Yochai Benkler: Next steps after tactical victory on SOPA/PIPA.

Yochai Benkler has a good discussion of recent developments. He includes four proposals:

Legislatively re-instate the Sony doctrine and reverse Grokster. Technology developers should only be liable for copyright infringements by users if there are no substantial non-infringing uses of the technology.

Decriminalize copyright to pre-1998 levels: put the Golem to sleep. Return the definition of criminal copyright to require large scale copying for commercial gain; reduce the funding to criminal enforcement and reduce the presence of federal functionaries whose role is to hype and then combating the piracy threat. In particular, as calls to shrink the federal government abound, it is critical to include in every legislation downsizing the federal budget provisions that would defund and eliminate most of the burgeoning apparatus of multi-agency criminal enforcement of copyright. The most direct pathway to this will be in appropriation bills, to defund implementation of PRO-IP until a more balanced substantive approach can be worked out.

Create a fair use defense to the anticircumvention and antidevice provisions of the DMCA. Users should be exempt from DMCA liability if they propose, in good faith, to make a fair use of the encrypted materials. Decryption and circumvention providers should be exempt from liability on the model of the Sony doctrine, if there are “substantial non-infringing uses” for the circumvention technology or device they offer. This would fix a much older overreach by the industry, from 1998, that has been very slowly and imperfectly loosened by the Librarian of Congress under powers to exempt certain uses from liability.

Rein in the international trade pathway for copyright extension. Another pathway, similar to criminalization in the sense that it harnesses federal functionaries to help the industry, distinct in the set of functionaries it harnesses, has been international trade. Through a set of trade agreements, both bilateral and multilateral, the U.S. government has pursued the passage of requirements more stringent than it could itself pass in the U.S. The recent adoption of SOPA-like laws in Spain is one example, as is the notorious Anti Counterfeiting Trade Agreement (ACTA). We need a law that would prohibit secret negotiation of IP-related provisions in international agreements, and a law that prohibits the U.S. from entering agreements that require of ourselves or our trading partners more restrictions on the public domain than then-current U.S. law permits.

I would add, as always, reduce the duration of copyright in published works.