Congressman Doyle Gives Keynote Speech At First World's Fair Use Day

U.S. Representative Mike Doyle (PA-14) gave the following speech this morning as keynote speaker at the First Annual World's Fair Use Day:

Good morning.

I want to thank probably Gigi Sohn for the warm introduction. Gigi and the crew at Public Knowledge do a great job of educating the public about the importance of a balanced copyright policy and an open internet. She's not only a regular witness to our hearings in the Energy and Commerce Committee, she's someone we look to hear from on these issues.

I'm pleased to be here at the Newseum today to join with you in celebration of World Fair Use Day. And I'm especially thankful for the sponsorship from the Andy Warhol Foundation for the Visual Arts. You can imagine, if Warhol was prohibited from using Brillo boxes or Campbell Soup cans as subjects for his paintings, then we wouldn't know Andy Warhol today, nor would we have the fantastic Andy Warhol Museum that the Foundation started in Pittsburgh's North Shore. You must see it if you haven't been.

So picture a Congressional hearing. Dozens of members of Congress. A handful of witnesses. Lobbyists and members of the public in the audience. The topic was the future of music and radio. A few days before, my legislative director had come across a constituent of mine whose album was making year-end top 10 lists in magazines and newspapers across the country. I hadn't heard of him, but I wasn't alone. This guy, named Gregg Gillis, Pittsburgh biomedical engineer during the day, world-famous DJ named Girl Talk at night was mixing together beats, chords and lyrics from dozens of songs.

So I went online, looked him up and heard a couple of his songs. And I have to say, it certainly wasn't something I was used to. Some of what he was sampling, I had heard before. Others I hadn't. But I liked it. The Chicago Tribune said that his art is "based on the notion that some sampling of copyrighted material, especially when manipulated and re-contextualized into new art, is legit and deserves to be heard." The New York Times Magazine called him "a lawsuit waiting to happen."

So back to the Congressional hearing. I explained all this in my statement. And I said, "In one example, he blended Quincy Jones, Jimi Hendrix, Elton John, Notorious B -- I -- G, and Beyonce' all in the span of 30 seconds. And while the legal indie music download site eMusic.com took his album down for possible copyright violations, he's now flying all over the world to open concerts for Kanye and remixing for artists like Beck."

I yielded back my time, and I looked at the audience. I saw 3 or 4 people with huge smiles, they were younger -- a reporter, a colleague's staffer, whatever. A few had their noses wrinkled up, I could tell they were thinking "What on earth did he just say?" The rest of the audience's faces wore blank stares.

I've never given a speech that had gotten such a reaction.

My mind instantly went to the scene in Back to The Future when Marty McFly, played by Michael J. Fox played a wild guitar solo at his dad's high school dance. Remember that scene? His dad's classmates expected Chuck Berry and got hit with Van Halen.

All he could say to the shocked dancers was "I guess you guys aren't ready for that, yet. But your kids are gonna love it." That's pretty much how I felt.

Afterward, what I said at the hearing got a lot of attention. The people in the audience who were smiling must have told someone, who told someone, who got Newsweek to get me and Gregg together for lunch. We talked a lot about music and copyrights and we discussed how some people believe that his sampling-based artistic creations were a form of piracy. He responded that because the clips he used were so short -- think about 2 seconds of an Earth, Wind and Fire song -- that by no means discouraged the listener from buying the original song. Instead, it probably exposed my favorite band to kids who remember hearing the chorus from a song their parents played.

Now, both Gregg and I believe that the artists that he samples from should be compensated -- but that their compensation should be in line with their contribution. Because he uses so many samples of such a short length, he outlined scenarios where the licensing costs for one album could run well into the millions -- way more than it'd ever take in. That's assuming he could even figure out who actually owned the copyrights of certain, older songs.

So while the Girl Talk story isn't the most pure example of fair use, it's a great introduction to how I became so familiar with the topic.

Most members of Congress don't think about fair use. The best thing that fair use advocates have going are the amazing gadgets and services that people create to make our interactions with audio and visual content more meaningful, more engaging.

I grew up with 12 inch LPs and turntables and the idea of carrying hundreds of those albums with me -- my favorite TV shows and a few movies in a small thing that fits in my pocket is still amazing to me.

Think about it, first the iPod was the coolest thing -- a cultural icon and a hip fashion accessory. And then people like me started to buy them.

I didn't buy all the songs on my iPod from the iTunes store -- I ripped them from my CD collection. While that's a textbook example of "fair use", that name isn't what most people call it. "Duh" is what most people call it.

As the other speakers and panelists will talk about today, fair use impacts us in ways that we don't often figure.

To give you one measure of the cultural impact of fair use, 5 long years ago college students were polled and determined that the iPod was the #1 "in thing" on campus. Tied for number 2 were Facebook and beer.

That was 5 years ago, but I'm not sure that that's changed much. But the iPod, Facebook and beer have a lot more in common than you might imagine.

After all, Ben Franklin's famous misquote that "Beer is proof that God loves us and wants us to be happy" is hanging on the walls of thousands of college dorm rooms across this country. Using that quote for a poster might be fair use if his copyright on it hadn't already expired into the public domain.

But seriously, social networking sites like Facebook rely on fair use when they briefly excerpt an article that I post that mentions my work back in Pittsburgh, or my comments on a national issue.

That kind of fair use, the scraping of content from other websites and putting it on your own is under fire -- a threat to fair use as we know it today. But try to imagine a world without it?

If you wanted to look for something on the web, how would you know what to click on if the search results didn't have the little quote below the link?

I've been reading about this on TechDirt, so Mike Masnick, please forgive me if I use your example, but I've noticed that Rupert Murdoch is furious at Google for this kind of fair use. He not only wants to block Google's web crawling of his content, which he could legally do today if he wanted -- but he wants the entire legal theory underpinning this activity overturned.

But it wasn't until I saw TechDirt's feature on the dozens of examples of other NewsCorp websites that rely on scraping other people's content that I realized that Murdoch's argument was flawed. Why do his own sites do it? Because it's useful to readers, and if it's useful, then readers will come back to the site more often, generating ads, generating revenue and so on.

So it's interesting that Murdoch's Fox News is being sued by a copyright holder for infringement after Fox News used clips of an interview during the aftermath of Michael Jackson's death. "Fair use!" Fox News says. The lawsuit rebuts, saying "Fox sanctimoniously operates unencumbered by the very copyright restrictions it seeks to impose on its competitors." Tough words. We'll see where this case goes.

Fox News is a huge business. And its parent NewsCorp is one of the top copyright businesses in the world, creating more content than each of us here could possibly watch or listen to each day.

Murdoch's content is valuable, and the economic contribution of the copyright industries is substantial. But I think that Murdoch's example is proof that copyright industries also are fair use industries.

Digital music downloads were inevitable as soon as computers had access to the Internet. But technology today relies on fair use -- just last night, I saw that an old friend owns a turntable that records LPs onto a CD or a USB drive. Without fair use, it'd be illegal. Clearly, fair use has an important role to play in the economy, some estimate copyright exemptions like fair use contribute $2.2 trillion to the economy.

But there are other challenges to fair use outside the marketplace.

The US Trade Representative is engaging in negotiations over a trade agreement that might have significant, harmful effects on the Internet and fair use. It's called the Anti-Counterfeiting Trade Agreement, or ACTA. Unfortunately, I can't tell you what's in it because it's still in negotiations and I haven't signed a non-disclosure agreement.

It's got a great name. After all, I want to make sure that when I buy my wife a nice purse for Christmas, that it's not a fake. I want to be able to comparison shop and have confidence in the things I buy. If that's what a counterfeiting and piracy agreement will do -- by giving law enforcement more effective tools -- then there would be widespread agreement.

But the digital content and internet section has sparked many people, companies and industries that I respect to grow very concerned.

I join with Senators Bernie Sanders, Sherrod Brown in wanting deliberations to be more public, and I'm very interested in hearing the answers to Senator Wyden's letter from last week asking the US Trade Rep to respond to allegations like the one I just outlined. If ACTA is to succeed -- and it might -- the United Kingdom has it right when it says that "transparency is crucial to ensure the legitimacy of the agreement and to stop the spread of rumours. We believe the lack of transparency is unhelpful and do not believe that it is in the public interest."

The USTR has communicated to me that ACTA won't cement current provisions in the Digital Millennium Copyright Act -- provisions that I'd like to see changed, like the anti-circumvention provision. And they've said that ACTA won't require Internet Service Providers (ISPs) to become "copyright cops" above current law. Well, that sounds nice, but there are still many respected scholars who believe that that will lead to a 3 strikes policy that would punish repeat infringers by cutting them off from the Internet.

So let me be very clear. I will oppose any effort, by Congress or by trade agreement, to cut people off the Internet. If people are pirating movies and music, they should be punished. There are laws on the books against that illegal activity. But I don't want Corey Vidal's upload of the acapella tribute he made to the movie music of John Williams to count as a strike. Or Stephanie Lenz from Altoona, Pennsylvania, who uploaded a video of her 18 month-old child dancing to Prince, who had to sue to get her good name back after the record company accused her of copyright infringement. That shouldn't count as a strike.

In the days when Internet access is so critical to our children's education, and when digital literacy is so important to our economic future, I would hate for one person, or one child's, mistakes to punish the rest of the family. I would hate for a computer infected with viruses or malware to get a family kicked off the internet. There's an amazing story in the Washington Post from December headlined "Without ready access to computers, students struggle." It's about kids without computer or online access at home getting further and further behind their peers. We should be talking about how to expand digital access to every family in America, not how to take it away.

But hope is not lost. I am quite pleased that at the December meeting of the World Intellectual Property Organization, the United States delegation outlined its support for new fair-use-like exceptions to copyright for the visually impaired that might help them have access to technologies like book readers and more.

And in their filing, the delegation made clear that "The United States is committed to both better exceptions in copyright law and better enforcement of copyright law." That's exactly my belief, and I'm glad that's the Obama Administration's view. Copyright exceptions like fair use are important to our nation.

Gigi, thank you so much for inviting me here this morning. I hope you all enjoy celebrating World Fair Use Day.

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