‖); Jane C. Ginsburg,
How Copyright Got a Bad Name for Itself
, 26 C
OLUM
.
J.L.
&
A
RTS
61, 65 (2002) (recalling suggestion that ―the players in the debate over technological means of
committing or forestalling copying were all paranoid, each suspecting the other of bottomless malevolence in their respective endeavorsto control
or to liberate copyrighted material‖); David McGowan,
Copyright Nonconsequentialism
, 69 M
O
.
L.
R
EV
. 1, 1 (2004)
(observing that ―those who debate copyright often seem to talk past each other‖); Peter K. Yu,
Intellectual Property and the Information Ecosystem
, 2005 M
ICH
.
S
T
.
L.
R
EV
. 1, 8
–
12 (discussing the bipolar intellectual property debate).
5
As the Committee on Intellectual Property Rights and the Emerging Information Infrastructure of the U.S. National ResearchCouncil pointed out, copyright holders tend to have short-sighted goals and often fail to recognize the benefits brought about by newtechnologies:In 17th century England, the emergence of lending libraries was seen as the death knell of book stores; in the 20thcentury, photocopying was seen as the end of the publishing business, and videotape the end of the movie business.Yet in each case, the new development produced a new market far larger than the impact it had on the existingmarket. Lending libraries gave inexpensive access to books that were too expensive to purchase, thereby helping tomake literacy widespread and vastly increasing the sale of books. Similarly, the ability to photocopy makes theprinted material in a library more valuable to consumers, while videotapes have significantly increased viewing of movies.D
IGITAL
D
ILEMMA
,
supra
–
79. Likewise, the United States Court of Appeals for the Ninth Circuit acknowledged in
Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd.
:The introduction of new technology is always disruptive to old markets, and particularly to those copyright ownerswhose works are sold through well-established distribution mechanisms. Yet, history has shown that time andmarket forces often provide equilibrium in balancing interests, whether the new technology be a player piano, acopier, a tape recorder, a video recorder, a personal computer, a karaoke machine, or an MP3 player. Thus, it isprudent for courts to exercise caution before restructuring liability theories for the purpose of addressing specificmarket abuses, despite their apparent present magnitude.380 F.3d 1154, 1167 (9th Cir. 2004),
vacated and remanded
, 545 U.S. 913 (2005);
see also
L
AWRENCE
,
L
ESSIG
,
F
REE
C
ULTURE
:
H
OW
B
IG
M
EDIA
U
SES
T
ECHNOLOGY AND THE
L
AW TO
L
OCK
D
OWN
C
ULTURE AND
C
ONTROL
C
REATIVITY
69 (2004) [hereinafter L
ESSIG
,
F
REE
C
ULTURE
]
(―
Just as Edison complained about Hollywood, composers complained about piano rolls, recording artists complainedabout radio, and broadcasters com
plained about cable TV, the music industry complains that [file] sharing is a kind of ‗theft‘ that is‗devastating‘ the industry‖)
.
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