This episode is the "Copyright Law and Digital Ownership" panel from our Exploring the Anti-Ownership Ebook Economy event. It was recorded on October 27, 2023.
Announcer 0:01
Welcome to engelberg center live a collection of audio from events held by the engelberg center on innovation Law and Policy at NYU Law. This episode is the copyright law and digital ownership panel from our exploring the anti ownership ebook economy events, it was recorded on October 27 2023.
Michael Weinberg
The final panel of the day at any events held at a law school is going to be the legal panel. And we'll get into it right now before I do, I just want to thank everyone. And I will I will thank you again at the end. But thank you everyone for the conversation so far, I think two things have been really fantastic. One is that everyone has come to this with an open mind and in good faith. And the other one is that everyone recognizes that coming to someone else's view, in good faith does not mean you think that they are rights, and does not mean you think that they are good for society does not mean that you support what they're doing. It just means that you are coming to it in good faith. And so I appreciate both everyone's ability to do the first part of that. And everyone's ability to be thoughtful enough to do the second part of that and not feel like they needed to back away from their strongly held feelings. So this is the final panel. This is about copyright, we're going to kind of like go deep into the copyright weeds because that's that's the kind of people we are this is the kind of place we are Yeah, yeah, shout out for copyright. We've got a great panel for this. As I mentioned earlier, Jason Scholtes. co author was supposed to moderate he is out today, unfortunately, so I will do my best. Fortunately, I just have to be a supporting player to two stars, and let them sing and dance and wow you with their intellectual insights. So I think he's the job for me. Mehtab Khan is a fellow at the Berkman Center for Internet and Society at Harvard University. Her scholarship intersects intellectual property, in particular copyright and trademark law, internet law, privacy, anti discrimination, and law and ethics of data driven technologies. That's the intersection of a lot of thing. Michelle Woo, now, Michelle was LinkedIn profile nearly identifies her as a retired law librarian. Which is like true, as far as it goes, but from the haces. In the audience, I know that many of you know the Michelle is things in addition to a retired law library, and not to diminish the status of retired law librarian, but many things in addition to that, including a retired Associate Dean of Library Services at Georgetown, director of the Law Library and Professor of Law, she has written extensively about issues related to copyright, and libraries. In fact, a moment ago, she was worried well, she was actually not worried that this might this was a gonna be a Libraries panel. And I told her that I couldn't do a library panel, but she assured me that she could just do a library's panel on her own. So we recover either way. This will be the last panel. And so the first question I want to put to both of you is that was really based on making analogies. Right? You know, all we make analogies to previous cases, thinking about ownership and licensing. We've been talking about the different ways eBooks are like classic physical books, and the ways in which eBooks are different. When you think about these analogies between ebooks and physical books, how do you pick apart those similarities and differences, especially when you're trying to think about the copyright parts of and I will let either one of you take it, but I think both of you should turn your microphone.
Michelle Wu 3:59
Sure. So I think in terms of the struggle, purpose of copyright, getting information to people, I actually don't see there being much of a difference between the content in in physical form, as opposed to ebook form. In terms of the risks, I understand that publishers see or that copyright owners might see, I think they see risks in the format. But that to me, doesn't have to do with copyright. It has to do with technology. So I'd say in terms of copyright, I see them as being equivalent.
Mehtab Khan 4:29
I would agree with Michelle but I will also want to add that digital copies sometimes serve as a means to another use that copyright law then treats with, you know, a distinct lens. So for example, searchable databases that are built on copyrighted works or digital copies are seen as you know, transformative. But that potential to see the end product as transformative varies based on a digital copy or digital book. It really can vary based on who is making that copy? And who was making it available.
Michael Weinberg 5:05
And I mean, is that is that similarity? Is that a good thing? Is that a is that a stable thing for copyright law? Or would it be better if copyright law thought of ebooks completely differently from regular books or from physical books?
Michelle Wu 5:23
From my perspective, the focus on getting knowledge to the public is actually a very useful focus. Regardless, it is it exists independent of technology. And therefore the importance of that to society, the meaning of that to society exists, independent of all the changes that we'll see in technology, especially as technology changes faster and faster and faster. As long as the focus remains on. Ultimately, the public having access to knowledge. I actually, I think that's a good thing.
Mehtab Khan 5:55
And to add to that, I think I don't think it's stable, though. I think, as we've learned today, also, there's a lot of mismatch and in what users want, what patrons of the library want, versus what publishers want, and what platforms are able to give. So it's definitely a very unstable landscape, in my opinion.
Michael Weinberg 6:17
So I'm gonna go a little bit into the weeds here with both of us is a comfortable place. But we when we're thinking about copyright law and ebooks, we're also thinking a lot about licenses, which are copyright related, they're also contracts. And I wonder if you think that the kind of intersection of the contract law part of this analysis, and the copyright law part of this analysis helps bring clarity to it for complicated, complicated and how, how you sort the issues between being really a contract issue with the license as an agreement between the parties, or a copyright issue, which is tied to a kind of a larger set of equities, in most cases.
Michelle Wu 7:12
I do not think that licensing has added much to the it has not helped copyright, I think it's made things much more challenging. And that the reason why is because there was supposed to be a balance in copyright. Right? copyright owners get ownership of their copyright. But in exchange, the public gets access to their knowledge. They get to own that knowledge, they get to do things with that knowledge, such as lending the book to other people selling that book, wheeling that book to other people. And licensing allows the copyright owner to retain all the benefits of a not monopoly, while ignoring all of the responsibilities on which that monopoly was granted. So that's the greatest danger in terms of licensing in terms of distinguishing between what when when there's something a copyright issue, and when it's something contract issue, I think that's what we're seeing in the courts right now, is a lot of litigation is parsing it and deciding, okay, this is actually an unconscionable license agreement or unconscionable. So I'm looking at it from a contract angle, or the states which if Kyle were here, he would actually tell you what all the states are doing and trying to dictate, sorry, essentially reasonableness that if you make if a publisher makes a book available for sale the publisher than they have to be willing to sell it to a library as well. Libraries have to retain preservation rites. So there are actions on the preservation end. But I would also say there are actions on the copyright and as well, and none of these are really entirely independent of each other, I would say that they move together. But on the copyright end, we have activities such as CDL, which is controlled digital lending, where libraries are, they're still buying physical versions of the books. And then what they do is they digitize them, and they use a digital copy in place of the print. If they buy one copy, they're still just using one copy, it's just changed in format, it is still protected by DRM, or I shouldn't say it's still it is protected by DRM so that it cannot circulate simultaneously any more than number of copies that they own. So we are seeing activities on both fronts in terms of contract as well as copyright. I don't think that there are very many instances where I would say it's entirely one or the other, it's essentially we're going to look at look at this and try to tackle it from all aspects that we can tackle it from.
Mehtab Khan 9:33
I can speak to the Fair Use aspects of it, and how the determination of whether something is very used before making a decision about access or preservation or, you know, limiting access or taking down content, I think has ended up being placed on the entity that doesn't really have control over those contractual terms or over those access terms. So if a if a platform places restrictions on how you can access a book or places restrictions in that licensing agreement about what you can do, or and how long you have access to it, the burden to then see how that's implemented, and then how that plays out in the field with, you know, particular person using that ebook is placed on the middle person who does not have that much agency. And so I think, overall in the balance, as Michelle said, the balance then get skewed against what the goals of copyright are, in my opinion, which is, you know, to allow those fair uses, but we don't even get to the first steps of being able to do that. But on the inverse, we are also seeing, you know, in the context of AI, for instance, we are seeing that some websites and web publishers, like news websites are placing restrictions in their terms of conditions, saying that you cannot use this material to train MLMs. Although that question of whether training is fair use or not, is undetermined, placing such a broad restriction, even within those terms and conditions also risks people losing out access in other ways that would be harmful to fair use.
Michael Weinberg 11:22
When you see those sort of terms, based restrictions. What is this? What is the scope of their enforceability? Like what is your instinct on how effective those types of restrictions are against the kind of uses specifically that we would think of that traditional Fair Use uses?
Mehtab Khan 11:47
I think that is to be determined, especially as we see the recent lawsuits play out, we'll see. You know, we are already seeing companies saying that, you know, there is already an existing licensing market for our works, that data set curators are not used. So as they show that they've taken the steps to mitigate or prevent the use of their works without permission, I think the defendants or the dataset curators on the other side will have, you know, less room to argue that there's fair use. And so the existence of these terms, I think, might then, you know, strengthen arguments that plaintiffs are trying to use.
Michelle Wu 12:34
So I think the chances of a library or someone complying if even an individual complying with the license terms are one if they've read the terms, which is always a question. But if they have the terms, it is more actually I think about the power dynamic than anything else. And what I found in libraries is if you are the chief 14 library, you actually do you have more at 14 Law Library, you have more bargaining power than someone outside that t 14. So I think in terms of compliance in terms of what the publishers are trying to accomplish, and when I say publishers, I don't mean all publishers, I do understand that there are a whole range of them. But in some of the more restrictive license terms, such as getting access to our users data, or prohibiting prohibiting data mining, or prohibiting interlibrary loan, I think a lot of whether or not those licenses have power comes down to the bargaining power the library has, whether they have the ability to cross that out of license.
Michael Weinberg 13:40
So the power is in the license formation, moment of license formation, not in the moment of license enforcement.
Michelle Wu 13:48
That's correct. I mean, I think there's some power it like it can happen either place, but I think a lot of it happens during formation.
Michael Weinberg 13:57
I wonder, you know, a couple of times, in other panels, people have talked about these, like, perpetual license agreements that various libraries have have negotiated. And I wonder, you know, when we as you are wearing your copyright lawyer hat what are the meaningful ways and I you know, without you know, the specifics, that's fine. If you don't, I'm happy to take the kind of general answer here. But what are the meaningful ways in which a perpetual access license is different from actual ownership like what we've heard a couple of people referred like you know, this, this these achieve a lot of our check a lot of boxes, right, achieve a lot of what we want to achieve. We're What are situations where those are going to fall short? Where's the space going to be between ownership and those kind of perpetual licenses?
Michelle Wu 14:48
So I think some of them have already been mentioned in terms of when you don't own an item number one, you lose all privacy. If the item does not belong to you, then whoever does own it gets to track that data. So that's one big difference. The other is you can't always tell what's going to happen with a publisher, whether they go out of business, whether they divest some titles, they merge with another, you don't know what's going to happen. So if you don't own that item, you can't guarantee that your users will have access to it, you also can't guarantee that even if your users have access to it, it will remain the same. Because the person who owns that work can actually change that work, whether it's updating a typo, which seems like a minor issue, or actually changing the text, or retracting the book entirely. So I mean, I think there are cost to not owning the book. Same with issues like, if I'm a library, I can't resell that item, right? I can't, if a library goes away, I'm not saying libraries go away often. But if the library on sudden has to shut down, it also cannot give that item to another library to own depending on the license agreement. But all of those come with ownership, and all of them can disappear with license agreement.
Michael Weinberg 16:02
Do you do you have a sense of? Do you have a sense of how often any of those things are or not included in those perpetual license agreements? Right? Because some of those things will be easier to to deal with in the agreement than others? Do you have a sense of the kind of scale of how often those are in and how often those are out?
Michelle Wu 16:19
Sure. So in the in terms of license agreements that I've seen in the majority of license agreements, the default version does not contain any of those. Now, if you try to negotiate with the publisher, in many cases, especially if you're talking to an academic publisher, they're or an indie publisher, they're more willing to engage with changing that license agreement. But if you're talking to a pretty large publisher, that's highly unlikely.
Mehtab Khan 16:45
I mean, adding to that, I think that not only is your bundle of rights, very limited if your licensing instead of buying. But I think that there's also this perpetual burden placed on the licensee to comply with the terms that might, you know, be an obstacle to them actually making uses or even implementing, you know, models of borrowing that are fair, and that don't run into those, you know, restrictions that libraries with ebook collections are currently facing. So if it's a, you know, a smaller library, or you know, not as well resourced as a top universities library, or, you know, somebody, as Michelle said, who doesn't have as much bargaining power, then I think that that burden is, you know, already something that showing a power asymmetry, and that, because of this arrangement, they would have to continue to spend resources on enforcing terms on making sure they're complying and also on deciding what what is fair or not, when that Fair Use question comes up inevitably.
Michael Weinberg 17:58
Yeah, I often wonder with those with those agreements, right, it's for anything you can anticipate today, it's at least potentially possible to kind of put language in there to address it. But you're to your point of the kind of unforeseen ability the future, right, like Forever is a long time copyright term is almost forever, it's a long time. If you have the ownership, you have the ability to respond to unforeseen things. If you don't have the ownership. That may be where you discover that where you thought you had everything you need. Suddenly you don't show actually, when to follow up. You mentioned that sort of, you know, a t 14 library may have bargaining power that other libraries don't. Sorry, yeah. Could you clarify,
Michelle Wu 18:47
at 14 Library in law libraries, their US News and World Report ranks that the libraries are the law schools are ranked at and the T 14 is considered the top tier of law schools. So if you're at a library at one of those top 14 law schools, you're at 14 Library,
Michael Weinberg 19:04
and why 14? I have no idea. Because somebody was somebody who is 12 was like mad about being left out, I'm sure. Is the nature of their bargaining power? Primarily because of the budgets that they have, or is there some sort of other kind of like social cachet that allows them to push back?
Michelle Wu 19:26
Right. So I actually think it's more these are in law schools, the students at T 14 schools are the people that these publishers want to be using their works. They want right, so so there is more pressure on the publishers to get these works in front of the students at the schools. I'm not saying this is fair. I'm just saying that's just how how I've seen it work.
Michael Weinberg 19:51
So it's, it's almost it's almost independent of their, their budgets. It's just a kind of a prestige thing that the publishers want to be In various libraries, is that a dynamic where that is similar outside of the law school library context where there is kind of like prestige element to submit a better question for the last panel, but I'll ask you now, like a procedure element, or is it is it There's nothing specific about the kind of consumer, the future customers of law students that is different than other kinds of library patrons?
Michelle Wu 20:25
So I would say I've seen it in all academic libraries. I could not speak to public libraries. I don't know if there's any similar equivalent, but within across all academic libraries, I've seen that.
Michael Weinberg 20:37
Sometimes when I describe this project to people, I say it's about understanding digital ownership of ebooks. And the reason we're interested in ebooks is, first of all, because books are important, and ebooks are important. But also because it's an entry points into thinking about the ownership of digital goods more broadly. And I wonder I'm sure, both of you have thought about these questions beyond ebooks. And I wonder, when you when you were having those thoughts, how, how good of a representation eBooks are, in that larger analysis, or are there things about ebooks that are kind of idiosyncratic to ebooks, and so they don't help you understand what it might mean to own music, or movies or other cultural goods digitally.
Michelle Wu 21:36
I do think the analysis is much more complex, when you're dealing with digital works not only because there's much greater utility in it in terms of digital books can be read aloud automatically, it they can be technically translated automatically. So there's much more promise in digital works, I think, than in a static print work. There's also I do recognize, even though I still think we should own our works, I do recognize that for copyright owners, there is a perceived greater risk. I'm not sure the risk is as great as has been described, because I've seen that same fear crop up with other technologies such as the DVR, such as the photocopier. And in every single case, there has been tremendous fear that there's going to be ramped up privacy, or piracy. And they're usually, I'm not going to say there isn't piracy, I'm going to say it's usually not as dramatic as the publishers fear. And they're usually new income avenues that are opened up at simultaneously. So what I'll say is, I do see the digital form as being unique that it has both promise and risks that you're not going to see in physical forms. And that we have to take those into account when we design solutions. But I don't think that should stop us from actually finding a way to design a solution that works for all of us.
Mehtab Khan 22:59
I come to this question by looking at how books are used. So for example, take the a university setting, typically, books are used maybe for the excerpts, or for readings, or to create reading packets, or even the the act of collecting chapters or assigning a book or assigning specific excerpts can on its own have its own expression, it might be from, you know, books that are banned in a particular context, or books that are controversial. And even including them in your syllabus is, you know, an expressive act on its own. And, and so when we look at the ways that books are used, and the the amount that is used, and the purpose for what it for which they're used, and then on top of that, add the digital format to it and the the ownership structures to it, the picture becomes very complicated. If you were just going to the library as a student and picking a book and you know, using a quotation critiquing it for an essay that's different from you know, Professor, including them in a whole holistic reading packet, which is then reproduced or internal copies are created for the students. And if it includes digital copies, and then licensing terms, it becomes, you know, difficult to navigate on a day to day basis. But it also might change then the various calculus, like how much of a book was used, how, what were the licensing terms attached to the ebook that was used? Was the book used despite the fact that there was a licensing market existing for it. And the book was used, you know, in its physical format, and a copy was made without seeking a license first. So all these questions come up because of the, the, you know, how commonplace ebooks have become and how much libraries might choose to include physical books versus ebooks. And it all depends on how what's happening on the ground. I think
Michael Weinberg 24:59
before going up on that do? Do you think the kind of day to day use of ebooks is different enough from the way that we use digital, again, songs or movies or photographs or whatever else, that from a copyright standpoint, it's worth thinking about them as somewhat unique? Or is there use, like completely analogous, across the board to all of these different types of media?
Mehtab Khan 25:29
I think it's distinct enough. And it's dynamic enough such that we see so many different uses of this text form being used across the board. And, you know, coming back to AI, I think the chat bots and language models are this very unique manifestation of a source that is based on text. And so I think that having, you know, this particular kind of media and the rules attached to it, do pose specific questions.
Michelle Wu 25:58
And I think I would say I don't actually see the content of books being unusual in terms of how they're used, or how they can be consumed. Because music can be done the same way. It's just, it's just an audible version of, but it still has words, it still has notes. So it's analyzed differently. But I still think that if you're looking at AI, if they want, if you ask an AI, assuming you can do this, can you write a song? Actually, no, it can, can you write a song and the style of this person, or this artist, it can do that? And I think that's very similar to what you see happening with books as well. So I think there's some I wouldn't call it completely distinct, I think every subject matter within copyright does have some aspects that make them different, but it's within the subject matter, not within the digital form of that subject matter.
Michael Weinberg 26:43
But setting aside AI and sort of large scale analysis. When you think about the other ways that people are using this media. Do books seem to be unique, maybe because of their the way that fair use people the fair uses, maybe how common it is, or whatever to think about it? Or is it? I guess how useful is it as an entry point to this larger questions about digital ownership? Or is it such an outlier? That it's, it's worth knowing, and it's worth spending time, a day thinking about, but it's a pretty unique set of circumstances?
Michelle Wu 27:18
So this is a hard question simply because I understand that books are, they have so many different uses, they're used for reference checking, there used read aloud story like storytime, there are so many ways that you can use a book that I can see that there are like you need gas was covered. But what I will say that in terms of CDL, control digital nd I've been asked about CDL for things other than books. And I actually see it's applicable. Like, I think it applies in every instance. It's not like I would separate ebooks. So that's why it's difficult for me to answer. I do think that ebooks have that books, not just ebooks, books have tremendous utility in all sorts of different ways that you're not going to see with the other types of works. But at the same time, I'm not sure that I would say the copyright principles are different.
Michael Weinberg 28:05
Right, that makes sense. So I want to ask you, one of the things that actually we opened with was by highlighting, and we've talked about this throughout the day, how when you're in a world of ebooks and digital goods, you have this sort of platform layer that is engaged in the transaction and engaged in transaction not necessarily monetary. From a copyright standpoint, how, how much if any complication, does the existence of the platform were add to the way you're thinking about these questions?
Mehtab Khan 28:45
I, I think that the intermediary element of access to books has evolved. I guess libraries are kinds of intermediaries in a way because they've facilitated access on a mass scale for anyone. And they've been like this public resource for centuries. Platforms, I think that have the potential to do that, but have not been doing that. And I guess having that having these specific ownership structures, and restrictions has made platforms serve a very different kind of role. And in turn, copyright law has been difficult to apply in particular fair use, which is what I think about. I think that the ways the model through which, you know, more physical intermediaries like libraries are function is very different from the ways that digital intermediaries like platforms function, and in turn, it affects the public's ability to make very uses. And so I think, to answer your question, copyright rules do take different forms. When we look at two different kinds of intermediaries.
Michelle Wu 29:55
I think that adding distributors to the equation for copyright causes has two main effects. The first is it gives a second entity, so not just the copyright owner, but now the distributor reason to leverage copyright to breach our privacy. So that's one. Okay. The second major change is, anytime you introduce into the copyright chain, a new profit interest that acts against the interests of whether it's the public or of authors, or of indie publishers, right of everyone else who is not making a lot of money off of this transaction, it is a very, very natural thing. If your bonus, if your stock price goes up, because you're making money for your company, you are going to be incentivized to benefit your company financially over every other interest whether that interest is an author, whether that's the public, it's just a very, very natural incentive. And now you don't just have the cooperator, you have the copyright owner and the distributor, who are both incentivized to maximize their self interest over the interest of everyone else involved. So that's not a great thing for copyright.
Michael Weinberg 31:10
So one of the ways I was a bad moderator this morning, is that I I teased audience questions, and then we ran out of time for audience questions. So I'm going to avoid that problem now by opening the floor to audience questions with hopefully plenty of time to get to at least one or two. So if people have copyright questions, let's bring them on. Let's do it. Your host, you're close to a mic.
Speaker 4 31:40
So there are two threads that I've seen come up throughout the day, the first, on the one hand, it sounds like we need more players to create a more competitive market. But on the other hand, we need a centralized marketplace for all of these players to come together and gather. Do you believe that copyright law has a place in helping us strike this balance or other laws? Or do you think that's going to necessarily be like a business strategy decision?
Michelle Wu 32:11
I'm not sure it's copyright law proper, that will help us strike that balance. But I do actually think there is a way to strike that balance. The first thing I will say is I do think that all of the efforts that are ongoing right now, whether it's state trying to do state legislation, federal legislation, antitrust, like all of those efforts, I think are fantastic and keeps the pressure on trying to maintain the balance. But it will also say this, there is a part of me that thinks that we're playing a really bizarre game of Whack a Mole, because of the very, like the profit incentives are always going to be there. So anytime we close the door on one profit making strategy, the incentive is not to be more reasonable. The incentive is let's cut another door. So so there is a part of me that worries that like that, unless we change the incentive, this is just going to continue. I can't tell where it's going to continue. I can't tell what action is going to happen next. But I can tell you most certainly that there is going to be another effort to use copyright in a manner that it wasn't intended to be used. And so what can we do? I do think that we have to change incentives, I don't think that's going to happen by the players themselves simply because of these natural market incentives. Right. I don't think it will happen in government, I think we should still try. But the reason I don't think it will happen within legislation is simply because we have to persuade the majority of lawmakers who have a personal interest in reelection, and their campaigns are actually funded by the people who don't want change. So I think legislation is hard. I'm not saying it's impossible, I'm just saying that it's hard. But I do think there remains a path available to us that we can explore that has not yet been explored. And this is it. So collectively, when we talk about copyright, we often talk about copyright as being the starting position. And of the exceptions such as fair use being the limitations on copyright. But I think what a lot of us really forget is that copyright itself was meant to be a limitation on a natural right, or a series of natural rights. And that is the natural right to consume, use and share knowledge. There is a lot of that natural right, I believe that still exists that copyright never spoke to. And so I think it's not preempted and can be brought in a lawsuit. So let me give you an example. I'm in control digital lending, I think there is an equitable right, maybe you want to call natural and equitable right? To reasonably use information that is legitimately acquired for the purpose for which it was acquired. How does this differ from fair use? One is it is not a defense. I'm not saying I infringed on copyright and this is my justification for it. It is actually saying that a broad read of copyright infringes on the right for me to reasonably use information that I have legitimately acquired. It is a public, right? It is not the right of the copyright owner. For everyone out there who thinks I'm crazy, which I would not blame you, if you did, all I will say is this is I would ask everyone to suspend their disbelief and do three things. All right. The first is to look at the history of copyright. Go back and think about this in a democracy and a republic in a democratic republic, regardless of how you define the United States, it is not a legitimate purpose of government to protect the private profit interests of less than 1% of the population over the occupations of every other occupation, right. That is not a legitimate government interest. However, it is legitimate government interest if you go back and take a look at the correspondence to say we want information to get to our public. So if you take a look at the correspondence, this was at the time of the Continental Congress, you'll find that there were authors who actually said, we have written some works, we're not willing to release them to the public, because we know that they're going to be taken by publishers, publishers are going to make all the money and they're never going to pay us anything at all. That is what justifies the government protecting copyright, it was to ensure that authors felt safe enough to release their works to the public, to actually give them to us, so it wasn't protecting the private interests of the authors, it was to ensure that knowledge made it to all of us. That is the purpose of copyright. And I would say that goes to the natural, natural right to knowledge. All right. The second thing I would ask everyone to do is this, think about all of the uses that we make of copyright every single day, and we do not pay the author and you can think of fan fiction, you can think of a piano recitals, right, you can think of mixtapes, which I realize dates me tremendously. But it is still a good example because in the aggregate, and how it was used in the 80s and the 90s, I would argue there was a market impact. Now I don't know if that market impact was good or negative. But I would actually say the number of people making mixtapes could arguably affect whether or not people purchased those albums or those songs. And then the third thing I want you to do, while you're suspending your disbelief is to consider what the effect on public on on profit makers would be. If only one judge agrees that there is a natural right to knowledge and a broad reading of copyright infringes on that natural right to reasonably use information legitimately acquired. All it takes is one case, to show to publishers, who are pursuing a profit motive above all else, that there is a risk to not behaving reasonably, the risk is not just that they'll lose on this one case, it's that everyone else will bring similar suits on similar natural rights, and the publishers will lose a lot more than they would lose if they behaved reasonably. I am not saying that this is necessarily a winning strategy. It is a very, very hard one to raise equitable issues or natural law issues with the courts. But it has been done. And I would say this is just one additional way in addition to all the tools and all the efforts that everyone is making right now, to try to reassert the balance and copyright and to change the entire incentive for the people who are profit driven. To make them consider there's a risk there's a public interest, there's a public right, copyright is not merely an author, right, it is not merely a publisher, right. It is a public right. Thank you
Michael Weinberg 38:49
we will we will suspend disbelief for potentially I mean, you know for the next question, if anyone has another question.
Speaker 5 39:00
I'd like to ask Kim ebook ownership exist without DRM.
Mehtab Khan 39:15
I think that making copies in the digital world is very easy, and also creates these risks that don't exist in the physical world in the same way. And so we do need some sort of safeguards that wouldn't allow unfettered use and duplication of digital materials. But that does not mean that I agree, or condone, like the DRM regimes that presently exist. I think there are a lot of problems with those regimes and that they are overly restrictive. But I do think that we need some sort of restriction
Michelle Wu 40:00
I think there are certainly ways and I think that there are some distributors that are experimenting with this already. There are ways through technology that you can balance out. You can not have DRM but still protect ownership rights. So for example, I think some companies have been exploring blockchain where you can where you can. I know, I know there are other issues with Blockchain. So the suggestions I'm about to
Unknown Speaker 40:27
give you a great solution for a blockchain.
Michelle Wu 40:33
There are I think there are technological solutions, all of them have costs, I won't say they don't cost but DRM also has costs. So it's really a matter of weighing them. So another example is you can use watermarking. And you can use digital footprints for lack of a better term, but just not make that information available for available to the publishers. Unless, for example, if you can track where an item has been, if you can find 500 copies of that same item, like you can see that it has come from the same place, then that gives a cause of action for the copyright owner to say, Okay, we're going to do discovery and see if we can track it down. But this I mean, it becomes very, very complex. When you think about how this could be done. Well, I'm not infringing on privacy, everyday privacy, but I'm not. But I do think that technological solutions exist out there. It's just that we don't we haven't been focusing our efforts on that. The effort has been we're just going to shut down ownership entirely. We're not just we're not even going to try to see if there might be another technological solution that could protect our rights while still protecting the consumer. So I, I think it's possible. We just haven't fully explored it yet.
Michael Weinberg 41:45
I'm going to use my my moderators prerogative to answer that question and say, Absolutely. And I think there are two data points that suggests that the answer is obviously yes. The first is and that we're talking to people yesterday, I apologize for people who heard this rant yesterday. But on the website, Bandcamp, sells DRM free, and there's no license agreement in music. And it just like, does it and the the the sun has not fallen from the sky. And so there's an entire was like 10s of millions of dollars in turnover that is just selling digital goods as a digital good with no license at all. The second is, I have yet to seen anyone who can show me that, including a watermark, or DRM or anything else eliminates that work from the world of piracy. You can you can find pirated copies of all of us works, even if they have DRM. And so I don't quite understand what the value the restriction is. Anyway, rant over. We've got two minutes left. If so if anyone has a question that is short to ask, and short to answer, this is the moment you've been waiting for. If you don't, that's okay as well. All right, this is a challenge. Oh. Question. This is question time questions. Anyway, this quick question mark, not a period. That's a rule of engelberg center. Anyone have a question? Why is Michelle, so awesome, why the show is awesome. It's just the way she was born. Alright, so in that case, I will, first of all, thank my panelists so much for joining us. Please join me in giving a round of applause. I also want to make everything all of you for coming. Thank I also, I don't think I mentioned Kyle Kay, Courtney was supposed to have this panel, he's not feeling well, he would have brought all sorts of insight. And so we will track him down in the future. I also want to thank Claire woodcock, for doing all the lifting of like organizing this event. So thank you, Claire. And Katrina Sutherland, who is outside for doing all of the lifting to make this event the operational work. So please thank her on the way out. And then the last thing I will say is, it is a beautiful day in New York. And so I hope that the early end time of this events in the grand scheme of the afternoon, does not break your hearts. I hope you get an opportunity to enjoy the day. If you are wondering to yourself, you don't want to be outside the entire time. Is there a bar nearby that opens around for? The answer is yes. One of them is called Golden we it's on West Fourth about two blocks from here. It is possible that other people who have a similar question walking out of here may find themselves over there. But again, it doesn't even open till four and so you know you can go and make some mistakes before then. But with that, thank you all so much. Thanks for being part of it. This discussion this events, I'll never see you again
Announcer 45:07
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