« Does Virginia Have Standing to Challenge the Individual Mandate? | Main | Fill in the Blank Scholarly Productivity »

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.

Posted by Bruce Boyden on March 7, 2011 at 04:07 PM in Intellectual Property | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Aggressive C&D Letters: Turbulence in the Copyright Phase Transition (Part 3 of 3) :


Sagescape, I admit I may have misinterpreted the spirit of your comment somewhat, so thanks for the clarification and I very much appreciate your thoughtful criticism. You've certainly identified a difficult issue. My argument in capsule form is that the anticircumvention provisions, Section 512, increases in penalties, etc. are all attempts to hold back the tide -- to build a dike, as it were -- by using law and technology to shore up boundaries previously enforced by physical limitations. It appears to me to be substitution rather than expansion. And in my view, due to the fracture of interests that attend to copyright legislation these days (due to the exact same phenomenon I've been discussing) these sort of substitutional remedies are all that copyright owners are likely to get out of Congress for some time. While that may work to some extent and for some periods of time in some markets, it seems to me to just be postponing the day of reckoning. Just like Social Security and the deficit and haphazard mortgage practices and a lot else in American society right now.

As for cease and desist letters, I'm not counting Section 512 takedown notices, as those are invocations of a statutorily created regime that was intended to substitute, to some extent, for traditional copyright liability. And naturally those have increased since there is just more and more stuff on the Internet, as well as more and more people creating copyrightable material. But I have no doubt that non-takedown C&Ds have increased as well. The questions are whether they've increased at a rate faster than threats of litigation in other areas of law, and whether the quality of the C&Ds has changed in any way, i.e., whether a higher percentage of them are non-meritorious compared to, e.g., defamation or malpractice claims or compared to copyright letters sent 30 years ago.

Posted by: Bruce Boyden | Mar 9, 2011 11:35:04 AM

See Chilling Effects, https://www.chillingeffects.org/ for example C&Ds, and its stats, https://www.chillingeffects.org/stats for their increase over time.

Posted by: anonymouse | Mar 8, 2011 3:17:22 PM

Bruce, thanks so much for replying. Just to reiterate, I really do appreciate your comments and genuinely am happy that you are drawing on scholars like Litman. I very much look forward to your forthcoming article, where you promise to map out your position more thoroughly.

I think the issue we are quibbling about is the idea of collapse (vs. expansion) of copyright law. If I'm understanding you correctly, you think that copyright law (as it has been historically understood and applied) is "collapsing", i.e., becoming less enforceable in a world where "ordinary users simply *are*...publishers and distributors on a par with global multimedia corporations."

I think this analysis is true, so far as it goes. However, I specifically pointed to the Digital Millennium Copyright Act (DMCA) of 1998 because I think it encapsulated the totality of the dynamic at work here.

Let me try to explain what I mean. In Williams & Wilkins, the Chief Justice was not (declared) an infringer "because it’s impractical for anyone to sue", as the copyright owners' attorney admitted. Now, one could certainly argue that (legally) the Chief Justice was an infringer based on certain minimalist readings of the fair use factors, even though the "humor" of Williams & Wilkins' oral argument turns on the unspoken assumption that no plaintiff in their right mind would sue a sitting Supreme Court justice for making photostatic copies of library materials.

This all seems to be in line with what you mean by referring to copyright as "universalistic rules with hidden assumptions". As you go on to acknowledge, however, there has been "technological or social change" in the intervening decades since Williams & Wilkins that amounts to "changed circumstances". Photostatic copies have given way to Internet file-sharing, etc.

All well and good. Here's our disagreement: you characterize the posture of both copyright owners and critics as "look[ing] to the old framework" for guidance. I don't think that's quite right. Ordinary copyright users still look to the old arguments, but copyright owners have done everything in their power to change copyright's statutory framework to gain at the expense of users.

The DMCA is a perfect example of this. In the past, most instances of photostatic copying were (probably) OK per fair use. More importantly, however, few suits were brought "because it’s impractical for anyone to sue". Not so in the digital realm. Today, if one analogously copies from an Adobe PDF protected by digital rights management, the fair use analysis may be the same as before. However, two things have changed: (1) simply "breaking" the DRM protection is a violation of the DMCA (a law which did not exist before), and (2) copyright owners can now easily find individual acts of copying (presumptive infringement to many content owners' way of thinking) simply by running a Google search.

Users' new found ease of copying content and owners' new found ease of finding copied content may be the (somewhat offsetting) results of technological advancement. It is hard to say the same for the DMCA. For this reason, I agree with you that ordinary copyright users look to the past in order to try to get the same "deal" from copyright law that the did in a pre-digital world. But I don't see evidence that copyright owners are content to look to the past. Instead, they seem to look to the future, always seeking an expansion of their rights of control by changing the law itself.

Having said all that, I find your argument fascinating, and I truly look forward to reading your forthcoming article.

Posted by: sagescape | Mar 8, 2011 11:19:56 AM

Where can i find the remaining two parts of Ballooning Statutory Damages in Copyright Law ?

Posted by: Letters | Mar 8, 2011 1:30:13 AM

Thanks Sagescape for your comment. I could do worse, of course, than reiterate something Jessica Litman has said. But I don't think that's what I'm doing, and neither it appears do you, since in your last paragraph you press on me a different conclusion than the one I drew.

I don't think copyright law has expanded in significant ways. There has been some attempt to shore up old boundaries, but that is part of the "looking backward" phenomenon I noted. Litman, as I read her work, particularly her more recent articles, sort of agrees with this; but she believes that the most significant thing that has happened over the past 30 to 40 years or so has been a shift in copyright *ideology*, if not the formal copyright law. That is, and I can only draw a thumbnail sketch here, she views the problem she describes above as due to the intentional extension by copyright owners of their rights through rhetoric and (sometimes successful) legal arguments into areas that formerly were clearly marked off as beyond the scope of copyright: personal uses, meaning noncommercial uses by individuals.

I think this understates the nature of the problem and, somewhat ironically, gives too much agency to copyright owners and the "copyright bar." The problem is one that arises in many instances of technological or social change, the conflict of universalistic rules with hidden assumptions applying to changed circumstances. The changed circumstance is that ordinary users simply *are*, for better or worse, publishers and distributors on a par with global multimedia corporations. Given that, I don't think it's necessary to posit any sub rosa rhetorical or ideological drive to expand rights; all you have to do is imagine both sides adhering to their previous understandings to generate a conflict. In other words, as I'll explain in a forthcoming article, in my view the problem is not expansion but collapse.

Posted by: Bruce Boyden | Mar 8, 2011 1:17:13 AM

Bruce, thanks for drawing attention to this line of analysis that people like Jessica Litman -- in her 1994 journal article (http://www-personal.umich.edu/~jdlitman/papers/read.htm) -- and Lawrence Lessig -- 2010 speech at WIPO (http://www.youtube.com/watch?v=L5Texgpm520) -- have been pounding away at this for a long time. As Litman puts it:
At the turn of the century, U.S. copyright law was technical, inconsistent, and difficult to understand, but it didn't apply to very many people or very many things. If one were an author or publisher of books, maps, charts, paintings, sculpture, photographs or sheet music, a playwright or producer of plays, or a printer, the copyright law bore on one's business. Booksellers, piano-roll and phonograph record publishers, motion picture producers, musicians, scholars, members of Congress, and ordinary consumers could go about their business without ever encountering a copyright problem.
Ninety years later, the U.S. copyright law is even more technical, inconsistent and difficult to understand; more importantly, it touches everyone and everything. In the intervening years, copyright has reached out to embrace much of the paraphernalia of modern society. The current copyright statute weighs in at 142 pages. Technology, heedless of law, has developed modes that insert multiple acts of reproduction and transmission - potentially actionable events under the copyright statute - into commonplace daily transactions. Most of us can no longer spend even an hour without colliding with the copyright law. Reading one's mail or picking up one's telephone messages these days requires many of us to commit acts that the government's Information Infrastructure Task Force now tells us ought to be viewed as unauthorized reproductions or transmissions.
To reiterate: Litman recognized this problem over 16 years ago. Since then, among other "tweaks" to the Copyright Act, Congress passed the DMCA (1998, four years later). It's not like copyright's irrelevancies (as you put it) couldn't have been addressed by now.
Of course, what has happened is that copyright owners have (successfully) expanded their rights through new legislation. It is copyright users that have been effectively forced to employ old theories in new ways.

Posted by: sagescape | Mar 7, 2011 6:52:36 PM

The comments to this entry are closed.