Interview with Pamela Samuelson
Pamela Samuelson is Richard M. Sherman Distinguished Professor of Law at Berkeley Law School; Director of the Berkeley Center for Law & Technology; and Co-Founder & President of the Authors Alliance. She was one of the first legal scholars to explore the impact of the Internet on copyright. As well as her academic work, she is also an influential activist striving to persuade governments around the world not to pass copyright laws that will harm the Internet and the billions who use it. She serves on the board of directors of the Electronic Frontier Foundation (EFF) and the Electronic Privacy Information Center (EPIC), as well as on the advisory boards for the Center for Democracy & Technology (CDT), Public Knowledge, and the Berkeley Center for New Media. Recently, she signed an open letter to the President of the European Parliament, asking him to delete upload filters (Article 13) from the EU’s proposed Copyright Directive, formally known as the Directive for Copyright in the Digital Single Market (DSM).
GM: When did you first become aware of copyright?
PS: The thing that caused my attention to turn to copyright, especially related to new technology, was the Sony Betamax case. I was just starting to be a professor at the University of Pittsburgh law school, and the Sony case was making its way through the courts. The trial court decided that Sony’s sale of these videotape recorders was not copyright infringement, and then the Ninth Circuit reversed. I would go to parties and people would say: that can’t possibly be copyright infringement, can it? I recognised this was a pretty big deal. When the Supreme Court reversed, it was a pretty dramatic holding.
I’ve returned to this case many times because [the US Supreme Court’s] Justice Stevens had a really outstanding opinion in that case. He was really grappling with: gee, Congress didn’t think about this. Gee, millions of people have these things, and are using them to make time-shift copies and we don’t have any reason to think that’s really going to harm the market to go to the movies. There was a stipulation that there had been no harm to the market so far, and all the plaintiffs were able to offer was speculation. The Supreme Court’s decision was to say: gee, we shouldn’t construe copyright beyond what we have reason to believe Congress really intended, and gee, this technology actually has substantial non-infringing uses.
Patent law has dealt with an issue like this before, and said that if a technology has substantial non-infringing uses then you should allow the public to buy it for those non-infringing uses even if some of the people use it to infringe. And I think a lot of the norms that I have found historically in the Sony Betamax opinion have been themes that have run through many of the US cases in the last couple of decades.
GM: What were your first experiences of the Internet?
PS: I was following very closely the Clinton administration initiative for what they were then calling the National Information Infrastructure [NII]. At first I was excited that the administration was undertaking a study of intellectual property and the NII. I made some submissions – I was naive enough to think: well, gee, I know something about copyright, and I know something about new technology. I was using the Internet quite a lot, more than most people at the time. And so I thought: I have something to contribute to this debate.
Imagine my dismay when the Clinton administration’s green paper and then its white paper came out with positions about interpreting copyright law that I just knew to be wrong. Wrong as a matter of law, and wrong as a matter of policy. This notion that the Internet was kind of out there, and there was nothing on it, and nobody was doing any content, was just absurd.
The premise of the NII report was people who own copyrights are never going to use this thing unless we clamp down, and have really super-strict rules about copyright on the Internet. To the point where they were saying that every temporary copy of copyrighted material in the random access memory of a computer was copyright infringement. And ISPs and Internet access providers should be strictly liable for every infringement that their users might commit, whether they knew about it or not [GM: precisely as Article 13 proposes]. That just didn’t make any sense to me, and I was really worried because the report was written as though this was just the law, that people would actually think that was true.
So I became really an activist at that point. My big signature piece about that was the  Wired “Copyright Grab” article, in which I basically deconstructed the 200-page white paper and said, here’s what they are trying to do us and this is not a good idea. So you tech-savvy people who are reading Wired magazine, get involved here. [GM: in fact the US ended up choosing a different path for its online copyright legislation, and instead of imposing direct liability, lawmakers opted for secondary liability].
GM: What do you see as the main tensions in the interaction between copyright and the Internet?
PS: The biggest tension for the copyright industries is that it is so much cheaper both to make copies and to disseminate copies of copyrighted materials. There used to be gatekeepers, and it was hard and expensive to make copies. Now it’s not, and the norms about respect for copyright didn’t grow along with this. People said: if it’s OK for me to do a time-shift copy of a television programme, just for my own personal use, why shouldn’t it be fine for me to go to download a song that I like? – I’m not harming anybody. The technology enabling these uses, and also norms, evolved from private use copying in your home. People got used to doing that, to time-shifting and place-shifting and the like.
The problem that arose was that since everything these days is copyrighted, it’s hard for people to draw the line. Every email, every image that people make – either by drawing or by taking photographs – everything is copyrighted. So if you wanted to say “no copyrighted material could be exchanged on the Internet without the permission of the person who owns the rights in it”, you’d have to shut down the Internet. I think some people would like that, but certainly that’s the implication.
I have been working in the second half of my career to really both warn against over-broad interpretations of copyright, but also to help build a kind of normative case for some respect for copyright. When I go and speak in front of a group of copyright industry lawyers, I say: “look, I am actually your friend”. I am really trying to help the law develop the kind of balance that I think the Supreme Court was trying to achieve in the Sony Betamax case, and carry that over to the Internet.
GM: Moving on to the proposed EU Copyright Directive, you signed the open letter about the dangers of Article 13: what do you see as the problem there?
PS: The people who think that filtering technologies are going to solve all of the copyright industry’s problems are naive. There are too many false positives, and not enough checks and balances that would stop some wrongful takedowns. The study that Jennifer Urban, Brianna Schofield and Joe Karaganis did about takedown regimes shows that about 30% of the notices that were sent were flawed. If 30% of the content shouldn’t have gotten those takedown notices, but the ISPs took them down anyway, if we start using filtering technologies, it seems to me that a lot of that 30% would be stuff that people should have access to.
Maybe it’s the case that people don’t think that parodies and other kinds of transformative uses of copyrighted materials should be allowed. But I think a lot of us who delight in the Internet find those kind of things to be charming and delightful, and also important to be able to engage in critical commentary. I think that the overfiltering problem is huge and the norms are so vague. Article 13 is doomed to failure. The Digital Single Market Directive draft is some speculation that if we put these really strict rules in place, all the tech companies and platforms that can afford to license content will do that. I think that’s naive.
GM: The European Commission insists that that nothing will change in the EU for companies that want to conduct text and data mining if Article 3 becomes law: do you agree?
PS: To me, the text and data mining exception is like the European Union shooting itself in the head, because all the text and data miners are going to move offshore. If I was IBM or Microsoft or anybody else, and there’s this proposed mandatory exception to enable this kind of activity for non-profit research institutions, I’d get nervous. Because there is an implication that if those guys get an exception, then maybe we don’t.
I’ve talked to people from some American companies about the text and data mining exception and none of them are happy with it. And none of them are willing to invest in building up text and data mining labs in the EU because they’re concerned about liability. More sensibly, they’d set up some shop in either the US or Japan where the text mining exceptions are well established. You can’t do artificial intelligence work if you don’t have training data. It’s essential to the operation. And so I don’t see how a prudent and risk-averse company wouldn’t decide to do something elsewhere.
GM: What about the knock-on effects of the EU Copyright Directive around the world, if it passes in its present form?
PS: If the DSM directive gets adopted in a form that’s similar to the last one I studied, I would say that there will be pressure brought to bear to export Article 13, maybe Article 11. If the EU is able to clamp down and get mandatory filtering, that will be something that the copyright industries will go and say: you see, the EU has adopted this, you should do it too.
The United States Copyright Office has been holding on to a study about reform of the ISP Safe Harbours in Section 512 of the US Copyright Statute. I don’t know that the EU directive is going to have an impact on what they eventually report, but it wouldn’t entirely astonish me. If the US and the EU adopted these filtering mandates, I think they would gang up and really try to persuade the rest of the world that they should move in that direction too.
GM: What sort of things would you like to see in terms of copyright’s future development?
PS: In respect of developments in the law of the European Union, I would like to have somebody in the future EU revisit this incremental making linking unlawful [as a result of key judgments from the Court of Justice of the European Union]. Linking is such a fundamental activity to the use of the Internet and the Web. If you were thinking about it from first principles, you wouldn’t necessarily draw the lines or develop the criteria that the CJEU is using. I’m not saying that a link can never be copyright infringement, but I think this “communication to the public” [concept] is ballooning into a way to try to regulate ISPs through direct liability. We rejected that back in 1996 – that’s one of the big fights that was going on in the WIPO copyright treaty negotiations. We were sensible enough to reject that then but it’s slowly creeping in that direction through CJEU rulings. It’s hard to figure out how to get them to walk back from there.
GM: Are there any other things you’d like to see happen globally in the copyright field?
PS: I think that the anti-circumvention rules need to be re-thought. One thing that’s incredibly interesting is that as a kind of last-minute compromise before the [US] Digital Millennium Copyright Act was adopted, [there] was this tacking on of this triennial review of exceptions [to anti-circumvention rules]. What happened was that people like me said: look, there are lots of reasons why people might want to bypass a technical protection measure that doesn’t have anything to do with enabling copyright infringement.
Initially, the only exception that was proposed was one for law enforcement and national security. I remember having a conversation with Mike Nelson, who was then in the White House, and working on national security issues. And I said: do you realise that the draft anti-circumvention rules that the Clinton administration is promoting would allow you to enjoin the NSA from cracking encryption? And what do clever people in the mafia do? – they encrypt their stuff. Do you want law enforcement not be able to break that encryption? Really? So they added an exception that would allow that kind of activity.
The first few triennial reviews, there weren’t many exceptions [to anti-circumvention rules] adopted. But slowly the Copyright Office has continued to say: oh yeah, what about this, and what about this? The latest report of the triennial review is 342 pages. So the good news from the standpoint of us in the United States is that the Copyright Office is now on record recognising that dozens of exceptions to these anti-circumvention rules have been and should be adopted. And they’ve liberalised some of them. They’ve said: instead of having to make this same showing over and over again, we’ll sort of presume that an exception should continue unless there is evidence that it has enabled a lot of infringement, in which case then we’ll change it. This is something that the rest of the world could use. So in terms of stopping copyright overreach i would say that finding a mechanism like the triennial review in the US would probably be something that would be beneficial.
The other thing to do is to make the anti-circumvention rules so that the only liability lies if you circumvent for the purpose of engaging in infringement. I’m OK with that being illegal. Right now, a lot of people just go ahead and bypass [technical protection measures] because as long as you don’t engage in copyright infringement it should be none of copyright’s business.
GM: Any other positive developments in the copyright world?
PS: One of the things that’s an encouraging sign for me in the international copyright regimes is that fair use is spreading. Even scholars who used to be pretty sceptical about fair use have come to recognise that, especially in relation to uses of information on the Internet, having some flexible mechanism like fair use is something that helps maintain balance in copyright law. I just recently wrote a piece that made the argument that the fair use defence in the US and other countries that have adopted fair use like rules are compatible with the three-step test that the TRIPS agreement and the Berne Convention seem to require. That used to be something where there were lots and lots of sceptics, but I think people have become much more relaxed about that.
There’s a wonderful paper that Lionel Bentley and Tanya Aplin just wrote about mandatory global fair use Boy, that’s a wonderful interpretation of Article 10 of the Berne Convention, which was incorporated into the TRIPS agreement, and so it’s a global fair use rule. I think that’s another development that I consider to be healthy.
Featured image by Pamela Samuelson.