Experts Debate Need for New Digital Copyright Law

WASHINGTON, July 2, 2010 – The Digital Millennium Copyright Act that extended the reach of copyright when it became law in 1998 may have been created for the new millennium, just not this one, said an academic expert during a Thursday panel discussion.

Peter Menell of the University of California Berkeley School of Law said the topic had become “a very complex puzzle” because it has affected so many groups, such as content creators, publishing and distributing companies, consumers and the technology innovation sector.

He participated in the first panel of the Patent and Trademark Office and National Telecommunications and Information Administration Symposium, which focused on copyright policy, creativity and innovation in the information economy and the impact of domestic online copyright infringement.

Joshua Friedlander of the Recording Industry Association of America said for teens and college students, one third of their music comes from peer-to-peer file sharing.

Twenty-six million people have tried file sharing, according to Friedlander, and because of the technology’s prevalence and use, music industry sales are down more than 50 percent.

Friedlander said numerous studies point directly to internet piracy for this decline, and even when legal internet sales do occur, they do not offset the losses in physical sales.

Piotr Stryszowski of the Organization for Economic Cooperation and Development said consumers like free content, and that they will get it where they can.

Menell agreed, adding that consumers accept the dilution of programming by advertising because they can get the content for free.

Menell said this leads to a symbiotic relationship by all of those affected by piracy. Content creators work with distributors to find new outlets to provide consumers with content with a reasonable return for them. Hardware and software innovators find ways to work with the created content for the best consumer experience.

Consumers need to realize that the money they pay for content ultimately leads to better content because of the reinvestment of that capital, he said.

The stipulation Mennell put on this relationship is that government policy – like a new DMCA – should guide innovators to keep their innovations legal, and shepherd them away from piracy.

“We’re seeing an evolution in this sector,” said Menell.

However, when innovators see “policy” or “legal” they immediately think “stifling innovation.” However, Menell said this sort of thing happens all the time, and is in fact good for the industry.

“We chill innovation in automobiles all the time because we not only care about speed, but also about the safety,” countered Menell.

Friedlander said the way to regulate piracy is through a comprehensive review of data. But Stryszowski said that data is not currently available.

Data is hard to find and, for many countries and areas of piracy, there is no data, said Stryszowski.
Besides gathering data, how do you compare it, Stryszowski asked. Do you measure theft in megabytes, number of files, dollars lost or jobs lost?

The data must be in real-time because in this rapidly changing area, using numbers from 2009 will not accurately regulate problems in 2010, he said, adding that finding an accurate methodology and measure is essential to the success of new regulation.

“In my opinion, we have to focus on specific aspects,” said Stryszowski, adding that the problem must be tackled from a different perspective.

AT&T legal counsel Keith Epstein said finding this new measure is essential to internet service providers because about 18.7 petabytes of traffic passed through the AT&T combined data network in 2009, and about 9.7 petabytes of this solely through AT&T.

Epstein said Congress – in the DMCA – did not want internet service providers to have the burden of deciding whether a customer’s activity was infringement; that the role of ISPs was to facilitate the content producer in legal matters by providing information and guiding them upon request.

However, Epstein said file sharing, as a percentage of overall internet growth, is declining. While he said this might be due to new technologies and cyber lockers, the use is declining for any number of reasons. But it is precisely because of technologies like cyber lockers and file sharing that Friedlander urges swift action. He said even though there has been a decline in illegal peer-to-peer sharing there has been a rise in other forms of piracy.

Statistics do not support the theory that musicians and artists have been able to make a living despite internet piracy, according to Friedlander.

Even though, since 2004, there has been over $7 billion in internet music sales, this is a drop in an empty bucket, according to Friedlander.

“There can be a lot of frustration when we see a lot of data … but we cant let this be an excuse” to forgo policy, he said.

“The answers are very complicated because this is one of the most complicated ecosystem,” Menell added.