The hot-button issues this election can be counted on one’s fingers—and for most voters, things like copyright and patent policy don’t make the list. Assigned to a wonkish zone far from the Sunday morning talk shows, intellectual property issues aren’t near the heart of our deeply polarized political discourse.
Of the two major party candidates in 2016, only the Democratic candidate has a platform that even addresses copyright and patent policies. So today, let’s look at what we know about Hillary Clinton’s plan, and make some informed speculation about what could happen to these areas under a Donald Trump presidency.
Given that the campaign is focused (as always) on a relatively small group of issues, tech policy watchers who spoke to Ars were surprised to see a presidential platform that mentions IP issues at all. Clinton’s briefing paper on technology and innovation addresses both copyright and patent issues directly, and that in itself is something of a surprise. Trump’s website has no such information, so the best clues to his approach lie in his public statements and the people he has surrounded himself with.
Clinton on copyright: The no-SOPA promise
Hillary Clinton’s intentions with copyright represent something of a snapshot of where the debate stands in 2016. Copyright policy (and one could say this for patents as well) seems like an area where the nation should be able to overcome its wide partisan gap. Yet, no legislative change of any real significance took place during the Obama Administration. Roughly speaking, two huge sectors of the economy—technology and Hollywood—were sharply at odds about what should be done. That standoff made it easy for an already do-nothing Congress to, well, do nothing.
Despite the lack of legislation, there was a big change during the Obama Administration in how US lawmakers viewed copyright. Members of Congress from both parties were deluged with calls and e-mails in 2012 as the citizenry absorbed what the Stop Online Piracy Act (SOPA) would mean for the functioning of the Internet. The draconian proposal included methods for quickly blocking websites deemed piratical, demands that ISPs use “graduated response” to disconnect users accused as pirates, and instructions for search engines to be forcibly rearranged with a list of websites more to the liking of the RIAA and MPAA.
At that time, the proposed anti-piracy law seemed destined for passage, with advocates of a more balanced copyright system hoping, at best, to whittle away at some of its worst changes. But SOPA caused a public outcry unlike anything seen before; an Internet blackout prompted millions of calls and e-mails to Congress. Institutional memory of the anti-SOPA uprising is still strong in Congress, where politicians now approach copyright issues tentatively and reluctantly, speaking about not wanting to get “SOPA’d” on a complex topic.
Speaking generally, most of the tech sector, and especially Internet companies, want a more balanced copyright system. And they certainly don’t want any kind of SOPA, or SOPA-lite proposal, whether it comes in the Congressional front door, through courts, or by lobbying state law enforcement.
In that climate, Clinton’s most important copyright position is her promise of what she won’t be doing—and the Democratic candidate explicitly promises she won’t be supporting a new version of SOPA. As her position paper states, Clinton “maintains her opposition to policies that unnecessarily restrict the free flow of data online—such as the high profile fight over the Stop Online Piracy Act (SOPA).” (For reasons that aren’t clear, this important sentence is oddly placed in the “net neutrality” section.)
Later, Clinton has a paragraph dedicated to her positions on copyright. It isn’t too long, so it’s worth considering in whole, jargon and all:
Effective Copyright Policy: Copyrights encourage creativity and incentivize innovators to invest knowledge, time, and money into the generation of myriad forms of content. However, the copyright system has languished for many decades, and is in need of administrative reform to maximize its benefits in the digital age. Hillary believes the federal government should modernize the copyright system by unlocking—and facilitating access to—orphan works that languished unutilized, benefiting neither their creators nor the public. She will also promote open-licensing arrangements for copyrighted material and data supported by federal grant funding, including in education, science, and other fields. She will seek to develop technological infrastructure to support digitization, search, and repositories of such content, to facilitate its discoverability and use. And she will encourage stakeholders to work together on creative solutions that remove barriers to the seamless and efficient licensing of content in the U.S. and abroad.
Reading between the lines, what should the interested parties make of this?
“There’s flowery language, and it’s hard to tell what it really means, but its heart is in the right place,” said Joshua Lamel, who represents tech companies in Washington as VP of BGR Group, and serves as executive director of Re:Create, a group that pushes for more balanced copyright. “I don’t know anyone in the Internet world who didn’t like that paper.”
The most important Internet copyright law is the Digital Millennium Copyright Act, which was created and passed under Bill Clinton’s tenure as president. “If you see the Internet as a success story, part of that is how [Bill] Clinton approached it in the 90s,” Lamel told Ars. There are problems with the DMCA and things that could be made better, but on the whole, the DMCA has done more good than harm.
Of course, Hillary Clinton isn’t her husband. But her own record at the State Department, in Lamel’s view, looks pretty good. Internet freedom was a major issue while Clinton ran State given the Arab Spring and related turmoil broke out on her watch. The department voiced concern over Internet access and free speech during those events.
The Clinton policy paper even cites a few points that are on the “wish list” of tech activists, like dealing with the mess around “orphan works,” older copyrighted works where the owners can’t be found, and ensuring open access to more federally funded content.
While Clinton surprised some by citing a problem like orphan works, her platform is vague or silent on issues that are arguably more pressing. One burning issue for copyright reformers that she has no public position on is the deformed DMCA “exemption” process, in which people who want to bypass digital locks for non-piratical purposes have to ask permission from the Librarian of Congress every three years. That’s hamstrung companies, tinkerers, and activists who want to use copyrighted content for purposes that seem obviously good for society—whether it’s ripping a DVD for educational slides or a documentary, or letting drivers tinker with their car software.
In the view of the Electronic Frontier Foundation, that exemption process, detailed in Section 1201 of the DMCA, is “fundamentally flawed.” Seeing no progress on a legislative solution, EFF filed a lawsuit in July challenging Section 1201 as unconstitutional. Is reform of this critical area something that could get Clinton’s support? The platform leaves us few clues.
Finally, while Clinton was clear about speaking up for Internet access rights in other countries, she’s been more heavy-handed when US national security is at issue. Internet privacy isn’t the focus of this article, but Clinton’s public statements suggest that she will be at least as supportive of massive Internet surveillance as Obama was, if not more. When asked about Edward Snowden in the debates, she followed Obama’s line—that he should come back to the US and face a trial, full stop. It was her primary opponents, Bernie Sanders and Martin O’Malley, who showed more sympathy towards Snowden.
Other matters on the wish-list of copyright reformers, such as reforming the massive statutory damages available to copyright owners, are likely to face further stalemate in Congress regardless of who is president.
“Statutory damages are in desperate need of change, and the damage to innovation is really high,” says Ernesto Falcon, an EFF attorney who focuses on IP issues. “VC’s look at litigation risk, and it’s copyright is super-risky because of six-figure artificial damages. But it’s hard to get Congress to have the courage to take it up.”