Fact, of the broadcasters seeking new rights. Thank you. Thank you. You work on copyright issues. What other issues do you believe are of interest to copyright owners . Thank you. Indeed the subject of the hearing is an important one including the making available right. Its important that creators are ability to secure the return on their investment and labor. And that is currently the challenge quite obvious challenge in front of all of us. I any in the long run it needs to be addressed. Thank you. Beyond what it is today . If would not change the law in the file sharing context by any measurable degree in the litigating case finance would open up potential issues in the Public Performance and display areas linking retransmission and issue of that sort for Cloud Computing and social networking site. Disease your lack of concern for impact of file sharing reflect a view that congress should reduce copyright protection in other areas . I think one of the things that slipped in almost by accident to copyright law we shifted over the last 20 years what weve expanded copyright over the last years to get the individual consumer involved copyright infringers. I think its a bad development. For the first 200 years it was directed solely at other commercial entities. I think it works best when it works in that fashion. When you start getting the individual consumers in the mix infringers of one sort or another you get the privacy concerns and other concerns. Thing is created real problems for copyright law. Mr. Love, do you believe other nations are close to a conclusion that drafting broadcast treaty. Could yo i are pete that. Do you believe that other nations are close to a conclusion at wipo in drafting a broadcast treaty . In 2007 we thought it was stopped and further progress on it. After the treaty was adopted by w in june of 2013. It opened up a lot of space. I think it was surprising that in september of last year, country after country took the microphone at the General Assembly to call for a diplomatic 2015. I think the secretary is look for a hat trick. They like to have three treaties in hand in the copyright field having concluded the beijing streety in 2012. I think they are focused on that. We prefer there is no broadcast treaty. We are posed to the proposal. But i wouldnt really i think people are wrong if they dont think its moving forward. At this point, there is a large number of countries calling for diplomatic. Its difficult to protect what the outcome will be. Thank you, sir. Let me try to beat the red light. How does one respond to the statement that citizens deserve full access to the laws and rules that which they are required to thank you for the question. I think the answer to that depends on an analysis of many dimensions. The first dimension is recognition that standards of codes are original work of authorship and entitled copyright protection. And even at times when they are incorporated by reference in to legislation, the second and the ninth circuit have held those standards and codes not necessarily lose their copyright protection by virtue of that. Another i dimension of the issue is a final of the issue is the one raises. That is the one that says that the citizenship to see the right is. The way they have been bridged over the course of the years is through a tool that is contained in the freedom of information act. That tool is called incorporation by reference. It provides that Program Agencies can incorporate in to federal regulations extrinsic standards as long as the standards are reasonablily available to the class of persons that affected by it. That tool has permitted federal agencies to comply with their obligation under omba11 while at the same time respect the copyright of the standards that are so incorporated. Recently it has been challenged by mr. Him and others. They have gone and questioned whether the reasonably available standards ought not be changed to make the stnders for free. And they have concluded, as that the current process continues to be the best one. The one that is best designed toker ensure that high quality standards are developed and incorporated in to reference by federal regulation. Thank you. I see the emergency room. I recognize the gentleman from michigan for his questioning. Thank you very much. We appreciate you being us with today. I would like to discuss with you what you see as the key issue facing copyright industry and the public today. When it comes to the current copyright system. Thank you. Its obviously a broad question. Ill have to give a broad answer. I think the answer is that we are governed bay statute written essentially in 1965. Passed in 1967 and now hear in existence 50 years later with technologies that were not remotely contemplated then. We seek each right of the copyright owner coming under strain. Today weve been talking about the distribution right and its making available component. You have already mentioned that the United StatesSupreme Court granted certiorari in the case. Thats a case about the performance right. We see because of the internet a convergence of the right response classically, back in 1965 there was a great difference between reproducing a book and publishing it. And distributing it. Then a performance which would be a play. Today which the bids flow over the internet, sometimes it conceptualize an act of reproduction and sometimes distribution and been argued in cases that its equally a performance. So a forwardthinking approach to copyright law would be look at exploitation not within the prism of the five categories that are half a century old. But instead try to formulate the ideal of the road Going Forward. One unitary right or brought under the rubric of two rights or three rights. Im not prepared as i sit here today to offer that answer. I think its exactly the right question to ask. I would be pleased to work with the committee on a goingforward 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 in. Yes, i think the court have struggled with the issue. I think one of the main reasons is that some of the individuals targeted have uplocated thousand of copyrighted works. And unfortunately, the result under our law is that somebody who is uploaded thunders of working might be liable for hundreds of millions possibly even a billion dollar worth of damage. Thats why i think at the same time that congress confronts the making available component to the distribution right congress should also rationalize the award of statutory damages. Right now the scheme was set . Ninth. 1999. The law happened to be passed right before the invention of the Service Called nap steer. Our law is trying to keep pace with the development on the ground. Thats why i think a unified approach would be best where we look at the making available right and statutory damages and Small Claims Court all in one unitary point of view. Finally, i wanted to get an explanation of why you change changed your mind on the making available right was not encompassed by the distribution right. And previous edition. Good. Thank you. Its a challenge writing any one stop someone can be taken out of context. And applied in a way that was not intended. In particular, in 1995, there was a Second Circuit case in which somebody who owned laurel and hardy video said the rights had been violated by cbs because they broadcast his video. He was correct but he said his distribution right had been violated by the performance of the videos. And the the court tended to agree with them. The Second Circuit reversed. And i wrote up that case to say saints 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 hands. I wrote that in 1995 three years before nap steer was formulated. So i did not have peertopeer services in mind. Unfortunately the sentence was taken out of context later. Thank you very much. Ill yield back the balance of my time. Mr. Chairman, thank you. Thank you, mr. Con conyers. The recognizes the gentleman from virginia for his statement. Thank you, mr. Chairman. I would like to follow up on the Ranking Members question. Professor has raced concerns that making that adding making available right would change long standing jurisprudence. I take it you dont agree with that perception. Would you elaborate on your view . Does the view imply that coming should never update the law for any reason . Thank you. Yes, mr. Chairman. I do disagree with that point of view. It depends what type of law congress were to pass. And congress were to pass a stand alone making right right. It would be a large change to combat law. The way the cases have arise ton date concerning make available, it has been an aspect of the distribution right. Say that have come down on both sides. My testimony today, if we keep our narrow focus is congress should clarify that the distribution right is violated when works are made available. In other words, when an individual uploads copyright work to a shared folder it has been made available to the world and the active Copyright Infringement is complete. Its not necessary to show a subsequent individual downloaded that work. And think about; therefore, a properly tailored amend does not call in to question existing cases that were rendered under the performance right or the displaywright. Thank you. Let me everyone on the panel. A great panel. I thank you for your testimony. A jump ball here. Since the hearing covered three separate topics. Are there any that like to comment on any of the other two topics you didnt get to testify in your opening statement. Mr. Love. On the issue of copyright law. I think there is distwinings between whether the state laws and regulations in the United States can be copyrighted. I think the u. S. Law that work with federal employee, federal regulations are not subject to copyright. There are i think it would be good to extend that role to laws at the state level and everything from Court Opinion to and i mentioned that the convention i. T. Has a special provision that gives government extra flexibility in the area of testimonies, of legislation, anything that basically smacks lawtype proceedings. I think that it is good you focused on this issue. I think that i certainly agree with what karl was saying comp is if youre expected to my father was a judge. If youre expected to aby the law, i think you right have tow in what the law is. I think its good that the committee is looking at that issue. Thank you. Professor. Thank you. Ill briefly speak. Many of the principles i discussed apply equality to standards we need to ensure that the author of standards can be compensated for their work. And i think she did an explent job testifying. We should keep in mind that standards are incredibly diverse. And some standards have thousand of parts and thousand of sub parts in those parts. In the case of things like technical standards. Standards should not all be treated the same. And there should be due regard to the complexity and incredible expense and incredible value created in standards. Thank you. Thank you. This soot one for you. As the committee continues the work reviewing copyright law. Are there topics in copyright law that you would recommend the Committee Review . Well start with the professor. I agree with david. Its statutory damages is going to need to be revisited particularly in the individual consumer context. Its a problem to treat them as we are now. Hundred of thousand of dollars in damages. Against a mom and student is not point well taken. Professor schultz. The digital me less millennium copyright act are broken. They are based on an outdated paradigm that seems almost nigh 05 now. You can contain a file and stop it from spreading. Its no longer working for creators. I noticed a piece recently that said google received the 1900th millionth take down. It goes both ways. Stens of thousand of people who make the good middle class living cant afford to spend all of their time trimming to chase salespeople around the internet. The system is not working for them. It needs to be revisited. Mr. Rove. I think revisiting the issue of formality is quite important. I think the decision to introduce more mall realize its impossible to identify the owner of a lot of works and authors are. Photographs, the pamphlets. A variety of proposals have been made to deal with the works. One of which is to consider the flexibility you have on formality. Certainly for the post trip requirement of 20 years on photographs and 50 years on copyright. You can introduce formality for that extended period. The proposal in the tpp negotiation do that thing that the u. S. Is actually imposing. I think the sus in the wrong side of that issue. Another thing on sound which are not protected by the burn convention will theres no obligation to have a more faulty. Not all Things Considered copyright in the United States are required under the burn convex formality. I think a deep and technical look where so you can introduce them. Some people in the Recording Industry have expressed some openness to the idea it maybe would be a good idea to sort of give more protection to people im sorry. The final thing the treaty for the blend provides an opportunity for the United States to share the collections of work zone with people in other country. Thank you, mr. Chairman. The written statement i submitted put two other matters in to the hopper. One, the United StatesSupreme Court last year ruled that gray market goods can be freely purchased abroad and imported in to country justices opinion we said we think its intended congress it. If not they can tell us. Theres a parallel issue in the domestic front which is Cloud Computing. It introduces new rules of the road. It essentially eliminates the safe guards of the for sale doctrine. Congress needs to look at the rules it wishes to have for the road of uncharted territory of the cloud. Thank you, mr. Chairman. The time is expired. I believe that making viable right ingained in the statute is an essential part of the framework. They concluded that no change to the u. S. Copyright law was necessary because existing law already includes making available right. Our federal Appellate Court arrived a the the same conclusion. This is also the case in various International Agreement the copyright treaty. I believe that the making available right is inherittings collusive right to give the creators freedom to express themselves and decide how and when they choose to distribute and public perform their own works. So professors, what if any impact carving out a separate making available right to the copyright act. What effect would it on online theft. Thank you, representative. I believe it would stream line the cases. Instead of having a large federal case about every activity of peertopeer sharing. There could be a proceeding particularly if Congress Also adopted my suggestion of having Small Claims Court proceedings. I think it would be a change to streamline the procedures and get quick and fair expedition just nice them. I disagree with the professor. It used to be under nap steer you go on and find one user who the file and download it from that particular user. That sort of file sharing property kl is largely most is its divided to separate seg want and sent in a swarm of people who are simultaneously uploading and downloading the work. The issue of whether you have to prove a download is part of your case is essentially irrelevant under the property property protocall. Almost all the instances where file sharing is down the investigator identifies the person. They were not the person doing the downloading. Only a relative handful 20, 30, 40 a few hundred every go any further. If it goes to trial, they get a copy of your hard drive and at that point its trivial to prove the file sharing activity you engage in. I dont see how it would facility or help small creators. No thank you. Let me turn a different issue. I ask specifically about the case. We know that the Supreme Court agreed to hear the case to determine whether online streaming of live broadcast institutes an investment of the copyright holders exclusive right of Public Performance. Given the economic importance of intellectual property in our country, and the evolution of modern technology is this an appropriate question for the court to determine or should Congress Legislate and settle this area of law how would a decision change the landscape how broadcast content would be delivered to consumers in the future . Thank you thats an excellent question. I begin with the second part of it. How would it change the landscape of broadcast. Not the only court case that the broadcast and Television Creators broadcast industry and Television Creators face. We have one court saying that essentially intercepting signals and aggravating them and sending them to the customer is not does not require payment of retransmission fees. We have another court saying that stripping commercials out of broadcasts is perfectly okay. We have another court in cable vision essentially saying that a virtual yule on demand service is permissible. And when it is all said and done you have to ask where the revenue is coming from. How these companies will get compensated for their work. I think an decision that comes up favor would undermine the premise in which the system is based. Local broadcasters can be compensated for the tremendous investment they have in broadcasting and content creators can be compensated for their work. So i think its an appropriate topic for the court. But if the court act interpret the copyrigh