In today’s policy discussions around intellectual property, the term ‘rightsholder’ is often misconstrued as someone who supports maximalist protection and enforcement of intellectual property, instead of someone who simply holds the rights to intellectual property. This false assumption can at times create a kind of myopia, in which the breadth and variety of actors, interests, and viewpoints in the internet ecosystem – all of whom are rightsholders to one degree or another – are lost.

This is not merely a process issue – it undermines constructive dialogues aimed at achieving a balanced policy. Copyright law is, ostensibly, designed and intended to advance a range of beneficial goals, such as promoting the arts, growing the economy, and making progress in scientific endeavour. But maximalist protection policies and draconian enforcement benefit the few and not the many, hindering rather than helping these policy goals. For copyright law to enhance creativity, innovation, and competition, and ultimately to benefit the public good, we must all recognise the plurality and complexity of actors in the digital ecosystem, who can be at once IP rightsholders, creators, and consumers.

Mozilla is an example of this complex rightsholder stakeholder. As a technology company, a non-profit foundation, and a global community, we hold copyrights, trademarks, and other exclusive rights. Yet, in the pursuit of our mission, we’ve also championed open licenses to share our works with others. Through this, we see an opportunity to harness intellectual property to promote openness, competition and participation in the internet economy.

We are a rightsholder, but we are far from maximalists. Much of the code produced by Mozilla, including much of Firefox, is licensed using a free and open source software licence called the Mozilla Public License (MPL), developed and maintained by the Mozilla Foundation. We developed the MPL to strike a real balance between the interests of proprietary and open source developers in an effort to promote innovation, creativity and economic growth to benefit the public good.

Similarly, in recognition of the challenges the patent system raises for open source software development, we’re pioneering an innovative approach to patent licensing with our Mozilla Open Software Patent License (MOSPL). Today, the patent system can be used to hinder innovation by other creators. Our solution is to create patents that expressly permit everyone to innovate openly. You can read more in our terms of license here.

While these are just two initiatives from Mozilla amongst many more in the open source community, we need more innovative ideas in order to fully harness intellectual property rights to foster innovation, creation and competition. And we need policy makers to be open (pun intended) to such ideas, and to understand the place they have in the intellectual property ecosystem.

More than just our world of software development, the concept of a rightsholder is in reality broad and nuanced. In practice, we’re all rightsholders – we become rightsholders by creating for ourselves, whether we’re writing, singing, playing, drawing, or coding. And as rightsholders, we all have a stake in this rich and diverse ecosystem, and in the future of intellectual property law and policy that shapes it.

Here is some of our most recent work on IP reform:

• Submission to the European Commission public consultation on the Intellectual Property Rights Enforcement Directive (IPRED) & Letter on IPR Enforcement.
• US Copyright Office filing on Section 512 of the Digital Millennium Copyright Act (DMCA) & blog post.
• US Copyright Office filing on Section 1201 on the circumvention of technical measures & blog post.

The Digital Millennium Copyright Act (DMCA) should be reformed to help promote openness online. We’ve made this case before, posting about section 1201 on the circumvention of technological protection measures. Now, the U.S. Copyright Office has sought comments on section 512, on liability for intermediaries whose services may facilitate activity that infringes copyright. In this area, too, we argue for changes to better support openness. So, we filed comments in response to this consultation last week.

Section 512 gives an exemption (also known as a “safe harbor”) to the normal presumption of liability for copyright infringement, if the intermediary (usually a website, platform or ISP) follows a set of defined processes to deal with copyright complaints. These processes are centered around DMCA notices and counter-notices, and are a common occurrence in online life for creators who take advantage of fair use and other exceptions to copyright to build upon the work of others. Section 512’s protections have enabled the massive growth both of online services and, thereby, of the market and opportunities for licensing copyrighted works. Both of these outcomes have delivered great benefits to Internet users. Some believe these benefits have come with huge costs to rightsholders and believe the current approach should be gutted and replaced with a more punitive “notice-and-staydown” strategy; we believe these proposals should be ignored. But, there is room for improvement.

Because of important nuances of copyright law, it is not just the content but also the context in which content is found that determines infringement.  For example, a piece of content can be used as a parody or for criticism or comment – or the user may hold a license permitting the activity – which would not constitute infringement. However, automated systems which generate the majority of section 512 notices today work by detecting the presence of particular content. These systems cannot account for context, and thus many activities that are non-infringing trigger burdensome enforcement processes. This confusion, problematic in the current regime, would be amplified many times in a “notice-and-staydown” regime.

In our filing, we offer three main proposals for reform to improve on the current system:

1. Rebalance the underlying incentive structures by introducing statutory damages as a component of the remedy for unwarranted DMCA takedown requests;
2. Attach penalty of perjury to the accuracy of notices as a whole, not merely the authority of the complaining party to act; and
3. Give intermediaries some discretion to preserve the availability of content during the statutory 10-day waiting period under good-faith belief of invalidity of the notice (for example, for users who are frequently targeted with invalid notices).

Considering how long ago it was written, and the major technological advancements since then, section 512 has aged very well. It should be viewed generally as a farsighted and well-designed attempt to promote the interests of users who want engaging online services. We hope that the reforms we propose will be adopted to ensure that it continues to maximally promote innovation and creativity online.

The Mozilla Manifesto has as its second principle, “The Internet is a global public resource that must remain open and accessible.” The Internet is the most significant social and technological medium of our time, and an invaluable public resource that must be protected and supported. Yet, Internet openness is at risk all around the world, from a number of different directions. One of these is copyright law, and the restrictions that are, at times, imposed on socially and economically beneficial activity. Mozilla has been engaging in various copyright reform processes in the European Union over the past several months, advocating for a European wide framework that promotes competition and innovation online. Now, we are bringing that advocacy across the Atlantic to the United States.

The U.S. Copyright Office is currently seeking comment on part of the Digital Millennium Copyright Act, Section 1201 of Title 17, which prohibits the circumvention of technical measures that effectively control access to copyright protected works. In response, we have submitted comments articulating our view of the problems associated with this law as it stands today, and have offered suggestions that promote openness online, within the general framework of the law.

In practice, Section 1201 implements a different balance of interests than copyright law. It allows copyright holders to impose more severe restrictions on user freedoms than copyright law alone permits. The combination of technical measures and circumvention liability is unable to distinguish between infringing and non-infringing uses of content – so, in service of the ostensible goal of limiting infringement, innovative and positive activities, that do not violate copyright law, get caught up as well. The statute includes some limitations to try to alleviate this harm, including a few specific permanent exceptions as well as a process for requesting additional temporary ones, but these measures fall short. As a result, Section 1201 stifles fair use and other legitimate activities, posing risk of long-term harm to competition, innovation, and culture.

The notice of inquiry asks for suggestions for both general improvements, and for specific changes to the statute’s exceptions. In our filing, we identified gaps where the permanent exceptions have fallen short of accomplishing their ostensible objectives. We also offered three suggestions to help improve the 3-year exemption review process:

• adopt a presumption of renewal for 3-year exemptions;
• expand the scope of exemptions to include actions by third parties; and
• educate to improve awareness and public engagement with the process.

The changes we propose would not “fix” Section 1201. It’s hard to conceive of anything that would be a complete fix, so long as the law allows a different balance of interests to be imposed than that set under copyright law. However, the changes we propose, if implemented, would help protect openness to a greater degree than the current approach.