Talks at Google: Bill Patry, "How to Fix Copyright"

Uploaded by AtGoogleTalks on 04.03.2012

>> Male Interviewer: Thanks everybody for joining us. I am very honored
to have today for a conversation about his latest book,
uh, William Patry, known to us here at Google as Bill,
who serves as a senior copyright counsel at Google,
and before that, has a very esteemed career as a copyright scholar, a copyright lawyer,
and in fact, is one of the authors of one of the leading treatises on copyright
law, 'Patry on Copyrights', so thanks very much
for joining us today, Bill.
>>Bill Patry: Thanks for having me, Fred. I was,
had a long and checkered career. My mother wondered if I'd
ever be able to keep a job.
>>Fred: Lo and behold, it worked out in the end.
>>Bill: It did.
>>Fred: Great! So, um, thanks to you for coming by Google to talk about your new
book, How to Fix Copyright. It came out just a few
months ago, right?
>>Bill: Yes, in November.
>>Fred: Fantastic, and so, we'll have a conversation here.
I have some questions to warm Bill up with and then we'll
take some questions from the audience. I just ask you,
before you ask a question, to wait for the handheld mic
so that we have that, uh, on the tape.
Uh, so, as I was reading your book, Bill, I kept, I couldn't help but feel I was reading,
it was almost like a sports account. I almost felt like
here was somebody who loves his hometown team of copyright,
and yet is deeply unhappy with the direction the managers have been taking it.
Um, so, what do you think about that? How how far astray do you think
things have gotten and have you given up hope on the, uh,
copyright law that you've spent your life working on?
>>Bill: Nice, that's a pretty good metaphor. I mean,
another one would be, it's like a favorite aunt or
uncle, you know, who's always been a bit goofy, um, maybe a bit creative, but never as creative
as they think they are. And so you have a good time, then after a
while things kind of take a hard turn, and you're a bit surprised by that,
and you, you know, try to work things out so that they can get back
to being the nice goofy person they were before. Um.
>>Fred: so you're...
>>Bill: It may or may not work.
>>Fred: So you're saying this book is like an intervention
for uh, "Uncle Copyright?"
>>Bill: Right, right, right. It's, I view myself as being within the family. I mean,
I've done it for thirty years, so if I didn't enjoy it, it would be really
a waste of time. But if you do care about something, then you
want it to work out well, and when it's not, you can either shut up,
in which case you shouldn't complain about it,um, but if you don't like the way
it's going, then you probably should say something and try to point out ways so that
your favorite aunt or uncle could be goofy again and not such a, you know,
difficult, destructive person.
>>Fred: Well, with that then, let's start with the, uh, the,
what you view as the afflictions of copyright or at least the ways
that copyright has gone a bit off the rails in recent years.
What would, what would you say were, are sort of your top three, uh, ills
that you think need fixing?
>>Bill: Uh huh. Right right, at least it's not the ten plagues, with Passover
coming soon. Let's see, three plagues, only three plagues, three afflictions
>>Fred: Frogs, boils, locusts, what are they?
>>Bill: Right, right, right. Death of the firstborn, that's the real thing.
So, one would be probably, uh, all of the rhetoric that's used about
what copyright can do, should do, is doing, um, and sort of,
the inability to get past that, the inability to really have a rational discussion
about, uh, what we want copyright to be. Maybe the second affliction
would be that, huh, all too many policy believers actually believe it.
They actually believe all the things that are said, and if you read some of the things
that are said, copyrights supposedly can do everything but cure the sick,
and take care of global warming. So when something can do something like that,
um, then everyone wants to sign on. But if it can't do those things,
then people get disappointed. So it's sort of surprising that people
believe it can do all of those things. The third one might be,uh,
[takes deep breath] trade. That copyright is a trade issue, so, it's always been
a trade issue in some ways. The United States didn't protect English works
for the first hundred years, because it was our national trade policy
not to, to be able to not pay English authors. Um, but what's happened
since at least the mid-'80s, was that copyright became part of our trade agreements,
conditioning, uh, benefits for uh, providing effective and adequate protection
to U.S. works and it's become rigid. First of all, it's anti-democratic,
as the demonstrations and protests about ACTA have, uh, have pointed out.
It's an anti-democratic way to make policy, to have trade officials doing it,
but once you do it, then it becomes rigid and you can't go back,
unless you abrogate the trade agreement. So let's say, like, in an ideal world,
that policy makers were data driven, like we are at Google, right? You figure out
what it is you want to do, you've got the data to support it, and then you go and do
it, and if it doesn't work, you constantly iterate
and reiterate until you get it right. That's like a logical, rational way to do
things. But once things become, uh, put into trade agreements, you know, you don't
have that flexibility any more. You either have the choice of abrogating the
trade agreement, or not. And the not part is living with things that
don't work. So, I'll give you an example.
This is one that Hal Varian certainly has provided a lot of good data on,
which is, what's the appropriate length of copyright, and back in 1998,
when we extended it twenty more years, did those twenty years lead
to any more works being created? I mean, that was the argument.
The argument was, well, if we extend the term of copyright
twenty more years, it's going to make people create things
that they wouldn't create. Right, that's a factual statement
and it's one that you should be able to empirically figure out. And Hal
did really great work, you know, in figuring that out. And the answer is "no",
it's not going to lead to the creation of any more works at all. And it hasn't.
>>Fred: Right, and it always struck me, the notion that you tell an author today
that seventy years after you die, it's hard to see that as highly motivating, uh,
in the moment, even without empirical data.
>>Bill: Right, so, so here's the fact situation. You're in 1998,
you're a policy maker, the existing term of a copyright is
your life plus 50 more years, right? And so the argument is
no, no, no, we need to incentivize people more, if you give
20 more years to copyright, then you're going to create
more works, and everyone will be happy. Well, that twenty more years,
of course, is tacked on to the end. So we're talking about somebody
say in 2012 sitting around saying, "Well, what do I do today, you know?
Do I write another book, or do I take the trash out, or find some
other way to make money." Um, so in figuring out that, I think, how long is
the copyright going to last? Well, it lasts for my life, and I don't know
how long I am going to live but let's say I'm thirty and I can expect to live
to be eighty, at least. So that's fifty more years, and then you add on fifty years
after your death. That's a hundred years. And you sit around and say,
"That's actually not long enough. I'm going to do something else, you know.
[laughter] Fifty more years for while I'm alive and fifty more after I'm dead,
that's just not a sufficient incentive. It's got to be seventy years
after I'm dead. It's got to be one hundred twenty years after I'm dead."
>>Fred: This actually, suddenly I realize that what you said a minute ago
about copyright, can cure everything except global warming. On that time
scale maybe we need to talk about whether copyright can cure global warming,
because maybe in a hundred and fifty years-
>>Bill: It'd be long enough,it'd be long enough.
>>Fred: Exactly, so-
>>Bill: But if you look at it another way, look at it from the standpoint
of a publisher, right? So the argument is, no, no, no, that's, you're making
this silly case, the real case is this, that in 2012, a publisher is going to
give you more money, right, for that work, based upon it lasting seventy years
after you're dead rather than fifty, because you don't know when you're
going to die, but your publisher will, allegedly, live forever, so right now
the present value is going to be more because we're going to give you more.
But, but that's not true either, if you talk to publishers, no publisher
is going to give you more money today based upon, allegedly, twenty more years,
you know a hundred years. Because we're talking about the difference between
a hundred year copyright and a hundred and twenty year copyright.
And most works don't have any market, and if they have a market,
it's not more than a year, two years, three years, in my case,
you know, a few weeks. [laughter]
>>Fred:Buy it now. Buy it now
>>Bill: The publishers don't give me more--. Buy it now, right.
>> Fred: This brings me back to the first two ailments you mentioned,
uh, of copyright, mainly what you view as somewhat unrealistic rhetoric,
and the fact that policymakers seem to accept it.
And I'm curious, one of the main themes in your book that you really decry
is this notion. Which really is, you know, often, you hear it often at the heart
of the debates about copyright, is this notion that copyright law
is necessary to create an incentive for creativity. I mean that
really is a central story that copyright supporters tell,
and you really take, take that notion to task. What's your sense
of why that's actually overselling what copyright can actually deliver?
>>Bill: Right, so if I could go back to your sports metaphor about, you know,
liking a sports team, whether it's the 49ers, and I grew up in Marin,
so while I live in Connecticut, I'm still a 49ers fan. You know when
you interview the losing coach, usually they say something like,
"You know, we’re going to get back to basics. Learning the ball, throwing the ball, good
defense." And I always think, well, aren't you supposed
to be doing that anyway? [laughter] I mean, why is that going to be something new,
that you're going to get back to the basics? So if you're going to apply that
to copyright, what are the basics? What do we actually want it to do?
And I don't think that law is an end to itself. The goal is not to have laws.
>>Fred: Don't tell politicians.
>>Bill: Yeah, yeah. Well, when I went to work for Congress,
my father, who, uh, lives in Sonoma, but who's really
a politically really conservative guy, was deeply disappointed in me,
because he thought I was going to work for an, you know, organization
that didn't do upstanding good things, and passed too many laws,
and that they were there just to pass laws you know.
That was their product. Their product was passing laws.
So he said, "Look, if you're going to do any of this copyright stuff, then any new law
you gotta make sure that you repeal three others. [laughter]
Otherwise, you know, don't do it. Don't, don't give us
more laws." So, if you take that approach, that law is
actually a tool and not an end to itself, it's a tool
to do things, hopefully, that only law can do.
Um, I don't think we want laws to do things that laws
aren't supposed to do. Things that are business problems, right,the solutions to business
problems are business problems. [chuckles] .
I mean, if you have a business problem, the way to handle that
is to have a better business model, and not to have a law
that supports a bad business model. So if you look at one of the basics
of copyright, you know the learning, throwing, a good defense, right,
what's that supposed to be for copyright? And so people say lots of things. One of the
embarrassing things is that no one can actually agree what copyright
is supposed to do. Um, and that makes rational policy making
pretty difficult when no one can agree what it's supposed to do. So if you
want to have data driven, rational driven copyright law, it would be
nice for everyone to agree on what it's supposed to do, right? Because
you can't empirically test that, you can't figure out whether it works if you
can't agree about what it's supposed to do. So, some of the things people say it's supposed
to do, is to prevent free riding. That actually makes sense, I
actually think it can do that. If you have a motion picture that cost two
hundred million dollars to produce, and someone else comes along and captures
all the investment on that, that's something copyright could actually
do. That's a negative thing, though. That's actually stopping something. Now, the
positive things it's supposed to do are a little more difficult,
I think, to establish. One of which is to encourage creativity, right?
So you say, the purpose of copyright is to encourage creativity and we need creativity
because creativity is necessary for culture, and therefore copyright
is necessary for culture. This is like a syllogism, uh, for that, and
so we all want culture, therefore we all want creativity, and we need
copyright for that, because without copyright, we won't have creativity
or culture. But, I'm, if you break down the syllogism,
I'm not really sure it's true. I'm not actually sure that copyright causes
more creative works to be created than otherwise would, right?
This is a "but for" argument, right? But for copyright,
people wouldn't create creative things. This is leaving aside
the free riding argument, which is a different one. And so,
I don't know, I don't know that the end, this is a question,
I don't have an answer, it's just a question. I don't know that when people are creating
things that they say "well, my goal is to own a copyright." I doubt
that. I don't, I certainly think it's not true
that as consumers, we really care. Now, I'm an avaricious consumer, of cultural
works. I buy thousands of dollars of sheet music and books, hard copy
books. I have ten year old twins who, you know, read
a lot, too. But I've never bought anything, or not bought
anything, because it was under copyright and in the
public domain. I really don't care. It doesn't mean I don't
care about people getting paid, I do, but that's
a different question. I buy things because it has value for me,
and part of the value is not whether it's under copyright. And I
think that people create things, not because they want to own
a copyright, but because they want to create it, they want
to make money, they want to distribute their ideas, they
want to engage in intellectual discussion with people.
Um, so I'm not sure that giving people longer term copyright,
or stronger rights, is going to actually incentivize people
to do things that they wouldn't. Um, it's certainly not true that copyright
historically has led to more diverse works. I mean, historically,
work that's sort of based on artificial scarcity, and gatekeepers and the rule of copyright,
at least in the analog world, was to make sure that those gatekeepers could
control the distribution of physical copies and limit the number of
works and the prices that were, that were out there.
So I'm not sure it's demonstratively true that it leads to creativity,
but it's an important question to ask. It's an important thing
to figure out why people do stuff, um, so-- >>Fred: As I was reading the book, on that
point, I was really struck by the notion that there's really two intended
beneficiaries here, that may not actually be related. So, on the
one hand,you have the free riding question you mentioned. I
often talk to movie executives who say, "well, it may
be really cheap to go and record your own music nowadays,
or it might be really cheap for you to write your own blog,
but it's not cheap to create the kind of special effects extravaganzas
that draw people into the theaters for the new Transformers
installment or what have you."
>>Bill: Hangover, part three.
>>Fred: Right. So the question is, I really wondered,
are we asking too much of copyright to serve these two very different needs and communities?
I mean, we need one thing for people to recoup these
three hundred million dollar investments, that require thousands of people to work together
in a coordinated way to launch a movie, but then we also want copyright
to encourage, create incentives for individual creators to write that next
song, or write that next book, or write that next blog post. Is it your sense
that we ought to somehow have two different systems, or do you think it's
compatible to have copyright handle both sides?
>>Bill: Right. So I think that there's two different problems here,
one of which is using the word creativity. So, when we talk about
creativity here, I think we're talking about it in the colloquial sense.
We're talking about works that are interesting, works that have some sort
of appeal, aesthetic appeal, emotional appeal, something like that.
But that's not the sense that copyright uses the word creativity.
So, one of the big things, one of the big problems, the ailments as you said,
is that when policymakers talk about encouraging creativity through copyright law,
copyright law uses creativity in a totally different way. Creativity in copyright means
only that you didn't copy it from somebody else and there's like a tiny bit
of something that somebody else , you know, didn't do, or didn't do in the same way.
And the reason for that is, we don't want judges to be arbiters of what's art.
We don't want judges to decide subjectively, "this is a creative work, and this isn’t."
And so, from within the system of copyright, that actually makes a lot of sense,
but when you use the same word in a colloquial sense and say you want
to encourage creativity, through copyright law, you're using a totally different word
to mean different things. So under copyright, we protect emails, perhaps Twitter postings,
protect business documents, lawyers' cease and desist letters, we protect virtually anything
that anyone creates, and we do it without any formalities. So to say copyright law
encourages creativity sort of misses the point that most works that are protected
under copyright are not works that are creative in the colloquial sense that we're debating.
It's like using, well, I'll give you a great example.
>>Fred: You, you haven't been reading my emails, Bill.
Very, very creative.
>>Bill: All right. [chuckles] So in 1990, I was still working for Congress,
and we wanted to protect architectural works, the three dimensional buildings,
not plans or drawings because they were already protected and we wanted to do it
because we had a treaty obligation to do it. You still had to make the case though,
to members of Congress why you should do that. So I organized hearings, and I had
Michael Graves, who was a very famous architect at the time,
we had the Frank Lloyd Wright estate, we had a number of famous architects
come and explain why their works are creative, right. And you could get that.
That was easy to see why they re artists just like everybody else.
The truth of the matter was, that most architectural copyright infringement actions
are over semi-custom or far, far lower works. So, you know, it was
a, you know, I don't know how to describe it. [laughs] It was use of creativity
through famous architects to make a case why we should do a general law
that applied to other works. And that's one of the problems with using
creativity in copyright as sort of a rallying cry, or as it can do something
is that you are using one case, that may be easy to prove, for ninety-nine percent of
the cases that have very different policy issues. The
second problem is that the scope of copyright, the incentives that you would need for a 300
thousand dollar movie are, uh, are they do fine in the market place.
The stuff that we say that we want are works that don't do well in the market
place. And so, the problem saying that copyright is going to solve everything
is that it may solve free riding problems for the expensive works, and should, but it
doesn't do anything for the ninety-nine percent, right?
Personally, um, we would be better taking the hundreds of millions of dollars we use
for enforcement, and going to East Palo Alto and having something
like they have in Venezuela, El Sistema. If we really want to encourage creativity
among masses of people, other people, let's spend money to do it, because that's the only
way it's going to happen. And if we don't do that, if we claim "don't
worry , we're going to give you a copyright", that's baloney.
>>Bill: I mean, I play bass clarinet, and I'm trying to encourage more people
to write more works for bass clarinet. So if I go to them and say,
"Hey, guess what? If you spend six months or a year writing a new piece for bass clarinet,
at the end of that time, you're going to have a copyright." No, I, … they'll laugh at
me. There are other reasons for them to do it,
and copyright isn't one of them. So if we want diverse cultural works, we have
to figure out ways outside of copyright to do it.
It's not that it's a knock on copyright, it isn't. It's that it can do some things,
but there's other things it can't do. And so if we fool ourselves into thinking it can
do everything, then it's just not. It can't.
>>Fred: Alright, so your discussion about extending copyrights to three dimensional
works of architecture reminds me that of, a lot of the discussion
in your book reflects a disappointment, if you will,
in policy makers who have not demanded empirical, factual support for expansions of copyright,
who have not been more, I guess, discerning customers when it comes to proposals. Um,
in fact, you used a term in the book which I quite liked, you
called it "lobbynomics." That rather than economics,
policy makers, too often, are swayed by "lobbynomics", by whatever the lobbyists come in and deliver.
Um, so I guess as I was reading that, the question came to me, do you feel like fixing
many of many of the problems in copyright require
us to first fix a larger flaw in the political process? And, if so, that's
a pretty tall order. Or do you think that there's actually hope to make progress
on copyright without fixing what is viewed by a lot of people as a larger difficulty
with communicating empirical, fact driven analysis to Congress?
>>Bill: Yeah, so I worked on Capitol Hill for seven years, and I have, you know, some
experience, with how members of Congress listen to issues,
and who they listen to and you know, things have changed
over time. But once, when I was working for the copyright office, this was in 1989, I
was on this panel in San Francisco with John Perry Barlow, one
of your friends. And it was, you know, it was 1989,
and there were a bunch of programmers who were very upset about software copyright.
They thought it was inappropriate, and I actually agree
with them, but it was an inappropriate thing and they wanted me,
as a member of the government, to go fix it for them. And I said," You know, unless
you get off your butt", I think I used a different word,
"and do something about it yourself, no, it's not going to change."
I grew up in Marin, and I was a child in the '60s in Marin, and in
those days, there were actual protests about stuff. I remember I went to the People's,
the second People's Park March, this was in May of 1969.
There was the first one in which Ed Meese, this was when Reagan was governor,
we had him for eight years, eight or sixteen years. [chuckles]
He was governor for eight years, then President for eight
years. Ed Meese took over the police in, in Berkeley and
and there was disputes about People's Park, and he took over the police
and during the protest, the police shot at people, and one guy was killed,
another guy was blinded, and then two weeks later there was a protest.
A lot of people came, I came, you go over to the East Shore Freeway,
it's called the Bayshore Freeway, the whole thing, I used to call it the East Shore,
but you go along that and you get on University Avenue,
and there's like that little cloverleaf there and like right on top of the cloverleaf
there was a big tank, because Reagan had called out,
like 2700 or so National Guardsmen. And all along the way
there were these guns, and bayonets, like inches away from you and stuff.
And you just prayed no one did anything really stupid, and they didn't,
but people did, did complain. Whether people listened or not, I know Johnson didn't
run again. But in 1989, people then said to me, "Well, you know, you work in Washington,
you're a government official, go fix it." I said, "That's not the way this system works,
if you really don't like something, you've got to do it yourself. You have to make
your voice heard and only then will things change."
>>Fred: So do you think-
>>Bill: It took twenty-three years,[laughs]
>>Fred: Do you think the most recent events are a part of something like that?
>>Bill: That was too easy a transition for you.[laughter] Yeah, yeah, it
took twenty-three years, and things did change. So, I guess the point of my story is
that if you want things to change, then you have to do it yourself.
>> Fred: You know as they used to say on the radio, if you don't like the news, make some
of your own.
>> Bill: Yeah.
>> Fred: So before we open to questions, I want shift from the the negative side of this,
there's a lot in this book that you view as copyright's
failings, uh to some of the sort of positive, uh, prescriptions,
if you will, for how you think things could be made better.
One of the things I noticed in particular your emphasis on shifting
from an analysis of exclusive rights, this idea that copyright owners
should be the only one who should be allowed to make copies,
or distribute the work, or publicly perform it, to a system that focuses
more on remuneration. Making sure that rights holders, and I guess by extension,
creators themselves, are paid for what they do even if they don't have exclusive control.
>> Bill: Mmm hmm.
>>Fred: I wonder, I mean, that’s, in some ways, that's a real departure
from traditional copyrights. Certainly, for the past hundred odd years,
formally, it has been about exclusive rights. Umm, what do you say to creators
who say, "I would rather have the right to say no, than the right to get paid
a few nickels and not have the right to say no?"
>>Bill: Right, the short answer is, you can't eat ideology. The longer answer is that
I don't, I don't regard the book as saying copyrights failed.
That's sort of an anthropomorphic thing. I mean a law isn't a thing, you know, it doesn't
have feelings, can't hurt its feelings. I don't think you
can respect it in the sense that you can respect people. It either works well,
or it doesn't. And it will work well if it does the things it's supposed to do,
if it's fit for its purpose. And if it doesn't, then it's not working well,
and you need to change it. It's that simple, so it's not a sense of disappointment,
you know, you let me down, it's more like the coach thing, you know,
"we're going to get back to basics: throwing, running,
good defense, you know." We got to get back to, my point is, getting people paid, right?
If you want to encourage creativity, if you want to have more works, I think a good way
to do that is to make sure people get paid. So, in the past, the sort of model,
the conceptual model has been that control equals payment. That if I create something,
the only way I am going to get paid is if I can control most things about it.
I mean, the ideal in the golden age of cinema, of movies, was of course complete control.
You own the writers, you own the stars, you own copyright and the movie, you own
the theaters, you own everything vertically. Now, that was a great system, and
Jack Valenti once gave this speech in which he bemoaned the Department of Justice
killing that system of control. But that was the model, the model was
control equals payment, and copyright is what gave you control.
so, copyright equals control equals money. In the end,
it was still about money, right? But the thought was that the only way
to get the money was to control it and the only way to control it was through copyright.
That was the system. It worked well, not well, good sometimes,
not other times, depending upon on well it matched business models and consumer demand.
I mean, the one thing that copyright can never do is to make people buy the stuff
they don't want. You know, if you take it as a coercive thing,
sure, maybe it can stop people from doing things, but I think if you want to make money,
your approach has to be different. You have to give people things that they want. You
want to make them do things, you want to make them buy stuff, and copyright
can't do that. Whatever else it can do, I am a hundred percent convinced that it cannot
make people buy things they don't want to buy.
And that really should be the focus, if the goal, to go back to the coach thing, if the
goal is to get people paid. Now in the past, having
an analog world, having artificial scarcity, and having copyright
could get you a lot of that, but that's just not true anymore. You know it's not true,
you can't, you have a digital environment, you have digital
abundance and you can't control it. So the idea that you're going to graft some
eighteenth, seventeenth century form of control onto a system that you don't have control
just really doesn't make sense to me. So what you need to do is figure out a way
for people to get paid, 'cause that's the object. And it's good,
it's proper that people should get paid for things that they create. The goal we should
share, the question is how you do it. And so what I think you
have to do is give up that idea that copyright equals control. Umm, because
it's not there. Why invest so many resources in something you can't do anyway? And do something
else, and that something else is either abandon exclusive rights, for most
things, not for everything. If I write a novel, and a motion picture company
wants to make a motion picture out of it, then yeah.
Those sort of one to one things you can still do. But I think what people are most upset
about is not those one to one things, because those
one to one things still work. It's the other stuff.
So the other stuff has to be handled differently, either through compulsory licenses,
through tariffs, through collective administration of rights, through Creative Commons licenses,
whatever else. So I think we actually do have to shift from a rule, from a model of control
to a model of payment instead. So if you really want to say, "I really care about my ideology,
it's mine and you can't use it," that was nice, but I don't think it actually works
anymore, and so you can't take that to the bank. And
I'd rather you can take something to the bank instead.
>>Fred: So, anyone want to ask for questions, while we get the mic to somebody, I will just
ask you quickly to say, tell us what is on your sweatshirt, because I was very curious
to learn it.
>>Bill: Right , right, right. So MPCS means mouthpieces, clarinet mouthpieces. A friend
of mine, Jim Kanter, who's from Woodland Hills was
going to be here today, but his wife got sick, so I had this t-shirt
made up for him, he makes these truly mystical mouthpieces so that you feel like you're
not actually playing on a physical thing. He made his living, talk about getting paid,
he had a career in Hollywood, he was a film studio musician.
He was in over a thousand movies and television ads,
and stuff like that.
>>Fred: There you go.
>>Bill: He's a really cool guy.
>> Fred: Question?
>>male #1: Hi. [coughs] I am intrigued by your prescription for how we can
change the model for copyrights, and I look forward to reading that,
but looking at a different dimension of the copyright issue,
there's the battle between the content, the big content companies like Disney that will
stop at nothing to make sure that Mickey Mouse and all subsequent works are in perpetual
copyright, and Google where we want to, Google for example,
where we want to scan orphaned works into Google books and can't find the rights
holders to get permission for that. Do you think it would be possible to strike a compromise
between big media and the copyright freedom movement
that copyrights would be renewed periodically by rights holders and allow other works would
be allowed to lapse into public domain over time?
>>Bill: Right. So Disney, one thing about the debate, I don't actually view it
as big media companies versus others, or authors versus users. I mean, Disney has
benefited a lot from the public domain.
Most of its earlier famous works were based on public domain stuff.
Bambi, based on Felix Salten's work. Um, the, uh Fantasia,
they were able to use Stravinsky's 'Rite of Spring'
because it was in the public domain here. So I think everyone would benefit from having
access to works earlier. How to do that, I agree with your
approach, and that's this: we had, in the United States, until either 1978 for most
works, or 1992 for others, a system that actually
was amazingly great at giving market signals for the worth of
things. So if you want to approach this question empirically,
in a data driven way, you would try to figure out
how long does the market itself say the commercial value of a work is, right?
And there's lots of different ways you can do this. You can
look at certain books in print, you can look and see
how long certain books are in print. Or you can do what the gentleman was suggesting,
is look at formalities. So, in the United States,
we had a system where you had variously, say, an original twenty-eight year term of copyright,
if you wanted a longer term of copyright, you had to file a renewal request with the
U.S. copyright office, and if you did that, you'd get another twenty-eight
years. So if you ask people now, you know, well,
you get a twenty-eight year monopoly and for three bucks
and filling out a simple government form, you're going to get another twenty-eight years,
most people, you would think, would say "yeah, sure. I'll take the other twenty-eight
years. It doesn't harm me, it's not a lot of work to do, the transactional
costs aren't high to get the twenty-eight years."
But the actual data shows that most people didn't do it.
For almost a hundred years, the data was uniform that the renewal rate was
fifteen percent. Now this is actually a much smaller subset of copyright works
because most works were never registered in the first place. And if you break it down
by type of work, motion pictures had the largest renewal rate seventy-four percent. Books had
seven percent renewal rate, right? So ninety-three percent of the books,
the twenty-eight year term of copyright was quite enough. And it wasn't that
book publishers were lazy, it's that they made a rational economic decision
that the economic value of their work was over, after twenty-eight years.
So in a rational system, you would take those market signals, you wouldn't have one size
fits all, which doesn't make sense anyway, I mean if
the market evidence shows you that there's seven percent for books and seventy-four
percent for motion pictures, motion pictures might get a longer term than
books would. But by having this requirement, that you need to renew your interest in works,
we cut out a lot of works where there was no interest, and for those works where
there was interest, you could go to those people
and license it. So I actually think, in response to your question, it's a really great idea,
and we should do it again. To go back to the trade policy issue, we can't, [laughs] unless
we abrogate a bunch of treaties. And that's the danger, I think, of treaties.
They take away what we at Google take for granted, which is that we can change
things that don't work. And it's not a great system where you can't change things
that don't work.
>>Fred: Question up front here. .
>> male #2: Sorry
>>Fred: It's on
>>Bill: And I can hear you anyway...
>>male #2: Okay. I disagree with you that copyright does not promote creativity,
because we are in very lucky industry, because we can make things work like Google work,
or Windows work, or IOS work without having to
open source our code. But if you can [inaudible] books,
there is no way they can keep their source closed while giving people their, uh, work.
So, we don't have to resort to copyright law to keep our source closed, sorry, keep our
code closed, but they have to. So we should understand
that they need protection, by law that we can protect
by our business means. So if we had to open source our code to make our things work, do
you think we would be working here in Google today?
>>Bill: Well see, I've been here five and half years, I would say, and the books project
was going on before that. I would think that for any
partner, we have to understand what their needs are.
And one of the things about copyright is, as I mentioned, it's a one size fits all problem.
And books, I've been publishing books on copyright since 1985, and I have a number of different
publishers, and I have great relations with them and I
think they are making really great efforts to try to figure things out. And it's really
quite generational, so I have a ten year old daughter.
And she reads a lot and she reads hard copy and she reads Kindle, too, but she will take
her Kindle to bed to read at night, but she won't take hard copy book to read at night.
So if we're trying to figure out what the best business approach is, um, you
know, I would say the copyright issues, though while important, I think ultimately
figuring out what's the best market solution for things is going to get us a lot farther.
Fred, do you have anything to say to that?
>>Fred: I actually also think it's really interesting, because to some extent, books
actually are closed source. In the sense that they are expensive to duplicate
and distribute in paper, and yet you see the ease, the places where
your written word, focusing on books is kind of missing the point. If you look
at the places where the written word is most easily copied,
that has to be stuff that starts digital already. So if you look at the enormous outpouring
of original writing going on on blogs, for example, I think it's fair to say
that today more written words are written, more people write, in the medium that is less
protected, um, from easy copying. And so, to some extent,
empirically, I wonder if your observation actually bears out,
because what you find is the folks who insist on, publishers for example, of paper books,
who have been very reluctant to put their books in digital form,
and have sort of come slowly to the e-book solution revolution and things like that.
It turns out actually in a region of less control, the Internet, people actually write
more. So if creativity is what you're worried about,
you could have arguments about, well, those people maybe aren't being paid as much,
or those people, I mean, there's lots of other arguments you could have, but on a pure question
of where are the people creating, they are creating more, in less protected
areas, than they are in more protected areas. That's just me. That's been my experience.
>>Bill: Or and Cory Doctorow does his books, too.
>>Fred: Yeah, there's plenty of folks-
>>Bill: And you can download his books for free.
>>Fred: And there are plenty of authors now, shouldn't say plenty. There are some authors
now who publish on paper and digitally for free using Creative Commons license at the
same time. And that seems, O'Reilly, Tim O'Reilly has
some great stories about, he gives away some of his books
for free online, and finds that those books actually make more money for his publishing
company, than the ones he doesn't. Because of the effect
of people hand them, you know, hand to hand, more people see them, more people are exposed,
and granted, his publishing is mostly technical manual type material. So someone
sees it, they like it, they decide they want to have it on their shelf as a reference,
they buy it, um, and maybe that's not true for a novel
or something like that. But it just goes to show there are a lot of places where the intuition,
and copyright too often, I think, suffers from, and Bill's book makes this point, from
a kind of untested intuitive reasoning rather than from actual empirics. And the
untested intuitive reasoning is well, you know as, uh, I guess it's, who is who
said "Only a blockhead would write for-"
>>Bill: Johnson, Sam
>>Fred: Samuel Johnson said "Only a blockhead would write for free." Um, in fact, you find,
lots of people write for free for all kinds of reasons and
>>Bill: Including him by the way
>>Fred: Including him, exactly. You really want to test empirically, do you, do publishers
really need copyright? How do publishers do who don't use copyright? What actually happens
in these markets and a lot of the answers might be surprising,
and if they're not surprising, I'd be happy to learn that, too.
>>Bill: It really is asking the questions, not prejudging to say, "Oh, I really know
copyright's not necessary." It is necessary for stuff. We've got to figure
out what it's necessary for, and what it's not. You know,
the intuitive stuff is where we get into trouble. I'd have these arguments with my mother, and
at the end, she'd say,"Don't confuse me with the facts."
[laughter] And I'd go, I'd like to be confused by them.
>>Fred: Brad?
>>Brad: Umm, I've,yes, as Fred knows, I've written a bunch about this and there's sort
of a, just to get to one question, I do believe that the investors that are putting
the hundreds of millions together do actually want a copyright as their goal,
as you said the writer isn't saying "today I want to get a copyright,"
but I think those investors actually are, so there is a fair point to that. But I want
to get to one of the central issues that I haven't
found a good solution for, and that is, having a powerful fourth estate in a world
without copyright. Um, you know, the Martha Grahams of the world,
who become billionaires on publishing, or the New York Times,
and then she is able to take on a president with her power. The huge money she made, she's
able to take on and take down a president using that power,
and the world of the blogosphere, where people will indeed
write news for free. They'll report the news, they'll cover things that the major news media
don't find, perform a very very valuable role, but having
powerful rich media who've been able to build a business empire based on selling
that information in the past, based, not so much on copyright when it was
not online, but today more based on it. How do we preserve
those, have those people that can be so rich by having that control, and then can take
on presidents and serve society?
>>Bill: I think that the Washington Post makes most of its money off of Kaplan.
>>Brad: So, I am certain that's true, but unless you want to claim that the news media
make no use of copyright, and do not, and are not in the
in fact seeing their decline because of their inability to use the same business
models that they had in the paper world.
>>Fred: It's intriguing, because I'm thinking, there's a chapter in here about that very
question. …
>>Bill: Yeah, long chapter.. [laughter]
>>Brad: I am sorry for not reading the book first.
>>Bill: about newspapers. So, if I can go back to the motion picture one,
um, motion picture companies certainly make money off of licensing, and copyright
is a significant part of that licensing. So there's secured interests and there's presells,
and there's regional agreements, so
>>Brad: The story of George Lucas is quite famous in that regard.
>>Bill: Sure. So it does play a role in those things, I will say, however, that the part
about-- that it still doesn't create value. That's
another one of those intuitive things that I don't think is true.
No one's going to go to a lousy movie because it's copyrighted. People are going to go to
a great movie because they think it's inherently great.
>>Brad: But the idea of copyright is, if there is value
>>Bill: Right.
>>Brad: Copyright lets you protect it.
>>Bill: That's the free riding part, that's the free riding part,right. So the mistake,
however, I think, is that copyright by itself creates value, whereas, at least
to me, it's the market and consumer demand that create value and copyright, as you
were pointing out, plays a role in creating it, once there. I think the mistake is that
if I own a bunch of copyrights, it's really valuable, and the
mistake becomes important when it's a policy issue, right?
Now copyright can lead to greater competition, and the knowledge economy is based upon competition,
and knowledge economy needs copyright. Those sort of syllogism that aren't, that aren't
quite there. That's my only point. I certainly agree it's
significant for licensing.
>> Brad: To the, to the question of the news?
>>Bill: Yeah, you know, I would say, the way the question is phrased is not one I am comfortable
>>Brad: Okay.
>> male #3: I want to follow up on what you said about making sure that content creators
get paid, rather than make sure they have exclusive rights. Now, it's fair to say I
should read the book, okay, so I'll accept that answer, but otherwise,
are you suggesting something like ASCAP or BMI where your stuff
is owned by some central agency that will license it for you and sends you a check periodically
or, or what?
>>Bill: So there's a lot of discussion right now about copyright registries,
and about collective administration of rights. In Europe, they're already very far that way
in ways that maybe some people don't like so, if I'm
a composer in Europe, I have to license my work collectively,
I don't have the option, as I do here in the United States, of not going to ASCAP or BMI,
and doing it directly. There certainly have been issues of transparency
in some collecting societies in Europe, and even occasionally corruption, as well.
With some Mediterranean societies being raided by the police, [chuckles]
and stuff like that. But the basic model for ASCAP and BMI I still think makes sense. Which
is that you, as a creator, can't go around to every bar
and restaurant or broadcaster throughout the country
>>Fred: Or website
>>Bill: Or website and spend your time licensing. It's really an issue for, say, photographers,
as well. My point is that, yeah, we do need to go to
something like that, simply because it's the only probable way
that people can get paid. And one of the things that many people are working on the registry
area is, of course, something that we do very well,
which is building a data base.
>>Fred: Just a, just
>>Bill: mm, who, who owns what rights?That's got to be the first thing, who owns the rights?
What are the terms of it, is it time limited, is it regionally limited,
is it limited to the sound recording, not the musical thing. So I know there are
a lot of people doing a lot of work on that and I think it's an idea that has come to
be accepted by a lot of content owners as well. That the
only way we're going to get people paid is to first build a data base
of who owns what, and then it can be cleared and then the second step is the sort of automatically
licensing thing that you're talking about. I mean CCC paved the
way for a lot of that step.
>>Fred: That's Copyright Clearance Center here in the United States.
>>Bill: Yep, and also Creative Commons has done a lot of work concerning those. So I
think it's a two step thing. The first step is building a database of who
owns what, and the second step is using that database
to allow people to license things, or setting up micropayments, or other ways of doing it.
There are a lot of people who are doing work on that, even at Google
>>Fred: And there's a, I just want to point out, there's a lot of situations where that
kind of solution happens already. And, uh, YouTube comes to
mind for example, where the major record labels, and a number of independents as well, have
granted YouTube licenses essentially to their entire catalogs,
there's some exceptions and this and that, but the general way it works is that, you
know, a user, a YouTube user can upload a video with a song
as the soundtrack without the user having to figure out
who owns it, without clearances, without any of those transactional headaches. The rights
holder is compensated based on advertising that appears around the
video, and that is, in a way, a sort of collective approach,
almost like a blanket license that works well enough in practice to actually be a win for
everybody. A win for users who get to post what they
like, a win for rights holders who get paid, and it's a win for Google
because we get a piece of that revenue as well. So, some of that can happen without
waiting for, I agree, it is ridiculous that it is so difficult to
figure out who owns what, and we do need to solve that problem.
But we don't need to wait for the perfect utopian registry in order to get started.
>>Bill: Right.
>>Fred: We need to get there, but at the same time. Other-
>>Bill: We are participating in European Union GRD, the Global Rights Database, and there's
been a lot of work done internally on that, with rights holders to
make it happen.
>>Fred: Another question? Yes?
>>female #1: How do you feel about the Twin Books Ruling for the Ninth Circuit Court?
Is that even--
>>Bill: Insane.
>>female#1: Insane? Okay, I am glad I am not alone in that!
>>Fred: For the benefit of the audience, you might want to say a little bit about what
Twin Books is and why
>>Bill: Well, Fred is an old Ninth Circuit Clerk of course
>>Fred: Not my fault. It wasn't decided when I was there.
>>Bill: Yeah, right, right. So here's the, this is highly technical issue but it's how
Fred and I make a living, so, you can't begrudge us that, I hope. So
here's the issue. There was under a prior law,
the 1909 Act, a requirement that for a foreign work to be subject to copyright, you had to
put a copyright notice on it. Now we were the only county in the
world that had that requirement
>>Fred: That's the, That's the "C" in a circle with your name and date.
>>Bill: the "C" in a circle and copyright date, or like the motion pictures did, they
used the Roman letters so you can't figure out what year it is. I
still can't figure out what year it is, but they're doing it so that
they comply with it, but nobody knows this was last year's movie, right, right. That's
the purpose for that. Um so, yeah,even though I studied Latin in
school, I still can't figure it out. So there's this requirement,
that if you were a German author, you need, you needed to have put that notice on it.
If you put it on, then things were great. You had a copyright in the United
States, leaving aside other things like the manufacturing clause,
but you had your copyright in the United States. That was true for U.S. authors, too, by the
way. We had to put a copyright notice on, and if
we didn't, it went into the public domain, meaning there was no copyright. So, what happened
if a foreign work didn't put that copyright notice on,
the EASY answer--
>>Fred: And it was published overseas?
>>Bill: It was published overseas. The easy answer, the textual answer would be, it's
in the public domain too right, after all, if you get copyright by
doing it, and you don't do it, then the logical thing is you suffer
the consequences because you got the good and that's what the statute says. That, of
course, is not what the Ninth Circuit did. They created this
sort of weird hybrid which is that, well, it wasn't protected, but it wasn't unprotected
quite either. And so that has caused lots of problems.
One of them is, causes problems for anyone trying to figure out whether a foreign work
is in the public domain or not. It also caused problems, because when I worked for Congress
in 1994, we passed this law, the GATT, General Agreement
on Tariffs and Trades, which took out, from the public domain, these foreign works
that hadn't complied that obligation. And, that was upheld by the Supreme Court
quite recently. I know a lot of people don't like it,
but I personally was relieved that a statute that I wrote wasn't found unconstitutional.
Small matter of pride. [laughter] Not a popular one within the company,
but you know, it was my own. So that law actually took care
of the situation. It said, "look if you are this foreign person and you didn't really
realize it, it's okay, we're giving it back to you and you have the
same term of protection you would have otherwise had." But no,
that's not what the Ninth Circuit did, and that's a problem that we live with a lot.
>>Fred: Yeah, the Google Books team
>>Bill: How do you engineer that? How do you engineer something say, we can actually engineer
pretty easily for U.S. works whether it's in the public domain or not. But how do you
actually have the next level, oh, if it's a foreign work and you have an
insane Ninth Circuit decision, what do you do?
That's not an easy engineering problem.
>>Fred: Are there, another question?
>>male #4: So it seems like there's a lot of pressure to have these laws
around copyrights, sort of. Like the one that comes to mind is DMCA, where even the copyright
technically allows you do to something, but then you have another law based around the
enforcement that takes the right back away, like you're
allowed to use fair use, but I can't format shift
because I'm not allowed to break the encryption on the work or something
>>Bill: Anti-circumvention stuff
>>male #4: And it seems like SOAP and PIPA were sort of another play in that direction
a little bit. Do you think the conversations getting a little bit away from copyright and
they're sort of doing an end run around it or, that's an unhealthy
thing or
>>Bill: I think what you are referring to is this chapter twelve, and title seventeen
is really technically not a copyright thing, but it's used that
way, and I agree with your point. The point would say,
I can engage in satire and parody because it's fair use, but if there's this code, that's
deemed a technological protection measure and I need
to break that code to engage in parody or fair use,
it's an independent violation.
>>Fred: This is the classic reason why you can rip your own CDs onto your IPod, but you
can't rip your DVDs onto your IPod.
>>Bill: Right.
>>Fred: Because the latter, DVDs, have a technological protection measure, and you would have to
break it in order to copy it onto your IPod so, different
>>Bill: I mean, the greatest use of it, as Fred and I were talking about earlier today,
is not for that sort of stuff, but in controlling consumer product features.
That's how it was originally written, and to me, it's sort of, it's very
medieval, it's like medieval moats and stuff, and it's like giving someone, like giving
some guy the right to put a chastity belt on somebody else's wife, you know. It
doesn't really make sense. [laughter] I mean , copyright
has always had to do with technology, this is true, but it's always dealt with a use
of technology positively or negatively, with the ultimate
consumer or the author. And what these anti-circumvention things do
sort of cross the Rubicon, to use another ancient metaphor, of giving control over what
third parties do. And, personally, I would love to have those
repealed. I think they don't make sense, but again,
they are in so many trade agreements now, that it would be really hard. Let's say that
we just decided we were wrong and it's really a stupid
thing to do, it's anti-consumer, it harms markets, it harms like everything
it touches, it's radioactive. There's nothing we can do
about it. Because we'd have to abrogate all these treaty agreements, and that's a huge
problem. They're not only anti-democratic, but they
stop us from fixing our mistakes.
>>Fred: So I think we're about, do we have time for one more?
>>male #5: Yeah.
>>Fred: Great.
>>male #6: Okay, I have a question that segues off this but also gets back
to an earlier discussion around creativity. Just, I have a number of friends who are deejays,
and video editors, and a big trend, especially on YouTube, is to kind of take existing songs
out there and mash them up and remix them, in a way where you actually create a new work,
and as well with video as well. And I was wondering what
your thoughts are on perhaps on how we could help move
copyright law into an area where it would kind work in this new digital environment
where well, just for an example, when a friend uploads
his video to YouTube, sometimes it will say we've found that you're using five different
samples from these songs, and it will recognize who owns the rights. But then sometimes it
will prohibit him from uploading the video at all, and sometimes
there will be some kind of cost sharing program going on. But I was curious as to what do
you sort of recommend for these remix and mash up works?
>>Bill: The Canadian Reform Bill actually has a provision on this
>>Fred: I was going to say move to Canada
>>Bill: Move to Canada, yeah. And you'll also have notice and notice, not notice and take
down. That's the second part of that. They actually have proposed a specific
provision for user generated content that's non-commercial, and really
addresses this issue.
>>Fred: But, under U.S. law, wouldn't you say that fair use often could address the
issue already?
>>Bill: Yes, yes. But then there's the nice intersection between video content and ID.
>>Fred: Well, that's right. On YouTube, when content ID detects a match, the content owner
can ask for that to be blocked. Which is why your friend is seeing things
not get uploaded. Those matches can be overridden by the user disputing it,
and at that point the rights holder can then send a take down notice formally if they believe
it's infringing, and the user has a right to submit a counter
notice under our DMCA. So it's a very complicated system, but it certainly
offers more than a system that would simply prohibit it. Which frankly, a lot of copyright
laws around the world leave no room that kind of creativity at all.
Which is part of the reason why, I think in many ways the United States,
now perhaps Canada, there are a number of countries
>>Bill: Israel >>Fred: Israel, um, a lot of this creativity
at least has room in those systems. Interestingly, the U.K. just completed
a big study led by a professor named Ian Hargreaves that describes how they think their copyright
law might need to change in order accommodate that sort
of creativity so there is, in some ways, it may not be perfect,
but the United States is a little bit in the vanguard when it comes to that sort of thing.
>>Bill: The other concept we should deal with is that in addition to fair use, which we
have, is derivative works. The scope of derivative works because that's
part of what you're talking about. And I think, a different look
at derivative works, limiting them to market displacement. You would give a right to procure
derivative works so for example if I write a, go back and I write a novel, someone wants
to make a movie out of it that's a derivative work and I should have
the right to control that, or someone wants to use my song in a film or
a political advertisement, you know, those sort of things. But derivative works that
are themselves, what we would say, transformative, creative and that don't harm the market for
the original, is a concept that probably should be revisited, I think.
And there are, of course, even with content and ideas, there are a lot of companies that
do permit it.
>>Fred: Absolutely right.
>>Bill: So it's not a monolithic, you know, that all big companies are trying to suppress
this stuff. There are a number of them that allow parody and
a number of them allow mash ups, too.
>>Fred: So I think that brings us to an end here. I want to thank Bill for coming by.
>>Bill: Thank you everyone for coming too.