Devlin Hartline is Legal Fellow at the Hudson Institute’s Forum for Intellectual Property in Washington, D.C. His research agenda spans a broad spectrum of doctrinal and political issues in intellectual property law, with particular focus on advancing and protecting the rights of creators and innovators.
The Constitution empowers Congress to enact federal copyright laws because the Founders recognized that the best way to advance the public interest is by enabling creators to pursue their own private interests. The copyright system secures uniform property rights to creators across the nation as a reward for their productive labors and as incentive for them to profit in the marketplace. The incredible selection of creative works available to consumers today, in terms of quantity and quality, shows that copyright law is working well. Of course, that doesn’t stop the detractors from throwing as many monkey wrenches as they can. However, looking back over this past year, there’s good reason to think that the naysayers are becoming less relevant. There’s cause to be hopeful that the plight of all creators, big and small, is improving and will continue to get better in the years to come.
The right-to-repair movement has been making strides in recent years, as many states are now contemplating bills that would require electronic device manufacturers to make their parts, tools and know-how available to device owners and independent repair shops. While the goal of expanding repair opportunities for consumers is certainly laudable, repair advocates are pulling a fast one when it comes to the federal copyright law implications of their preferred state legislative solutions. As Professor Adam Mossoff and I explain in a new Hudson Institute policy memo, these proposed state right-to-repair bills are unconstitutional on their face because they directly conflict with the rights secured to authors under the federal Copyright Act. They are also the wrong policy since they would upset the legal and policy foundations that have led to the unprecedented success of today’s thriving digital marketplace. States should not waste valuable time and resources on harmful right-to-repair bills that will be struck down when they are inevitably challenged.
The ability of copyright owners to experiment with different marketing strategies is fundamental to copyright law. Indeed, the U.S. Copyright Act promotes the public good by granting exclusive rights to copyright owners that incentivize the creation and dissemination of new works on their own terms. These exclusive rights are the reason why copyright owners invest time, energy, and money into creating new works, and why they have a chance to recoup expenses and perhaps make a profit. The Copyright Act has always celebrated the right and ability of copyright owners to choose whether, how, when, and where their works are distributed to the public. And under our dual system of government, where federal law reigns supreme, it is well-settled that the states are powerless to interfere in ways that conflict with the nationwide scheme established by Congress. Nevertheless, there is an alarming new trend of states pursuing laws that would force publishers, many of whom are also authors, to grant licenses to public libraries for access to their digital works, such as eBooks and audiobooks.
One of the greatest attributes of copyright law is the never-ending abundance of exciting new developments, including those in Congress, the courts, and at the Copyright Office. On the surface, copyright seems straightforward in that it advances the public good by securing property rights to authors. But underneath this simple veneer lies centuries of debate about how best to balance the rights of authors with the public interest, where each distinct issue presents a veritable rabbit hole of metaphysical distinctions. For the copyright connoisseur, keeping up with the latest events can be an exhausting endeavor, though the thrill of solving new puzzles makes it intellectually rewarding. Thankfully, one need not be a member of the copyright cognoscenti to appreciate the major developments in copyright law this past year. From the Supreme Court’s decision in Google v. Oracle to the implementation of a small copyright claims tribunal to attempts to rein in state infringements, 2021 has certainly provided many wonderful events worth highlighting.
One recurring thorn in the side of copyright owners is Cloudflare, the San Francisco-based web performance, optimization, and security company. Cloudflare offers many services to its customers, including a content delivery network that utilizes hundreds of servers around the world to cache its customers’ content. When an end user requests content from one of Cloudflare’s customers, it is delivered to that user from the cached copy on the nearest Cloudflare server—not the customer’s own web host server. This saves on bandwidth costs, improves security, and decreases page load times. It also raises important questions about Cloudflare’s liability for contributory copyright infringement when it knowingly allows infringing content to remain on its cache servers. Under Ninth Circuit precedent, web hosting services like Cloudflare can be held contributorily liable for assisting in the infringement under the material contribution theory. However, a recent district court decision misconstrued the case law to conclude otherwise in Mon Cheri v. Cloudflare.
One of the latest controversies in copyright law concerns the practice of controlled digital lending (CDL) by libraries. The idea is simple: Libraries take the physical books on their shelves, digitize them, and then share the digital copies with members of the public. Under the CDL theory, there is no permission needed to make the digital copies, nor is permission needed to share them publicly. The theory instead posits that all these things are perfectly legal—and presumably they have been legal for decades, though people are just now starting to notice. If this sounds too good to be true, that’s because it is. Ultimately, the CDL theory is really just the CDL fantasy. It’s an example of wishful thinking by supposed do-gooders who have figured out yet another way to give away other people’s copyrighted works for free. Except, this time, it at least comes with the fig leaf of a library.
Just how much knowledge about piracy on its system does an online service provider need before it loses its safe harbor protection, which severely limits its potential liability for copyright infringement, under the Digital Millennium Copyright Act (DMCA)? In Capitol Records v. Vimeo, the Second Circuit sets the bar very high, further blurring one of most important lines in copyright law—the line between actual and red flag knowledge—and protecting a not-so-innocent service provider in the process. Worse still, the Second Circuit leaves copyright owners with little chance of a remedy in the face of rampant piracy, even against a service provider that welcomes the infringement.
After nearly twenty years with the DMCA, the Copyright Office has launched a new study to examine the impact and effectiveness of this system, and voices on both sides of the debate have filed comments expressing their views. For the most part, frustrated copyright owners report that the DMCA has not successfully stemmed the tide of online infringement, which is completely unsurprising to anyone who spends a few minutes online searching for copyrighted works. Unfortunately, some commentators are also pushing for changes that that would make things even more difficult for copyright owners.