Copyrightability of input formats and output designs

In the internet age, copyright does much more than antitrust to shape competition

We do it Copyright Week, a series of actions and discussions in support of key principles to guide copyright policy. This week, different groups are taking on different elements of copyright law and policy every day, discussing what’s at stake and what we need to do to make sure copyright promotes creativity and innovation.

There has been a remarkable and highly anticipated wave of antitrust actions targeting Big Tech, launched by users, entrepreneurs and governments alike. And in the US and abroad, policymakers are working to revamp our antitrust laws so they can be more effective in advancing user choice.

These are positive developments, but this renewed focus on antitrust risks losing sight of another powerful legal leverage: copyright. Because there is copyrighted software in every digital device and online service we use, and because the Internet is essentially a giant machine for copying digital data, copyright is an important factor shaping technology and how we use it. This gives copyright a huge role in enabling or hindering competition.

The Digital Millennium Copyright Act (DMCA) is an example of this. It contains two main sections that have been controversial since they came into effect in 2000. The “anti-circumvention provisions” (sections 1201 and next. of the Copyright Act) against circumvention of access controls and technical protection measures. The “safe harbor” provisions (section 512) protect service providers that meet certain conditions from monetary damages for the infringing activities of their users and other third parties on the network.

Congress has supposedly passed Section 1201 to discourage potential violators from circumventing DRM and other access controls and copying restrictions on creative works. In practice, little is done to deter infringements – after all, large-scale infringements already lead to huge legal penalties. Instead, Section 1201 has been used to block competition and innovation in everything from printer cartridges until garage door openersvideo game console accessories, and computer maintenance services. It has been used to threaten hobbyists who wanted their devices and games to work better. And the problem is only getting worse as software appears in more and more places, from phones to cars to refrigerators to farm equipment. If that software is locked behind DRM, it may be necessary to bypass it in order to interact with it so that you can offer add-on services. As a result, manufacturers gain full control over their products long after they are purchased, and can even exit secondary markets (as Lexmark did for printer ink and Microsoft tried to do for Xbox memory cards).

On the other hand, the Article 512 “safe havens” are essential to Internet innovation, as they protect service providers from monetary liability based on their users’ infringing activities. To receive these protections, service providers must comply with the conditions set forth in Section 512, including “notice and takedown” procedures that provide copyright holders with a quick and easy way to disable access to allegedly infringing content. Without these protections, the risk of potential copyright liability would prevent many online intermediariesfrom platforms to small community websites to newspapers and ISPs — from hosting and sending user-generated content. Without the DMCA, much of the great technology today wouldn’t exist — but it’s equally true that if we took it out now, new competitors would never emerge to challenge today’s giants. Instead, the largest tech companies would be making lucrative deals with major entertainment companies and other major copyright holders, and anyone else hosting or transmitting third-party content would simply face huge and unpredictable financial penalties — a risk that would deter investment.

There is one last legal wrinkle: filter mandates. The DMCA’s hair-trigger removal process failed to satisfy many rights holders, so major platforms, especially Google, also used filtering mechanisms and other automated processes to automatically remove content or prevent it from being uploaded at all. In the EU, these mechanisms are becoming mandatory, thanks to a new copyright law that establishes DMCA-like safe harbors to prevent users from uploading infringing content. The proponents claimed that filters are not necessary, but in practice that is the only way service providers can comply. That has created a problem in the EU – as the Advocate General of the EU Court of Justice last recognized years, automated blocking necessarily violates the human right to free speech.

But filter mandates create another problem: they are expensive. Google has famous spent over $100 million in developing its Content ID service – a price few others could bear. If the price of hosting or sending content builds and maintains a copyright filter, investors will find better ways to spend their money, and today’s tech giants will remain comfortably entrenched.

If we want to create space for New Tech to challenge Big Tech, antitrust law cannot be the only solution. We also need a balanced copyright policy, in the US and around the world. That is why we have fought to end the EU mandate and will continue to fight to address the inevitable damage of its implementation. That’s why we’re working hard to end the current push to mandate filters in the US as well. We also need the courts to do their part. To that end, EFF only this month asked a federal appeals court to block enforcement of Section 1201 copyright rules that violate the First Amendment and criminalize speech about technology. We have also submitted amicus briefings in numerous cases where companies use copyrights to exclude competition. And we’ll keep fighting, in courts, legislatures, agenciesand the public sphere, to ensure that copyright serves innovation rather than thwarting it.

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