These controversies highlight a sharp division between those who believe the digital revolution is progressively undermining the copyright protection essential to encourage the funding, creation, and distribution of new works and those who believe that proposed enhanced enforcement measures could inhibit creativity, technological innovation, and freedom of expression.
Despite these legislative impasses, the past several years have witnessed considerable activity in inter-industry compacts aimed at addressing the challenges of online copyright enforcement. In 2007, leading Internet and media companies promulgated Principles for User Generated Content (UGC) Services that have fostered the development of Web 2.0 services while combating infringing distribution of copyrighted works. Although Google did not formally sign on to this accord, the ContentID technology that it implemented in YouTube’s UGC portal reflects the UGC Principles. In June 2011, major credit card companies and payment processors—American Express, Discover, MasterCard, PayPal, and Visa—reached an agreement to develop voluntary best practices to withdraw payment services for sites selling counterfeit and pirated goods. The following month, a group of major Internet Service Providers (ISPs)—SBC, AT&T, Comcast, Verizon, CSC, and Time Warner Cable—and leading content industry organizations—the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA)—entered into a memorandum of understanding to implement a flexible Copyright Alert System to discourage infringing distribution of copyrighted works. In May 2012, the Association of National Advertisers and the American Association of Advertising Agencies issued a joint statement of best practices to address online copyright infringement. Although some may doubt the merits of these agreements, other privately negotiated arrangements will continue to emerge as new technologies make access, use, re-use, and distribution of content an inherent part of our culture and economy.
The scope and enforceability of copyright protection has substantial consequences for the nation’s culture, research enterprise, economy, trade balance, and international influence. Although copyright law’s efficacy and contours are amenable to empirical inquiry, systematically collected evidence using transparent analytical methods has not often been brought to bear. When data are marshaled and presented in copyright debates, it is usually by or on behalf of a certain set of stakeholders without opportunities for critical review—for example, many of the estimates of economic losses from infringing use of copyrighted materials, as well as estimates of the economic value of fair use enterprises. And, unfortunately, support