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THE SCOPE OF COPYRIGHT PROTECTION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

COURTS, INTELLECTUAL PROPERTY, 

AND THE INTERNET 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

JANUARY 14, 2014 

Serial No. 113–81 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

[Vacant] 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

HOWARD COBLE, North Carolina, Chairman 

TOM MARINO, Pennsylvania, Vice-Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

TED POE, Texas 

JASON CHAFFETZ, Utah 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JOHN CONYERS, JR., Michigan 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

JUDY CHU, California 

TED DEUTCH, Florida 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

[Vacant] 

JOE KEELEY, Chief Counsel 

STEPHANIE MOORE, Minority Counsel 
(III) 

C O N T E N T S 

JANUARY 14, 2014 

Page 

OPENING STATEMENTS 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Courts, Intellectual 

Property, and the Internet .................................................................................. 1 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary, 

and Member, Subcommittee on Courts, Intellectual Property, and the Internet .......................................................................................................................... 2

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 3 

WITNESSES 

David Nimmer, Professor from Practice, UCLA School of Law, Of Counsel, 

Irell & Manella, LLP, Los Angeles 

Oral Testimony ..................................................................................................... 6 

Prepared Statement ............................................................................................. 8 

Glynn S. Lunney, Jr., McGlinchey Stafford Professor of Law, Tulane University Law School 

Oral Testimony ..................................................................................................... 34 

Prepared Statement ............................................................................................. 36 

Mark Schultz, Professor of Law, Southern Illinois University School of Law 

Oral Testimony ..................................................................................................... 57 

Prepared Statement ............................................................................................. 59 

James Packard Love, Director, Knowledge Ecology International 

Oral Testimony ..................................................................................................... 66 

Prepared Statement ............................................................................................. 68 

Patricia Griffin, Vice President and General Counsel, American National 

Standards Institute 

Oral Testimony ..................................................................................................... 79 

Prepared Statement ............................................................................................. 80 

Carl Malamud, President, Public.Resource.Org 

Oral Testimony ..................................................................................................... 84 

Prepared Statement ............................................................................................. 86 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Material submitted by the Honorable Darrell E. Issa, a Representative in 

Congress from the State of California, and Member, Subcommittee on 

Courts, Intellectual Property, and the Internet ................................................ 148 

Prepared Statement of the American Society of Mechanical Engineers 

(ASME) .................................................................................................................. 158 

Letter from ASTM International ............................................................................ 164 

Prepared Statement of Broadcast Music, Inc. (BMI) ............................................ 165 
Page

IV 

Prepared Statement of the Computer & Communications Industry Association 

(CCIA) ................................................................................................................... 176 

Prepared Statement of the Future of Music Coalition (FMC) ............................. 181 

Prepared Statement of the Library Copyright Alliance (LCA) ............................ 190 

Prepared Statement of Sherwin Siy, Vice President, Legal Affairs, and John 

Bergmayer, Senior Staff Attorney, Public Knowledge ...................................... 198 
(1) 

THE SCOPE OF COPYRIGHT PROTECTION 

TUESDAY, JANUARY 14, 2014 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 10:04 a.m., in room 

2141, Rayburn Office Building, the Honorable Howard Coble 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Coble, Goodlatte, Conyers, Marino, 

Smith of Texas, Chabot, Issa, Poe, Farenthold, Holding, Collins, 

DeSantis, Johnson, Chu, Deutch, Bass, DelBene, Jeffries, Nadler, 

Lofgren, and Jackson Lee. 

Staff present: (Majority) Joe Keeley, Chief Counsel; Olivia Lee, 

Clerk; (Minority) Stephanie Moore, Minority Counsel; and Jason 

Everett, Counsel. 

Mr. COBLE. Good morning ladies and gentlemen. 

The Subcommittee on Courts, Intellectual Property, and the 

Internet will come to order. 

Without objection the Chair is authorized to declare recess of the 

Subcommittee at any time. 

We welcome all our witnesses today. 

We will now have our opening statements. 

This morning the Subcommittee will continue its review of our 

Nation’s copyright laws by hearing testimony concerning what is 

within the scope of copyright protection. Our witnesses will present 

contrasting views on three important copyright issues: the making 

available right, A; should broadcasters—should broadcasts be protected with additional laws, B; and, C, how laws, codes and standards be protected under the copyright law. 

I and others have worked to bolster our copyright laws and protect local broadcasters whenever possible. And I have also advocated that these efforts be generously laced with common sense. 

Common sense, it seems, is an ingredient that is sorely missing 

sometimes on Capitol Hill. And I guess all of us are guilty of that. 

Maintaining these philosophies has become complicated by evolving 

technology. And hopefully our witnesses today will highlight the 

most important issues confronting our copyright laws. 

Piracy and online infringement are an enormous concern and we 

have repeatedly heard testimony, over the past decade, about the 
2 

harms caused by file sharing. It was disturbing to hear that judges 

were uncertain at that time of how to respond to this crisis. 

I am pleased to learn that one of our witnesses, Mr. Nimmer, has 

updated his copyright treatise and made it perfectly clear that 

making available copyrighted works for others is infringement. 

That being said, I do not want to steal the thunder from this morning’s testimony. And I encourage all Members, especially those who 

have not focused on these issues in the past, to carefully consider 

today’s testimony. 

In closing, I thank our esteemed panel of witnesses for participating in the hearing today. And I look forward to your remarks. 

I am now pleased to recognize the distinguished gentleman from 

Michigan. 

By the way, John, this is our first meeting since Mr. Watt left 

us. 

So, for the first time in years, there will not be a North Carolinian on this side of the Judiciary aisle. But, I hope we will survive. 

Good to have you, John. 

Mr. CONYERS. Thank you and good morning to the Chairman and 

the Members of the Committee and the very small number of witnesses that we have before us this morning for a very important 

subject. 

The hearing today provides an important opportunity for us to 

consider various provisions of copyright law and to examine whether the laws continue to adequately protect creators and promote innovation, in light of developing technologies that were not contemplated when these provisions were originally enacted. 

And, to that end, there are several factors that we should keep 

in mind. For example, the making available right, which gives 

copyright owners the exclusive right to authorize the manner and 

terms to make their content available to the public. I favor strong 

copyright protection because it benefits creators and promotes innovation and economic growth. Strong copyright protection laws also 

help create a marketplace for content that viewers will enjoy as 

well as the latest technology that can be used to watch the content. 

The making available right is especially important today where 

one copy of a work over the Internet, without authorization, could 

provide access to millions of users around the world. The making 

available right helps prevent infringing conduct. 

For those reasons, we do not need to change copyright law for 

the making available right. Existing law already includes a making 

available right. I don’t believe that there is any ambiguity in the 

law and some Federal appellate courts have recognized the making 

available right. In addition, the United States is a party to various 

international agreements that require signatories to implement the 

making available right. Congress has repeatedly demonstrated, by 

ratifying these agreements, that the United States law already includes this right and no change is necessary. 

In any case, as we study this issue, we should consider guidance 

from the Copyright Office. And, to that end, our former colleague 

and Ranking Member of this Subcommittee, Mel Watt, sent a letter 

to that agency last month asking it to study the current state of 

the making available right and to make recommendations. In par-
3 

ticular, we need to know how American consumers fair under current law in the context of digital, on-demand transmissions such as 

peer-to-peer networks, streaming services, and music downloads. 

Additionally, we need to know how the competitiveness of U.S. 

technologies can be strengthened in the global marketplace, under 

international treaties, to preserve robust protection for creators. In 

conjunction with the testimony we receive today, this report should 

provide us with valuable guidance. 

Second, the evolution of technology has had a major impact on 

the debate about copyright protection for broadcasts and has generated many unresolved legal issues. Just last Friday, the Supreme 

Court granted certiorari in a case where the Nation’s largest television broadcasters had brought suit against Aereo, a streaming 

video service. This decision could have a wide ranging impact on 

Internet streaming, cloud computing and the television industry. 

Whatever the outcome of this case, I believe the law must avoid 

any anti-consumer ramifications, including higher fees and restricted access. 

To be clear, moving forward in this copyright review, we must 

ensure that creators are protected. Strong protection for creators 

will ensure that consumers continue to enjoy the works that define 

our culture and enrich our lives. 

And, accordingly, I thank the Chair for his leadership on these 

issues and look forward to further collaboration on them. 

I thank you. 

Mr. COBLE. I thank the gentleman. 

I now recognize the distinguished gentleman from Virginia, the 

Chairman of the full Committee, Mr. Goodlatte, for an opening 

statement. 

Mr. GOODLATTE. Well, thank you, Mr. Chairman. I appreciate 

your holding this hearing. 

And I want to welcome all of our witnesses and this capacity 

crowd in the audience to a hearing on a topic that goes to the heart 

of copyright law: What is the scope of copyright protection? The 

Committee will hear testimony on three related issues. 

The first issue, concerning a making available right, seemed to 

be settled by the U.S. accession to two separate WIPO Treaties in 

1988. However, uncertainty has arisen in several file sharing cases 

and most recently in a library case, in the Tenth Circuit, in which 

the opinion was released only 3 weeks ago. I look forward to the 

thoughts of Professors Nimmer and Lunney on prior jurisprudence 

and whether Congress should bring greater clarity to this fundamental issue of copyright law. 

The second issue concerns the scope of copyright protection for 

broadcasts. Although the U.S. is not a party to the Rome Convention, ongoing discussions in Geneva could result in additional copyright or other protection for broadcasters in an effort to deter signal theft. Broadcasting has changed significantly since the Rome 

Convention was signed in 1961. Smartphones with an always-on 

Internet connection now make everyone in this room a broadcaster 

in ways that were unimaginable 50 years ago. I look forward to 

hearing from Professor Schultz and Mr. Love on this topic. 

Finally, we will hear about an issue that has received less public 

attention than the other two, but is one that does go to the heart 
4 

*The information referred to is not re-printed in this hearing record but is on file with the 

Subcommittee and can be accessed at: 

https://law.resource.org/pub/us/code/ga/ 

https://law.resource.org/pub/us/code/id/ 

https://law.resource.org/pub/us/code/ms/ 

of how citizens interact with their government. It was also the subject of the very first copyright case heard by the Supreme Court in 

1834. Copyright protection for laws, codes and standards appears 

to clash with the fundamental ability of our citizens to know what 

laws and regulations they must live by. It is fortunate that the 

number of States seeking to claim copyright protection on their 

laws and regulations, despite longstanding Copyright Office and 

Administration views to the contrary, has sharply declined. However, the issue of copyright protection for codes and standards, incorporated with them, is more nuanced. Recognizing that codes and 

standards are developed at some expense by private-sector entities, 

I look forward to hearing from a representative of the American 

National Standards Institute and an individual who has made 

greater access to government information, including the videos of 

congressional hearings like these, his longstanding mission. 

Before I conclude my opening remarks, let me turn to a few other 

issues not being heard today. I am sure that there is no one in this 

hearing room who isn’t aware that the Supreme Court announced, 

on Friday, that it will hear oral arguments later this spring in the 

Aereo case regarding another issue related to the scope of copyright, the public performance right. The court also announced Friday that it will hear oral arguments in two cases with implications 

for the patent troll issue, something this Committee and the House 

has already addressed. These three intellectual property cases are 

in addition to earlier patent cases taken up only a few months ago 

by the Justices. It is hard for me not to notice that once again this 

Committee continues to lead the way on critical policy issues. 

And I want to thank the witnesses again for their time here 

today and for their flexibility in their schedules to enable them to 

be here. 

Thank you, Mr. Chairman. 

Mr. COBLE. Thank you, Chairman Goodlatte. 

We have a very distinguished panel today and I will begin by 

swearing our witnesses in, before introducing them. 

[Witnesses sworn.] 

Mr. ISSA. Mr. Chairman? 

Mr. COBLE. Yes. 

Mr. ISSA. In order to have this in the record at the time of the 

hearing, could I ask unanimous consent to put documents in the 

record at this time, so they can be copied for the Members? 

Mr. COBLE. Without objection. 

Mr. ISSA. Thank you. Do you want to hear them all or just you 

will take all of them? 

Mr. COBLE. We will take all of them—— 

Mr. ISSA. Thank you very much. 

Mr. COBLE [continuing]. Without objection.* 

Mr. ISSA. Thank you. 

Mr. COBLE. Thank you, witnesses. 

I will introduce the witnesses. 
5 

Chairman Goodlatte mentioned standing-room only crowd. And 

this shows me that you all have more than a casual interest in this 

very significant issue. And we are pleased to have all of you with 

us today. 

Our first witness today is Mr. David Nimmer a professor at the 

UCLA School of Law and an attorney in private practice to the 

Law Firm of Irell & Manella. In addition to his numerous books 

and articles on United States and international copyright law, Mr. 

Nimmer has updated and revised Releases 19 through 92 for 

Nimmer on Copyright. He received his J.D. from the Yale School 

of Law and his A.B. with distinction and honors from Stanford University. 

Our second witness is Mr. Glynn Lunney, Jr., a professor at 

Tulane University School of Law, where he teaches courses in intellectual property, unfair competition and contracts. Professor 

Lunney earned his J.D. from the Stanford School of Law and his 

B.S. from Texas A&M University. He also earned his M.A. and 

Ph.D. in Economics from Tulane University, while teaching at the 

law school. 

Our third witness today is Mr. Mark Schultz, Professor of Law 

at Southern Illinois University of Law and Senior Scholar at the 

Center for the Protection of Intellectual Property at George Mason 

University School of Law. Professor Schultz received both his J.D. 

with honors and B.A. in International Economics at George Washington University. Professor, is that the Salukis? Is that the name? 

Mr. SCHULTZ. Yes, that is right. 

Mr. COBLE. That’s the name most folks without any connection 

with the university know the nickname with the dog? 

Mr. SCHULTZ. It is an Egyptian racing dog. Yes, sir. 

Mr. COBLE. Alright, thank you. Do I get—are you awarding me 

special credit for knowing that? I will accept it. 

It is good to have you with us, Mr. Schultz. 

Our fourth witness is Mr. James Love, Director of Knowledge 

Ecology International. Mr. Love earned a Masters in Public Administration from Harvard University, the Kennedy School of Government and a Masters in Public Affairs from Princeton University, 

Woodrow Wilson School of Public and International Affairs. 

Our fifth witness today is Ms. Patricia Griffin, Vice President 

and General Counsel of the American National Standards Institute. Ms. Griffin joined ANSI in 2004, after 20 years of private 

practice. And she earned her J.D. from the Albany Law School and 

her B.A. from Skidmore College. 

Our sixth and final witness is Mr. Carl Malamud, President of 

Public Resource Organization. Mr. Malamud founded the nonprofit 

in order to work on the publication of public domain information 

from the local, State and Federal Government agencies. Mr. 

Malamud received his MBA degree from the Indiana University, 

Kelley School of Business. 

We welcome you all. 

Our first witness will be Mr. Nimmer. 

And it is good to have all of you with us. Gentlemen—lady and 

gentlemen, if you could confine your statements to on or about 5 

minutes. There is a panel on your desks. When the green light 

turns to amber, the clock begins ticking and you are about to come 
6 

up on 5 minutes, which will appear when the red light illuminates. 

And we try to apply the 5-minute rule to ourselves as well. So, during questioning, if you could be as curt as possible that would be 

appreciated. 

Mr. Nimmer, if you will kick the ball? 

It is good to have all of you with us. 

TESTIMONY OF DAVID NIMMER, PROFESSOR FROM PRACTICE, 

UCLA SCHOOL OF LAW, OF COUNSEL, IRELL & MANELLA, 

LLP, LOS ANGELES 

Mr. NIMMER. Thank you so much, Mr. Chairman. And thank you 

to all the Members of the Committee for the invitation to testify 

this morning. 

We gather to consider the scope of the rights that belong to copyright owners. One of those rights is public distribution. The question today is how to prove violation of that distribution right. Specifically, does the act of placing a digital file containing a copyrighted work into a file sharing folding on the Internet violate the 

law? Or, must the copyright owner additionally prove that a third 

party downloaded that particular file before the uploader can be 

held responsible? In short, does copyright law’s distribution right 

include a making available component? 

Let us imagine that a user uploads a full copy of the motion picture Avatar to a share folder operated by a peer-to-peer service. 

Anyone else on the P2P network can then watch Avatar at no 

charge. I respectfully suggest that the better course of congressional action is to reaffirm the existence of a making available 

right so that the unauthorized upload itself is considered infringing. The alternative is to force the copyright owners to prove that 

third parties subsequently downloaded that particular copy of Avatar. That alternative unnecessarily clogs judicial procedures and 

threatens user privacy. 

As the eloquent introductions at the opening stated, it was the 

intent of Congress, in 1976, to include a making available right and 

the U.S. has joined two treaties that require this country to recognize that right. Unfortunately, nonetheless, there have been divided ruling on the subject from the district courts. Although there 

is one recent ruling from the Tenth Circuit recognizing the making 

available right, there is still, as that court recognizes, a dissensus 

in the courts. For that reason, I urge Congress to reaffirm the making available right aspect of the copyright owners’ distribution 

right. 

A brief history helps to frame the issue. Reverting to the mid20th century, the Copyright Act in effect then gave owners the exclusive right to publish or vend the copyrighted work. Someone 

who made a work accessible to the public was therefore an infringer with no further proof needed. 

If we imagine a bookstore in 1950 featuring numerous copies of 

a best-seller stacked on a table near the front door, the case 

against the store owner was complete. In other words, copyright 

law, at that time, imposed no obligation to place undercover agents 

near the cash register to develop evidence that third party customers actually walked out the door with copies of the book in 

hand. 
7 

Translated to today’s vernacular, copyright owners at that point 

enjoyed the exclusive right to make available the protected work. 

Of course they could have hired investigators to stand in the corner 

and record every transaction, but that exercise was always considered unnecessary. It should be considered equally unnecessary 

today. 

Rather than a private eye unobtrusively watching the cash register to see who bought books, proof of downloading today is far 

more invasive. It requires the issuance of subpoenas to Internet 

service providers to identify, for example, all subscribers behind the 

Internet protocol addresses who downloaded Avatar on a given day. 

Such subpoenas are multiplied 10,000-fold. For that reason, we 

have seen case after case confronting procedural challenges to 

these types of subpoenas. The entire exercise can and should be 

avoided. As opposed to extensive motion practice over subpoenas or 

digital dragnets designed to ensnare the identity of everyone who 

uses a P2P service, there is a much more straight-forward option: 

continue copyright law on its traditional path by holding liable 

those who make works available to the public without the copyright owner’s permission. 

Ideally litigation procedures against uploaders should be streamlined. The resulting case need not delve into intricate questions of 

who downloaded the work on which day. Equally, it should not result in a multimillion dollar judgment and massive trial procedures. For that reason, I recommended that Congress investigate 

two sensible adjuncts to its reaffirmation of the making available 

right. The first is recalibration of statutory damages to a sensible 

level that deters uploaders from their infringing activities, but not 

through the possibility of billion-dollar rewards as at present. The 

second is establishment of a form of small claims court to consider 

routine P2P cases and to award those appropriately reduced damages after liability has been established in a fair and expedited proceeding. 

These reforms will not solve all the problems faced by the copyright world, but they will set the law on a reasonable course designed to protect the interests of copyright owners and to safeguard 

user privacy interests on the Internet. 

Thank you very much. 

[The prepared statement of Mr. Nimmer follows:] 
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Mr. COBLE. Thank you, Professor Nimmer. 

Mr. Lunney, I will—talked to Mr. Schultz about the Salukis. I 

will admonish you because the Texas football team was not a very 

genial Bowl host in their recent Duke University/Texas A&M football. But, I will hold you harmless for that. [Laughter.] 

Mr. COBLE. Good to have you with us, sir. 

TESTIMONY OF GLYNN S. LUNNEY, JR., McGLINCHEY STAFFORD PROFESSOR OF LAW, TULANE UNIVERSITY LAW 

SCHOOL 

Mr. LUNNEY. Thank you, Committee Chair. 

I am terribly sorry that the Aggies were not polite to your team 

in the Bowl game. Maybe not that sorry. [Laughter.] 

But, it was a good game. And, if you didn’t stay to the end, you 

missed something pretty exciting, didn’t you? 

So, I am here and I probably have the hardest task of the witnesses up front, because the first point I would like to make to the 

Committee is that file sharing may not be quite the scourge that 

it has been made out to be. It is not the scourge of American culture. It is not the scourge of American business. 

The second point I would like to make is, even if it were, the 

making available right is not going to solve the problem. 

And the third point is, if we add the making available right 

using the linguistic framework we see in the WIPO Treaties to our 

Act, we are going to reopen a lot of what seem to be fairly settled 

issues on the Internet with respect to linking, cloud computing, social networking, these things that have been resolved under existing linguistic framework. If you add a vague right that says making available to the public, we will have to re-litigate them all over 

again. And I think that is a problem. 

Now, I know I am—I, sort of, don’t have much chance to persuade you that file sharing is not a bad thing. But, for me, there 

is a fundamental difference between copying and stealing. Stealing 

is basically wrong and we should prohibit it wherever we find it as 

a general rule. Copying, on the other hand, is generally a good 

thing. 

It is not just the best thing since sliced bread, we wouldn’t have 

sliced bread without copying. We wouldn’t have culture. We 

wouldn’t have civilization. I can speak to you today and you can 

understand what I am saying, or at least I hope you can, because 

you and I speak the same language. We speak the same language 

because we are born with the intrinsic ability to hear or see what 

another speaks or does and imitate that. Copying is a fundamental 

attribute. It is what makes our civilization possible. 

And so, when I look at file sharing, I don’t see a scourge of culture. I see an invention that has put music in the hands of more 

Americans than any invention since the phonograph. Now, I am 

told that the problem is it puts them in the hands of those Americans without them paying for it. And this is the real problem. It 

is a problem for the economy. Jobs are lost. It is a problem for the 

creation of music. People are not getting paid, why would they remain in the business? 

And so, when we think about those problems, for me at least, the 

jobs argument is reflecting a very old fallacy that economists have 
35 

identified since 1850. That money is not lost. It doesn’t go out of 

the economy. The fact that consumers don’t have to pay it for 

music means it remains in their pocket and they can invest it or 

spend it elsewhere in the economy and the jobs are just created 

elsewhere in the economy. They are still American jobs, so there 

is no loss in the jobs front. 

Now, with respect to the creation of music, this is—goes really 

to the heart of copyright. Its fundamental premise for 300 years is 

that more copyright equals more revenue equals more works. And 

we have very few opportunities to test that premise. But, file sharing gives us one of the few. Revenues to the music industry, in particular, have fallen dramatically. Now, whether all of that is due 

to file sharing or other factors, it is a little difficult to say. 

I am perfectly willing to accept that some part of it is due to file 

sharing. But, my concern is what happened to music output? And 

we turn to measures of music output by most of the measures we 

could use, music output seems to be remarkably healthy. And, if 

the goal of copyright is to produce more and better works, the 

progress of science, then file sharing doesn’t seem to be interfering 

with that at all. 

Now, maybe you don’t accept my perspective on that particular 

issue, that filing sharing is not quite the scourge it is made out to 

be. So, let us move on to the second point, which is that a making 

available right is not going to enable us to solve the file sharing 

problem. It is not the proverbial silver bullet. 

The point here is basically this simple: whether you have to 

prove a making available or your have to prove a distribution, the 

way you are going to do it is to download the work from the file 

sharing program. In the distribution context you may have to 

download it to show that a distribution was made. In the making 

available context you have to download the work to prove that the 

link really is to the work it says it is. Things on the Internet are 

not always what they say they are. That may surprise Members of 

the Committee. So, you actually have to download it to check and 

make sure it is the actual work. So, as a practical matter, there 

is no real difference here. 

From 2003 to 2008 the music industry sent demand letters to 

some 35,000 Americans for engaging in file sharing. And none of 

those cases or instances, as far as I know, were dismissed because 

they could not show a download. Rather the music industry gave 

up that battle because, while they went after 35,000, estimates 

suggest there might be 35 million Americans engaged in file sharing. So, it was never realistic to go after all of them. And, second, 

these are your clients, your customers. Suing them is probably not 

good for business. And third, it wasn’t working. So, I don’t think 

a making available right will change any of that in the file sharing 

context. As a business decision for music industry, it is still not 

going to make sense to go after these individual file sharers. 

The final point I would make is that it is going to reopen a lot 

of what seem to be settled issues. And I think that will unfortunately really chill business innovation and investment in new technologies. 

Thank you. 

[The prepared statement of Mr. Lunney follows:] 
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Mr. COBLE. Thank you, Professor Lunney. 

Professor Schultz? 

TESTIMONY OF MARK SCHULTZ, PROFESSOR OF LAW, 

SOUTHERN ILLINOIS UNIVERSITY SCHOOL OF LAW 

Mr. SCHULTZ. Chairman Goodlatte, Chairman Coble, Ranking 

Member Conyers and Members of the Subcommittee I appreciate 

the chance to speak with you. 

Today’s subject, the scope of copyright, is the right place to start 

a detailed review of the Copyright Act. However, the subject matter 

of copyright should be one of the least controversial parts of copyright because it goes to the very heart of its justification. 

Today I will be speaking on my own behalf, as a copyright lawyer 

and scout. 

I will speak first about the scope and subject matter of copyright 

in general, and then I will specifically address how these principles 

apply to protection for broadcasts. 

Copyright has traditionally had a broad scope, for good reason. 

Copyright protects the productive intellectual labor of authors provided that those labors result in an original expressive work. It exists to provide those who create, invest in and commercialize content the chance to enjoy the benefits of what they create through 

exclusive rights. When creators can benefit from their labors, the 

public also benefits. While many speak of striking a balance between the rights of copyright owners and the interests of the public, in truth those interests are rarely out of balance, at least with 

respect to core copyright principles such as the scope and subject 

matter of copyright. 

James Madison recognizes fact in the Federalist Papers when he 

said of intellectual property that, ‘‘The public good fully coincides 

with the claims of individuals.’’ The public will get the works that 

educate, entertain and inspire and inform them only if their creators can obtain just compensation. In the end, creators, businesses 

and the public are all best served when our intellectual property 

laws recognize the essential core value that those who invest labor 

and risk capital to create and distribute original content deserve 

protection of their property rights. 

Which brings me to the topic of legal protection for broadcasts. 

In the copyright and telecommunications laws, Congress created a 

legal framework that ensures that both creators of television programs and local broadcasters have the opportunity to be compensated for their labor, investment and innovation. 

This legal framework has two purposes. The first is to prevent 

third parties from undermining the labor, investment and incentives of creators and broadcasters by freeriding on their labor and 

investment. The second purpose is to encourage high quality, locally-focused broadcast television. The laws have been a success. 

We have a dynamic and vibrant broadcast industry in which the 

rights of individuals and the public good are both promoted. Here 

are just a few examples. There are nearly 1400 full-power commercial broadcast television stations in the United States. Seventy 8 

percent of Americans get their news from local TV daily, including 

important emergency news. Nearly 60 million people still depend 

exclusively on over-the-air signals, including 30 percent of house-
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holds with annual incomes under $30,000. Broadcasters air over 90 

of the top 100 most watched programs. Perhaps more than anything, the quality of modern programming shows that the public is 

well served by the current system. 

Unfortunately, many underestimate the substantial investment 

required to make it happen. The airwaves may be viewed as public 

resource, but privately created broadcast systems and the programs 

transmitted over them are not. Local broadcasters maintain expensive transmission facilities and invest in new technology, including 

billions in the recent shift to high definition broadcasting. They pay 

network affiliation fees and syndication fees. In an era of shrinking 

news budgets, the average local news’ operating budget is a welcome exception of over $4 million a year on average. 

In conclusion, there is no such thing as a free lunch. Creators 

and broadcasters need protection of their property rights that make 

this tremendous enterprise possible. In this context, it is clear that 

the public good, as Madison said about the intellectual property 

laws generally, fully coincides with the claims of individuals. 

Thank you. 

[The prepared statement of Mr. Schultz follows:] 
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Mr. COBLE. Thank you, Professor Schultz. 

Mr. Love? 

TESTIMONY OF JAMES PACKARD LOVE, DIRECTOR, 

KNOWLEDGE ECOLOGY INTERNATIONAL 

Mr. LOVE. Thank you, Mr. Chairman, for the opportunity to testify. 

I have been asked to talk about the rights of broadcasting organizations, including proposals for a new UN treaty that would establish a set of neighboring or related rights for entities that distribute information they did not create and do not own. 

The UN agency responsible for the development of intellectual 

property right policy is known as the World Intellectual Property 

Organization, or WIPO for short. Located in Geneva, WIPO has a 

Standing Committee on Copyright and Related Rights known as 

the SCCR. Since 1998, the WIPO SCCR has been trying to obtain 

consensus on a new global treaty dealing with broadcast organizations. Several member states have called for a diplomatic conference on this treaty in 2015. There are major differences among 

countries regarding every important aspect of this treaty, as evident from the current working document, SCCR/24/10, and the new 

proposals tabled during negotiations in December 2013. 

The WIPO Treaty would create a new layer of rights that coexist 

with copyright benefiting the organizations that broadcast information. The broadcasters and several member states of WIPO, such 

as Japan and the member states of the European Union, are pressing for an agreement that would expand considerably the set of related rights that exist in a 1961 treaty, the Rome Convention, that 

the United States has not signed. 

The 1961 Rome Convention created a system of related rights for 

performers and producers of sound recordings to supplement protections that authors have under the Berne Convention. In 1961 a 

decision was made to give broadcast organizations a layer of rights 

as a reward for their role as an intermediary between authors and 

audiences, essentially on a par with actors, singers, musicians, and 

other performers. Many consider the 1961 Rome Convention a mistake and the broadcaster right as the weakest and least defensible 

type of intellectual property right because it is provided by entities 

that play no role in the creation of the content itself. The United 

States did not sign the Rome Convention but does provide some 

broadcasting entities with limited retransmission rights through 

the communications regulation system, including through 47 U.S.C. 

325. 

In WIPO, several countries want to expand the Rome Convention 

beneficiaries to include non-free subscriber channels provided by 

cable and satellite, such as TNT, Hallmark Channel, ESPN, the 

Discovery Channel, or the subscriber-based radio channels provided 

by SiriusXM and also giving them rights in content they distribute 

but did not create. A growing number of countries want to expand 

the 1961 Rome system approach more broadly to the Internet and 

expand the economic rights to the more broadly defined group of 

broadcasting entities and provide for 50 years of exclusive rights on 

fixations of broadcast. 
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At WIPO, USPTO has proposed a compromise that would establish a new right for broadcast cable and satellite services to, ‘‘Authorize the simultaneous or near-simultaneous retransmission of 

their broadcast or pre-broadcast signal over any median.’’ This includes the Internet but in the U.S. proposal no post-fixation rights. 

So far, no country has voiced support for the U.S. proposal. And 

much more aggressive alternatives, from Japan and the European 

Union, are being considered that would provide new economic 

rights to broadcasting entities for distributing information they did 

not create or own. This is akin to giving Amazon or Barnes & 

Noble a layer of copyright in every book they write, or making 

Google a part-owner in every webpage they locate on the Internet. 

Free over-the-air broadcasters do face some unique challenges regarding the retransmission of their signals. And the USPTO proposal at WIPO may be appropriate to address some of these channels. Here we have an open mind. But, for pay services and 

webcasting, there is no need to create a new intellectual property 

right dealing with retransmissions. Copyright, theft of service laws 

and contracts are sufficient to address piracy. For all broadcasting 

organizations there is no economic justification for giving the distributor any rights in the underlying content. It does not make 

sense and it creates a number of grave risks for those who create 

works in a republic to create rights for people that distribute information that lay on top of the underlying interests that you have 

in copyright. 

Thank you very much. 

[The prepared statement of Mr. Love follows:] 
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Mr. COBLE. Thank you, Mr. Love. 

Ms. Griffin? 

TESTIMONY OF PATRICIA GRIFFIN, VICE PRESIDENT AND 

GENERAL COUNSEL, AMERICAN NATIONAL STANDARDS INSTITUTE 

Ms. GRIFFIN. Thank you, Mr. Chairman. Good morning ladies 

and gentlemen. 

As noted, my name is Patricia Griffin and I am Vice President 

and General Counsel of the American National Standards Institute, ANSI, a not-for-profit organization that coordinates the U.S. 

standardization system. 

Most people don’t know how much we depend upon standards to 

ensure our everyday life work. For example, standards help ensure 

that a light bulb fits in a socket, that you can use any ATM machine in the world and that products on store shelves are safe. 

In the United States, our standardization system is led by the 

private sector with hundreds of individual standards developing organizations, or SDOs, working in different technical areas and industry sectors. It is a consensus-based and market-driven process 

that is open to participation by all effected stakeholders. Importantly, the U.S. government is one such stakeholder and Federal, 

State and local governments are active partners in the development of standards and codes when the activity is relevant to their 

needs. The government uses these standards in a variety of ways, 

including to establish internal procedures and develop regulations 

for public safety and welfare. Our national standardization system 

and its public-private partnership are reflected in the National 

Technology Transfer and Advancement Act of 1995 and the associated OMB Circular A-119. 

The NTTAA directs agencies to consider the use of private sector 

developed standards in lieu of government-unique standards. When 

adopting a voluntary consensus standard into a regulation, Federal 

agencies are permitted to incorporate the standard by reference 

into the Federal register without publication of the standard itself. 

For a standard to be incorporated by reference or IBR-ed, the agency must determine that the standard is reasonably available to the 

class of persons effected by the anticipated regulation. In this case, 

reasonably available has always meant that the standard is accessible to any potential user. It does not require that the standard 

be available without a fee. 

Now recent concerns have been raised about whether the reasonably available requirement should be changed in light of expectations of free online access. For example, in early 2012, NARA, the 

National Archives and Records Administration, solicited comments 

on a petition arguing that IBR-ed materials in the CFR should be 

for free. But, just 3 months ago, after a comprehensive analysis, 

NARA concluded that reasonably available continues to mean just 

that and it does not mean for free. They relied, in large part, on 

another comprehensive analysis of the issue conducted by ACUS, 

the Administrative Conference of the United States, in December 

of 2011. 

The question NARA was trying to answer was simple, why 

shouldn’t IBR-ed standards be free? It seems like a valid point. 
80 

But, the blanket statement that all IBR-ed standards should be 

free misses some very important considerations. 

First, every standard is a work of authorship and, under U.S. 

and international law, is copyright protected, giving the owner certain rights of control and remuneration that cannot be taken away 

without just compensation. 

Second, if SDOs can’t charge for standards and code, this disrupts the standards development ecosystem. The funding has to 

come from somewhere. And increasing participation fees to offset 

lost sales revenues would disenfranchise consumers and small businesses. Those with the money would have all the influence. 

Lastly, if SDOs can’t afford to stay in business, safety standards 

would not be updated and standards for new technologies would go 

unwritten. Thus, this would affect U.S. competitiveness and innovation. The government would have to step up, take over what is 

now a market-driven system, and somehow find the money, time 

and expertise. 

So, what is the answer? The public and private sectors should 

continue to make standards and codes available on a reasonable 

basis. For some this may mean providing read-only but free access. 

And for others it may mean at reasonable prices. Recognizing that 

there is not one solution to the access issue, NARA found that it 

is for the Federal agencies to continue to work with SDOs to provide reasonable access to the IBR-ed standards. 

NARA’s recent assessment reaffirms the decades old guidance 

contained in OMB A-119 that when copyrighted works are IBR-ed, 

those works should not lose their copyright and that government 

agencies must observe and protect the rights of the copyright holder. And that is just what is being done. Many SDOs make standards available for free or at a discount to consumers, policymakers 

and small businesses. And some SDOs make certain standards and 

codes available online on a read-only basis. Do its part, ANSI has 

launched an online IBR portal for the benefit of the user community, including consumers. 

In closing, the standardization community believes, as OMB, 

NARA and ACUS believe, that the development of complex, highly 

specialized technical standards requires a massive investment of 

time, labor, expertise, and money. Standards development in this 

country is one of the earliest and most successful examples of the 

public-private partnership, which has benefited our Nation tremendously on many fronts: competitiveness, public safety, successfully 

commercializing American innovations globally and much more. 

Thank you so very much for the opportunity to testify for you 

today. And I would be happy to answer any questions. 

[The prepared statement of Ms. Griffin follows:] 

Prepared Statement of Patricia Griffin, Vice President and 

General Counsel, American National Standards Institute 

Thank you, Chairman Goodlatte and Chairman Coble. Good morning, ladies and 

gentlemen. 

My name is Patricia Griffin and I am vice president and general counsel of the 

American National Standards Institute. ANSI is the coordinator of the U.S. standardization system, and we thank you for the opportunity to testify. 
81 

WHY STANDARDS MATTER

Most people don’t think about how much we depend upon standards to make our 

everyday life work. For example, standards help ensure that a light bulb fits in a 

socket, that you can use any ATM in the world, and that products on store shelves 

are safe. 

Standards are the backbone of trade, the building blocks for innovation, and the 

basis for quality, safety, and interoperability. Voluntary consensus standards and 

compliance activities are essential to the U.S. economy. Market-driven and highly 

diversified, standards support technological innovation, build bridges to new markets, and create gateways for businesses in this increasingly complex world of global 

access. Standardization also helps to assure health, safety, and quality of life for individuals in the United States and around the world. 

THE U.S. STANDARDIZATION SYSTEM

In the U.S., our standardization system is led by the private sector, with hundreds of individual standards developing organizations, or SDOs, working in different technical areas and industry sectors. It is a consensus-based and market-driven process that is open to participation by all affected stakeholders. 

The U.S. government is one such stakeholder. And federal, state, and local governments are active partners in the development of standards and codes when the 

activity is relevant to their needs. 

The open, market-driven, and private sector-led nature of our system is critical 

to achieving the widely shared policy goals of expanded U.S. leadership and innovation on the global stage. 

Currently, the U.S. has the most robust standardization system in the world, 

which gives the nation a competitive advantage. Unlike the standards development 

systems of many other countries, the U.S. system considers the views of all interested parties in a balanced way. And the openness of the system to new participants 

means that their needs can be met quickly and through innovative, collaborative solutions. 

THE PUBLIC-PRIVATE PARTNERSHIP

One of the great strengths of the U.S. approach to standards and conformance is 

the ‘‘public-private partnership’’—a term that stakeholders in government and industry use to describe the long-standing, effective, and cooperative working relationship between the public and private sectors. 

The public-private partnership in the United States is strong because it is a true 

partnership. Neither government nor industry claims or exerts overall authority 

over the other, and by working together in respectful cooperation, we are able to 

most effectively respond to the strategic needs of the nation. This dynamic makes 

our standardization system unique in the world. 

Our national standardization system and its public-private partnership are reflected in the National Technology Transfer and Advancement Act of 1995 (NTTAA), 

and the associated OMB Circular A–119. The NTTAA directs agencies to consider 

the use of private-sector-developed standards in lieu of government-unique standards whenever possible. 

The government uses standards in a variety of ways, including to establish internal procedures, aid in developing regulations for public safety and welfare, and improve the efficiency of the procurement process. When adopting a voluntary consensus standard into a regulation, federal agencies are permitted to incorporate the 

standard by reference—that is, without publication of the standard itself—in the 

Federal Register. 

INCORPORATION BY REFERENCE AND THE ‘‘REASONABLY AVAILABLE’’ DIALOGUE

For a standard to be incorporated by reference or ‘‘IBR-ed,’’ the agency must determine that the standard is ‘‘reasonably available’’ to the class of persons affected 

by the anticipated regulation. In this case, ‘‘reasonably available’’ simply means that 

the standard is accessible to any potential user. It does not require that the standard be available without a fee. 

In the past few years, concerns have been raised about whether the ‘‘reasonably 

available’’ requirement should be changed in light of expectations of free online access. For example, in early 2012, Professor Peter Strauss of Columbia University pe-
82 

1March 2012, Federal Register: https://www.federalregister.gov/articles/2012/03/22/2012-6935/ 

incorporation-by-reference. 2October 2013, Federal Register: https://www.federalregister.gov/articles/2013/10/02/2013- 

24217/incorporation-by-reference. 3http://www.acus.gov/sites/default/files/Recommendation-2011-5-Incorporation-by-Reference_0. 

pdf. 4http://www.copyright.gov/title17/. 

5 In February 2011, ANSI’s Intellectual Property Rights Policy Committee developed a white 

paper on the copyright implications of voluntary consensus standards in regulation: ‘‘Why Voluntary Consensus Standards Incorporated by Reference into Federal Government Regulations 

Are Copyright Protected,’’ http://publicaa.ansi.org/sites/apdl/Documents/News%20and%20 

Publications/Critical%20Issues/Copyright%20on%20Standards%20in%20Regulations/ 

Copyright%20on%20Standards%20in%20Regulation.pdf 6 ANSI Essential Requirements, www.ansi.org/essentialrequirements; World Trade Organization (WTO) Technical Barriers to Trade (TBT) Agreement Principles for the Development of 

International Standards, http://www.wto.org/english/tratop_e/tbt_e/tbt_e.htm. 

titioned NARA, the National Archives and Records Administration, arguing that 

IBR-ed materials in the CFR should be free.1

After soliciting and then publishing comments on this petition in October 2013 2, 

NARA’s Office of the Federal Register, OFR, concluded that ‘‘reasonably available’’ 

continues to mean just that, and it does not mean ‘‘for free.’’ OFR relied in large 

part on a comprehensive analysis of the issue conducted by ACUS, the Administrative Conference of the United States, in December 2011.3

The question OFR was trying to answer was simple: why shouldn’t IBR-ed standards be free? It seems like a valid point. But the blanket statement that all IBRed standards should be free misses some very important considerations: 

• Every standard is a work of authorship and, under U.S. and international 

law, is copyright protected 4, giving the owner certain rights of control and remuneration that cannot be taken away without just compensation.5

• Although many people working on standards development are volunteers, 

SDOs incur significant expenses in the coordination of these voluntary efforts. 

From the time a new project is commenced until the final balloting and adoption of a standard, the drafting process draws heavily on an SDO’s administrative, technical, and support services. Tens of thousands of staff employed 

by SDOs across the nation provide direct support for the technical development activities of the volunteers. 

• SDOs are—for the most part—non-profit organizations. In order to recoup 

their costs, some SDOs rely heavily on revenue from copyright-protected sales 

and licensing of the standards. An SDO’s right to receive these revenues is 

based primarily in their copyright rights in the standard. Without such copyright protections, many SDOs would not have the financial ability to continue 

their work. Some organizations receive revenue through membership support 

including membership fees, project fees, registration fees, and other membergenerated income. Still others rely on a combination of these and other revenue-generating activities. By funding operations at least in part through 

sales and licensing of standards, SDOs can minimize barriers to qualified participation and maximize independence from entities seeking to influence the 

outcome for commercial or political reasons. Standards sales also allow nonprofit SDOs to recoup basic administrative costs while passing on to implementers all of the benefits of the voluntary and inclusive process of standards 

development, including openness, balance, opportunities to participate, and 

protection from undue influence.6

If SDOs cannot charge for standards and codes, this disrupts the standards 

development ecosystem. The funding has to come from somewhere. Increasing 

participation fees to offset lost sales revenue would disenfranchise consumers, 

small businesses, and local governments. Those with the money would have 

all the influence. 

• Standards must be maintained and the publication kept up to date. This requires ongoing development, revision maintenance, and administrative costs. 

The government and taxpayers benefit from the current system by not paying 

for these recurring development and administrative costs. 

• If SDOs cannot afford to stay in business, safety standards would not be updated, with the potential for dangerous consequences. And standards for new 

technologies would go unwritten, affecting U.S. competitiveness and innovation. The government would have to step up, take over what is now a market- 
83 

7 Agencies have explored what that scenario might mean. Consider the following findings of 

the Federal Energy Regulatory Commission (FERC), published in the Federal Register in December 20091: 

When the Commission weighed the advantages achieved by the North American Energy 

Standards Board (NAESB) standards development process against the cost to the Commission and the industry of developing these standards through notice and comment 

rulemaking, we found, and continue to find, that the benefits of having a well-established, consensus process outweigh whatever costs non-members may incur in having 

to obtain copies of the standards. 8For example, one must take into account the myriad uses of IBR by different agencies. Many 

standards accepted under IBR have within them normative references to a second, or even third, 

level of standards. Making each and every standard referenced directly or indirectly through an 

IBR available free of charge to the public would be challenging and extremely cost-ineffective. 

Furthermore, many standards under current IBR rules are International Standards such as 

those promulgated by ISO and IEC. Any changes to reasonable availability requirements would 

not have any jurisdictional effect on current sales and distribution policies of ISO and IEC. 9http://ibr.ansi.org. 

driven system, and somehow find the money, time, and expertise—for every 

single technology and industry area.7

• Finally, decisions made about our national standardization system and our 

priorities for action reach far beyond our borders, especially when it comes 

to the continued success of our products, services, and workforce on the global 

stage. Any decisions or actions that would fundamentally undermine this system will cause the U.S. to lose this competitive advantage to other countries 

that would be quick to seize the opportunity. Additionally, significant changes 

to the system would compromise the role that standards play in protecting 

health, safety, and the environment. 

WHAT IS THE ANSWER?

Reasonable availability is the best solution, as it allows for the flexibility required 

by different industries, agencies, and SDOs. The public and private sectors should 

continue to make standards and codes available on a reasonable basis. For some 

this may mean providing read-only but free access, and for others it may mean at 

reasonable prices. 

Recognizing that there is not ‘‘one solution to the access issue,’’ 8 the OFR found 

that it is for the federal agencies to work with SDOs to provide reasonable access 

to IBR-ed standards. 

The OFR’s recent assessment reaffirms the decade-old guidance contained in OMB 

Circular A–119—to ‘‘observe and protect’’ the right of copyright holders when incorporating by reference into law voluntary consensus standards. The very purpose of 

this policy is to permit the government to benefit from the efficiencies of the voluntary consensus standards development process. When the government references 

copyrighted works, those works should not lose their copyright, but the responsible 

government agency should collaborate with the SDOs to ensure that the public does 

have reasonable access to the referenced documents. 

And that’s just what is being done. Many SDOs make standards available for free 

or at a discount to consumers, policymakers, and small businesses. And some SDOs 

make certain standards and codes available online on a read-only basis. 

For its part, ANSI has launched an online IBR Portal for the benefit of the user 

community, including consumers. The portal provides a voluntary, centralized infrastructure that can help the hundreds of SDOs in this country make their IBR-ed 

standards available in read-only format, should they wish to participate.9

IN CONCLUSION

The standardization community believes—as OMB, NARA, OFR, and ACUS believe—that the development of complex, highly specialized, technical standards requires a massive investment of time, labor, expertise, and money. Federal agencies 

continue to incorporate privately developed standards, eliminating costs of developing government-unique standards. 

Standards development in this country is one of the earliest and most successful 

examples of the public-private partnership, which has benefitted our nation tremendously on many fronts—competiveness, public safety, successfully commercializing 

American innovations globally, and much more. 

We thank you for this opportunity to provide testimony. 

Due to the limited advance notice of this hearing, we would respectfully request 

the Chairman to hold the hearing record open for at least 14 days, to allow affected 
84 

organizations or individuals adequate time to file additional testimony on this important subject. 

ABOUT ANSI

ANSI is a private, non-profit organization that administers and coordinates the 

U.S. voluntary standards and conformity assessment system. In this role, the Institute oversees the development and use of voluntary consensus standards by accrediting the procedures used by standards developing organizations, and approving 

their finished documents as American National Standards. 

Internationally, the Institute is the official U.S. representative to the International Organization for Standardization (ISO) and, via the U.S. National Committee, the International Electrotechnical Commission (IEC). 

ANSI’s membership is comprised of businesses, government agencies, professional 

societies and trade associations, standards developing organizations (SDOs), and 

consumer and labor organizations. The Institute represents the diverse interests of 

more than 125,000 companies and organizations and 3.5 million professionals worldwide. ANSI works closely with stakeholders from both industry and government to 

identify consensus-based solutions to national and global priorities—an inclusive, 

collaborative partnership between the public and private sectors. 

Mr. COBLE. Thank you, Ms. Griffin. 

Mr. Malamud? 

TESTIMONY OF CARL MALAMUD, PRESIDENT, 

PUBLIC.RESOURCE.ORG 

Mr. MALAMUD. Thank you, Mr. Chairman, Mr. Ranking Member. 

And thank you for the opportunity to appear before you today. 

I am the Founder of Public.Resource.Org, a nonprofit that puts 

government databases, that everybody agrees are public, on the 

Internet and then works closely with the government to help them 

improve their own operations. I am responsible for placing the SEC 

EDGAR and U.S. Patent databases on the Internet for the first 

time. Public Resource has put all the historical opinions of the U.S. 

Court of Appeals on the Internet for the first time. We worked with 

Speaker Boehner and Chairman Issa to put a full archive of video 

from the House Oversight Committee and 14,000 hours of additional hearings online. 

I would like to highlight three key points. First, there is a fundamental principle of our democracy, the rule of law, that states that, 

‘‘If we are to be an empire of laws and not of men, we must publish 

the edicts of government for all to know, because ignorance of the 

law is no excuse and an informed citizenry must educate itself on 

its rights and obligations.’’ That the law has no copyright because 

it is owned by the people, is a principle that has been repeatedly 

reaffirmed by the courts. 

Despite that principle, my nonprofit has received stern takedown 

notices for publishing the official codes of Georgia, Idaho, and Mississippi. At the Federal level, the Code of Federal Regulations deliberately and explicitly incorporates by reference public safety 

codes that become binding law. As Joe Bhatia, the President of the 

American National Standards Institute, clearly states, ‘‘A standard 

that has been incorporated by reference, has the force of law and 

it should be available.’’ My nonprofit has assembled a collection of 

1,000 of those public safety laws and we have made them available 

to the public for the first time on the Internet. For that service, 

three standards bodies are suing us for, and I quote, ‘‘Massive 
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copyright infringement.’’ They are suing us for publishing the law 

without a license. 

My second point is about money. Some standards bodies insist 

that before one can read or speak the law, one must first obtain 

their permission. They say everybody needs a license, because they 

need the money. But, the goal of their process is precisely that 

their safety codes become the law. They lobby aggressively for that 

outcome and they boast loudly when their codes are adopted. When 

a safety code becomes law, the publisher gets a gold seal of approval of the American people. They exploit that position by selling 

all sorts of ancillary services, such as membership, training and 

certification. The business has become incredibly lucrative. And 

these nonprofit standards bodies pay their CEOs million-dollar salaries. 

My third point is that the right to read the law and speak the 

law is necessary for innovation, innovation that leads to better 

tools for those that use the law every day including government 

workers, electricians and plumbers, students and apprentices, volunteer firefighters, journalists, and citizens. 

Mr. Chairman, I have here for the Committee’s inspection 20 

public safety standards that are part of Federal law, including the 

safety requirements for wooden and metal ladders, the safety requirements for protective footwear, the national fuel and gas code. 

If you were to read these laws into your hearing record, would the 

Congress face strident objections for speaking the law without a license, like my nonprofit faces? That is why 115 distinguished law 

professors have joined me in calling on this Committee to consider 

an edicts of government amendment to the Copyright Act to clarify, 

once and for all, that the law belongs to the people. 

Thank you very much. 

[The prepared statement of Mr. Malamud follows:] 
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Mr. COBLE. Thank you, Mr. Malamud. 

I want to commend the witnesses, you have not—you have complied with the 5-minute rule and I thank you for that. And we will 

try to respond accordingly. 

Mr. Schultz, what changes to U.S. law would you recommend to 

address broadcaster concerns about signal theft, A? And, B, would 

these changes be to our copyright law or our communications law? 

Mr. SCHULTZ. Thank you. That is an excellent question. 

The law, as it currently stands, serves well. As I testified, it 

serves both the public interest and serves the broadcasters well. 

There are current developments that could change that, notably 

the AEREO case, regulatory proceedings and a number of other 

court cases. But, as things stand, the law works remarkably well. 

And indeed even conceivably joining a new broadcast treaty would 

not require us to change the law. And thus, the current statutory 

scheme works well. And I am not aware, although I don’t speak on 

behalf of the broadcasters, I am not aware, in fact, of the broadcasters seeking new rights. 

Thank you. 

Mr. COBLE. I thank you. 

Now, let me ask you another question, Mr. Schultz. In your work 

on copyright issues, what other issues of concern do you believe are 

of interest to copyright owners generally? 

Mr. SCHULTZ. Thank you. 

I think, indeed, the subject of this hearing is an important one, 

including the making available right. It is important that creators 

are able to secure the return on their investment and their labor. 

And that is currently the challenge. The quite obvious challenge in 

front of all of us. And so, I think in the long run that will need 

to be addressed. 

Mr. COBLE. Thank you, sir. 

Professor Lunney, do you believe that an explicit making available right would significantly broaden the scope of copyright protection beyond what it is today? 

Mr. LUNNEY. A making available right, if we used the language 

of the WIPO Treaty, would not change the law in the file-sharing 

context, by any measurable degree in the litigated cases. It would, 

however, open up potential issues in the public performance and 

public display areas, linking retransmission and issues of that sort 

for cloud computing and social networking sites. I think it would 

reopen some of those issues. 

Mr. COBLE. Now, does your lack of concern for the impact of file 

sharing reflect the view that Congress should reduce copyright protection in other areas? 

Mr. LUNNEY. I think one of the things that has sort of slipped 

in, almost by accident, to copyright law is that we have shifted over 

the last 20 years or we have expanded copyright over the last years 

to get the individual consumer involved as copyright infringers. I 

think that is a bad development. For its first 200 years, copyright 

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, either as an infringers of one sort 

or another, you get the privacy concerns and other concerns. And 

I think that has created real problems for copyright law. 
112 

Mr. COBLE. Mr. Love, do you believe that other nations are close 

to a conclusion, at WIPO, in drafting broadcast treaty? 

Mr. LOVE. Could you repeat that? 

Mr. COBLE. Yes. Do you believe that other nations are close to 

a conclusion, at WIPO, in drafting a broadcast treaty? 

Mr. LOVE. In 2007, we thought that the treaty was essentially 

stopped and there wasn’t going to be any further progress on it. 

After the Marrakesh Treaty was adopted by WIPO, in June of 

2013, it opened up a lot of space in the negotiations at WIPO. And 

it was, I think, quite surprising that in September of last year, 

country after country took the microphone, at the general assembly 

of WIPO, to call for a diplomatic conference in 2015. I think the 

Secretariat of WIPO is looking for a hat trick. They would like to 

have three treaties in hand in the copyright field, having concluded 

the Beijing Treaty in 2012 and the Marrakesh Treaty in 2013. And 

I think they are focused on that. 

We would prefer that there is no broadcast treaty. We are opposed to the proposal. But I wouldn’t really—I think people are 

wrong if they don’t think that this thing is moving forward. At this 

point, there is a large number of countries that are calling for a 

diplomatic conference. Once you go into diplomatic conference, it is 

very difficult to predict what the outcome will be. 

Mr. COBLE. Thank you, sir. 

Let me try to beat that red light, Ms. Griffin. 

How does one respond to the statements of some that citizens deserve full access to the laws and rules that they are—by which they 

are required to live. 

Ms. GRIFFIN. Yes, thank you for the question. 

I think that the answer to that depends upon an analysis of 

many dimensions. The first dimension is the recognition that 

standards and codes are original works of authorship and are entitled to copyright protection. And, even at times when they are incorporated by reference into legislation, both the Second and the 

Ninth Circuit have held that those standards and codes do not necessarily lose their copyright protection by virtue of that. Another 

dimension of the issue is OMB A-119 and the NTTAA. They encourage and demand that Federal agencies incorporate standards 

into Federal regulations, when they are able to do so. A final dimension of the issue is the one that Mr. Malamud raises and that 

is the one that says that the citizenship should have the right to 

see what the law is. 

The way that those three dimensions have been bridged, over the 

course of the years, is through a tool that is contained in the Freedom of Information Act. And that tool is called incorporation by reference. And that provides that Federal agencies can incorporate 

into Federal regulations extrinsic standards, as long as those 

standards are reasonably available to the class of persons that are 

affected by it. And that tool has permitted the Federal agencies to 

comply with their obligations, under OMB A-119, while at the same 

time respect the copyrights of the standards that are so incorporated. 

Recently, that has been challenged by Mr. Malamud and others. 

And they have gone to NARA and they have questioned whether 

the reasonably available standard ought not be changed to make 
113 

the standards for free. And NARA has concluded, as has ACUS, 

that the current process continues to be the best one, the one that 

is best designed to ensure that high quality standards are developed and incorporated by reference into Federal regulation. 

Mr. COBLE. Thank you, Ms. Griffin. 

Thank you all. 

I see the red light has illuminated. So, I now recognize the gentleman from Michigan for his questioning. 

Mr. CONYERS. Thank you very much. 

Professor Nimmer, we appreciate you being with us today. And 

I would like to discuss with you what you see as the key issue facing copyright industries and the public today, when it comes to the 

current copyright system. 

Mr. NIMMER. Thank you, Representative Conyers. 

It is obviously a very broad question and I will have to give a 

broad answer. I think the answer is that we are governed by a 

statute written essentially in 1965, passed in 1976, and now here 

in existence 50 years later with technologies that were not remotely contemplated then. And we see each of the rights of the 

copyright owner coming under strain. 

Today we have been talking about the distribution right and its 

making available component. You have already mentioned that the 

United States Supreme Court granted certiorari in the AEREO 

case. That is a case about the performance right. And we see, because of the Internet, a convergence of all of those rights. 

So, classically, back in 1965, there was a great difference between reproducing a book, publishing it, then distributing it, and 

then a performance, which would be a play. Today, when the bits 

flow over the Internet, sometimes it is conceptualized as an act of 

reproduction, sometimes it is conceptualized as an act of distribution, and it has been argued in cases that it is equally a performance. 

So, a very forward-thinking approach to copyright law would be 

to look at exploitation, not within the prism of those five categories 

that are half a century old, but instead to try to formulate the ideal 

rules of the road going forward, which might be one unitary right 

or it might be broad under the rubric of two rights or perhaps three 

rights. I am not prepared, as I sit here today, to offer that answer. 

But, I think it is exactly the right question to ask. And I would be 

pleased to work with the Committee on a going-forward basis. 

Mr. CONYERS. We appreciate that. Do you think the courts have 

struggled to apply the making available right in the United States 

even though Congress and government experts agree that the existing law should cover the right? 

Mr. NIMMER. Yes, I do think the courts have struggled with that 

issue. I think one of the main reasons is that some of the individuals targeted have uploaded thousands of copyrighted works. And 

unfortunately, the result under our law is that somebody who has 

uploaded thousands of works might be liable for hundreds of millions, possibly even a billion dollars’ worth of damage. That is why 

I think, at the same time that Congress confronts the making 

available component of the distribution right, Congress should also 

rationalize the award of statutory damages. 
114 

**Addendum: 

In addition, there is a deeper answer to Rep. Conyers’ question. The treatise’s full treatment 

of this issue was the product of important research that a colleague shared with me. In response 

to the courts’ conflicting making-available rulings, Prof. Peter Menell of UC Berkeley investigated the roots of copyright law’s distribution right. As detailed in my Written Statement, I 

was not sufficiently attentive to those roots until I was given the chance to review his pathbreaking scholarship. His findings were so important that I invited him to co-author the next 

treatise revision, in order to include the comprehensive analysis of the proper interpretation of 

copyright law’s distribution right, as set forth in that landmark article. It is for this reason that 

the current treatise version differs so markedly from the old version. 

Right now, the scheme was set in 1999. The law happened to be 

passed right before the invention of a service called Napster. So, 

our law is trying to keep pace with developments on the ground. 

And that is why I think a unified approach would be best, where 

we look at the making available right and statutory damages and 

a small claims court, all in one unitary point of view. 

Mr. CONYERS. And finally, I wanted to get an explanation of why 

you changed your mind on the making available right which was 

not encompassed by the distribution right in previous editions. 

Mr. NIMMER. Good. Thank you. 

It is a challenge writing a treatise because any one sentence can 

be taken out of context and applied in a way that is was not intended. In particular, in 1995, there was a Second Circuit case in 

which somebody who owned Laurel and Hardy Videos said his 

rights had been violated by CBS because they had broadcast his 

videos. And he was correct. But, he said his distribution right had 

been violated by the performance of those videos and the district 

court tended to agree with him. So, the Second Circuit reversed. 

And I wrote up that case to say, it is 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 of their works, namely a physical copy passing 

hands. I wrote that in 1995, 3 years before Napster was formulated, so I did not have peer-to-peer services in mind. And, unfortunately, that sentence was taken out of context later.** 

Mr. CONYERS. Thank you so much. 

I will yield back the balance of my time, Mr. Chairman. Thank 

you. 

Mr. COBLE. Thank you, Mr. Conyers. 

The Chair recognizes the distinguished gentleman from Virginia 

for his statement. Mr. Goodlatte? 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Mr. Nimmer, I would like to follow up on the Ranking Member’s 

question. Professor Lunney has raised concerns that making—that 

adding a making available right would change longstanding jurisprudence. I take it you don’t agree with that perception. Would you 

elaborate on your view? And does that view imply that Congress 

should never update the law for any reason? 

Mr. NIMMER. Thank you, Representative Goodlatte. 

Yes, Mr. Chairman, I do disagree with that point of view. It all 

depends what type of law Congress were to pass. If Congress were 

to pass a standalone making available right, that would be a large 

change to copyright law. The way the cases have arisen to date, 

concerning making available, it has been as an aspect of the distribution right. So, cases construing the copyright owners’ distribu-
115 

tion right have come down on both sides of the making available 

issue. 

My testimony today, if we keep our narrow focus, is that Congress should clarify that the distribution right is violated when 

works are made available. In other words, when an individual 

uploads a copyrighted work to a share folder, it has thereby been 

made available to the world and the act of copyright infringement 

is complete. It is not necessary to show a subsequent individual 

downloaded that work. 

And I believe that, therefore, a properly tailored amendment 

does not call into question existing cases that were rendered under 

the performance right or under the display right. 

Mr. GOODLATTE. Thank you. 

Let me give everyone on the panel—it is a great panel, by the 

way, I thank all of you for your testimony—a jump ball here. Since 

this hearing has covered three separate topics, are there any of you 

who would like to comment on any of the other two topics that you 

didn’t get to testify in your opening statement? 

Mr. Love? 

Mr. LOVE. On the issue of copyright and the law, I think it— 

there is this distinction between whether the State laws and regulations in the United States can be copyrighted—and with the Federal. I think that U.S. laws, works of Federal employees, Federal 

laws, Federal regulations are not subject to copyright. There are— 

I think it would be good to extend that rule to laws at the State 

level, in everything from court opinions to regulations to statutes. 

And I also mentioned that the Berne Convention itself has a special provision that really gives country—governments extra flexibility in the area of testimonies, legislation, of anything that basically spacks of law-type proceedings. 

And so, I think that it is good that you focused on this issue. And 

I think that—I certainly agree with what Carl was saying, which 

was that, you know, if you are expected to—you know, my father 

was a judge—if you are expected to abide by the law, I think you 

have a right to know what the law is. And I think that is—it is 

good that this Committee is looking at that issue. 

Mr. GOODLATTE. Thank you. 

Professor Schultz? 

Mr. SCHULTZ. Thanks, I will briefly speak to standards. 

I think many of the principles I have discussed apply equally to 

standards that we need to ensure that the authors’ standards can 

be compensated for their work. And I think Ms. Griffin did an excellent job testifying. But, we should all keep in mind that standards are incredibly diverse. And some standards have thousands of 

parts and thousands of subparts in those parts, in the case of 

things like technical standards. So, standards should not all be 

treated the same. And there should be due regard to the complexity 

and incredible expense and incredible public value that is created 

in standards. 

Thank you. 

Mr. GOODLATTE. Thank you. 

This is another one for all of you. As the Committee continues 

its work, reviewing copyright law, are there topics in copyright law 

that you would recommend that the Committee review? 
116 

I will start with Professor Lunney. 

Mr. LUNNEY. I agree with David on this, that statutory damages 

is going to need to be revisited, particularly in the individual consumer context. It is a real problem to treat them as we are now. 

And hundreds of thousands of dollars in damages against a mom 

and a student, just not appropriate. 

Mr. GOODLATTE. Point well taken. 

Professor Schultz? 

Mr. SCHULTZ. The Digital Millennium Copyright Act’s notice and 

takedown provisions are broken. They are based on an updated 

paradigm that seems almost naive now, that you could actually 

contain a file and stop it from spreading. It is no longer working 

for creators. 

Mr. GOODLATTE. I noticed a piece, just recently, that said that 

Google had received its hundred-millionth takedown notice. 

Mr. SCHULTZ. Yes. And that goes both ways. Costs are symmetrical, right? That means hundreds of millions of notices have to be 

sent. 

Small creators, creative upstarts, individuals, thousands—tens of 

thousands of people who make a good middle-class living can’t afford to spend all of their time trying to chase people around the 

Internet. This system is not working for them. It needs to be revisited. 

Thank you. 

Mr. GOODLATTE. Mr. Love? 

Mr. LOVE. I think that revisiting the issue of formalities is quite 

important. I think that the decision to introduce formalities in the 

United States has created a wasteland of cultural works, which are 

essentially inaccessible to people. I don’t think anybody can go back 

very far before you realize it is impossible to identify who the owners of a lot of works are and in some cases who the authors are; 

photographs; old, old pamphlets; literature. There is—a variety of 

proposals that have been made to deal with orphaned works. But 

one of which is to consider the flexibility you have on formalities. 

Certainly for the post-TRIPS requirements of 20 years on photographs and 50 years on copyright, you can introduce formalities for 

that extended period. And there is a proposal in the TPP negotiation to do that very thing, actually. But the U.S. is actually opposing it. And I think the U.S. is on the wrong side of that issue. 

Another thing is that on sound recordings, which are not protected by the Berne Convention, there is no obligation to have formalities. And so, for—not all things that are considered copyrighted in the United States are actually required under, you 

know, international obligations, the Berne Convention and formalities. So, I think a deep and technical look on where you can introduce formalities. 

Some people, like in the recording industry, have expressed some 

openness to the idea that it was maybe—would be a good idea to 

sort of give more protection to people—I am sorry, I am going to 

have to wind this up. 

And the final thing is that the Treaty for the Blind provides an 

opportunity for the United States to share its collections of works 

under copyright exceptions with blind people in other countries. 

And I think that needs to be fixed. 
117 

Mr. GOODLATTE. Mr. Chairman, my time has expired. But, I 

know Mr. Nimmer wanted to jump in on that as well, if I may. 

Mr. COBLE. Without objection. 

Mr. NIMMER. Thank you, Mr. Chairman. 

The written statement that I submitted put two other matters 

into the hopper. One is the United States Supreme Court, last 

year, ruled that gray-market goods can be freely purchased abroad 

and imported into this country. Justice Breyer’s opinion said, ‘‘We 

think that this is what Congress intended. If Congress did not intend it, then Congress can come back and tell us.’’ So that is something that is very alive now. 

And there is a parallel issue in the domestic front, which is cloud 

computing. It introduces wholly new rules of the road. It essentially eliminates the safeguard of the first sale doctrine. And Congress needs to look at what rules it wishes to have for the road of 

this uncharted territory of the cloud. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Mr. COBLE. The gentleman’s time is expired. 

Ms. Chu from California? 

Ms. CHU. Thank you, Mr. Chair. 

As the co-chair of the Creative Rights Caucus along with Chairman Coble, I believe that a making available right is engrained in 

our current statute as an essential part of our copyright framework. Congress has repeatedly concluded that no change to the 

U.S. copyright law was necessary because existing law already includes a making available right. Our Federal appellate courts have 

also arrived at the same conclusion. And this is also the case in 

very international agreements, such as WIPO and the WIPO Copyright Treaty. I believe that the making available right is an inherent exclusive right that gives the creators the freedom to express 

themselves and more importantly to decide how and when they 

choose to distribute and publicly perform their own works. 

So, Professors Nimmer and Lunney, what, if any, impact would 

carving out a separate making available right to the Copyright Act, 

what effect would that have on online theft? Would explicitly creating a making available right help lessen the burden for individual creators or make the process easier for them to prove their 

works have been infringed upon? 

Mr. NIMMER. Thank you, Representative Chu. 

I believe it would streamline the cases. Instead of having a large 

Federal case about every activity of peer-to-peer sharing, there 

could be an expeditious proceeding, particularly if Congress also 

adopted my suggestion of having small claims court proceedings. 

And I think it would be a salutary change to streamline those procedures and get quick and fair and expeditious justice in them. 

Mr. LUNNEY. Well, as you might guess, Representative Chu, I 

disagree with Professor Nimmer. It used to be, under Napster, that 

you would go on and find one user who had the file and you would 

download it from that particular user. That sort of file sharing protocol has long—largely faded away. Most file sharing today is with 

BitTorrent. The file is divided up into separate segments and it is 

sent out in a swarm of people who are all simultaneously uploading 

and downloading the work. So, the issue of whether you have to 

prove a download, as part of your prima facie case, is essentially 
118 

irrelevant under the BitTorrent 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 found, what happens is the investigator identifies the 

person, the IP address. They go to court. They get the subpoena to 

the ISP to get the consumer’s information. They send a threat letter and that is as far as it goes. It is either settled or the consumer 

can present some sort of evidence that they were not the person 

who did the downloading. And that is it. Only a relative handful, 

maybe 20, 30, 40, a few hundred, actually ever go any further than 

that. And, if it actually goes to trial, they get a copy of your hard 

drive. And, at that point, it is relatively trivial to prove the file 

sharing activity you have engaged in. 

So, I don’t see how this would really facilitate or help sort of 

small creators. 

Ms. CHU. Professor Schultz, you look like you have an opinion on 

this. 

Mr. SCHULTZ. Oh, no. No, thank you. [Laughter.] 

Ms. CHU. Then, okay. 

Professor Schultz, then let me turn to a different issue, which is 

I would like to ask specifically about the Aereo case. Of course we 

know that the Supreme Court agreed to hear the Aereo case to determine whether online streaming of live broadcasts constitutes an 

infringement of a copyright holder’s exclusive right of public performance. Given the economic importance of intellectual property 

in our country and the constant evolution of modern technology, in 

which more people are viewing content over the Internet, is this an 

appropriate question for the courts to determine or should Congress legislate and settle this area of law? And how would a decision, favorable to Aereo, change the landscape of how broadcast 

content would be delivered to consumers in the future? 

Mr. SCHULTZ. Thank you. That is an excellent question. 

I think I will begin with the second part of it: how would it 

change the landscape of broadcast. So, you know, Aereo’s 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 aggregating them 

and sending them to their customer and Aereo, 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 cablevision, essentially saying that a virtual ondemand service is permissible. And when all this is said and done, 

you have to ask where the revenue is going to come from; how 

these companies will get their—get compensated for their work. 

So, I think the—an Aereo decision that comes out in favor of 

Aereo would undermine the very premise on 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. So, I think that this in an appropriate topic for the courts. But, if the courts act—if the courts 

interpret the Copyright Act in a way that undermines these fundamental policies, this Congress will have to act. 

Thank you. 

Ms. CHU. Thank you. 
119 

I yield back. 

Mr. MARINO [presiding]. Thank you, Congresswoman. 

The Chair now recognizes the gentleman from North Carolina, 

Congressman Holding. 

Mr. HOLDING. Thank you, Mr. Chairman. 

Professor Nimmer, 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? 

Mr. NIMMER. Okay. 

The theory of Anglo-American copyright law is basically instrumental that it is there for a purpose, to promote the progress of 

science. On the Continent, in Europe, the underlying theory is 

much more based on natural rights that there is an intrinsic connection between the author and the author’s creation. And so, 

therefore, there is a natural right to compensation just by virtue 

of having created, regardless of the social policy that will come out 

of that activity of copying. That is the broadest answer to your 

question. 

The philosophical underpinnings, that I have just outlined, obviously play through with practical implications. We see in Continental jurisprudence a very strict recognition of moral rights, 

which is something that is alien to the U.S. way of copyright and 

was only put in grudgingly and only with respect to works of visual 

art, in 1990 and plays out in other ways as well. 

That is a very brief answer to an extremely interesting and 

broad-ranging question. 

Mr. HOLDING. Well, maybe we could dive down on some specifics 

in the context of, you know, we are negotiating some trade agreements, TTIP in particular. And I am thinking of, you know, what 

type of copyright issues might be brought up in that context and— 

before we see any divergences which could cause particular arguments? 

Mr. NIMMER. Let me ask you, Representative Holding, are you 

talking about the Free Trade Agreements that are being treated—— 

Mr. HOLDING. Right. Correct. 

Mr. NIMMER. Okay. 

Insofar as I am aware, the U.S. Government has had great success 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. Those treaties do, I think, 

every single one of them possibly with one or two exceptions that 

I am not aware of, include a making available right. And so, notwithstanding the philosophical differences between countries with 

differing roots of copyright, there has not been disagreement, insofar as I am aware, with those Free Trade Agreements. 

Mr. HOLDING. And I would like to open it up to the panel, if anyone else would like to chime in with, you know, particular issues, 

you know, having to with our copyright laws versus other nations’ 

and problems there. 

Yes, sir. 

Mr. Love? 
120 

Mr. LOVE. The U.S. has high norms as far as damages are concerned. A lot of the foreign countries have lower norms, as far as 

damages. But, the U.S. has broader fair use rights. And so, the 

combination is such that our technology companies which are really 

dominant in a lot of the Internet areas have been able to operate. 

What the U.S. is doing in the Free Trade Agreements is sort of 

cherry picking the parts of the U.S. law that the—in some cases, 

that the publishers like. So, they sort of pick really aggressive 

standards, as far as damages. To the extent they are even requiring countries consider the full retail value as the basis for damages, for example, which isn’t even found in U.S. law and is contrary to U.S. law. 

On the one hand, and then—as kind of a halfhearted way of looking at the fair use thing of the thing. So, what you have got is sort 

of a shift of increased liability for U.S. technology companies operating overseas. U.S. has, you know, it has strong damages. But we 

have more exceptions in our domestic law than most foreign countries do, which is kind of this paradox. I think that the problem in 

trade policy is also that, you know, the negotiations are completely 

secret. You know, we help leak September of the TPP negotiation, 

a negotiation involving something like 40 percent of the world’s 

GDP in that negotiation. We don’t know what the current version 

is and neither do you. 

Now, I don’t see how you can possibly expect a trade agreement 

with Japan and Mexico that, you know, basically NAFTA-squared, 

-tripled, -triple-squared with that much GDP on the table. And, 

like, not even know what is going on and not even have that thing 

transparent. So, I think that the Congress has fallen down by allowing copyright policy to be made in secret, you know, through 

these trade agreements. 

Mr. HOLDING. Thank you. 

Mr. Chairman, I yield back. 

Mr. COBLE [presiding]. I thank the gentleman from North Carolina. 

Mr. Deutch, the gentleman from Florida? 

Mr. DEUTCH. Thanks, Mr. Chairman. 

Professor Lunney, I wanted to pursue, in a little more detail, 

some of the assertions that you make in your written testimony. 

All of this, sort of to support your assertion that there is no need 

for a making available right, you say, ‘‘The unauthorized copying, 

distribution and streaming of copyrighted works across the Internet are not the problem that copyright owners would have us believe.’’ You talked about the purpose of copyright is, ‘‘Not to maximize revenue, but to make the works more widely available.’’ You 

said here today that the measures of music output is what we 

should look at, not the money made, the goal is for more and better 

works and file sharing encourages that. And you went on to say, 

even while formally illegal, ‘‘File sharing has provided much broader access to existing works than the preexisting market mechanisms had accomplished.’’ 

And there are a few things I am trying to wrap my arms around. 

First, you had said earlier that the copyright laws in this area had 

always focused on—never on individuals, but always on corporations. And I wonder, if you draw the distinction at the individual 
121 

who downloads a song or a movie illegally, and what happens when 

that individual starts—creates an opportunity to share hundreds 

and thousands and tens of thousands and millions of songs and 

movies and other copyrighted work that can then be shared with 

others. Clearly, in that instance, file sharing goes beyond what you 

are prepared to accept? 

Mr. LUNNEY. Thank you for the question. 

It is a hard area to get our hands around. And it is 

counterintuitive to suggest, at some point, that less revenue could 

lead to more works. It would be a surprising result. I was surprised 

by the result when I did the empirical work myself. And, of course, 

from my perspective, I am sort of an ivory-tower academic. I don’t 

expect my work to have any real world significance. I am not sure 

I want it to have real world significance. I want to sit and explore 

issues and try and figure things out. And so, you get a result like 

this and you publish it and all of the sudden you are the center 

of a bit of controversy. 

Obviously, copyright is not a never ending spigot, you can’t simply add more and more and more and more and expect to get more 

works out the other side. There has got to be diminishing returns 

at some level. 

Mr. DEUTCH. Professor Lunney, I am not asking you to restate 

your testimony. 

Mr. LUNNEY. Okay. 

Mr. DEUTCH. I understand it. I am just asking, when you say 

that file sharing, that the sharing of copyrighted material is okay, 

is it okay just for an individual or is it okay for an individual to 

share tens of thousands of songs or films? 

Mr. LUNNEY. Well, if there is file sharing, there is the potential, 

at least, for sharing tens of thousands songs to tens of thousands 

of people. And we have assumed—— 

Mr. DEUTCH. Right. 

Mr. LUNNEY [continuing]. That that has the same effect as if a 

competing commercial publisher came along and offered competing 

copies in the marketplace. 

Mr. DEUTCH. Well, except—— 

Mr. LUNNEY. That is an assumption. 

Mr. DEUTCH. How is it different—how is it—here is what I really 

don’t understand with the argument that file sharing—illegal file 

sharing is somehow okay. If the goal is to spread the amount of 

music and creative works and film and all of this great intellectual 

property and to spread it as far and as wide as possible, why is it 

different, in the computer, in the setting of technology, to share 

files that way than it would be for the Big Box retailer to have 

someone come in through the backdoor, scoop up all the CDs and 

DVDs and take them out on the street corners, after they have copied them tens and hundreds of thousands of times, or gone into 

business on their own? Why is different with a physical product 

than it is online? 

Mr. LUNNEY. Well, it is different when consumers are doing it 

than when a commercial entity is doing it, I was—— 

Mr. DEUTCH. Yeah, right. 

Mr. LUNNEY [continuing]. Arguing. 
122 

Mr. DEUTCH. And I am not—I am suggesting to you that that individual who breaks in to the Big Box retailer and scoops up maybe 

only one or two, takes a couple of CDs and DVDs and makes copies 

of those him- or herself and then goes ahead and shares those, 

spreads this information far and wide, gets all this intellectual 

property out there. Why is it different? Why should it be acceptable 

for that to happen online, but not on the streets? 

Mr. LUNNEY. So, is this individual, who is breaking in to the Big 

Box, are they offering those copies for free or are they—— 

Mr. DEUTCH. Is that the distinction? Is that the distinction then? 

Mr. LUNNEY. I think it is an important distinction, whether it is 

for profit or not for profit. 

Mr. DEUTCH. And so—right. And so, if we had just someone 

whose goal was really just to spread the great American intellectual property that we are all so proud of by making copies and distributing it out of his or her own good will—— 

Mr. LUNNEY. Right. 

Mr. DEUTCH [continuing]. Thousands of copies, tens of thousands 

of copies, millions of copies, that is perfectly acceptable? 

Mr. LUNNEY. I think we do have such individuals. I think they 

are called libraries. 

Mr. DEUTCH. And—— 

Mr. LUNNEY. And they have coexisted with the commercial market for hundreds of years without undermining it. That is—— 

Mr. DEUTCH. Right. They have libraries that operate and have 

operated, as you point out, for hundreds of years. Not the setting 

of people who are going to make millions of copies to then freely 

distribute to be used without any regulation. I don’t see the difference. And your example—and this is what is also confusing to 

me. When you talk about the fact that, as you explain, you said, 

you know, the question isn’t whether file sharing has caused the 

decline of record sales, but the decline of record sales affected the 

creation of new music. And you talk about other ways that creators 

can be compensated, separate and apart. 

Then 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 amounts that are lost as a result of the 

theft of all of this intellectual property that you think do-gooders 

are certainly capable of doing to spread this intellectual property, 

which makes the performers better off and makes the songwriters 

better off and makes the actors and actresses and everyone involved in the production of any film or TV show. 

And you seem to refute your own argument and ultimately your 

conclusion is, yes—you do acknowledge in a footnote that, yes, 

there is less money going to the industry, but that it is not fair to 

point out that that may mean there may be fewer creators willing 

to engage in their work. All that means is that if you had tougher 

enforcement that the dollars that flow to that—those industries, 

are dollars that would have otherwise been in other industries. 

The—your rationalization doesn’t seem to make sense. Ultimately, 

the conclusion that you reached, that somehow it is in the best interest of creators in our country for their creative works to be 

spread far and wide without compensation. 
123 

And, as you have now acknowledged, not just a couple of kids 

trading songs that hopefully they purchased. But, in fact, the 

spread of tens of thousands or millions that ultimately the goal is 

just to spread that and that the diminishment in the amount of 

compensation to those creators will have no impact, you say, on 

their ability to continue to do their job. It just doesn’t—it is inconsistent with what all of those, that I talk to, who rely on copyright 

to protect their intellectual property, it is inconsistent with what 

they tell us they need in order for us to continue to uphold this 

great American intellectual property that we value so much. 

And I yield back, Mr. Chairman, thank you. 

Mr. COBLE. Thank you, gentleman. 

The gentleman from Pennsylvania, Mr. Marino. 

Mr. MARINO. Thank you, Chairman. 

Lady and gentlemen, I wish I had 3 or 4 hours to sit and discuss 

these matters with you. It has been very enlightening. 

Ms. Griffin, you made a statement concerning standards and how 

they apply to life in general. Do you think that we could be served 

by the industry itself setting standards? Or, do you believe that we 

need to legislate more? 

Ms. GRIFFIN. Thank you for the question. 

I think that the way that the—clearly the way the system works 

now is a public-private partnership with standards developing organizations who have technical expertise working with the Federal 

regulators who are in their space. And together and through that 

partnership they develop, you know, regulations that best meet the 

requirements of the regulated, whatever that may be. And in this 

country that is a very diverse group of people and there are very 

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 at that table to be open and balanced and transparent—— 

Mr. MARINO. Okay. 

Ms. GRIFFIN [continuing]. And not dominated by any one group. 

And 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 government-driven event. So, I think that balance is what makes it fulsome and it makes it the system that it 

is. 

Mr. MARINO. Thank you. 

Professor Schultz, you talked about notice of take down. Let us 

have a little example here. I have a search engine. I create a 

search engine, name it after my son, Victor’s Search Engine. And 

you are a musician and a writer. You chose whether you want to 

be the singer, the writer or the musician. But, at this point, you 

have a record out. You have 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 and you send me a notice. And I do nothing about it. 

Your music comes up because I am the guy who is illegally selling 

music to people and you are not getting paid for it. And you keep 

sending me notice and notice and notice. What do you think should 

be done about that? 

Mr. SCHULTZ. Thank you for the question. 
124 

I think, indeed, that there are two difficulties you identify here. 

One is that the current notice and takedown system is based on 

identifying a particular file rather than a work. And, as I said, it 

is based on an old paradigm that, you know, what we had to do, 

back in 1998, was stop a file that had escaped onto the Internet, 

quarantine it and pull it back. It is naive now. And now, every time 

somebody’s work is infringed, they have to send a separate notice 

for every file, no matter how—— 

Mr. MARINO. Do you think I should be held responsible, even 

though you are not sure how many people are downloading that 

music? Because every time someone gets on my search engine and 

pops your name in there, your music comes up and I am selling it 

to somebody for 10 cents a pop. 

Mr. SCHULTZ. Yes, absolutely. If you are the site hosting and 

profiting from somebody else’s work, whether it is through advertising or—— 

Mr. MARINO. Do you think it should be—do you think I should 

be held criminally liable? 

Mr. SCHULTZ. Criminally liable. That is a more challenging question. 

Mr. MARINO. I am stealing from you. 

Mr. SCHULTZ. So—— 

Mr. MARINO. As a—I am a—I was a prosecutor for 18 years. So, 

I am stealing something from you and selling it and making a profit off of it. Do you think that I should be charged criminally? 

Mr. SCHULTZ. There—of course, we are going beyond the scope 

of that in these hearings today. But, yes, I think criminal law can 

be a useful tool. But, it has to be very carefully applied to instances—— 

Mr. MARINO. Okay. 

Mr. SCHULTZ. Where the—— 

Mr. MARINO. Good. 

Mr. SCHULTZ [continuing]. User is at a great—— 

Mr. MARINO. Thank you. 

Mr. SCHULTZ [continuing]. Disadvantage. Thank you. 

Mr. MARINO. Professor Lunney, let us have another example. Instead of a brilliant attorney, you are a poet—struggling poet. You 

live in a one-room apartment above a factory. You don’t even have 

heat in the winter. And you write—I am looking through—I am a 

songwriter and I am looking through your book of poetry and I find 

this magnificent poem that you wrote. And I take that and I put 

it to music and I make $10 million on it. Do you have a problem 

with that? 

Mr. LUNNEY. The issue of derivative arts is a difficult one. And 

I personally would not have a problem with that. 

Mr. MARINO. Would you personally, for struggling—— 

Mr. LUNNEY. No. 

Mr. MARINO [continuing]. Hardly eating, you write this book of 

poetry and you don’t have a problem with it? 

Mr. LUNNEY. I feel that, in a lot of the derivative work contexts, 

it is the inventive effort and creativity of the second-comer, of the 

musician—— 

Mr. MARINO. Okay, let us go back. Now your father is a great 

poet—struggling, though, and trying to keep a family. And, again, 
125 

I use his poetry and I make $10 million on it and he can’t feed his 

children. Should anything be done about that? Do you have a problem with that? 

Mr. LUNNEY. Well, I am not sure exactly what you are doing 

with this poetry. But, if you were just—— 

Mr. MARINO. I am selling it and making a lot of money on it, because I am putting it to music. Do you have a—— 

Mr. LUNNEY. Are you selling it in music, right? 

Mr. MARINO. Yeah. 

Mr. LUNNEY. So, it is a derivative work. 

Mr. MARINO. Do you have a problem with that? 

Mr. LUNNEY. Not the market he originally exploited. He was just 

a poet. 

Mr. MARINO. He was just a poet. 

Mr. LUNNEY. And so, nothing—— 

Mr. MARINO. And he wrote a book and he really wanted to sell 

it and it is not making good. But, I took a poem out of that book 

and now I made $10 million and he can’t feed his kids. 

Mr. LUNNEY. Right. My perspective on a lot of derivative works 

is that we shouldn’t require necessarily license in all those contexts 

because it is really the derivative author who adds the real value 

to that. 

Mr. MARINO. I would tend to disagree. And I would think I would 

be a little angry, if my father said that, you know, ‘‘We are not eating here today, folks. But, you know, I think this guy should be 

able to take my work.’’ 

I yield back, thank you. 

Mr. COBLE. I thank the gentleman from Pennsylvania. 

The gentlelady from California, Ms. Bass—Ms. DelBene, I stand 

corrected. 

Ms. DELBENE. Thank you. Thank you, Mr. Chair. 

Mr. Nimmer and Professor Lunney, if we were to clarify the 

making available right in the law, would that—do you think that 

would raise any First Amendment or free speech issues? And, if so, 

what do you think we might be able to do to avoid those challenges? 

Mr. NIMMER. I believe that a simple clarification that the copyright owners’ distribution right includes making the work available 

does not implicate any First Amendment special interests that do 

not arise automatically in copyright law anyway. And so, I believe 

we do not need to pay special attention to that. It could be that if 

Congress wished to have a special surgical intervention in the peerto-peer domain—for instance because of the spate of pornography 

lawsuits, if Congress wished to limit the protection for pornography, that might be a way to redress the problem that would then 

raise the question of what level of First Amendment scrutiny would 

apply and is there sufficient governmental interest to satisfy that? 

But the straight making available aspect of the distribution right 

I believe does not raise any special First Amendment concerns. 

Ms. DELBENE. Professor Lunney? 

Mr. LUNNEY. I actually agree with Dave exactly on this issue. If 

you had passed a very narrow amendment, perhaps creating the 

presumption that a work made available in a sharing folder could 

be presumed to have been downloaded, so that it would be infringe-
126 

ment under either interpretation of the existing distribution right. 

I don’t believe that would raise any First Amendment problems. If 

you pass a general making available right, raising questions about 

whether a link might be an infringement of a public display right, 

or whether cloud computing or social networking, you are going to 

get into some First Amendment issues there. 

And I also agree that, if you try and go after copyright trolls by 

differentiating the copyright protection for porn versus other types 

of audiovisual works that may raise First Amendment issues. 

Ms. DELBENE. So, if we feel that the making available right is 

implied in the law today, why do you think that the courts are having so much difficulty with this right now? 

Mr. Nimmer? 

Mr. NIMMER. I believe the elephant in the room is the amount 

of statutory damages. So that, when the young single mother is 

clearly culpable of copyright infringement and yet she could be held 

by the jury liable for $100 million in statutory damages, the courts 

are reluctant to apply the law as written. So, that is why I am urging Congress to have a global solution. At the same time that it reaffirms the making available aspect of the distribution right, that 

it would cabin statutory damages to a reasonable extent. 

Ms. DELBENE. And, do you agree with Professor Lunney’s statement earlier, that making the—or having explicit reference to a 

making available right would cause economic harm? 

Mr. NIMMER. I am not positive which aspect of Professor 

Lunney’s statement you are looking at. But, I come at the economics very differently than he does. So, suffice it to say that it is a 

very interesting study. But, what it does not illuminate is how 

much music would there have been created in the last 10 years of 

lowering studio costs, had there not been peer-to-peer illegal file 

sharing. 

Ms. DELBENE. And, Professor Lunney, do you think there is any 

way to define a making available right more specifically that 

wouldn’t cause old cases to be reopened and the uncertainty that 

you talked about earlier? 

Mr. LUNNEY. Yeah, there certainly would be. If you just want to 

affect it in the distribution, the peer-to-peer file-sharing context, 

you could create a presumption that a work that is made available 

in a share folder has been downloaded. You could even make it a 

rebuttable presumption if the defendant wants to come forward 

with evidence. But it will never get that far. It never gets that far 

in any of the existing cases. In the one case where it was raised, 

the Jammie Thomas-Rasset case, she was found guilty of copyright 

infringement the first time with a making available instruction on 

the distribution right that was retried after the district judge said, 

‘‘No, that is not right.’’ She was still found guilty. 

Ms. DELBENE. Thank you. 

I yield back my time, Mr. Chair. 

Mr. COBLE. I thank the gentlelady. 

The gentleman from California, Mr. Issa. 

Mr. ISSA. Thank you, Mr. Chairman. 

And, Ms. Griffin, I asked a lot of documents be placed in the 

record earlier. And most of them are related to the gentleman next 

to you, Mr. Malamud. 
127 

It is an amazing thing to me that I came from a standard setting 

organization, Electronics Industries Association and CEA. And you 

couldn’t have a high definition television, if we hadn’t figured out 

what the standards were going to be. We wouldn’t be arguing over 

capturing over digital broadcast, if we didn’t have digital broadcast. 

Standards are extremely important. 

But, standards and laws are different. And I would like to concentrate somewhat on this end of the table. 

Mr. Malamud, I am going to read, just a shortest part of the Constitution for a moment, where it says to establish Post Offices and 

Post roads, Post Offices are next door. And it says, ‘‘To promote 

progress,’’ and I will skip over, ‘‘of science and useful arts,’’ for a 

moment. And limit it to—and of limited times, and I am just going 

to read how it relates to copyright, ‘‘To promote the progress, for 

limited times, to authors.’’ Okay? That is it. That is the Constitution. It is only a paragraph, ‘‘To promote progress of science and 

useful arts by securing, for a limited time, to authors and inventors 

the exclusive right to their respective writings and discoveries.’’ 

But that short one, ‘‘To promote,’’ ‘‘to authors.’’ Who authors a law? 

And that is my point. And it is the point of all of the documents 

I put in. If the State of Idaho, the State of Georgia, the State of 

Mississippi, if they produce a law, every single person who voted 

for it is an author. It doesn’t belong to some entity, by definition. 

Isn’t every law, in fact—and, I have got to tell you, Obamacare has 

people who do not want to be authors and others who, a few left, 

who do. But, on the day that it passed we were all authors. 

So, my question—and I am going to concentrate on this end and 

then open it up to the rest—is, in its rawest form, isn’t, in fact, 

every single person who participates in the creation of a law or the 

inclusion, by association, of a standard in fact an author. And, 

therefore, if I am willing to have it released to everyone, as an 

owner of that copyright and an undivided owner, don’t you ultimately have no possibility of protection? In other words, the State 

of Idaho is inherently wrong if they consider any part of a law required or mandated to be, in fact, eligible for copyright. 

And my point here—and Carl I am going to go to you first—I 

have been in Congress for 13 years and about 8 days. The one 

thing I know is I don’t need a copyright to promote politicians making laws. So, by definition, the ‘‘promote’’ being the basis for copyright, don’t we inherently have a decision to make about whether 

or not laws or anything else which is included in a law by mandate 

has any right to a copyright at all? A fundamental—forget about 

what we do with this copyrighted material, is it really eligible for 

copyright? 

Mr. MALAMUD. Congressman Issa, thank you for that question. 

I think that is the crux of the matter. The VEC Corp., when it 

looked at whether the building code of Texas had the law, said that 

there is no incentive needed for the—— 

Mr. ISSA. Politicians will make laws, whether you—— 

Mr. MALAMUD. Absolutely. 

Mr. ISSA [continuing]. You just have to pay them per diem and 

they will show up. 

Mr. MALAMUD. And the standards bodies, I have never seen a 

standards body object to one of their documents becoming incor-
128 

porated by law. That is often the case. I think that is especially 

crucial on public safety laws. Now, we may incorporate by reference 

too many things. And perhaps the guidance of this Committee 

could be used on that topic. But, for those that are crucial, for example the laws on testing the toxicity of water, is something that 

every citizen in West Virginia today wants to know, what those 

laws are and were they carried out properly. 

And I think that is the key point. You can’t have it both ways. 

If the document is in fact the law, it has to be available. And I respect the rights of the standards bodies to develop a wide range of 

standards, but once one of those has become the law, then it needs 

to be available. Now, again, a standards body can say, ‘‘Please do 

not incorporate this into law. We would prefer that this document 

not become the law.’’ And that is perfectly acceptable. There are 

multiple standards bodies. There are several fire codes, several 

building codes, several plumbing codes and you will find immediately a group standing up and saying, ‘‘Please designate mine to 

be the law.’’ 

Mr. ISSA. And, Ms. Griffin, I am going to ask you the follow up 

that goes along this line, quickly. 

What Mr. Malamud just said is what I am trying to make a point 

on. If it is a voluntary standard, in fact it is available for copyright. 

I understand that. But, if it is incorporated into law, at that point, 

shouldn’t you object to it being incorporated or recognize that you 

are waiving any copyright objections from the public having free 

and fair access to, essentially, a law that they must comply with? 

Ms. GRIFFIN. Thank you, Congressman. 

I think the answer is incorporated into OMB, the policy of OMB 

A-119 and the NTTAA. And those policies and those laws dictate 

that a government agencies, Federal agencies incorporate voluntary 

consensus standards in lieu of government-unique standards whenever they are able to do so. 

Mr. ISSA. Okay. But, OMB is nowhere enshrined in the Constitution. And it does not have explicit legislative authority. This is the 

Committee that must decide what can or cannot be covered under 

the promote and exclusive element of copyrighting. The rest of the 

panel is extremely important and we work on it all the time. But, 

in a digital age, narrowly, Mr. Chairman, the law and people’s access to laws which they must comply with. Inherently this Committee has to decide whether that should be stripped of any and 

all copyright, to the extent that we have authority, which has nothing to do with what OMB thinks because, quite frankly, they think 

they can make laws without Congress getting up in the morning 

ever again. So, constitutionally, on what basis would you say that 

that has any grounding? Not what OMB thinks. 

Ms. GRIFFIN. Well, let me tell you what the Second Circuit in the 

19-—— 

Mr. COBLE. Ms. Griffin, if you could be brief—as briefly as possible, his time is expired. 

Ms. GRIFFIN. Yes, but allow me to tell you what the Second Circuit and the Ninth Circuit said on that very point. In the PMI case 

that the Ninth Circuit said that, ‘‘The due process requirement of 

free access to the law may be relevant, but does not justify termination of, and in this case it was the American Medical Associa-
129 

tion’s copyright. There is no evidence that anyone wishing to use 

those standards at issue in that case had any difficulty in obtaining 

it.’’ And that was the PMI case in the Ninth Circuit. 

The Second Circuit, in a similar case in CCH Info, said, ‘‘We are 

not prepared to hold that a State’s reference to a copyrighted work 

is a legal standard for valuation results in loss of copyright. With— 

while there are indeed policy considerations that support CCC’s argument, they are opposed by countervailing considerations. For example, a rule that the adoption of such a reference by a State legislator or administrative body deprived the copyright owner of its 

property would raise very substantial problems under the Taking 

Clause of the Constitution. Although there is, and I am jumping to 

the last sentence of that paragraph, ‘‘Although there is scant authority for CCC’s argument, Professor Nimmer’s treatise opposes 

such a suggestion as antithetical to the interests thought to be advanced by the Copyright Act.’’ 

So, at the end of the day, it is a balance. It is a balance between 

the rights of copyright holders and the value that those copyrights 

bring to Federal regulations. As—— 

Mr. ISSA. Okay. 

Ms. GRIFFIN [continuing]. I said earlier—— 

Mr. ISSA. Thank you. 

And, Mr. Chairman, I appreciate your indulgence. And I just 

want to go on the record that, in the copyright reform that we are 

considering as a Committee, in order to have my vote on final passage, we will have to rectify the ambiguity in the law so that every 

American has free access to every law that he or she must live 

under. 

Mr. COBLE. I thank the gentleman from California. 

I thank the witnesses. 

There will be ample time, after the hearing, for exchanges between the witnesses and Members of the Subcommittee. So, nobody 

is being shoved off abruptly. Shoved off, perhaps, but not abruptly. 

I thank the gentleman from California. 

Mr. Jeffries, the gentleman from New York. 

Mr. JEFFRIES. Thank the distinguished Chair and thank the witnesses for their testimony. 

I want to start with Professor Lunney and try and get some clarity from or as it relates to some of your written testimony on pages 

6 and 7. Bottom of page 6 you state that, as has been previously 

discussed, ‘‘The purpose of copyright is not to maximize the revenue of the music industry or copyright owners more generally,’’ is 

that correct? 

Mr. LUNNEY. Yes, sir, I do take those statement from Supreme 

Court decisions setting that forth. 

Mr. JEFFRIES. Right. 

Mr. LUNNEY. Repeat them. 

Mr. JEFFRIES. Now, is it fair to say that copyright owners or content creators are entitled to reasonable compensation? 

Mr. LUNNEY. I think we would have to sit down and define what 

‘‘reasonable’’ is and that would be a more difficult task than you 

might imagine. 
130 

Mr. JEFFRIES. So, you don’t think—is it your view that copyright 

owners or content creators are entitled to any compensation whatsoever? 

Mr. LUNNEY. No, it is not my view of that sort at all. And I 

would be happy that they would be very well paid. My only perspective is that, in terms of the constitutional purpose, our focus 

should be on the production of output. Now, obviously, a well-compensated artist and musician class is probably important for longrun copyright output of creative works—— 

Mr. JEFFRIES. Okay. Let us focus on the Constitution. I appreciate that observation you just made. So, the relevant provision, obviously, is Article 1, Section 8, Clause 8, which reads, ‘‘To promote 

the progress of science and useful arts by securing, for limited 

times, to authors and inventors exclusive right to their respective 

writings and discoveries.’’ Now, the progress of science part of that 

provision obviously gives Congress, I believe, the ability to create 

a robust patent system. Is that correct? 

Mr. LUNNEY. It is actually, ‘‘To promote the progress of the useful arts,’’ is for patent. Science is for copyright. 

Mr. JEFFRIES. So, you have defined the—and what would be the 

basis of that conclusion? Does that stem from your evaluation of 

writings from the Founding Fathers? Or—— 

Mr. LUNNEY. The Supreme Court has said that on a number of 

occasions. The clause has a parallel structure, ‘‘To promote the 

progress of science and the useful arts, for authors and inventors, 

their writings and discoveries.’’ Each of those three pairs of words 

the first word is for the copyright, the second word or phrase is for 

patent. 

Mr. JEFFRIES. And so, the Supreme Court has defined this standard, I believe, to encompass to legitimate ends, correct? The first 

would be encouraging the creation of new works, is that right? 

Mr. LUNNEY. That is correct. 

Mr. JEFFRIES. And then the second would be to encourage the 

dissemination of existing works, correct? 

Mr. LUNNEY. That is what the court said. 

Mr. JEFFRIES. So now, as it relates to encouraging the creation 

of new works, is it fair to say that providing artists, content creators, with the opportunity to benefit from the fruits of their labor 

in some meaningful way serves the purpose of encouraging the creation of work? 

Mr. LUNNEY. As a general proposition, I have no disagreement 

with that statement. 

Mr. JEFFRIES. Okay. And what would you disagree with, as it relates to that statement? 

Mr. LUNNEY. Well, it is always a question of how many rights 

and how broad the rights need to be. Do we need to address every 

specific instance? In the academy we talk about leakage in the 

copyright system. That is instances where individuals or companies 

copy and yet they are not sued or it would not constitute copyright 

infringement. And this leakage is a fairly important part of the system. 

So, trying to determine whether any given instance of copying, 

some are reasonably straightforward—I would agree, I think we 

would all agree, that a commercial competitor who takes a copy 
131 

and sells it for less in the same marketplace is a copyright infringer. I think we would all equally agree that someone who takes 

Shakespeare’s Romeo and Juliet and creates West Side Story, 

would probably ought not be a copyright infringer. 

Mr. JEFFRIES. And am I correct that, you know, it is your position, as it relates to determining the measure of what happens 

when meaningful or reasonable compensation is not provided, is 

that we should just simply allow for the illegal dissemination or reproduction or sharing of works and then evaluate whether content 

production has decreased? Is that your position? 

Mr. LUNNEY. No, I am not advocating sort of randomly changing 

the law to see what happens. As a social scientist I might be interested in that experiment. 

But file sharing gave us an opportunity to see what might happen. It was formally illegal, but it never the less happened and revenue to the music industry, even considering all the revenue 

sources they have, definitely went down. So, what happened to output? And what does that tell us about whether we had not enough 

copyright, too much copyright or just the right amount? And, if revenue goes down sharply and your copyright protection effectively 

falls and yet you seem to get as much or more creative output, for 

me that suggests that we may have had too much copyright to 

begin with. 

Mr. JEFFRIES. Should we be concerned about the impact on the 

economy, in that scenario? 

Mr. LUNNEY. Well, that depends on what you mean by the impact to the economy. For me as an economist, the fact that some 

money doesn’t flow to the music industry, it is going to remain in 

the consumers’ pockets, it is going to be spent elsewhere in the 

economy. Jobs lost in the copyright sectors will presumably be 

picked up, if consumers spend that money on education or employment or healthcare, in those sectors of the economy. 

Mr. JEFFRIES. Lastly, Professor Nimmer, you referenced earlier 

in your testimony that facts change on the ground. And I believe 

you may have mentioned it in the context of misinterpretation of 

a line in a treatise that you had prepared, which preceded the development of Napster. We have also seen the advent of streaming, 

cloud computing as another example. Technology changes over 

time. That is a wonderful thing. I think many of us would agree. 

The issue is, you know, how do we accommodate technological 

changes as they move forward but also create the certainty in the 

law and the copyright protection for the creative community? Do 

you have any words for us, on the Committee, in terms of how to 

strike that appropriate balance, if that is the balance we should be 

seeking? 

Mr. NIMMER. I certainly do agree that it is the right balance. At 

the end of my written statement I reproduced one page from 50 

years ago. It is from the Register of Copyrights written in 1965. 

And it said, ‘‘We don’t know what the law will be 10 or 20 or 50 

years from now,’’ and they are writing 49 years ago, but they said, 

‘‘It is becoming increasingly apparent that transmission of works 

by linked computers may be among the most important means.’’ 

And the final statement was, ‘‘We believe the day has passed when 

any particular use of works should be exempted for the sole reason 
132 

that it is not for profit.’’ So, those are very wise words to guide us 

as we go forward. This was written at the culmination of 10 years 

of study. And I think it beautifully encapsulates much of the philosophy that needs to go in. So, that would be my watch word for 

Congress on a going-forward basis. 

Mr. JEFFRIES. Thank you. 

My time is expired. I yield back. 

Mr. COBLE. Well, I thank the gentleman from New York. 

Professor Lunney, I owe you a belated apology. I previously mispronounced your surname. You are not looney. I stand corrected. 

Mr. LUNNEY. I always tell my students it rhymes with funny and 

I am not crazy. [Laughter.] 

Mr. COBLE. And we will—and hold me harmless for my mistake. 

The gentleman from Georgia, Mr. Collins is recognized for 5 minutes. 

Mr. COLLINS. Thank you, Mr. Chairman. I appreciate that. 

And, Mr. Lunney, I think inadvertently you may have summed 

up this entire discussion. From my perspective, and many in this 

room know this, I believe that copyright protections and other protections not only, at the proper balance, strike innovation and help 

innovation, but also protect innovation and grow apart. 

And you made a comment in the midst of an exchange when you 

said in—with my gentleman from Pennsylvania, you said, ‘‘It is 

just a poet.’’ And that struck me and it might come strangely to 

others. ‘‘Just a poet’’— poets have changed the world. And their 

words mean something. And their copyright protections have 

meant something. And I think, for me, I think that sums up this 

entire hearing, that there needs to be a proper balance struck. But, 

when you just say, ‘‘It is just a poet,’’ ‘‘it is just a writer.’’ Was 

Hemmingway just a writer? Was Dickens just a writer? Was 

Clancy, even new, just a writer? That is the heart of what we are 

talking about here today. And it was not meant any way except you 

just sort of summed it up in an offhanded way. But I think that 

is really where we are at today. But, I am not with you. I am down 

here with Mr. Malamud. 

I want to continue off the discussion that my friend from California discussed, that is the definition of law. And we do have an 

interesting complement here because I am from Georgia and you 

have let us just say a difference. And I appreciate all of what you 

do. I think what you do is really a service, a public service. 

I have a problem with where we are at right now, a little bit, 

with what we are defining. And, in your letter to the Senator 

McCune, Speaker Ralston approached him; Schaefer in my State of 

Georgia, you said, ‘‘The official code of Georgia annotated, every 

component of it, is the official law.’’ I want to explore that a little 

bit. And I just have some short questions so we can get to it a little 

bit more. What is an annotation? 

Mr. MALAMUD. An annotation can be anything from some freelance editorial comment by some commercial provider to the comments by the legislative counsel or the State itself as to the import 

of the code. 

Mr. COLLINS. Thank you. 

Is an annotation a statute? 
133 

Mr. MALAMUD. Well, now, I am really glad you asked that question because that actually comes to the crux of one of the problems 

that we face and why I think this Committee might want to deal 

with this issue. 

I am just a computer guy. I am a law school dropout. I want to 

put all 50 State laws online. If you go to the official—— 

Mr. COLLINS. Well, let us stop right there. 

Mr. MALAMUD. Okay. 

Mr. COLLINS. I have no problem there, the law itself. I think the 

problem we are getting into is the definition. That is why I said, 

‘‘What is an annotation?’’ And, if you go to the free public website, 

it took three clicks to get there on the Georgia legislative page, of 

which I was a member for 6 years. All you got to do is go. And you 

actually get the free Georgia code annotated, in which it says the 

annotated code is copyrighted. But, it makes specific reference to 

say that law or any other recognized by the law is not copyrighted. 

It is the work of the annotation, which is more than the law. 

Mr. MALAMUD. But, Congressman, the terms of use of that free 

site prohibit me from making a copy of that. They—it specifically 

prohibits all public and nonprofit—— 

Mr. COLLINS. Well, what it prohibits you from doing is taking a 

book and copying it and turning it in as your own work. And when 

I was in school that was called cheating or plagiarism or however 

else you want to describe it. 

And so, I mean, I think that—look, the questions are coming 

here—the annotation part is really where we are getting here. And 

you make the claim, and I have read your book here, and you made 

a comment. It says that, ‘‘States such as Georgia, Idaho and Mississippi,’’ with all due respect to Idaho and Mississippi I am not as 

concerned with them right now, ‘‘Have spread fear, uncertainty and 

doubt sufficient to throw a deep chill on their order.’’ Now, that 

makes great prose. And you are a good author. And if you wrote 

the part of this, then you should have it protected. [Laughter.] 

Mr. MALAMUD. Although this is—— 

Mr. COLLINS. But if—— 

Mr. MALAMUD [continuing]. I actually copyrighted it. 

Mr. COLLINS [continuing]. You put it out to everybody that is 

your choice. Okay? 

But you are not—and frankly, I believe you are being disingenuous here, ‘‘to throw a deep chill,’’ when you can go three steps and 

get it for free? I think that the part that I am concerned about here 

is really it is the bigger step of taking part of—which we all recognize the law, okay, the statute—‘‘Does the gentleman from California make,’’ what we vote on—that code, that actual non-annotated, non-commented on. I mean, to say that an annotation is the 

law would be about like taking this Committee memo and saying 

it is a part of the Federal code. That is just not true. It is written 

by someone else. It is input by someone else. 

So, the question really comes, from me, is the way that it was 

handled. You are just taking off—it is already free. The issue was 

there. We have already discussed that. But there is a part that is 

copyrighted because it actually was the work of someone else. You 

are right. We need to make sure that copyright laws, and as all 

these others have discussed, and in the issues there needs to be a 
134 

proper balance. I just believe here, in this issue, especially taking 

the State of Georgia and others and claiming that they are chilling 

innovation, they are chilling this, I think is over the top to make 

a point about something that is not really true. And that being that 

the law itself we will not negotiate, that is part of the public 

record. But, if I have somebody that if I have wrote my annotation 

and I have done the work, then we respect the work. We don’t go 

out and say, ‘‘Well, I have got the book. Let us copy it. Send it up,’’ 

just simply because I don’t want to do the work of annotation. And 

I think that is the problem I have. 

And with that—we will have many more conversations. I appreciate your work. I appreciate the rest of them being here. But, I 

think that goes back to the heart of it here. If you do the work, 

the protection is there, not taking a shortcut because you just simply don’t want to do the work. 

Mr. Chairman, I yield back. 

Mr. COBLE. I thank the gentleman from Georgia. 

The gentleman from New York, Mr. Nadler? 

Mr. NADLER. Thank you, Mr. Chairman. 

Let me start by thanking the witnesses for their testimony and 

the Committee Chair for bringing these issues before the Committee because I do believe that we have to do a better job of protecting content owners, artists, musicians and creators in making 

sure they are appropriately compensated for their work. 

But I want to ask more broadly about protecting copyright today. 

Mister—Professor Lunney, you mentioned there is no need to make 

explicit the make available right and that it would not have an effect on curbing online theft. You mentioned that with BitTorrent 

users, users are uploading and downloading simultaneously and 

they are making thousands of illegal copies. The law has already 

made this practice illegal, but it has not stopped it, as we all know. 

Content owners have tried to chase their works across the Internet, 

which is not practical, not effective. 

We heard Chairman Goodlatte mention that Google has now received its hundred millionth takedown notice. And obviously someone observed that the millennium—the Digital Millennium Copyright Act is broken. What would you suggest, without reprising 

SOPA or getting into that, as an alternative way to protect copyrighted works on the Internet? Is there any? 

Mr. LUNNEY. Well, I mean, a number of us in the academy have 

explored the idea of having a levy where you—— 

Mr. NADLER. What? 

Mr. LUNNEY [continuing]. A levy would be a system where you 

authorize consumers to file share as much as they would like, and 

then you add a charge to their Internet bill each month and that 

money goes into a pot and it is redistributed to the copyright owners whose works are being file shared. I am not certain there is any 

other solution that is going to—— 

Mr. NADLER. Wait. Now, let me just explore that for a second. 

Mr. LUNNEY. Sure. 

Mr. NADLER. You set up an ASCAP-type system, in effect, like 

as we do for songs. 

Mr. LUNNEY. Yes. 
135 

Mr. NADLER. Where you can download it, Google doesn’t get a 

takedown notice, but does note that you downloaded it. And you 

pay into—well, who pays into this fund, anybody who goes on the 

Internet? 

Mr. LUNNEY. In a—it would basically be a surcharge added to 

your Internet bill, would be one approach. 

Mr. NADLER. I never listen to music, let us say—— 

Mr. LUNNEY. Well—— 

Mr. NADLER [continuing]. Why should I—— 

Mr. LUNNEY [continuing]. This is one of the central concerns with 

the levy approach. It is unfair to people who do not file share. But, 

it would be a mechanism for compensating authors and copyright 

owners for the file sharing that is going to go on. 

Mr. NADLER. So, anyone who accesses the Internet would pay a 

levy, which would be administered by some new organization or old 

organization. And the funds would go, based on someone’s assessment of how many people listen to my song? 

Mr. LUNNEY. Well, how the funds would be distributed would 

have to be decided. But, we could use a—some sort of sampling system, similar to ASCAP or BMI or the investigators that currently 

tracks downloads in order to sort of bring actions to get a subpoena—— 

Mr. NADLER. It is a very interesting—let me ask mister—Professor Nimmer, what would you—how—what is your reaction to 

this interesting suggestion? 

Mr. NIMMER. My reaction—— 

Mr. NADLER. Besides saying that it is an interesting suggestion. 

[Laughter.] 

Mr. NIMMER. Yeah. Well, in that case, you have preempted my 

first sentence. [Laughter.] 

I put in footnote 69 of my written statement the citation to Mr. 

Netenal’s article called Impose a Noncommercial Use Levy to Allow 

Free Peer-to-Peer File Sharing, and that is one of many solutions 

Professor Lunney himself has written on the issue. 

The problem with these proposals, there are feasibility problems, 

there are treaty compliance problems. So, I do not wish to prejudge 

it at the outset. It is a fascinating vehicle. It requires a lot of study. 

The devil is in the details, as always. But, it is a completely different way of looking at the issue and it deserves to be investigated. 

Mr. NADLER. You said there are a number of others. Are there 

other major suggestions available? 

Mr. NIMMER. Yes, I think—— 

Mr. NADLER. Again, without getting into the whole mess we had 

with SOPA. 

Mr. NIMMER. Professor Fischer at Harvard has proposed something that I will basically call an ‘‘entertainment tax,’’ where the 

government could decide how much money has been made through 

all the arts and allocate that and allow free sharing of culture. I 

am almost lampooning his book-length proposal. But, in essence, 

that is what it is. 

Mr. NADLER. It might be interesting, if you take out the word 

‘‘tax,’’ Professor—— [Laughter.] 

Mr. NADLER [continuing]. Which has a certain ring around here. 
136 

Professor Schultz would you comment on any of this? 

Mr. SCHULTZ. Yes. I think the levy idea is just a terrible one. 

Mr. NADLER. You said what? 

Mr. SCHULTZ. It is a terrible idea. 

Mr. NADLER. Okay, because? 

Mr. SCHULTZ. You have the government—you are inviting the 

government to set prices. And a fundamental concept in copyright 

law, in any property right, is that the one—the owner gets to decide the terms on which it is alienated. And, when you take away 

that liberty, you take away, first of all, the value of the price signal. We no longer—— 

Mr. NADLER. And this, your comment now, would apply to a private ASCAP-type thing as well as to the—— 

Mr. SCHULTZ. No, not to a private ASCAP thing, because to a 

system like that people enter it voluntarily. 

Mr. NADLER. Well, what would your comment on that be? 

Mr. SCHULTZ. So, in a system like that, sure. There are plenty 

of collective rights organizations, when they are privately entered 

into, they solve a lot of problems. But, it is essential they remain 

private otherwise the government—— 

Mr. NADLER. Okay. 

Mr. SCHULTZ [continuing]. Determines the price—— 

Mr. NADLER. Before my—— 

Mr. SCHULTZ [continuing]. A file—— 

Mr. NADLER [continuing]. Before my—— 

Mr. SCHULTZ [continuing]. Might receive. 

Mr. NADLER. Okay. 

Mr. SCHULTZ. It—— 

Mr. NADLER. No, no, no. 

Mr. SCHULTZ. Yeah. 

Mr. NADLER. Mr. Love or Professor Love wanted to comment. 

Mr. LOVE. I mean, we have had a long history of use of compulsory licenses where markets aren’t really functioning very well and 

often connected with new technologies. So, I don’t think it is really 

beyond pale that you move to some kind of a compulsory licensing. 

And this is—the twin issues, you touched on the issue of how you 

pay the money out. I think that the first instance people look at 

is the sort of sampling thing that Professor Lunney has referred to, 

in terms of distributing. A different approach is to have the consumers be able to pick the collection society that they think rewards the artist in the way that they prefer. So that, in effect, the 

consumer is, in a way, becoming kind of a patron of the arts. Mandated to be a patron, but—— 

Mr. NADLER. We have several operations doing similar things 

and the consumer chooses one. 

Mr. LOVE. Yeah, you would pick. Like, perhaps, one would give 

all of their money to Madonna and Britney Spears, and another 

one would sort of do it a little bit differently. And you would be 

able to pick the entity that you thought supported the art in the 

way that you preferred. That is called the Burn Bland model, 

which is a different model than the sort of sampling model. But 

there are these alternatives and they are usually connected with 

some kind of—— 
137 

Mr. NADLER. These sound like things, you know, to explore. But, 

I see my time is expired. 

I thank you all. 

Mr. COBLE. I thank the gentleman from New York. 

The distinguished gentleman from Texas, Mr. Farenthold? 

Mr. FARENTHOLD. Thank you very much. 

And, let me ask Professor Lunney, if we were to codify a make 

available right, what would it do that we can’t do already? 

Mr. LUNNEY. Well, in the file sharing context, as I said, I don’t 

think it would change what is going on in that arena at all. If it 

makes it marginally easier to pursue file sharers, I don’t think it 

is the business decisions a new round of—— 

Mr. FARENTHOLD. Well, let me ask Professor Nimmer. Other 

than making it easier for a plaintiff, what other protection are we 

going to provide creators? 

Mr. NIMMER. It would—I think it would—the essence is to make 

it easier for the plaintiff and thereby to comply with the U.S.’s 

treaty obligations—— 

Mr. FARENTHOLD. So—— 

Mr. NIMMER [continuing]. And to resolve conflict in the case law. 

Mr. FARENTHOLD. So, how many bad-guy infringers are getting 

away now that wouldn’t be getting away, if we were to do this? 

Mr. NIMMER. Obviously, I don’t have the empirical figures with 

me. 

Mr. FARENTHOLD. I mean, do you realistically think there are 

any? 

Mr. NIMMER. Well—— 

Mr. LUNNEY. No one who has been sued or brought into the legal 

process that has gotten out, as far as I am aware, because a 

download could not be proven. 

Mr. FARENTHOLD. All right and let us talk a little bit about make 

available. We talk about it in a traditional upload context. We say, 

alright you put it in a shared folder, you have made it available. 

Well, have you made it available if you link to it? Say you are 

Google and you are a search engine and you haven’t posted anything yourself, but you link to it. I mean, a broad definition of 

make available—obviously, we could craft the statute however we 

want. I mean, you could potentially get, you know, non-—what I 

would consider, non-guilty parties there. 

Professor Lunney? 

Mr. LUNNEY. Well, the worst part in my mind is we wouldn’t 

know. If you adopt a broad, general making available right, we 

wouldn’t know until we litigated it whether linking would be infringing or the—— 

Mr. FARENTHOLD. Yeah. And so, would a broad making available 

right, if I took my copy of, you know, the latest Brad Thor novel 

I bought and read and donated it to the library, would I be making 

that available? And have we completely undermined the first sale 

doctrine there? 

Mr. LUNNEY. In both the treaties and in the distribution context, 

and I think Professor Nimmer would agree with me, there is an exception where the making available right can still be limited by the 

first sale doctrine or exhaustion. 
138 

***Addendum: 

The question posed relates to linking. Congress was concerned about linking in 1998, when 

it drafted the Digital Millennium Copyright Act. For that reason, it set up a special safe harbor 

for online service providers, to immunize their linking activity from liability. See 17 U.S.C. 

§ 512(d). Clarifying the scope of the distribution right, and its making-available component, 

would in no way affect the operation of that safe harbor. Furthermore, addressing the statutory 

damages issue could provide added insulation against disproportionate liability. 

Mr. FARENTHOLD. And what about making available on a less 

public basis? I have iTunes in my house and there is a shared folder on there that I have made available to my television set and to 

my other computer and probably my daughter’s television set and 

my wife’s computer. You know, where do you draw the lines within 

there? 

Mr. NIMMER. Good.*** 

The danger here is in a standalone make available right. And if 

Congress were to pass a new seventh right under copyright, which 

is making available, all the dangers that you have cited would face 

us. However, I believe we can avoid all those dangers, including the 

danger of sharing with your wife and daughter, if we simply define 

the copyright owners’ public distribution right to include making 

available. When you include your wife and daughter, that is not an 

act of public distribution, so you don’t need to worry about the—— 

Mr. FARENTHOLD. All right. I have got to—I want to hit each of 

the topics here. So, I need to go to Professor Schultz. 

You know, I am a former broadcaster and I understand how 

tough it is for local broadcasters. But you look at something like 

is going on with the Aereo case, don’t the broadcasters want as 

many eyes as possible viewing their newscast so they have more 

value to sell to advertisers? 

Mr. SCHULTZ. Well, that is a good question. The advertising revenue is one component of how they make a—how they constitute 

their business. But, there are other components, including the retransmission fees that are essential to supporting local broadcasting. 

Mr. FARENTHOLD. And, you know, so I guess the other issue then 

becomes, at what point to I have to negotiate a deal with all of my 

local television stations to put a sling box at my house so I can 

watch the Corpus Christi newscast when I am in Washington, 

D.C.? 

Mr. SCHULTZ. You absolutely don’t have to negotiate. 

Mr. FARENTHOLD. I just want to make sure it doesn’t go that far. 

And then let us—let me go down here to the other end of the 

table, real quickly speaking. And I am going to have to agree that 

once something is enacted and is in a law, the public ought to have 

a right to get to it free. Don’t the standards setting organizations, 

Ms. Green, collect membership dues and generate revenue from the 

members who participate? 

I mean, I understand, in the old days, it cost money to print up 

the books and distribute it. But, now the marginal cost of making 

this information available over the Internet is basically none. And 

there is zero value to some of these—to a light bulb that doesn’t 

fit the light bulb standard, to use your analogy. Shouldn’t the private sector that benefits from these, pay for them, and the public 

should have them free. Why shouldn’t I be able to print out a copy 
139 

of the electric code to make sure the electrician hooked the green 

wire up to ground in my house? 

Ms. GRIFFIN. Well, a couple of things. Thank you for the question. 

First, the SDOs have different business models. Many do base 

their revenues on membership fees, but many don’t. And those that 

don’t are largely not-for-profit, mission-generated organizations 

that keep their barriers to entry low. That is, they have low entry 

fees, they have low membership—— 

Mr. FARENTHOLD. Right. 

Ms. GRIFFIN [continuing]. Fees for the very reason that they can 

use the sales derived from—they use the revenues derived from the 

sale of—— 

Mr. FARENTHOLD. I see my time is expired. I would love to sit 

down with you and we could probably debate this for an hour. And 

it is actually something I would like to do, because I do think it 

is important. That, you know, I think you may waive your right to 

that, once you fight to get it enacted into law or it gets enacted into 

law. It is something we can talk about when we have more time. 

So, Mr. Chairman, I will yield back. 

Mr. COBLE. I thank the gentleman. 

There will be ample time for us to revisit this time and again, 

I am sure. 

Mr. Johnson, the gentleman from Georgia? 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Mr. Chairman, I started practicing law about—well, back in 

1980. And, in going into the law libraries of Georgia State University to get ready for cases and to represent various folks in my general practice, I recall coming upon doctor—or Mr. Nimmer’s books. 

And I can’t believe that he is sitting here looking as young as he 

looks. I thought he would be probably about 90 years old by now. 

But thank you for your contributions, sir. 

And I have long supported strong copyright protections as the 

backbone of innovation, creativity and public good. But, materials 

created by the U.S. Government and State governments do not deserve copyright protection, nor have they ever received it. In 

1980—in 1888, the Supreme Court held, in Banks v. Manchester, 

that there has always been a consensus that judicial opinions are 

in the public domain because the work of judges binds every citizen, and is and should remain free for publication to all. Since 

then, courts have continuously upheld this understanding that the 

law, be it State or Federal, is in the public domain. Section 105 of 

the Copyright Act reflects this view, specifically denying copyright 

protection to statutes and regulations. 

At its core, this issue touches on the American ideal for justice 

that we must know the laws that govern us. This right is fundamental to the rule of law that underpins our democracy, particularly when that concept of ignorance is no excuse pervades our 

process. It is also central to upholding our system of checks and 

balances, by holding Congress accountable for the legislation it 

passes or fails to pass. As we review copyright protection, in anticipation of the next generation—or, excuse me, the next great Copyright Act, we must continue to protect American’s access to laws 
140 

and justice by protecting access to public materials in the public 

domain. 

Mr. Malamud and thank you for appearing here today before us. 

I want to take this moment to thank you for your work making 

public law accessible and known. It is easy to take for granted how 

important public databases are in our increasingly digital democracy. Unless public documents are digitized and available, they are 

often out of reach of many. 

In your written testimony, sir, you note that you are currently 

publishing official State and municipal codes. As a former commissioner in DeKalb County Georgia, I appreciate the importance of 

private citizens working to improve local communities. What is the 

benefit of making bulk public data available for municipal governments? And, I will add to my comments the fact that, when you 

want to, if you are a citizen of the State of Georgia and you want 

to go and look up a code for a local political subdivision, it is very 

nice to be able to go online and be able to get that information. 

But, what is the benefit of making bulk public data available for 

municipal governments? 

Mr. MALAMUD. Thank you for your comments, Congressman 

Johnson. 

The issue we have with the Georgia code, as it currently is, is 

you can’t get the bulk data. You cannot go to the free Web site and 

download the whole thing and make it better. What happens when 

bulk data becomes available is volunteers, some commercial operations, but often simply citizens will go in and make the codes significantly more accessible, work on modern platforms. This happened in the District of Columbia just recently, in which the copyright was waived on the District of Columbia code. Several volunteers came in and they have developed a vastly better version of 

the D.C. code that informs citizens in a better way. So, by having 

the bulk data available, we encourage citizen participation in the 

process of informing each other. And that is why we care so much 

about, for example, the official code of Georgia. 

Mr. JOHNSON. How have local governments responded to making 

municipal codes widely available? 

Mr. MALAMUD. We have had significant pushback at the State 

level. At the city level they are welcoming us with open arms. The 

City of Chicago, I recently stood up with some former staff members from Congressman Issa, former Obama White House officials, 

both volunteers. We stood up with the city clerk of Chicago and unveiled a new Chicago code. San Francisco has recently revamped 

their municipal code. There are about 2,000 municipalities that are 

about to have better municipal codes available because of the efforts of these volunteers. 

Mr. JOHNSON. Thank you. 

My time is expired, so I will yield my remaining time back. 

Mr. COBLE. I thank the gentleman from Georgia. 

I am told, folks, that there will be an imminent House vote before—imminent, whatever that means. I hope we won’t have to detain our witnesses. 

So, with that in mind, I recognize the gentleman from Florida, 

Mr. DeSantis? 

Mr. DESANTIS. Thank you, Mr. Chairman. 
141 

Mr. Malamud, I am assuming you agree with the Veeck v. Southern Building Code case? 

Mr. MALAMUD. Absolutely. 

Mr. DESANTIS. I will come to that. What about the two cases, the 

circuit cases, that—we have the amicus brief here in our stuff that 

were discussed involving, one was the AMA codes and the other 

was the used car Red Book. And, in those instances, the courts 

found that there were copyright protections. So, what is your opinion on those cases? Do you agree with the outcome in those cases? 

Mr. MALAMUD. So, I am not a lawyer. I am just a citizen. But, 

my take on that is that the Veeck decision was about a crucial public safety code that had been incorporated into the law. Whereas 

the other cases were about like medical codes that needed to be 

used by doctors. And it, to me, was—the distinguishing factor was 

the extent that the public safety was at stake. And also, if you look 

at the building code, they all begin with a sample ordinance of incorporation, ‘‘We the people of—insert name of jurisdiction here— 

do hereby adopt this code.’’ So this was meant to be the law. And, 

to me, that is the difference between those cases. 

Mr. DESANTIS. And so, you think that it does—just the fact that 

government may have some type of administrative scheme or program, that something is referenced, whether it is a Red Book or 

something, you do see the distinction between those situations and 

one in which the law is adopted verbatim from one of the publications? 

Mr. MALAMUD. When I post a public safety standard, I look for 

one that has been explicitly and specifically incorporated by reference, as opposed to casually. And, in fact, we look at State codes 

and often they will mention something in passing and we keep our 

hands off those. But, when it becomes part and parcel of the law 

then, to me, the fact that it happened to be an external document 

is no different than if the State had authored that themselves. 

Mr. DESANTIS. And, Ms. Griffin, I guess, what is your position 

on Veeck v. Southern Building Code? Do you think that was incorrect? 

Ms. GRIFFIN. I think there is a sharper distinction to be drawn 

between Veeck on the one hand and the two circuit court cases that 

I cited on the other. Veeck was a very unique situation and it was 

a case that was limited to very unusual facts. In that case, the 

model code writer wrote the code with the specific intent that it be 

incorporated word for word into the law. It was, in fact, incorporated word for word into the law. And the defendant in that case 

copied the law, qua law, and not the model code. Under those circumstances the Fifth Circuit said that the—as the law, that 

these—this content loses its copyright protection. But, the court 

was quick to point out that it was a very limited case, that it did 

not apply to what they called ‘‘extrinsic standards,’’ that those are 

standards that are incorporated by reference into law, like the 

standards in the Second Circuit and Ninth Circuit cases. And so, 

I think that that makes Veeck a very limited holding and limited 

to its facts. How that might be decided today, it is unclear to me. 

Mr. DESANTIS. Well, how—and I know they use these model code 

in different areas of the law. How often do they just adopt completely verbatim, like what happened with the Veeck case, versus— 
142 

I mean, obviously, legislators can use some of these model codes as 

guidance. They don’t have to adopt it all. I mean, is that—that is 

more of a unique case, you are saying, when you are adopting everything wholesale? 

Ms. GRIFFIN. Personally, I am not—you know, my organization 

is not a standards developing organization. And I don’t have statistics at hand as to how it works. I know that some code developers 

enter into cross licensing agreements, for example with the governmental entity, such that the code could be adopted but there is a 

cite in the regulation back to the standards developing organization’s Web site for the sale of that. I think there are very different 

kinds and multiple opportunities for dealing with that situation. 

And I think that is one reason why NARA has said, in the context of its recent evaluate of this, ‘‘let us leave this to the Federal 

regulators and the SDOs to come up with a way to make access 

reasonable.’’ Because, at the end of the day, it is about access. And 

it is about whether the public has access to the standards, not how 

much they cost or if they cost something, but if they have access. 

Mr. MALAMUD. May I very briefly, when the Veeck decision was 

appealed to the Supreme Court, the Solicitor General came in and 

suggested that the Veeck decision was good law and that the Supreme Court should deny cert and the Supreme Court followed the 

Solicitor General’s recommendation. 

Mr. DESANTIS. Right. 

So, Ms. Griffin, just in terms of, as these standards and codes are 

developed by different associations or whoever is involved with 

that, I guess what is the risk for the viability of that without copyright protection? 

Ms. GRIFFIN. Oh, it is a huge risk to the standards developing 

organization. If they were not permitted to derive revenues from 

the sales of standards, then they would not be able to fund operations. And those operations include, as I said earlier: providing 

the administrative support for the development of standards to ensure that all reasonably and materially interested parties are sitting at the table, to make sure that consumers are at the table. No 

one will pay for that but the standard developing organizations 

who are mission-related and not-for-profit organizations. And they 

are able to do that how? By selling the standards and using the 

revenues. 

If, by contrast, the government was to take that process away, 

the government would have to provide that expertise. The government would have to provide that administrative support. And ultimately, the taxpayers would pay for that. So, I think it would—the 

change would result in a very profound and detrimental change to 

the way that standards are developed in this country. 

Mr. DESANTIS. Thank you. 

I think my time is expired and I will yield back. 

Mr. COBLE. I thank the gentleman. 

The distinguished lady from California, Ms. Lofgren? 

Ms. LOFGREN. Thank you, Mr. Chairman. 

I will be brief, because I want to make sure that my colleague, 

Ms. Jackson Lee, also has an opportunity to participate. 

You know, as I have listened to some of these proposals, it seems 

to me kind of interesting that people seem to have forgotten our 
143 

experience with SOPA just a year ago. I don’t think—and, I mean, 

if someone feels differently, please speak up—that the American 

public’s attitude toward SOPA has done a U-turn in the year, you 

know, that has happened since then. And the idea of the performance make available proposal really just goes in the same direction 

we were going there. That is a non-starter, in my opinion. I certainly value getting viewpoints and academic discussion, but it is 

not going to happen. 

I think one of the things that has been raised, that we should 

review, is the issue of statutory damages. And when you take a 

look at some of the really outrageous things that have happened 

with statutory damages, I think of the case of the single mother. 

The RIAA brought a case where a jury awarded $1.5 million 

against this woman for downloading 24 songs with no indication 

that she had ever even shared them, as a matter of fact. Now that 

was reduced to 54,000 because of the disproportionate nature of the 

statutory by the judge. But, to have that kind of statutory scheme 

is irrational and it needs to be changed. 

And I think back also at the orphaned works discussion. And I 

spent a long time trying to work on that and finally gave up along 

with the other Members of the Committee because of the intransigence of some of the participants. But, I think one of the things 

we ought to take a look at, you know, is what the damage that we 

did by extending the term, the copyright term. We now have a 

copyright term that basically is a century and a half. And we have 

aggravated the issue of orphaned works by doing so. Unfortunately, 

you know, you wish you could go back in time and undo some 

votes. And that is one I was convinced as a, I think I was a freshman, that the WIPO Treaty required that vote. And I now know 

that that was not the case. I wish I could undo my ‘‘yes’’ vote on 

the Sonny Bono Copyright Term Extension Act. 

Finally, I think the real value of this hearing is the issue raised 

about a standards and public law. I was going to ask unanimous 

consent to put into the record the standard test methods for lead 

in water, I don’t need to do that because my colleague, Mr. Issa, 

has already done so. But, it seems to me very clear that you cannot 

have secret law. If you are going to require people to adhere to a 

standard, that has to be in the public domain. And I am sympathetic, I understand, you know, there is a business model set up. 

But you can’t allow the business model to trump the rule of law. 

And, you know, I am mindful of the discussion that we had about 

publicly funded research. And we had a hearing here a couple of 

years ago. And the nonprofit societies that are basically funded by 

the—for their peer review process, which is essential, by the publisher. And yet—and that is a business model that actually was 

deleterious to the public’s right to have publicly funded research 

made available publicly. We have now changed that. And I think, 

over time, the way we fund nonprofit science societies is going to 

have to follow along and change as well, because they do provide 

a useful model. But you cannot allow that current business model 

to dictate the end result, which is: if you incorporate by reference 

a document that has to be part of the public record. 

And the—and, if there is a fee for example, I mean that assumes 

that the public doesn’t have an interest. If I am a contractor, you 
144 

know, maybe I can afford to pay the fee because I am going to 

make money, you know, on that. But there is a public interest in 

this. It is not just the people in the business. It is the public’s right 

to know. Is this a sufficient standard? Well, the only way you are 

going to find out, is to have free access to it. And to put up a screen 

to that, if it is a part of the law, is completely, wholly inappropriate. I agree with Mr. Issa that there is no copyright reform that 

we should support that doesn’t resolve this issue. 

And I have listened with great interest, as I say. I think, although there is academic interest in this, certainly the public spoke 

very loudly about SOPA and I don’t believe we are going to have 

the appetite to revisit that, either in our copyright laws or, frankly, 

in the TPP negotiations that are underway. You are right, we don’t 

know what they are negotiating. But, the leaks to WikiLeak are 

SOPA. And if SOPA is in TPP, it is dead in my judgment. 

With that, I see my time is expired and I yield back. 

Mr. COBLE. I thank the gentlelady. 

The gentlelady from Texas, Ms. Jackson Lee. 

Ms. JACKSON LEE. Let me thank the Chairman and the Ranking 

Member for the generosity of time. 

And I want to associate myself with my colleagues. This is an excellent panel and well-committed in this area and with a lot of history in this area, as well. 

Not enough time for our questions. I just want to go across to 

every one. I know that you spoke to different issues, and my colleague mentioned SOPA. I just want to get in this question a yes 

or no. Do you feel that Congress should wade into your particular 

issue of testimony today? 

Dr. Nimmer—Mr. Nimmer? 

Mr. NIMMER. Yes. 

Ms. JACKSON LEE. Professor Lunney? 

Mr. LUNNEY. No. 

Ms. JACKSON LEE. Professor Schultz? 

Mr. SCHULTZ. Not yet. 

Ms. JACKSON LEE. Mr. Love? 

Mr. LOVE. You should pay attention to the WIPO negotiation on 

the Broadcast Treaty. 

Ms. JACKSON LEE. Is that yes or no? 

Mr. LOVE. Okay, well—— 

Ms. JACKSON LEE. I just—— 

Mr. LOVE [continuing]. Should you legislate—should you change 

U.S. law in that area? 

Ms. JACKSON LEE. Yes or no? 

Mr. LOVE. We don’t even know what the treaty is yet. 

Ms. JACKSON LEE. All right. 

Mr. LOVE. It is a—— 

Ms. JACKSON LEE. Thank you. 

Ms. Griffin? 

Ms. GRIFFIN. No, in the sense that has been suggested by Mr. 

Malamud. 

Mr. MALAMUD. Absolutely, yes. 

Ms. JACKSON LEE. Thank you very much. 

Professor Nimmer, now Of Counsel, but I will always call you 

Professor. In your testimony, you note a scenario where a P2P user 
145 

who goes to trial is helped somewhat by the fact that a judge would 

feel that an award disproportionate with actual damages would be 

inappropriate and thus making—might be inclined to not construe 

the making available right in accord with their actual feelings 

about the law. Could you please elaborate on this? And I do have 

one or two other questions, so I am going to go quickly. And what 

would be a just recalculation of the statutory damages, so that 

Jammie Thomas-Rasset does not face a multi-billion-dollar judgment? 

And I want to ask Professor Lunney, could you expound on your 

view of the broken window parable presented in Fre ́de ́ric Bastiat’s 

parable in English, ‘‘that which is seen and that which is unseen,’’ 

if you can think of that? 

And I do want, Professor Schultz, I know that my colleague from 

Texas asked about Aereo, but if you could just expand on it a little 

bit. 

Professor Nimmer? 

Mr. NIMMER. Yes. When Jammie Thomas-Rasset was—went to 

trial, as has been noted, the award against her was at one point 

$1.5 million. She had the option of settling. The plaintiffs offered 

her a settlement that she could pay several thousand dollars to a 

charity designed for musicians and she turned it down. Because 

she had committed perjury and because the trial was so egregious, 

the jury came and hammered her. But, the question now, as I understand it, is what should be a reasonable measure—— 

Ms. JACKSON LEE. Right. That’s the—— 

Mr. NIMMER [continuing]. Of statutory damages. And, it did 

make sense, back in 1999 when Congress calibrated statutory damages, to look at how many works had been infringed because, at 

that point in time, it was not possible to infringe a hundred or ten 

thousand works. It just was physically impossible. Today with peerto-peer, it is possible. And so, Congress needs to look at what level 

of damage would be—would cause deterrence and would compensate and would be somewhat related to the harm. So, I don’t— 

I did not come here with a ready metric, but it could be several 

hundred dollars for each and every copyrighted work that was implicated or it could be $100,000 in any given lawsuit that is 

brought or another measure that is somewhere within reason and 

does not get us to the hundreds of millions of dollars. 

Ms. JACKSON LEE. Thank you. Some criteria. So, refinement, 

clarity and determining how someone could be made whole. 

Professor Lunney on your question please? 

Mr. LUNNEY. Thank you for the question. 

So, Fre ́de ́ric Bastiat writing in 1850 was explaining that when 

the government creates a subsidy program for the arts, it is not 

new money in the economy. They are taking that money from consumers, through taxes, they are giving it to the arts. There is going 

to be new employment in the arts. That is what we see. What we 

don’t see is that, by taking the money from the consumers who go 

through taxes, those consumers won’t have that money. They can’t 

spend it on something else. And so, the jobs that are lost in those 

other sectors, because consumers no longer have the money to 

spend in those other sectors, is not seen and we tend to ignore it. 

But we shouldn’t. 
146 

If you are just moving money in the economy from one jar to another, creating jobs here, losing them there, there is no net gain for 

the economy. So, if we could come up with a magic formula, wave 

our wand and stop file sharing and restore to the music industry 

some of the money it has lost, perhaps as a result of file sharing, 

that would not be a net gain in jobs for the economy. We would 

simply be forcing consumers to pay more for music, they would 

have less money to pay for everything else. And so, whatever jobs 

we gained from that revenue in the music industry, we would lose 

elsewhere in the American economy. 

Ms. JACKSON LEE. That is—let me just let Professor Schultz go 

on the Aereo. Thank you very much for that Professor Lunney. 

Professor Schultz, just a little bit more expansion on the Aereo 

case. 

Mr. SCHULTZ. Absolutely. So, in Aereo you have a company 

that—a single company distributing a TV signal to many customers. That would seem to fit the definition of a public performance. However, Aereo, through what they perceive as I would suppose it is a loophole in copyright law, are using really antiquated 

technology building an array of antennas for each of their users 

and distributing the signal. And they are not paying copyright royalties. They are not paying retransmission fees. And you have to 

ask yourself, as between the broadcasters and the creators versus 

Aereo, who has the moral and economic right to distribute those 

signals and profit from them. And I hope the Supreme Court rejects the interpretation of the law that allows Aereo to do this. But, 

if they don’t, I hope this Congress will address that. 

Ms. JACKSON LEE. Mr. Chairman, you have been gracious in your 

time. I think there are a lot of competing issues here. And I think 

we have a great respect for our artists, a great respect for broadcasters and a great respect for the posture that Professor Nimmer 

has taken and many of you have taken. And so, I thank you and 

look forward to more hearings on these important issues. 

I yield back my time. 

Mr. COBLE. I thank the gentlelady from Texas. 

Mr. Conyers and I and other Members want to express our 

thanks to the witnesses who have prevailed during this marathon 

today. But, it has been a very worthwhile, balanced presentation, 

it seems to me. 

And as I said at the outset, I appreciate those in the audience 

who have remained in its entirety. Your presence indicates more 

than a casual interest in this very, very significant issue. 

This concludes today’s hearing. 

Thanks to all of our witnesses for attending. 

Without objection, all Members will have 5 legislative days to 

submit additional written questions for the witnesses or additional 

materials for the record. 

This hearing stands adjourned. 

[Whereupon, at 12:41 p.m., the Subcommittee was adjourned.] 
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