Existing law already nablgdz making available right. The federal Appellate Court arrived at the same conclusion. Its also the case in various International Agreement such as wipo and the wipo copyright treaty. Think about the making evacuate right is an right to give creators the freedom to economic rights press themselves and more importantly to decide how and when they choose to do gribt and publicly perform their own works. So professors, what if any impact carving out a separate making available right to the copyright act. What effect would have on online theft would explicitly help or make the process easier for them to prove the work have been infringed upon. Thank you, representative. I believe it would streamline the cases instead of having a large federal case about every activity of peertopeer sharing, there could be an expeditious proceeding if congress adopted my decision of having Small Claim Court spreadings. Proceed iings. I think it would be a change streamline the procedure and quick and fair expeditious justice in them. As you might guess, i disagree with the professor. It used to be under napster you find one use we are the file and download it from the particular user. That sort is largely most file sharing today is the file is divided up in to separate segments and sent out in a swarm of people who are all simultaneously and downloading the work. So the issue of whether you have to prove a download is part of the case is essentially irrelevant under the protocol. Whether we have the making available right or the existing distribution right. As a practical matter, almost all of these instances where file sharing is down, what happens is the investigators identifies the person, the ip address, they go court and get the subpoena to the isp to get the consumers information theyset send a threat letter. Thats as far as it goes. Its setted or consumer can present some sort of evidence they were not the person who did the downloading. And thats it. Only a relative handful a few hundred ever two any further that that. If it goes to trial they get a copy of your hard drive. That the point its relatively trivial to prove the file sharing activity. I dont see how it would facility or help small creators. And professor, youll like you have an opinion on this. No thank you. [laughter] then okay. Professor schultz. Let me turn to a different issue, which is i would like to ask specifically about the case. Of course we know the Supreme Court agreed to area the case to determine whether or not online streaming of broadcast substitutes an infringement of a copyright holders exclusive right of Public Performance. Given the Economic Performance of intelligent yule property in our country and the constant evolution of modern technology in which more people are viewing content over the internet is this inappropriate question for the court to determine or should Congress Legislate and set this area of law and how would a decision fairchl to it change the landscape of how broadcast con at the present time would be delivered to consumers in the future . Thank you excellent question. I think ill begin with the second part of it. Told change the landscape of broadcast. So its not the only court case that the broadcast and Television Creators face. We have one court saying that essentially intercepting signals and aggravating them and sending them to the customers is not does not require payment of retransmission fees. We have another court saying that stripping commercials out of broadcast is perfectly okay. We have another court in cable vision essentially saying virtual ondemand sf is permissible. When its all said and done you have to ask where the revenue come from. How the companies will get there get compensated for their work. So i think an intention comes out favor of it would undermine the very premise in is which the system is based that local broadcasters can be compensated for the tremendous investment they have in broadcasting and content creators can be compensated for their work. I think this isnt appropriate topic for the court, but if the court act if the court interpret the copyright act in a way that undermines these fundamental policy this congress will have to act. Thank you. I yield back. Thank you, congresswoman. The chair recognizes the gentleman from North Carolina congressman holding. Thank you, mr. Chairman. The professor, maybe this is best directed toward you, but could you take a minute or two and explain further how u. S. Copyright law compares to that of other nations particularly distinguishing features. Okay. The theory of Anglo American copyright law is basically instrumental. Its there for a purpose to promote the progress of science. In the continent in europe, the underlying theory is much more based on natural right theres an intreensic connection between the author and the authors creation and therefore theres a natural right to compensation just by virtue of having created regardless of the social policy that come out that have activity of copying. So thats the broadest answer to your question. The philosophical underpinnings ive outlined played through with Practical Implications we see in continental jurisprudence a strict recognition of moral right which is something that is alien to the u. S. Way of copyright and was only put in grudgingly when only with respect to work of visual art in 1990 and plays out in other ways as well nap is a very brief answer to an extremely interesting and broad range of question. Maybe we can duck down on specific in the context of negotiating trade agreement ttip in particular and thinking of what type of copyright issues might be brought up in that context. And do you foresee any divergence which can cause particular arguments . Let me ask representative holding. Are you talking about the Free Trade Agreement . Right. Insofar as im aware, the u. S. Government has had great screes 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. They do, i think every single one possibly with one two or two exceptions include making available right. And so notwithstanding the philosophical differences between Different Countries with different roots of copyright, there has not been disagreement insofar as im aware with the Free Trade Agreement. I would like that open it to the panel if anyone would like to chime in in particular issues having to do with our copyright laws versus other nations, and problems there. Yes, sir . The u. S. Has as far as damages are concerned. A lot of Foreign Countries but the u. S. Has broader fair use. The combination is such that the Technology Company which are dominant in a lot of internet areas have been able to operate. With the u. S. Is doing in the Free Trade Agreement is sort of cherry picking the part of the u. S. Law that the in some cases publishers like. They sort of pick really aggressive standards as far as damages to the extent require congress consider the full retail value for the basis of damages which isnt found in u. S. Law is contrary to u. S. Law. On the one hand, and then kind of a half hearted way look at the fair use way. You have a shift of increased liability for u. S. Technology Companies Operating overseas. U. S. Has, you know, it has strong candle damages but we have more exception in the foreign law than most foreign country which is a paradox. I think the problem from trade policy are secret. We help leak the september tpp negotiation the negotiation Something Like 40 of the worlds gdp in that negotiation. We dont know what the current version is. Neither do you. I dont see how you can expect a trade agreement which you can and mexico basically newscast that triple square with that much gdp on the table. Not even know what is going on. Not have it transparent. I think the congress is fallen down by allowing copyright policy to be made in secret in the trade agreement. Thank you. I yield back. Thank you. The gentleman from florida. Thank you, mr. Chairman. Professor, i wanted to so. Assertion you make in your written testimony. All of this to support your assertion theres no need for making available right. You say the unauthorized copying distribution of streaming work as cro the internet are not a problem with copyright would have us believe. You talk about the purpose of copyright is not maximize revenue, but to make the work more widely available. You said here today that the measures of outspot what we should look at. No the the money made the better work in file sharing encouraging this. And you went to on 0 say even while formally illegal it provided more broader access to existing work in the preexisting market mechanism that are established. There are a few things im trying to wrap my arms around. First, you had said earlier that the copyright law in this area that focused on never on individual but corporations. And i wonder if you draw the distinction at the individual download a song for a movie illegally. What happens when that individual starts creates an opportunity to share hundreds and thousand and millions of songs and movies and other that can be shared with others. Goes beyond what youre prepared to accept. Thank you for the question. It is a hard area to get our hands around. It is counter intuitive to suggest that it could lead to more work. It would be a surprise result. I was surprised by the result why did the empire call work myself. And of course, from my perspective, im sort of an ivory tower comeek. I dont expect it to have any real world significance. I dont want it to. I want to try to figure things out. And so you get a result like this and you publish it and youre the controversy. Oivelt its not a never ended you cant add more and more and expect get more work. Theres diminishing return at some level. Im not asking you to read your testimony. I understand it. Im asking when you say that file sharing the sharing of copyright material is it okay. Is it okay just for an individual or individual to share tens of thousand of song or films . Theres file sharing. The potential at least for sharing tens of thousand which offered competing copy in the marketplace. Well, except thats here is what i dont understand with the argument of illegal file sharing is somehow okay. If the goal is to spread the amount of music and creative works and film all of this great intellectual property and to spread it as far and wide as possible, why is it different in the computer in that the setting of technology to share files that way than it would be for big box retailer to have someone come in through the back door, scoop up all the cd and dvd and take them out on the street corners after they have copied them and gone on to business on their own. Why is it different with the physical product than online. Thats different when consumers doing it than a commercial entity is doing it. Im suggesting to you that the individual who breaks in so the big box retailer and keeps uptake a couple. A couple of cd and dvd and make copy of those and goes ahead and shares those. Spread the information far and wide get the information throughout. Why is it different. Why should it be acceptable for that to happen online but not on the streets. The individual breaking in, are they offering the copy for free or is that archie i think it is an important distinction for profit or not for profit. Right. If we had just some ones goal is to spread the Great American property we are so proud of by making copies and distributing it out of his or her own good will thousand of copies tens of thousand of copies, million of copies that is perfectly acceptable. I think we do have such individuals. I think they are called libraries. And they have coexisted with the commercial market for hundreds of years without undermining it. Right they have libraries that operate and have operated for hundreds of years not setting the people going to make the millions of copies to freely disrupt to be used without any regulation. I dont see the difference. And your example this is also confusing to me. When you talk about the fact that as you explain you say, you know, the question isnt whether file sharing is causing the record sales but the record sales affect the music. You talk about other ways that creators can be compensated. Separate and apart. You go through all of them and conclude yourself. You reach your own conclusion that all of those other areas are not enough to make up for the amount that are lost as a result of the intellectual property that you think do gooders are certainly cape capable of doing to spread the property which makes the performers better off and the song writers better off, and the actor and actresses and anyone involved in the production of any film or tv show. You received refute the argument and ultimately your conclusion is yes, you acknowledge in a footnote that, yes, there is less money going to the industry. But then its not fair to point out that may mean there may be fewer creators willing to engage in their work. Tall means if you had tougher enforcement that the dollars that floated at those industries are dollars that would have otherwise been in other industries that racialization doesnt seem to make sense ultimately the conclusion you reach that somehow its in the best interest of creators in our country for their creative works to be spread far and wide without compensation. As you now have acknowledged not just a couple of kids trading songs that hopefully they purchase, but in fact the spread of tens of thousand or millions that ultimately the goal is just to spread that the diminishment in the amount of compensation to those creators will have no impact, you say, on their ability to continue do their job. It just doesnt its inconsistent with what all of those they talked to who rely on copyright to protect their intellectual property. Its inconsistent with what they tell us they need in order for us to continue to uphold this Great American intellectual property we value so much. I yield back. I thank the gentleman. Thank you, mr. Chairman. Its been very enlightening. You made a statement concerning standards and how they apply to life in general. Do you think we could be served by the industry i. T. Setting standards. Do you believe we need to legislate more . [inaudible] i think that the way the system works now is a Public Private partnership where Standards Developing Organization who have Technical Expertise working with the federal regulators who are in their space. Together through that partnership they develop, you know, regulations that made the requirements of the regulate whatever it may be. In this country thats a Diverse Group of people and there are many groups that do that. But what the Standards Developers organizations bring to that is providing the administrative support that permits the group that sits that the table to be open and balanced and transparent and not dominated by any one group. 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 governmentdriven event. I think that balance is what makes it fulsome and makes it system that it is. Thank you. Professor schultz, you talked about notice of takedown. Lelt have an example here. I have a Search Engine. I create a Search Engine. Name it after my son. Victors Search Engine. You are a musician. And a writer singer or writer or the musician, but at this point, you have a record out. You had a cd out, you have music out, and i do not buy it from you. You are paid 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 im the guy who is illegally selling music to people and youre not getting paid for it. You send me notice and notice. What do you think should be done about it . Thank you for the question. I think indeed the there are two difficulties you identify here. One, is that the current notice and take down system is based on identifying the particular file rather than a work, and as said, its based on an old paradigm that what we had to do in 1998 was stop a file if it escaped on the internet qua quarantine it. Pull it back. Its not easy now. Now every time everybodys work is infringed they have to send a separate notice. Do you think i should be held responsible even though youre not sure how many people are downloading that music . Because every time someone gets on any Search Engine your name comes up. Im selling it to somebody for 10 cents a pop. Absolutely. If youre the site hosting and profiting from somebody elses work, whether its through advertising or do you think i should be held criminally liable . Criminally liable. Thats a more challenging question. [inaudible] so i was prosecutor for 18 years. Im stealing something from you and selling and making a profit. Do you think i should be charged criminally . Of course, were going beyond the scope of the 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. Instead of a brilliant attorney youre a struggling poet. You live in a one room apartment and you dont have heat in the winter. You write im a song writer and looking through your book of poetry. I find magnificent poem you wrote, and i take that and put it to music and i make 10 million on it. So you a problem with that . Its a difficult one. I personally would not have a problem with that. You personally are struggling you write the book of poetry and you dont have a problem with it. I feel in derivative work context its the inventive effort and creative as a second comer. Your father is a great poet. Struggling though trying to keep a family, and i use his poetry and make 10 million and he cant feed his children. Should