[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]







                   THE SCOPE OF COPYRIGHT PROTECTION

=======================================================================

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                     COURTS, INTELLECTUAL PROPERTY,
                            AND THE INTERNET

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                            JANUARY 14, 2014

                               __________

                           Serial No. 113-81

                               __________

         Printed for the use of the Committee on the Judiciary





[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]





      Available via the World Wide Web: http://judiciary.house.gov

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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
SPENCER BACHUS, Alabama              SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa                       Georgia
TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas                 JUDY CHU, California
JIM JORDAN, Ohio                     TED DEUTCH, Florida
TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah                 KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina       [Vacant]
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                                 ------                                

    Subcommittee on Courts, Intellectual Property, and the Internet

                 HOWARD COBLE, North Carolina, Chairman

                TOM MARINO, Pennsylvania, Vice-Chairman

F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
Wisconsin                            HENRY C. ``HANK'' JOHNSON, Jr.,
LAMAR SMITH, Texas                     Georgia
STEVE CHABOT, Ohio                   JUDY CHU, California
DARRELL E. ISSA, California          TED DEUTCH, Florida
TED POE, Texas                       KAREN BASS, California
JASON CHAFFETZ, Utah                 CEDRIC RICHMOND, Louisiana
BLAKE FARENTHOLD, Texas              SUZAN DelBENE, Washington
GEORGE HOLDING, North Carolina       HAKEEM JEFFRIES, New York
DOUG COLLINS, Georgia                JERROLD NADLER, New York
RON DeSANTIS, Florida                ZOE LOFGREN, California
JASON T. SMITH, Missouri             SHEILA JACKSON LEE, Texas
[Vacant]                             [Vacant]

                       Joe Keeley, Chief Counsel

                   Stephanie Moore, Minority Counsel















                            C O N T E N T S

                              ----------                              

                            JANUARY 14, 2014

                                                                   Page

                           OPENING STATEMENTS

The Honorable Howard Coble, a Representative in Congress from the 
  State of North Carolina, and Chairman, Subcommittee on Courts, 
  Intellectual Property, and the Internet........................     1

The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary, and Member, Subcommittee on Courts, Intellectual 
  Property, and the Internet.....................................     2

The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of Virginia, and Chairman, Committee on the Judiciary     3

                               WITNESSES

David Nimmer, Professor from Practice, UCLA School of Law, Of 
  Counsel, Irell & Manella, LLP, Los Angeles
  Oral Testimony.................................................     6
  Prepared Statement.............................................     8

Glynn S. Lunney, Jr., McGlinchey Stafford Professor of Law, 
  Tulane University Law School
  Oral Testimony.................................................    34
  Prepared Statement.............................................    36

Mark Schultz, Professor of Law, Southern Illinois University 
  School of Law
  Oral Testimony.................................................    57
  Prepared Statement.............................................    59

James Packard Love, Director, Knowledge Ecology International
  Oral Testimony.................................................    66
  Prepared Statement.............................................    68

Patricia Griffin, Vice President and General Counsel, American 
  National Standards Institute
  Oral Testimony.................................................    79
  Prepared Statement.............................................    80

Carl Malamud, President, Public.Resource.Org
  Oral Testimony.................................................    84
  Prepared Statement.............................................    86

                                APPENDIX
               Material Submitted for the Hearing Record

Material submitted by the Honorable Darrell E. Issa, a 
  Representative in Congress from the State of California, and 
  Member, Subcommittee on Courts, Intellectual Property, and the 
  Internet.......................................................   148

Prepared Statement of the American Society of Mechanical 
  Engineers (ASME)...............................................   158

Letter from ASTM International...................................   164

Prepared Statement of Broadcast Music, Inc. (BMI)................   165

Prepared Statement of the Computer & Communications Industry 
  Association (CCIA).............................................   176

Prepared Statement of the Future of Music Coalition (FMC)........   181

Prepared Statement of the Library Copyright Alliance (LCA).......   190

Prepared Statement of Sherwin Siy, Vice President, Legal Affairs, 
  and John Bergmayer, Senior Staff Attorney, Public Knowledge....   198

 
                   THE SCOPE OF COPYRIGHT PROTECTION

                              ----------                              


                       TUESDAY, JANUARY 14, 2014

                        House of Representatives

            Subcommittee on Courts, Intellectual Property, 
                            and the Internet

                       Committee on the Judiciary

                            Washington, DC.

    The Subcommittee met, pursuant to call, at 10:04 a.m., in 
room 2141, Rayburn Office Building, the Honorable Howard Coble 
(Chairman of the Subcommittee) presiding.
    Present: Representatives Coble, Goodlatte, Conyers, Marino, 
Smith of Texas, Chabot, Issa, Poe, Farenthold, Holding, 
Collins, DeSantis, Johnson, Chu, Deutch, Bass, DelBene, 
Jeffries, Nadler, Lofgren, and Jackson Lee.
    Staff present: (Majority) Joe Keeley, Chief Counsel; Olivia 
Lee, Clerk; (Minority) Stephanie Moore, Minority Counsel; and 
Jason Everett, Counsel.
    Mr. Coble. Good morning ladies and gentlemen.
    The Subcommittee on Courts, Intellectual Property, and the 
Internet will come to order.
    Without objection the Chair is authorized to declare recess 
of the Subcommittee at any time.
    We welcome all our witnesses today.
    We will now have our opening statements.
    This morning the Subcommittee will continue its review of 
our Nation's copyright laws by hearing testimony concerning 
what is within the scope of copyright protection. Our witnesses 
will present contrasting views on three important copyright 
issues: the making available right, A; should broadcasters--
should broadcasts be protected with additional laws, B; and, C, 
how laws, codes and standards be protected under the copyright 
law.
    I and others have worked to bolster our copyright laws and 
protect local broadcasters whenever possible. And I have also 
advocated that these efforts be generously laced with common 
sense. Common sense, it seems, is an ingredient that is sorely 
missing sometimes on Capitol Hill. And I guess all of us are 
guilty of that. Maintaining these philosophies has become 
complicated by evolving technology. And hopefully our witnesses 
today will highlight the most important issues confronting our 
copyright laws.
    Piracy and online infringement are an enormous concern and 
we have repeatedly heard testimony, over the past decade, about 
the harms caused by file sharing. It was disturbing to hear 
that judges were uncertain at that time of how to respond to 
this crisis.
    I am pleased to learn that one of our witnesses, Mr. 
Nimmer, has updated his copyright treatise and made it 
perfectly clear that making available copyrighted works for 
others is infringement. That being said, I do not want to steal 
the thunder from this morning's testimony. And I encourage all 
Members, especially those who have not focused on these issues 
in the past, to carefully consider today's testimony.
    In closing, I thank our esteemed panel of witnesses for 
participating in the hearing today. And I look forward to your 
remarks.
    I am now pleased to recognize the distinguished gentleman 
from Michigan.
    By the way, John, this is our first meeting since Mr. Watt 
left us.
    So, for the first time in years, there will not be a North 
Carolinian on this side of the Judiciary aisle. But, I hope we 
will survive.
    Good to have you, John.
    Mr. Conyers. Thank you and good morning to the Chairman and 
the Members of the Committee and the very small number of 
witnesses that we have before us this morning for a very 
important subject.
    The hearing today provides an important opportunity for us 
to consider various provisions of copyright law and to examine 
whether the laws continue to adequately protect creators and 
promote innovation, in light of developing technologies that 
were not contemplated when these provisions were originally 
enacted.
    And, to that end, there are several factors that we should 
keep in mind. For example, the making available right, which 
gives copyright owners the exclusive right to authorize the 
manner and terms to make their content available to the public. 
I favor strong copyright protection because it benefits 
creators and promotes innovation and economic growth. Strong 
copyright protection laws also help create a marketplace for 
content that viewers will enjoy as well as the latest 
technology that can be used to watch the content.
    The making available right is especially important today 
where one copy of a work over the Internet, without 
authorization, could provide access to millions of users around 
the world. The making available right helps prevent infringing 
conduct.
    For those reasons, we do not need to change copyright law 
for the making available right. Existing law already includes a 
making available right. I don't believe that there is any 
ambiguity in the law and some Federal appellate courts have 
recognized the making available right. In addition, the United 
States is a party to various international agreements that 
require signatories to implement the making available right. 
Congress has repeatedly demonstrated, by ratifying these 
agreements, that the United States law already includes this 
right and no change is necessary.
    In any case, as we study this issue, we should consider 
guidance from the Copyright Office. And, to that end, our 
former colleague and Ranking Member of this Subcommittee, Mel 
Watt, sent a letter to that agency last month asking it to 
study the current state of the making available right and to 
make recommendations. In particular, we need to know how 
American consumers fair under current law in the context of 
digital, on-demand transmissions such as peer-to-peer networks, 
streaming services, and music downloads. Additionally, we need 
to know how the competitiveness of U.S. technologies can be 
strengthened in the global marketplace, under international 
treaties, to preserve robust protection for creators. In 
conjunction with the testimony we receive today, this report 
should provide us with valuable guidance.
    Second, the evolution of technology has had a major impact 
on the debate about copyright protection for broadcasts and has 
generated many unresolved legal issues. Just last Friday, the 
Supreme Court granted certiorari in a case where the Nation's 
largest television broadcasters had brought suit against Aereo, 
a streaming video service. This decision could have a wide 
ranging impact on Internet streaming, cloud computing and the 
television industry. Whatever the outcome of this case, I 
believe the law must avoid any anti-consumer ramifications, 
including higher fees and restricted access.
    To be clear, moving forward in this copyright review, we 
must ensure that creators are protected. Strong protection for 
creators will ensure that consumers continue to enjoy the works 
that define our culture and enrich our lives.
    And, accordingly, I thank the Chair for his leadership on 
these issues and look forward to further collaboration on them.
    I thank you.
    Mr. Coble. I thank the gentleman.
    I now recognize the distinguished gentleman from Virginia, 
the Chairman of the full Committee, Mr. Goodlatte, for an 
opening statement.
    Mr. Goodlatte. Well, thank you, Mr. Chairman. I appreciate 
your holding this hearing.
    And I want to welcome all of our witnesses and this 
capacity crowd in the audience to a hearing on a topic that 
goes to the heart of copyright law: What is the scope of 
copyright protection? The Committee will hear testimony on 
three related issues.
    The first issue, concerning a making available right, 
seemed to be settled by the U.S. accession to two separate WIPO 
Treaties in 1988. However, uncertainty has arisen in several 
file sharing cases and most recently in a library case, in the 
Tenth Circuit, in which the opinion was released only 3 weeks 
ago. I look forward to the thoughts of Professors Nimmer and 
Lunney on prior jurisprudence and whether Congress should bring 
greater clarity to this fundamental issue of copyright law.
    The second issue concerns the scope of copyright protection 
for broadcasts. Although the U.S. is not a party to the Rome 
Convention, ongoing discussions in Geneva could result in 
additional copyright or other protection for broadcasters in an 
effort to deter signal theft. Broadcasting has changed 
significantly since the Rome Convention was signed in 1961. 
Smartphones with an always-on Internet connection now make 
everyone in this room a broadcaster in ways that were 
unimaginable 50 years ago. I look forward to hearing from 
Professor Schultz and Mr. Love on this topic.
    Finally, we will hear about an issue that has received less 
public attention than the other two, but is one that does go to 
the heart of how citizens interact with their government. It 
was also the subject of the very first copyright case heard by 
the Supreme Court in 1834. Copyright protection for laws, codes 
and standards appears to clash with the fundamental ability of 
our citizens to know what laws and regulations they must live 
by. It is fortunate that the number of States seeking to claim 
copyright protection on their laws and regulations, despite 
longstanding Copyright Office and Administration views to the 
contrary, has sharply declined. However, the issue of copyright 
protection for codes and standards, incorporated with them, is 
more nuanced. Recognizing that codes and standards are 
developed at some expense by private-sector entities, I look 
forward to hearing from a representative of the American 
National Standards Institute and an individual who has made 
greater access to government information, including the videos 
of congressional hearings like these, his longstanding mission.
    Before I conclude my opening remarks, let me turn to a few 
other issues not being heard today. I am sure that there is no 
one in this hearing room who isn't aware that the Supreme Court 
announced, on Friday, that it will hear oral arguments later 
this spring in the Aereo case regarding another issue related 
to the scope of copyright, the public performance right. The 
court also announced Friday that it will hear oral arguments in 
two cases with implications for the patent troll issue, 
something this Committee and the House has already addressed. 
These three intellectual property cases are in addition to 
earlier patent cases taken up only a few months ago by the 
Justices. It is hard for me not to notice that once again this 
Committee continues to lead the way on critical policy issues.
    And I want to thank the witnesses again for their time here 
today and for their flexibility in their schedules to enable 
them to be here.
    Thank you, Mr. Chairman.
    Mr. Coble. Thank you, Chairman Goodlatte.
    We have a very distinguished panel today and I will begin 
by swearing our witnesses in, before introducing them.
    [Witnesses sworn.]
    Mr. Issa. Mr. Chairman?
    Mr. Coble. Yes.
    Mr. Issa. In order to have this in the record at the time 
of the hearing, could I ask unanimous consent to put documents 
in the record at this time, so they can be copied for the 
Members?
    Mr. Coble. Without objection.
    Mr. Issa. Thank you. Do you want to hear them all or just 
you will take all of them?
    Mr. Coble. We will take all of them----
    Mr. Issa. Thank you very much.
    Mr. Coble [continuing]. Without objection.*
---------------------------------------------------------------------------
    *The information referred to is not re-printed in this hearing 
record but is on file with the Subcommittee and can be accessed at:

      https://law.resource.org/pub/us/code/ga/
      https://law.resource.org/pub/us/code/id/
      https://law.resource.org/pub/us/code/ms/
    Mr. Issa. Thank you.
    Mr. Coble. Thank you, witnesses.
    I will introduce the witnesses.
    Chairman Goodlatte mentioned standing-room only crowd. And 
this shows me that you all have more than a casual interest in 
this very significant issue. And we are pleased to have all of 
you with us today.
    Our first witness today is Mr. David Nimmer a professor at 
the UCLA School of Law and an attorney in private practice to 
the Law Firm of Irell & Manella. In addition to his numerous 
books and articles on United States and international copyright 
law, Mr. Nimmer has updated and revised Releases 19 through 92 
for Nimmer on Copyright. He received his J.D. from the Yale 
School of Law and his A.B. with distinction and honors from 
Stanford University.
    Our second witness is Mr. Glynn Lunney, Jr., a professor at 
Tulane University School of Law, where he teaches courses in 
intellectual property, unfair competition and contracts. 
Professor Lunney earned his J.D. from the Stanford School of 
Law and his B.S. from Texas A&M University. He also earned his 
M.A. and Ph.D. in Economics from Tulane University, while 
teaching at the law school.
    Our third witness today is Mr. Mark Schultz, Professor of 
Law at Southern Illinois University of Law and Senior Scholar 
at the Center for the Protection of Intellectual Property at 
George Mason University School of Law. Professor Schultz 
received both his J.D. with honors and B.A. in International 
Economics at George Washington University. Professor, is that 
the Salukis? Is that the name?
    Mr. Schultz. Yes, that is right.
    Mr. Coble. That's the name most folks without any 
connection with the university know the nickname with the dog?
    Mr. Schultz. It is an Egyptian racing dog. Yes, sir.
    Mr. Coble. Alright, thank you. Do I get--are you awarding 
me special credit for knowing that? I will accept it.
    It is good to have you with us, Mr. Schultz.
    Our fourth witness is Mr. James Love, Director of Knowledge 
Ecology International. Mr. Love earned a Masters in Public 
Administration from Harvard University, the Kennedy School of 
Government and a Masters in Public Affairs from Princeton 
University, Woodrow Wilson School of Public and International 
Affairs.
    Our fifth witness today is Ms. Patricia Griffin, Vice 
President and General Counsel of the American National 
Standards Institute. Ms. Griffin joined ANSI in 2004, after 20 
years of private practice. And she earned her J.D. from the 
Albany Law School and her B.A. from Skidmore College.
    Our sixth and final witness is Mr. Carl Malamud, President 
of Public Resource Organization. Mr. Malamud founded the 
nonprofit in order to work on the publication of public domain 
information from the local, State and Federal Government 
agencies. Mr. Malamud received his MBA degree from the Indiana 
University, Kelley School of Business.
    We welcome you all.
    Our first witness will be Mr. Nimmer.
    And it is good to have all of you with us. Gentlemen--lady 
and gentlemen, if you could confine your statements to on or 
about 5 minutes. There is a panel on your desks. When the green 
light turns to amber, the clock begins ticking and you are 
about to come up on 5 minutes, which will appear when the red 
light illuminates. And we try to apply the 5-minute rule to 
ourselves as well. So, during questioning, if you could be as 
curt as possible that would be appreciated.
    Mr. Nimmer, if you will kick the ball?
    It is good to have all of you with us.

TESTIMONY OF DAVID NIMMER, PROFESSOR FROM PRACTICE, UCLA SCHOOL 
     OF LAW, OF COUNSEL, IRELL & MANELLA, LLP, LOS ANGELES

    Mr. Nimmer. Thank you so much, Mr. Chairman. And thank you 
to all the Members of the Committee for the invitation to 
testify this morning.
    We gather to consider the scope of the rights that belong 
to copyright owners. One of those rights is public 
distribution. The question today is how to prove violation of 
that distribution right. Specifically, does the act of placing 
a digital file containing a copyrighted work into a file 
sharing folding on the Internet violate the law? Or, must the 
copyright owner additionally prove that a third party 
downloaded that particular file before the uploader can be held 
responsible? In short, does copyright law's distribution right 
include a making available component?
    Let us imagine that a user uploads a full copy of the 
motion picture Avatar to a share folder operated by a peer-to-
peer service. Anyone else on the P2P network can then watch 
Avatar at no charge. I respectfully suggest that the better 
course of congressional action is to reaffirm the existence of 
a making available right so that the unauthorized upload itself 
is considered infringing. The alternative is to force the 
copyright owners to prove that third parties subsequently 
downloaded that particular copy of Avatar. That alternative 
unnecessarily clogs judicial procedures and threatens user 
privacy.
    As the eloquent introductions at the opening stated, it was 
the intent of Congress, in 1976, to include a making available 
right and the U.S. has joined two treaties that require this 
country to recognize that right. Unfortunately, nonetheless, 
there have been divided ruling on the subject from the district 
courts. Although there is one recent ruling from the Tenth 
Circuit recognizing the making available right, there is still, 
as that court recognizes, a dissensus in the courts. For that 
reason, I urge Congress to reaffirm the making available right 
aspect of the copyright owners' distribution right.
    A brief history helps to frame the issue. Reverting to the 
mid-20th century, the Copyright Act in effect then gave owners 
the exclusive right to publish or vend the copyrighted work. 
Someone who made a work accessible to the public was therefore 
an infringer with no further proof needed.
    If we imagine a bookstore in 1950 featuring numerous copies 
of a best-seller stacked on a table near the front door, the 
case against the store owner was complete. In other words, 
copyright law, at that time, imposed no obligation to place 
undercover agents near the cash register to develop evidence 
that third party customers actually walked out the door with 
copies of the book in hand.
    Translated to today's vernacular, copyright owners at that 
point enjoyed the exclusive right to make available the 
protected work. Of course they could have hired investigators 
to stand in the corner and record every transaction, but that 
exercise was always considered unnecessary. It should be 
considered equally unnecessary today.
    Rather than a private eye unobtrusively watching the cash 
register to see who bought books, proof of downloading today is 
far more invasive. It requires the issuance of subpoenas to 
Internet service providers to identify, for example, all 
subscribers behind the Internet protocol addresses who 
downloaded Avatar on a given day. Such subpoenas are multiplied 
10,000-fold. For that reason, we have seen case after case 
confronting procedural challenges to these types of subpoenas. 
The entire exercise can and should be avoided. As opposed to 
extensive motion practice over subpoenas or digital dragnets 
designed to ensnare the identity of everyone who uses a P2P 
service, there is a much more straight-forward option: continue 
copyright law on its traditional path by holding liable those 
who make works available to the public without the copyright 
owner's permission.
    Ideally litigation procedures against uploaders should be 
streamlined. The resulting case need not delve into intricate 
questions of who downloaded the work on which day. Equally, it 
should not result in a multimillion dollar judgment and massive 
trial procedures. For that reason, I recommended that Congress 
investigate two sensible adjuncts to its reaffirmation of the 
making available right. The first is recalibration of statutory 
damages to a sensible level that deters uploaders from their 
infringing activities, but not through the possibility of 
billion-dollar rewards as at present. The second is 
establishment of a form of small claims court to consider 
routine P2P cases and to award those appropriately reduced 
damages after liability has been established in a fair and 
expedited proceeding.
    These reforms will not solve all the problems faced by the 
copyright world, but they will set the law on a reasonable 
course designed to protect the interests of copyright owners 
and to safeguard user privacy interests on the Internet.
    Thank you very much.
    [The prepared statement of Mr. Nimmer follows:]


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    
                               __________

    Mr. Coble. Thank you, Professor Nimmer.
    Mr. Lunney, I will--talked to Mr. Schultz about the 
Salukis. I will admonish you because the Texas football team 
was not a very genial Bowl host in their recent Duke 
University/Texas A&M football. But, I will hold you harmless 
for that. [Laughter.]
    Mr. Coble. Good to have you with us, sir.

    TESTIMONY OF GLYNN S. LUNNEY, JR., McGLINCHEY STAFFORD 
         PROFESSOR OF LAW, TULANE UNIVERSITY LAW SCHOOL

    Mr. Lunney. Thank you, Committee Chair.
    I am terribly sorry that the Aggies were not polite to your 
team in the Bowl game. Maybe not that sorry. [Laughter.]
    But, it was a good game. And, if you didn't stay to the 
end, you missed something pretty exciting, didn't you?
    So, I am here and I probably have the hardest task of the 
witnesses up front, because the first point I would like to 
make to the Committee is that file sharing may not be quite the 
scourge that it has been made out to be. It is not the scourge 
of American culture. It is not the scourge of American 
business.
    The second point I would like to make is, even if it were, 
the making available right is not going to solve the problem.
    And the third point is, if we add the making available 
right using the linguistic framework we see in the WIPO 
Treaties to our Act, we are going to reopen a lot of what seem 
to be fairly settled issues on the Internet with respect to 
linking, cloud computing, social networking, these things that 
have been resolved under existing linguistic framework. If you 
add a vague right that says making available to the public, we 
will have to re-litigate them all over again. And I think that 
is a problem.
    Now, I know I am--I, sort of, don't have much chance to 
persuade you that file sharing is not a bad thing. But, for me, 
there is a fundamental difference between copying and stealing. 
Stealing is basically wrong and we should prohibit it wherever 
we find it as a general rule. Copying, on the other hand, is 
generally a good thing.
    It is not just the best thing since sliced bread, we 
wouldn't have sliced bread without copying. We wouldn't have 
culture. We wouldn't have civilization. I can speak to you 
today and you can understand what I am saying, or at least I 
hope you can, because you and I speak the same language. We 
speak the same language because we are born with the intrinsic 
ability to hear or see what another speaks or does and imitate 
that. Copying is a fundamental attribute. It is what makes our 
civilization possible.
    And so, when I look at file sharing, I don't see a scourge 
of culture. I see an invention that has put music in the hands 
of more Americans than any invention since the phonograph. Now, 
I am told that the problem is it puts them in the hands of 
those Americans without them paying for it. And this is the 
real problem. It is a problem for the economy. Jobs are lost. 
It is a problem for the creation of music. People are not 
getting paid, why would they remain in the business?
    And so, when we think about those problems, for me at 
least, the jobs argument is reflecting a very old fallacy that 
economists have identified since 1850. That money is not lost. 
It doesn't go out of the economy. The fact that consumers don't 
have to pay it for music means it remains in their pocket and 
they can invest it or spend it elsewhere in the economy and the 
jobs are just created elsewhere in the economy. They are still 
American jobs, so there is no loss in the jobs front.
    Now, with respect to the creation of music, this is--goes 
really to the heart of copyright. Its fundamental premise for 
300 years is that more copyright equals more revenue equals 
more works. And we have very few opportunities to test that 
premise. But, file sharing gives us one of the few. Revenues to 
the music industry, in particular, have fallen dramatically. 
Now, whether all of that is due to file sharing or other 
factors, it is a little difficult to say.
    I am perfectly willing to accept that some part of it is 
due to file sharing. But, my concern is what happened to music 
output? And we turn to measures of music output by most of the 
measures we could use, music output seems to be remarkably 
healthy. And, if the goal of copyright is to produce more and 
better works, the progress of science, then file sharing 
doesn't seem to be interfering with that at all.
    Now, maybe you don't accept my perspective on that 
particular issue, that filing sharing is not quite the scourge 
it is made out to be. So, let us move on to the second point, 
which is that a making available right is not going to enable 
us to solve the file sharing problem. It is not the proverbial 
silver bullet.
    The point here is basically this simple: whether you have 
to prove a making available or your have to prove a 
distribution, the way you are going to do it is to download the 
work from the file sharing program. In the distribution context 
you may have to download it to show that a distribution was 
made. In the making available context you have to download the 
work to prove that the link really is to the work it says it 
is. Things on the Internet are not always what they say they 
are. That may surprise Members of the Committee. So, you 
actually have to download it to check and make sure it is the 
actual work. So, as a practical matter, there is no real 
difference here.
    From 2003 to 2008 the music industry sent demand letters to 
some 35,000 Americans for engaging in file sharing. And none of 
those cases or instances, as far as I know, were dismissed 
because they could not show a download. Rather the music 
industry gave up that battle because, while they went after 
35,000, estimates suggest there might be 35 million Americans 
engaged in file sharing. So, it was never realistic to go after 
all of them. And, second, these are your clients, your 
customers. Suing them is probably not good for business. And 
third, it wasn't working. So, I don't think a making available 
right will change any of that in the file sharing context. As a 
business decision for music industry, it is still not going to 
make sense to go after these individual file sharers.
    The final point I would make is that it is going to reopen 
a lot of what seem to be settled issues. And I think that will 
unfortunately really chill business innovation and investment 
in new technologies.
    Thank you.
    [The prepared statement of Mr. Lunney follows:]


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                              __________

    Mr. Coble. Thank you, Professor Lunney.
    Professor Schultz?

TESTIMONY OF MARK SCHULTZ, PROFESSOR OF LAW, SOUTHERN ILLINOIS 
                    UNIVERSITY SCHOOL OF LAW

    Mr. Schultz. Chairman Goodlatte, Chairman Coble, Ranking 
Member Conyers and Members of the Subcommittee I appreciate the 
chance to speak with you.
    Today's subject, the scope of copyright, is the right place 
to start a detailed review of the Copyright Act. However, the 
subject matter of copyright should be one of the least 
controversial parts of copyright because it goes to the very 
heart of its justification.
    Today I will be speaking on my own behalf, as a copyright 
lawyer and scout.
    I will speak first about the scope and subject matter of 
copyright in general, and then I will specifically address how 
these principles apply to protection for broadcasts.
    Copyright has traditionally had a broad scope, for good 
reason. Copyright protects the productive intellectual labor of 
authors provided that those labors result in an original 
expressive work. It exists to provide those who create, invest 
in and commercialize content the chance to enjoy the benefits 
of what they create through exclusive rights. When creators can 
benefit from their labors, the public also benefits. While many 
speak of striking a balance between the rights of copyright 
owners and the interests of the public, in truth those 
interests are rarely out of balance, at least with respect to 
core copyright principles such as the scope and subject matter 
of copyright.
    James Madison recognizes fact in the Federalist Papers when 
he said of intellectual property that, ``The public good fully 
coincides with the claims of individuals.'' The public will get 
the works that educate, entertain and inspire and inform them 
only if their creators can obtain just compensation. In the 
end, creators, businesses and the public are all best served 
when our intellectual property laws recognize the essential 
core value that those who invest labor and risk capital to 
create and distribute original content deserve protection of 
their property rights.
    Which brings me to the topic of legal protection for 
broadcasts. In the copyright and telecommunications laws, 
Congress created a legal framework that ensures that both 
creators of television programs and local broadcasters have the 
opportunity to be compensated for their labor, investment and 
innovation.
    This legal framework has two purposes. The first is to 
prevent third parties from undermining the labor, investment 
and incentives of creators and broadcasters by freeriding on 
their labor and investment. The second purpose is to encourage 
high quality, locally-focused broadcast television. The laws 
have been a success.
    We have a dynamic and vibrant broadcast industry in which 
the rights of individuals and the public good are both 
promoted. Here are just a few examples. There are nearly 1400 
full-power commercial broadcast television stations in the 
United States. Seventy 8 percent of Americans get their news 
from local TV daily, including important emergency news. Nearly 
60 million people still depend exclusively on over-the-air 
signals, including 30 percent of households with annual incomes 
under $30,000. Broadcasters air over 90 of the top 100 most 
watched programs. Perhaps more than anything, the quality of 
modern programming shows that the public is well served by the 
current system.
    Unfortunately, many underestimate the substantial 
investment required to make it happen. The airwaves may be 
viewed as public resource, but privately created broadcast 
systems and the programs transmitted over them are not. Local 
broadcasters maintain expensive transmission facilities and 
invest in new technology, including billions in the recent 
shift to high definition broadcasting. They pay network 
affiliation fees and syndication fees. In an era of shrinking 
news budgets, the average local news' operating budget is a 
welcome exception of over $4 million a year on average.
    In conclusion, there is no such thing as a free lunch. 
Creators and broadcasters need protection of their property 
rights that make this tremendous enterprise possible. In this 
context, it is clear that the public good, as Madison said 
about the intellectual property laws generally, fully coincides 
with the claims of individuals.
    Thank you.
    [The prepared statement of Mr. Schultz follows:]


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                              __________

    Mr. Coble. Thank you, Professor Schultz.
    Mr. Love?

 TESTIMONY OF JAMES PACKARD LOVE, DIRECTOR, KNOWLEDGE ECOLOGY 
                         INTERNATIONAL

    Mr. Love. Thank you, Mr. Chairman, for the opportunity to 
testify.
    I have been asked to talk about the rights of broadcasting 
organizations, including proposals for a new UN treaty that 
would establish a set of neighboring or related rights for 
entities that distribute information they did not create and do 
not own.
    The UN agency responsible for the development of 
intellectual property right policy is known as the World 
Intellectual Property Organization, or WIPO for short. Located 
in Geneva, WIPO has a Standing Committee on Copyright and 
Related Rights known as the SCCR. Since 1998, the WIPO SCCR has 
been trying to obtain consensus on a new global treaty dealing 
with broadcast organizations. Several member states have called 
for a diplomatic conference on this treaty in 2015. There are 
major differences among countries regarding every important 
aspect of this treaty, as evident from the current working 
document, SCCR/24/10, and the new proposals tabled during 
negotiations in December 2013.
    The WIPO Treaty would create a new layer of rights that 
coexist with copyright benefiting the organizations that 
broadcast information. The broadcasters and several member 
states of WIPO, such as Japan and the member states of the 
European Union, are pressing for an agreement that would expand 
considerably the set of related rights that exist in a 1961 
treaty, the Rome Convention, that the United States has not 
signed.
    The 1961 Rome Convention created a system of related rights 
for performers and producers of sound recordings to supplement 
protections that authors have under the Berne Convention. In 
1961 a decision was made to give broadcast organizations a 
layer of rights as a reward for their role as an intermediary 
between authors and audiences, essentially on a par with 
actors, singers, musicians, and other performers. Many consider 
the 1961 Rome Convention a mistake and the broadcaster right as 
the weakest and least defensible type of intellectual property 
right because it is provided by entities that play no role in 
the creation of the content itself. The United States did not 
sign the Rome Convention but does provide some broadcasting 
entities with limited retransmission rights through the 
communications regulation system, including through 47 U.S.C. 
325.
    In WIPO, several countries want to expand the Rome 
Convention beneficiaries to include non-free subscriber 
channels provided by cable and satellite, such as TNT, Hallmark 
Channel, ESPN, the Discovery Channel, or the subscriber-based 
radio channels provided by SiriusXM and also giving them rights 
in content they distribute but did not create. A growing number 
of countries want to expand the 1961 Rome system approach more 
broadly to the Internet and expand the economic rights to the 
more broadly defined group of broadcasting entities and provide 
for 50 years of exclusive rights on fixations of broadcast.
    At WIPO, USPTO has proposed a compromise that would 
establish a new right for broadcast cable and satellite 
services to, ``Authorize the simultaneous or near-simultaneous 
retransmission of their broadcast or pre-broadcast signal over 
any median.'' This includes the Internet but in the U.S. 
proposal no post-fixation rights. So far, no country has voiced 
support for the U.S. proposal. And much more aggressive 
alternatives, from Japan and the European Union, are being 
considered that would provide new economic rights to 
broadcasting entities for distributing information they did not 
create or own. This is akin to giving Amazon or Barnes & Noble 
a layer of copyright in every book they write, or making Google 
a part-owner in every webpage they locate on the Internet.
    Free over-the-air broadcasters do face some unique 
challenges regarding the retransmission of their signals. And 
the USPTO proposal at WIPO may be appropriate to address some 
of these channels. Here we have an open mind. But, for pay 
services and webcasting, there is no need to create a new 
intellectual property right dealing with retransmissions. 
Copyright, theft of service laws and contracts are sufficient 
to address piracy. For all broadcasting organizations there is 
no economic justification for giving the distributor any rights 
in the underlying content. It does not make sense and it 
creates a number of grave risks for those who create works in a 
republic to create rights for people that distribute 
information that lay on top of the underlying interests that 
you have in copyright.
    Thank you very much.
    [The prepared statement of Mr. Love follows:]


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                               __________
    Mr. Coble. Thank you, Mr. Love.
    Ms. Griffin?

   TESTIMONY OF PATRICIA GRIFFIN, VICE PRESIDENT AND GENERAL 
         COUNSEL, AMERICAN NATIONAL STANDARDS INSTITUTE

    Ms. Griffin. Thank you, Mr. Chairman. Good morning ladies 
and gentlemen.
    As noted, my name is Patricia Griffin and I am Vice 
President and General Counsel of the American National 
Standards Institute, ANSI, a not-for-profit organization that 
coordinates the U.S. standardization system.
    Most people don't know how much we depend upon standards to 
ensure our everyday life work. For example, standards help 
ensure that a light bulb fits in a socket, that you can use any 
ATM machine in the world and that products on store shelves are 
safe.
    In the United States, our standardization system is led by 
the private sector with hundreds of individual standards 
developing organizations, or SDOs, working in different 
technical areas and industry sectors. It is a consensus-based 
and market-driven process that is open to participation by all 
effected stakeholders. Importantly, the U.S. government is one 
such stakeholder and Federal, State and local governments are 
active partners in the development of standards and codes when 
the activity is relevant to their needs. The government uses 
these standards in a variety of ways, including to establish 
internal procedures and develop regulations for public safety 
and welfare. Our national standardization system and its 
public-private partnership are reflected in the National 
Technology Transfer and Advancement Act of 1995 and the 
associated OMB Circular A-119.
    The NTTAA directs agencies to consider the use of private 
sector developed standards in lieu of government-unique 
standards. When adopting a voluntary consensus standard into a 
regulation, Federal agencies are permitted to incorporate the 
standard by reference into the Federal register without 
publication of the standard itself. For a standard to be 
incorporated by reference or IBR-ed, the agency must determine 
that the standard is reasonably available to the class of 
persons effected by the anticipated regulation. In this case, 
reasonably available has always meant that the standard is 
accessible to any potential user. It does not require that the 
standard be available without a fee.
    Now recent concerns have been raised about whether the 
reasonably available requirement should be changed in light of 
expectations of free online access. For example, in early 2012, 
NARA, the National Archives and Records Administration, 
solicited comments on a petition arguing that IBR-ed materials 
in the CFR should be for free. But, just 3 months ago, after a 
comprehensive analysis, NARA concluded that reasonably 
available continues to mean just that and it does not mean for 
free. They relied, in large part, on another comprehensive 
analysis of the issue conducted by ACUS, the Administrative 
Conference of the United States, in December of 2011.
    The question NARA was trying to answer was simple, why 
shouldn't IBR-ed standards be free? It seems like a valid 
point. But, the blanket statement that all IBR-ed standards 
should be free misses some very important considerations.
    First, every standard is a work of authorship and, under 
U.S. and international law, is copyright protected, giving the 
owner certain rights of control and remuneration that cannot be 
taken away without just compensation.
    Second, if SDOs can't charge for standards and code, this 
disrupts the standards development ecosystem. The funding has 
to come from somewhere. And increasing participation fees to 
offset lost sales revenues would disenfranchise consumers and 
small businesses. Those with the money would have all the 
influence.
    Lastly, if SDOs can't afford to stay in business, safety 
standards would not be updated and standards for new 
technologies would go unwritten. Thus, this would affect U.S. 
competitiveness and innovation. The government would have to 
step up, take over what is now a market-driven system, and 
somehow find the money, time and expertise.
    So, what is the answer? The public and private sectors 
should continue to make standards and codes available on a 
reasonable basis. For some this may mean providing read-only 
but free access. And for others it may mean at reasonable 
prices. Recognizing that there is not one solution to the 
access issue, NARA found that it is for the Federal agencies to 
continue to work with SDOs to provide reasonable access to the 
IBR-ed standards.
    NARA's recent assessment reaffirms the decades old guidance 
contained in OMB A-119 that when copyrighted works are IBR-ed, 
those works should not lose their copyright and that government 
agencies must observe and protect the rights of the copyright 
holder. And that is just what is being done. Many SDOs make 
standards available for free or at a discount to consumers, 
policymakers and small businesses. And some SDOs make certain 
standards and codes available online on a read-only basis. Do 
its part, ANSI has launched an online IBR portal for the 
benefit of the user community, including consumers.
    In closing, the standardization community believes, as OMB, 
NARA and ACUS believe, that the development of complex, highly 
specialized technical standards requires a massive investment 
of time, labor, expertise, and money. Standards development in 
this country is one of the earliest and most successful 
examples of the public-private partnership, which has benefited 
our Nation tremendously on many fronts: competitiveness, public 
safety, successfully commercializing American innovations 
globally and much more.
    Thank you so very much for the opportunity to testify for 
you today. And I would be happy to answer any questions.
    [The prepared statement of Ms. Griffin follows:]
      Prepared Statement of Patricia Griffin, Vice President and 
         General Counsel, American National Standards Institute
    Thank you, Chairman Goodlatte and Chairman Coble. Good morning, 
ladies and gentlemen.
    My name is Patricia Griffin and I am vice president and general 
counsel of the American National Standards Institute. ANSI is the 
coordinator of the U.S. standardization system, and we thank you for 
the opportunity to testify.
                          why standards matter
    Most people don't think about how much we depend upon standards to 
make our everyday life work. For example, standards help ensure that a 
light bulb fits in a socket, that you can use any ATM in the world, and 
that products on store shelves are safe.
    Standards are the backbone of trade, the building blocks for 
innovation, and the basis for quality, safety, and interoperability. 
Voluntary consensus standards and compliance activities are essential 
to the U.S. economy. Market-driven and highly diversified, standards 
support technological innovation, build bridges to new markets, and 
create gateways for businesses in this increasingly complex world of 
global access. Standardization also helps to assure health, safety, and 
quality of life for individuals in the United States and around the 
world.
                    the u.s. standardization system
    In the U.S., our standardization system is led by the private 
sector, with hundreds of individual standards developing organizations, 
or SDOs, working in different technical areas and industry sectors. It 
is a consensus-based and market-driven process that is open to 
participation by all affected stakeholders.
    The U.S. government is one such stakeholder. And federal, state, 
and local governments are active partners in the development of 
standards and codes when the activity is relevant to their needs.
    The open, market-driven, and private sector-led nature of our 
system is critical to achieving the widely shared policy goals of 
expanded U.S. leadership and innovation on the global stage.
    Currently, the U.S. has the most robust standardization system in 
the world, which gives the nation a competitive advantage. Unlike the 
standards development systems of many other countries, the U.S. system 
considers the views of all interested parties in a balanced way. And 
the openness of the system to new participants means that their needs 
can be met quickly and through innovative, collaborative solutions.
                     the public-private partnership
    One of the great strengths of the U.S. approach to standards and 
conformance is the ``public-private partnership''--a term that 
stakeholders in government and industry use to describe the long-
standing, effective, and cooperative working relationship between the 
public and private sectors.
    The public-private partnership in the United States is strong 
because it is a true partnership. Neither government nor industry 
claims or exerts overall authority over the other, and by working 
together in respectful cooperation, we are able to most effectively 
respond to the strategic needs of the nation. This dynamic makes our 
standardization system unique in the world.
    Our national standardization system and its public-private 
partnership are reflected in the National Technology Transfer and 
Advancement Act of 1995 (NTTAA), and the associated OMB Circular A-119. 
The NTTAA directs agencies to consider the use of private-sector-
developed standards in lieu of government-unique standards whenever 
possible.
    The government uses standards in a variety of ways, including to 
establish internal procedures, aid in developing regulations for public 
safety and welfare, and improve the efficiency of the procurement 
process. When adopting a voluntary consensus standard into a 
regulation, federal agencies are permitted to incorporate the standard 
by reference--that is, without publication of the standard itself--in 
the Federal Register.
  incorporation by reference and the ``reasonably available'' dialogue
    For a standard to be incorporated by reference or ``IBR-ed,'' the 
agency must determine that the standard is ``reasonably available'' to 
the class of persons affected by the anticipated regulation. In this 
case, ``reasonably available'' simply means that the standard is 
accessible to any potential user. It does not require that the standard 
be available without a fee.
    In the past few years, concerns have been raised about whether the 
``reasonably available'' requirement should be changed in light of 
expectations of free online access. For example, in early 2012, 
Professor Peter Strauss of Columbia University petitioned NARA, the 
National Archives and Records Administration, arguing that IBR-ed 
materials in the CFR should be free.\1\
---------------------------------------------------------------------------
    \1\ March 2012, Federal Register: https://www.federalregister.gov/
articles/2012/03/22/2012-6935/incorporation-by-reference.
---------------------------------------------------------------------------
    After soliciting and then publishing comments on this petition in 
October 2013 \2\, NARA's Office of the Federal Register, OFR, concluded 
that ``reasonably available'' continues to mean just that, and it does 
not mean ``for free.'' OFR relied in large part on a comprehensive 
analysis of the issue conducted by ACUS, the Administrative Conference 
of the United States, in December 2011.\3\
---------------------------------------------------------------------------
    \2\ October 2013, Federal Register: https://
www.federalregister.gov/articles/2013/10/02/2013-24217/incorporation-
by-reference.
    \3\ http://www.acus.gov/sites/default/files/Recommendation-2011-5-
Incorporation-by-Reference_0.
pdf.
---------------------------------------------------------------------------
    The question OFR was trying to answer was simple: why shouldn't 
IBR-ed standards be free? It seems like a valid point. But the blanket 
statement that all IBR-ed standards should be free misses some very 
important considerations:

          Every standard is a work of authorship and, under 
        U.S. and international law, is copyright protected \4\, giving 
        the owner certain rights of control and remuneration that 
        cannot be taken away without just compensation.\5\
---------------------------------------------------------------------------
    \4\ http://www.copyright.gov/title17/.
    \5\ In February 2011, ANSI's Intellectual Property Rights Policy 
Committee developed a white paper on the copyright implications of 
voluntary consensus standards in regulation: ``Why Voluntary Consensus 
Standards Incorporated by Reference into Federal Government Regulations 
Are Copyright Protected,'' http://publicaa.ansi.org/sites/apdl/
Documents/News%20and%20
Publications/Critical%20Issues/
Copyright%20on%20Standards%20in%20Regulations/
Copyright%20on%20Standards%20in%20Regulation.pdf

          Although many people working on standards development 
        are volunteers, SDOs incur significant expenses in the 
        coordination of these voluntary efforts. From the time a new 
        project is commenced until the final balloting and adoption of 
        a standard, the drafting process draws heavily on an SDO's 
        administrative, technical, and support services. Tens of 
        thousands of staff employed by SDOs across the nation provide 
        direct support for the technical development activities of the 
---------------------------------------------------------------------------
        volunteers.

          SDOs are--for the most part--non-profit 
        organizations. In order to recoup their costs, some SDOs rely 
        heavily on revenue from copyright-protected sales and licensing 
        of the standards. An SDO's right to receive these revenues is 
        based primarily in their copyright rights in the standard. 
        Without such copyright protections, many SDOs would not have 
        the financial ability to continue their work. Some 
        organizations receive revenue through membership support 
        including membership fees, project fees, registration fees, and 
        other member-generated income. Still others rely on a 
        combination of these and other revenue-generating activities. 
        By funding operations at least in part through sales and 
        licensing of standards, SDOs can minimize barriers to qualified 
        participation and maximize independence from entities seeking 
        to influence the outcome for commercial or political reasons. 
        Standards sales also allow non-profit SDOs to recoup basic 
        administrative costs while passing on to implementers all of 
        the benefits of the voluntary and inclusive process of 
        standards development, including openness, balance, 
        opportunities to participate, and protection from undue 
        influence.\6\
---------------------------------------------------------------------------
    \6\ ANSI Essential Requirements, www.ansi.org/
essentialrequirements; World Trade Organization (WTO) Technical 
Barriers to Trade (TBT) Agreement Principles for the Development of 
International Standards, http://www.wto.org/english/tratop_e/tbt_e/
tbt_e.htm.

           If SDOs cannot charge for standards and codes, this disrupts 
        the standards development ecosystem. The funding has to come 
        from somewhere. Increasing participation fees to offset lost 
        sales revenue would disenfranchise consumers, small businesses, 
        and local governments. Those with the money would have all the 
---------------------------------------------------------------------------
        influence.

          Standards must be maintained and the publication kept 
        up to date. This requires ongoing development, revision 
        maintenance, and administrative costs. The government and 
        taxpayers benefit from the current system by not paying for 
        these recurring development and administrative costs.

          If SDOs cannot afford to stay in business, safety 
        standards would not be updated, with the potential for 
        dangerous consequences. And standards for new technologies 
        would go unwritten, affecting U.S. competitiveness and 
        innovation. The government would have to step up, take over 
        what is now a market-driven system, and somehow find the money, 
        time, and expertise--for every single technology and industry 
        area.\7\
---------------------------------------------------------------------------
    \7\ Agencies have explored what that scenario might mean. Consider 
the following findings of the Federal Energy Regulatory Commission 
(FERC), published in the Federal Register in December 20091:

      When the Commission weighed the advantages achieved by the 
      North American Energy Standards Board (NAESB) standards 
      development process against the cost to the Commission and 
      the industry of developing these standards through notice 
      and comment rulemaking, we found, and continue to find, 
      that the benefits of having a well-established, consensus 
      process outweigh whatever costs non-members may incur in 
---------------------------------------------------------------------------
      having to obtain copies of the standards.

          Finally, decisions made about our national 
        standardization system and our priorities for action reach far 
        beyond our borders, especially when it comes to the continued 
        success of our products, services, and workforce on the global 
        stage. Any decisions or actions that would fundamentally 
        undermine this system will cause the U.S. to lose this 
        competitive advantage to other countries that would be quick to 
        seize the opportunity. Additionally, significant changes to the 
        system would compromise the role that standards play in 
        protecting health, safety, and the environment.
                          what is the answer?
    Reasonable availability is the best solution, as it allows for the 
flexibility required by different industries, agencies, and SDOs. The 
public and private sectors should continue to make standards and codes 
available on a reasonable basis. For some this may mean providing read-
only but free access, and for others it may mean at reasonable prices.
    Recognizing that there is not ``one solution to the access issue,'' 
\8\ the OFR found that it is for the federal agencies to work with SDOs 
to provide reasonable access to IBR-ed standards.
---------------------------------------------------------------------------
    \8\ For example, one must take into account the myriad uses of IBR 
by different agencies. Many standards accepted under IBR have within 
them normative references to a second, or even third, level of 
standards. Making each and every standard referenced directly or 
indirectly through an IBR available free of charge to the public would 
be challenging and extremely cost-ineffective.

Furthermore, many standards under current IBR rules are International 
Standards such as those promulgated by ISO and IEC. Any changes to 
reasonable availability requirements would not have any jurisdictional 
effect on current sales and distribution policies of ISO and IEC.
    The OFR's recent assessment reaffirms the decade-old guidance 
contained in OMB Circular A-119--to ``observe and protect'' the right 
of copyright holders when incorporating by reference into law voluntary 
consensus standards. The very purpose of this policy is to permit the 
government to benefit from the efficiencies of the voluntary consensus 
standards development process. When the government references 
copyrighted works, those works should not lose their copyright, but the 
responsible government agency should collaborate with the SDOs to 
ensure that the public does have reasonable access to the referenced 
documents.
    And that's just what is being done. Many SDOs make standards 
available for free or at a discount to consumers, policymakers, and 
small businesses. And some SDOs make certain standards and codes 
available online on a read-only basis.
    For its part, ANSI has launched an online IBR Portal for the 
benefit of the user community, including consumers. The portal provides 
a voluntary, centralized infrastructure that can help the hundreds of 
SDOs in this country make their IBR-ed standards available in read-only 
format, should they wish to participate.\9\
---------------------------------------------------------------------------
    \9\ http://ibr.ansi.org.
---------------------------------------------------------------------------
                             in conclusion
    The standardization community believes--as OMB, NARA, OFR, and ACUS 
believe--that the development of complex, highly specialized, technical 
standards requires a massive investment of time, labor, expertise, and 
money. Federal agencies continue to incorporate privately developed 
standards, eliminating costs of developing government-unique standards.
    Standards development in this country is one of the earliest and 
most successful examples of the public-private partnership, which has 
benefitted our nation tremendously on many fronts--competiveness, 
public safety, successfully commercializing American innovations 
globally, and much more.
    We thank you for this opportunity to provide testimony.
    Due to the limited advance notice of this hearing, we would 
respectfully request the Chairman to hold the hearing record open for 
at least 14 days, to allow affected organizations or individuals 
adequate time to file additional testimony on this important subject.
                               about ansi
    ANSI is a private, non-profit organization that administers and 
coordinates the U.S. voluntary standards and conformity assessment 
system. In this role, the Institute oversees the development and use of 
voluntary consensus standards by accrediting the procedures used by 
standards developing organizations, and approving their finished 
documents as American National Standards.
    Internationally, the Institute is the official U.S. representative 
to the International Organization for Standardization (ISO) and, via 
the U.S. National Committee, the International Electrotechnical 
Commission (IEC).
    ANSI's membership is comprised of businesses, government agencies, 
professional societies and trade associations, standards developing 
organizations (SDOs), and consumer and labor organizations. The 
Institute represents the diverse interests of more than 125,000 
companies and organizations and 3.5 million professionals worldwide. 
ANSI works closely with stakeholders from both industry and government 
to identify consensus-based solutions to national and global 
priorities--an inclusive, collaborative partnership between the public 
and private sectors.
                               __________

    Mr. Coble. Thank you, Ms. Griffin.
    Mr. Malamud?

   TESTIMONY OF CARL MALAMUD, PRESIDENT, PUBLIC.RESOURCE.ORG

    Mr. Malamud. Thank you, Mr. Chairman, Mr. Ranking Member. 
And thank you for the opportunity to appear before you today.
    I am the Founder of Public.Resource.Org, a nonprofit that 
puts government databases, that everybody agrees are public, on 
the Internet and then works closely with the government to help 
them improve their own operations. I am responsible for placing 
the SEC EDGAR and U.S. Patent databases on the Internet for the 
first time. Public Resource has put all the historical opinions 
of the U.S. Court of Appeals on the Internet for the first 
time. We worked with Speaker Boehner and Chairman Issa to put a 
full archive of video from the House Oversight Committee and 
14,000 hours of additional hearings online.
    I would like to highlight three key points. First, there is 
a fundamental principle of our democracy, the rule of law, that 
states that, ``If we are to be an empire of laws and not of 
men, we must publish the edicts of government for all to know, 
because ignorance of the law is no excuse and an informed 
citizenry must educate itself on its rights and obligations.'' 
That the law has no copyright because it is owned by the 
people, is a principle that has been repeatedly reaffirmed by 
the courts.
    Despite that principle, my nonprofit has received stern 
takedown notices for publishing the official codes of Georgia, 
Idaho, and Mississippi. At the Federal level, the Code of 
Federal Regulations deliberately and explicitly incorporates by 
reference public safety codes that become binding law. As Joe 
Bhatia, the President of the American National Standards 
Institute, clearly states, ``A standard that has been 
incorporated by reference, has the force of law and it should 
be available.'' My nonprofit has assembled a collection of 
1,000 of those public safety laws and we have made them 
available to the public for the first time on the Internet. For 
that service, three standards bodies are suing us for, and I 
quote, ``Massive copyright infringement.'' They are suing us 
for publishing the law without a license.
    My second point is about money. Some standards bodies 
insist that before one can read or speak the law, one must 
first obtain their permission. They say everybody needs a 
license, because they need the money. But, the goal of their 
process is precisely that their safety codes become the law. 
They lobby aggressively for that outcome and they boast loudly 
when their codes are adopted. When a safety code becomes law, 
the publisher gets a gold seal of approval of the American 
people. They exploit that position by selling all sorts of 
ancillary services, such as membership, training and 
certification. The business has become incredibly lucrative. 
And these nonprofit standards bodies pay their CEOs million-
dollar salaries.
    My third point is that the right to read the law and speak 
the law is necessary for innovation, innovation that leads to 
better tools for those that use the law every day including 
government workers, electricians and plumbers, students and 
apprentices, volunteer firefighters, journalists, and citizens.
    Mr. Chairman, I have here for the Committee's inspection 20 
public safety standards that are part of Federal law, including 
the safety requirements for wooden and metal ladders, the 
safety requirements for protective footwear, the national fuel 
and gas code. If you were to read these laws into your hearing 
record, would the Congress face strident objections for 
speaking the law without a license, like my nonprofit faces? 
That is why 115 distinguished law professors have joined me in 
calling on this Committee to consider an edicts of government 
amendment to the Copyright Act to clarify, once and for all, 
that the law belongs to the people.
    Thank you very much.
    [The prepared statement of Mr. Malamud follows:]


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                               __________
    Mr. Coble. Thank you, Mr. Malamud.
    I want to commend the witnesses, you have not--you have 
complied with the 5-minute rule and I thank you for that. And 
we will try to respond accordingly.
    Mr. Schultz, what changes to U.S. law would you recommend 
to address broadcaster concerns about signal theft, A? And, B, 
would these changes be to our copyright law or our 
communications law?
    Mr. Schultz. Thank you. That is an excellent question.
    The law, as it currently stands, serves well. As I 
testified, it serves both the public interest and serves the 
broadcasters well.
    There are current developments that could change that, 
notably the AEREO case, regulatory proceedings and a number of 
other court cases. But, as things stand, the law works 
remarkably well. And indeed even conceivably joining a new 
broadcast treaty would not require us to change the law. And 
thus, the current statutory scheme works well. And I am not 
aware, although I don't speak on behalf of the broadcasters, I 
am not aware, in fact, of the broadcasters seeking new rights.
    Thank you.
    Mr. Coble. I thank you.
    Now, let me ask you another question, Mr. Schultz. In your 
work on copyright issues, what other issues of concern do you 
believe are of interest to copyright owners generally?
    Mr. Schultz. Thank you.
    I think, indeed, the subject of this hearing is an 
important one, including the making available right. It is 
important that creators are able to secure the return on their 
investment and their labor. And that is currently the 
challenge. The quite obvious challenge in front of all of us. 
And so, I think in the long run that will need to be addressed.
    Mr. Coble. Thank you, sir.
    Professor Lunney, do you believe that an explicit making 
available right would significantly broaden the scope of 
copyright protection beyond what it is today?
    Mr. Lunney. A making available right, if we used the 
language of the WIPO Treaty, would not change the law in the 
file-sharing context, by any measurable degree in the litigated 
cases. It would, however, open up potential issues in the 
public performance and public display areas, linking 
retransmission and issues of that sort for cloud computing and 
social networking sites. I think it would reopen some of those 
issues.
    Mr. Coble. Now, does your lack of concern for the impact of 
file sharing reflect the view that Congress should reduce 
copyright protection in other areas?
    Mr. Lunney. I think one of the things that has sort of 
slipped in, almost by accident, to copyright law is that we 
have shifted over the last 20 years or we have expanded 
copyright over the last years to get the individual consumer 
involved as copyright infringers. I think that is a bad 
development. For its first 200 years, copyright was directed 
solely at other commercial entities. I think it works best when 
it works in that fashion. When you start getting the individual 
consumers in the mix, either as an infringers of one sort or 
another, you get the privacy concerns and other concerns. And I 
think that has created real problems for copyright law.
    Mr. Coble. Mr. Love, do you believe that other nations are 
close to a conclusion, at WIPO, in drafting broadcast treaty?
    Mr. Love. Could you repeat that?
    Mr. Coble. Yes. Do you believe that other nations are close 
to a conclusion, at WIPO, in drafting a broadcast treaty?
    Mr. Love. In 2007, we thought that the treaty was 
essentially stopped and there wasn't going to be any further 
progress on it. After the Marrakesh Treaty was adopted by WIPO, 
in June of 2013, it opened up a lot of space in the 
negotiations at WIPO. And it was, I think, quite surprising 
that in September of last year, country after country took the 
microphone, at the general assembly of WIPO, to call for a 
diplomatic conference in 2015. I think the Secretariat of WIPO 
is looking for a hat trick. They would like to have three 
treaties in hand in the copyright field, having concluded the 
Beijing Treaty in 2012 and the Marrakesh Treaty in 2013. And I 
think they are focused on that.
    We would prefer that there is no broadcast treaty. We are 
opposed to the proposal. But I wouldn't really--I think people 
are wrong if they don't think that this thing is moving 
forward. At this point, there is a large number of countries 
that are calling for a diplomatic conference. Once you go into 
diplomatic conference, it is very difficult to predict what the 
outcome will be.
    Mr. Coble. Thank you, sir.
    Let me try to beat that red light, Ms. Griffin.
    How does one respond to the statements of some that 
citizens deserve full access to the laws and rules that they 
are--by which they are required to live.
    Ms. Griffin. Yes, thank you for the question.
    I think that the answer to that depends upon an analysis of 
many dimensions. The first dimension is the recognition that 
standards and codes are original works of authorship and are 
entitled to copyright protection. And, even at times when they 
are incorporated by reference into legislation, both the Second 
and the Ninth Circuit have held that those standards and codes 
do not necessarily lose their copyright protection by virtue of 
that. Another dimension of the issue is OMB A-119 and the 
NTTAA. They encourage and demand that Federal agencies 
incorporate standards into Federal regulations, when they are 
able to do so. A final dimension of the issue is the one that 
Mr. Malamud raises and that is the one that says that the 
citizenship should have the right to see what the law is.
    The way that those three dimensions have been bridged, over 
the course of the years, is through a tool that is contained in 
the Freedom of Information Act. And that tool is called 
incorporation by reference. And that provides that Federal 
agencies can incorporate into Federal regulations extrinsic 
standards, as long as those standards are reasonably available 
to the class of persons that are affected by it. And that tool 
has permitted the Federal agencies to comply with their 
obligations, under OMB A-119, while at the same time respect 
the copyrights of the standards that are so incorporated.
    Recently, that has been challenged by Mr. Malamud and 
others. And they have gone to NARA and they have questioned 
whether the reasonably available standard ought not be changed 
to make the standards for free. And NARA has concluded, as has 
ACUS, that the current process continues to be the best one, 
the one that is best designed to ensure that high quality 
standards are developed and incorporated by reference into 
Federal regulation.
    Mr. Coble. Thank you, Ms. Griffin.
    Thank you all.
    I see the red light has illuminated. So, I now recognize 
the gentleman from Michigan for his questioning.
    Mr. Conyers. Thank you very much.
    Professor Nimmer, we appreciate you being with us today. 
And I would like to discuss with you what you see as the key 
issue facing copyright industries and the public today, when it 
comes to the current copyright system.
    Mr. Nimmer. Thank you, Representative Conyers.
    It is obviously a very broad question and I will have to 
give a broad answer. I think the answer is that we are governed 
by a statute written essentially in 1965, passed in 1976, and 
now here in existence 50 years later with technologies that 
were not remotely contemplated then. And we see each of the 
rights of the copyright owner coming under strain.
    Today we have been talking about the distribution right and 
its making available component. You have already mentioned that 
the United States Supreme Court granted certiorari in the AEREO 
case. That is a case about the performance right. And we see, 
because of the Internet, a convergence of all of those rights.
    So, classically, back in 1965, there was a great difference 
between reproducing a book, publishing it, then distributing 
it, and then a performance, which would be a play. Today, when 
the bits flow over the Internet, sometimes it is conceptualized 
as an act of reproduction, sometimes it is conceptualized as an 
act of distribution, and it has been argued in cases that it is 
equally a performance.
    So, a very forward-thinking approach to copyright law would 
be to look at exploitation, not within the prism of those five 
categories that are half a century old, but instead to try to 
formulate the ideal rules of the road going forward, which 
might be one unitary right or it might be broad under the 
rubric of two rights or perhaps three rights. I am not 
prepared, as I sit here today, to offer that answer. But, I 
think it is exactly the right question to ask. And I would be 
pleased to work with the Committee on a going-forward basis.
    Mr. Conyers. We appreciate that. Do you think the courts 
have struggled to apply the making available right in the 
United States even though Congress and government experts agree 
that the existing law should cover the right?
    Mr. Nimmer. Yes, I do think the courts have struggled with 
that issue. I think one of the main reasons is that some of the 
individuals targeted have uploaded thousands of copyrighted 
works. And unfortunately, the result under our law is that 
somebody who has uploaded thousands of works might be liable 
for hundreds of millions, possibly even a billion dollars' 
worth of damage. That is why I think, at the same time that 
Congress confronts the making available component of the 
distribution right, Congress should also rationalize the award 
of statutory damages.
    Right now, the scheme was set in 1999. The law happened to 
be passed right before the invention of a service called 
Napster. So, our law is trying to keep pace with developments 
on the ground. And that is why I think a unified approach would 
be best, where we look at the making available right and 
statutory damages and a small claims court, all in one unitary 
point of view.
    Mr. Conyers. And finally, I wanted to get an explanation of 
why you changed your mind on the making available right which 
was not encompassed by the distribution right in previous 
editions.
    Mr. Nimmer. Good. Thank you.
    It is a challenge writing a treatise because any one 
sentence can be taken out of context and applied in a way that 
is was not intended. In particular, in 1995, there was a Second 
Circuit case in which somebody who owned Laurel and Hardy 
Videos said his rights had been violated by CBS because they 
had broadcast his videos. And he was correct. But, he said his 
distribution right had been violated by the performance of 
those videos and the district court tended to agree with him. 
So, the Second Circuit reversed. And I wrote up that case to 
say, it is not enough that the works have been made available 
to the public in some sense, by virtue of being broadcast. To 
violate the distribution right there has to be actual 
distribution of their works, namely a physical copy passing 
hands. I wrote that in 1995, 3 years before Napster was 
formulated, so I did not have peer-to-peer services in mind. 
And, unfortunately, that sentence was taken out of context 
later.**
---------------------------------------------------------------------------
    **Addendum:
---------------------------------------------------------------------------
  In addition, there is a deeper answer to Rep. Conyers' question. The 
treatise's full treatment of this issue was the product of important 
research that a colleague shared with me. In response to the courts' 
conflicting making-available rulings, Prof. Peter Menell of UC Berkeley 
investigated the roots of copyright law's distribution right. As 
detailed in my Written Statement, I was not sufficiently attentive to 
those roots until I was given the chance to review his path-breaking 
scholarship. His findings were so important that I invited him to co-
author the next treatise revision, in order to include the 
comprehensive analysis of the proper interpretation of copyright law's 
distribution right, as set forth in that landmark article. It is for 
this reason that the current treatise version differs so markedly from 
the old version.
    Mr. Conyers. Thank you so much.
    I will yield back the balance of my time, Mr. Chairman. 
Thank you.
    Mr. Coble. Thank you, Mr. Conyers.
    The Chair recognizes the distinguished gentleman from 
Virginia for his statement. Mr. Goodlatte?
    Mr. Goodlatte. Thank you, Mr. Chairman.
    Mr. Nimmer, I would like to follow up on the Ranking 
Member's question. Professor Lunney has raised concerns that 
making--that adding a making available right would change 
longstanding jurisprudence. I take it you don't agree with that 
perception. Would you elaborate on your view? And does that 
view imply that Congress should never update the law for any 
reason?
    Mr. Nimmer. Thank you, Representative Goodlatte.
    Yes, Mr. Chairman, I do disagree with that point of view. 
It all depends what type of law Congress were to pass. If 
Congress were to pass a standalone making available right, that 
would be a large change to copyright law. The way the cases 
have arisen to date, concerning making available, it has been 
as an aspect of the distribution right. So, cases construing 
the copyright owners' distribution right have come down on both 
sides of the making available issue.
    My testimony today, if we keep our narrow focus, is that 
Congress should clarify that the distribution right is violated 
when works are made available. In other words, when an 
individual uploads a copyrighted work to a share folder, it has 
thereby been made available to the world and the act of 
copyright infringement is complete. It is not necessary to show 
a subsequent individual downloaded that work.
    And I believe that, therefore, a properly tailored 
amendment does not call into question existing cases that were 
rendered under the performance right or under the display 
right.
    Mr. Goodlatte. Thank you.
    Let me give everyone on the panel--it is a great panel, by 
the way, I thank all of you for your testimony--a jump ball 
here. Since this hearing has covered three separate topics, are 
there any of you who would like to comment on any of the other 
two topics that you didn't get to testify in your opening 
statement?
    Mr. Love?
    Mr. Love. On the issue of copyright and the law, I think 
it--there is this distinction between whether the State laws 
and regulations in the United States can be copyrighted--and 
with the Federal. I think that U.S. laws, works of Federal 
employees, Federal laws, Federal regulations are not subject to 
copyright. There are--I think it would be good to extend that 
rule to laws at the State level, in everything from court 
opinions to regulations to statutes.
    And I also mentioned that the Berne Convention itself has a 
special provision that really gives country--governments extra 
flexibility in the area of testimonies, legislation, of 
anything that basically spacks of law-type proceedings.
    And so, I think that it is good that you focused on this 
issue. And I think that--I certainly agree with what Carl was 
saying, which was that, you know, if you are expected to--you 
know, my father was a judge--if you are expected to abide by 
the law, I think you have a right to know what the law is. And 
I think that is--it is good that this Committee is looking at 
that issue.
    Mr. Goodlatte. Thank you.
    Professor Schultz?
    Mr. Schultz. Thanks, I will briefly speak to standards.
    I think many of the principles I have discussed apply 
equally to standards that we need to ensure that the authors' 
standards can be compensated for their work. And I think Ms. 
Griffin did an excellent job testifying. But, we should all 
keep in mind that standards are incredibly diverse. And some 
standards have thousands of parts and thousands of subparts in 
those parts, in the case of things like technical standards. 
So, standards should not all be treated the same. And there 
should be due regard to the complexity and incredible expense 
and incredible public value that is created in standards.
    Thank you.
    Mr. Goodlatte. Thank you.
    This is another one for all of you. As the Committee 
continues its work, reviewing copyright law, are there topics 
in copyright law that you would recommend that the Committee 
review?
    I will start with Professor Lunney.
    Mr. Lunney. I agree with David on this, that statutory 
damages is going to need to be revisited, particularly in the 
individual consumer context. It is a real problem to treat them 
as we are now. And hundreds of thousands of dollars in damages 
against a mom and a student, just not appropriate.
    Mr. Goodlatte. Point well taken.
    Professor Schultz?
    Mr. Schultz. The Digital Millennium Copyright Act's notice 
and takedown provisions are broken. They are based on an 
updated paradigm that seems almost naive now, that you could 
actually contain a file and stop it from spreading. It is no 
longer working for creators.
    Mr. Goodlatte. I noticed a piece, just recently, that said 
that Google had received its hundred-millionth takedown notice.
    Mr. Schultz. Yes. And that goes both ways. Costs are 
symmetrical, right? That means hundreds of millions of notices 
have to be sent.
    Small creators, creative upstarts, individuals, thousands--
tens of thousands of people who make a good middle-class living 
can't afford to spend all of their time trying to chase people 
around the Internet. This system is not working for them. It 
needs to be revisited.
    Thank you.
    Mr. Goodlatte. Mr. Love?
    Mr. Love. I think that revisiting the issue of formalities 
is quite important. I think that the decision to introduce 
formalities in the United States has created a wasteland of 
cultural works, which are essentially inaccessible to people. I 
don't think anybody can go back very far before you realize it 
is impossible to identify who the owners of a lot of works are 
and in some cases who the authors are; photographs; old, old 
pamphlets; literature. There is--a variety of proposals that 
have been made to deal with orphaned works. But one of which is 
to consider the flexibility you have on formalities. Certainly 
for the post-TRIPS requirements of 20 years on photographs and 
50 years on copyright, you can introduce formalities for that 
extended period. And there is a proposal in the TPP negotiation 
to do that very thing, actually. But the U.S. is actually 
opposing it. And I think the U.S. is on the wrong side of that 
issue.
    Another thing is that on sound recordings, which are not 
protected by the Berne Convention, there is no obligation to 
have formalities. And so, for--not all things that are 
considered copyrighted in the United States are actually 
required under, you know, international obligations, the Berne 
Convention and formalities. So, I think a deep and technical 
look on where you can introduce formalities.
    Some people, like in the recording industry, have expressed 
some openness to the idea that it was maybe--would be a good 
idea to sort of give more protection to people--I am sorry, I 
am going to have to wind this up.
    And the final thing is that the Treaty for the Blind 
provides an opportunity for the United States to share its 
collections of works under copyright exceptions with blind 
people in other countries. And I think that needs to be fixed.
    Mr. Goodlatte. Mr. Chairman, my time has expired. But, I 
know Mr. Nimmer wanted to jump in on that as well, if I may.
    Mr. Coble. Without objection.
    Mr. Nimmer. Thank you, Mr. Chairman.
    The written statement that I submitted put two other 
matters into the hopper. One is the United States Supreme 
Court, last year, ruled that gray-market goods can be freely 
purchased abroad and imported into this country. Justice 
Breyer's opinion said, ``We think that this is what Congress 
intended. If Congress did not intend it, then Congress can come 
back and tell us.'' So that is something that is very alive 
now.
    And there is a parallel issue in the domestic front, which 
is cloud computing. It introduces wholly new rules of the road. 
It essentially eliminates the safeguard of the first sale 
doctrine. And Congress needs to look at what rules it wishes to 
have for the road of this uncharted territory of the cloud.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    Mr. Coble. The gentleman's time is expired.
    Ms. Chu from California?
    Ms. Chu. Thank you, Mr. Chair.
    As the co-chair of the Creative Rights Caucus along with 
Chairman Coble, I believe that a making available right is 
engrained in our current statute as an essential part of our 
copyright framework. Congress has repeatedly concluded that no 
change to the U.S. copyright law was necessary because existing 
law already includes a making available right. Our Federal 
appellate courts have also arrived at the same conclusion. And 
this is also the case in very international agreements, such as 
WIPO and the WIPO Copyright Treaty. I believe that the making 
available right is an inherent exclusive right that gives the 
creators the freedom to express themselves and more importantly 
to decide how and when they choose to distribute and publicly 
perform their own works.
    So, Professors Nimmer and Lunney, what, if any, impact 
would carving out a separate making available right to the 
Copyright Act, what effect would that have on online theft? 
Would explicitly creating a making available right help lessen 
the burden for individual creators or make the process easier 
for them to prove their works have been infringed upon?
    Mr. Nimmer. Thank you, Representative Chu.
    I believe it would streamline the cases. Instead of having 
a large Federal case about every activity of peer-to-peer 
sharing, there could be an expeditious proceeding, particularly 
if Congress also adopted my suggestion of having small claims 
court proceedings. And I think it would be a salutary change to 
streamline those procedures and get quick and fair and 
expeditious justice in them.
    Mr. Lunney. Well, as you might guess, Representative Chu, I 
disagree with Professor Nimmer. It used to be, under Napster, 
that you would go on and find one user who had the file and you 
would download it from that particular user. That sort of file 
sharing protocol has long--largely faded away. Most file 
sharing today is with BitTorrent. The file is divided up into 
separate segments and it is sent out in a swarm of people who 
are all simultaneously uploading and downloading the work. So, 
the issue of whether you have to prove a download, as part of 
your prima facie case, is essentially irrelevant under the 
BitTorrent protocol whether we have the making available right 
or the existing distribution right.
    As a practical matter, almost all of these instances where 
file sharing is found, what happens is the investigator 
identifies the person, the IP address. They go to court. They 
get the subpoena to the ISP to get the consumer's information. 
They send a threat letter and that is as far as it goes. It is 
either settled or the consumer can present some sort of 
evidence that they were not the person who did the downloading. 
And that is it. Only a relative handful, maybe 20, 30, 40, a 
few hundred, actually ever go any further than that. And, if it 
actually goes to trial, they get a copy of your hard drive. 
And, at that point, it is relatively trivial to prove the file 
sharing activity you have engaged in.
    So, I don't see how this would really facilitate or help 
sort of small creators.
    Ms. Chu. Professor Schultz, you look like you have an 
opinion on this.
    Mr. Schultz. Oh, no. No, thank you. [Laughter.]
    Ms. Chu. Then, okay.
    Professor Schultz, then let me turn to a different issue, 
which is I would like to ask specifically about the Aereo case. 
Of course we know that the Supreme Court agreed to hear the 
Aereo case to determine whether online streaming of live 
broadcasts constitutes an infringement of a copyright holder's 
exclusive right of public performance. Given the economic 
importance of intellectual property in our country and the 
constant evolution of modern technology, in which more people 
are viewing content over the Internet, is this an appropriate 
question for the courts to determine or should Congress 
legislate and settle this area of law? And how would a 
decision, favorable to Aereo, change the landscape of how 
broadcast content would be delivered to consumers in the 
future?
    Mr. Schultz. Thank you. That is an excellent question.
    I think I will begin with the second part of it: how would 
it change the landscape of broadcast. So, you know, Aereo's not 
the only court case that the broadcast and television 
creators--broadcast industry and television creators face. We 
have one court saying that, essentially, intercepting signals 
and aggregating them and sending them to their customer and 
Aereo, does not require payment of retransmission fees. We have 
another court saying that stripping commercials out of 
broadcasts is perfectly okay. We have another court, in 
cablevision, essentially saying that a virtual on-demand 
service is permissible. And when all this is said and done, you 
have to ask where the revenue is going to come from; how these 
companies will get their--get compensated for their work.
    So, I think the--an Aereo decision that comes out in favor 
of Aereo would undermine the very premise on which the system 
is based, that local broadcasters can be compensated for the 
tremendous investment they have in broadcasting and content 
creators can be compensated for their work. So, I think that 
this in an appropriate topic for the courts. But, if the courts 
act--if the courts interpret the Copyright Act in a way that 
undermines these fundamental policies, this Congress will have 
to act.
    Thank you.
    Ms. Chu. Thank you.
    I yield back.
    Mr. Marino [presiding]. Thank you, Congresswoman.
    The Chair now recognizes the gentleman from North Carolina, 
Congressman Holding.
    Mr. Holding. Thank you, Mr. Chairman.
    Professor Nimmer, maybe this is best directed toward you. 
But could you take a minute or two and explain further how U.S. 
copyright law compares to that of other nations, particularly 
distinguishing features?
    Mr. Nimmer. Okay.
    The theory of Anglo-American copyright law is basically 
instrumental that it is there for a purpose, to promote the 
progress of science. On the Continent, in Europe, the 
underlying theory is much more based on natural rights that 
there is an intrinsic connection between the author and the 
author's creation. And so, therefore, there is a natural right 
to compensation just by virtue of having created, regardless of 
the social policy that will come out of that activity of 
copying. That is the broadest answer to your question.
    The philosophical underpinnings, that I have just outlined, 
obviously play through with practical implications. We see in 
Continental jurisprudence a very strict recognition of moral 
rights, which is something that is alien to the U.S. way of 
copyright and was only put in grudgingly and only with respect 
to works of visual art, in 1990 and plays out in other ways as 
well.
    That is a very brief answer to an extremely interesting and 
broad-ranging question.
    Mr. Holding. Well, maybe we could dive down on some 
specifics in the context of, you know, we are negotiating some 
trade agreements, TTIP in particular. And I am thinking of, you 
know, what type of copyright issues might be brought up in that 
context and--before we see any divergences which could cause 
particular arguments?
    Mr. Nimmer. Let me ask you, Representative Holding, are you 
talking about the Free Trade Agreements that are being 
treated----
    Mr. Holding. Right. Correct.
    Mr. Nimmer. Okay.
    Insofar as I am aware, the U.S. Government has had great 
success in reaching agreement with other countries with respect 
to those Free Trade Agreements. There are 20 countries now with 
whom the U.S. has bilateral relations. Those treaties do, I 
think, every single one of them possibly with one or two 
exceptions that I am not aware of, include a making available 
right. And so, notwithstanding the philosophical differences 
between countries with differing roots of copyright, there has 
not been disagreement, insofar as I am aware, with those Free 
Trade Agreements.
    Mr. Holding. And I would like to open it up to the panel, 
if anyone else would like to chime in with, you know, 
particular issues, you know, having to with our copyright laws 
versus other nations' and problems there.
    Yes, sir.
    Mr. Love?
    Mr. Love. The U.S. has high norms as far as damages are 
concerned. A lot of the foreign countries have lower norms, as 
far as damages. But, the U.S. has broader fair use rights. And 
so, the combination is such that our technology companies which 
are really dominant in a lot of the Internet areas have been 
able to operate.
    What the U.S. is doing in the Free Trade Agreements is sort 
of cherry picking the parts of the U.S. law that the--in some 
cases, that the publishers like. So, they sort of pick really 
aggressive standards, as far as damages. To the extent they are 
even requiring countries consider the full retail value as the 
basis for damages, for example, which isn't even found in U.S. 
law and is contrary to U.S. law.
    On the one hand, and then--as kind of a halfhearted way of 
looking at the fair use thing of the thing. So, what you have 
got is sort of a shift of increased liability for U.S. 
technology companies operating overseas. U.S. has, you know, it 
has strong damages. But we have more exceptions in our domestic 
law than most foreign countries do, which is kind of this 
paradox. I think that the problem in trade policy is also that, 
you know, the negotiations are completely secret. You know, we 
help leak September of the TPP negotiation, a negotiation 
involving something like 40 percent of the world's GDP in that 
negotiation. We don't know what the current version is and 
neither do you.
    Now, I don't see how you can possibly expect a trade 
agreement with Japan and Mexico that, you know, basically 
NAFTA-squared, -tripled, -triple-squared with that much GDP on 
the table. And, like, not even know what is going on and not 
even have that thing transparent. So, I think that the Congress 
has fallen down by allowing copyright policy to be made in 
secret, you know, through these trade agreements.
    Mr. Holding. Thank you.
    Mr. Chairman, I yield back.
    Mr. Coble [presiding]. I thank the gentleman from North 
Carolina.
    Mr. Deutch, the gentleman from Florida?
    Mr. Deutch. Thanks, Mr. Chairman.
    Professor Lunney, I wanted to pursue, in a little more 
detail, some of the assertions that you make in your written 
testimony. All of this, sort of to support your assertion that 
there is no need for a making available right, you say, ``The 
unauthorized copying, distribution and streaming of copyrighted 
works across the Internet are not the problem that copyright 
owners would have us believe.'' You talked about the purpose of 
copyright is, ``Not to maximize revenue, but to make the works 
more widely available.'' You said here today that the measures 
of music output is what we should look at, not the money made, 
the goal is for more and better works and file sharing 
encourages that. And you went on to say, even while formally 
illegal, ``File sharing has provided much broader access to 
existing works than the preexisting market mechanisms had 
accomplished.''
    And there are a few things I am trying to wrap my arms 
around. First, you had said earlier that the copyright laws in 
this area had always focused on--never on individuals, but 
always on corporations. And I wonder, if you draw the 
distinction at the individual who downloads a song or a movie 
illegally, and what happens when that individual starts--
creates an opportunity to share hundreds and thousands and tens 
of thousands and millions of songs and movies and other 
copyrighted work that can then be shared with others. Clearly, 
in that instance, file sharing goes beyond what you are 
prepared to accept?
    Mr. Lunney. Thank you for the question.
    It is a hard area to get our hands around. And it is 
counterintuitive to suggest, at some point, that less revenue 
could lead to more works. It would be a surprising result. I 
was surprised by the result when I did the empirical work 
myself. And, of course, from my perspective, I am sort of an 
ivory-tower academic. I don't expect my work to have any real 
world significance. I am not sure I want it to have real world 
significance. I want to sit and explore issues and try and 
figure things out. And so, you get a result like this and you 
publish it and all of the sudden you are the center of a bit of 
controversy.
    Obviously, copyright is not a never ending spigot, you 
can't simply add more and more and more and more and expect to 
get more works out the other side. There has got to be 
diminishing returns at some level.
    Mr. Deutch. Professor Lunney, I am not asking you to 
restate your testimony.
    Mr. Lunney. Okay.
    Mr. Deutch. I understand it. I am just asking, when you say 
that file sharing, that the sharing of copyrighted material is 
okay, is it okay just for an individual or is it okay for an 
individual to share tens of thousands of songs or films?
    Mr. Lunney. Well, if there is file sharing, there is the 
potential, at least, for sharing tens of thousands songs to 
tens of thousands of people. And we have assumed----
    Mr. Deutch. Right.
    Mr. Lunney [continuing]. That that has the same effect as 
if a competing commercial publisher came along and offered 
competing copies in the marketplace.
    Mr. Deutch. Well, except----
    Mr. Lunney. That is an assumption.
    Mr. Deutch. How is it different--how is it--here is what I 
really don't understand with the argument that file sharing--
illegal file sharing is somehow okay. If the goal is to spread 
the amount of music and creative works and film and all of this 
great intellectual property and to spread it as far and as wide 
as possible, why is it different, in the computer, in the 
setting of technology, to share files that way than it would be 
for the Big Box retailer to have someone come in through the 
backdoor, scoop up all the CDs and DVDs and take them out on 
the street corners, after they have copied them tens and 
hundreds of thousands of times, or gone into business on their 
own? Why is different with a physical product than it is 
online?
    Mr. Lunney. Well, it is different when consumers are doing 
it than when a commercial entity is doing it, I was----
    Mr. Deutch. Yeah, right.
    Mr. Lunney [continuing]. Arguing.
    Mr. Deutch. And I am not--I am suggesting to you that that 
individual who breaks in to the Big Box retailer and scoops up 
maybe only one or two, takes a couple of CDs and DVDs and makes 
copies of those him- or herself and then goes ahead and shares 
those, spreads this information far and wide, gets all this 
intellectual property out there. Why is it different? Why 
should it be acceptable for that to happen online, but not on 
the streets?
    Mr. Lunney. So, is this individual, who is breaking in to 
the Big Box, are they offering those copies for free or are 
they----
    Mr. Deutch. Is that the distinction? Is that the 
distinction then?
    Mr. Lunney. I think it is an important distinction, whether 
it is for profit or not for profit.
    Mr. Deutch. And so--right. And so, if we had just someone 
whose goal was really just to spread the great American 
intellectual property that we are all so proud of by making 
copies and distributing it out of his or her own good will----
    Mr. Lunney. Right.
    Mr. Deutch [continuing]. Thousands of copies, tens of 
thousands of copies, millions of copies, that is perfectly 
acceptable?
    Mr. Lunney. I think we do have such individuals. I think 
they are called libraries.
    Mr. Deutch. And----
    Mr. Lunney. And they have coexisted with the commercial 
market for hundreds of years without undermining it. That is--
--
    Mr. Deutch. Right. They have libraries that operate and 
have operated, as you point out, for hundreds of years. Not the 
setting of people who are going to make millions of copies to 
then freely distribute to be used without any regulation. I 
don't see the difference. And your example--and this is what is 
also confusing to me. When you talk about the fact that, as you 
explain, you said, you know, the question isn't whether file 
sharing has caused the decline of record sales, but the decline 
of record sales affected the creation of new music. And you 
talk about other ways that creators can be compensated, 
separate and apart.
    Then you go through all of them and conclude yourself--you 
reach your own conclusion, that all of those other areas are 
not enough to make up for the amounts that are lost as a result 
of the theft of all of this intellectual property that you 
think do-gooders are certainly capable of doing to spread this 
intellectual property, which makes the performers better off 
and makes the songwriters better off and makes the actors and 
actresses and everyone involved in the production of any film 
or TV show.
    And you seem to refute your own argument and ultimately 
your conclusion is, yes--you do acknowledge in a footnote that, 
yes, there is less money going to the industry, but that it is 
not fair to point out that that may mean there may be fewer 
creators willing to engage in their work. All that means is 
that if you had tougher enforcement that the dollars that flow 
to that--those industries, are dollars that would have 
otherwise been in other industries. The--your rationalization 
doesn't seem to make sense. Ultimately, the conclusion that you 
reached, that somehow it is in the best interest of creators in 
our country for their creative works to be spread far and wide 
without compensation.
    And, as you have now acknowledged, not just a couple of 
kids trading songs that hopefully they purchased. But, in fact, 
the spread of tens of thousands or millions that ultimately the 
goal is just to spread that and that the diminishment in the 
amount of compensation to those creators will have no impact, 
you say, on their ability to continue to do their job. It just 
doesn't--it is inconsistent with what all of those, that I talk 
to, who rely on copyright to protect their intellectual 
property, it is inconsistent with what they tell us they need 
in order for us to continue to uphold this great American 
intellectual property that we value so much.
    And I yield back, Mr. Chairman, thank you.
    Mr. Coble. Thank you, gentleman.
    The gentleman from Pennsylvania, Mr. Marino.
    Mr. Marino. Thank you, Chairman.
    Lady and gentlemen, I wish I had 3 or 4 hours to sit and 
discuss these matters with you. It has been very enlightening.
    Ms. Griffin, you made a statement concerning standards and 
how they apply to life in general. Do you think that we could 
be served by the industry itself setting standards? Or, do you 
believe that we need to legislate more?
    Ms. Griffin. Thank you for the question.
    I think that the way that the--clearly the way the system 
works now is a public-private partnership with standards 
developing organizations who have technical expertise working 
with the Federal regulators who are in their space. And 
together and through that partnership they develop, you know, 
regulations that best meet the requirements of the regulated, 
whatever that may be. And in this country that is a very 
diverse group of people and there are very many groups that do 
that.
    But, what the standards developers organizations bring to 
that is providing the administrative support that permits the 
group that sits at that table to be open and balanced and 
transparent----
    Mr. Marino. Okay.
    Ms. Griffin [continuing]. And not dominated by any one 
group. And they provide the administrative support for having 
consumers sit at the table and provide input that would not 
otherwise be provided if it was just a government-driven event. 
So, I think that balance is what makes it fulsome and it makes 
it the system that it is.
    Mr. Marino. Thank you.
    Professor Schultz, you talked about notice of take down. 
Let us have a little example here. I have a search engine. I 
create a search engine, name it after my son, Victor's Search 
Engine. And you are a musician and a writer. You chose whether 
you want to be the singer, the writer or the musician. But, at 
this point, you have a record out. You have a CD out. You have 
music out. And I do not buy it from you. You are paid no 
compensation from me. But, when people put your name in my 
search engine, your music comes up and you send me a notice. 
And I do nothing about it. Your music comes up because I am the 
guy who is illegally selling music to people and you are not 
getting paid for it. And you keep sending me notice and notice 
and notice. What do you think should be done about that?
    Mr. Schultz. Thank you for the question.
    I think, indeed, that there are two difficulties you 
identify here. One is that the current notice and takedown 
system is based on identifying a particular file rather than a 
work. And, as I said, it is based on an old paradigm that, you 
know, what we had to do, back in 1998, was stop a file that had 
escaped onto the Internet, quarantine it and pull it back. It 
is naive now. And now, every time somebody's work is infringed, 
they have to send a separate notice for every file, no matter 
how----
    Mr. Marino. Do you think I should be held responsible, even 
though you are not sure how many people are downloading that 
music? Because every time someone gets on my search engine and 
pops your name in there, your music comes up and I am selling 
it to somebody for 10 cents a pop.
    Mr. Schultz. Yes, absolutely. If you are the site hosting 
and profiting from somebody else's work, whether it is through 
advertising or----
    Mr. Marino. Do you think it should be--do you think I 
should be held criminally liable?
    Mr. Schultz. Criminally liable. That is a more challenging 
question.
    Mr. Marino. I am stealing from you.
    Mr. Schultz. So----
    Mr. Marino. As a--I am a--I was a prosecutor for 18 years. 
So, I am stealing something from you and selling it and making 
a profit off of it. Do you think that I should be charged 
criminally?
    Mr. Schultz. There--of course, we are going beyond the 
scope of that in these hearings today. But, yes, I think 
criminal law can be a useful tool. But, it has to be very 
carefully applied to instances----
    Mr. Marino. Okay.
    Mr. Schultz. Where the----
    Mr. Marino. Good.
    Mr. Schultz [continuing]. User is at a great----
    Mr. Marino. Thank you.
    Mr. Schultz [continuing]. Disadvantage. Thank you.
    Mr. Marino. Professor Lunney, let us have another example. 
Instead of a brilliant attorney, you are a poet--struggling 
poet. You live in a one-room apartment above a factory. You 
don't even have heat in the winter. And you write--I am looking 
through--I am a songwriter and I am looking through your book 
of poetry and I find this magnificent poem that you wrote. And 
I take that and I put it to music and I make $10 million on it. 
Do you have a problem with that?
    Mr. Lunney. The issue of derivative arts is a difficult 
one. And I personally would not have a problem with that.
    Mr. Marino. Would you personally, for struggling----
    Mr. Lunney. No.
    Mr. Marino [continuing]. Hardly eating, you write this book 
of poetry and you don't have a problem with it?
    Mr. Lunney. I feel that, in a lot of the derivative work 
contexts, it is the inventive effort and creativity of the 
second-comer, of the musician----
    Mr. Marino. Okay, let us go back. Now your father is a 
great poet--struggling, though, and trying to keep a family. 
And, again, I use his poetry and I make $10 million on it and 
he can't feed his children. Should anything be done about that? 
Do you have a problem with that?
    Mr. Lunney. Well, I am not sure exactly what you are doing 
with this poetry. But, if you were just----
    Mr. Marino. I am selling it and making a lot of money on 
it, because I am putting it to music. Do you have a----
    Mr. Lunney. Are you selling it in music, right?
    Mr. Marino. Yeah.
    Mr. Lunney. So, it is a derivative work.
    Mr. Marino. Do you have a problem with that?
    Mr. Lunney. Not the market he originally exploited. He was 
just a poet.
    Mr. Marino. He was just a poet.
    Mr. Lunney. And so, nothing----
    Mr. Marino. And he wrote a book and he really wanted to 
sell it and it is not making good. But, I took a poem out of 
that book and now I made $10 million and he can't feed his 
kids.
    Mr. Lunney. Right. My perspective on a lot of derivative 
works is that we shouldn't require necessarily license in all 
those contexts because it is really the derivative author who 
adds the real value to that.
    Mr. Marino. I would tend to disagree. And I would think I 
would be a little angry, if my father said that, you know, ``We 
are not eating here today, folks. But, you know, I think this 
guy should be able to take my work.''
    I yield back, thank you.
    Mr. Coble. I thank the gentleman from Pennsylvania.
    The gentlelady from California, Ms. Bass--Ms. DelBene, I 
stand corrected.
    Ms. DelBene. Thank you. Thank you, Mr. Chair.
    Mr. Nimmer and Professor Lunney, if we were to clarify the 
making available right in the law, would that--do you think 
that would raise any First Amendment or free speech issues? 
And, if so, what do you think we might be able to do to avoid 
those challenges?
    Mr. Nimmer. I believe that a simple clarification that the 
copyright owners' distribution right includes making the work 
available does not implicate any First Amendment special 
interests that do not arise automatically in copyright law 
anyway. And so, I believe we do not need to pay special 
attention to that. It could be that if Congress wished to have 
a special surgical intervention in the peer-to-peer domain--for 
instance because of the spate of pornography lawsuits, if 
Congress wished to limit the protection for pornography, that 
might be a way to redress the problem that would then raise the 
question of what level of First Amendment scrutiny would apply 
and is there sufficient governmental interest to satisfy that? 
But the straight making available aspect of the distribution 
right I believe does not raise any special First Amendment 
concerns.
    Ms. DelBene. Professor Lunney?
    Mr. Lunney. I actually agree with Dave exactly on this 
issue. If you had passed a very narrow amendment, perhaps 
creating the presumption that a work made available in a 
sharing folder could be presumed to have been downloaded, so 
that it would be infringement under either interpretation of 
the existing distribution right. I don't believe that would 
raise any First Amendment problems. If you pass a general 
making available right, raising questions about whether a link 
might be an infringement of a public display right, or whether 
cloud computing or social networking, you are going to get into 
some First Amendment issues there.
    And I also agree that, if you try and go after copyright 
trolls by differentiating the copyright protection for porn 
versus other types of audiovisual works that may raise First 
Amendment issues.
    Ms. DelBene. So, if we feel that the making available right 
is implied in the law today, why do you think that the courts 
are having so much difficulty with this right now?
    Mr. Nimmer?
    Mr. Nimmer. I believe the elephant in the room is the 
amount of statutory damages. So that, when the young single 
mother is clearly culpable of copyright infringement and yet 
she could be held by the jury liable for $100 million in 
statutory damages, the courts are reluctant to apply the law as 
written. So, that is why I am urging Congress to have a global 
solution. At the same time that it reaffirms the making 
available aspect of the distribution right, that it would cabin 
statutory damages to a reasonable extent.
    Ms. DelBene. And, do you agree with Professor Lunney's 
statement earlier, that making the--or having explicit 
reference to a making available right would cause economic 
harm?
    Mr. Nimmer. I am not positive which aspect of Professor 
Lunney's statement you are looking at. But, I come at the 
economics very differently than he does. So, suffice it to say 
that it is a very interesting study. But, what it does not 
illuminate is how much music would there have been created in 
the last 10 years of lowering studio costs, had there not been 
peer-to-peer illegal file sharing.
    Ms. DelBene. And, Professor Lunney, do you think there is 
any way to define a making available right more specifically 
that wouldn't cause old cases to be reopened and the 
uncertainty that you talked about earlier?
    Mr. Lunney. Yeah, there certainly would be. If you just 
want to affect it in the distribution, the peer-to-peer file-
sharing context, you could create a presumption that a work 
that is made available in a share folder has been downloaded. 
You could even make it a rebuttable presumption if the 
defendant wants to come forward with evidence. But it will 
never get that far. It never gets that far in any of the 
existing cases. In the one case where it was raised, the Jammie 
Thomas-Rasset case, she was found guilty of copyright 
infringement the first time with a making available instruction 
on the distribution right that was retried after the district 
judge said, ``No, that is not right.'' She was still found 
guilty.
    Ms. DelBene. Thank you.
    I yield back my time, Mr. Chair.
    Mr. Coble. I thank the gentlelady.
    The gentleman from California, Mr. Issa.
    Mr. Issa. Thank you, Mr. Chairman.
    And, Ms. Griffin, I asked a lot of documents be placed in 
the record earlier. And most of them are related to the 
gentleman next to you, Mr. Malamud.
    It is an amazing thing to me that I came from a standard 
setting organization, Electronics Industries Association and 
CEA. And you couldn't have a high definition television, if we 
hadn't figured out what the standards were going to be. We 
wouldn't be arguing over capturing over digital broadcast, if 
we didn't have digital broadcast. Standards are extremely 
important.
    But, standards and laws are different. And I would like to 
concentrate somewhat on this end of the table.
    Mr. Malamud, I am going to read, just a shortest part of 
the Constitution for a moment, where it says to establish Post 
Offices and Post roads, Post Offices are next door. And it 
says, ``To promote progress,'' and I will skip over, ``of 
science and useful arts,'' for a moment. And limit it to--and 
of limited times, and I am just going to read how it relates to 
copyright, ``To promote the progress, for limited times, to 
authors.'' Okay? That is it. That is the Constitution. It is 
only a paragraph, ``To promote progress of science and useful 
arts by securing, for a limited time, to authors and inventors 
the exclusive right to their respective writings and 
discoveries.'' But that short one, ``To promote,'' ``to 
authors.'' Who authors a law?
    And that is my point. And it is the point of all of the 
documents I put in. If the State of Idaho, the State of 
Georgia, the State of Mississippi, if they produce a law, every 
single person who voted for it is an author. It doesn't belong 
to some entity, by definition. Isn't every law, in fact--and, I 
have got to tell you, Obamacare has people who do not want to 
be authors and others who, a few left, who do. But, on the day 
that it passed we were all authors.
    So, my question--and I am going to concentrate on this end 
and then open it up to the rest--is, in its rawest form, isn't, 
in fact, every single person who participates in the creation 
of a law or the inclusion, by association, of a standard in 
fact an author. And, therefore, if I am willing to have it 
released to everyone, as an owner of that copyright and an 
undivided owner, don't you ultimately have no possibility of 
protection? In other words, the State of Idaho is inherently 
wrong if they consider any part of a law required or mandated 
to be, in fact, eligible for copyright.
    And my point here--and Carl I am going to go to you first--
I have been in Congress for 13 years and about 8 days. The one 
thing I know is I don't need a copyright to promote politicians 
making laws. So, by definition, the ``promote'' being the basis 
for copyright, don't we inherently have a decision to make 
about whether or not laws or anything else which is included in 
a law by mandate has any right to a copyright at all? A 
fundamental--forget about what we do with this copyrighted 
material, is it really eligible for copyright?
    Mr. Malamud. Congressman Issa, thank you for that question.
    I think that is the crux of the matter. The VEC Corp., when 
it looked at whether the building code of Texas had the law, 
said that there is no incentive needed for the----
    Mr. Issa. Politicians will make laws, whether you----
    Mr. Malamud. Absolutely.
    Mr. Issa [continuing]. You just have to pay them per diem 
and they will show up.
    Mr. Malamud. And the standards bodies, I have never seen a 
standards body object to one of their documents becoming 
incorporated by law. That is often the case. I think that is 
especially crucial on public safety laws. Now, we may 
incorporate by reference too many things. And perhaps the 
guidance of this Committee could be used on that topic. But, 
for those that are crucial, for example the laws on testing the 
toxicity of water, is something that every citizen in West 
Virginia today wants to know, what those laws are and were they 
carried out properly.
    And I think that is the key point. You can't have it both 
ways. If the document is in fact the law, it has to be 
available. And I respect the rights of the standards bodies to 
develop a wide range of standards, but once one of those has 
become the law, then it needs to be available. Now, again, a 
standards body can say, ``Please do not incorporate this into 
law. We would prefer that this document not become the law.'' 
And that is perfectly acceptable. There are multiple standards 
bodies. There are several fire codes, several building codes, 
several plumbing codes and you will find immediately a group 
standing up and saying, ``Please designate mine to be the 
law.''
    Mr. Issa. And, Ms. Griffin, I am going to ask you the 
follow up that goes along this line, quickly.
    What Mr. Malamud just said is what I am trying to make a 
point on. If it is a voluntary standard, in fact it is 
available for copyright. I understand that. But, if it is 
incorporated into law, at that point, shouldn't you object to 
it being incorporated or recognize that you are waiving any 
copyright objections from the public having free and fair 
access to, essentially, a law that they must comply with?
    Ms. Griffin. Thank you, Congressman.
    I think the answer is incorporated into OMB, the policy of 
OMB A-119 and the NTTAA. And those policies and those laws 
dictate that a government agencies, Federal agencies 
incorporate voluntary consensus standards in lieu of 
government-unique standards whenever they are able to do so.
    Mr. Issa. Okay. But, OMB is nowhere enshrined in the 
Constitution. And it does not have explicit legislative 
authority. This is the Committee that must decide what can or 
cannot be covered under the promote and exclusive element of 
copyrighting. The rest of the panel is extremely important and 
we work on it all the time. But, in a digital age, narrowly, 
Mr. Chairman, the law and people's access to laws which they 
must comply with. Inherently this Committee has to decide 
whether that should be stripped of any and all copyright, to 
the extent that we have authority, which has nothing to do with 
what OMB thinks because, quite frankly, they think they can 
make laws without Congress getting up in the morning ever 
again. So, constitutionally, on what basis would you say that 
that has any grounding? Not what OMB thinks.
    Ms. Griffin. Well, let me tell you what the Second Circuit 
in the 19-----
    Mr. Coble. Ms. Griffin, if you could be brief--as briefly 
as possible, his time is expired.
    Ms. Griffin. Yes, but allow me to tell you what the Second 
Circuit and the Ninth Circuit said on that very point. In the 
PMI case that the Ninth Circuit said that, ``The due process 
requirement of free access to the law may be relevant, but does 
not justify termination of, and in this case it was the 
American Medical Association's copyright. There is no evidence 
that anyone wishing to use those standards at issue in that 
case had any difficulty in obtaining it.'' And that was the PMI 
case in the Ninth Circuit.
    The Second Circuit, in a similar case in CCH Info, said, 
``We are not prepared to hold that a State's reference to a 
copyrighted work is a legal standard for valuation results in 
loss of copyright. With--while there are indeed policy 
considerations that support CCC's argument, they are opposed by 
countervailing considerations. For example, a rule that the 
adoption of such a reference by a State legislator or 
administrative body deprived the copyright owner of its 
property would raise very substantial problems under the Taking 
Clause of the Constitution. Although there is, and I am jumping 
to the last sentence of that paragraph, ``Although there is 
scant authority for CCC's argument, Professor Nimmer's treatise 
opposes such a suggestion as antithetical to the interests 
thought to be advanced by the Copyright Act.''
    So, at the end of the day, it is a balance. It is a balance 
between the rights of copyright holders and the value that 
those copyrights bring to Federal regulations. As----
    Mr. Issa. Okay.
    Ms. Griffin [continuing]. I said earlier----
    Mr. Issa. Thank you.
    And, Mr. Chairman, I appreciate your indulgence. And I just 
want to go on the record that, in the copyright reform that we 
are considering as a Committee, in order to have my vote on 
final passage, we will have to rectify the ambiguity in the law 
so that every American has free access to every law that he or 
she must live under.
    Mr. Coble. I thank the gentleman from California.
    I thank the witnesses.
    There will be ample time, after the hearing, for exchanges 
between the witnesses and Members of the Subcommittee. So, 
nobody is being shoved off abruptly. Shoved off, perhaps, but 
not abruptly.
    I thank the gentleman from California.
    Mr. Jeffries, the gentleman from New York.
    Mr. Jeffries. Thank the distinguished Chair and thank the 
witnesses for their testimony.
    I want to start with Professor Lunney and try and get some 
clarity from or as it relates to some of your written testimony 
on pages 6 and 7. Bottom of page 6 you state that, as has been 
previously discussed, ``The purpose of copyright is not to 
maximize the revenue of the music industry or copyright owners 
more generally,'' is that correct?
    Mr. Lunney. Yes, sir, I do take those statement from 
Supreme Court decisions setting that forth.
    Mr. Jeffries. Right.
    Mr. Lunney. Repeat them.
    Mr. Jeffries. Now, is it fair to say that copyright owners 
or content creators are entitled to reasonable compensation?
    Mr. Lunney. I think we would have to sit down and define 
what ``reasonable'' is and that would be a more difficult task 
than you might imagine.
    Mr. Jeffries. So, you don't think--is it your view that 
copyright owners or content creators are entitled to any 
compensation whatsoever?
    Mr. Lunney. No, it is not my view of that sort at all. And 
I would be happy that they would be very well paid. My only 
perspective is that, in terms of the constitutional purpose, 
our focus should be on the production of output. Now, 
obviously, a well-compensated artist and musician class is 
probably important for long-run copyright output of creative 
works----
    Mr. Jeffries. Okay. Let us focus on the Constitution. I 
appreciate that observation you just made. So, the relevant 
provision, obviously, is Article 1, Section 8, Clause 8, which 
reads, ``To promote the progress of science and useful arts by 
securing, for limited times, to authors and inventors exclusive 
right to their respective writings and discoveries.'' Now, the 
progress of science part of that provision obviously gives 
Congress, I believe, the ability to create a robust patent 
system. Is that correct?
    Mr. Lunney. It is actually, ``To promote the progress of 
the useful arts,'' is for patent. Science is for copyright.
    Mr. Jeffries. So, you have defined the--and what would be 
the basis of that conclusion? Does that stem from your 
evaluation of writings from the Founding Fathers? Or----
    Mr. Lunney. The Supreme Court has said that on a number of 
occasions. The clause has a parallel structure, ``To promote 
the progress of science and the useful arts, for authors and 
inventors, their writings and discoveries.'' Each of those 
three pairs of words the first word is for the copyright, the 
second word or phrase is for patent.
    Mr. Jeffries. And so, the Supreme Court has defined this 
standard, I believe, to encompass to legitimate ends, correct? 
The first would be encouraging the creation of new works, is 
that right?
    Mr. Lunney. That is correct.
    Mr. Jeffries. And then the second would be to encourage the 
dissemination of existing works, correct?
    Mr. Lunney. That is what the court said.
    Mr. Jeffries. So now, as it relates to encouraging the 
creation of new works, is it fair to say that providing 
artists, content creators, with the opportunity to benefit from 
the fruits of their labor in some meaningful way serves the 
purpose of encouraging the creation of work?
    Mr. Lunney. As a general proposition, I have no 
disagreement with that statement.
    Mr. Jeffries. Okay. And what would you disagree with, as it 
relates to that statement?
    Mr. Lunney. Well, it is always a question of how many 
rights and how broad the rights need to be. Do we need to 
address every specific instance? In the academy we talk about 
leakage in the copyright system. That is instances where 
individuals or companies copy and yet they are not sued or it 
would not constitute copyright infringement. And this leakage 
is a fairly important part of the system.
    So, trying to determine whether any given instance of 
copying, some are reasonably straightforward--I would agree, I 
think we would all agree, that a commercial competitor who 
takes a copy and sells it for less in the same marketplace is a 
copyright infringer. I think we would all equally agree that 
someone who takes Shakespeare's Romeo and Juliet and creates 
West Side Story, would probably ought not be a copyright 
infringer.
    Mr. Jeffries. And am I correct that, you know, it is your 
position, as it relates to determining the measure of what 
happens when meaningful or reasonable compensation is not 
provided, is that we should just simply allow for the illegal 
dissemination or reproduction or sharing of works and then 
evaluate whether content production has decreased? Is that your 
position?
    Mr. Lunney. No, I am not advocating sort of randomly 
changing the law to see what happens. As a social scientist I 
might be interested in that experiment.
    But file sharing gave us an opportunity to see what might 
happen. It was formally illegal, but it never the less happened 
and revenue to the music industry, even considering all the 
revenue sources they have, definitely went down. So, what 
happened to output? And what does that tell us about whether we 
had not enough copyright, too much copyright or just the right 
amount? And, if revenue goes down sharply and your copyright 
protection effectively falls and yet you seem to get as much or 
more creative output, for me that suggests that we may have had 
too much copyright to begin with.
    Mr. Jeffries. Should we be concerned about the impact on 
the economy, in that scenario?
    Mr. Lunney. Well, that depends on what you mean by the 
impact to the economy. For me as an economist, the fact that 
some money doesn't flow to the music industry, it is going to 
remain in the consumers' pockets, it is going to be spent 
elsewhere in the economy. Jobs lost in the copyright sectors 
will presumably be picked up, if consumers spend that money on 
education or employment or healthcare, in those sectors of the 
economy.
    Mr. Jeffries. Lastly, Professor Nimmer, you referenced 
earlier in your testimony that facts change on the ground. And 
I believe you may have mentioned it in the context of 
misinterpretation of a line in a treatise that you had 
prepared, which preceded the development of Napster. We have 
also seen the advent of streaming, cloud computing as another 
example. Technology changes over time. That is a wonderful 
thing. I think many of us would agree.
    The issue is, you know, how do we accommodate technological 
changes as they move forward but also create the certainty in 
the law and the copyright protection for the creative 
community? Do you have any words for us, on the Committee, in 
terms of how to strike that appropriate balance, if that is the 
balance we should be seeking?
    Mr. Nimmer. I certainly do agree that it is the right 
balance. At the end of my written statement I reproduced one 
page from 50 years ago. It is from the Register of Copyrights 
written in 1965. And it said, ``We don't know what the law will 
be 10 or 20 or 50 years from now,'' and they are writing 49 
years ago, but they said, ``It is becoming increasingly 
apparent that transmission of works by linked computers may be 
among the most important means.'' And the final statement was, 
``We believe the day has passed when any particular use of 
works should be exempted for the sole reason that it is not for 
profit.'' So, those are very wise words to guide us as we go 
forward. This was written at the culmination of 10 years of 
study. And I think it beautifully encapsulates much of the 
philosophy that needs to go in. So, that would be my watch word 
for Congress on a going-forward basis.
    Mr. Jeffries. Thank you.
    My time is expired. I yield back.
    Mr. Coble. Well, I thank the gentleman from New York.
    Professor Lunney, I owe you a belated apology. I previously 
mispronounced your surname. You are not looney. I stand 
corrected.
    Mr. Lunney. I always tell my students it rhymes with funny 
and I am not crazy. [Laughter.]
    Mr. Coble. And we will--and hold me harmless for my 
mistake.
    The gentleman from Georgia, Mr. Collins is recognized for 5 
minutes.
    Mr. Collins. Thank you, Mr. Chairman. I appreciate that.
    And, Mr. Lunney, I think inadvertently you may have summed 
up this entire discussion. From my perspective, and many in 
this room know this, I believe that copyright protections and 
other protections not only, at the proper balance, strike 
innovation and help innovation, but also protect innovation and 
grow apart.
    And you made a comment in the midst of an exchange when you 
said in--with my gentleman from Pennsylvania, you said, ``It is 
just a poet.'' And that struck me and it might come strangely 
to others. ``Just a poet''-- poets have changed the world. And 
their words mean something. And their copyright protections 
have meant something. And I think, for me, I think that sums up 
this entire hearing, that there needs to be a proper balance 
struck. But, when you just say, ``It is just a poet,'' ``it is 
just a writer.'' Was Hemmingway just a writer? Was Dickens just 
a writer? Was Clancy, even new, just a writer? That is the 
heart of what we are talking about here today. And it was not 
meant any way except you just sort of summed it up in an 
offhanded way. But I think that is really where we are at 
today. But, I am not with you. I am down here with Mr. Malamud.
    I want to continue off the discussion that my friend from 
California discussed, that is the definition of law. And we do 
have an interesting complement here because I am from Georgia 
and you have let us just say a difference. And I appreciate all 
of what you do. I think what you do is really a service, a 
public service.
    I have a problem with where we are at right now, a little 
bit, with what we are defining. And, in your letter to the 
Senator McCune, Speaker Ralston approached him; Schaefer in my 
State of Georgia, you said, ``The official code of Georgia 
annotated, every component of it, is the official law.'' I want 
to explore that a little bit. And I just have some short 
questions so we can get to it a little bit more. What is an 
annotation?
    Mr. Malamud. An annotation can be anything from some 
freelance editorial comment by some commercial provider to the 
comments by the legislative counsel or the State itself as to 
the import of the code.
    Mr. Collins. Thank you.
    Is an annotation a statute?
    Mr. Malamud. Well, now, I am really glad you asked that 
question because that actually comes to the crux of one of the 
problems that we face and why I think this Committee might want 
to deal with this issue.
    I am just a computer guy. I am a law school dropout. I want 
to put all 50 State laws online. If you go to the official----
    Mr. Collins. Well, let us stop right there.
    Mr. Malamud. Okay.
    Mr. Collins. I have no problem there, the law itself. I 
think the problem we are getting into is the definition. That 
is why I said, ``What is an annotation?'' And, if you go to the 
free public website, it took three clicks to get there on the 
Georgia legislative page, of which I was a member for 6 years. 
All you got to do is go. And you actually get the free Georgia 
code annotated, in which it says the annotated code is 
copyrighted. But, it makes specific reference to say that law 
or any other recognized by the law is not copyrighted. It is 
the work of the annotation, which is more than the law.
    Mr. Malamud. But, Congressman, the terms of use of that 
free site prohibit me from making a copy of that. They--it 
specifically prohibits all public and nonprofit----
    Mr. Collins. Well, what it prohibits you from doing is 
taking a book and copying it and turning it in as your own 
work. And when I was in school that was called cheating or 
plagiarism or however else you want to describe it.
    And so, I mean, I think that--look, the questions are 
coming here--the annotation part is really where we are getting 
here. And you make the claim, and I have read your book here, 
and you made a comment. It says that, ``States such as Georgia, 
Idaho and Mississippi,'' with all due respect to Idaho and 
Mississippi I am not as concerned with them right now, ``Have 
spread fear, uncertainty and doubt sufficient to throw a deep 
chill on their order.'' Now, that makes great prose. And you 
are a good author. And if you wrote the part of this, then you 
should have it protected. [Laughter.]
    Mr. Malamud. Although this is----
    Mr. Collins. But if----
    Mr. Malamud [continuing]. I actually copyrighted it.
    Mr. Collins [continuing]. You put it out to everybody that 
is your choice. Okay?
    But you are not--and frankly, I believe you are being 
disingenuous here, ``to throw a deep chill,'' when you can go 
three steps and get it for free? I think that the part that I 
am concerned about here is really it is the bigger step of 
taking part of--which we all recognize the law, okay, the 
statute--``Does the gentleman from California make,'' what we 
vote on--that code, that actual non-annotated, non-commented 
on. I mean, to say that an annotation is the law would be about 
like taking this Committee memo and saying it is a part of the 
Federal code. That is just not true. It is written by someone 
else. It is input by someone else.
    So, the question really comes, from me, is the way that it 
was handled. You are just taking off--it is already free. The 
issue was there. We have already discussed that. But there is a 
part that is copyrighted because it actually was the work of 
someone else. You are right. We need to make sure that 
copyright laws, and as all these others have discussed, and in 
the issues there needs to be a proper balance. I just believe 
here, in this issue, especially taking the State of Georgia and 
others and claiming that they are chilling innovation, they are 
chilling this, I think is over the top to make a point about 
something that is not really true. And that being that the law 
itself we will not negotiate, that is part of the public 
record. But, if I have somebody that if I have wrote my 
annotation and I have done the work, then we respect the work. 
We don't go out and say, ``Well, I have got the book. Let us 
copy it. Send it up,'' just simply because I don't want to do 
the work of annotation. And I think that is the problem I have.
    And with that--we will have many more conversations. I 
appreciate your work. I appreciate the rest of them being here. 
But, I think that goes back to the heart of it here. If you do 
the work, the protection is there, not taking a shortcut 
because you just simply don't want to do the work.
    Mr. Chairman, I yield back.
    Mr. Coble. I thank the gentleman from Georgia.
    The gentleman from New York, Mr. Nadler?
    Mr. Nadler. Thank you, Mr. Chairman.
    Let me start by thanking the witnesses for their testimony 
and the Committee Chair for bringing these issues before the 
Committee because I do believe that we have to do a better job 
of protecting content owners, artists, musicians and creators 
in making sure they are appropriately compensated for their 
work.
    But I want to ask more broadly about protecting copyright 
today. Mister--Professor Lunney, you mentioned there is no need 
to make explicit the make available right and that it would not 
have an effect on curbing online theft. You mentioned that with 
BitTorrent users, users are uploading and downloading 
simultaneously and they are making thousands of illegal copies. 
The law has already made this practice illegal, but it has not 
stopped it, as we all know. Content owners have tried to chase 
their works across the Internet, which is not practical, not 
effective.
    We heard Chairman Goodlatte mention that Google has now 
received its hundred millionth takedown notice. And obviously 
someone observed that the millennium--the Digital Millennium 
Copyright Act is broken. What would you suggest, without 
reprising SOPA or getting into that, as an alternative way to 
protect copyrighted works on the Internet? Is there any?
    Mr. Lunney. Well, I mean, a number of us in the academy 
have explored the idea of having a levy where you----
    Mr. Nadler. What?
    Mr. Lunney [continuing]. A levy would be a system where you 
authorize consumers to file share as much as they would like, 
and then you add a charge to their Internet bill each month and 
that money goes into a pot and it is redistributed to the 
copyright owners whose works are being file shared. I am not 
certain there is any other solution that is going to----
    Mr. Nadler. Wait. Now, let me just explore that for a 
second.
    Mr. Lunney. Sure.
    Mr. Nadler. You set up an ASCAP-type system, in effect, 
like as we do for songs.
    Mr. Lunney. Yes.
    Mr. Nadler. Where you can download it, Google doesn't get a 
takedown notice, but does note that you downloaded it. And you 
pay into--well, who pays into this fund, anybody who goes on 
the Internet?
    Mr. Lunney. In a--it would basically be a surcharge added 
to your Internet bill, would be one approach.
    Mr. Nadler. I never listen to music, let us say----
    Mr. Lunney. Well----
    Mr. Nadler [continuing]. Why should I----
    Mr. Lunney [continuing]. This is one of the central 
concerns with the levy approach. It is unfair to people who do 
not file share. But, it would be a mechanism for compensating 
authors and copyright owners for the file sharing that is going 
to go on.
    Mr. Nadler. So, anyone who accesses the Internet would pay 
a levy, which would be administered by some new organization or 
old organization. And the funds would go, based on someone's 
assessment of how many people listen to my song?
    Mr. Lunney. Well, how the funds would be distributed would 
have to be decided. But, we could use a--some sort of sampling 
system, similar to ASCAP or BMI or the investigators that 
currently tracks downloads in order to sort of bring actions to 
get a subpoena----
    Mr. Nadler. It is a very interesting--let me ask mister--
Professor Nimmer, what would you--how--what is your reaction to 
this interesting suggestion?
    Mr. Nimmer. My reaction----
    Mr. Nadler. Besides saying that it is an interesting 
suggestion. [Laughter.]
    Mr. Nimmer. Yeah. Well, in that case, you have preempted my 
first sentence. [Laughter.]
    I put in footnote 69 of my written statement the citation 
to Mr. Netenal's article called Impose a Noncommercial Use Levy 
to Allow Free Peer-to-Peer File Sharing, and that is one of 
many solutions Professor Lunney himself has written on the 
issue.
    The problem with these proposals, there are feasibility 
problems, there are treaty compliance problems. So, I do not 
wish to prejudge it at the outset. It is a fascinating vehicle. 
It requires a lot of study. The devil is in the details, as 
always. But, it is a completely different way of looking at the 
issue and it deserves to be investigated.
    Mr. Nadler. You said there are a number of others. Are 
there other major suggestions available?
    Mr. Nimmer. Yes, I think----
    Mr. Nadler. Again, without getting into the whole mess we 
had with SOPA.
    Mr. Nimmer. Professor Fischer at Harvard has proposed 
something that I will basically call an ``entertainment tax,'' 
where the government could decide how much money has been made 
through all the arts and allocate that and allow free sharing 
of culture. I am almost lampooning his book-length proposal. 
But, in essence, that is what it is.
    Mr. Nadler. It might be interesting, if you take out the 
word ``tax,'' Professor---- [Laughter.]
    Mr. Nadler [continuing]. Which has a certain ring around 
here.
    Professor Schultz would you comment on any of this?
    Mr. Schultz. Yes. I think the levy idea is just a terrible 
one.
    Mr. Nadler. You said what?
    Mr. Schultz. It is a terrible idea.
    Mr. Nadler. Okay, because?
    Mr. Schultz. You have the government--you are inviting the 
government to set prices. And a fundamental concept in 
copyright law, in any property right, is that the one--the 
owner gets to decide the terms on which it is alienated. And, 
when you take away that liberty, you take away, first of all, 
the value of the price signal. We no longer----
    Mr. Nadler. And this, your comment now, would apply to a 
private ASCAP-type thing as well as to the----
    Mr. Schultz. No, not to a private ASCAP thing, because to a 
system like that people enter it voluntarily.
    Mr. Nadler. Well, what would your comment on that be?
    Mr. Schultz. So, in a system like that, sure. There are 
plenty of collective rights organizations, when they are 
privately entered into, they solve a lot of problems. But, it 
is essential they remain private otherwise the government----
    Mr. Nadler. Okay.
    Mr. Schultz [continuing]. Determines the price----
    Mr. Nadler. Before my----
    Mr. Schultz [continuing]. A file----
    Mr. Nadler [continuing]. Before my----
    Mr. Schultz [continuing]. Might receive.
    Mr. Nadler. Okay.
    Mr. Schultz. It----
    Mr. Nadler. No, no, no.
    Mr. Schultz. Yeah.
    Mr. Nadler. Mr. Love or Professor Love wanted to comment.
    Mr. Love. I mean, we have had a long history of use of 
compulsory licenses where markets aren't really functioning 
very well and often connected with new technologies. So, I 
don't think it is really beyond pale that you move to some kind 
of a compulsory licensing. And this is--the twin issues, you 
touched on the issue of how you pay the money out. I think that 
the first instance people look at is the sort of sampling thing 
that Professor Lunney has referred to, in terms of 
distributing. A different approach is to have the consumers be 
able to pick the collection society that they think rewards the 
artist in the way that they prefer. So that, in effect, the 
consumer is, in a way, becoming kind of a patron of the arts. 
Mandated to be a patron, but----
    Mr. Nadler. We have several operations doing similar things 
and the consumer chooses one.
    Mr. Love. Yeah, you would pick. Like, perhaps, one would 
give all of their money to Madonna and Britney Spears, and 
another one would sort of do it a little bit differently. And 
you would be able to pick the entity that you thought supported 
the art in the way that you preferred. That is called the Burn 
Bland model, which is a different model than the sort of 
sampling model. But there are these alternatives and they are 
usually connected with some kind of----
    Mr. Nadler. These sound like things, you know, to explore. 
But, I see my time is expired.
    I thank you all.
    Mr. Coble. I thank the gentleman from New York.
    The distinguished gentleman from Texas, Mr. Farenthold?
    Mr. Farenthold. Thank you very much.
    And, let me ask Professor Lunney, if we were to codify a 
make available right, what would it do that we can't do 
already?
    Mr. Lunney. Well, in the file sharing context, as I said, I 
don't think it would change what is going on in that arena at 
all. If it makes it marginally easier to pursue file sharers, I 
don't think it is the business decisions a new round of----
    Mr. Farenthold. Well, let me ask Professor Nimmer. Other 
than making it easier for a plaintiff, what other protection 
are we going to provide creators?
    Mr. Nimmer. It would--I think it would--the essence is to 
make it easier for the plaintiff and thereby to comply with the 
U.S.'s treaty obligations----
    Mr. Farenthold. So----
    Mr. Nimmer [continuing]. And to resolve conflict in the 
case law.
    Mr. Farenthold. So, how many bad-guy infringers are getting 
away now that wouldn't be getting away, if we were to do this?
    Mr. Nimmer. Obviously, I don't have the empirical figures 
with me.
    Mr. Farenthold. I mean, do you realistically think there 
are any?
    Mr. Nimmer. Well----
    Mr. Lunney. No one who has been sued or brought into the 
legal process that has gotten out, as far as I am aware, 
because a download could not be proven.
    Mr. Farenthold. All right and let us talk a little bit 
about make available. We talk about it in a traditional upload 
context. We say, alright you put it in a shared folder, you 
have made it available. Well, have you made it available if you 
link to it? Say you are Google and you are a search engine and 
you haven't posted anything yourself, but you link to it. I 
mean, a broad definition of make available--obviously, we could 
craft the statute however we want. I mean, you could 
potentially get, you know, non---what I would consider, non-
guilty parties there.
    Professor Lunney?
    Mr. Lunney. Well, the worst part in my mind is we wouldn't 
know. If you adopt a broad, general making available right, we 
wouldn't know until we litigated it whether linking would be 
infringing or the----
    Mr. Farenthold. Yeah. And so, would a broad making 
available right, if I took my copy of, you know, the latest 
Brad Thor novel I bought and read and donated it to the 
library, would I be making that available? And have we 
completely undermined the first sale doctrine there?
    Mr. Lunney. In both the treaties and in the distribution 
context, and I think Professor Nimmer would agree with me, 
there is an exception where the making available right can 
still be limited by the first sale doctrine or exhaustion.
    Mr. Farenthold. And what about making available on a less 
public basis? I have iTunes in my house and there is a shared 
folder on there that I have made available to my television set 
and to my other computer and probably my daughter's television 
set and my wife's computer. You know, where do you draw the 
lines within there?
    Mr. Nimmer. Good.***
---------------------------------------------------------------------------
    ***Addendum:
---------------------------------------------------------------------------
  The question posed relates to linking. Congress was concerned about 
linking in 1998, when it drafted the Digital Millennium Copyright Act. 
For that reason, it set up a special safe harbor for online service 
providers, to immunize their linking activity from liability. See 17 
U.S.C. Sec. 512(d). Clarifying the scope of the distribution right, and 
its making-available component, would in no way affect the operation of 
that safe harbor. Furthermore, addressing the statutory damages issue 
could provide added insulation against disproportionate liability.
    The danger here is in a standalone make available right. 
And if Congress were to pass a new seventh right under 
copyright, which is making available, all the dangers that you 
have cited would face us. However, I believe we can avoid all 
those dangers, including the danger of sharing with your wife 
and daughter, if we simply define the copyright owners' public 
distribution right to include making available. When you 
include your wife and daughter, that is not an act of public 
distribution, so you don't need to worry about the----
    Mr. Farenthold. All right. I have got to--I want to hit 
each of the topics here. So, I need to go to Professor Schultz.
    You know, I am a former broadcaster and I understand how 
tough it is for local broadcasters. But you look at something 
like is going on with the Aereo case, don't the broadcasters 
want as many eyes as possible viewing their newscast so they 
have more value to sell to advertisers?
    Mr. Schultz. Well, that is a good question. The advertising 
revenue is one component of how they make a--how they 
constitute their business. But, there are other components, 
including the retransmission fees that are essential to 
supporting local broadcasting.
    Mr. Farenthold. And, you know, so I guess the other issue 
then becomes, at what point to I have to negotiate a deal with 
all of my local television stations to put a sling box at my 
house so I can watch the Corpus Christi newscast when I am in 
Washington, D.C.?
    Mr. Schultz. You absolutely don't have to negotiate.
    Mr. Farenthold. I just want to make sure it doesn't go that 
far.
    And then let us--let me go down here to the other end of 
the table, real quickly speaking. And I am going to have to 
agree that once something is enacted and is in a law, the 
public ought to have a right to get to it free. Don't the 
standards setting organizations, Ms. Green, collect membership 
dues and generate revenue from the members who participate?
    I mean, I understand, in the old days, it cost money to 
print up the books and distribute it. But, now the marginal 
cost of making this information available over the Internet is 
basically none. And there is zero value to some of these--to a 
light bulb that doesn't fit the light bulb standard, to use 
your analogy. Shouldn't the private sector that benefits from 
these, pay for them, and the public should have them free. Why 
shouldn't I be able to print out a copy of the electric code to 
make sure the electrician hooked the green wire up to ground in 
my house?
    Ms. Griffin. Well, a couple of things. Thank you for the 
question.
    First, the SDOs have different business models. Many do 
base their revenues on membership fees, but many don't. And 
those that don't are largely not-for-profit, mission-generated 
organizations that keep their barriers to entry low. That is, 
they have low entry fees, they have low membership----
    Mr. Farenthold. Right.
    Ms. Griffin [continuing]. Fees for the very reason that 
they can use the sales derived from--they use the revenues 
derived from the sale of----
    Mr. Farenthold. I see my time is expired. I would love to 
sit down with you and we could probably debate this for an 
hour. And it is actually something I would like to do, because 
I do think it is important. That, you know, I think you may 
waive your right to that, once you fight to get it enacted into 
law or it gets enacted into law. It is something we can talk 
about when we have more time.
    So, Mr. Chairman, I will yield back.
    Mr. Coble. I thank the gentleman.
    There will be ample time for us to revisit this time and 
again, I am sure.
    Mr. Johnson, the gentleman from Georgia?
    Mr. Johnson. Thank you, Mr. Chairman.
    Mr. Chairman, I started practicing law about--well, back in 
1980. And, in going into the law libraries of Georgia State 
University to get ready for cases and to represent various 
folks in my general practice, I recall coming upon doctor--or 
Mr. Nimmer's books. And I can't believe that he is sitting here 
looking as young as he looks. I thought he would be probably 
about 90 years old by now.
    But thank you for your contributions, sir.
    And I have long supported strong copyright protections as 
the backbone of innovation, creativity and public good. But, 
materials created by the U.S. Government and State governments 
do not deserve copyright protection, nor have they ever 
received it. In 1980--in 1888, the Supreme Court held, in Banks 
v. Manchester, that there has always been a consensus that 
judicial opinions are in the public domain because the work of 
judges binds every citizen, and is and should remain free for 
publication to all. Since then, courts have continuously upheld 
this understanding that the law, be it State or Federal, is in 
the public domain. Section 105 of the Copyright Act reflects 
this view, specifically denying copyright protection to 
statutes and regulations.
    At its core, this issue touches on the American ideal for 
justice that we must know the laws that govern us. This right 
is fundamental to the rule of law that underpins our democracy, 
particularly when that concept of ignorance is no excuse 
pervades our process. It is also central to upholding our 
system of checks and balances, by holding Congress accountable 
for the legislation it passes or fails to pass. As we review 
copyright protection, in anticipation of the next generation--
or, excuse me, the next great Copyright Act, we must continue 
to protect American's access to laws and justice by protecting 
access to public materials in the public domain.
    Mr. Malamud and thank you for appearing here today before 
us. I want to take this moment to thank you for your work 
making public law accessible and known. It is easy to take for 
granted how important public databases are in our increasingly 
digital democracy. Unless public documents are digitized and 
available, they are often out of reach of many.
    In your written testimony, sir, you note that you are 
currently publishing official State and municipal codes. As a 
former commissioner in DeKalb County Georgia, I appreciate the 
importance of private citizens working to improve local 
communities. What is the benefit of making bulk public data 
available for municipal governments? And, I will add to my 
comments the fact that, when you want to, if you are a citizen 
of the State of Georgia and you want to go and look up a code 
for a local political subdivision, it is very nice to be able 
to go online and be able to get that information. But, what is 
the benefit of making bulk public data available for municipal 
governments?
    Mr. Malamud. Thank you for your comments, Congressman 
Johnson.
    The issue we have with the Georgia code, as it currently 
is, is you can't get the bulk data. You cannot go to the free 
Web site and download the whole thing and make it better. What 
happens when bulk data becomes available is volunteers, some 
commercial operations, but often simply citizens will go in and 
make the codes significantly more accessible, work on modern 
platforms. This happened in the District of Columbia just 
recently, in which the copyright was waived on the District of 
Columbia code. Several volunteers came in and they have 
developed a vastly better version of the D.C. code that informs 
citizens in a better way. So, by having the bulk data 
available, we encourage citizen participation in the process of 
informing each other. And that is why we care so much about, 
for example, the official code of Georgia.
    Mr. Johnson. How have local governments responded to making 
municipal codes widely available?
    Mr. Malamud. We have had significant pushback at the State 
level. At the city level they are welcoming us with open arms. 
The City of Chicago, I recently stood up with some former staff 
members from Congressman Issa, former Obama White House 
officials, both volunteers. We stood up with the city clerk of 
Chicago and unveiled a new Chicago code. San Francisco has 
recently revamped their municipal code. There are about 2,000 
municipalities that are about to have better municipal codes 
available because of the efforts of these volunteers.
    Mr. Johnson. Thank you.
    My time is expired, so I will yield my remaining time back.
    Mr. Coble. I thank the gentleman from Georgia.
    I am told, folks, that there will be an imminent House vote 
before--imminent, whatever that means. I hope we won't have to 
detain our witnesses.
    So, with that in mind, I recognize the gentleman from 
Florida, Mr. DeSantis?
    Mr. DeSantis. Thank you, Mr. Chairman.
    Mr. Malamud, I am assuming you agree with the Veeck v. 
Southern Building Code case?
    Mr. Malamud. Absolutely.
    Mr. DeSantis. I will come to that. What about the two 
cases, the circuit cases, that--we have the amicus brief here 
in our stuff that were discussed involving, one was the AMA 
codes and the other was the used car Red Book. And, in those 
instances, the courts found that there were copyright 
protections. So, what is your opinion on those cases? Do you 
agree with the outcome in those cases?
    Mr. Malamud. So, I am not a lawyer. I am just a citizen. 
But, my take on that is that the Veeck decision was about a 
crucial public safety code that had been incorporated into the 
law. Whereas the other cases were about like medical codes that 
needed to be used by doctors. And it, to me, was--the 
distinguishing factor was the extent that the public safety was 
at stake. And also, if you look at the building code, they all 
begin with a sample ordinance of incorporation, ``We the people 
of--insert name of jurisdiction here--do hereby adopt this 
code.'' So this was meant to be the law. And, to me, that is 
the difference between those cases.
    Mr. DeSantis. And so, you think that it does--just the fact 
that government may have some type of administrative scheme or 
program, that something is referenced, whether it is a Red Book 
or something, you do see the distinction between those 
situations and one in which the law is adopted verbatim from 
one of the publications?
    Mr. Malamud. When I post a public safety standard, I look 
for one that has been explicitly and specifically incorporated 
by reference, as opposed to casually. And, in fact, we look at 
State codes and often they will mention something in passing 
and we keep our hands off those. But, when it becomes part and 
parcel of the law then, to me, the fact that it happened to be 
an external document is no different than if the State had 
authored that themselves.
    Mr. DeSantis. And, Ms. Griffin, I guess, what is your 
position on Veeck v. Southern Building Code? Do you think that 
was incorrect?
    Ms. Griffin. I think there is a sharper distinction to be 
drawn between Veeck on the one hand and the two circuit court 
cases that I cited on the other. Veeck was a very unique 
situation and it was a case that was limited to very unusual 
facts. In that case, the model code writer wrote the code with 
the specific intent that it be incorporated word for word into 
the law. It was, in fact, incorporated word for word into the 
law. And the defendant in that case copied the law, qua law, 
and not the model code. Under those circumstances the Fifth 
Circuit said that the--as the law, that these--this content 
loses its copyright protection. But, the court was quick to 
point out that it was a very limited case, that it did not 
apply to what they called ``extrinsic standards,'' that those 
are standards that are incorporated by reference into law, like 
the standards in the Second Circuit and Ninth Circuit cases. 
And so, I think that that makes Veeck a very limited holding 
and limited to its facts. How that might be decided today, it 
is unclear to me.
    Mr. DeSantis. Well, how--and I know they use these model 
code in different areas of the law. How often do they just 
adopt completely verbatim, like what happened with the Veeck 
case, versus--I mean, obviously, legislators can use some of 
these model codes as guidance. They don't have to adopt it all. 
I mean, is that--that is more of a unique case, you are saying, 
when you are adopting everything wholesale?
    Ms. Griffin. Personally, I am not--you know, my 
organization is not a standards developing organization. And I 
don't have statistics at hand as to how it works. I know that 
some code developers enter into cross licensing agreements, for 
example with the governmental entity, such that the code could 
be adopted but there is a cite in the regulation back to the 
standards developing organization's Web site for the sale of 
that. I think there are very different kinds and multiple 
opportunities for dealing with that situation.
    And I think that is one reason why NARA has said, in the 
context of its recent evaluate of this, ``let us leave this to 
the Federal regulators and the SDOs to come up with a way to 
make access reasonable.'' Because, at the end of the day, it is 
about access. And it is about whether the public has access to 
the standards, not how much they cost or if they cost 
something, but if they have access.
    Mr. Malamud. May I very briefly, when the Veeck decision 
was appealed to the Supreme Court, the Solicitor General came 
in and suggested that the Veeck decision was good law and that 
the Supreme Court should deny cert and the Supreme Court 
followed the Solicitor General's recommendation.
    Mr. DeSantis. Right.
    So, Ms. Griffin, just in terms of, as these standards and 
codes are developed by different associations or whoever is 
involved with that, I guess what is the risk for the viability 
of that without copyright protection?
    Ms. Griffin. Oh, it is a huge risk to the standards 
developing organization. If they were not permitted to derive 
revenues from the sales of standards, then they would not be 
able to fund operations. And those operations include, as I 
said earlier: providing the administrative support for the 
development of standards to ensure that all reasonably and 
materially interested parties are sitting at the table, to make 
sure that consumers are at the table. No one will pay for that 
but the standard developing organizations who are mission-
related and not-for-profit organizations. And they are able to 
do that how? By selling the standards and using the revenues.
    If, by contrast, the government was to take that process 
away, the government would have to provide that expertise. The 
government would have to provide that administrative support. 
And ultimately, the taxpayers would pay for that. So, I think 
it would--the change would result in a very profound and 
detrimental change to the way that standards are developed in 
this country.
    Mr. DeSantis. Thank you.
    I think my time is expired and I will yield back.
    Mr. Coble. I thank the gentleman.
    The distinguished lady from California, Ms. Lofgren?
    Ms. Lofgren. Thank you, Mr. Chairman.
    I will be brief, because I want to make sure that my 
colleague, Ms. Jackson Lee, also has an opportunity to 
participate.
    You know, as I have listened to some of these proposals, it 
seems to me kind of interesting that people seem to have 
forgotten our experience with SOPA just a year ago. I don't 
think--and, I mean, if someone feels differently, please speak 
up--that the American public's attitude toward SOPA has done a 
U-turn in the year, you know, that has happened since then. And 
the idea of the performance make available proposal really just 
goes in the same direction we were going there. That is a non-
starter, in my opinion. I certainly value getting viewpoints 
and academic discussion, but it is not going to happen.
    I think one of the things that has been raised, that we 
should review, is the issue of statutory damages. And when you 
take a look at some of the really outrageous things that have 
happened with statutory damages, I think of the case of the 
single mother. The RIAA brought a case where a jury awarded 
$1.5 million against this woman for downloading 24 songs with 
no indication that she had ever even shared them, as a matter 
of fact. Now that was reduced to 54,000 because of the 
disproportionate nature of the statutory by the judge. But, to 
have that kind of statutory scheme is irrational and it needs 
to be changed.
    And I think back also at the orphaned works discussion. And 
I spent a long time trying to work on that and finally gave up 
along with the other Members of the Committee because of the 
intransigence of some of the participants. But, I think one of 
the things we ought to take a look at, you know, is what the 
damage that we did by extending the term, the copyright term. 
We now have a copyright term that basically is a century and a 
half. And we have aggravated the issue of orphaned works by 
doing so. Unfortunately, you know, you wish you could go back 
in time and undo some votes. And that is one I was convinced as 
a, I think I was a freshman, that the WIPO Treaty required that 
vote. And I now know that that was not the case. I wish I could 
undo my ``yes'' vote on the Sonny Bono Copyright Term Extension 
Act.
    Finally, I think the real value of this hearing is the 
issue raised about a standards and public law. I was going to 
ask unanimous consent to put into the record the standard test 
methods for lead in water, I don't need to do that because my 
colleague, Mr. Issa, has already done so. But, it seems to me 
very clear that you cannot have secret law. If you are going to 
require people to adhere to a standard, that has to be in the 
public domain. And I am sympathetic, I understand, you know, 
there is a business model set up. But you can't allow the 
business model to trump the rule of law.
    And, you know, I am mindful of the discussion that we had 
about publicly funded research. And we had a hearing here a 
couple of years ago. And the nonprofit societies that are 
basically funded by the--for their peer review process, which 
is essential, by the publisher. And yet--and that is a business 
model that actually was deleterious to the public's right to 
have publicly funded research made available publicly. We have 
now changed that. And I think, over time, the way we fund 
nonprofit science societies is going to have to follow along 
and change as well, because they do provide a useful model. But 
you cannot allow that current business model to dictate the end 
result, which is: if you incorporate by reference a document 
that has to be part of the public record.
    And the--and, if there is a fee for example, I mean that 
assumes that the public doesn't have an interest. If I am a 
contractor, you know, maybe I can afford to pay the fee because 
I am going to make money, you know, on that. But there is a 
public interest in this. It is not just the people in the 
business. It is the public's right to know. Is this a 
sufficient standard? Well, the only way you are going to find 
out, is to have free access to it. And to put up a screen to 
that, if it is a part of the law, is completely, wholly 
inappropriate. I agree with Mr. Issa that there is no copyright 
reform that we should support that doesn't resolve this issue.
    And I have listened with great interest, as I say. I think, 
although there is academic interest in this, certainly the 
public spoke very loudly about SOPA and I don't believe we are 
going to have the appetite to revisit that, either in our 
copyright laws or, frankly, in the TPP negotiations that are 
underway. You are right, we don't know what they are 
negotiating. But, the leaks to WikiLeak are SOPA. And if SOPA 
is in TPP, it is dead in my judgment.
    With that, I see my time is expired and I yield back.
    Mr. Coble. I thank the gentlelady.
    The gentlelady from Texas, Ms. Jackson Lee.
    Ms. Jackson Lee. Let me thank the Chairman and the Ranking 
Member for the generosity of time.
    And I want to associate myself with my colleagues. This is 
an excellent panel and well-committed in this area and with a 
lot of history in this area, as well.
    Not enough time for our questions. I just want to go across 
to every one. I know that you spoke to different issues, and my 
colleague mentioned SOPA. I just want to get in this question a 
yes or no. Do you feel that Congress should wade into your 
particular issue of testimony today?
    Dr. Nimmer--Mr. Nimmer?
    Mr. Nimmer. Yes.
    Ms. Jackson Lee. Professor Lunney?
    Mr. Lunney. No.
    Ms. Jackson Lee. Professor Schultz?
    Mr. Schultz. Not yet.
    Ms. Jackson Lee. Mr. Love?
    Mr. Love. You should pay attention to the WIPO negotiation 
on the Broadcast Treaty.
    Ms. Jackson Lee. Is that yes or no?
    Mr. Love. Okay, well----
    Ms. Jackson Lee. I just----
    Mr. Love [continuing]. Should you legislate--should you 
change U.S. law in that area?
    Ms. Jackson Lee. Yes or no?
    Mr. Love. We don't even know what the treaty is yet.
    Ms. Jackson Lee. All right.
    Mr. Love. It is a----
    Ms. Jackson Lee. Thank you.
    Ms. Griffin?
    Ms. Griffin. No, in the sense that has been suggested by 
Mr. Malamud.
    Mr. Malamud. Absolutely, yes.
    Ms. Jackson Lee. Thank you very much.
    Professor Nimmer, now Of Counsel, but I will always call 
you Professor. In your testimony, you note a scenario where a 
P2P user who goes to trial is helped somewhat by the fact that 
a judge would feel that an award disproportionate with actual 
damages would be inappropriate and thus making--might be 
inclined to not construe the making available right in accord 
with their actual feelings about the law. Could you please 
elaborate on this? And I do have one or two other questions, so 
I am going to go quickly. And what would be a just 
recalculation of the statutory damages, so that Jammie Thomas-
Rasset does not face a multi-billion-dollar judgment?
    And I want to ask Professor Lunney, could you expound on 
your view of the broken window parable presented in Frederic 
Bastiat's parable in English, ``that which is seen and that 
which is unseen,'' if you can think of that?
    And I do want, Professor Schultz, I know that my colleague 
from Texas asked about Aereo, but if you could just expand on 
it a little bit.
    Professor Nimmer?
    Mr. Nimmer. Yes. When Jammie Thomas-Rasset was--went to 
trial, as has been noted, the award against her was at one 
point $1.5 million. She had the option of settling. The 
plaintiffs offered her a settlement that she could pay several 
thousand dollars to a charity designed for musicians and she 
turned it down. Because she had committed perjury and because 
the trial was so egregious, the jury came and hammered her. 
But, the question now, as I understand it, is what should be a 
reasonable measure----
    Ms. Jackson Lee. Right. That's the----
    Mr. Nimmer [continuing]. Of statutory damages. And, it did 
make sense, back in 1999 when Congress calibrated statutory 
damages, to look at how many works had been infringed because, 
at that point in time, it was not possible to infringe a 
hundred or ten thousand works. It just was physically 
impossible. Today with peer-to-peer, it is possible. And so, 
Congress needs to look at what level of damage would be--would 
cause deterrence and would compensate and would be somewhat 
related to the harm. So, I don't--I did not come here with a 
ready metric, but it could be several hundred dollars for each 
and every copyrighted work that was implicated or it could be 
$100,000 in any given lawsuit that is brought or another 
measure that is somewhere within reason and does not get us to 
the hundreds of millions of dollars.
    Ms. Jackson Lee. Thank you. Some criteria. So, refinement, 
clarity and determining how someone could be made whole.
    Professor Lunney on your question please?
    Mr. Lunney. Thank you for the question.
    So, Frederic Bastiat writing in 1850 was explaining that 
when the government creates a subsidy program for the arts, it 
is not new money in the economy. They are taking that money 
from consumers, through taxes, they are giving it to the arts. 
There is going to be new employment in the arts. That is what 
we see. What we don't see is that, by taking the money from the 
consumers who go through taxes, those consumers won't have that 
money. They can't spend it on something else. And so, the jobs 
that are lost in those other sectors, because consumers no 
longer have the money to spend in those other sectors, is not 
seen and we tend to ignore it. But we shouldn't.
    If you are just moving money in the economy from one jar to 
another, creating jobs here, losing them there, there is no net 
gain for the economy. So, if we could come up with a magic 
formula, wave our wand and stop file sharing and restore to the 
music industry some of the money it has lost, perhaps as a 
result of file sharing, that would not be a net gain in jobs 
for the economy. We would simply be forcing consumers to pay 
more for music, they would have less money to pay for 
everything else. And so, whatever jobs we gained from that 
revenue in the music industry, we would lose elsewhere in the 
American economy.
    Ms. Jackson Lee. That is--let me just let Professor Schultz 
go on the Aereo. Thank you very much for that Professor Lunney.
    Professor Schultz, just a little bit more expansion on the 
Aereo case.
    Mr. Schultz. Absolutely. So, in Aereo you have a company 
that--a single company distributing a TV signal to many 
customers. That would seem to fit the definition of a public 
performance. However, Aereo, through what they perceive as I 
would suppose it is a loophole in copyright law, are using 
really antiquated technology building an array of antennas for 
each of their users and distributing the signal. And they are 
not paying copyright royalties. They are not paying 
retransmission fees. And you have to ask yourself, as between 
the broadcasters and the creators versus Aereo, who has the 
moral and economic right to distribute those signals and profit 
from them. And I hope the Supreme Court rejects the 
interpretation of the law that allows Aereo to do this. But, if 
they don't, I hope this Congress will address that.
    Ms. Jackson Lee. Mr. Chairman, you have been gracious in 
your time. I think there are a lot of competing issues here. 
And I think we have a great respect for our artists, a great 
respect for broadcasters and a great respect for the posture 
that Professor Nimmer has taken and many of you have taken. And 
so, I thank you and look forward to more hearings on these 
important issues.
    I yield back my time.
    Mr. Coble. I thank the gentlelady from Texas.
    Mr. Conyers and I and other Members want to express our 
thanks to the witnesses who have prevailed during this marathon 
today. But, it has been a very worthwhile, balanced 
presentation, it seems to me.
    And as I said at the outset, I appreciate those in the 
audience who have remained in its entirety. Your presence 
indicates more than a casual interest in this very, very 
significant issue.
    This concludes today's hearing.
    Thanks to all of our witnesses for attending.
    Without objection, all Members will have 5 legislative days 
to submit additional written questions for the witnesses or 
additional materials for the record.
    This hearing stands adjourned.
    [Whereupon, at 12:41 p.m., the Subcommittee was adjourned.]




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