Talks at Google: Bill Patry, “How to Fix Copyright”
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Talks at Google: Bill Patry, “How to Fix Copyright”

>>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. [laughter]>>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] but..>>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. [laughter] 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.>>Fred:mmm>>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 answering.>>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 too.>>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. [laughter]>>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 answer.>>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. [Applause]

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