Remix is the third book I have read by Harvard Law Professor Lawrence Lessig, all proposing to change copyright law. While I find him a good storyteller and persuasive reasoner, I am a bit tired of reading his views on this issue. Lessig himself may feel that he has exhausted the topic, as he has gone on to write a book called Republic Lost about how money is corrupting Washington. What is new about Remix, which is available in print from Penguin books and electronically at the Internet Archive, is that Lessig focuses on what the copyright regime is doing to a generation of young people: criminalizing them and making them illiterate. It is criminalizing them because although file copying and sharing is illegal, the majority of them feel it is okay to copy, share, and alter files and they have the technology to do it. It is making them illiterate because, according to Lessig, you have to both read and write to be truly literate. If young people only consume media, they are not writing it, and the first step in writing is remixing. Those who obey the law don’t get the chance to remix, and those who disobey the law must do so underground and therefore do not get the same kind of instruction at school in reading and writing media as they do in reading and writing text. Lessig, in his preface, draws an analogy to the drug war, which like the copyright war is failing and making many people live outside the law. Unenforceable and unreasonable laws foster a disrespect for authority. This topic is particularly apropos at the moment, because as I write this post, Wikipedia, the Internet Archive, and numerous other sites have gone dark for the day to protest the Stop Online Piracy Act (SOPA) and the Protect IP Act, which are now before the US house and senate respectively. Both these bills presume that file sharing can be tracked. If file sharing can be tracked, then a viable alternative to shutting down or punishing sites for infringement would be to employ what Lessig calls a “compulsory licensing” system. In this system, the revenues from new taxes on digital technologies would be apportioned to copyright holders according to how often their copyrighted files are shared. In comparison to such a solution to the problem of piracy, here is Wikipedia’s summary of the content of SOPA:
The bill would authorize the U.S. Department of Justice to seek court orders against websites outside U.S. jurisdiction accused of infringing on copyrights, or of enabling or facilitating copyright infringement.[4] After delivering a court order, the U.S. Attorney General could require US-directed Internet service providers, ad networks, and payment processors to suspend doing business with sites found to infringe on federal criminal intellectual property laws. The Attorney General could also bar search engines from displaying links to the sites.[13]
The bill also establishes a two-step process for intellectual property rights holders to seek relief if they have been harmed by a site dedicated to infringement. The rights holder must first notify, in writing, related payment facilitators and ad networks of the identity of the website, who, in turn, must then forward that notification and suspend services to that identified website, unless that site provides a counter notification explaining how it is not in violation. The rights holder can then sue for limited injunctive relief against the site operator, if such a counter notification is provided, or if the payment or advertising services fail to suspend service in the absence of a counter notification.[13]
The bill provides immunity from liability to the ad and payment networks that comply with this Act or that take voluntary action to cut ties to such sites. Any copyright holder who knowingly misrepresents that a website is dedicated to infringement would be liable for damages.[4] The second section increases the penalties for streaming video and for selling counterfeit drugs, military materials or consumer goods. The bill would increase the penalties for unauthorized streaming of copyrighted content[for uploaders, downloaders, or hosts? clarification needed] and other intellectual property offenses.[13]
According to co-sponsor Representative Bob Goodlatte (R-VA), chairman of the House Judiciary Committee’s Intellectual Property sub-panel, SOPA represents a rewrite of the PROTECT IP Act to address tech industry concerns. Goodlatte told The Hill that the new version requires court approval for action against search engines.[14] The Senate version, PROTECT IP, does not.[15][16]
Here is Wikipedia’s summary of the content of PIPA:
The bill defines infringement as distribution of illegal copies, counterfeit goods, or anti-digital rights management technology. Infringement exists if “facts or circumstances suggest [the site] is used, primarily as a means for engaging in, enabling, or facilitating the activities described.”[8] The bill says that it does not alter existing substantive trademark or copyright law.[9]
The bill provides for “enhancing enforcement against rogue websites operated and registered overseas” and authorizes the United States Department of Justice to seek a court order in rem against websites dedicated to infringing activities, if through due diligence, an individual owner or operator cannot be located.[10] The bill requires the Attorney General to serve notice to the defendant.[11] Once the court issues an order, it could be served on financial transaction providers, Internet advertising services, Internet service providers, and information location tools to require them to stop financial transactions with the rogue site and remove links to it.[12] The term “information location tool” is borrowed from the Digital Millennium Copyright Act and is understood to refer to search engines but could cover other sites that link to content.[13]
The Protect IP Act says that an “information location tool shall take technically feasible and reasonable measures, as expeditiously as possible, to remove or disable access to the Internet site associated with the domain name set forth in the order”. In addition, it must delete all hyperlinks to the offending “Internet site”.[14]
Nonauthoritative domain name servers would be ordered to take technically feasible and reasonable steps to prevent the domain name from resolving to the IP address of a website that had been found by the court to be “dedicated to infringing activities.”[15] The website could still be reached by its IP address, but links or users that used the website’s domain name would not reach it. Search engines—such as Google—would be ordered to “(i) remove or disable access to the Internet site associated with the domain name set forth in the [court] order; or (ii) not serve a hypertext link to such Internet site.”[16]
Trademark and copyright holders who have been harmed by the activities of a website dedicated to infringing activities would be able to apply for a court injunction against the domain name to compel financial transaction providers and Internet advertising services to stop processing transactions to and placing ads on the website but would not be able to obtain the domain name remedies available to the Attorney General.[17]
