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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."

Posted by James Grimmelmann on February 17, 2012 at 10:43 PM in Intellectual Property | Permalink


Copyright has a severe sorites problem for individual infringements of mass-market works. (It's much easier to measure the revenues of a pirate printer or an unauthorized professional production of a musical.) And then, of course, there's the systematic question: if millions of people download without permission, and as a result the entire industry shifts to a different revenue model, how do you even define the "harm" or lack thereof?

That said, what about using average consumer retail price as a baseline for statutory damages in consumer-infringement cases? Is that rough justice, or too rough?

Posted by: James Grimmelmann | Feb 18, 2012 11:49:13 AM

"there's also a strong argument that copyright infringement frequently by its nature will result in hard-to-measure damages."

To say that I'm not expert on copyright law would be to give me too much credit, but this sort of thing worries me that what we'll get, often enough, is punishment where there are, from the most reasonable perspective, no or trivial damages. It will be very easy to get cases where we don't just have an absence of the proof of harm, but some reason to think that there's no harm, properly conceived, at all. Given that the claims about the damage suffered by media companies are pretty regularly speculative, at best, I would be extremely cautious with this sort of argument, as it seems as likely, or even more likely, that we'll be vastly over-punishing, and that seems to me to be the greater injustice. Those punished unjustly, though, don't have the ability to make huge campaign contributions, though, or stupid adds about how copying a movie is like stealing a car, so one side of the argument has rather stronger disproportionate power here, it seems to me. That, too, ought to make us hesitant to buy this argument.

Posted by: Matt | Feb 18, 2012 8:43:02 AM

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