United States: Twenty Years Down The Road: A Q&A With Paul Goldstein, Author Of Copyright’s Highway

More than two decades have passed since internationally recognized copyright law expert and award-winning novelist Professor Paul Goldstein of Stanford Law School (and Of Counsel to Morrison & Foerster) published his landmark book, Copyright's Highway: From Gutenberg to the Celestial Jukebox—a wide-ranging and insightful (not to mention entertaining!) examination of the past, present and future of copyright law, from both a cultural and legal perspective. We sat down with Professor Goldstein to discuss how his predictions have fared over the last twenty years, and what his thoughts are on the future of copyright law.

Socially Aware: In writing Copyright's Highway, at a time before the existence of Hulu and Spotify (and during which Amazon and Netflix delivered content solely by physical mail), you predicted with almost spooky accuracy our society's transition from traditional content distribution models to the "celestial jukebox," which you defined as a "technology-packed satellite" or earthbound web of "cable, fiber optics and telephone wires" providing on-demand access to "films, sound recordings and printed materials" alike. Looking back at your predictions, how do you think you did as a prognosticator? 

Prof. Goldstein: In broad outline, I think the book's predictions were pretty accurate. I had help, though. Between 1972-1974, I had the opportunity to do some legal and policy work with a small Palo Alto company headed by a brilliant engineer and visionary, Paul Baran, that, among other projects, was consulting with the Defense Advanced Research Projects Agency on the divestment from government control, and introduction into the private sector, of something called the Arpanet­—which matured into what we know today as the Internet. As I said, it was a small company—Vint Cerf was one of the other two principals—but it had no problem with big ideas. My work and conversations with Paul, Vint and Ed Parker, the other principal, surely informed what I wrote in Copyright's Highway.

Socially Aware: Are there content delivery developments today that you hadn't anticipated in Copyright's Highway? Have you been surprised at how rapidly that transition has occurred?

Prof. Goldstein: The delivery (and implicitly the production) model I had in mind was that the traditional suppliers of entertainment and information—film studios, record labels, book publishers—would continue to supply content through this new, speedy and highly individuated channel, but would be joined as suppliers by individual creators—writers, musicians, even filmmakers—taking advantage of the new economies of digital production and delivery to bypass these more traditional institutions. I thought that would happen sooner than it did, and I also hadn't a clue about the emergence of such low-creativity adventures as file-sharing and YouTube.

Socially Aware: You also anticipated in Copyright's Highway the key issue raised in 2014's most closely followed U.S. copyright case, American Broadcasting Companies, Inc. v. Aereo, Inc.:  "[W]ill courts call it a public performance when a copyrighted work is not broadcast simultaneously to a large public but rather is transmitted to subscribers by the celestial jukebox, one performance at a time, on demand?" In its opinion last summer, the Supreme Court answered in the affirmative (at least with respect to the particular transmission methods employed by Aereo). What was your reaction to the Aereo decision?

Prof. Goldstein: My first reaction to Aereo was relief that the Court got the law right. The second was surprise that the majority opinion was authored by Stephen Breyer who, from his 1970 tenure article in the Harvard Law Review, "The Uneasy Case for Copyright," on through his first sale opinion in the Kirtsaeng case the previous term, has been no fan of a robust copyright system. Someone who does support a robust copyright system might be disappointed with the extent to which the majority opinion tethered the Aereo system to the analogue of more traditional cable systems (a tactic presumably dictated by the need to assemble a majority), but on the crucial question of what the 1976 Act means by "public performance" in the context of transmissions, the majority opinion got the answer as demonstrably right as the Second Circuit got it demonstrably wrong in the decision below and in the Cablevision case.

Socially Aware: Aereo supporters have predicted doom and gloom for the celestial jukebox and other innovative cloud solutions in the wake of the Supreme Court's ruling, despite the Supreme Court's efforts in its decision to limit the impact to Aereo's specific business model. Given your Nostradamus-like track record, we're interested in your predictions regarding the short-term and long-term effect of the Aereo decision—any thoughts?

Prof. Goldstein: The short term is pretty much past by now and, on the ground, I think that we have seen no great threat to innovations in the cloud emerging as a consequence of Aereo. Longer term, I believe that a factual distinction between the Cablevision and Aereo systems—that in the former there was an occasion for license negotiations between the transmission provider and the content supplier, and in the latter there was not—will take on added legal salience. The point, not lost on the Court, is that if program suppliers want to capture the value of such functionalities as remote DVR, they can put this on the table when they negotiate their next license agreement with cable companies. The Aereo model provided no such occasion for contract negotiations. This is, however, only a factual distinction between the two cases, and not an endorsement of Cablevision, which got the law so painfully wrong.

Socially Aware: In Copyright's Highway, you explored issues raised by private copying, including efforts by courts over the years to define the line between "public" and "private" copying. Congress has previously responded to concerns regarding private copying in the context of library photocopying (through Section 108 of the Copyright Act) and home audiotapes (through the Audio Home Recording Act). Any thoughts today as to how the public vs. private issue may play out going forward?

Prof. Goldstein: Looking forward, there is no more important battleground for copyright than the private-public distinction. Private copying, although it undermined licensing possibilities for film studios (Betamax) and publishers (Williams & Wilkins), never threatened the very existence of these sources of creativity, for alternative markets (theatrical, free TV, pay TV, cable, in the case of film; library and individual subscriptions in the case of print) existed side-by-side with these free uses. By contrast, to treat public performances of streamed films and music as "private," as Cablevision misconstrued the 1976 Act to do, or to propose that the Act be amended to exonerate all private uses from copyright control, as one self-appointed American public policy initiative proposed, would cut the economic heart out of copyright industries for which, in the age of the celestial jukebox, private uses will be the only markets, as other, less convenient markets grow smaller by orders of magnitude.

Socially Aware: In your book, you discuss the impact the photocopier had on notions of copyright in the 1960s and 1970s through the lens of Williams & Wilkins Co. v. United States. And, of course, the Sony Betamax was another disruptive technology that helped to shape today's copyright laws. The common wisdom in Silicon Valley and elsewhere is that copyright law must make accommodations for cutting-edge technologies—that, as a society, we simply can't allow laws adopted in the analog era to prevent technological innovation and progress. Yet, with Aereo, we've seen a promising, potentially game-changing technology stopped dead in its tracks due to copyright law. What's the interplay between new technologies and copyright law? Should new technologies receive some benefit of the doubt when they don't appear to fit nicely into our decades-old copyright regime? Or should we wait for Congress to intervene?

Prof. Goldstein: In the current political environment, waiting for Congress to act is like waiting for Godot, so let's put that possibility aside. And certain—but far from all—voices in Silicon Valley are correct in how they frame the proposition that copyright law ought to be designed to accommodate new technologies. But, that said, it would be a serious mistake for policy makers (and I include the courts) to reflexively reach for a new exemption or an expanded fair use any time copyright appears to stand in the way of the roll out of some new technology. It would be a mistake because the characteristic impediment in all of these cases is not copyright, but the transaction costs associated with securing licenses under copyright. The proper target, then, is not copyright, but transaction costs, and digital facilities, including the Internet, offer dramatic possibilities for reducing these transaction costs to close to zero. Today's Congress, faced with the picture that confronted Congress a century ago, of musical performances in hundreds of thousands of restaurants, saloons and dance halls, all beyond the reach of individual composers or publishers to control, would probably carve out an exemption for these uses, citing transaction costs as an impediment to licenses, and the occasion would never have arisen for Victor Herbert and his fellow composers and music publishers to form ASCAP to engineer  a means for reducing  the transaction costs connected to licensing these performances. (Congressional stalemate does have certain benefits!)

Socially Aware: In your book, you discuss the impact the celestial jukebox might have on the traditional filtering or screening role played by book publishers and motion picture and record producers—allowing artists of all disciplines to directly access the public at little or no cost over the Internet, bypassing these types of traditional intermediaries. And, once again, since the publication of the book, we've seen the creation of new channels pursuant to which content creators can directly connect with their audience. Is there still a role for traditional content intermediaries? Have you seen signs that such intermediaries are adapting to this change?

Prof. Goldstein: It's still too early, I think, to forecast how the individual-intermediary tradeoff is going to shake out. In terms of quantity, the Web has certainly enabled a vast outpouring of self-published novels; in terms of quality . . . well, Fifty Shades of Grey was originally self-published. The same can be said for music. I would keep my eye on the still primitive technologies of recommendation engines if I wanted to speculate on the ultimate role of print and music publishers in screening works for consumers. The large publishers, at least, don't do a particularly good job of it at present, and I can imagine that between developments in artificial intelligence and the spread and increasing sophistication of social networks, we are one day going to see the technologies of the Web overtake the craft of publishers and record labels in targeting new works at receptive audiences.

Socially Aware: There's talk out there about the need for an extensive overhaul of the U.S. Copyright Act to ensure its relevance to the digital age. Do you see such an update to the law happening any time soon? What are some of the issues that you think should be addressed in connection with any such update?

Prof. Goldstein: Some years ago I gave a talk entitled "Copyright on a Clean Slate" suggesting what a copyright law might look like if it took into account only the contemporary conditions surrounding the production and use of copyrighted works, and if it was unencumbered either by history or by the special pleadings of industry groups. That law, which of course would never be enacted, would be no more than four pages long—about the length of the first U.S. Copyright Act in 1790—and would possess the immense virtue of being immediately apprehensible by the lay user of copyrighted works. Short of that, I do hope that Congress gets around to dealing with the question of orphan works, even if only in laying the framework for the private sector to develop mechanisms for clearing rights, and also—this was the subject of hearings just last week—providing the Copyright Office with the budget and the technological independence that it needs to execute its mandate well.

Socially Aware: Professor Goldstein, thank you for sharing your thoughts with us! (We note that, of course, all views expressed by Professor Goldstein are his own, and not to be attributed to Socially Aware, Morrison & Foerster, its clients or others.) For our readers, if you haven't had the pleasure of reading Copyright's Highway, check it out here.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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