Monday, February 27, 2012
Copyright Arbitrage in Action
Meet Aereo, a new way to watch TV on the Internet. Aereo plans to capture over-the-air TV signals and stream them to customers in the New York area. Aereo's low, low $12-a-month prices are made possible by the fact that it doesn't pay licensing fees: Aereo insists that everything it's doing is legal under copyright law because Aereo gives each user her own individual TV tuner. That's right, Areeo is filling a Brooklyn office with thousands of TV antennas.
In any sane world, Aereo would not exist. There is no practical reason to use thousands of tiny antennas rather than a few good ones; reencoding the same signals again and again is pure waste. And sending these signals from Aereo's premises to customers' homes over the Internet is intensely silly, given that these customers already have the option of video service from their cable companies.
But our world is demonstrably insane; witness the Copyright Act. One-to-many retransmission are governed by the complex "retransmission consent" rules at the intersection of copyright and communications law. But one-to-one transmissions of the sort Aereo is making are arguably not "public performances" under the Second Circuit's 2008 Cartoon Network decision. More antennas, less risk. Aereo is engaged in copyright arbitrage: it's trying to stitch together a chain of explicitly legal acts until it reaches a result that would be infringing if done directly.
It's hardly alone. ivi tried (and failed) to pull an Aereo by calling itself a "cable system" under Section 111 of the Copyright Act. ReDigi is trying to cobble together Cartoon Network and a few other precedents to make something that looks like digital first sale. Zediva tried to run this one in reverse: it filled a data center with DVD players in an attempt to bootstrap first sale rights (in the DVDs) into streaming video-on-demand. I could go on.
None of these businesses ought to exist. In a world where copyright and communications law worked cleanly, copyright owners would be licensing their works over efficient transmission paths directly to users. These technical workarounds would be unnecessary. Of course, this point can be taken in one of two ways, depending on whether you think these entrepreneurs are a second-best response to a legal system that makes arbitrary distinctions or taking unfair advantage of a legal system that makes arbitrary distinctions. But either way, their proliferation is an indication of just how badly the wheels are coming off the bus of copyright law's conceptual framework.
Saturday, February 18, 2012
In early 2010, Google apologized for the way Google Buzz had revealed people's Gmail contacts to the world. Later that year, the company announced that its Street View cars had been recording the data being transmitted over WiFi networks they drove by. And just this week, the Wall Street Journal and privacy researcher Jonathan Mayer revealed that Google had been using cookies in a way that directly contradicted what it had been telling users to do if they didn't want cookies.
Once is an accident, and twice a coincidence, but three times is a sign of a company with a compliance problem. All three of these botches went down the same way. A Google programmer implemented a feature with obvious and serious privacy implications. The programmer's goal in each case was relatively innocuous. But in each case he or she designed the feature in a way that had the predictable effect of handing people's private information in a way that blatantly violated the company's purported privacy principles. Then--and this is the scary part--Google let the feature ship without noticing the privacy time bomb it contained.
Google was founded and is run as an engineering-driven company, which has given it amazing vitality and energy and the ability to produce world-changing products. But even as the company has become a dominant powerhouse on which hundreds of millions of people depend, it continues to insist that it can run itself as a freewheeling scrum because, er, um, Google is special, Google's values are better than the competition's, and Google employees are smarter than your average bear. All of these may be true, but adult companies have adult responsibilities, and one of them is to train and supervise their employees. Google is stuck in a perpetual adolescence, and it's getting old fast.
The only other firms I can think of with this kind of sustained inability to make their internal controls stick are on Wall Street. (See, e.g.) Google has already had to pay out a $500 million fine for running advertisements for illegal pharmaceutical imports. And the company is already operating under a stringent consent decree with the FTC from the Buzz debacle. If those weren't sufficient to convince Larry Page to put his house in order, it's hard to know what will be. Sooner or later, the company will unleash on the Internet a piece of software written by the programmer equivalent of a Jérôme Kerviel or a Kweku Adoboli and it won't be pretty, for the public or for Google.
Friday, February 17, 2012
More Unforced Errors in the Copyright Act
My belief that termination of transfers is the worst provision in the Copyright Act is apparently not widely shared. Here are some of the other sections that commenters nominated instead:
- Aaron Perzanowski suggested Section 119, a 9000-word monstrosity that creates a statutory license for satellite retransmissions. It's probably the single worst offender in the Act in terms of sheer verbiage. Along similar lines, Bruce Boyden suggested Section 114(d), which deals with webcasting, but weighs in at a mere 7000 words. Both licenses "work" in the sense that they're actually used, but other than that it's hard to have much positive to say about their labyrinthine complexity. Jeffery Harrison went with Section 110(5), which is supposed to let small businesses turn on the radio. Not only does this one pack a long section's ambiguity into a short section's text, it's also gotten the United States slapped down by the World Trade Organization for violating its copyright treaty obligations.
- Paul Gowder objected to statutory damages. I'm not so sure that these are really a disaster area. Congress wanted to bring the hammer down on copyright defendants even in the absence of proof of actual harm, and while it's possible to disagree with that policy judgment, there's also a strong argument that copyright infringement frequently by its nature will result in hard-to-measure damages. If I were going to pick on a copyright remedy, I'd pick attorneys fees--and there, the problem is not bad drafting by Congress but rather loose-cannon lower courts that award fees to prevailing plaintiffs at the drop of a hat.
- "Mike" complained about fair use because it was going away. Here, I simply disagree. Fair use has to be a case-by-case balancing act requiring discretion. Section 107 does, all in all, a pretty good job of giving courts the ability to shape a common law of fair use while also directing their attention to important considerations. And, as Patricia Aufderheide and Peter Jazsi have shown, fair use remains a vibrant and useful doctrine when wielded by defendants who understand how it works.
- C.E. Petit fingered the works-made-for-hire provision in Section 201(b), together with its supporting definitions. This one probably takes home the prize for most mayhem per word. It leaves what ought to be one of the clearest questions in copyright--initial ownership of a work--under a perpetual cloud. And by vesting ownership of some works in someone other than the author, in Petit's words, it "has the additional bonus of being inconsistent with the copyright scheme of every other nation in the Berne Convention."
Tuesday, February 14, 2012
The Worst Part of Copyright: Termination of Transfers
There were some great responses to my survey about the worst provision in the Copyright Act. Bruce Boyden nailed it when he guessed I was thinking about termination of transfers. This rule lets authors revoke any licensing contract between 35 and 40 years after they enter into it. (There was a similar but different system for renewals under the 1909 Act, which also survives in modified form in the 1976 Act, just to add to the confusion.)
This is an inalienability rule. But it's not an inalienability rule that rests on a deep and shared moral intuition, like the rule prohibiting people from selling their organs as meat for the super-rich. Termination of transfers rests instead on a view that authors are "congenitally irresponsible" to the point that they can't be trusted to make licensing decisions for themselves. They need to be given a second bite at the apple because they're not smart enough to negotiate fair deals the first time around. As for the theory that it's hard to value creative works up front, apparently percentage royalties and reversion clauses are too complex for authors to understand or insist on.
Trying to impose an inalienability rule on authors and publishers who don't want it at the time they strike their original licensing deals leads to no end of practical trouble. Making the rule stick means overriding any number of contracts, including contracts specifically drafted to get around it. Litigation over decades-old agreements, frequently with intervening modifications and regrants, is virtually guaranteed to be a morass--and so it has been, with well-publicized disputes like the fight over the termination rights in Action Comics #1 dragging on for years at ridiculous expense. The courts have been fighting against this system for much of the century, but all they've really accomplished is to increase its complexity. And Congress has done its part to make the statute incomprehensible: I dare you to read Section 203(b) and explain what it's supposed to mean.
But the demented logic of inalienability doesn't stop there: it continues beyond the grave. The termination rights of a deceased author vest in the widow or widower, then the children, and then the grandchildren, on a per stirpes basis. That's right: the Copyright Act displaces state probate law by creating future estates. And it does so in the form of byzantine set of fractional shares subject to an idiosyncratic voting rule requiring a majority of majorities to exercise the termination right. (Need I add that the drafters of the Uniform Probate Code concluded that a vast majority of Americans wouldn't want per stirpes distribution if they understood how it worked? No. That would be overkill.)
The underlying assumptions behind this postmortem provision are creepy, too. The romantic author, it would appear, is both the family breadwinner and a bad provider. His family, having sacrificed for decades to support his creative efforts, will receive their reward after his passing, when his genius is belatedly recognized. Copyright law has a theory of the family: it's nuclear and dominated by a single individual on whom the rest depend. The statutory text is gender-neutral, but its assumptions aren't.
As an incentive for authorship, this a terrible one. If authors make bad up-front deals because they're unmindful of future revenues, it follows that those same future revenues won't operate as an ex ante incentive for creativity. As a welfare system to support deserving authors in their old age, it's also terrible, since it bestows large windfalls on a very small number of them, at immense administrative cost. If this is a welfare system to support the families of authors, it's beyond terrible, since it bestows windfalls on a small number of people with the good fortune to be related to a commercially successful author, while doing nothing for the families of those who toiled their whole lives in some other, equally worthy calling.
There is, I recognize, essentially zero chance that this system will be modified for the better any time soon. But that doesn't mean we have to like it.
Tomorrow: comments on readers' choices of their own least-favorite copyright rules. There's still time to add your suggestion to the list!
Monday, February 13, 2012
What's the Worst Provision in the Copyright Act?
I spend a lot of time regarding the Copyright Act with a kind of horrified fascination. Although parts are elegantly drafted, most of it is, quite frankly, a mess. So here's a quick survey: what's your least favorite provision in U.S. copyright law? Ideally, it should be one or more of the following:
- Incomprehensibly drafted
- Unpredictably applied by the courts
- Economically inefficient
- Full of traps for the unwary
- Unfair to the well-intentioned
- Ineffective at its stated purpose
- Demeaning to personal autonomy
- Disruptive to other areas of law
- (Bonus) Racist, sexist, or homophobic
I'll report on the results of the survey tomorrow, along with my own candidate.
Wednesday, February 08, 2012
ReDigi and the Purpose of First Sale
For now, at least, ReDigi lives. Judge Sullivan denied the preliminary injunction, but according to the transcript, on irreparable harm grounds rather than a lack of likelihood of success on the merits. The case is set for rapid progress towards trial, quite possibly on stipulated facts.
I'd like to take up one of the central questions in the case: first sale. Whether you think ReDigi ought to win certainly turns on your view of what first sale is for. So too, may the legal merits. How you interpret statutory text like "owner" or "sell" may depend on on your theory of what kinds of transfers Congress meant to protect. And even if ReDigi's particular form of transfer falls outside of the text of first sale itself, the arguments for and against fair use can draw on first sale principles. Here, then, are some competing theories:
Conservation of copies: Copyright is fundamentally copy-right: the ability to prevent unauthorized copying. Practices that don't increase the total number of copies in existence don't fundamentally threaten the copyright owner's core interests. First sale blesses one of those practices: moving a copy for which the copyright owner has already been paid from one set of hands to another. On this theory, ReDigi is okay because it forces sellers to delete their copy of the music, thereby keeping the number of extant copies constant.
Freedom of alienation: First sale protects the rights of owners of personal property against copyright claims that might interfere with their right to use their property as they wish. This idea is sometimes described in terms of "servitudes on chattels" or "exhaustion" of the copyright owner's rights. We could also think of it as a negotiability regime promoting free transferability of personal property, given the information and transaction costs involved in allowing third-party copyright claims. On this theory, ReDigi is in trouble because it deals in information, rather than in tangible objects.
Copyright balancing: First sale is one of a cluster of doctrines that shape the level of control copyright owners have over the market (economic and cultural) for their works. If that balance changes over time, the doctrines should be recalibrated to restore it. Since the reproduction right has expanded to cover all sorts of computer-based uses such as loading a file into memory, the first sale defense should expand to maintain the same rough level of control. On this theory, ReDigi should win, because it would preserve roughly the same levels of freedom for users and control for owners as they had in an analog era.
Copyright balancing: Or wait ... if the goal is balancing, then perhaps ReDigi should lose. First sale used to be practically restricted by the facts that physical copies wear out and that exchanging physical objects takes time and money. ReDigi would blow those practical limits away, disrupting the first sale balance in the direction of too little control for copyright owners. In the face of rampant illegal file-sharing, why should a court, in effect, legalize the process by allowing ReDigi to serve as a super-low-friction intermediary?
What I love about this case is that it pushes and pulls our intuitions about copyright in so many different directions. It brings up fundamental questions not just about unsettled corners of doctrine, but also about what copyright is for. It offers grist for every mill, food for every kind of thought.
Friday, February 03, 2012
The Used CD Store Goes Online
On Monday, Judge Sullivan of the Southern District of New York will hear argument on a preliminary injunction motion in Capitol Records v. ReDigi, a copyright case that could be one of the sleeper hits of the season. ReDigi is engaged in the seemingly oxymoronic business of "pre-owned digital music" sales: it lets its customers sell their music files to each other. Capitol Records, unamused, thinks the whole thing is blatantly infringing and wants it shut down, NOW.
There are oodles of meaty copyright issues in the case -- including many that one would not think would still be unresolved at this late date. ReDigi is arguing that what it's doing is protected by first sale: just as with physical CDs, resale of legally purchased copies is legal. Capitol's counter is that no physical "copy" changes hands when a ReDigi user uploads a file and another user downloads it. This disagreement cuts to the heart of what first sale means and is for in this digital age. ReDigi is also making a quiver's worth of arguments about fair use (when users upload files that they then stream back to themselves), public performance (too painfuly technical to get into on a general-interest blog), and the responsibility of intermediaries for infringements initiated by users.
I'd like to dwell briefly on one particular argument that ReDigi is making: that what it is doing is fully protected under section 117 of the Copyright Act. That rarely-used section says it's not an infringement to make a copy of a "computer program" as "an essential step in the utilization of the computer program." In ReDigi's view, the "mp3" files that its users download from iTunes and then sell through ReDigi are "computer programs" that qualify for this defense. Capitol responds that in the ontology of the Copyright Act, MP3s are data ("sound recordings," to be precise), not programs.
I winced when I read these portions of the briefs.
In the first place, none of the files being transferred through ReDigi are MP3s. ReDigi only works with files downloaded from the iTunes Store, and the only format that iTunes sells in is AAC (Advanced Audio Coding), not MP3. It's a small detail, but the parties' agreement to a false "fact" virtually guarantees that their error will be enshrined in a judicial opinion, leading future lawyers and courts to think that any digital music file is an "MP3."
Worse still, the distinction that divides ReDigi and Capitol -- between programs and data -- is untenable. Even before there were actual computers, Alan Turing proved that there is no difference between program and data. In a brilliant 1936 paper, he showed that any computer program can be treated as the data input to another program. We could think of an MP3 as a bunch of "data" that is used as an input to a music player. Or we could think of the MP3 as a "program" that, when run correctly, produces sound as an output. Both views are correct -- which is to say, that to the extent that the Copyright Act distinguishes a "program" from any other information stored in a computer, it rests on a distinction that collapses if you push too hard on it. Whether ReDigi should be able to use this "essential step" defense, therefore, has to rest on a policy judgment that cannot be derived solely from the technical facts of what AAC files are and how they work. But again, since the parties agree that there is a technical distinction and that it matters, we can only hope that the court realizes they're both blowing smoke.
Saturday, December 24, 2011
From the Dumb Props Department Files...
So, I read that Louis Vuitton is suing Warner Brothers for the line "Careful, that is a Louis Vuitton" in the movie "The Hangover II." This got my hackles up - after all this IS a nominative use, unlike Bella's Twighlight Jacket, and it is a non-trademark use - a description of the bag that's presumably being damaged by hijinx and shenanigans (I haven't seen the movie yet, so I don't know).
Except, of course, that it wasn't a Louis Vuitton bag - it was a knockoff. And that can create problems. After all, the use is no longer nominative, and no longer a fair description. Now there is a chance of consumer confusion - people might think the knockoff is a Louis Vuitton and be fooled into thinking that the sub-par stitching (so clearly visible on the screen - yeah right) is Louis Vuitton's and of poor quality. Trademark people call this "post-sale confusion," like the kind that comes when you wear a $10 Rolexxx. You weren't fooled, but others might be fooled.
There's one problem with the argument - under the Lanham Act, Section 43(a), the unlawful behavior must use the mark in connection with goods and services. That is, a trademark use. Thus, we hold the seller of the Rolexxx liable, but not the wearer, because the wearer is not making a trademark use - they are not using it in connection with goods and services.
That, I suspect, won't stop Louis Vuitton (or sadly, the courts) here. I suspect that the finding will be that the movie is a "good or service" and that use of the name "Louis Vuitton" will be "in connection" with the movie, and confusing, and thus create liability. I can't imagine this is what the authors of the Lanham Act had in mind. Nevertheless, courts have accepted survey evidence that credits consumers who think that the movie must have gotten a sponsorship deal with Louis Vuitton, even if they did not. In other words, courts are willing to find a trademark use just because consumers think there was one, even if there wasn't.
So, this is another one of those "don't do it" cases. I'm all for pushing the envelope of non-trademark use by having studios refuse to pay just for the right to utter the name of a famous mark. But it is a bad idea indeed to then use a knockoff in the movie.
Tuesday, December 20, 2011
Patenting Medical Diagnostics...
The Supreme Court heard oral argument in Mayo v. Prometheus Labs. The case will hopefully provide some guidance on the patenting of medical diagnostics, but because the patent suffers from some real drawbacks, I'm not so sure. I'll explain why below. If you are interested in more detail, my 2008 article "Everything is Patentable" discusses the issues in depth.
The types of patents we are talking about are methods, not things. So, let's say I discover that pregnant women have measurable levels of the hCG hormone, where non-pregnant women do not. Having discovered this, I might try to claim the following:
A method for diagnosing pregnancy in a human female, comprising:
a) testing for the presence of hCG in blood; and
b) diagnosing pregnancyif such hCG is present.
This is not a patent on any particular test - it is a patent on every use of the test that measures for the hormone. Of course, one can measure for hCG without trying to diagnose pregnancy, and that would not be infringing. That said - and here's the problem for labs - if there is no other purpose for the test, or if the test is ordered for a particular purpose, then one may be liable for administering the test even if one is not doing the last step - the diagnosing.
Among others, there are three primary complaints about these types of claims.
First, some worry that such claims bar thought (the diagnosing). I'm not worried much about such worries. The claim is for more than thought - it is for the ordering of a particular test to diagnose a particular condition (and note that doctors are generally immune from infringement). Also, it should make little difference that the diagnosing step is in the mind - imagine a machine that reads the number and a light goes off (or a stick that shows a plus sign if you are pregnant). Whether you think that these types of methods should be patented or not, the reason to go one way or the other shouldn't depend on the happenstance of form.
Second, some worry that such claims are simply a patent on the prior art with thought added to the end. For example, if there were pre-existing hCG tests, then one should not be able to patent practicing the prior art with the added "correlative" step of diagnosing a pregnancy. I'm on the fence about this concern. On the one hand, if the solution is obvious, then we shouldn't allow patents. On the other hand, we have long given patents for new uses of old stuff. This includes new treatments using known medicine - Viagra, for example, was developed to treat blood pressure. We grant such patents because we want inventive activity to find these new uses, and it is not clear why new uses of old tests should be any different. Of course, people may develop better tests, or use existing tests for other purposes.
Third, some worry that this type of claim covers "laws of nature." This is where the action is. Courts have long said (mostly in repeated dicta rather than actual rulings on disputed patent claims) that laws of nature are not patentable. But what exactly is an unpatented law of nature, and what is a patentable application of a law of nature? Even if we were to accept that laws of nature are unpatentable, the natural law in the above example appears to be the production of hCG by pregnant women. So, if I tried to claim production of hCG by pregnant women, I could not patent that.
Viewed this way, of course laws of nature are not patentable - they aren't new, they aren't invented by the patentee, and they lack practical utility because they don't do anything - they just are. Furthermore, they aren't processes at all because they are not a series of steps that achieve some end. But when you use the law of nature to provide some new public benefit that is discovered by the patentee, that is an application of a law of nature, and that is patentable. My coauthors and I make a similar argument with respect to the application of abstract ideas in our Stanford Law Review article "Life After Bilski." Indeed, there are many, many creative diagnostic/measurement tests dating back to the early 1800's for measuring one thing by looking at something else that's "naturally" related. These are not all laws of nature - they are applications of newly discovered laws of nature to a useful end.
Despite the seemingly unassailable logic of the preceding argument, many people (shockingly!) disagree with me. Their argument is that allowing the application of the law of nature would preempt all uses of the law of nature itself, and that is a bad thing. I'm skeptical of this counter-argument for three reasons. One, everything boils down to something natural, and deciding when naturalness ends is too difficult an inquiry. Two, except in very rare cases, a diagnostic test does not bar the natural principle, it just rewards those who figure out why the principle is important. If we are worried about the inability to perform medical tests, then we should handle the problem with compulsory licenses rather than removing the incentive to invest in invention from the equation. Three, there is nothing naturally occuring about the test in the Prometheus case. The drug administered is human-made, and the metabolite measured in the claim does not exist in nature. Thus, testing for the metabolite is something that only happens if you change nature with something unnatural. But it would make little sense for that to be the dividing line on diagnostics - whatever concerns one has about them, they don't go away if just because they are measuring something that doesn't happen naturally.
Both those who agree with me and those who don't are hoping for some clarity from the Prometheus case. Sadly, I think that clarity is not going to come, just like it did not come in Bilski with software and business methods patents. I think clarity is elusive in these cases because clarity is impossible to achieve, as I argue in Everything is Patentable; defining the exception is just too difficult.
But, more than that, clarity won't come because of the peculiar facts of this case - in short, the patent claim is problematic:
(1) A method of optimizing therapeutic efficacy for treatment of an immune-mediated gastrointestinal disorder, comprising:
(a) administering a drug providing 6-thioguanine to a subject having said immune-mediated gastrointestinal disorder; and
(b) determining the level of 6-thioguanine in said subject having said immune-mediated gastrointestinal disorder,
wherein the level of 6-thioguanine less than about 230 pmol per 8x10^8 red blood cells indicates a need to increase the amount of said drug subsequently administered to said subject and
wherein the level of 6-thioguanine greater than about 400 pmol per 8x10^8 red blood cells indicates a need to decrease the amount of said drug subsequently administered to said subject.
Here are some of the problems:
- There is no diagnosing step. It's a minor point, but an important one. If there is no diagnosing step, then one can infringe the patent by merely performing the test - a test that I believe was already known. It may be a small point to add an element of actually adjusting the dosage, but doing so takes the claim out of the realm of exactly the prior art and into the realm of diagnosing. Bear in mind that Mayo was sued in part because it developed a new test for the metabolite.
- This is not really a diagnostic patent. It is not measuring something to determine some condition. Instead, it is a dosage adjustment patent. This, too, should be patentable on general principles, but it seems awfully obvious. If there's too little, then give more. If there's too much, then give less. Granted, the patent claims specific numbers, but finding the right range is something that would be obvious to try once you have a test in the first place. Anyone with a thyroid disease knows this - you start with the lowest dosage of synthroid and then go up until the TSH falls within a range. The patent here is claiming such a range, but finding the range seems obvious- when people get sicker or have side effects, you are outside the range and when people get better, you are inside the range. The real invention is discovering how to measure the metabolite of the drug, but the test for finding the metabolite isn't a subject of this patent.
These two problems mean that the patent should be rejected outright, and that the patent isn't really even claiming a natural principle. Instead, it is claiming the use of a pre-existing test and some obvious thought about one might do about the test (but holding people liable even if they don't do it). Thus, there are many reasons to reject this patent without speaking to the core question - what to do about patenting medical diagnostics. We'll see how the Court handles it, but my worry is (as it was in Bilski) that a problematic claim will cloud the key issue. A better test would have been a really great, inventive diagnostic test that relies on a natural principle. The Court had such a case in the past (the Lab Corp. case), but procedural failures by the defendant precluded real consideration of the issue.
Monday, December 19, 2011
Breaking the Net
Mark Lemley, David Post, and Dave Levine have an excellent article in the Stanford Law Review Online, Don't Break the Internet. It explains why proposed legislation, such as SOPA and PROTECT IP, is so badly-designed and pernicious. It's not quite clear what is happening with SOPA, but it appears to be scheduled for mark-up this week. SOPA has, ironically, generated some highly thoughtful writing and commentary - I recently read pieces by Marvin Ammori, Zach Carter, Rebecca MacKinnon / Ivan Sigal, and Rob Fischer.
There are two additional, disturbing developments. First, the public choice problems that Jessica Litman identifies with copyright legislation more generally are manifestly evident in SOPA: Rep. Lamar Smith, the SOPA sponsor, gets more campaign donations from the TV / movie / music industries than any other source. He's not the only one. These bills are rent-seeking by politically powerful industries; those campaign donations are hardly altruistic. The 99% - the people who use the Internet - don't get a seat at the bargaining table when these bills are drafted, negotiated, and pushed forward.
Second, representatives such as Mel Watt and Maxine Waters have not only admitted to ignorance about how the Internet works, but have been proud of that fact. They've been dismissive of technical experts such as Vint Cerf - he's only the father of TCP/IP - and folks such as Steve King of Iowa can't even be bothered to pay attention to debate over the bill. I don't mind that our Congresspeople are not knowledgeable about every subject they must consider - there are simply too many - but I am both concerned and offended that legislators like Watt and Waters are proud of being fools. This is what breeds inattention to serious cybersecurity problems while lawmakers freak out over terrorists on Twitter. (If I could have one wish for Christmas, it would be that every terrorist would use Twitter. The number of Navy SEALs following them would be... sizeable.) It is worrisome when our lawmakers not only don't know how their proposals will affect the most important communications platform in human history, but overtly don't care. Ignorance is not bliss, it is embarrassment.
Cross-posted at Info/Law.
Posted by Derek Bambauer on December 19, 2011 at 01:49 PM in Blogging, Constitutional thoughts, Corporate, Current Affairs, Film, First Amendment, Information and Technology, Intellectual Property, Law and Politics, Music, Property, Television, Web/Tech | Permalink | Comments (1) | TrackBack
Wednesday, December 14, 2011
Six Things Wrong with SOPA
America is moving to censor the Internet. The PROTECT IP and Stop Online Piracy Acts have received considerable attention in the legal and tech world; SOPA's markup in the House occurs tomorrow. I'm not opposed to blacklisting Internet sites on principle; however, I think that thoughtful procedural protections are vital to doing so in a legitimate way. Let me offer six things that are wrong with SOPA and PROTECT IP: they harm cybersecurity, are wildly overbroad and vague, enable unconstitutional prior restraint, undercut American credibility on Internet freedom, damage a well-working system for online infringement, and lack any empirical justification whatsoever. And, let me address briefly Floyd Abrams's letter in support of PROTECT IP, as it is frequently adverted to by supporters of the legislation. (The one-word summary: "sellout." The longer summary: The PROTECT IP letter will be to Abrams' career what the Transformersmovie was to that of Orson Welles.)
- Cybersecurity - the bills make cybersecurity worse. The most significant risk is that they impede - in fact, they'd prevent - the deployment of DNSSEC, which is vitally important to reducing phishing, man-in-the-middle attacks, and similar threats. Technical experts are unanimous on this - see, for example, Sandia National Laboratories, or Steve Crocker / Paul Vixie / Dan Kaminsky et al. Idiots, like the MPAA's Michael O'Leary, disagree, and simply assert that "the codes change." (This is what I call "magic elf" thinking: we can just get magic elves to change the Internet to solve all of our problems. Congress does this, too, as when it includes imaginary age-verifying technologies in Internet legislation.) Both bills would mandate that ISPs redirect users away from targeted sites, to government warning notices such as those employed in domain name seizure cases. But, this is exactly what DNSSEC seeks to prevent - it ensures that the only content returned in response to a request for a Web site is that authorized by the site's owner. There are similar problems with IP-based redirection, as Pakistan's inadvertent hijacking of YouTube demonstrated. It is ironic that at a time when the Obama administration has designated cybersecurity as a major priority, Congress is prepared to adopt legislation that makes the Net markedly less secure.
- Wildly overbroad and vague- the legislation (particularly SOPA) is a blunderbuss, not a scalpel. Sites eligible for censoring include those:
- primarily designed or operated for copyright infringement, trademark infringement, or DMCA § 1201 infringement
- with a limited purpose or use other than such infringement
- that facilitate or enable such infringement
- that promote their use to engage in infringement
- that take deliberate actions to avoid confirming high probability of such use
If Flickr, Dropbox, and YouTube were located overseas, they would plainly qualify. Targeting sites that "facilitate or enable" infringement is particularly worrisome - this charge can be brought against a huge range of sites, such as proxy services or anonymizers. User-generated content sites are clearly dead. And the vagueness inherent in these terms means two things: a wave of litigation as courts try to sort out what the terminology means, and a chilling of innovation by tech startups.
- Unconstitutional prior restraint - the legislation engages in unconstitutional prior restraint. On filing an action, the Attorney General can obtain an injunction that mandates blocking of a site, or the cutoff of advertising and financial services to it - before the site's owner has had a chance to answer, or even appear. This is exactly backwards: the Constitution teaches that the government cannot censor speech until it has made the necessary showing, in an adversarial proceeding - typically under strict scrutiny. Even under the more relaxed, intermediate scrutiny that characterizes review of IP law, censorship based solely on the government's say-so is forbidden. The prior restraint problem is worsened as the bills target the entire site via its domain name, rather than focusing on individualized infringing content, as the DMCA does. Finally, SOPA's mandatory notice-and-takedown procedure is entirely one-sided: it requires intermediaries to cease doing business with alleged infringers, but does not create any counter-notification akin to Section 512(g) of the DMCA. The bills tilt the table towards censorship. They're unconstitutional, although it may well take long and expensive litigation to demonstrate that.
- Undercuts America's moral legitimacy - there is an irreconciliable tension between these bills and the position of the Obama administration - especially Secretary of State Hillary Clinton - on Internet freedom. States such as Iran also mandate blocking of unlawful content; that's why Iran blocked our "virtual embassy" there. America surrenders the rhetorical and moral advantage when it, too, censors on-line content with minimal process. SOPA goes one step farther: it permits injunctions against technologies that circumvent blocking - such as those funded by the State Department. This is fine with SOPA adherents; the MPAA's Chris Dodd is a fan of Chinese-style censorship. But it ought to worry the rest of us, who have a stake in uncensored Internet communication.
- Undercuts DMCA - the notice-and-takedown provisions of the DMCA are reasonably well-working. They're predictable, they scale for both discovering infringing content and removing it, and they enable innovation, such as both YouTube itself and YouTube's system of monetizing potentially infringing content. The bills shift the burden of enforcement from IP owners - which is where it has traditionally rested, and where it belongs - onto intermediaries. SOPA in particular increases the burden, since sites must respond within 5 days of a notification of claimed infringement, with no exception for holidays or weekends. The content industries do not like the DMCA. That is no evidence at all that it is not functioning well.
- No empirical evidence - put simply, there is no empirical data suggesting these bills are necessary. The content industries routinely throw around made-up numbers, but they have been frequently debunked. How important are losses from foreign sites that are beyond the reach of standard infringement litigation, versus losses from domestic P2P networks, physical infringement, and the like? Data from places like Switzerland suggests that losses are, at best, minimal. If Hollywood wants America to censor the Internet, it needs to make a convincing case based on actual data, and not moronic analogies to stealing things off trucks. The bills, at their core, are rent-seeking: they would rewrite the law and alter fundamentally Internet free expression to benefit relatively small yet politically powerful industries. (It's no shock two key Congressional aides who worked on the legislation have taken jobs in Hollywood - they're just following Mitch Glazier, Dan Glickman, and Chris Dodd through the revolving door.) The bills are likely to impede innovation by the far larger information technology industry, and indeed to drive some economic activity in IT offshore.
The bills are bad policy and bad law. And yet I expect one of them to pass and be signed into law. Lastly, the Abrams letter: Noted First Amendment attorney Floyd Abrams wrote a letter in favor of PROTECT IP. Abrams's letter is long, but surprisingly thin on substantive legal analysis of PROTECT IP's provisions. It looks like advocacy, but in reality, it is Abrams selling his (fading) reputation as a First Amendment defender to Hollywood. The letter rehearses standard copyright and First Amendment doctrine, and then tries to portray PROTECT IP as a bill firmly in line with First Amendment jurisprudence. It isn't, as Marvin Ammori and Larry Tribe note, and Abrams embarrasses himself by pretending otherwise. Having the government target Internet sites for pre-emptive censorship, and permitting them to do so before a hearing on the merits, is extraordinary. It is error-prone - look at Dajaz1 and mooo.com. And it runs afoul of not only traditional First Amendment doctrine, but in particular the current Court's heightened protection of speech in a wave of cases last term. Injunctions affecting speech are different in character than injunctions affecting other things, such as conduct, and even the cases that Abrams cites (such as Universal City Studios v. Corley) acknowledge this. According to Abrams, the constitutionality of PROTECT IP is an easy call. That's only true if you're Hollywood's sockpuppet. Thoughtful analysis is far harder.
Cross-posted at Info/Law.
Posted by Derek Bambauer on December 14, 2011 at 09:07 PM in Constitutional thoughts, Culture, Current Affairs, Film, First Amendment, Information and Technology, Intellectual Property, Law and Politics, Music, Property, Web/Tech | Permalink | Comments (1) | TrackBack
On the Move
Jane Yakowitz and I have accepted offers from the University of Arizona James E. Rogers College of Law. We're excited to join such a talented group! But, we'll miss our Brooklyn friends. Come visit us in Tucson!
Posted by Derek Bambauer on December 14, 2011 at 05:39 PM in Current Affairs, Getting a Job on the Law Teaching Market, Housekeeping, Information and Technology, Intellectual Property, Life of Law Schools, Teaching Law, Travel | Permalink | Comments (2) | TrackBack
Saturday, December 10, 2011
Copyright and Your Face
The Federal Trade Commission recently held a workshop on facial recognition technology, such as Facebook's much-hated system, and its privacy implications. The FTC has promised to come down hard on companies who abuse these capabilities, but privacy advocates are seeking even stronger protections. One proposal raised was to provide people with copyright in their faceprints or facial features. This idea has two demerits: it is unconstitutional, and it is insane. Otherwise, it seems fine.
Let's start with the idea's constitutional flaws. There are relatively few constitutional limits on Congressional power to regulate copyright: you cannot, for example, have perpetual copyright. And yet, this proposal runs afoul of two of them. First, imagine that I take a photo of you, and upload it to Facebook. Congress is free to establish a copyright system that protects that photo, with one key limitation: I am the only person who can obtain copyright initially. That's because the IP Clause of the Constitution says that Congress may "secur[e] for limited Times to Authors... the exclusive Right to their respective Writings." I'm the author: I took the photograph (copyright nerds would say that I "fixed" it in my camera's memory). The drafters of the Constitution had good reason to limit grants of copyright to authors: England spent almost 150 years operating under a copyright-like monopoly system that awarded entitlements to a distributor, the Stationer's Company. The British crown had an excellent reason for giving the Company a monopoly - the Stationer's Company implemented censorship. Having a single distributor with exclusive rights gives a government but one choke point to control. This is all to say that Congress can only give copyright to the author of a work, and the author is the person who creates / fixes it (here, the photographer). It's unconstitutional to award it to anyone else.
Second, Congress cannot permit facts to be copyrighted. That's partly for policy reasons - we don't want one person locking up facts for life plus seventy years (the duration of copyright) - and partly for definitional ones. Copyright applies only to works of creative expression, and facts don't qualify. They aren't created - they're already extant. Your face is a fact: it's naturally occurring, and you haven't created it. (A fun question, though, is whether a good plastic surgeon might be able to copyright the appearance of your surgically altered nose. Scholars disagree on this one.) So, attempting to work around the author problem by giving you copyright protection over the configuration of your face is also out. So, the proposal is unconstitutional.
It's also stupid: fixing privacy with copyright is like fixing alcoholism with heroin. Copyright infringement is ubiquitous in a world of digital networked computers. Similarly, if we get copyright in our facial features, every bystander who inadvertently snaps our picture with her iPhone becomes an infringer - subject to statutory damages of between $750 and $30,000. Even if few people sue, those who do have a powerful weapon on their side. Courts would inevitably try to mitigate the harsh effects of this regime, probably by finding most such incidents to be fair use. But that imposes high administrative costs, and fair use is an equitable doctrine - it invites courts to inject their normative views into the analysis. It also creates extraordinarily high administrative costs. It's already expensive for filmmakers, for example, to clear all trademarked and copyrighted items from the zones they film (which is why they have errors and omissions insurance). Now, multiply that permissions problem by every single person captured in a film or photograph. It becomes costly even to do the right thing - and leads to strategic behavior by people who see a potential defendant with deep pockets.
Finally, we already have an IP doctrine that covers this area: the right of publicity (which is based in state tort law). The right of publicity at least has some built-in doctrinal elements that deal with the problems outlined above, such as exceptions when one's likeness is used in a newsworthy fashion. It's not as absolute as copyright, and it lacks the hammer of statutory damages, which is probably why advocates aren't turning to it. But those are features, not bugs.
Privacy problems on social networks are real. But we need to address them with thoughtful, tailored solutions, not by slapping copyright on the problem and calling it done.
Cross-posted at Info/Law.
Posted by Derek Bambauer on December 10, 2011 at 06:03 PM in Constitutional thoughts, Corporate, Culture, Current Affairs, Film, First Amendment, Information and Technology, Intellectual Property, Property, Torts | Permalink | Comments (4) | TrackBack
Tuesday, December 06, 2011
Cry Baby Cry
The project to crowdsource a Tighter White Album (hereinafter TWA) is done, and we’ve come up with a list of 15 songs that might have made a better end product than the original. Today I want to discuss whether I've done something wrong, legally or morally.
I am no expert on European law, or its protection of the moral rights of the author, but I was reminded by Howard Knopf that my hypothetical exercise could generate litigation, as the author has rights against the distortion or mutilation of the work, separate from copyright protection. The current copyright act in the UK bars derogatory "treatments" of the work. A treatment can include "deletion from" the original, and the TWA is just that -- 15 songs were trimmed from the trimmed White Album, ostensibly to make something "better than" the original. To the extent the remaining Beatles and their heirs can agree on anything, it might be the sanctity of the existing discography in its extant form, at least as it encapsulates the end product stemming from the individual proclivities of the Beatles at the time. But see Free as a Bird. Fans and critics reacted strongly to Danger Mouse's recent splice of Jay-Z's Black Album and the Beatles' White Album, with one critic describing it as "an insult to the legacy of the Beatles (though ironically, probably intended as a tribute)". Could the TWA implicate the moral rights of the Beatles?
On one level, I and my (perhaps unwitting) co-conspirators are doing nothing more than music fans have done for generations: debating which songs of an artist's body of work merit approval and which merit approbrium. Coffee houses and bars are often filled with these discussions. Rolling Stones has made a cottage industry of ranking and reranking the top songs and albums of the recent past and in recent memory. This project is no different.
On the other hand, I am suggesting, by having the audacity to conduct this survey and publish the results, that the lads from Liverpool did it wrong, were too indulgent, etc., in releasing the White Album in its official form. That's different from saying "Revolution #9" is "not as good" as "Back in the U.S.S.R." (or vice versa). But to my eyes, it falls short of distortion.
Moral rights in sound recordings and musical compositions are not explicitly protected under the Copyright Act. In one case predating the effective date of the current Act, the Monty Python troupe was granted an injunction against the broadcast of its skits in heavily edited form on U.S. television, but that case was grounded more in contract law (ABC having exceded the scope of its license) and a right not to have the hack job attributed to the Pythons under the Lanham Act.* The TWA doesn't edit individual songs, and whilte the Monty Python case protected 30 minute Python episodes as a cohesive whole, it is difficult to argue that the copyright owners of the White Album are necessarily committed to the same cohesive view of the White Album, to the extent they sell individual songs online. One can buy individual Beatles songs, even from the White Album. Once you can buy individual tracks, can there really be moral rights implications in posting my preferred version of the album in a format that allows you to go and buy it?
On to the standard rights protected under U.S. copyright law. Yesterday, I talked about the possibility that the list itself might be a compilation, with protectable creativity in the selection. Might the TWA also be an unauthorized derivative work, exposing me to copyright liability? A derivative work is one "based on" a preexisting work, in which the original is "recast, transformed or adapted." That's similar to the language used to describe a treatment under UK law. Owners of sound recordings often release new versions, with songs added, outtakes included, and bonus art, ostensibly to sell copies to consumers who already purchased them. I certainly didn't ask the Beatles (or more precisely, the copyright owner of the White Album) for permission to propose a shortened album, but what I have done looks like an abridgement of the sort that might fall into traditional notions of fair use.
Once upon a time, I might have made a mixtape and distributed it to my dearest friends (although when I was young, the 45 minute tape was optimal, so I might have been forced to cut another song or two). Committing my findings to vinyl, compact disc, or mp3, using the original recordings, technically violate 17 USC 106(1)'s prohibition on unauthorized reproduction. If I give an unauthorized copy to someone else, I violate the exclusive right to distribute under section 106(3). Unlike the public performance and display rights, there is no express carve out for "private" copying and/or distribution, although it was historically hard to detect. The mixtape in its analog form seems like the type of private use that should be permitted under any reasonable interpretation of fair use, if not insulated by statute.
If I send my digital mixtape to all of my Facebook friends, that seems a bridge too far. However, Megan Carpenter has suggested that by failing to make room for the mix tape in the digital environment, copyright law "breeds contempt." 11 Nev. L.J. 44, 79-80 (2010). Jessica Litman, Joseph Liu, Glynn Lunney and Rebecca Tushnet, among others, have argued that space for personal consumption is as important in the digital realm as it was in the good old days when everything was analog.
If I instead use social networking tools like Spotify Social** to share my playlist, I probably don't infringe the 106(4, 6) public performance right. Because I use authorized channels, any streaming you do to preview my playlist is likely authorized. And if I post the playlist on iTunes, you can go and buy it as constituted. That seems somewhat closer to an unauthorized copy, but it's not actually unauthorized. The Beatles sell individual singles through iTunes, so it seems problematic to conclude that consumers are not authorized to buy only those songs they prefer.
So all in all, given that I'm not running a CD burner in my office, I think I'm in the clear. What do you think?
*A recent Supreme Court decision puts in doubt the Lanham Act portion of the Monty Python holding.
**The Spotify Social example is complicated by the fact that the Beatles aren't included, although I have found reasonable covers of all the songs included on the TWA. The copyright act explicitly provides for a compulsory license to make cover tunes, so long as the cover doesn't deviate too drastically from the original. 17 USC § 115(a). If the license was paid, and the copyright owner notified, those songs are authorized. My repackaging of them in a virtual mixtape, however, is not. 17 U.S.C. § 114(b).
Monday, December 05, 2011
While My (Favorite Beatles Song) Gently Weeps
The voting is done and the world has (or 264 entities voting in unique user sessions have) selected the songs for "The Tighter" White Album (hereinafter TWA). The survey invited voters to make pairwise comparisons between two Beatles songs, under the premise that one could be kept, and one would be cut.
There are several copyright-related implications of my experiment, and I wanted to unpack a few of them. Today, my thoughts on the potential authorship and ownership of the list itself. Tomorrow, a few thoughts on moral rights, whether I’ve done something wrong, and whether what I've done is actionable. [Edited to add hyperlink to Part II]
But first, the results -- An album's worth of music (two sides no longer than 24:25 each, the length of Side Four of the original), ranked from strongest to weakest:
While My Guitar Gently Weeps
Back in the USSR
Happiness is a Warm Gun
I'm So Tired
Mother Nature's Son
Cry Baby Cry
How did the voters do? Very well, by my estimation. I was pleasantly surprised by the balance. McCartney and Lennon each sang (which by this point in their career was a strong signal of primary authorship) 12 of the 30 tracks, and each had 7 selections on the TWA. (John also wrote "Good Night," which was sung by Ringo and overproduced at Paul's behest, so I think it can be safely cabined.) Only one of George Harrison's four compositions, "While My Guitar Gently Weeps," made the cut, but was the strongest finalist. Ringo's "Don't Pass Me By," no critical darling, did poorly in the final assessment.*
It's possible, although highly unlikely in this instance, that the list of songs is copyrightable expression. As a matter of black letter law, one who compiles other copyrighted works may secure copyright protection in the
collection and assembiling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.
Protection only extends to the material contributed by the author. The Second Circuit has found copyrightable expression in the exercise of judgment as expressed in a prediction about the price of used cars over the next six months, even where the prediction was striving to map as close as possible to the actual value of cars in those markets. Other Second Circuit cases recognize copyright protection in the selection of terms of venery -- labels for groups of animals (e.g., a pride of lions) and in the selection of nine pitching statistics from among scores of potential stats. In each of these cases, there was some judgment exercised about what to include or what not to include.
In this case, I proposed the question, put together the survey, monitored the queue, and recruited respondents through various channels. The voting, however, was actually done by multiple individuals selecting between pairs of songs. It's difficult to paint that as a "work of authorship" in any traditional sense of the phrase. I set up the experiment and then cut it loose. I could have made my own list (and have, but I won't bore you with that), and that list would have been my own work of authorship. This seems like something different, because I'm not making any independent judgment (other than the decision to limit the length of the TWA to twice the length of the longest side of the White Album).
Let's assume for a moment that there is protectable expression, even though I crowdsourced the selection process. Could it be that all 246 voters are joint authors with me in this work? It seems unlikely. The black letter test asks (1) whether we all intended our independent, copyrightable contributions to merge into an inseparable whole, and (2) whether we intended everyone to be a co-author. It's hard to call an individual vote between two songs a separately copyrightable contribution, even with the prompt: "The Beatles' White Album might have been stronger with fewer songs. Which song would you keep?" By atomizing the decision, I might be insulated from claims that individual voters are co-authors of the final list, although I suggested that there was something cooperative about this event in my description of the vote:
We’re crowdsourcing a “Tighter White Album.” Some say the White Album would have been better if it was shorter, which requires cutting some songs. Together, we can work it out. For each pair, vote for the song you would keep. Vote early and often, and share this with your friends. The voting will go through the end of November.
Still, to the extent they took seriously my admonitions, the readers were endeavoring to decide which of the two songs presented belonged on the TWA, whatever the factors that played into the decision. Might that choice also be protected in individual opinions sorted in a certain fashion? This really only matters if I make money from the proposed TWA. I would then need to make an accounting to my joint authors. And even if the vote itself was copyrightable expression, the voter likely granted me an implied license to include it in my final tally.
Should I have copyright protection in this list? Copyright protection is arguably granted to give authors (term of art) the incentive to create expressive works. I didn't need copyright protection as an incentive: I ran the survey so that I could talk about the results (and to satify my own curiosity). And my purposes are served if others take the results and run with them (although I would prefer to be attributed). Maybe no one else needs copyright protection, either, as lists ranking Beatles songs abound on the internet. Rolling Stone magazine has built a cottage industry on ranking and reranking the popular music output of the last 60 years, but uses its archives of rankings as an incentive to pay for a subscription. If the rankings didn't sell, magazines would likely do something else.
As an alternative, Rolling Stone might also arguably benefit from common law protection against the misappropriation of hot news, granted by the Supreme Court in INS v. AP, which would provide narrow injunctive relief to allow it to sell its news before others can copy without permission. The magazine might have trouble with recent precedent from the 2d Circuit which held that making the news does not qualify for hot news protection, although reporting the news might. So if I reproduce Rolling Stone's list (breaking news: Rolling Stone prefers Sonic Youth to Brittany Spears), that might fall outside of hot news misappropriation, although perhaps not outside of copyright protection itself.
*Two personal reflections: (1) I am astounded that Honey Pie didn't make the cut. Perhaps voters confused it with Wild Honey Pie, which probably deserved its lowest ranking. (2) I sing Good Night to my five-year old each night as a lullaby, and my world would be different without it. That is the inherent danger in a project like mine, and those who criticize the very idea that the White Album would have been the better had it been shorter can marshall my own anecdotal evidence in support of their skepticism.
Friday, December 02, 2011
When Easy Cases Make Bad Law
I'm glad to be back, and thanks to Prawfs for having me. I hope to blog on a few different issues, and use my visit to rejuvinate my permablogging at Madisonian. I want to start by picking up a topic nicely covered by my Madisonian co-blogger, Greg Lastowka -- the recent case involving Bella's jacket from the movie Twilight. Perhaps you've heard of it -- the movie, I mean, not the case.
There is a maxim that "Hard Cases Make Bad Law." Today I want to talk about a lesser used maxim - when easy cases make bad law. But first, a bit about the case after the jump.
I've never seen the movie, but apparently the Bella Swan character wears this jacket. A jacket so popular that...it was discontinued before the movie ever came out. Not surprisingly, the jacket became wildly popular. Indeed, Bella wears the jacket in key promo photos, in this country and others. As Greg notes, the image is everywhere.
And so the manufacturer, BB Dakota, brought the jacket back. But here's the kicker. They renamed it the "Twilight" jacket. And, they put a hang-tag on it that used the very same promo photo described above. Here is one on sale at eBay. To be fair, BB Dakota did not just use the picture - it added information - here is an image of the hangtag, which BB Dakota sent widely with instructions to use the image in advertising, which retailers did.
See how the words "BB Dakota as seen in Twilight" were added the image? This is where things get interesting. BB Dakota argued that the purpose of the hangtag was "nominative." That is, it used the image to call Twilight by name, much in the same way I might say, "Did you see Twilight?" The idea is that it can't be trademark infringement if you are just calling a product by its name.
This is also where things get seriously confused. As Greg makes clear (and others of my IP colleagues have noted offline), nominative use doctrine - though well meaning - is a real mess. The district court here goes down the rabbit hole and does little to clarify things.
Thus, I want to make clear that I agree with my colleagues that the state of the law is a mess, and this opinion is not so great. Greg does a great job of analyzing the problems. Instead, I want to take a step back. Specifically, this was a ridiculously easy case. Greg notes: "What distresses me is not so much the ruling, but how much the opinion exemplifies the general trend in trademark doctrine of ignoring the interests of consumers in favor of the proprietary claims of powerful franchises."
I would go a step further and say that despite the troubling general trend this is not a case BB Dakota was ever going to win, any time, in front of any judge. This was not a case to make policy, and at no time, whether before or after I entered academia, would I have ever counseled a client to pursue this strategy.
Don't get me wrong - there has to be a way for BB Dakota to communicate that this was the jacket worn. The added language for example. A poster next to the display with a screen cap from the actual movie. Something, anything, other than renaming the jacket the "Twilight" jacket and putting a promotional poster image on a hangtag.
Note that I say this is an easy case holistically, without reference to specific doctrine (which I will do in a bit). Instead, I say it as a rule of thumb - when you name your product after a well known movie that it appears in, and put the movie poster on a hangtag, you lose. In the same way that you lose if you try to argue that peer to peer music sharing is fair use. You just can't win, and you never could.
Now, to the part where some of my colleagues might disagree with me. BB Dakota should have lost in this case, as a matter of doctrine and as a matter of policy.
Start with copyright. Yes, the image is everywhere, thanks to fan sites. That's a fair use and I would say should be protected. Greg takes issue with the court giving dispositive weight to the fact that the whole image was copied. I agree that this has the potential to create bad precedent, but it's not the first time a court spent little time on a weak fair use argument. Greg worries that cases like this make fair use unpredictable, but (if I haven't said it already) this one was a predictable loss.
Let's look at the fair use factors:
1. Nature of the use: non-transformative, slavish copying, and commercial.
2. Nature of the copyrighted work: creative photography that is much more than point and shoot, though admittedly it does have the product at issue in it
3. Amount copied: all of it
4. Effect on the market: It might look like there isn't any, but consider that the plaintiff Summit might have wanted to license the image for use on sanctioned products (vampire teeth or what have you). If everyone could use this image on products (and this isn't trademark, so we aren't limited to non-confusing uses), then the value of that opportunity is reduced.
And the policy: The image was used on the product, in ads, in marketing, etc. There are few (and I can't think of any) cases where this kind of use is considered fair. It is just not the type of activity that fair use is intended to protect. I can see an argument for a screen capture, or some other image, but the promotional poster? No way.
On to trademark. The first mistake - and I think the one that proves the maxim that easy cases make bad law - was for the court to entertain the nominative use defense at all. This was not a nominative use. A nominative use might have been just the red inset "BB Dakota as seen in 'Twilight'" That's information. That's the name of the movie.
Instead of nominative use, this was a trademark use. They called it "The Twilight Jacket." They used the promotional poster as a hangtag not only in advertising but on every jacket sold. That's not naming Twilight, that's branding the jacket. When viewed this way, you get right to the likelihood of confusion factors. And under those factors there is certainly confusion - it's the promotional poster! You don't get much closer to appearing to be sponsored by the makers of Twilight than that. My "actual confusion" survey of one (my wife, who has seen the movie) pretty clearly thought that the moviemakers had sponsored or otherwise were associated with the jacket makers. I won't go through the confusion factors here, but I believe they clearly favor a finding of likely confusion as to source, sponsorship, or association.
The irony here is that the nominative use defense is suppose to help the defense, but the law in the Ninth Circuit is such a disaster that when you assert it wrongly (as BB Dakota did here) you are almost sure to lose. But sometimes that's the right outcome. In an effort to give BB Dakota the benefit of the doubt, it considered this ill-applied defense to make this easy case more difficult than it had to be, making the law worse.
And a point about policy. While I agree with Greg about the trend in general, the traditional consumer confusion policies might apply here. I suspect that a) the costume crew used multiple jackets, b) that the jacket survived apparent harms it might not have because those harms were actually special effects, and c) there were repairs made to the jackets over time in shooting. In other words, clothes in movies are indestructible. (Jack Bauer in 24, anyone?). Perhaps someone buying the "Twilight" jacket might have expected that indestructibility. Or more simply, what if manufacturing efficiencies meant that the coloring was off a bit - the Twilight folks, if sponsoring, might want some quality control over that. Or what if the price is higher at retail and secondary markets than it might have been for a jacket that did not have the imprimatur of sponsorship? In all of those cases, consumers suffer, and that is the policy of trademark law.
And that's why I see this as an easy case - and why the court should have treated it as such with a straightforward slapdown rather than a convoluted application of inapt rules.
Sunday, November 27, 2011
Threading the Needle
Imagine that Ron Wyden fails: either PROTECT IP or SoPA / E-PARASITE passes and is signed into law by President Obama. Advocacy groups such as the EFF would launch an immediate constitutional challenge to the bill’s censorship mandates. I believe the outcome of such litigation is far less certain than either side believes. American censorship legislation would keep lots of lawyers employed (always a good thing in a down economy), and might generate some useful First Amendment jurisprudence. Let me sketch three areas of uncertainty that the courts would have to resolve, and that improve the odds that such a bill would survive.
First, how high is the constitutional barrier to the legislation? Both bills look like systems of prior restraint, which loads the government with a “heavy presumption” against their constitutionality . The Supreme Court’s jurisprudence in the two most relevant prior cases, Reno v. ACLU and Ashcroft v. ACLU, applied strict scrutiny: laws must serve a compelling government interest, and be narrowly tailored to that interest. This looks bad for the state, but wait: we’re dealing with laws regulating intellectual property, and such laws draw intermediate scrutiny at most. This is what I call the IP loophole in the First Amendment. Copyright law, for example, enjoys more lenient treatment under free speech examination because the law has built-in safeguards such as fair use, the idea-expression dichotomy, and the (ever-lengthening) limited term of rights.
Moreover, it’s not certain that the bills even regulate speech. Here, I mean “speech” in its First Amendment sense, not the colloquial one. Burning one’s draft card at a protest seems like speech to most of us – the anti-war message is embodied within the act – but the Supreme Court views it as conduct. And conduct can be regulated so long as the government meets the minimal strictures of rational review. The two bills focus on domain name filtering – they impede users from reaching certain on-line material, but formally limit only the conversion of domain name to IP address by an Internet service provider. (I’m skipping over the requirement that search engines de-list such sites, which is a much clearer case of regulating speech.) DNS lookups seem akin to conduct, although the Court’s precedent in this area is hardly a model of lucidity. (Burning the American flag = speech; burning a draft card = conduct. QED.) Other courts have struggled, most notably in the context of the anti-circumvention provisions of the Digital Millennium Copyright Act, to categorize domain names as speech or not-speech, and thus far have found a kind of Hegelian duality to them. That suggests an intermediate level of scrutiny, which would resonate with the IP loophole analysis above.
Second, who has standing? It seems that our plaintiffs would need to find a site that conceded it met the definition of a site “dedicated to the theft of U.S. property.” That seems hard to do until filtering begins – at which point whatever ills the legislation creates will have materialized. (It might also expose the site to suits from affected IP owners.) Perhaps Internet service providers could bring a challenge based on either third-party standing (on behalf of their users, if we think users’ rights are implicated, or the foreign sites) or their own speech interests. However, I think it’s unlikely that users would have standing, particularly given the somewhat dilute harm of being unable to reach material on allegedly infringing sites. And, as described above, it’s not clear that ISPs have a speech interest at all: domain name services simply may be conduct.
Finally, how can we distinguish E-PARASITE or PROTECT IP from similar legislation that passes constitutional muster? Section 1201 of the DMCA, for example, permits liability to be imposed not only on those who make tools for circumventing access controls available, but even on those who knowingly link to such tools on-line. The government can limit distribution of encryption technology – at least as object code – overseas, by treating it as a munition. And thus far, the federal government has been able to seize domain names under civil forfeiture provisions, with nary a quibble from the federal courts.
To be plain: I think both bills are terrible legislation. They’re certain to damage America’s technology innovation industries, which are the crown jewels of our economy and our future competitiveness. They turn over censorship decisions to private actors with no interest whatsoever in countervailing values such as free expression or, indeed, anything other than their own profit margins. And their procedural protections are utterly inadequate – in my view. But I think it is possible that these bills may thread the constitutional needle, particularly given the one-way ratchet of copyright protection before the federal courts. The decision in Ashcroft, for instance, found that end user filtering was a narrower alternative than the Children’s Online Protection Act. But end user filtering doesn’t work when the person installing the software is not a parent concerned about on-line filth, but one eager to download infringing movies. And that means that legislation may escape narrowness analysis as well. As I wrote in Orwell’s Armchair:
focusing only on content that is clearly unlawful – such as child pornography, obscenity, or intellectual property infringement – has constitutional benefits that can help a statute survive. These categories of material do not count as “speech” for First Amendment analysis, and hence the government need not satisfy strict scrutiny in attacking them. Recent bills seem to show that legislators have learned this lesson – the PROTECT IP Act, for example, targets only those Web sites with “no significant use other than engaging in, enabling, or facilitating” IP infringement. Banning only unprotected material could move censorial legislation past overbreadth objections.
So: the outcome of any litigation is not only highly uncertain, but more uncertain than free speech advocates believe. Please paint a more hopeful story for me, and tell me why I’m wrong.
Cross-posted at Info/Law.
Posted by Derek Bambauer on November 27, 2011 at 08:37 PM in Civil Procedure, Constitutional thoughts, Current Affairs, First Amendment, Information and Technology, Intellectual Property, Law and Politics, Web/Tech | Permalink | Comments (0) | TrackBack
Monday, November 21, 2011
How Not To Secure the Net
In the wake of credible allegations of hacking of a water utility, including physical damage, attention has turned to software security weaknesses. One might think that we'd want independent experts - call them whistleblowers, busticati, or hackers - out there testing, and reporting, important software bugs. But it turns out that overblown cease-and-desist letters still rule the day for software companies. Fortunately, when software vendor Carrier IQ attempted to misstate IP law to silence security researcher Trevor Eckhart, the EFF took up his cause. But this brings to mind three problems.
First, unfortunately, EFF doesn't scale. We need a larger-scale effort to represent threatened researchers. I've been thinking about how we might accomplish this, and would invite comments on the topic.
Second, IP law's strict liability, significant penalties, and increasing criminalization can create significant chilling effects for valuable security research. This is why Oliver Day and I propose a shield against IP claims for researchers who follow the responsible disclosure model.
Finally, vendors really need to have their general counsel run these efforts past outside counsel who know IP. Carrier IQ's C&D reads like a high school student did some basic Wikipedia research on copyright law and then ran the resulting letter through Google Translate (English to Lawyer). If this is the aptitude that Carrier IQ brings to IP, they'd better not be counting on their IP portfolio for their market cap.
When IP law suppresses valuable research, it demonstrates, in Oliver's words, that lawyers have hacked East Coast Code in a way it was not designed for. Props to EFF for hacking back.
Cross-posted at Info/Law.
Posted by Derek Bambauer on November 21, 2011 at 09:33 PM in Corporate, Current Affairs, First Amendment, Information and Technology, Intellectual Property, Science, Web/Tech | Permalink | Comments (2) | TrackBack
Friday, November 18, 2011
A Soap Impression of His Wife
As I previewed earlier this week, I want to talk about the copyright implications for 3D printers. A 3D printer is a device that can reproduce a 3-dimensional object by spraying layers of plastic, metal, or ceramic into a given shape. (I imagine the process smelling like those Mold-a-Rama plastic souvenir vending machines prevalent in many museums, a thought simultaneously nostalgic and sickening). Apparently, early adopters are already purchasing the first generation of 3D printers, and there are websites like Thingiverse where you can find plans for items you can print in your home, like these Tardis salt shakers.*
Perhaps unsurprisingly, there can be copyright implications. A recent NY Times blog post correctly notes that the 3D printer is primarily suited to reproduce what § 101 of the Copyright Act calls "useful articles," physical objects that have "an intrinsic utilitarian function," and which, by definition, receive no copyright protection...except when they do.A useful article can include elements that are protectable as a "pictorial, graphic, [or] sculptural work." The elements are protectable to the extent "the pictorial, graphic, or sculptural features...can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." There are half a dozen tests courts have employed to determine whether protectable features can be separated from utilitarian aspects. Courts have rejected copyright protection for mannequin torsos and the ubiquitous ribbon bike rack, but granted it for belt buckles with ornamental elements that were not a necessary part of a functioning belt.
Print out a "functional" mannequin torso (or post your plans for it on the internet) and you should have no trouble. Post a schematic for the Vaquero belt buckle, and you may well be violating the copyright protection in the sculptural elements. But even that can be convoluted. The case law is mixed on how to think about 2D works derived from 3Dworks, and vice versa. A substantially similar 3D work can infringe a 2D graphic or pictorial work (Ideal Toy Corp. v. Kenner Prods. Div., 443 F. Supp. 291 (S.D.N.Y. 1977)), but constructing a building without permission from protectable architectural plans was not infringement, prior to a recent revision to the Copyright Act. Likewise, adrawing of a utilitarian item might be protectable as a drawing, but does not grant the copyright holder the right to control the manufacture of the item.
And if consumers are infringing, there is a significant risk that the manufacturer of the 3D printer could be vicariously or contributorily liable for that infringement. The famous Sony decision, which insulated the distribution of devices capable of commercially significant noninfringing uses, even if they could also be used for copyright infringement, has been narrowed both by recent Grokster filesharing decision and by the DMCA anticircumvention provisions. The easy, but unsatisfying takeaway is that 3D printers will keep copyright lawyers employed for years to come.
Back to the Tardis shakers, for a moment: the individual who posted them to the Thingiverse noted that the shaker "is derivative of thingiverse.com/thing:1528 and thingiverse.com/thing:12278", a Tardis sculpture and the lid of bottle, respectively. I found this striking for two reasons. First, it suggests a custom of attribution on thingiverse, but I don't yet have a sense for whether it's widespread. Second, if either of those first things are protectable as copyrighted works, (which seems more likely for the Tardis sculpture, and less so for the lid) then the Tardis salt shaker may be an unauthorized, and infringing, derivative work, and the decision to offer attribution perhaps unwise in retrospect.
* The TARDIS is the preferred means of locomotion of Doctor Who, the titular character of the long-running BBC science fiction program. It's a time machine / space ship disguised as a 1960s-era London police call box. The shape of the TARDIS, in its distinctive blue color, is protected by three registered trademarks in the UK.
Thursday, November 17, 2011
Yesterday, the House of Representatives held hearings on the Stop Online Piracy Act (it's being called SOPA, but I like E-PARASITE tons better). There's been a lot of good coverage in the media and on the blogs. Jason Mazzone had a great piece in TorrentFreak about SOPA, and see also stories about how the bill would re-write the DMCA, about Google's perspective, and about the Global Network Initiative's perspective.
My interest is in the public choice aspect of the hearings, and indeed the legislation. The tech sector dwarfs the movie and music industries economically - heck, the video game industry is bigger. Why, then, do we propose to censor the Internet to protect Hollywood's business model? I think there are two answers. First, these particular content industries are politically astute. They've effectively lobbied Congress for decades; Larry Lessig and Bill Patry among others have documented Jack Valenti's persuasive powers. They have more lobbyists and donate more money than companies like Google, Yahoo, and Facebook, which are neophytes at this game.
Second, they have a simpler story: property rights good, theft bad. The AFL-CIO representative who testified said that "the First Amendment does not protect stealing goods off trucks." That is perfectly true, and of course perfectly irrelevant. (More accurately: it is idiotic, but the AFL-CIO is a useful idiot for pro-SOPA forces.) The anti-SOPA forces can wheel to a simple argument themselves - censorship is bad - but that's somewhat misleading, too. The more complicated, and accurate, arguments are that SOPA lacks sufficient procedural safeguards; that it will break DNSSEC, one of the most important cybersecurity moves in a decade; that it fatally undermines our ability to advocate credibly for Internet freedom in countries like China and Burma; and that IP infringement is not always harmful and not always undesirable. But those arguments don't fit on a bumper sticker or the lede in a news story.
I am interested in how we decide on censorship because I'm not an absolutist: I believe that censorship - prior restraint - can have a legitimate role in a democracy. But everything depends on the processes by which we arrive at decisions about what to censor, and how. Jessica Litman powerfully documents the tilted table of IP legislation in Digital Copyright. Her story is being replayed now with the debates over SOPA and PROTECT IP: we're rushing into decisions about censoring the most important and innovative medium in history to protect a few small, politically powerful interest groups. That's unwise. And the irony is that a completely undemocratic move - Ron Wyden's hold, and threatened filibuster, in the Senate - is the only thing that may force us into more fulsome consideration of this measure. I am having to think hard about my confidence in process as legitimating censorship.
Cross-posted at Info/Law.
Posted by Derek Bambauer on November 17, 2011 at 09:15 PM in Constitutional thoughts, Corporate, Culture, Current Affairs, Deliberation and voices, First Amendment, Information and Technology, Intellectual Property, Music, Property, Web/Tech | Permalink | Comments (9) | TrackBack
Tuesday, November 15, 2011
You Say You Want a Revolution
Two potentially revolutionary "disruptive technologies" were back in the news this week. The first is ReDigi, a marketplace for the sale of used "legally downloaded digital music." For over 100 years, copyright law has included a first sale doctrine, which says I can transfer "lawfully made" copy* (a material object in which a copyrighted work is fixed) by sale or other means, without permission of the copyright owner. The case law is codified at 17 U.S.C. § 109.
ReDigi says its marketplace falls squarely within the first sale limitation on the copyright owner's right to distribute, because it verifies that copies are "from a legitimate source," and it deletes the original from all the seller's devices. The Recording Industry Association of America has objected to ReDigi's characterization of the fair use claim on two primary grounds,** as seen in this cease and desist letter.First, as ReDigi describes its technology, it makes a copy for the buyer, and deletes the original copy from the computer of the seller. The RIAA finds fault with the copying. Section 109 insulates against liability for unauthorized redistribution of a work, but not for making an unauthorized copy of a work. Second, the RIAA is unpersuaded there are ReDigi can guarantee that sellers are selling "lawfully made" digital files. ReDigi's initial response can be found here.
At a first cut, ReDigi might find it difficult to ever satisfy the RIAA that it was only allowing the resale of lawfully made digital files. Whether it can satisfy a court is another matter. It might be easier for an authorized vendor, like iTunes or Kindle, to mark legitimate copies going forward, but probably not to detect prior infringement.
Still, verifying legitimate copies may be easier than shoehorning the "copy and delete" business model into the language of § 109. Deleting the original and moving a copy seems in line with the spirit of the law, but not its letter. Should that matter? ReDigi attempts to position itself as close as technologically possible to the framework spelled out in the statute, but that's a framework designed to handle the sale of physical objects that embody copyrightable works.
This is not the only area where complying with statutory requirements can tie businesses in knots. Courts have consistently struggled with how to think about digital files. In London-Sire Records v. Does, the court had to puzzle out whether a digital file can be a material object and thus a copy* distributed in violation of § 106(3). The policy question is easy to articulate, if reasonable minds still differ about the answer: is the sale and distribution of digital files something we want the copyright owner to control or not?
As a statutory matter, the court in London-Sire concluded that material didn't mean material in its sense as "a tangible object with a certain heft," but instead "as a medium in which a copyrighted work can be 'fixed.'" This definition is, of course, driven by the statute: copyright subsists once an original work of authorship is fixed in a tangible medium of expression from which it can be reproduced, and the Second Circuit has recently held in the Cablevision case that a work must also be fixed -- embodied in a copy or phonorecord for a period of more than transitory duration -- for infringement to occur. Policy intuitions may be clear, but fitting the solution in the statutory language sometimes is not. And a business model designed to fit existing statutory safe harbors might do things that appear otherwise nonsensical, like Cablevision's decision to keep individual copies of digital videos recorded by consumers on its servers, to avoid copyright liability.
Potentially even more disruptive is the 3D printer, prototypes of which already exist in the wild, and which I will talk more about tomorrow.
* Technically, a digital audio file is a phonorecord, and not a copy, but that's a distinction without a difference here.
** The RIAA also claims that ReDigi violates the exclusive right of public performance by playing 30 second samples of members' songs on its website, but that's not a first sale issue.
Saturday, November 05, 2011
The House of Representatives is considering the disturbingly-named E-PARASITE Act. The bill, which is intended to curb copyright infringment on-line, is similar to the Senate's PROTECT IP Act, but much much worse. It's as though George Lucas came out with the director's cut of "The Phantom Menace," but added in another half-hour of Jar Jar Binks.
As with PROTECT IP, the provisions allowing the Attorney General to obtain a court order to block sites that engage in criminal copyright violations are, in theory, less objectionable. But they're quite problematic in their particulars. Let me give three examples.
First, the orders not only block access through ISPs, but also require search engines to de-list objectionable sites. That not only places a burden on Google, Bing, and other search sites, but it "vaporizes" (to use George Orwell's term) the targeted sites until they can prove they're licit. That has things exactly backwards: the government must prove that material is unlawful before restraining it. This aspect of the order is likely constitutionally infirm.
Second, the bill attacks circumvention as well: MAFIAAFire and its ilk become unlawful immediately. Filtering creep is inevitable: you have to target circumvention, and the scope of circumvention targeted widens with time. Proxy services like Anonymizer are likely next.
Finally, commentators have noted that the bill relies on DNS blocking, but they're actually underestimating its impact. The legislation says ISPs must take "technically feasible and reasonable measures designed to prevent access by its subscribers located within the United States" to Web sites targeted under the bill, "including measures designed to prevent the domain name of the foreign infringing site (or portion thereof) from resolvingto that domain name's Internet protocol address." The definitional section of the bill says that "including" does not mean "limited to." In other words, if an ISP can engage in technically feasible, reasonable IP address blocking or URL blocking - which is increasingly possible with providers who employ deep packet inspection - it must do so. The bill, in other words, targets more than the DNS.
On the plus side, the bill does provide notice to users (the AG must specify text to display when users try to access the site), and it allows for amended orders to deal with the whack-a-mole problem of illegal content evading restrictions by changing domain names or Web hosting providers.
The private action section of the bill is extremely problematic. Under its provisions, YouTube is clearly unlawful, and neither advertising or payment providers would be able to transact business with it. The content industry doesn't like YouTube - see the Viacom litigation - but it's plainly a powerful and important innovation. This part of E-PARASITE targets sites "dedicated to the theft of U.S. property." (Side note: sorry, it's not theft. This is a rhetorical trope in the IP wars, but IP infringement simply is not the same as theft. Theft deals with rivalrous goods. In addition, physical property rights do not expire with time. If this is theft, why aren't copyright and patent expirations a regulatory taking? Why not just call it "property terrorism"?)
So, what defines such a site? It is:
- "primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates" violations of the Copyright Act, Title I of the Digital Millennium Copyright Act, or anti-counterfeiting laws; or,
- "is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out the acts that constitute a violation" of those laws; or,
- the owner "operates the U.S.-directed site with the object of promoting, or has promoted, its use to carry out acts that constitute a violation" of those laws.
That is an extraordinarily broad ambit. Would buying keywords, for example, that mention a popular brand constitute a violation? And how do we know what a site is "primarily designed for"? YouTube seems to have limited purpose or use other than facilitating copyright infringement. Heck, if the VCR were a Web site, it'd be unlawful, too.
The bill purports to establish a DMCA-like regime for such sites: the IP owner provides notice, and the site's owner can challenge via counter-notification. But the defaults matter here, a lot: payment providers and advertisers must cease doing business with such sites unless the site owner counter-notifies, and even then, the IP owner can obtain an injunction to the same effect. Moreover, to counter-notify, a site owner must concede jurisdiction, which foreign sites will undoubtedly be reluctant to do. (Litigating in the U.S. is expensive, and the courts tend to be friendly towards local IP owners. See, for example, Judge Crotty's slipshod opinion in the Rojadirecta case.)
I've argued in a new paper that using direct, open, and transparent methods to censor the Internet is preferable to our current system of "soft" censorship via domain name seizures and backdoor arm-twisting of private firms, but E-PARASITE shows that it's entirely possible for hard censorship to be badly designed. The major problem is that it outsources censorship decisions to private companies. Prior restraint is an incredibly powerful tool, and we need the accountability that derives from having elected officials make these decisions. Private firms have one-sided incentives, as we've seen with DMCA take-downs.
In short, the private action measures make it remarkably easy for IP owners to cut off funding for sites to which they object. These include Torrent tracker sites, on-line video sites, sites that host mash-ups, and so forth. The procedural provisions tilt the table strongly towards IP owners, including by establishing very short time periods by which advertisers and payment providers have to comply. Money matters: WikiLeaks is going under because of exactly these sort of tactics.
America is getting into the Internet censorship business. We started down this path to deal with pornographic and obscene content; our focus has shifted to intellectual property. I've argued that this is because IP legislation draws lower First Amendment scrutiny than other speech restrictions, and interest groups are taking advantage of that loophole. It's strange to me that Congress would damage innovation on the Internet - only the most powerful communications medium since words on paper - to protect movies and music, which are relatively small-scale in the U.S. economy. But, as always with IP, the political economy matters.
I predict that a bill like PROTECT IP or E-PARASITE will become law. Then, we'll fight out again what the First Amendment means on the Internet, and then the myth of America's free speech exceptionalism on-line will likely be dead.
Cross-posted at Info/Law.
Posted by Derek Bambauer on November 5, 2011 at 05:06 PM in Civil Procedure, Constitutional thoughts, Culture, Current Affairs, First Amendment, Information and Technology, Intellectual Property, Law and Politics, Music, Property, Web/Tech | Permalink | Comments (2) | TrackBack
Wednesday, November 02, 2011
Back in the B.L.O.G.
I'm glad for the invitation to return to the friendly confines of the Prawfsblawg to kick around some ideas. I was fascinated by earlier attempts to rank law schools and law journals using pairwise comparisons, but was concerned that the list was guaranteed to be underinclusive, due to the number of pairwise comparisons to be made. So I'll start the month with a question that has fewer items to compare, and where the stakes are much lower.
George Martin, the producer of the Beatles' oeuvre, argued that the eponymous two-disc release we tend to call the White Album would have been a stronger final product if the weaker songs had been culled. I doubt the remaining lads from Liverpool are likely to take a stab at this, but you can have your say on which songs should be included on what I'm calling the "Tighter White Album." The question will be presented by offering two songs. You vote for the song you think should be kept. Rinse. Repeat. In honor of the old LP format, the highest-ranked 45 minutes of music will be included in the imaginary album after Thanksgiving.
Is this a legal question? Perhaps yes, but I want to get into the details of why I think so at the end of the month, so as not to sway your vote.
Wednesday, October 26, 2011
How Baseball Made Me a PirateMajor League Baseball has made me a pirate, with no regrets. Nick Ross, on Australia's ABC, makes "The Case for Piracy." His article argues that piracy often results, essentially, from market failure: customers are willing to pay content owners for access to material, and the content owners refuse - because they can't be bothered to serve that market or geography, because they are trying to force consumers onto another platform, or because they are trying to leverage interest in, say, Premier League matches as a means of getting cable customers to buy the Golf Network. The music industry made exactly these mistakes before the combination of Napster and iTunes forced them into better behavior: MusicNow and Pressplay were expensive disasters, loaded with DRM restrictions and focused on preventing any possible re-use of content rather than delivering actual value. TV content owners are now making the same mistake. Take, for example, MLB. I tried to purchase a plan to watch the baseball playoffs on mlb.com - I don't own a TV, and it's a bit awkward to hang out at the local pub for 3 hours. MLB didn't make it obvious how to do this. Eventually, I clicked a plan that indicated it would allow me to watch the entire postseason for $19.99, and gladly put in my credit card number. My mistake. It turns out that option is apparently for non-U.S. customers. I learned this the hard way when I tried to watch an ALDS game, only to get... nothing. No content, except an ad that tried to get me to buy an additional plan. That's right, for my $19.99, I receive literally nothing of value. When I e-mailed MLB Customer Service to try to get a refund, here's the answer I received: "Dear Valued Subscriber: Your request for a refund in connection with your 2011 MLB.TV Postseason Package subscription has been denied in accordance with the terms of your purchase." Apparently the terms allow fraud. Naturally, I'm going to dispute the charge with my credit card company. But here's the thing: I love baseball. I would gladly pay MLB to watch the postseason on-line. And yet there's no way to do so, legally. In fact, apparently the only people who can are folks outside the U.S. And if you try to give them your money anyway, they'll take it, and then tell you how valued you are. But you're not. So, I'm finding ways to watch MLB anyway. If you have suggestions or tips, offer 'em in the comments - there must be a Rojadirecta for baseball. And next season, when I want to watch the Red Sox, that's the medium I'll use - not MLB's Extra Innings. MLB has turned me into a pirate, with no regrets.Cross-posted at Info/Law.
Posted by Derek Bambauer on October 26, 2011 at 07:48 PM in Criminal Law, Culture, Information and Technology, Intellectual Property, International Law, Music, Odd World, Sports, Television, Web/Tech | Permalink | Comments (34) | TrackBack
Thursday, October 20, 2011
Policing Copyright Infringement on the Net
Mark Lemley has a smart editorial up at Law.com on the hearings at the Second Circuit Court of Appeals in Viacom v. YouTube. The question is, formally, one of interpreting Title II of the Digital Millennium Copyright Act (17 U.S.C. 512), and determining whether YouTube meets the statutory requirements for immunity from liability. But this is really a fight about how much on-line service providers must do to police, or protect against, copyright infringement. Mark, and the district court in the case, think that Congress answered this question rather clearly: services such as YouTube need to respond promptly to notifications of claimed infringement, and to avoid business models where they profit directly from infringement. The fact that a site attracts infringing content (which YouTube indubitably does) can't wipe out the safe harbor, because then the DMCA would be a nullity. It may be that the burden of policing copyrights should fall more heavily on services such as YouTube than it currently does. But, if that's the case, Viacom should be lobbying Congress, not the Second Circuit. I predict a clean win for YouTube.
Tuesday, October 18, 2011
Guest Post by TJ Chiang: The Stolen Valor Act as Trademark Protection
The following post is from GMU's TJ Chiang, an occasional guest with Prawfs:
On Monday, the Supreme Court granted certiorari in United States v. Alvarez, on whether the Stolen Valor Act, which criminalizes falsely representing oneself as having been awarded a military medal, violates the First Amendment. Most of the debate so far has focused on whether the First Amendment contains a categorical exclusion for false speech, and the primary analogy the Solicitor-General has tried to draw is to defamation. In my view, this is the wrong way to view the problem. The far better analogy is trademark law.
If one thinks about it, labels like “Medal of Honor” and “Purple Heart” would not have much intrinsic value but for the fact that Congress has chosen these names as the names of military decorations. The only reason that these labels have value is that Congress has built a brand around them, associating the brand only with people having desirable characteristics such as courage and valor. This is much the same as the fact that the label “Prada” has built-up value, because the company has associated the brand only with products that have desirable characteristics.
What Congress is trying to counter with the Stolen Valor Act is basically what a manufacturer is trying to counter when it sues counterfeiters for trademark infringement: If other people who do not have the desirable characteristics come to be associated with the brand, then the brand will lose its value. And this means three things. First, the closest common law analogy to the Stolen Valor Act is not defamation, but the old tort of “passing off”—the product being passed off is the defendant himself, who wishes to pass himself off as having desirable characteristics such as courage and valor, but it is still passing off. Second, if one regards federal or state trademark law as constitutional, then there is almost no argument that the Stolen Valor Act is not. Third, the problem with stealing valor is not its falsity as such, but also the fact that the falsity diminishes Congress’s investment in the brand, which the presentation of the problem as a falsity issue does not capture.
Friday, October 14, 2011
Behind the Scenes of Six Strikes
Wired has a story on the cozy relationship between content industries and the Obama administration, which resulted in the deployment of the new "six strikes" plan to combat on-line copyright infringement. Internet security and privacy researcher Chris Soghoian obtained e-mail communication between administration officials and industry via a Freedom of Information Act (FoIA) request. (Disclosure: Jonathan Askin and I represent Chris in his appeal regarding this FoIA request.) The e-mails demonstrate vividly what everyone suspected: Hollywood - in the form of the music and movie industries - has an administration eager to be helpful, including by pressuring ISPs. Stay tuned.
Posted by Derek Bambauer on October 14, 2011 at 11:10 AM in Blogging, Culture, Current Affairs, Film, Information and Technology, Intellectual Property, Judicial Process, Law and Politics, Music, Web/Tech | Permalink | Comments (0) | TrackBack
Thursday, October 13, 2011
The Pirates' Code
There have been a number of attempts to alter consumer norms about copyright infringement (especially those of teenagers). The MPAA has its campaigns; the BSA has its ferret; and now New York City has a crowdsourced initiative to design a new public service announcement. At first blush, the plan looks smart: rather than have studio executives try to figure out what will appeal to kids (Sorcerer's Apprentice, anyone?), leave it to the kids themselves.
On further inspection, though, the plan seems a bit shaky. First, it's not actually a NYC campaign: the Bloomberg administration is sockpuppeting for NBC Universal. Second, why is the City even spending scarce taxpayer funds on this? Copyright enforcement is primarily private, although the Obama administration is lending a helping hand. Third, is this the most effective tactic? It seems more efficient to go after the street vendors who sell bootleg DVDs, for example - I can buy a Blockbuster Video store's worth of movies just by walking out the front door of my office.
Yogi Berra (or was it Niels Bohr?) said that the hardest thing to predict is the future. And the hardest thing about norms is changing them. Larry Lessig's New Chicago framework not only points to the power of norms regulation (along the lines of Bob Ellickson), but suggests that norms are effectively free - no one has to pay to enforce them. This makes them attractive as a means of regulation. The problem, though, is that norms tend to be resistant to overt efforts to shift them. Think of how long it took to change norms around smoking - a practice proven to kill you - and you'll appreciate the scope of the challenge. The Bloomberg administration should save its resources for moving snow this winter...
Tuesday, October 04, 2011
America Censors the Internet
If you're an on-line poker player, a fan of the Premier League, or someone who'd like to visit Cuba, you probably already know this. Most people, though, aren't aware that America censors the Internet. Lawyers tend to believe that a pair of Supreme Court cases, Reno v. ACLU (1997) and Ashcroft v. ACLU (2004), permanently interred government censorship of the Net in the U.S. Not so.
In a new paper, Orwell's Armchair (forthcoming in the University of Chicago Law Review), I argue that government censors retain a potent set of tools to block disfavored on-line content, from using unrelated laws (like civil forfeiture statutes) as a pretext to paying intermediaries to filter to pressuring private actors into blocking. These methods are not only indirect, they are less legitimate than overt, transparent regulation of Internet content. In the piece, I analyze the constraints that exist to check such soft censorship, and find that they are weak at best. So, I argue, if we're going to censor the Internet, let's be clear about it: the paper concludes by proposing elements of a prior restraint statute for on-line content that could both operate legitimately and survive constitutional scrutiny.
Jerry Brito of George Mason University's Mercatus Center kindly interviewed me about the issues the article raises for his Surprisingly Free podcast. It's worth a listen, even though my voice is surprisingly annoying.
Cross-posted at Info/Law.
Posted by Derek Bambauer on October 4, 2011 at 06:14 PM in Civil Procedure, Constitutional thoughts, Current Affairs, First Amendment, Information and Technology, Intellectual Property, Law and Politics, Web/Tech | Permalink | Comments (3) | TrackBack
Sunday, October 02, 2011
What Commons Have in Common
Thanks to Dan and the Prawfs crew for having me! Blogging here is a nice distraction from the Red Sox late-season collapse.
Last week, NYU Law School hosted Convening Cultural Commons, a two-day workshop intended to accelerate the work on information commons begun by Carol Rose, Elinor Ostrom, and Mike Madison / Kathy Strandburg / Brett Frischmann. All four of the above were presented as case studies (by Dave Fagundes, Sonali Shah, Charles Schweik, and Mike Madison, respectively). Elinor Ostrom gave the keynote address, and sat in on most of the presentations. It's exciting stuff: Mike, Kathy, and Brett have worked hard to adapt Ostrom's Institutional Analysis and Development framework to analysis of information commons such as Wikipedia, the Associated Press, and jambands. Yet, there was one looming issue that the conferees couldn't resolve: what, exactly, is a commons?
The short answer is: no one knows. Ostrom's work counsels a bottom-up, accretive way to answer this question. Over time, with enough case studies, the boundaries of what constitutes a "commons" become clear. So, the conventional answer, and one supported by a lot of folks at the NYU conference, is to go forth and, in the spirit of Clifford Geertz, engage in collection and thick description of things that look like, or might be, commons.
As an outsider to the field, I think that's a mistake.What commons research in law (and allied disciplines) needs is some theories of the middle range. There is no Platonic or canonical commons out there. Instead, there are a number of dimensions along which a particular set of information can be measured, and which make it more or less "commons-like." Let me suggest a few as food for thought:
- Barriers to access - some information, like Wikipedia, is available to all comers; other data, like pooled patents, are only available to members of the club. The lower the barriers to access, the more commons-like a resource is.
- State role in management - government may be involved in managing resources directly (for example, data in the National Practitioner Data Bank), indirectly (for example, via intellectual property laws), or not at all. I think a resource is more commons-like as it is less managed by the state.
- Ability to privatize - information resources are more and less subject to privatization. Information in the public domain, such as Shakespeare's plays, cannot be privatized - no one can assert rights over them (at least, not under American copyright law). Some information commons protected by IP law cannot be privatized, such as software developed under the GPL, and some can be, such as software developed under the Apache License. The greater the ability to privatize, I'd argue, the less commons-like.
- Depletability - classic commons resources (such as fisheries or grazing land) are subject to depletion. Information resources can be depleted, though depletion here may come more in the form of congestion, as Yochai Benkler argues. Internet infrastructure is somewhat subject to depletion, while ideas or prices are not. The greater the risk of depletion,the less commons-like.
Finally, why do we care about the commons? I think that commons studies are a reaction to the IP wars: they are a form of resistance to IP maximalism. By showing that information commons are not only ubiquitous, but vital to innovation and even a market economy, legal scholars can offer a principled means of arguing against ever-increasing IP rights. That makes studying these resources - and, hopefully, putting forward testable theories about what are and are not attributes of a commons - vital to enlightened policymaking.
(Cross-posted to Info/Law.)
Tuesday, September 27, 2011
Some Proposed Changes to e-Discovery/ Patent Cases
The Federal Circuit Bar Association has posted a link to Judge Randall R. Radar's September 27, 2011 discussion of "The State of Patent Litigation." Of the six areas of improvement, Judge Radar discussed a "Model Order on e-Discovery for Patent Cases" which includes presumptive limits on the number of custodians and search terms for electronic documents (scroll to the end of the speech transcript).
The model order presumes a limit of five (5) custodians, for a total of five (5) search terms per custodian. Certainly, any such proposal can be modified by the district court or the agreement of the parties. It strikes me that the presumptive limits on depositions and interrogatories provided a welcome change when they were instituted. Particularly because courts retain discretion to modify these limits in appropriate case, there were several results that occured. As one, the rules introduced the principle that there should be some limits. As another, presumptive limits serve as a benchmark. That is, counsel are operating from the principle that five (5) is a norm, rather than infinity. Third, it may reduce the number and type of discovery disputes because these limits set up the framework for the parties' obligations.
Overall, these same results may occur for e-discovery. Although discovery costs for patent cases may be particularly high, I wonder whether this might serve as a template for other types of cases.
Thursday, September 08, 2011
Patent Reform Pending
It's expected that the Senate is likely to vote on significant patent reform legislation today at 4 pm Eastern time.
Some of the most significant changes in the proposed legislation include:
- The U.S. Patent system will discontinue the first-to-invent system in favor of the first-to-file priority system used by nearly all other countries
- The first to file system will be accompanied by a 1-year grace period for disclosures by an inventor, joint inventor or a disclosure that is derived from either an inventor or joint inventor (personal grace period)
- There will be a prior commercial user defense for those who had been practicing a claim in a patent that has been issued on or after the date of enactment
- Priority disputes in interference proceedings will be eliminated; instead, derivation proceedings will be added to ensure that patentees are not obtaining patents on inventions derived from another
- Additional post-grant procedures will be changed and/or added
- The Patent & Trademark Office will have an increased ability to set fees
The patent world is watching with considerable interest. In a survey conducted on Dennis Crouch's PatentlyO blog, respondents showed a notable lack of support for reforms. Also, this draft article by David Abrams and Polk Wagner suggests that first-to-file systems impact solo inventors.
If enacted, changes will begin quickly. There are over a dozen effective dates in the bill, some of which begin immediately upon enactment, and some as soon as 10 days thereafter. One helpful resource for sifting through these implementation dates is here on Fish & Richardson's website.
Friday, September 02, 2011
Madonna's Rights to "Material Girl"
A few days ago, a district court denied Madonna's effort to establish rights to the name "Material Girl" for her clothing line. The case was brought by L.A. Triumph, a company that has been selling women's clothes under the name "Material Girl" since 1997.
Despite The Cut's observation that L.A. Triumph was "piggybacking off [Madonna's] title," it's true that trademarks are not about originality. In an interesting turn, the order referred to the "concert style shirts and tops" sold at Madonna concerts beginning in the 1980's were not clothing, but rather "concert paraphernalia."
Reports are that trial is set for mid-October. I'm curious to see whether the case will settle now that summary judgment has been decided, or whether we'll be able to see what a jury does with this.
Thursday, September 01, 2011
Attending the 'Conducting Empirical Legal Scholarship Workshop'
When I had a few weeks to kill the summer before I started college, I decided that I needed a bike. My brother suggested that I get a used bike, some tooks and recondition it myself. After borrowing a how-to guide, I stripped my new (used) bike down the bearings and I never saw bikes in the same way again.
It was in that spirit that I attended the Conducting Empirical Legal Scholarship Workshop at Northwestern Law last May. I was on a sabbatical, had a few days to kill and wanted to learn more about the internal process of empirical research. The workshop is run by Lee Epstein and Andrew Martin, who provide a tremendous amount of information. My field is intellectual property with a heavy emphasis on patents, in which new empirical scholarship is very frequent and very informative.
What surprised me most about the conference was that, in addition to the volume of information about the mechanics of designing and conducting empirical research, both Epstein and Martin provided a wealth of information about the academic standards that should be employed while doing so. To test myself, I brought an article that I had read several months earlier. At the time that I originally read the piece, I had one (basic) level of understanding of the work. After finishing the Epstein/Martin workshop, I re-read the same article in its entirety. I found virtues and flaws that I simply never seen before. Although at that moment I was several months away from designing my own project, I found that I was able to assess empirical research in a far more informed way.
If my experience is any guide, it's well worth your time and you'll never see an empirical piece the same way again. If you are considering taking a course, I'd recommend doing so (sooner rather than later, depending on your field). Epstein has just moved to USC, it may be that the course will move as well.
Friday, July 29, 2011
A Plan for Forking Wikipedia to Provide a Reliable Secondary Source on Law
Recently Wikipedia rolled out a feedback feature (example at right) that allows readers to rate the page they are looking at. You can give the page a score from one to five in each of four categories: Trustworthy, Objective, Complete, and Well-written. Then, there's an optional box you can check that says "I am highly knowledgeable about this topic."
This may be good for flagging pages that need work. But, of course, Wikipedia's trustworthiness problem is not going to be solved by anonymous users, self-declared to be "highly knowledgeable," deeming articles to be trustworthy.
I do think, however, that if you forked Wikipedia to create a version with an authenticated expert editorship, then the ratings could evolve Wikipedia content into being a credible source. In fact, I think it could work well for articles on law.
"Forking," for software developers, means taking an open-source project and spliting off a version that is then developed separately. The open-source license specifically allows you to do this. Forking a project is not always productive, but I think it could be useful in creating an encyclopedia-type reference about the law that is both trustworthy and freely available.
There's a real need for such material in the legal sphere. Right now, there seems to be an accessibility/credibility trade off with secondary sources of legal information: Wikipedia is accessible, but not credible. Traditional binder sets are credible, but not very accessible – using them is generally either expensive (in terms of subscriptions fees) or burdensome (via a trip to the nearest law library).
If, however, you could take Wikipedia and apply credibility on top of it, you would have a secondary source that is both credible and accessible.
Imagine grabbing all the Wikipedia pages about law – which at this point are generally very well developed – and then, while continuing to make them viewable to the public, locking them so that only authenticated lawyers and law students could edit them. These expert editors could then correct errors where they find them. Where they don't find errors, they could click a box indicating trustworthiness. As time went on, pages would have errors weeded out, and trustworthiness scores would accumulate.
Trustworthiness ratings on pages editable only by experts would relieve the need for internal citations. Right now, the Wikipedia community pushes hard for citations in articles. Citations are important in the Wikipedia context because of the lack of credentials on the part of the writers. But if pages were only editable by authenticated lawyers, then cumulative positive ratings would make pages more reliable even without citations.
Admittedly, a forked version of Wikipedia edited by lawyers and law students would not replace the big binder sets. The depth of the material, at least as it stands now, is too limited. Wikipedia, even if reliable, wouldn't help a trust-and-estates lawyer with trust and estates. But if it were imbued with trustworthiness, Wikipedia content does have enough depth to be useful for lawyers orienting themselves to an unfamiliar field of law. Likewise, it has enough detail for non-lawyers who are looking to gain a general understanding of some specific doctrinal topic.
So, what do you think? It would be fairly easy to put together from a technical perspective, but would it be worthwhile? Do you think people with legal knowledge would contribute by removing errors and scoring pages? Or would a forked law wiki sit fallow? (I do notice there are lots of lawyers participating actively on Quora, crafting very good answers to individual questions.)
Maybe it would work in other fields aside from law, as well. It does seem to me, though, that law is a particularly good subject for forking.
Tuesday, July 26, 2011
NPR's Take on Patents: Politicizing Litigation
I absolutely adore the NPR program This American Life. I wait for the new episode every weekend. I laugh. I cry. I congratulate myself for donating to WBEZ Chicago. But I must say that I was disappointed by this week's episode, When Patents Attack. Perhaps disappointed is the wrong word, but definitely puzzled.
The episode was reported by Laura Sydell and Alex Blumberg who is also a co-host of Planet Money -- an NPR podcast I like so much that I have assigned several episodes to my International Business Transactions students. The hour-long episode is devoted to the evils of patent trolls and the destructive litigation that they bring.
Now, I'm not an IP attorney, so I'll try to steer clear of commenting on the story from a patents perspective. But what I found interesting about the reporting was the political take. The reporters begin and end from an unapologetic stance that patent litigation is destructive (and believe me, there is no love for lawyers in this story). They are entirely dismissive of the idea that patents in the high-tech world promote and protect innovation. This is a perfectly reasonable position to take -- I've seen it done plenty in scholarly commentary and the mainstream press. I've also seen the opposing position defended.
What bothered me was the very hostile take on litigation.The talking points about meritless litigation and nuisance lawsuits could have been taken word for word from the tort reform lobby. If this had been a story about the ability of plaintiffs to stand on their rights to sue big corporations for just about anything else (antitrust, employment discrimination, personal injury, consumer rights), my guess is that it would have been a story about how bad, bad corporate defendants work to keep plaintiffs out of court.
I was also unimpressed by the tone of the reporting. Sydell and Blumberg purported to uncover a massive chain of shady deals and holding companies, which appeared to me to just be normal ways of conducting transactions, not a reason to indict (or approve) the underlying asset being transferred. They also cited statistics such as "80% of software engineers surveyed believe that the patent system hinders innovation rather than promotes it." But this doesn't prove much -- it simply reflects what software engineers believe, and tells us nothing about how they actually behave. Good economists and social scientists can answer that question with much better data. The use of such figures again harkens back to the talking points of the tort reform folks who will tell you that surveys of judges and lawyers reveal massive discovery abuse. In fact, studies of actual discovery practices show a very different picture. For those interested in more about these facts, Linda Mullenix has several great articles about this.
Finally, the story didn't do much in the way of discussing the issues of ex ante or ex post patent enforcement. They mention the number of redundant patents and hammer home the idea of a litigation-heavy environment, but did very little to explore the idea that the U.S. has made a regulatory choice to have a relatively relaxed patent approval regime reliant on ex post private enforcement. Would an approach which requires vigorous and expensive prosecution of patents ex ante have more or less of a chill on innovation? We would never know from this story that this is even a question that one should ask about a regulatory and adjudicatory system.
It is an interesting topic and an interesting story, but falls short of some of the better reporting that I expect from the TAL and Planet Money teams. It also reinforces that pursuit of a political agenda or conclusion in one arena (high tech innovation) might not suit your tastes in another, namely larger issues of court access, litigant behavior, agency design, and regulatory enforcement.
(cross-posted at Civ Pro prawfs blog).
Saturday, May 28, 2011
Can you copyright a nose job?
There’s been a lot of discussion in the blawgosphere recently about the Mike Tyson/Hangover 2 tattoo case, and the underlying question of the copyrightability of tattoos. In the context of that discussion on an IP profs’ listserv, Lior Strahilevitz posed a related question: If tattoos are copyrightable as works of authorship fixed on the human body, shouldn’t nose jobs also be copyrightable? Is there a principled copyright distinction between the Mike Tyson face tattoo and, say, Bristol Palin’s recent rhinoplasty?
Before exploring this question, let me offer some quick background. Not all products of the mind are copyrightable. Works of authorship have to be original and fixed in a tangible medium of expression (TME) in order for federal copyright (though not necessarily state common-law copyright) to vest. Most fixations of works of authorship are made in familiar media—canvas, a book, the memory of a computer—and as long as they last for more than a transitory duration, fulfill the fixation requirement.
This raises three questions, each of which have been raised on the IP profs’ listserv. First, is a nose job a work of authorship? Second, is a nose job fixed in a tangible medium of expression? And finally, is a nose job original? I consider each of these points below the fold.First, a few writers asserted that a nose job isn’t a work of authorship, full stop. Works of authorship are listed in section 102(a) of the 1976 Copyright Act, and unsurprisingly, “nose job” isn’t among them. One might conclude thus quickly that as a simple matter of statutory construction, the 76 Act excludes nose jobs. This strikes me as far too hasty a conclusion, for two reasons. First, section 102(a)’s list of works of authorship is inclusive, not exclusive. The text says, “works of authorship include” the relevant categories, not that works of authorship include only the referenced categories. It seems pretty clear from this (and other aspects of the 76 Act) that the framers wanted the statute to remain flexible in terms of what counted as a work of authorship.
In addition, there’s a category listed in section 102(a) that does seem to fit nose jobs reasonably well: sculptural works. Where artists fix their original ideas in three-dimensional form, whether via marble or clay, we have no problem calling the resulting work a sculpture. Why should the human body be any different? I can think of some prudential objections that I’ll elaborate below in discussing fixation, but as a textual matter I don’t see any basis for this distinction.
The final point some have raised with respect to whether nose jobs can be works of authorship is that surgeons are not “authors.” They are more like craftspeople, because they don’t infuse their work with the sine qua non of copyright, originality. This is a plausible argument, though I think also too hasty, but it really seems to belong in the discussion of originality, which I’ll get to below.
A second objection to the copyrightability of nose jobs may be that they are not valid fixations in TME. The Second Circuit recently decided a case that nicely laid out a two-part test for what constitutes a valid fixation. A fixation must persist in some physical form, such as a book or canvas. A nose is clearly tangible, and easily meets this standard. A fixation must also meet a duration requirement; that is to say, the fixation must persist for some minimum time in order to be valid. Ephemeral fixations such as in skywriting or the very brief memory of a computer would not count. Here, too, a nose seems clearly to meet the relevant standard, since rhinoplasty lasts until the face of the recipient turns to dust.
Some writers have suggested that the human body is not a "medium of expression." This doesn't strike me as valid. We use our bodies to express ourselves all the time in ways too numerous to list. And artists sometimes use others' bodies to express themselves, such as where photographers use models to acheive a certain aesthetic effect.
Now let’s consider the final doctrinal hurdle for the copyrightability of nose jobs: originality. Copyright originality means that there must be a modicum of creativity in a work, so that if it is a slavish imitation of the outside world that reflects no input from the author, then it does not merit protection even if it is the product of considerable effort. Exact digital images of cars, for example, have been held to lack the requisite originality to merit federal copyright protection.
Nose jobs, it seems to me, may well lack originality in the majority of cases. The point of most nose jobs is not to create a creative or distinctive look, but rather to make the patient’s nose fit some preexisting (usually, smaller) archetype of what a nose should look like. This is the antithesis of originality; it’s an attempt to make the patient’s nose less, not more, distinctive and original.
It is, however, not descriptively accurate as applied to all nose jobs. Most nose jobs probably fit this category, but some patients actually do want a nose job to be distinctive and set them apart from the crowd. Consider, for example, body modification. This practice involves alterations to the body including piercings, tattoos, and plastic surgery in order to attain outrageous and undeniably distinctive (if often grotesque) results. This presents a much harder case for the copyrightability of plastic surgery. If a patient for whatever reason wants to have a nose job to look freakish rather than to fit in, then one might have to concede that there is originality there, and such body modifications may well be copyrightable.
Beyond these doctrinal points, though, lies a prudential consideration that’s well worth considering, and has already been gestured at by an eminent commentator who’s come out against the copyrightability of tattoos. Even if some (though probably not most) nose jobs may be original, validly fixed works of authorship as a matter of statutory text, as a prudential matter the idea of allowing the human body to count as a site of fixed works of authorship may be disastrous. It would open the door to, say, copyright in hairstyles or even ripped musculature. In such a world, any picture or film that captured an image of any person could--perhaps even would--subject the photographer or videographer to infringement, with attendant financial risks (given the substantial statutory damages associated with even inadvertent copyright infringement).
And this, in turn, raises the specter of ceding rights in one’s body to another person, since it's the author of a work of authorship, not the object in which the work is fixed, in whom those rights vest. If a plastic surgeon has the copyright in my nose, then am I constrained in my ability to go in public to display it? Do I have to get permission to have photos of my face taken? And since copyrights can be sold and re-sold, I may not even know the person who has rights that constrain the use of my own body.
This point is all the more concerning to the extent that some works of visual art are also subject to the moral rights scheme of the Visual Artists Rights Act, which could mean that surgeons (or whoever owns the copyright in the relevant nose) have rights of integrity and attribution concerning the patient’s nose, so that they might have a cause of action should the patient want to alter their nose (with more rhinoplasty or a nose ring) or lie about its origin (and I suspect many patients indeed want to downplay having had a nose job).
At the end of all this, what’s the verdict on the copyrightability of nose jobs? I think many, probably most, nose jobs would fail because they’re insufficiently original to merit copyright protection. Those few that do possess sufficient originality, though, present a harder case. While they do seem to meet the relevant statutory standards for copyrightability, the prudential considerations raised by accepting the idea of owning works of authorship fixed in the human body are concerning, and I think may counsel in favor of a categorical rule that fixations in the living human body are not valid fixations for copyright purposes.
And this final point, if persuasive, returns us to the subject matter from which this post originally grew: the Mike Tyson tattoo case. Most commentators (self included) readily assumed that tattoos are valid fixations, and if original, merit copyright protection. But if there should be a bright-line rule precluding copyrighted works fixed in the human body, then this would seem to exclude tattoos from the realm of valid fixations as well. This does not mean, of course, that tattoo artists could not copyright their designs, but only that unauthorized tattoos of those designs would not be actionable because they would not count as “copies” within the meaning of the Copyright Act.
Saturday, May 07, 2011
Goodbye, and My FSU L. Rev. Article on Intellectual Property
I want to thank Dan and everyone at Prawfs for another wonderfully enjoyable time guest blawging.
I feel especially connected to Florida State this Spring, since I just placed an article in the Florida State University Law Review. That manuscript is up on SSRN. It's called Intellectual Property and the Incentive Fallacy. I argue that the fundamental economic premise of copyright and patent – that public intellectual goods need external incentives – is wrong. Using recent scholarship in behavioral economics, psychology, and business-management studies, I contend that it can now be persuasively demonstrated that natural and intrinsic motivations will cause technology and the arts to thrive even without externally supplied rewards.
I wish everyone a wonderful summer. Here's hoping you don't run into any of your students at the beach. So lawng, prawfs!
Monday, May 02, 2011
Back in the saddle, again
I'm glad to return for my second stint as a guest blogger here at Prawfsblawg.
The title of this post might have evoked memories of Gene Autry's signature tune, Aerosmith's single from the Rocks album, or a little known gem from the band Somebody Still Loves You Boris Yeltsin. While the songs are distinctive, the titles are the same. Neverthelsss, Autry would have no cause of action against Aerosmith, and Aerosmith would have none against Somebody Still Loves You Boris Yeltsin. Copyright doesn't protect song titles, and the 2d, 6th and 9th circuits have all embraced a public interest balancing test for potential trademark infringement suits: the use of the same title as an earlier work may only be enjoined if it had no artistic relevance to the underlying work, or was expressly misleading. Nothing about the reuse of "Back in the Saddle" as a song title would likely mislead consumers, and every song includes the phrase in its lyrics.
Here's a slightly more interesting counterfactual - what if Gene Autry had decided to make a comeback as a live performer in 1984, the same year that Aerosmith reunited with their original guitarists, and both artists hit the road on respective "Back in the Saddle" tours?It would be hard to confuse Gene Autry with Aerosmith, but perhaps trickier to distinguish the tours one from another. Still, the problem is easily solved if consumers ask for Gene Autry or Aerosmith tickets. "[T]rademark infringement protects only against mistaken purchasing decisions and not against confusion generally." Lang v. Retirement Living Pub. Co., 949 F.2d 576, 583 (2d Cir. 1991). In addition, for both artists, "back in the saddle" would be a fair description of their return to live performances. Thus, there is likely no trademark infringement. (Aerosmith's "Back in the Saddle" tour in 1984 was seen as a triumphant return. Autry had long retired from performing by 1984.)
It might be a closer call if you imagine a counterfactual Led Zepellin reunion in 1984 (pick your favorite drummer to replace the deceased Jon Bonham) for a "Back in the Saddle" tour. There, the styles of the band are closer, and the potential audience crossover much more significant. Tickets will probably still be purchased by consumers looking for the artist, and not the tour, and Led Zepellin is, in the colloquial use of the phrase, in fact "back in the saddle." Again, Aerosmith likely has no claim.
Aerosmith's best hypothectical case might be against an Aerosmith cover band, hitting the same cities on the same dates in 1984 as the original, under a "Back in the Saddle" banner (either tour name or band name). It's not impossible to imagine a consumer mistakenly purchasing tickets to a smaller venue, in the same city, who thinks she is getting the genuine article when she purchases tickets to see "Back in the Saddle." You might also imagine momentary consumer confusion, which has been enough to support a claim of trademark infringement as initial interest confusion, first articulated by the 9th Circuit in Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999).
More to come, of course, on the intersection of trademark and copyright law, problems with jurisdiction and venue in intellectual property litigation, and thoughts inspired by the recent Rethink Music conference co-sponsored by the Berkman Center for Internet and Society, Harvard Business School, and the Berkelee College of Music.
Friday, April 29, 2011
WHAT?!? Copyright and the Royal Wedding
I watched some of the royal wedding this morning, and I must say, it made me feel all warm and fuzzy inside. It reminded me a lot of my own wedding. I mean, mine was a lot smaller, of course, but it was smiles and sunshine all around. And like today's wedding, it featured an exquisitely beautiful bride and a slightly funny-looking groom.
What a lovely day. Naturally, my thoughts turned toward intellectual property law.
It was at that point I was shocked to find out something that was WAY different with my wedding. I managed to negotiate MUCH better legal terms with our wedding photographer than Will & Kate did. Specifically, I had our photographer agree that my wife and I would be deemed the authors of all photographs, and all rights and copyright interests in the photographs were assigned to us in perpetuity. It was our freaking wedding, after all.
So how is it that Will & Kate left the copyright to their official pictures with their photographer?!? Persons using the photos for editorial use are required to include this credit: Copyright 2010 Mario Testino. THAT DRIVES ME CRAZY!!! I can't stand it when any wedding couple lets a photographer bully them around on rights issues. But for the British Monarchy to do this? It's positively disgraceful! It makes me want to BASH MY HEAD INTO A WALL! I mean I just can't freaking believe it!!!!!!!!!!
C'mon people, stop getting screwed around by photographers on rights issues! Have a spine!! And if you are heir to being the head of state of a commonwealth that embraces more than 100 million people spread around the globe, then WISE UP AND START RULING SOME BRITANNIA!!!
OMG, I am so worked up right now. I can't even begin to talk about how law professors habitually cave to student law-review editors by signing away copyright to articles. I would completely lose it and have a coronary.
Thursday, April 28, 2011
When the Right Interpretation of the Law is a Scary One (CFAA Edition)
A divided 9th Circuit panel decided U.S. v. Nosal today. The case initially looks like a simple employee trade secret theft case, but the Court's interpretation of the Computer Fraud and Abuse Act has potentially far reaching ramifications. Here's the thing - the court (in my view) reached the right ruling with the right statutory interpretation. However, that interpretation could possibly make many people liable under the CFAA that probably shouldn't be.
I discuss more below.Here are the basic facts: Nosal is charged with conspiracy to violate the CFAA, 18 U.S.C. 1030 because he conspired with employees at his former employer. Those employees accessed a database to obtain secret information that Nosal allegedly used in a competing business. Importantly, those employees had full access rights to that database. They didn't hack, steal a password, rummage around, or anything else. They just logged on and copied information. Those employees had agreements that said they would not use the information for purposes other than their employment. I suspect that the agreement would not have even been necessary if it were reasonably clear that the information was trade secret, but that's an issue for another post.
The provision at issue is 1030(a)(4), which outlaws: "knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value...."
The district court dismissed the indictment, ruling that the employees could not have exceeded authorization. The court relied on a prior case, called LVRC HoldingsLLC v. Brekka, to rule that the employees could not have exceeded authorized access because database access was within their employment. According to the lower court, one can only exceed authorization if one wanders into an area where there is no authorized access. The appellate panel talks about drive letters. If the employees could access the F: drive, but not the G: drive, then any data taken from the F: drive for any purpose could not exceed authorized access, but gathering data from the G: drive would exceed because the employees were not supposed to go there. By analogy here, there could be no exceeded authority because the database was part of the employee access rights.
The Ninth Circuit panel disagreed. It starts with the definition in 1030(e)(6):
the term “exceeds authorized access” means to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter
The Court focuses on the "so" term. It argues that "so" would be superfluous under the district court's reading. After all, exceeding authorized access means you must have had the right to be there in the first place. To limit this to different areas of the database doesn't work, since the statute plainly outlaws access to the computer when such access is then used to obtain information that the accessor is not entitled to obtain.
The problem with this reading, of course, is that the employees arguable were entitled to obtain the information. Not so, says the Court - and this is where the trade secret angle comes in. The employees were decidedly (or at least allegedly) not entitled to access the information if the purpose was to leak it to Nosal.
How does the court deal with LVRC? It appears that the two cases are consistent:
1. LVRC says that "without authorization" requires no access at all to a drive, not exceeded authorization (there are some parts of the statute with require no authorization, and some where exceeded authorization is enough).
2. LVRC makes clear that where employers set access policies and communicate them, then employees may be deemed to have acted without authorization.
3. LVRC envisions exactly the result in this case:
Section 1030(e)(6) provides: "the term `exceeds authorized access' means to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter." 18 U.S.C. § 1030(e)(6). As this definition makes clear, an individual who is authorized to use a computer for certain purposes but goes beyond those limitations is considered by the CFAA as someone who has "exceed[ed] authorized access." On the other hand, a person who uses a computer "without authorization" has no rights, limited or otherwise, to access the computer in question.
Of course, it is not this easy. LVRC had a footnote:
On appeal, LVRC argues only that Brekka was "without authorization" to access LVRC's computer and documents. To the extent LVRC implicitly argues that Brekka's emailing of documents to himself and to his wife violated §§ 1030(a)(2) and (4) because the document transfer "exceed[ed] authorized access," such an argument also fails. As stated by the district court, it is undisputed that Brekka was entitled to obtain the documents at issue. Moreover, nothing in the CFAA suggests that a defendant's authorization to obtain information stored in a company computer is "exceeded" if the defendant breaches a state law duty of loyalty to an employer, and we decline to read such a meaning into the statute for the reasons explained above. Accordingly, Brekka did not "obtain or alter information in the computer that the accesser is not entitled so to obtain or alter," see 18 U.S.C. § 1030(e)(6), and therefore did not "exceed[ ] authorized access" for purposes of §§ 1030(a)(2) and (4).
This footnote seems directly contrary to the outome in Nosal. It is also an example of something I tell my cyberlaw students - make every argument you can! How could LVRC not have made the exceeded authorization argument directly on appeal? Surely that issue merited more than a footnote.
The court doesn't deal with this footnote, but instead makes some factual distinctions that work for me. First, in LVRC the defendant had unfettered access with no clear rules about the data. Second, in this case there is a clear trade secret misappropriation, whereas in LVRC the allegation was a nebulous "breach of duty" argument without any real showing that the email accessed would be competitively used against LVRC.
Maybe it is because of my background in trade secret law, and I suspect that I may be in the minority among my cyberlaw colleagues, because I think this was the right interpretation and the right outcome. Exceeding authorized access has no meaning if it does not apply in this case. To me, at least, this was a textbook case of access that starts authorized, but becomes unauthorized as soone as the nefarious purpose for the access is revealed.
And now the scary part
That said, this is still scary - but the problem is with the law, not the court's ruling. Why is it scary?
First, employees who look where they shouldn't could now be considered a criminal under the CFAA, so long as they are looking at material they know they shouldn't be accessing.
Second, this is not necessarily limited to employees. Anyone using a website who starts using information from it in a way that the web operator clearly does not desire could theoretically be criminally liable.
Now that's scary.
The Nosal court tries to explain this away by saying that fraudulent intent and obtaining something of value are required under 1030(a)(4). True enough, but that's not the only subsection in the CFAA. Section 1030(a)(2), for example, outlaws simply obtaining information. Sure, the penalties may not be as severe, but it is still barred.
So, how do we reconcile this case with common sense? Are all web users now criminals if they lie about their age or otherwise commit minor violations? I doubt it.
First, I think there must be some independent wrongful action associated with the action - a tort that common folk would understand to be wrongful. In this case, trade secret misappropriation was clear. LVRC v. Brekka went the other way because it was not at all clear the action was independently wrongful and thus something the employer would never authorize. I tend to think that browsewrap agreements on websites won't cut it.
Second, the wrongful action has to be tied somehow to the unauthorized access. In other words, lying about your age shouldn't affect access rights generally, but lying about your age might very well be a problem if the reason you did so was to prey on young children. I'll leave others to debate how this might apply to the Lori Drew case. The recent case of MDY v. Blizzard makes this connection for the Digital Millenium Copyright Act, and it seems like a reasonable one under the CFAA as well.
The CFAA scares me, and it should scare you, too. But its not as scary as many make it out to be - at least I hope not.
Tuesday, April 26, 2011
Civil Procedure in Patent Clothing
The Federal Circuit Court of Appeals recently decided an important patent civil procedure case (en banc) about the scope of injunctions. Tivo obtained an injunction against Echostar in a long-running patent infringement case relating to DVR software. The injunction included two features:
1. Don't distribute any new products that infringe, and
2. Disable recording in a particular list of products that have been adjudicated as infringing.
So, Echostar "designed around" the patent, or so it believed. It distributed its modified DVR software in new products and re-enabled recording in the existing products using the modified software.
The district court held that the change by Echostar was insignificant and thus infringing, because its "design around" infringed the patent in a different way. Echostar argued that any attempt to design around the patent warranted a new trial.
The court also held that disable means disable, and reenablement - even if non-infringing - was contempt of court. Echostar argued that the injunction was overbroad, and it was improper to enjoin non-infringing products.
So, the question on appeal was how patent contempt proceedings should proceed. I discuss below.First, the easy issue - the disablement injunction. This one is cut and dry. The injunction - though surely overbroad - was not appealed by Echostar, nor did Echostar file a motion to modify the injunction. Quite simply, it misread the injunction (whether intentionally or not is a question I will leave to others, though let this be a cautionary tale).
As such, the court ruled that this was an easy case - if you are enjoined, you must follow the injunction, appeal it, or convince the court that it is overbroad. Overbreadth complaints are not well taken after the injunction is violated.
I'm not a Civ Pro guru, but this seems to comport with my general understanding of injunction law. It is also the rule I followed in practice, which was painful the few times I had a client on the wrong side of a nutty ex parte temporary restraining order in trade secret cases. ("The defendant is enjoined from talking to any of its customers about anything, including the existence of this order.")
The second issue is slightly more interesting - at what point does the defendant get a new trial to determine whether a design around is still infringing? In the past, the court had a bit of discretion to determine whether or not there is a "colorable" difference in products between the original and the design around. Indeed, the first panel to hear Tivo v. Echostar relied on this to say that the district court was within its right to find infringement by other means.
The en banc panel retained the "colorable differences" test with respect to whether a contempt proceeding was proper - if the new product is more than colorably different, then there is no contempt. This consideration looks at the changes to the disputed patent claim elements by the defendant, and considerable changes mean the court cannot even get into an infringement inquiry. In ththis case, the court remanded so the district court could determine whether there are more than colorable differences in Echostar's new product; the language seems like a clear hint that there are colorable differences.
The court added a new wrinkle, ruling that patentees must also show that the new product infringes even if there are no colorable differences. Of course, this makes a lot of sense - if the injunction is to not infringe, then one must infringe to violate the injunction. But when would there be no colorable differences, but also no infringement? More often than you would think, especially where the infringed element is a very small piece of a big puzzle.
Further, who decides whether there has been infringement? Should the court make the decision? Is the defendant entitled to a new trial? Here the opinion is not very helpful. Quoted below is the court's announced rule, which seems to imply that this is a judicial function that doesn't require a new trial:
[T]he court is required to evaluate the modified elements of the newly accused product against the asserted claim, on a limitation by limitation basis, to ensure that each limitation continues to be met. In making this infringement evaluation, out of fairness, the district court is bound by any prior claim construction that it had performed in the case. The patentee bears the burden of proving violation of the injunction by clear and convincing evidence, a burden that applies to both infringement and colorable differences.
This seems clear - the district court judge should go element by element to see if infringement remains. Simple enough, right? Except for when the court is not supposed to make the determination. In this very case, for example, the court states: "It is also possible that, in a new infringement proceeding, a fact finder could conclude that the PID filter in EchoStar's redesigned device meets the "parsing" limitation and that the devices continue to infringe the asserted claims, but that should not be decided in a contempt proceeding."
This quote leaves the question unclear - should any infringement be retried? Defendants everywhere would argue that yes, every claim of non-infringement must be retried.
I'm not so sure. I think the best way to read the case is that the retrial of infringement only happens where the court finds colorable differences. In other words, where the redesign is targeted at the specific claim elements that were disputed and proven at trial. If the changes are only small, then the judge can verify that there is still infringement (or not). But where the changes are big and targeted at disputed claim elements, then allegations of continued infringement by other product features must be retried. This interpretation helps reconcile the seemingly contradictory quotes above, and also makes sense in practice.
There are longer term consequences from this rule. First, it might give an incentive to overlitigate, because patentees will now want to prove as many alternate forms of infringement as possible. Of course, maybe they do that anyway. Second, it puts pressure on the rule that winning parties cannot appeal arguments they lost. After all, it is much cheaper to file a contempt claim than to retry infringement in case of a design around, and then appeal the court's errors.
Even so, this seems to be a reasonable marriage between basic civil procedure rules and specialized patent rules about what it means to violate an infringement injunction.
Thursday, April 21, 2011
The Gaga Saga as a law-and-norms story
What little I observe of entertainment news has suggested that nothing titillates audiences and outlets more than a public spat (or, as the case may be, kerfuffle) between two celebrities. Yesterday’s to-do du jour pitted Weird Al Yankovic against Lady Gaga in the court of pop-cultural opinion. As Al described in a thorough blog post, he wanted to parody Gaga’s “Born This Way” with a knockoff titled “Perform This Way” that would poke fun at Gaga’s outrageousness (raising the question whether you can parody someone whose style borders on parody anyway). Al, as is his custom, gave Gaga (through, it appears, her management company) copies of the lyrics, and asked for permission to make the parody. Given that Gaga’s original song is “an earnest human rights anthem” (Al’s words and opinion, not mine), Weird Al also offered to give any profits from the song to charity.
Gaga’s management company responded that she’d have to hear the song before approving, so Al went to the considerable time and expense of creating a fully mastered sound recording, and submitted it to Gaga’s management company. Gaga apparently finally formed an opinion: No. Al, peeved (in part because he seems to be aware that he probably does not even need to seek permission for parodies under federal copyright law’s fair use doctrine), went ahead and released the song on YouTube without the accompanying video that he’d been planning.
The internets responded quickly, as they do, and the verdict was squarely on the side of Al. The comments on Al’s blog post about the Gaga Saga were particularly malevolent toward Lady G, and in the midst of the bile-fest, a reversal occurred. Now the word from her camp (pun fully intended) was that Gaga loved the song, and was thrilled to give permission and have Al parody the living hell out of it, video, album, and all. The story is that Lady Gaga had never heard “Perform This Way,” and that her manager had wrongly reported that she wanted to deny permission for the parody (indeed, he appears never to have actually told her about the parody).
This ultimate outcome isn’t surprising. Weird Al always asks for permission to do his parodies, and he almost always gets it (though there have been other testy misunderstandings, including one involving Coolio and Weird Al’s “Amish Paradise” parody of “Gangster’s Paradise”). But how the Gaga saga unfolded is unusual, and, I think, interesting in what it tells us about how social norms interact with, and often push to the sideline, legal doctrines that formally mediate the rights of owners and users. I say more about the interaction of copyright law and social norms, and what the Al/Gaga tiff says about it, below the fold.
Most law professionals, I’d wager, tend to be legal centralists. That is, we assume that law is a, if not the, primary determinant of people’s conduct. Criminal laws purportedly make would-be wrongdoers think twice before doing something awful like jaywalking or marrying someone of the same gender. Economic actors are thought to bargain in the shadow of the baseline entitlements law creates. But lots of evidence suggests that this legal centralist account often fails. I just finished a paper analyzing an elaborate regulation scheme that arose, and persists, with little if any thought about available IP law. And the Gaga saga provides an object lesson illustrating how disputes can arise and be resolved in ways that are unrelated to, and in some respects even inconsistent with, what law might predict.
Start with Weird Al’s practice of seeking permission for his signature parodies. This move seems puzzling from a legalist perspective because Al’s works are pretty clearly the kinds of uses that are permitted pursuant to the fair use provisions of the Copyright Act. They’re parodies (because they mock the original work directly), and while that’s not dispositive of the issue, parodies are a form of use that’s strongly favored as fair following Campbell v. Acuff-Rose and its progeny.
And yet despite his apparent entitlement to parody without permission, Weird Al goes about seeking it. Why? My guess is that this practice is driven by norms and practices distinctive to the music industry. By asking artists whether he can parody their songs, Weird Al shows respect to his fellow musicians—a gesture whose effectiveness may be enhanced by the fact that it’s unnecessary. (Consider by comparison the tradition of asking a bride’s father for permission to marry his daughter—everyone knows that it’s not necessary, but it’s a nice way of building goodwill by performing deference.) And showing this kind of respect likely has long-term salutary effects for Al, by building a store of goodwill within the music world, and by forestalling litigation that might otherwise ensue (if only out of spite).
The trick, of course, is: what do you do when you ask for permission to do something you’re entitled to do anyway but get denied? That was the conundrum in which Al found himself yesterday, and a legal centralist would likely predict that he’d go ahead and exercise his prerogative and parody away. But he didn’t: Instead, Al took a halfway measure, apparently conceding not to include the "I Perform this Way" in the forthcoming album, but blogging about the episode at length, and posting the song (sans video) on YouTube with notes about how Gaga had negged it.
The ensuing response was swift and conclusive: the court of public opinion roundly rejected Lady G’s rejection of the parody, and delivered its verdict in terms ranging from tactful to the kind of unhinged-crazy that is so distinctive to internet threads. I cannot explain why or how Gaga and her people reversed themselves, but I strongly suspect the outpouring of vitriol had something to do with it. At the very least, the angry tweets and posts brought the issue to the attention of Gaga, who learned that her manager had negged the song without her knowing about it. Law again appears to have played little role. One can imagine a legalist narrative (Weird Al says, “I’m entitled to make this song anyway per fair use, so it’s going in the album, like it or not,” and in light of that admonition, Gaga capitulates), but instead we see social forces—mass outrage, directed shaming—doing the work.
It’s tempting to read too much into stories like this. Legal debates (and non-legal debates, obv.) often get reified into their polar categories, with aficionados of each side claiming that an anecdote illustrates the truth of their preferred camp (“I told you law was ir/relevant!”). I want to resist this temptation here, first by pointing out that (again, obv.) this single anecdote can’t do sweeping analytical work, but also by stressing that it shows at most that law is marginal, but not irrelevant. Perhaps Weird Al’s success in gaining permission for his parodies is due in large part to the owners’ knowledge that he’s likely entitled to parody them anyway, so resistance would be futile (though it should be observed that Al was doing this well before Campbell adumbrated parody’s status as a favored category of use in 1994). And perhaps the outrage about Gaga’s initial response was due to her denying Al what was perceived to be his entitlement at law. So the players in the Gaga saga may not have been explicitly conducting themselves in the shadow of law, but law may have been lurking in the shadows in ways that are not obvious.
Finally, it’s also tempting to conclude that when a story like this works out for the best, that it’s more evidence that social norms tend to produce normatively attractive outcomes. But this, too, would be premature, I think. In this case, the screaming cacophony of the internet pushed in favor of, and may have helped achieve, what seems like the right result (under law certainly, and probably also normatively). But this sanguine story shouldn’t lead us to be uncritically enthusiastic about the wisdom of cyber-crowds. One sobering note is that the many posters who excoriated Lady Gaga got their facts exactly wrong. If her official story is true (and I have no reason to think it's not), Gaga never actually denied permission for “I Perform This Way,” but you won’t see any retractions from the brave anonymous posters who were calling for her scalp before getting all the information. This isn’t to suggest that the collective voice of the internet is inevitably bad, either, but only that it has no intrinsic moral valence. This voice is a powerful force, like gravity or desire, and like those other natural forces can be directed at bad as well as good ends.
Patent Troll Myths
My study of non-practicing patent plaintiffs was sparked by a discussion with a colleague about where patent trolls come from. My theory was that patent trolls tended to enforce patents that startups obtained, but that lay fallow when the startups lost funding. Unfortunately, I had no data to back up my intuition, nor did anyone else. So, I thought I would gather that data.
Thus began two years of data gathering. I started with the top 10 most litigious NPE's (since 2003), as reported by Patent Freedom. With some help from Patent Freedom, I then found every case I could involving these NPEs (1011 in total) and then found every patent asserted in those cases (400 total). I then drilled down, recording information not only the patents, but who obtained them. Finally, I gathered information about the organizations that obtained patents (121 total) .
Below is a summary of some interesting things I found. There's a lot more in the draft, of course.First, contrary to popular belief, not all NPE patents are business methods patents. Indeed, only 32 of the 400 patents (8%) included class 705 (the patent class most associated with business methods). Another 88 patents are in patent classes usually associated with software, for a total of 31% for both business method and other software patent classes. This probably overstates the number, because patents may be assigned to more than one class.
Of course, there may be others that are not classified as software, but certainly not the other 69%. Classifcations included telephonic communications, television, video distribution, and computer hardware. Many of the patents, unsurprisingly, related to communications -- a field of growing importance.
Second, the study finds that NPE patents do not overwhelmingly come from non-productive companies. Of the 400 patents, 286 were initially assigned to a company; there were a total of 121 unique companies listed as initial assignees on these 286 patents. More than 75% were assigned to corporations while the remainder were assigned to LLC’s and limited partnerships. Another five patents were initially assigned to three other entities: the U.S. government, a hospital, and a university.
Finally, the article makes some general observations about patent quality - namely that patents asserted by NPEs look a lot like patents asserted by productive companies according to objective measures. The next phase will look at the litigation outcomes to determine the patent quality of the studied patents. I hope to learn much more about quality over time and by technology category, among other things.
In the meantime, I look forward to any comments readers have about the study or its conclusions. I was surprised about how wrong my own intuition was, which is why I focus on the myths about patent trolls. Just about everything we thought we knew - good or bad - does not appear to be true. The article may not change too many minds about patent trolls. Those who believe NPEs are bad for society won't care much about where they came from. However, I think that NPEs are a reflection of inventive society -- their patents come from all sorts of sources, and how we feel about NPEs should depend on how we feel about the people who invested in the research that create the patents and the role patent law played in innovation.
Friday, April 15, 2011
What is a Patent Troll?
I plan to write a couple posts about my forthcoming article called Patent Troll Myths. The article is a culmination of two years of data gathering and analysis from many different sources.
But first, how can we assess myths about patent trolls if we don't know what they are? There are two ways people deal with this: some try to define them, and some sidestep the issue. I sidestep the issue in my study, so I thought I would try to define them in this post.
While patent trolls makes for a catchy title, I consider my study to be one about "NPEs" - or "non-practicing entities." An NPE is any patent owner/licensee/enforcer that does not create a product - and thus cannot be countersued for patent infringment. More on the dynamics of this in a bit.
There are many different types of NPEs - individual inventors, inventor owned companies, universities and their related entities, failed companies, design houses and think tanks, patent acquisition and licensing companies, and even enforcement companies affiliated with productive companies.
The core issue is that patent rights are alienable; any owner can transfer rights to another. Thus, many NPEs may enforce patents created by inventors at productive companies.
If patents are alienable, then why should we care about NPEs? For one, patent defendants just hate them. As noted above, an NPE cannot be countersued for infringment, so there is no "mutually assured destruction" like you might see between competitors (how often do you see big companies suing IBM?). Further, there are fewer easy settlements, because NPEs have no need for a cross-license to patents owned by the defendant. Thus, defendants feel like they are forced to settle cases for cash just to avoid litigation costs.
And this is where the pejorative term "patent trolls" comes in. They hide under the bridge and wait for industry to create (allegedly) infringing products, only to block the path and exact a toll.
For defendants, it seems that every NPE should be a troll - they are all immune from countersuit for infringement and thus have no reason to be "reasonable" in litigation settlement talks. (This is untrue, of course - patentees always risk having their patent invalidated; if they didn't you would rarely see settlements instead of the actual widespread settlements).
For some reason, though, not all NPEs are called trolls. Universities, for example, do not seem to be common targets for ridicule. Perhaps this is because they often license to productive companies; universities very rarely enforce their own patents. Individuals are rarely called trolls. One might think this is because of the garage inventor ethos. I'm doubtful, though, because individuals become trolls when they gather enough resources and sue enough defendants to get noticed. At that point, they may be more likely to try to stretch their patents to cover technologies that they did not invent.
This, I think, leads to the real definition for me - I think trolls are trolls when they overreach. So what do we call practicing entities that overreach? We'll leave that for another day. Alas, we will also leave the question of overreaching for future study as well. Phase II, patent quality and litigation outcomes, gets underway this summer.
This study, however, will look at the companies that obtained the patents that NPEs are enforcing. Were they NPEs? Were they productive companies? I'll explain the study and the results in a future post.
Thursday, March 24, 2011
Google Takes One on the Chin
Unless you’ve been living under a rock for the past five years, you’ve heard about Google Book Search, an online database that Google is filling by scanning books from the collections of multiple academic libraries. Google partnered up with the libraries for access to their collections, concluding that it didn’t need to ask permission from copyright owners to copy the books or make them available online (with restrictions at Google’s discretion). Author and publisher groups brought a class action law suit, and Google sat down with the plaintiffs to hammer out a settlement agreement. The agreement, as presented to Judge Chin, then of the Southern District of New York, not only proposed to settle claims of prior copyright infringement, but also set up future business relationship between Google and copyright owners, using an opt-out mechanism instead of securing a license.
Judge Chin, sitting by designation as a newly appointed Second Circuit judge, issued an opinion Tuesday denying the motion to approve the settlement agreement. While the opinion does not rule on the merits of Google’s fair use defense, some of the court’s language suggests it would cast a skeptical eye on Google’s behavior in a case on the merits. Judge Chin used words like “blatant” to describe Google’s copying activity, and quoted hostile language from objectors to the settlement, who called the opt-out strategy “a shortcut” and “a calculated disregard of authors’ rights.”
I disagree that there was calculated disregard of authors’ rights. The way many scholars have viewed the case, it was a close call whether Google could copy whole books and place them in an online database for search (and eventual commercialization). Google took a calculated risk, under a standard view of fair use analysis, and one that could still pay dividends if the case gets litigated. I don’t think Google's fair use argument is a close call at all, but not for the standard reasons.In a paper now available for consideration by your local law review editorial board, I argue that built into the Copyright Act are the seeds of a limited right of first online publication. Historically, the right of first publication protected the ability of the copyright owner to decide when to bring a work to market, and the right was strong enough to trump an otherwise reasonable fair use defense. A right of first online publication would thus dispose of (or at least weigh heavily against) a fair use defense raised to excuse the unauthorized dissemination of a work online—even those works previously disseminated in a more restricted format.
Courts and scholars tend to treat publication as a “one-bite” right, exhausted once the work was released in any format. A reexamination of its history indicates instead that the right of first publication often protected successive market entries. Where courts perceived a significant difference in scope and exposure to risk between a limited initial publication and more expansive subsequent publication, the right of first publication protected that subsequent entry.
In addition to the historical analysis, networks theory sheds light on the difference in scope between print and online publication. The dissemination of print books occurs in a conserved spread: while the physical embodiment of the content moves from point to point, the total number of copies in the network remains stable allowing the owner to correctly assess the risks inherent with market entry. Online dissemination occurs as nonconserved spread: any holder of a digital copy can instantly disseminate it to any point online while retaining the original. The differences are significant enough that print dissemination should not be held to exhaust or abandon the right of first online dissemination.
Copyright law will likely need to adapt to multiple format changes over the effective life of a copyrighted work. Recognizing the right of first publication as a rule governing transitions into new formats will provide courts, copyright owners, and technology innovators with firm rules allowing the copyright owner to decide if and when to adopt a new technology. Intra-format fair use is an important part of the bargain between copyright owners and society. We should be solicitous of intra-format fair use, but much less solicitous on inter-format fair use, particularly in those cases where unauthorized use imports the work into a previously unexploited format, and the new format is significantly broader in scope.
There are close fair use calls in disputes over unauthorized use of copyrighted works. Google’s opt-out copyright strategy, for books never before made available online, was no close call at all.
Monday, March 07, 2011
Aggressive C&D Letters: Turbulence in the Copyright Phase Transition (Part 3 of 3)
Last week, Nobutoshi Kihara, "the wizard of Sony," died at the age of 84. Kihara was the engineer responsible for a large number of the early electronic gizmos that put Sony on the map: one of the first tape recorders, the transistor radio, 8mm film cameras, digital cameras, and one of the biggest of them all, the Betamax videocassette recorder. In other words, Kihara helped to bring recording and copying to the masses. He was thus a significant figure in what could fairly be called the Information Revolution, the one we're all living in right now.
What does all this have to do with cease and desist letters like the one Jeffrey Koons's lawyers sent to Park Life Gallery? I think it helps explain the sense that something about copyright law has shifted in a way that is generating more such controversies. A number of scholars have tried to locate that shift in the law somewhere: in additions to copyrightable subject matter, the length of the term, changes in fair use doctrine, anticircumvention rules, statutory damages. I believe that search is misguided. I think the relevant shift is not in the law, it's in the landscape.
The Raustiala and Sprigman Freakonomics article I linked to at the start of this series tried to link a change in C&D letter practices to some sort of change in statutory damages. But for the reasons stated in the prior two posts, this seems unlikely. Statutory damages have been the way they are for more than a century (with one important difference that's not relevant to letters like Koons's). And it's hard to see how the possibility of statutory damages by itself would drive aggressive claims in copyright law to a greater extent than that seen in other areas. After all, the claim is not that copyright is just like the rest of the law, but that it's importantly different somehow. How?
There are many differences between copyright now and copyright 40 or so years ago, but only one really explains the profound sense among many that copyright has gone off the rails: copyright simply, as a practical matter, applies to more people than it once did. Copyright 40 years ago was a regulation of publishers and distributors. That is, businesses and institutions, as well as professionals such as authors. Repeat players. Those were the only entities that had to worry about copyright.
The technologies invented by Nobutoshi Kihara and his cohort changed all that. They brought copying and distribution--the bread and butter of copyright law--to the masses. That is, ordinary individuals are now authors, publishers, and distributors, and are increasingly being subjected to the law applicable to those entities. However, individual users had over the course of decades, if not centuries, abided by a different set of rules for goods containing creative works: if it's in my physical possession I can do anything I want with it. To the extent there has been a change in the claims copyright owners make in cease-and-desist letters, it has been occurring in the context of this clash. Practices or users that previously never would have come to the attention of copyright owners, and thus were de facto outside the scope of copyright law, now fall within that scope, and are having claims directed against them -- and thus not only do small shops like Park Life Gallery come to the attention of major copyright owners like Jeffrey Koons, but that attention comes to everyone's attention as well, as it plugs into a battle narrative taking shape.
Copyright law was not built for this sort of conflict. That fact was made clear in one of the first cases involving copying technology, one that pre-dated Nobutoshi Kihara: photocopiers. In Williams & Wilkins v. U.S., famed copyright practitioner Alan Latman crucially relied on the de facto scope of copyright law in the 1970s in his oral argument before the Supreme Court:
Only a few minutes remained in the half hour allotted for his argument, and Latman had so far been able to sidestep the question he feared most. But now Chief Justice Burger returned to the question of Library of Congress practice. “It’s not uncommon for judges, members of this Court and others, to call on the Library of Congress for a book, sometimes perhaps it’s a book, of which they have only one or a very few copies, at least I assume that, because frequently we get a request, ‘Will you please return the book.’ Well, sometimes instead of returning the book if we are not finished with it, speaking personally, I have Chapter 13 or Chapter 14 copied on the Xerox machine. As far as I know the Library of Congress has never sent photocopies of anything. They send the original.” Is such a borrower, Burger wanted to know, “running up against this statute and these claims by making a copy for his own use, copyrighted material?” . . .
Latman responded, “That is a harder question, which we think is quite different from this case.” After circling briefly, he gave his well-prepared answer: “Nobody would sue. And I think that’s quite significant here, because it’s impractical for anyone to sue.” . . .
The Chief Justice smiled, deciding not to press the point, deflecting it instead with what in the Supreme Court passes for humor. “Is it your opinion that nobody would sue the Chief Justice or nobody would sue anybody?” The courtroom burst into laughter.
Paul Goldstein, Copyright's Highway 94-95 (rev. ed. 2003). [Actually, listening to the audio, I've just noticed that it's Justice Rehnquist that made the joke at the end, not Chief Justice Burger. Burger then seemed to accept the de facto distinction and let the argument move on.]
The irony is that copyright owners and critics alike look backwards for a solution. Copyright owners want to bolster the old framework applicable to publishers and distributors and apply it to the new publishers and distributors: individuals. But copyright critics likewise look to the old framework as well, for defenses. Those defenses, like copyrightability and infringement doctrine, took shape in a world of costly physical limitations and the large-scale enterprises needed to overcome them: fair use (a game for repeat players), insanely detailed statutory exemptions (ditto), first sale (disposing of physical copies), personal or noncommercial uses, use of physical goods in the home. But those concepts are all fading into irrelevancy. The angst expressed at aggressive cease-and-desist letters is the angst of staring into the void and not knowing what is there.
Wednesday, March 02, 2011
Are Meritless Claims More Prevalent in Copyright? Part 2 of 3
This is the second of a series of posts considering whether something about copyright's statutory damages remedy is driving an increase in meritless cease-and-desist letters. In Part I I considered the origins of copyright's statutory damages remedy, and concluded that it's not really possible to draw a straight line from movie studio or record label lobbying to the statutory damages we have today. That matters because it means that nothing about statutory damages has recently changed that might explain a recent change in C&D-letter practices. But what about other changes in copyright law? It could be that something else is occurring that, in combination with statutory damages, is producing more strike suits, or at least "strike" cease-and-desist letters, than are seen in other areas of the law. In this post, I'm going to consider copyright's well-known vagueness problem.
2. Copyright's vagueness. Although Raustiala and Sprigman didn't raise it, one possibility is that the vagueness of copyright law, in conjunction with the availability of statutory damages, encourages owners to send meritless cease-and-desist letters that they would not otherwise send if the law were clear. If the law clearly bars liability, then the amount of damages is irrelevant. If I get a letter tomorrow demanding that I cease my habit of drinking coffee because that will make the moon explode, I'm going to ignore it, even though the damages from causing the moon explode would be astronomical, so to speak; and no one has an incentive to send such a letter because they know that no one would respect it.
There's three forms this concern about unpredictability or vagueness might take: 1) copyright contains more claims that are clear to lawyers but counter-intuitive for non-lawyers; 2) copyright contains a greater proportion of claims where liability is more or less clear but the resulting damages are unpredictable; 3) copyright contains more claims where liability is inherently unclear to everyone.
First, one class of vague claims is the set of all claims that are clearly meritless to lawyers--that would be Rule 11 sanctionable if raised in a court filing--but not to non-lawyers. That is, legal rules that do not conform commonly held beliefs. Cease-and-desist letters might exploit this gap by getting putative defendants to stop practices that in fact do not violate anyone's rights. Copyright certainly has its fair share of counterintuitive rules. But it's worth noting that this is a problem more with the substance of copyright law than the precision with which that substance is identified in the doctrine. Clarifying the law therefore won't do much good, because the claims are already legally frivolous by definition. Nor is changing the law to make it more intuitive to laypersons necessarily the right response. Outcomes that are counter-intuitive to laypersons abound in the law generally--indeed, it's probably to a large degree what "thinking like a lawyer" is all about. The phenomenon is driven by the fact that the law has, in many areas, an internal logic that eludes easy synopsis for nonlawyers. As a result, it is possible to bluff one's way to a settlement when dealing with an unrepresented or poorly represented party. But this is not a problem that is particular to copyright law. It might be the case that copyright produces results that are unnecessarily counter-intuitive to laypersons, and therefore unnecessarily creates such opportunities. But it's not at all obvious that this is the case. In fact, my own discussions with non-lawyers shows that, in many cases, their view of the exceptions and defenses to copyright infringement claims are often excessively cramped. Nonlawyers often believe that titles are copyrightable, that attribution is a defense, that fair use has strict percentage-based limits, that digital copies are always infringing. I don't know that we should be altering the law to match those expectations.
A second category of uncertainty is not uncertainty as to liability, but uncertainty as to damages. That is, the argument might be that statutory damages produce such an extreme variance in the amount of damages available, seemingly unconnected to the actual harm produced by wrongdoing, that calculating legal risk is impossible. It is true that statutory damages produce a extremely wide range of awards, particularly when dealing with a defendant infringing on numerous works. But the typical cease-and-desist letter is not sent to a peer-to-peer filesharer, it's sent to someone like Park Life Gallery allegedly making use of a particular work. The range of potential statutory damages against Park Life was from $200 to $150,000.
The problem with this argument is that you don't need a statutory damages provision to get damages awards that are hard to predict. Any punitive damages award is going to have, by its nature, an extremely wide range of variability, although less now that the Supreme Court has placed due process limits on it. Even actual damages can be difficult to predict. Personal injury plaintiffs and defamation plaintiffs often claim huge amounts for pain and suffering or damage to reputation. And there may also be a claim of consequential damages. At the initial stages of a dispute, a plaintiff in any number of areas of law may be claiming huge amounts of damages ultimately far out of proportion to whatever award they ultimately collect. Obviously some have decried this situation; the point here is that it's not immediately obvious that copyright's statutory damages provision--outside of the peer-to-peer context--makes it any worse.
The final class of unpredictability consists of those claims that fall into a neutral zone between violating and not violating the law. Some of those will ultimately win, and some will lose, but the neutral zone represents an area where the outcome is difficult for anyone to predict--parties, lawyers, or even judges. The concern is that some claimants will send letters with respect to claims in the neutral zone that would ultimately lose. If copyright has a wider neutral zone than other laws, then assuming an even distribution of claims, more such claims will fall in that boundary zone.
But while copyright undoubtedly has a wide "neutral zone" between clear liability and clear absence of liability, it's not obvious how the width of that zone by itself could drive more C&D letters. Consider two areas of law:
The law on the left is copyright--it has a small core of certain liability, a thick zone of uncertain liability (becoming progressively less probable the further out you get), and then finally certain lack of liability in the white area. The law on the right is something else--tax, let's say. It has a large zone in the middle of clear liability, a thin zone where liability is difficult to predict, and then passes into clear non-liability. Not that in either case, the amount of potential liability is identical. The only difference is that copyright has fewer claims that yield certain liability. Why would this generate more C&D letters? I don't see how it would. In fact, it seems like it would generate fewer. More claimants would be deterred from bothering with an uncertain claim. The mere width of the zone of uncertainty, by itself, shouldn't generate more threats of litigation.
Of course, it might be that copyright reaches too far--that some of what's in the uncertain zone on the left should be (according to some theory of how copyright should properly function) clearly outside any potential liability. But that's not really an argument about the harm of uncertainty--it's an objection to the current scope of copyright law. The solution there is not to clarify the law, or reduce statutory damages, but change the substance of the law to match the theory.
In Part III I'll consider a third possibility for what might be driving an increase in copyright C&D letters that seem overly aggressive.
Wednesday, February 23, 2011
Ballooning Statutory Damages in Copyright Law: Part 1 of 3
Over on the Freakonomics blog last week, Kal Raustiala and Chris Sprigman put up a post marking the ignominious end of the Jeffrey Koons "balloon dog" controversy. In case you missed it, a blogospheric hubbub erupted when Koons's firm, Jones Day, sent a cease and desist letter to Park Life, a San Francisco art gallery, for selling bookends that resembled Koons's "Balloon Dog" sculptures. The problem was that the bookends resembled Koons's sculptures mostly because they resembled balloon dogs, which are not copyrighted by anyone.
It was particularly ironic for Jeffrey Koons, of all people, to be making an expansive claim of copyright protection, given that Koons has been on the receiving end of a number of such claims over the course of his career, which he only recently began defeating. Park Life, represented by Fenwick & West, filed a declaratory action that began with the observation, "As virtually any clown can attest, no one owns the idea of making a balloon dog." The case quickly settled without so much as a hearing.
Raustiala and Sprigman believe there are larger lessons to be learned about copyright law from this episode; lessons beyond "clients do the craziest things." Specifically, they believe that the Koons letter illustrates the way in which copyright law allows meritless claims to succeed. This is a fairly common argument in copyright circles; the idea is that there is something about copyright law under which even claims that lose are evidence of some sort of problem with the law.
I am skeptical, at least of the idea that there is something particular about copyright law that causes overreaching claims like the Koons letter. You could tell much the same story about any number of areas of the law, such as personal injury claims, property disputes, defamation, securities fraud, employment discrimination, or heck even dry cleaning law. It could be the case that copyright is worse than all of those other areas, but anecdotes like the Koons case won't demonstrate that. And if the problem is more general, that means the solution is not at all obvious.
Here's the core of the Raustiala and Sprigman argument. After noting that ideas (such as balloon dogs) are unprotected, and that fair use limits rights even further, they write:
But that's the law on paper. The real world is different. As a result of lobbying by Hollywood and the recording industry, the law allows copyright owners — at least those who have registered their works with the Copyright Office — to win huge damages for successful copyright lawsuits. As a result, copyright owners have tremendous leverage to coerce potential defendants to stop engaging in conduct that may be perfectly legal. The cost of a lawsuit — even a lawsuit that seems unlikely to succeed — is just too great, unless the defendant is very, very sure they will win.
There's a few claims in here: statutory damages were the result of lobbying by Hollywood and the recording industry, the vagueness of copyright law encourages totally meritless cease and desist letters, and the prospect of statutory damages causes the recipients of such letters to fold. I'll tackle each of these in a separate post. (I began this as a brief response, but it now vastly exceeds the length of the original post, so really it's a series of reflections of my own occasioned by the Raustiala and Sprigman post.)
1. The history of statutory damages. Statutory damages were added to copyright law in their modern form in the Copyright Act of 1909. That act provided for damages for infringement of copyrighted works of between $250 and $5,000, or $6,109 and $122,186 in 2011 dollars. That's pretty much what we have now, even though statutory damages have been nominally tripled in the last 23 years. The current version of the Copyright Act permits statutory damages of between $750 and $30,000 for infringement, or up to $150,000 if the infringement is "willful." In fact, the 1909 Act damages were considerable higher at the low end, $6,109 versus $750 (or $200 if the infringement is found to be "innocent").
Copyright owners were obviously the most interested in 1909 in getting a more effective statutory damages award. But that wouldn't have been either Hollywood or the recording industry, both of which barely existed. This is more than a nitpick. Despite what you may have read, the lobbying battles over copyright legislation are more often than not battle royales between various competing groups. Certainly there are particular instances where the interests affected, or at least represented in the process, are more narrow. Citing Hollywood or recording industry lobbying as being the single cause of some change brings to mind the recent battles against individual or Internet infringers--Goliath vs. David, in other words. But even as late as 1976, when the current statutory damages provision was adopted, those battles were still in the future. The lobbying battle would therefore have been more complex. Statutory damages would have had as one of its primary targets those entities capable in 1909 or 1976 of committing infringements on a regular basis: that is to say, publishers themselves, as well as distributors. I don't know if there were any fractures on statutory damages in the lobbying battles before Congress but it doesn't strike me as something that would be strongly unilateral.
Congress in 1976 did change statutory damages in one very significant way that backfired: in an attempt to limit statutory damages, Congress specified that such damages be calculated "per work infringed." This was a limit at a time when infringement typically meant multiple copies of a single or small set of works. But now a typical, and unforeseen, infringement vector is the creation of a shared library of thousands of works. The statutory limitation now inflates statutory damages remedies in typical online infringement actions, with consequences I've noted elsewhere.
Of course all that has no impact on cases like Koons's. Koons was complaining about the infringement of one work, one of his balloon dog sculptures. His damages would max out at $30,000, or $150,000 if willful, both of which would have to be deemed unlikely, the latter particularly so. But perhaps the likelihood of getting damages is beside the point. Perhaps even the prospect of getting up to $150,000 for willful infringement of a single work encourages more cease-and-desist letters to be sent, or more to be complied with, or both. I'll start taking a look at that in my next post.
Tuesday, February 15, 2011
The Persistence of Legal Error
When I was in my first semester of law school, I was given a short memo assignment involving some principle of Connecticut contract law. I quickly found a case stating the relevant rule of law--every contract needs consideration, or something. But it quoted an earlier case. Being a good historian, I knew I couldn't just use the more recent case--I had to track this down to its source. So I looked up the earlier case. But that in turn cited an even earlier one for the same rule. So I looked up that one. After about nine or ten iterations of this, I was in the 18th century, and courts were still citing earlier cases, now from English reporters that I couldn't look up as easily. I gave up, and concluded that legal authority worked differently than historical authority--if an earlier court said it, that's good enough, no matter where it originated or what the original context was.
The upside of this is that rules can get transmitted from case to case much more efficiently. The downside is that errors can spread just as easily. Take the idea from copyright law that contributory infringement liability is derived from the tort law concept of enterprise liability. This explanation is widespread in the case law. See, e.g., Perfect 10, Inc. v. Visa Int'l Serv. Ass’n, 494 F.3d 788, 794-95 (9th Cir. 2007); Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996); Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290, 1293 (D. Utah 1999); Polygram Int'l Pub., Inc. v. Nevada/TIG, Inc., 855 F. Supp. 1314, 1320 (D. Mass. 1994). It's also featured in the influential Nimmer treatise: "A separate avenue for third-party liability in the copyright sphere is contributory infringement, which forms an outgrowth of the tort concept of enterprise liability," Nimmer § 12.04[A]. And, it's taught in law schools. The textbook I used to teach copyrights from 2007 through last year used to have only a one-paragraph introduction to secondary liability, followed by cases such as Fonovisa, which included the "enterprise liability" explanation. So, I dutifully repeated it to my students in both copyright and Internet Law, even though I was not really sure what "enterprise liability" was.
It turns out that it is flat wrong. Contributory infringement liability has nothing whatsoever to do with enterprise liability.
The earliest citation for the enterprise liability suggestion, and its apparent origin, is Demetriades v. Kaufmann, 690 F. Supp. 289 (S.D.N.Y. 1988). Demetriades was a case involving copyrighted architectural plans; the plaintiff claimed that the real estate agent and realty firm that had sold an empty lot were contributorily liable for the house built using infringing plans on that lot. The court had to determine whether those two defendants were indirectly liable for the infringement.
The Demetriades court began by correctly noting that "[i]n delineating the contours of this third-party liability, and because copyright is analogous to a species of tort, 'common law concepts of tort liability are relevant in fixing the scope of the statutory copyright remedy . . . .'" But then the court moved from that premise to a surprising conclusion: "Guided, therefore, by well-established precepts of tort liability, it appears that two avenues of third-party liability in copyright have grown up in the law--'vicarious liability' (grounded in the tort concept of respondeat superior) and 'contributory infringement' (founded on the tort concept of enterprise liability)."
Contributory infringement as defined in copyright law is liability for knowingly providing encouragement or assistance to an infringer; it's thus the analog of contributory tortfeasor liability for knowingly aiding a tortfeasor. See Rest. 2d Torts §§ 876, 877. It's not a form of strict liability. Enterprise liability is something completely different. Enterprise liability is a theory of tort liability that emerged in order to hold an entire industry responsible for harm caused by an industry-wide standard when identifying the particular tortfeasor in a given case is impossible. See Black's Law Dictionary, 9th ed. The classic case involves injuries caused by blasting caps to children. It can be impossible to determine after the fact who made a blasting cap that exploded. If the entire industry manufactures blasting caps that are unreasonably dangerous, enterprise liability permits a suit against everyone for their share in the harm. See Hall v. E. I. Du Pont De Nemours & Co., Inc., 345 F. Supp. 353, 376 (E.D.N.Y. 1972).
Bill Patry, in his recent copyright treatise, spends an entire section refuting the "enterprise liability" connection. See 6 Patry on Copyright § 21:44. He goes out of his way to point out that the Demetriades decision was issued by a court that, although within the confines of the Southern District of New York, was in fact located in White Plains. I take it the suggestion is that once you leave the sophistication of Manhattan, knowledge of copyright law decreases proportionately. But in fact the Demetriades court seems to have made its mistake out of an excess of caution. Not simply satisfied to repeat earlier claims about contributory liability's origins in tort law, it attempted to ground that claim. The problem is that it did just enough research to be dangerous.
The court didn't provide any direct support for the problematic sentence, but a sentence later it dropped a footnote that indicates what may have happened. First, the court complained that the relevant authorities were unhelpful in distinguishing between contributory and vicarious infringement. As to the canonical decision in Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159 (2d Cir. 1971), this criticism seems unfair, but it is certainly accurate as to the Supreme Court's then-recent decision in Sony v. Universal, the "Betamax" case, and may have been accurate as to the Nimmer treatise as it existed at the time. The Demetriades court next noted "the plain distinctions between vicarious and enterprise liability in tort" and cited the 4th edition of William Prosser's Handbook on the Law of Torts §§ 69 & 72, published in 1971, even though an updated 5th edition was released in 1984. It was probably what the judge had available.
Prosser's 4th edition does not mention enterprise liability at all. For theories of imputed liability, it covers, in § 69, vicarious liability, and in § 72, liability among members of a "joint enterprise." That is, if two people or two businesses engage in a joint enterprise, one member might be held liable for the tortious acts of the other. This is just close enough to the rules of liability for contributory tortfeasors to be confusing. Somehow the word "joint" dropped out, and the Demetriades court referred only to "enterprise liability."
For whatever reason--probably because most federal judges, like me, didn't know what enterprise liability was either--the Demetriades court's suggestion was picked up and repeated. Indeed, the popularity of the Demetriades court's suggestion shows that subsequent courts not only didn't know what enterprise liability was, but they also didn't know where contributory infringement liability originated. First, the enterprise liability suggestion was picked up by the influential district court decision in Polygram International v. Nevada/TIG. At some point, it also made its way into the Nimmer treatise, which cited Demetriades. Both Demetriades and Nimmer were cited by the Ninth Circuit in its even more influential decision in Fonovisa v. Cherry Auction in 1997. From there the enterprise liability suggestion has continued to spread, including in the Ninth Circuit's recent Perfect 10 v. Amazon decision.
Fortunately, in none of these cases did the reference to "enterprise liability" actually matter. In Demetriades itself, the court later went on to cite Section 876 of the Second Restatement of Torts--which provides for contributory tortfeasor liability. No court has held that contributory liability in copyright law is a form of strict liability that requires apportioning damages among defendants according to market share. But the repeated citation of contributory liability as originating in enterprise liability poses the danger of such a result, and in the meantime obscures contributory infringement's actual origins. Despite its wrongness, and despite the efforts of people such as Bill Patry to remove it, it's got a lot of case law inertia behind it now. I expect "contributory liability as enterprise liability" to have a long life to come.
[Cross-posted on the Marquette Law Faculty Blog.]