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 be sector 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 ibr'd standards. nara's recent assessment reaffirms the decades-old guidance contained in omb a119 that when copyrighted works are ibr'd, those works should not lose copyright and government agencies must observe and protect the rights of the copy right holder. and that's just what's being done. ..

>> competitiveness, public safety, successfully commercializing american innovation 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. >> mr. malamud. >> thank you, mr. chairman. mr. ranking member and thank you for the opportunity to appear before you today. i'm the founder of

public.resource.org, a nonprofit that which government databases that everybody agrees our public. on the internet and then works closely with government to help them improve their own operations. i am responsible for placing the fcc edgar and use patent databases on the internet for the first time. public resource have put all the historical opinions of 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's a fundamental principle of our democracy. the rule of law, that states if we are to be an employer of laws and not of men we must publish 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, 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 1000 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 standard 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 see everybody needs a license because they need the money. but the goal of the process is precisely that their safety codes become the law. they lobby aggressively for that outcome and they boasted loudly when the codes are adopted. when a safety code becomes law, the publisher gets a gol gold sl of approval of the american people. to exploit that position by selling all sorts of ancillary services such as membership, training and certification. the business has become an 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 firefighter, journalists and citizens. mr. chairman, i'm happier for the committee's inspection 20 public safety standards that are part of federal law. including the safety requirement for wood and metal ladders, the seed requirement for protective footwear, the national fuel and gas code. if you were to read these laws into your hearing record, where the congress faced strident objection 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 and -- an amendment to the copyright act to clarify once and for all that the law

belongs to the people. thank you very much. >> thank you. i want to commend the witnesses. you have complied with a five minute rule and i thank you for that. we will try to respond accordingly. mr. schultz, what changes to u.s. law would you recommend to address broadcaster concerns about signal theft? and with these changes be to our copyright law or our many occasions law? >> thank you. that's an excellent question. the law as it currently stands serves well, as i testified it serves both the public interest and serves broadcasters well. there are current developments that could change that, notably the aerial case, regulatory proceedings and a number of

other court cases. 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'm not aware -- i don't speak on behalf of broadcasters, i'm not aware of the fact of broadcasters seeking new rights. thank you. >> let me ask you another question. your work on copyright issues, what other issues of concern to you believe are of interest to copyright owners generally? >> thank you. i think indeed the subject of this hearing is an important one. it's important that creators are able to secure the return on their investment and their labor.

and that is currently the challenge, quite obvious challenge in front of all of us. so i think in the long run that will need to be stressed. >> thank you, sir. professor liu a comedy believe that explicit, making available right would signal that broadened the scope of copyright protection on what it is today? >> making available to we use the liquid of the treaty would not change the law in the filesharing context by any measurable degree in the litigating cases. it would however open a potential issues in a public performance and public display areas linking retransmission and issues of that sort for cloud computing and social networking sites. reopen some of those issues. >> does your lack of concern for the impact of filesharing reflect a view that congress should reduce copyright protection in other areas?

>> i think one of the things that have slipped in almost by accident to copyright law is we shifted over the last 20 years, or expanded copyright to give the individual consumer involved in copyright infringers. i think that's a bad development. for the first two images copyright was directed solely at other commercial entities. i think it worked best when it worked in that fashion. when you start getting individual consumers in the mix, you get infringers in the mix, you get privacy concerns and other concerns. i think that is critical problems for copyright policy. >> mr. love, and do you believe that other nations are close to a conclusion in drafting broadcast treaty? >> could you repeat that? >> do you believe that other nations are close to a conclusion at why go in drafting a broadcast treaty?

>> in 2007 we thought that the treaty was essentially stopped and was going to be any further progress on a. after the americas treaty, which was adopted by wipo in june of 2013 commit opened up a lot of space in the negotiations of wipo. and it was i think quite surprising that in september of last year, country after country took the microphone out the general assembly of wipo to call for a diplomatic conference in 2015. i think the secretary at of and in is looking for a hat trick. they would like to have three treaties in and in the copyright field, having concluded asian treaty in 2012 and americas treaty in 2013. and i think they're focused on that. we would prefer that there is no broadcast treaty. we are opposed to the proposal. but it wouldn't really -- i think people are wrong if they

don't think this thing is moving forward. at this point there's a large number of countries that are calling for diplomatic officer when she going to differ medic conference is difficult to predict what the outcome will be. >> thank you, sir. let me try to beat that red light. how does one respond to the statements of some assistance deserve full access to the laws and rules about which they are required to live? >> 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. even at times when they are incorporated by reference into legislation, both the second and the ninth circuit has held that those standards and codes do not necessarily lose their copyright protection by virtue of that.

another dimension of the issue is only in ba1 19 and the in tta. they demand the federal agencies incorporate standards into federal regulations when they are able to do so. a final dimension of the issue is that one that says that citizenship should have the right to see what the law is. the way that those dimensions have been bridge over the course of the years is through a tool that is contained in the freedom of information act. and that tool is called in corporation by reference. that provides that federal agencies can incorporate into federal regulation, extrinsic standards as long as those standards are reasonably available to the class of persons that are affected by it. that too has permitted the federal agencies to comply with their obligations under omba119

while at the same time respect the copyrights of the standards that are so incorporated. recently that's been challenged by mr. malamud and others, and they have gone to nara and they have questioned whether it's recently available standards ought not be changed to make the standards for free. and nara has concluded 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 to the federal regulation. >> thank you all. i see the red light is on so i will not recognize the gentleman from michigan for his questioning. >> thank you very much. professor, we appreciate you being with us today. i'd like to discuss with you what you see as the key issues facing copyright industries in

the public today, when it comes to the current copyright system. >> thank you. obviously, a very broad question. and i have to give a broad answer. i think the answer is that we are governed by a statute, written essentially 1965, passed in 1976 and now here in existence 50 years later with technologies that were not remotely contemplating. we see each of the rights of the copyright order coming under the train. today we been taught by the distribution right and it's making available component. you have already mentioned the united states supreme court granted certiorari. that's the case about performance right. we see because of the internet a convergence of all of those rights. so classically back in 1965 there was a great difference between we producing a book,

publishing it, and then distribute in it, and then a performance which would be a play. today when the bits over the internet, sometimes it's conceptualized an act of reproduction. sometimes it's an act of distribution. it's 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 brought under the rubric of three rights. i'm not prepared as i stated today to offer the answer but i think it's exactly the right question to ask. i would be pleased to work with the committee on a going forward basis. >> we appreciate that. do you think the courts have struggled to apply making available right in the united

states, even though congress and government experts agree that the existing law should cover the right? >> 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 has uploaded thousands of works might be liable for hundreds of millions, possibly even a billion dollars worth of damage. that's why think at the same time that congress confronts the making available component to the distribution right, congress should also rationalize statutory damages. right now the scheme was set in 1999. the law happened to be passed right before the invention of the service called napster. so our law is trying to keep pace with developers on the ground and that's what i think it a unified approach would be best where we look at the making

available right in statutory damages come and small claims court all in one unitary point of view. >> and finally, i wanted to get the explanation of why you have changed your mind on the making available right, was not encompassed by the distribution right. in previous editions. >> good, thank you. it's a challenge of writing treatise because anyone sends can be taken out of context and applied in a way that would it was not intended. in particular in 1995, there was a second circuit case in which somebody who owned laurel and hardy videos said hedges writes have been violated by cbs because they broadcast a video. he was correct. but he said his distribution rights have been violated by the performance of those videos.

the district court tended to agree with them. so the second circuit reversed, and i wrote up that case to say it's 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, namely, a physical copy passing and. i wrote that in 1995, three years before napster was formulated so i did not have peer-to-peer services in mind. unfortunately, that sense was taken out of context later. >> thank you so much. i'll yield back the balance of my time, mr. chairman. thank you. >> thank you mr. condit. the chair recognizes the distinguished gentleman from virginia for his statement. mr. goodlatte. >> thank you, mr. chairman. i'd like to follow up on the ranking member's question. professor lunney has raised concerns that adding a making available right would change long-standing jurisprudence.

i take it you don't agree with that perception. would you elaborate on your view? does that you imply that congress should never update the law for any reason? >> thank you. yes, thank you i do disagree with that point of view. it all depends what type of law caucus were to pass but 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 case construing the dissertation right have come down on both sides of 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, winning individual uploads a copyrighted work to assure fold it is thereby been made available to

the world and the act of copyright infringement is complete. it's 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 rights or the display right. >> let me give everyone on the panel, 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. >> him on the issue of copyright law, i think there is a distinction between whether the state laws regulations in the united states can be copyright

copyrighted. i think the u.s. laws that work -- federal laws, federal revelations are not subject to copyright. i think it would be good to extend that rule the laws at the state level, and everything from court opinions to regulations to statutes. and i also mentioned that the -- the convention itself has a special provision that gives governments extra flexibility in the area and of testimonies, of legislation, of anything that basically smacks of law type proceedings. so i think it is good that you focus on this issue. and i think -- i certainly agree with what karl was saying, which was if you're expected -- my father was a judge. if you're expected to abide by the law, i think of right to know what the law is. i think that's good this

committee is looking at that issue. >> professor schultz? >> thanks. i'll briefly speak. i think many of the principles i discussed apply equally to standards, that we need to ensure that the authors of standards can be compensated for their work. and i think ms. griffin did an excellent job of testify, but we should all keep in mind that the standards are incredibly diverse. and some standards have thousands of parts and thousands of some parts in those parts. in the case of things like technical standards. so standards cannot all be treated the same, and there should be due regard to the complexity and incredible expense, and incredible public value that is created. thank you. >> 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 reviewing? we will start with professor lunney. >> i agree with david on this statutory damages is going to need to be revisited, particularly in the individual consumer context. it's a real problem to treat them as we are now. hundreds of thousands of dollars in damages, not appropriate. >> point well taken. professor schultz? >> the digital millennium copyright act and take a provisions are broken. they are based on an outdated paradigm that you could contain a file and stop it from spreading. it's no longer working for creators -- >> i noted a piece just weaselly that said that google had received its 100 millionth takedown notice. >> yes, and that goes both ways.

calls are symmetrical. that means hundreds of minutes of notices have to be sent, small craters, individuals, thousands, tens of thousands of people who make a good middle-class living can't afford to spend all their time trying to chase people around the internet. this system is not working for them. it needs to be revisited. >> mr. love? >> i think revisiting the issue is quite important. i think the decision has great 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's impossible to identify who the owners of a lot of works are. in some cases who the authors are, photographs, old pamphlets, lectures. a variety of proposals have been made to deal with orphan works, but one of which is to consider the flexibility you have on

formality. certainly for the post-trip requirements for 20 years of photographs in 50 years on copyright. you can introduce formalities. proposal in the tpp negotiation, that the u.s. was proposing. 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 byrne commission, there's no obligation to have formalities. so far not all things that are considered copyrighted indiana stays are actually required under international obligations of the byrne commission picks i think a deep and technical look on where you can introduce formalities -- some people like and the recording industry have expressed some openness to the idea that it was made, it would be a good idea to sort of give more protection to people -- i'm sorry, i'm going to wind this up. the final thing, the treaty for the blind provides an opportunity for the united states to share its collection of works done better copyright

except for blind people in other countries. i think that needs to be fixed. >> mr. chairman, my time has expired but i notice mr. nimmer wanted to jump in on that as well, if i may. >> objection. >> thank you, mr. chairman. the written statement i submitted put to other matters into the hopper. one is the united states supreme court last year ruled that grey market goods can be freely purchased abroad and imported into this country. justice breyer's opinion said we think this is what congress intended. if congress did not intended then congress can come back and tell us. that is something that's very alive now. there's 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 for sale doctrine and congress needs to look at what rules it wishes enough for the road of this uncharted territory of the cloud. >> thank you, mr. chairman. >> the gentleman's time has expired.

ms. eshoo from california. >> thank you, mr. chairman. as the coach of creative rights caucus along with chairman coble, i believe that making available right is ingrained in our current statute is an essential part of our copyright framework. congress has repeatedly concluded that no change to use copyright law was necessary because existing law already includes the making available right. federal appellate courts also arrived at the same conclusion. this is also the case in various international agreements such as wipo and the wipo copyright treaty. i believe that making available right to inherit exclusive right to give craters of freedom to express themselves and more importantly to decide how and when they choose to distribute and publicly perform their own works. professor nimmer and professor lunney, what, if any, impact carving out a separate making available right to the copyright

act, what effect would that have on online theft, which expressly making help lessen the burden of for individual creators or make the process easier for them to prove their works have been infringed upon? >> thank you, represented. i think it would streamline the cases come 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. >> as you might guess, i disagree with professor nimmer. it used to be under nasper that you go on and find one user who has the file into a downloaded from that particular user. that sort of file sharing has

gone away. the file is divided up into separate segments and it's 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 case is essentially irrelevant under the protocol. whether we have the making available right with the existing education right. as a practical matter almost all of these instances where file sharing is down, what happens is the investigator identifies the person, the ip address, they go to court, get a subpoena to the isp to get the consumers information. they sent a threat letter and that's as far as it goes. these are settled or the consumer can present some sort of in case evidence they were not the person who did the downloading. that's it. only a relative handful, maybe 30, 40, a few hundred actually ever go any further than that. if it goes to trial to get a

copy of your hard drive. at that point it's relatively trivial to prove the file sharing activity engaged in. i don't see how this would help small creators. >> professor schultz, you like -- you look like you have an opinion on this. >> no, thank you. [laughter] >> professor schultz, let me turn to a different issue, which is i would like to a specifically about the aerial case. of course, you know the supreme court agreed to hear the aerial case to determine whether online streaming of live broadcast of cities and infringement of the copyright holder's exclusive right of public performance. given the economic importance of intellectual property in that country, and the constant evolution and modern technology in which more people and content over the internet, is this an appropriate question for the court to determine, or should congress legislate and settle this area of law? how would a decision favorable to aerial change the landscape

of how broadcast content was delivered to consumers in the future. >> thank you. that's an excellent question. i think i'll begin with the second part of it, how would you change the landscape of broadcast. it's not the only court case that the broadcast and television creators -- broadcast industry and television critic face. we have one coursing essentially intercepting signals and aggregating them and sending them to their customers, and aereo does not require payment of retransmission fees. we have another court saying that skipping commercials out of broadcast is perfectly okay. we have another court in cablevision essentially saying that a virtual on-demand service is permissible. when all this is said and done you have to ask where the

revenue is going to come from. how these companies will get compensated for their work. so i think a 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 this tremendous investment. they have in broadcasting. and content creators can be compensated for their work. so i think that this isn't 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, congress will have to act. thank you. >> thank you. i yield back. >> thank you, congresswoman. the chair now recognizes the gentleman from north carolina, congressman holding. >> thank you, mr. chairman.

professor nimmer, maybe this is best directed towards you, but could you take a minute or two and explain further how u.s. copyright law compares to that of other nations? particularly distinction features. >> okay. the theory of anglo-american copyright law is basically instrumental, that it's therefore a purpose to promote the progress of science. in the continent, in europe, the underlying theory is much more based on natural rights that there's an instance of connection between the author and the author's creation. and so, therefore, there's 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. so that's the broadest answer to

your question. the philosophical underpinnings that i just outlined obviously play through practical applications 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 work of visual art in 1990. and it plays out in other ways as well. that's a very brief answer to an extremely interesting and broad range of questions. >> maybe we can get down on this specifics in the context of we are negotiating some trade agreements, ttip in particular i'm thinking of. what type of copyright issues might be brought up in that context? and do you foresee any divergence is which can cause particular arguments? >> let me ask, are you talking

about the free trade agreements? >> right, correct. >> insofar as i'm 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'm not aware of, include making available right. and so notwithstanding the philosophical differences between different countries with different roots of copyright, there has not been disagreement in so far as i'm aware of with those free trade agreements. >> i would like to open it up to the panel, if anyone else would like to chime in, the particular issues having to do with our copyright laws versus other nations and problems there. yes, sir, mr. love.

>> u.s. has -- a lot of foreign countries, but the u.s. has broader fair use rights. and so the combination is such that there are 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 agreement is sort of cherry picking the parts of the u.s. law that -- in some cases, that publishers like. they sort of pick really aggressive standards as far as damages to the extent they are even requiring countries consider the full retail value for the basis of damages, for sample, which isn't even valid in u.s. law. is contrary to u.s. law. on the one hand, and then kind of a halfhearted way of looking at the fair use thing. what you got a 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 than most foreign countries do which is kind of this paradox. i think the problem in trade policy is also the negotiations are completely secret. we help leak the september version of tpp negotiation, and negotiation involving something like 40% of the world gdp in that negotiation. we don't know what the current version is, and neither do you. i don't see how you can possibly expect a trade agreement with japan and mexico, basically nafta triple squared with that much gdp on the table. and like not even know what's going on and not have that being transparent. i think that congress has fallen down by a long copyright policy, you made secret through these trade agreements. >> i yield back.

>> i thank the gentleman from north carolina. the gentleman from florida. >> thank you, mr. chairman. professor, i wanted to pursue in a little more detail some of the assertions you make in your written testimony. all of this to support your assertion there's no need for making available right. you say the un-authorized copying distribution or streaming across in it are not the problem. you talk about the purpose of copyright is not maximizing revenue, but to make the works more widely available. you said here today that the measures of music output is that we should look at, not the money made. file-sharing encourages that. you went on to say, even while formally illegal, file should have provide a much broader access to existing work in the

pre-existing market mechanisms accomplish. the are a few things i'm trying to route my arms around her first, you had said earlier that the copyright law in this area, that was focused on, never on individuals but always on corporations. and i wonder if you draw a 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, 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're prepared to accept? >> thank you for the question. it is a hard area to get our hands around. it is counterintuitive to suggest at some point that less

revenue could lead to more work. it would be a surprising result. i was surprised by the result when i did empirical work myself. and, of course, from my perspective, i'm sort of an ivory tower academic. i don't expect my work of any real-world significance. am not sure i would want to do. i want to export issues and try to figure things out. you get a result like this and you publish it and all of a sudden you are at the center of controversy. copyright is not a never ending state. he gets up and add more and more and more and expect to get more work out the other side. there's got to be diminishing returns at some level -- >> first of on not asking you to reject has one. i understand. i'm just asking, when you say that filesharing, the sharing of copyright 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? >> there's filesharing. there's potentially for sharing tens of thousands with tens of

thousands of people. we assume that has the same effect as if a competing commercial publisher came along and offered competing copies in the market place. >> except that -- here's what i don't understand what the argument that file sharing, illegal filesharing is somehow okay. if the goal is to spread the amount of music and creative works and film and all of his 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 can scoop up all the cds and dvds and take them out on the street corners after they have copied them tens, hundreds, thousands of times are gone into business on their own?

what is it different with the physical product and online? >> it's different when consumers are doing it than with a commercial entity is doing it. >> right. i'm suggesting to you that that individual breaks in to the big box retailer and scoops up maybe only one or two, takes a couple, a couple of cds and dvds and makes copy of those and then goes ahead and shares those, spreads the information far and wide, gets all this intellectual property out there. why is this different? why should be acceptable for that to happen online but not on the street? >> so if this individual is breaking into the big box, are they offer those copies for free or -- >> is that our distinction? >> i think it is an important distinction. >> right. so if we had just someone whose goal was really to spread the great american intellectual property that we are also proud of by making copies and distributing it out at his or her own good will, thousands of

copies, tens of thousands of copies, millions of copies, that's perfectly acceptable. >> i think we do have such individuals. i think they are called libraries. they have coexisted with the commercial market for hundreds of years without undermining it. >> right. they have libraries that upgrade and have operated 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 -- this is what's also confusing to me. when you talk about the fact that, as you explain, you say the question is whether filesharing is causing the record sales but the decline of record sales. you talk about other ways that creators can be compensated, separate and apart. then you go through all of them and you conclude yourself, you reach your own conclusion to 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, the actors and actresses and anyone involved in the production of a film or tv show. you refute your own argument and ultimately your conclusion is yes, you do acknowledge any footnote that yes, there is less money going to the industry, but that it's not fair to point it out that that may mean there may be fewer critters willing to engage in the work. all that means is if you have tougher enforcement, that the dollars that floated at those industries are dollars that would've otherwise been other industries, that your rice visualization doesn't seem to make sense. ultimately, the conclusion you reach that somehow it's in the best interest of creators in our

country for their creative works to be spread far and wide without compensation, and as you've acknowledged not just a couple of kids trading songs that hopefully they purchase, but, in fact, the spread of tens of thousands or millions that ultimately, the goal is to spread that ended the management in the amount of compensation to those creators will have no impact, you say, on their ability to continue to do their job. is inconsistent with what all of those that i have talked to who rely on copyright to protect their intellectual property, it is inconsistent with what they tell us they need a note fo fors to engage do uphold this great american intellectual property that we value so much. i yield back. >> the gentleman from pennsylvania. >> thank you, mr. chairman. i wish i had three or four hours to discuss these matters with

you. it's 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 deeply that we need to legislate more? [inaudible] >> i think the way, clearly the way the system works now is a public-private partnership with standards developing or physicians who have technical expertise working with the federal regulators who are in their space. and together, and through the partnership, they develop, you know, regulations that best meet the requirements of the regulator, whatever that may be. in this country that's a very diverse group of people and there are very many groups that do that. but what the standard developers, organizations bring

to that is providing the administrative support that permits the group that sits at the table to be open and balanced and transparent 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 full some and makes it the system that is. >> thank you. professor schultz, you talked about notice of taken. let's have an example here. i have a search engine. i create a search engine. i name it after my son, victor search engine. you are a musician, and a writer -- where you want to be the singer, the writer or musician, but at this point you have a

record out. you have a cd out to get music out. and i do not buy it from you. you are paid to no compensation from me, but when people put your name in my search engine, your music comes up. you send me a notice, and i do nothing about it. your music comes up because i'm the guy who is illegally selling music to people, and you're not getting paid for it. you keep sending me notice and notice and notice. what do you think should be done about that? >> thank you for the question. i think, indeed, there are two difficulties to 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's based on an old paradigm that what we had to do back in 1998 was stop a file that escaped on the internet, quarantine it and pull it back. naïve now. now every time somebody -- some resort is in french they have to send a separate notice for every file no matter how often. >> do you think i should be held responsible even though you're not sure how many people are downloading the music? because every time somebody so my search engine and pops your name in, your music comes up and i'm selling it to somebody for 10 cents a pop. >> yes, absolutely. if you're the site hosting and profiting from someone else's work, whether it's through advertising or -- >> do you think i should be held criminally liable to? >> criminally liable, that's more challenging questions. >> stealing from you. i was a prosecutor for 18 years. so i'm stealing something from you and selling it and making a profit off of it.

you think i should be judged criminally? >> of course we're going beyond the scope of this hearing today, but yes, i think criminal law can be a useful tool, but it has to be very carefully applied to instances where -- >> okay -- >> the users -- >> thank you. professor lunney, another example. instead of an attorney, you're a struggling poet. you live in a one room apartment above a factor that you don't have heat in the winter. i'm looking -- i'm a songwriter and i'm looking for your book of poetry and i find this magnificent home that she 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? >> the issue of derivative work iis a difficult one and i personally would not have a problem with that. >> you personally are struggling -- >> no. >> hardly eating, he writes his book of poetry and you don't have a problem with that?

>> i feel it's the inventive effort and creative as a second,. >> let's go back. now, your father is a great poet. struggling, trying to keep a family. and again i use his poetry and i make $10 million off and he can't feed his children. should anything be done about that? do you have a problem with that? >> well, i'm not sure exactly what you're doing, mr. poetry, but -- >> i'm selling and making a lot of money on it because i'm putting it to music. do you have a problem with that? >> he was just a poet. >> and he wrote a book and he really wanted to sell it but i took a pull him out of that book and now i make $10 million. he can't feed his kids. >> right. my perspective on the law of derivative work is we should require necessary license and all those contexts because it's really the derivative on who has the real value to that. >> we tend to disagree on the.

i think i would be a little angry if my father said, we're not eating here today, folks, i think this guy should be able to take my work. i yield back. thank you spent thank the gentleman from pennsylvania. the gentlelady from california. >> thank you. thank you, mr. chairman. mr. nimmer and professor lunney, if we were to clarify the making available right in the law, do you think that would raise any first amendment or free speech issues? if so, what do you think we might be able to do to avoid those challenges? >> i believe that 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.

i cannot believe we need to pay special attention to the. it could be if congress wished to have a special surgical intervention, for instance, because of the state of pornography lawsuits, if congress wished to limit the protection for pornography, that might be a way to address the problem. that within raise the question of what level of first amendment scrutiny would apply and is there sufficient governmental interest to satisfy that. but straight making available aspect of this division right i believe does not raise any special first amendment concerns. >> i actually agree with david on this issue. if you passed a very narrow amendment, perhaps create a presumption tha that the work me filled in a sharing folder could be presumed to have been downloaded, that it would be infringement under either interpretation of the existing destitution 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, a public display right or cloud

computing or social networking, you're going to get into first amendment issues. i also agree if you try to go out to copyright -- that may raise first amendment issues. >> so if we feel that the making available right is implied in the law today, why do you think the courts are having so much difficulty with this right now? mr. nimmer. >> i believe the elephant in the room is the amount of statutory damages. when the young single mother is critical goal 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's why i'm urging congress to have a global solution. at the same time that it reaffirms the making available aspect of the distribution right, that statutory damages to a reasonable extent. >> and do you agree with

professor lunney statement earlier that -- or having explicit reference to a making available right would cause economic harm? >> i'm not positive which aspect of professor lunney's statements are looking at, but i combat economic stiffly than he does. suffice it to say that it's a very interesting study, but what it does not eliminate is how much users would've been created in the last 10 years of lowering studio costs had there not been. it here illegal filesharing. >> professor lunney coming to think there's any way to define the making that will write more specifically that wouldn't cause old cases to be reopened and the uncertainty that you talked about earlier in? >> yeah, there certainly would be. if you want to affect a dissertation in the peer-to-peer filesharing context you could create a presumption that the

share folder has been downloaded. it never gets that far in any existing case but in the one case where it was raised, jayme thomas case, she was found guilty of copyright infringement for the first time with making available instruction on the destitution right. it was retried after the judge said no, that's not right she was still found guilty. >> thank you. i yield back my time, mr. chairman. >> the gentleman from california. >> thank you, mr. chairman. and ms. griffin, i ask a lot of doctors be placed in the record earlier. most of them are related to the gentleman next to you, mr. malamud. it's an amazing thing to me that i came from a standard-setting opposition, electronics industry association and cea.

and you can have a high-definition television if we hadn't figured out what the standards were going to be. we wouldn't be arguing over captioning of digital broadcast if we didn't have digital broadcast. standards are extremely important. but standards and laws are different, and i'd like to concentrate so much on this end of the table. mr. malamud, i'm going to read just the 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, i'll skip over of science and useful arts for a moment, and limit it, and unlimited time, i'm going to read how it relates to copyright. to promote the progress for limited time the authors, okay

go expensive. that's the constitution but it's only a paragraph, to promote progress of science and useful arts to authors and inventors the exclusive right to their respective rights and discovery, but the short one, to promote to its authors. who offers the law? and that's my point. it's a point of all the documents i put in. if the state of fido, the state of georgia, the state of mississippi, if they produce a law, every single person who voted for is an author. it doesn't belong to some entity by definition. isn't every law in fact -- i've got together, obamacare has people who do not want to be authors and others, a few left, do. but on the day that it passed we

were all authors. so my question, and i'm going to conjugate on this end and open it up to the rest is, in its lost form, isn't in fact every single person who participates integration of the law, or the inclusion by association of the standard in fact an author and, therefore, if i'm willing to have it released to everyone, as an owner of that copyright, 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 the law required or mandated to be in fact eligible for copyright. my point here, carl, i might go to you first, i've been in congress for 13 years and about eight days. the one thing i know is i don't need a copyright to promote politicians making laws your 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 the law by mandate has any right to a copyright at all, a fundamental -- forget about what we do with this copyrighted material. is it eligible for copyright? >> congressman issa, thank you for that question. i think that is the crux of the matter.

testing the toxicity of water is a bit every citizen in west know what those laws are and where they carried out properly. and that is the key point. you cannot have it both ways. the document is demint patch from a lot, it has to be available off. i respect the right of the standard bodies to develop a wide range of standards, but once one of those has become the law, then it needs to be available. again, a standard body can say, please, do not incorporate this into law. we prefer this document not become law, and that is perfectly acceptable. there are multiple standards bodies, several fire codes, building codes, plumbing codes to make you will find demille a group standing up and saying, please, designate mine to be the law. >> ms. griffin, i am going to ask you a 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, aid is available for copyright. i understand that, but if it is incorporated in law, at that point should you object to it being incorporated or recognize that you are waiting any copyright objections from the public having free and fair access to essentially a law that they must comply with? >> thank you, congressman. i think the answer is incorporated into 0mb, the policy and the in t t a. and those policies and those laws dictate that government agencies, federal agencies and corporate a voluntary consensus standards in lieu of government unique standards whenever they are able to do so. >> okay, but omb is not enshrined in the constitution does not have legislative

authority. this is the committee that must decide what can or cannot be covered under the promote an exclusive element of copyrighted the rest of the panel is extremely important, and we work on it all the time, but in the digital age narrowly, mr. chairman, the law and people's access to laws which they must comply with inherently this committee must 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 of 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. >> let me tell you the second circuit. >> ms. griffin, if you could be brief, as brief as possible. >> let me tell you what the sec in the ninth circuit said on that very point. in the pmi case the ninth

circuit said that to access to the law may be relevant but is not justified termination of and in this case it was the american medical association copyright. there is no evidence of anyone wishing to use the standard at issue in that case had any difficulty in obtaining a command that was the pmi case in the ninth circuit. such a circuit in a similar case so we're not prepared to into halt reference to a copyrighted work as a legal standard for evaluation and, resulting in loss of copyright. while there are indeed policy considerations that support the argument, there are opposed by countervailing considerations. for example, greuel that the adoption of such a reference by a state legislator or administrative body deprives the copyright owner of its property would raise a very substantial problems under the taking cause of the constitution. although there is -- and then jumping to the last sentence of that paragraph. although there is scant story

for the argument, professor members opposes such a suggestion as empathetic both the deep interest of the advanced up direct. at the end of the day it is a balanced. it is a balance between the rights of copyright holders in the value that those copyrights bring to federal regulation. >> okay. thank you. mr. chairman, i appreciate your indulgence, and that is want to go on the record that in a 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 he or she must live under. >> i think originally from california and 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, but not

abruptly. i think is a woman from california. mr. jefferies, the gentleman from new york. >> thank you, the distinguished chair. i want to start with professor lindsey and enshrining the some clarity as it relates to some of your written testimony on pages six and seven. >> the bottom of page six you state that it has been previously discussed, the purpose of copyright is not to maximize the revenue of the music industry are copyright owners were generally. is that correct? >> yes, take this statement from the supreme court decision stating that. >> is it fair to say then handling copyright owners are content creators intended to reasonable compensation? >> i think we have to sit down and define what reasonable this. that would be a more difficult task than you might imagine. >> so is it your view that

copyright owners of content creators are internal to any competition whatsoever? >> no, it is not my view of that sort of all, and i would be happy if they would be very well paid. my only perspective is that in terms of constitutional purpose our focus should be on the production of output. obviously well compensated artist and musician glass bubble the important. >> links -- let's focus on the prostitution. i appreciate that observation. article one section a clause eight which reads to promote the progress of science and useful opposite during the limited times the office and avenges of exclusive rights and discoveries now : the progressive science part of the provision obviously gives congress, i believe, the ability to create a robust patent system, is that correct? >> is excellent to promote the process of useful art, the

sciences for copyright. >> so you have defined the -- and what would be the basis of that conclusion? does that stemmed from your evaluation of writings from the founding fathers? >> the supreme court has said that the number of occasions. the clause as a parallel structure car writings and discoveries. each of those three tiers of words, the verses copyright, the second word of praise for patents in. >> and so the supreme court has defined this, i believe, to encompass to legitimate ends, correct? address to be encouraging the creation of new works, is that right? >> is correct. >> the second would be to this diminished -- the dissemination. >> correct. >> so as it relates to been 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 and in some meaningful way serves the purpose of encouraging the creation of work? >> as a general proposition i have a disagreement with that statement. in instances where interest rates, yet they're not sued or would not constitute copyright infringement. this leakage is a fairly important part of the system. so trying to determine whether any given instance of copying from the reasonably straightforward. i would agree that think we would all agree that a commercial competitor takes a copy for less than the same marketplace is a copyright infringers and buried at the new delhi police agree a summit takes shakespeare's romeo and

juliet increase west side story would probably not be a copyright infringers. >> and mike correct that it is our position as it relates to determining the measure of what happens when meaningful or reasonable composition is not provided is that we should simply allow for the legal dissemination of reproduction or sharing of works in the value of weather content production has decreased. is that your position? >> i am not advocating randomly changing the law to see what happens. as a social scientist and might be interested in that experiment, but file sharing gives us an opportunity this see what might happen. it was formerly illegal but nevertheless happened. even considering other revenue sources they have it went down. so what happens output and what does that tell us about whether we have not enough copyright, too much copyright or just the right about. if revenue goes down sharply

indeed seem to get as much or more creative output, for me that suggests that we may have had too much happier to begin with. >> should we be concerned what the impact on the economy in this scenario? >> depends upon what you mean by the impact on the economy. for me as an economist semite does not float to the music industry and will remain in the consumers' pockets and will be spent elsewhere. jobs lost in the copyright sectors will presumably be picked up if consumers spend that money and educational and plan our health care. those sectors of the economy. >> leslie, a professor, you referenced earlier in your testimony that facts change and the ground. i believe you may have mentioned it in the context of this interpretation of alignment of treaties the u.s. prepared which preceded the development of master. we have also seen the advent of streaming from a cloud computing is another example. technology changes over time. that is a wonderful thing. at the many of us would agree. the issue is, how do we

accommodate technological changes as they move forward doesn't create the certainty and law in the copyright protection for the creative community? do you have any worse for us in the committee in terms of how to strike an appropriate balance if that is the balance we should be seeking? >> is certainly do agree that it is the right balance. the end of my written statement i reproduce one word, one page from 50 years ago. it is on the registered copyrights written in 1965. and it said, we don't know what the laws will be ten or 20 or 50 years from now, but they said it was becoming increasingly apparent that transmission of works by linked computers may be among the most important means. in the final statement was, we believe the day has passed when any particular use of work should be exempted for the sole reason of not-for-profit. those are where it -- very wise words to that is as we go forward. this was written at the culmination of ten years of

steady, and that think it beautifully encapsulates much of the philosophy that needs to go in. that would be my watch word for congress going forward. >> thank you. my time is expired. i yield back. >> i think it's a woman from new york. professor, i owe you and the lady in apology. i previously mispronounced your surname. you are not lenny. i stand corrected. >> i always tell my students it rhymes with sonny and i am not crazy. >> the gentleman from georgia, mr. collins, recognized for five minutes. >> thank you, mr. chairman, i appreciate it. i think inadvertently you may have summed up this entire discussion. from my perspective and many in this room know that i believe the cut protection and the protection is not only at the proper balance striking innovation and health, but also protecting innovation in gross. and he made a comment in the

midst of an exchange when he said with my june and from pennsylvania, it is just the public. and that struck me in me comes transit to others just a poet, poets have changed the world. in their words mean something, the copyright sump can mean something. dozens of this entire hearing. denise to be a proper balance struck. but wouldn't you just say it is just appalling, just a writer, was hemingway just a writer? was dickens just a writer? with clancy, even you just a writer? that is the heart of what we're talking about here today, and it was not meant in any way, you sort of summed it up in an offhanded way, but that is really where we are at. but i am down here. i want to continue of the discussion that my friend from california discussed which is the definition of law and we do have an interesting comment here because i'm from georgia and you have to -- this is a difference. 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 right now a little bit with where we are defining. in your letter to senator and pro tem he said the official code of georgia and that it every component of it, the official lot. of want to explode that. i have some short questions. what is an invitation? >> and annotation can be anything from some freelance editorial comment buy some commercial provider to the comments made by the legislative council or the state itself as to the import of the code. >> thank you. is that an invitation a statute? >> i am really glad you asked that question. the relief comes from the crux of the problems of we face and why i think this committee might want to deal with this issue. i am a computer guy, a law school dropout. a lot to put all 50 state laws on line. >> let's stop right there.

have no problem there. the law itself, i think the problem we are getting into is the definition of what what is an annotation come in the future that free public website, it takes three to fix to get there. you actually get the free georgia code annotated. it says the annotate decode is copyrighted but it makes specific reference to say that the law where any other recognized is not copyrighted. it is the work of the invitation which is more than a lot. >> but congressman, the terms of use of that three separate me from making a copy of that. it specifically prohibits the public and nonprofit off. >> what it prevents you from doing is taking a buck and copying it and turning it is your own work. when i was a school that was called cheating or plagiarism. some of perot's you want to describe it. so i think, look, the question of the coming year, the annotation part is really where we are getting here to make a claim that i read your book here him and made a comment that said

a state such as georgia, idaho, mississippi, with all due respect, not as concerned with and right now, have spread fear, uncertainty, and doubt addition to its pro a deep chill on their order. that makes great prose, and you are did arthur and the part of this and should have protected. >> but if you put it out there, buddy, that's your choice. okay? but you're not. brightly, believe you're being disingenuous here. to fully deskilling you can go three steps and get it for free. i think the part that i am concerned about here is really the bigger step of taking part of which we all recognize the law, okay, the statute is this a woman from california, we vote on, that coach, that actual non annotated, to say that an imitation is the long would be like taking this committee memo is saying it is part of the federal code. that is just not true. it is written by someone else,

and put by someone else. the question really comes for me , the way that it was handled. taking -- it is already free. the issue is there. we have already discussed it. there is a part because it actually was the work of someone else. you are right. we need to make sure that copyright laws and of these others in the issues that need to be a proper balance. i just believe here in this issue, especially taking a state of georgia and others and timing that their chilling innovation, chilling this -- i think it's over the top to make a point about something that is not really true, and that being that the law itself, it was not negotiated the part of the public record. finance somebody, if i broke my annotations i have done the work , then we respect to work. we do not go out and say, well, i have the book, let's copy it, send it up, justin would because i don't want to do the work of

meditation. i think as a problem and a half. with that we will have many more conversations. i appreciate your work, but i think that is back to the heart of, if you do the work the protection is there, not taking a shortcut because you simply don't want to do the work. mr. chairman, i yield back. >> at the digital in from georgia. it's a woman from new york. >> did you, mr. chairman. let me start by taking the witness further testimony in 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, creators in making sure they are appropriately compensated for their work. one test you more broadly about protecting copyrights today. professor, you mentioned there is no need to make explicit -- to make available -- it would not have the effect on curbing online theft. he mentions that with bit torrent users that up load and unload simultaneously and make thousands of millions of copies,

the law is already made but has not been stopped as we all know. they tried to chase their words across the internet, which is not practical or effective. we hear the chairman good lot. 100 million takedown notice. and obviously someone observe that the millennium, the digital millennium copyright act is broken. what would you suggest without uprising or getting into that as an alternative way to protect copyrighted works in the internet? is there any? >> the number of us the academy have explored the idea of having a levy him a levy would be a system where you authorize file share as much as they would like and then you add a charge to the internet each month and that money goes into a plot and redistributes to the copyright owners, being files shared. i am not certain there is any other solution that is going

for. >> which is just waited just one second. he said that type of system, as we do for songs. >> yes. >> where you can download it. they did not get a take-notice. but does know that you download it. you pay into -- well, who pays into this fund to make anyone who goes on to the internet? >> it would be a surcharge added to your internet bill would be one approach. >> i never listen to music let's say. >> one of the central concerns of the levee approach, unfair to people who do not file a share. we will be a mechanism for compensating of theirs and copyright owners with a file sharing. >> anyone you access the internet will pay a levy which would be administered by some new organization or old organization and the funds would go based on some of -- how many people listen to my son? >> well, how the funds would be

distributed would have to be decided trouble we could use some sort of sampling system similar. the investor is either currently tracking down loans. >> it is a very interesting -- let me ask professor, how would -- what is your reaction to this interesting suggestion? >> my reaction is i would say it is an interesting suggestion. >> in that case you pre-empted by persons. >> i've put in footnote 69 of a written statement the citation to professor mintz annuls article called impose noncommercial use levy to allow free peer to peer file sharing which is one of many solutions he himself has written on the issue. the problem with these proposals , their fees visit to the feasibility problems, if 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. it deserves to be -- >> she said there are a number of other -- are there other major suggestions available? without getting into -- >> professor fisher at harvard has proposed something that will basically called an entertainment tax or the government could decide how much money has been made through all of the arts and allocate that and allow free sharing of culture. i am almost lampooning his book. but in essence, that is what it is. >> it might be interesting if you take up the word tax. professor, a certain ring around here. would you comment on any of this? >> yes. i think the love the idea is a terrible one. >> what? >> a terrible idea. >> you have a government -- you're inviting the government

to set prices. a fundamental concept in a copyright law in any property right is -- the owner gets to decide the terms of which is alienated. when you take away that liberty you take away the first of all, the value of the price signal. >> injured, now would apply to a private asset type thing as well -- >> no, not that. to a system like that people enter voluntarily. >> with your comment on the b? >> in a system like that, sure, there are plenty of collective rights organizations when they are privately entered into. this of a lot of problems don't but it essentially remains private. otherwise the government -- >> okay. no. mr. love or professor love wanted to comment. >> we have a long history of use

of compulsory licenses were markets are not functioning very well. often connected with new technology. add all think it is beyond the pale that you move to some sort of a compulsory license. the issue, you touched on the issue of how you pay the money out. i think that the first instance people look at is this sampling thing. professionally preferred to. a different approach is to have the consumers the will to pick the collection and that they think rewards the artists in a way that they prefer. in effect the consumer is in no way becoming kind of a patron of the arts, mandated to be a patron. >> several operations doing similar things. >> you would pick. perhaps one would give all their monument to madonna and britney spears and another would do it a little bit differently. you would be able to pick the entity that use of.

that is called the burble and model which is a different model than the sort of sampling model, but there are these alternatives . >> the selig things real and to explore, but i see my time has expired. i think you'll. >> i think the gentleman from new york. the distinguished gentleman from texas. >> thank you very much. yes, if we were to in codify or make available but would it do that we can add to already? >> well, in the file sharing context i don't think that it would change what is going on in that area and all. makes it marginally easier to pursue files shares. i don't think it is a business decision. >> let me ask professor never, other than making it easier for plaintiffs what other protection are we going to provide creators >> thereby to comply with the u.s. treaty obligations. resolve the conflict in the case law.

>> how many bad guy infringers are getting away now that would not be getting away if we were to do this? >> obviously i don't have the empirical figures. >> to be realistic, think there are any? >> no one in suits are brought into the legal process is that not as far as i am more because a down month cannot be permitted >> the stock a little bit about that. we talk about it in a traditional upload context. all right. you put it in a shared folder animated available. and he made it available if you like to read. say you are due will endure a search engine and you have not posted anything yourself but you into it? a broad definition of make available, obviously we can craft a statue out every one we could potentially get to you know, what i would consider not guilty parties. >> the worst part in my mind is we would know. if you adopt a broad general making available right we would not know until we litigated it weather linking --

>> so would abroad make available right, if i took my copy of the latest breadboard novel i bark and red and donated to the library when i just be making that available? have a completely undermined? >> in both the trees in the distribution context i think professor never would agree that there is an exception with the making available right still be limited by the first sales option. >> what about a less public basis. i have itunes in my house. there is a shared folder ron and i have made available to my television set and to my other computer. finally my daughter's television set and my wife's computer, where you draw lines within there? >> the danger in here is in a stand-alone make available right. congress were to pass in the seventh right which is making available all the dangers they you have cited -- however, i

believe we can join all those changes including the danger of sharing with your wife and daughter if we simply define the owners' public distribution right to include making available. when you include your wife and daughter that is not an active public distribution so you don't need to worry. >> i want to hit each of the top picks. i need to get to professor schultz. i am a former broadcaster and understand how tough it is for local broadcasters. but you look at something like going on with the area. of the broadcasters want as many allies as possible viewing their newscast so that they have more value to sell to advertisers? >> that is a good question the advertising revenue is one component of hell they make -- how they constitute the business . there are other components including the reid transmission fees that are essential to

supporting local broadcasting. >> so i guess the other issue then becomes at what point -- drive to a negotiated deal with all my local television stations to put a ceiling box at my house i can watch the cobras kristine newscast nine washington dc? >> you absolutely don't have to initiate. >> i just want to make sure it does not go that far. let me get down here to the other end of the table. real quickly, i am going to have to agree that once something is enacted into law the public ought to have a right to get to it for free. though the standard setting organization that will collect dues and generate revenue from the members who are participating. anniston annealed is the cost money to print the bucks and distribute, but of the marginal cost of making this information available over the internet is basically none, and there is zero value to a light bulb that

does not fit the libel standards to use your analogy. shouldn't the private sector that benefits from the pay for room in the public should have a free. i should now be able to print a copy of the electric code to make sure the electrician hooks the green wire up to broaden my house. >> a couple of things. thank you for the question. first, the fpl has different business models. many deface their revenues on fee, but many don't. those that don't our laws and not for profit mission organizations that keep their barriers to entry low. that is to what they have low entry fees to allow members to these whether they're reason that they can use this sales derived from the use of revenues >> i see my time has expired. love to sit down with you. we could debate this for an hour

it is actually something that i would like to do. there are things that are important. you may waive your rights. once you fight to get it enacted into law or it gets enacted, it is something we can talk about what we have more time. >> i think the gentleman. there will be ample time for us to revisit this topic again, i'm sure. the gentleman from georgia. >> thank you, mr. chairman. mr. chairman, i started practicing law about -- well, back in 1980. and then going into the law libraries, georgia state university tea ready for cases and to represent various folks in my general practice i recall coming upon mr. members bucks. i cannot believe that he is sitting here looking as young as he looks. i thought he would probably be about 90 years old by now. thank you for your contribution,

serve. and, i have long supported strong copyright protections as the backbone of innovation, creativity, and public good. materials created by the u.s. government and state governments do not deserve copyright protection nor have they ever refuses. in 1988 the supreme court held in banks first manchester that there has always been a consensus that judicial opinions are in the public domain because the work of judges buying every citizen. and is and should remain free for publication to all. since courts have continuously upheld this understanding of the law of the state or federal is in the public domain section 105 of the copyright act reflects this view specifically denying, protection to the statutes and regulations.

at its core this issue touches on the american ideal for justice that we must know 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, and it 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 cataract we must continue to protect americans access to loss and justice by protecting access to public materials in the public domain. mr. malamud, thank you for appearing here today before us. i want to take this moment to thank you for your work making

public law accessible unknown. it is easy it take for granted how important public databases are in our increasingly digital democracy unless public documents are digitize and available there are often out of reach. in your written testimony, sir, you know that you are currently publishing official the mistake comenius will cuts as a former commissioner in georgia. appreciate the importance of property of private citizens working to improve local communities. what is the benefit of making bow public data available for municipal government and i will at to my comments the facts that when you want to -- if you're a citizen of the state of georgia and you want to go and look up the code for local political

subdivision it is very nice to be allowed to go online and be able to get that information. but what is the benefit of making bold public data available for immiscible government? >> the key for your comments congressman johnson. the issue we have with the georgia code as it currently is is you cannot get the bulk data. you cannot go to the free website and make it better. what happens when bulk data becomes available is volunteers some commercial operations but often simply citizens will know when and make the cut significantly more accessible, work on modern platforms. this happened in the district of columbia just recently. with copyright being waived and the district of columbia coach, several volunteers came in and have developed a vastly better version of the d.c. code that informs citizens in a better way. by having the bulk data

available, we encourage citizen participation in the process of informing each other which is why we care so much about, for example, the official cut of georgia. >> and local governments, however there responded to making municipal codes was available? >> we have a significant push back at the state level. the city level they're welcoming as with open arms. the city of chicago, recently stood helpless and former staff members from congressman i said -- congressman issa, former white house officials. we support the city clerk of chicago and unveiled a new chicago coach. san francisco has recently revamped their municipal code. there are about two dozen municipalities that are about to have better be this book was available because of the efforts of these volunteers. >> thank you, and my time has expired. will you of my remaining time. >> i think the gentleman from georgia. i have told folks that there will be in imminent house vote before -- eminent, that means.

our hope we will have to detain our witnesses. but that in mind the recognize the gentleman. >> they key, mr. chairman, mr. malamud, i'm assuming you agree with the building could case? >> absolutely. >> what about the two cases, the circuit cases that we at the evidence brief, we were discussing involving one was the ama and the other was the used car red book. in the recesses is the courts found that there were copyright protections. so what is your opinion on those cases? do you agree with the have come in this case is? >> i am not a lawyer, just a citizen, but might take on that is that the decision was about a crucial public safety cover that had been incorporated into law.

a distinguishing factor was the extent that the public safety laws estate and also if you look at the building goes they all began with the sample ordinance of incorporation. we, the people of in certain unnamed -- insert name of the jurisdictions to year by up to this cut. this was meant to be a lot. to me that is the difference between those cases. >> just that the government may have some type of administrative schemer program to ladies distinction between the situations and one in which no law is adopted verbatim. >> the public's a distended the lead for one that has been exclusively in explicitly incorporated by reference as opposed to casually. will the castaic codes and often i'll mention something in passing in the keep our hands off of those, but when it

becomes part and parcel of the law that to me the fact that it happened to be an excellent document is no different than if the state had offered that themselves. >> i guess what is your position ? >> i think there is a sharper distinction between that and the two circuit court cases that i cited. that was a very unique situation and was the case that was limited to an unusual facts. in that case the model code writer wrote the code with the specific intent that it be incorporated word for word until aloft. it was, in fact, incorporated word for word into law and the defendant in that case, but the law and not the model code. under those circumstances the fifth circuit said that as the law this content loses its copyright protection. but the core was quick to point out that it was a very limited case, that it did not apply to

what they called it extrinsic standards, that those are standards that are incorporated by reference into law like the standards in that second circuit in ninth circuit cases. that makes it a limited holding. how that might be decided today is unclear to me. >> i know that these monaco's to my dog to glue it verbatim like what happened in the case. the legislators can use some of these model codes as guidance. they don't have two adopted all. that is more of a unique case. >> personally, my organization is not a standard developing organization, and i don't have statistics that and as to have it works. and as some code developers into into agreements, for example, with a governmental entity such that the coach could be adopted.

there is a sight in the regulation as to the standards developing organizations websites. i think there are very interested kinds, multiple opportunities for dealing with the situation, and i think that is one reason why panera has said in the context of its recent evaluation of this bus leave this to the federal regulators in the ftse, but the way to make access reasonable. the end of the day is a better access. it's about whether the public has access to the standards, not how much they cost or if they cause something, but if they have access. >> may have very briefly, when that decision was appealed to the supreme court, the solicitor general came in and suggested that the decision was good law and that the supreme court should deny search and the supreme court followed the solicitor general recommendations. >> just in terms of as the

standard in 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? >> a huge risk to the standard developing organization. if they were not permitted to derive revenues from the sales of standards and they would not be able to fund operations. in those operations include, as i said earlier, providing administrative support for the development of standards to ensure that more reasonably and materially interested parties are sitting at the table to make sure that consumers are at the table. the standard developing organizations for mission related and not-for-profit organizations, and they're able to do that now? by selling the standards in using the revenues plummet by contrast, the government was to take that process away, the government would have to provide expertise, the government would have to provide that

administrative support and ultimately the taxpayers would pay for that. i think the exchange would result in a very profound and detrimental change to the way of the standards are developed in this country. >> thank you. my time has expired, and i will yield back. >> i think the gentleman. the distinguished lady from california. >> thank you. i will be brief because i want to make sure that my colleague also has an opportunity to participate. as i have listened to some of these proposals it's interesting people seem to have forgotten our experience just one year ago . the american public attitude toward that has done a u-turn in the year that has happened since then. the idea of the performance,

make available proposal really just goes in the same direction we were going there. that is a nonstarter in my opinion. certainly value getting viewpoints and academic discussions. when you take a look have some of the really outrageous things that have happened to with statutory damages, the case of a single mother, the ria brought a case where a jury awarded one-and-a-half million dollars against this woman for downloading 24 songs with no indication that she had ever even shared them as a matter of fact, that was reduced to 54,000 because of the disproportionate nature of the statutory by the judge, but you have that kind of statutory scheme, irrational, a

niece to be changed. i think that also i would it be more for the works discussion. as but a long time trying to work on that. 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 a standing the term, the copyright term. we now have a copyright turn that basically is a century and a half, and we have aggregated the issue by doing so. unfortunately, you know, you wish it could go back in time and then do. that is one that i was convinced . at the guy was a freshman. the treaty required that vote, and i know that that was not the case. i wish i could undo my yes vote on the sunny but look up your extension act. finally the real value of this

hearing is the issue raised about standard -- standards in public law. i was going to ask unanimous consent to put into the record the standard test met this. i don't need to do that because my colleague has already done so, but it seems to me very clear the you cannot have secret law. if you're going to require people to adhere to a standard, that has to be in the public domain. and i am sympathetic. i understand there is a business model set up, but you cannot 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 in a non-profit societies that are basically funded by the -- for

their peer review process which is essential by the publisher. and yet that is a business model that actually was in its serious to the public's right to have publicly funded research made available to a publicly -- it would not chase that, and i think over time the way that we find non-profit 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 results, which is if you incorporate by reference a document, that has to be part of the public record. and if there is the fee, for example, i mean tour that assumes that the public does not have an interest. going to a throw money on that, but they're is a public interest in it. it is not just the people in the business.

is the public's right to know if this is of sufficient standard. the only way you'll find out is to have free access to it and to put up a screen to that as part of the law, completely, wholly inappropriate. i agree with mr. issa that there is no copyright reform that we should support it does not resolve this issue. in the early listen with great interest. as i say, although there is academic interest in this melissa lynn the public's but the appetite either in our copyright laws or frankly in that cpb negotiations that are under way. you're right. we don't know what they're negotiating, but the wikileaks. it's dead in my judgment.

i see my time has expired, and i yield back. >> i think the gentle lady from texas. >> let me thank the chairman and the ranking member. i want to associate myself with my colleague. this is an excellent panel. 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 everyone. another you spoke to different issues. a just want to get on this question a yes or no. do you feel that congress should wait and to your particular issue of testimony today? >> yes. >> professor. >> no. >> professor. >> net yet. >> mr. love. >> you should pay attention to the broadcast. >> yes or no?

>> should you change u.s. law in that area? >> yes no. >> we don't even know what the treaty is yet. >> thank you. >> no. in this sense. >> absolutely. yes. >> thank you very much. professor, i always call you professor. in your testimony you know a scenario where a pcp user goes to trial and is of some other judge would feel that an award disproportionate with actual damages to be inappropriate, this might be inclined to not construe the making available in accord with their actual feelings about the law. could you please elaborate on this? and i have water to other questions, so i will go quickly. what would be adjusted capitalization of the statutory damages so that she does not face a multibillion-dollar judgment?

of one to ask, could you expand under review of the broken window parable presented in frederick which would just mean -- that which is seen in that which is unseen. and that what the professor to note that my colleague from texas ask, but if you could expand on it a little bit. >> yes. when jamie thomas press it was -- went to trial as has been noted, the award against you was a one. one a half million dollars. she had the option the plaintiffs offered her a settlement that she could pay a thousand dollars to charity designed for musicians and she turned it down because she had committed perjury and because the trial was so egregious. the question no is what should be a reasonable measure. it did make sense back in 1999

when congress calibrated statutory damages to look at how many works have been infringed. that point in time it was not possible to infringe 100 garten dozen works which was physically impossible. today it is possible. so congress is to look at what level of damage would cause deterrents and would compensate and would be somewhat related to the harm. so i did not come here with the ready metric, but it could be several hundred dollars, several hundred dollars for each copyright of work that was implicated or it could be $100,000 in any given lawsuit brought or another measure somewhere within reason and does not get as to the hundreds of millions of dollars. >> refinement, clarity, and determining how someone could be made whole. professor, on your question please. >> thank you for the question.

when the government creates a subsidy program, that is not new money in the economy. they take that from consumers, and the taxes, give us to the arts, new employment. that is what we see. but we don't see is by taking the money from the consumerist r-texas as consumers don't have that money. they cannot spend it on something else. the jobs that are lost in the other sectors because consumers no longer have the money to spend his not been seen him and we tend to ignore it, but we shouldn't. if you're just moving money from one share to another creating jobs here, losing and there, there is no net gain for the economy. if we can come up with the magic formula, we are one then sell file sharing and restore to the music industry some of the money that is lost as a result of file sharing would not be a net gain in jobs for the economy. we would be forcing consumers to pay more for music, they would have less money to pay for everything else, and so whenever jobs we gain from the revenue in the music industry we would lose

elsewhere in the american economy. >> that is -- let me just let professor schultz go in the area thank you very much for that. professor, not just a little more on the area. >> absolutely. so you have a company, a single company distributing a tv signal to many customers. that was seen to fit the definition of a public performance. however, through what they perceive as -- suppose it is a loophole in a copyright law, using really antiquated technology, building in a rate of antennas for each of the users in distributing the signal , and they're not paying copyright royalties? they're not paying retransmission fees. you have to ask yourself as between the broadcasters and the creators verses aerial, 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 them to do this, but if they do not i hope this congress will address that. >> mr. chairman, you have been gracious in your time. i think there are a lot of competing issues here. think we have a great respect for our artists and a great respect for broadcasters and the great respect for the posture that professor number is taken and many of you have taken, and so i think you and look forward to more hearings on these important issues. i yield back my time. >> i think originally from texas mr. conyers and i and other members want to express our thanks to the witnesses to have prevailed during this marathon today. it has been a very worthwhile, balanced presentation gamay's seems to me. as i said i appreciate does in the audience to 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 five legislative days to submit additional written questions for the witnesses or additional materials for the record. this hearing stands adjourned. [inaudible conversations] [inaudible conversations] >> coming up live this afternoon

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went wrong. in the tennessee valley, three centuries later, the defendants -- the descendents of the pioneer were neglected people living in a ruin the land. for these children, the hope and the promise were dead. >> tva is a project that was one of the early new deal projects, really a project in the concept that had been under consideration for some years before franklin roosevelt became president. a nebraska senator was looking to help improve the quality of life in the tennessee river valley. to bring flood control to generate some electrical power, and and to improve the lives of the people living in the tennessee river valley. one of the poorest regions in the country at the end of the 1920s. it's a serious attempt at remaking the social and economic lights of the people living in the river valley from knoxville all the way to the ohio river.

>> this weekend on booktv and american history tv, a look at the history of literary light of chattanooga, tennessee. saturday at noon and sunday at 5 p.m. on c-span3. moment >> a panel of former fcc chairman testified about the impact of tuesday's d.c. circuit court ruling on broadband or high speed internet regulation. the ruling says the fcc has a the 30 directly the industry but had done so and probably, thereby notifying the agency's so-called net neutrality will. the former chairman appeared the former chairman and. i house energy and commerce subcommittee looking at the 1934 communications act which was last revised in 1996. [inaudible conversations]