Is it Time to Rewrite US Copyright Law?

Earlier this week, Shira Perlmutter, the Register of Copyright at the US Copyright Office, told the US Senate’s Intellectual Property Committee that now might be a good time to consider rewriting US copyright law. 

Her comments were specifically pointed at the recent Cox Communications case. There, the Supreme Court ruled that, despite the fact that Cox did not terminate the accounts of repeat infringers, it was not liable for secondary copyright infringement.

The case is widely seen as a significant narrowing of secondary liability in copyright law. Many, like Perlmutter, believe that this ruling will make it harder for copyright holders to enforce their rights and reduce the incentives for ISPs and other intermediaries to take down infringing content.

In the United States, secondary liability for copyright infringement is not codified in law. Perlmutter argues that the Supreme Court’s decision highlights the need to clarify and codify secondary liability, something that will require legislative action.

Given the current political climate in the United States, such a major rewrite is unlikely to happen in the near future. But this does raise a question: is now a good time to rewrite US copyright law? If so, what issues should be addressed and what changes should be made?

While the Cox ruling is a natural starting point, there are several other issues that could benefit from greater clarity, especially in the context of AI.

Area 1: Fair Use

Ever since the 2023 Supreme Court ruling in the Warhol case, there has been a great deal of discussion about fair use and what the boundaries are. The recent decision in the Tiger King case illustrates this perfectly.

In that case, which dealt with the use of clips from a funeral in the Netflix documentary series Tiger King, the 10th Circuit Court of Appeals initially ruled in favor of the plaintiff, determining that it was not fair use. The decision was so controversial that both the Motion Picture Association and the Electronic Frontier Foundation filed amicus briefs urging the court to reconsider.

The court did reconsider and reversed its initial decision. However, the case highlights just how complicated fair use can be and how two reasonable people can look at the same set of facts and draw opposite conclusions.

While some of this confusion and grayness is by design and necessary, the current fair use standard was codified in 1976 and has not been updated since. Courts have had to do the legwork of updating and clarifying the standard as new technologies have emerged.

It would be a difficult balance, but adding legislative clarity while maintaining flexibility in fair use would help prevent conflicting rulings like the Tiger King case.

Area 2: AI

This is the most obvious area of concern. No matter how one feels about AI, it is here to stay and will likely be a major part of our lives for the foreseeable future. However, our current copyright laws are poorly equipped to deal with the questions that AI raises.

Though the US Copyright Office has released reports on its stance when it comes to AI, it will ultimately be the judges and juries to determine how the current law applies to the new technology.

The government has a rare chance to get ahead of the curve here. They could rewrite or amend the law to indicate what copyright protections, if any, AI-generated content should have. Whether using content to train AI systems is fair use or not. And who is liable when AI generates infringing content.

These are complicated questions that, right now, could take years or even decades of legal wrangling to answer. However, the government has the opportunity to step in now and provide some clarity.

Such clarity would likely benefit everyone involved. AI companies could move with more confidence, human creators would know what is and is not infringing, and AI users would know what their obligations are.

Area 3: Secondary Liability

The Cox ruling has served as a massive shakeup on the issue of secondary liability. It’s a massive leaking of the DMCA and a major win for tech companies at the expense of rights holders.

In short, the Cox ruling said that the DMCA, including the notice and takedown provisions, is a way for tech companies to avoid secondary liability. However, according to the Supreme Court, it does not create a secondary liability in and of itself. Since the Supreme Court found that Cox did not have any secondary liability, the fact that it failed to comply with the DMCA is irrelevant.

This will impact different companies and in various ways. But it raises a single question: was this what Congress intended?

I find that difficult to believe. I find it hard to accept that Congress would go through all the trouble of passing the DMCA and establishing the safe harbor provisions only to have the Supreme Court rule that, in many cases, there is no secondary liability at all.

But that is the problem. Secondary liability is not codified into the law, so the legislature has not really spoken on the issue, at least not directly. If Congress supports the Supreme Court’s decision, then it should say so. If it does not, then it needs to say so.

Area 4: The Role of the Copyright Office

As many of you already know, I’ve been an open critic of the registration requirement for many years. It’s an archaic practice that effectively disenfranchises most creators. It also creates a pointless technicality that weakens copyright law.

It’s also an institution that is unique to the United States and actually makes it so that foreign copyright holders have an easier time enforcing their rights in US courts than US-based copyright holders. 

However, I still believe that the US Copyright Office is a valuable institution that serves an important role in copyright law. However, we need to better define that role, especially in the digital age. 

For example, the Electronic Copyright Office (ECO) system was obsolete when it launched and has only become more so since. If we can’t eliminate the registration requirement, then we need to at least make it easier and cheaper. 

However, the Copyright Office is heading in the opposite direction, proposing a massive fee hike. Simply put, this system is untenable and needs to either be eliminated or overhauled.

We need to have a real conversation about the role of the Copyright Office moving forward and how we can make the system better for everyone.

Area 5: Site Blocking

The SOPA/PIPA protests in January 2012 put an end to the idea of site blocking in the US. However, the rest of the world largely moved ahead. The EU passed their own site blocking legislation in 2019 and other countries have adopted similar measures, either through legislation or through court decisions.

However, in recent years, the US has been testing the waters on passing its own site blocking legislation. Though nothing appears to be imminent, the fact that it is even being discussed shows how much has changed in the last 14 years. 

This would likely pair with the secondary liability issue. While I am personally ambivalent about site blocking, I do think the time has come for the US to either adopt such a system or resolutely reject it. Otherwise, it’s going to be something that comes up every few years, makes headlines, and then disappears. 

If we are going to address secondary liability in other spaces, it also makes sense to address this issue as well.

Bottom Line

If (by some miracle) Congress were to agree with me and start addressing these issues, it would be a massive overhaul of copyright law in the US.

However, I don’t think that this is quite a “start from scratch” situation. The core of copyright law is still sound, and many other elements, such as the term of protection, have limitations placed on them by treaties and international agreements.

So, instead of a complete rewrite, it may be time for a “New DMCA” type of update, a major update driven by the technological changes that are taking place.

Unfortunately, the odds of that happening are still functionally zero. Copyright is simply not a priority for Congress right now. There is almost no way this issue is going to be addressed in the near future.

However, that doesn’t make it less important. Perlmutter was right; now is a good time to rewrite and clarify significant portions of US copyright law. There are many issues that would benefit from such a clarification.

That just makes it more disappointing that it is unlikely to ever happen.