Academic journal article Emory Law Journal

Increasing Innovation through Copyright Common Sense and Better Government Policy

Academic journal article Emory Law Journal

Increasing Innovation through Copyright Common Sense and Better Government Policy

Article excerpt

Innovation is crucial to the U.S. economy. But many of our laws and policies are not promoting innovation. This Essay addresses this problem.

The first set of proposals focuses on copyright law. The recommendations avoid vague copyright law and suggest the elimination of statutory damages and personal liability in cases of secondary infringement. The second set of proposals highlights government policies that can be adjusted to achieve a more enlightened immigration policy, adequate funding for basic research, an increased focus on science and math education, and an extension of the research-and-development (R&D) tax credit.

I. COPYRIGHT PROPOSALS

In considering effects on innovation, copyright law has slipped through the cracks. I addressed this problem in previous work by interviewing leading officials from technology companies, the recording industry, and venture capital firms to determine the connection between copyright and innovation in digital music.1

A. Avoid Vague Copyright Law

One of my findings was that vague copyright laws harm innovation. One of the innovators I interviewed lamented that "uncertainty" discourages innovation in the music industry.2 And one record label official agreed that the "lack of clarity" in the law "is holding back innovation" and that "if there is lack of clarity in an area," the labels would "defend it to the most aggressive interpretation," which would "always . . . ultimately end up in favor of the content owners."3

The dangers of vague law are exacerbated by record labels' use of litigation as a business model. The industry achieved "an enormous number of business goals" from the "tremendously effective hammer" of "filing suit."4 Lawsuits have a chilling effect, especially when employed against start-ups that lack the resources to counter the labels' "billions of dollars and hundreds of lawyers."5

Vague laws increase copyright owners' ability to file suit, and even to threaten suit. For this reason, recent proposed legislation and trade agreements present concern. The Stop Online Piracy Act (SOPA), introduced in the House of Representatives but put on hold after protests in early 2012,6 provided that an Internet site is "dedicated to theftof U.S. property" if it "is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates" copyright infringement.7

This "enable or facilitate" language is broad, punishing not only sites that themselves directly infringe the copyright laws but also those that help others infringe. Such a standard could ensnare in its grasp numerous websites and services, including YouTube, Google, Facebook, Flickr, Dropbox, and blogs, each of which could be found to enable or facilitate infringement. In fact, the "entire internet itself" would satisfy this standard.8

Similarly, the Trans-Pacific Partnership (TPP) agreement requires participating nations to "ensure that criminal liability for aiding and abetting [copyright infringement] is available under [their] law."9 But aiding-and-abetting liability, borrowed from criminal law, lacks nuance. The standard, which encourages the punishment of those who assisted in a crime such as a getaway driver, fraudulent check presenter, or cocaine distributor, is not appropriate in the context of secondary liability, which covers innovative technologies and which is subject to competing public policies.

B. Eliminate Statutory Damages for Secondary Liability

The second copyright proposal that would foster innovation would be to eliminate statutory damages in cases of secondary liability.10 In contrast to liability in which a party directly infringes any of the copyright owners' exclusive rights, secondary liability applies more indirectly, and could punish technologies such as DVRs, iPods, peer-to-peer (p2p) software, and numerous others.

Copyright owners can obtain "an award of statutory damages for all infringements . …

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