Courts are a more effective venue for copyright reform, but avoid the link to the politics DA.

A. Proposed Reforms of Existing Law While Copyfraud anticipates that the legislative system will deal with copyright abuse, I suggest that the judicial system may prove a more effective venue for some reforms that Mazzone recommends. Copyfraud proposes, for instance, that Congress revise U.S. copyright statutory damage rules so that legitimate fair users will feel freer to engage in lawful (if edgy) uses of copyrighted works (pp. 201–03).82 Under current law, a successful copyright claimant can opt for an award of statutory damages instead of actual damages.83 The normal range for statutory damage awards is between $750 and $150,000 per infringed work.84 Mazzone believes that the risk of substantial statutory damage liability has undue chilling effects on users (pp. 202–03). Imagine, for instance, a town historical society that owned a set of 100 historically significant photographs by an unknown photographer from the 1960s, which it wanted to post on its website. Even if the society firmly believed doing so would be fair use, it might well refrain from posting the photographs online because of its potential exposure to a statutory damage award that could send it into bankruptcy.85 Mazzone would have Congress limit statutory damages for noncommercial infringements (p. 203). Reform of copyright’s statutory damages provision would be a very good idea.86 However, Congress seems unlikely to reform it as Mazzone recommends, given that copyright industry groups favor statuto-ry damages awards precisely because of their deterrent (that is, in terrorem) effects.87 A more feasible way to reform statutory damages would be to persuade judges to adopt guidelines to ensure that statutory damages awards are “just,” as the statute says they should be.88 In many cases, this approach would mean awarding an amount that approximates actual damages, and in some cases, courts have done just that.89 Another reform recommended in Copyfraud concerns contractual and technical measures aimed at overriding lawful uses of public domain or copyrighted works.90 The book recommends that Congress enact legislation to forbid contractual overrides to fair use (for example, anti–reverse engineering clauses in software licenses) so that such restrictions would be null and void (pp. 114–15). Mazzone would similarly have Congress amend laws outlawing circumvention of technical protection measures (TPMs), which are used to protect copyrighted works, so that circumvention for fair use purposes or for purposes of accessing public domain materials would be lawful (p. 93). Given the failure of previous legislative efforts to limit contractual overrides to fair use and to enable circumvention for fair use purposes,91 Copyfraud’s proposals are admirably idealistic, yet unrealistic. As with statutory damages reform, a more viable way to accomplish these objectives would be to persuade courts to treat contractual restrictions on fair use and other privileged uses as unenforceable on public policy grounds.92 Mazzone might also find comfort in plausible interpretations of the anticircumvention rules under which circumvention for fair use and other public interest purposes is already lawful.93 A complete ban on contractual or technical overrides to privileged uses may be overbroad.94 Copyfraud also recommends that Congress amend fair use to make it lawful to take samples from existing sound recordings to make new recordings (p. 65),95 but if Congress truly cared about creative sampling of sound recordings as fair use, it would probably have already taken action, given how well known the problem is. The book further recommends that initial purchasers of digital copies of or access rights to copyrighted works should have the right to transfer that copy or access right (p. 135), which would allow purchasers to resell these copies, give them away to friends, or donate them to nonprofit libraries. Congress has, however, had a chance to be receptive to a similar recommendation but declined the opportunity.96 Courts are a more likely venue than is Congress for achieving these two reforms. Courts could become more receptive to sampling as fair use and could draw upon common law exhaustion of rights principles to allow resales of digital copies.97 Nor is Congress likely to amend the Digital Millennium Copyright Act98 (DMCA) so that users would have considerably more due process rights with respect to materials they have stored on ISP sites that copyright owners claim are infringing, as Copyfraud recommends (pp. 92–93).99 Under Mazzone’s regime, a user would first have the chance to oppose a takedown notice, whereupon the ISP would do nothing unless and until the owner filed an infringement lawsuit (p. 93). Perhaps Mazzone is right that more should be done to encourage ISPs to take fair use and free speech principles into account when they process takedown notices, but it seems inefficient to require copyright owners to file a lawsuit when sending a letter identifying infringing works and asking the ISP to take them down would resolve most disputes. Courts are more likely than is Congress to interpret the noticeand-takedown rules in a way that takes into account public interest concerns.100