Fair Use Excuse Abuse on the Loose?
posted by Frank Pasquale
Given the comments on my last post, I should probably stop blogging the Nixon Peabody contretemps. But now that it’s hit VH1′s Best Week Ever as Best Jam of Summer ’07, I want to give as sympathetic a view as I can for the law firm’s plight.
First, fair use expert Matthew Sag has offered this view on legality of Lat’s making the song available:
ATL appears to be on pretty safe ground here in terms of fair use. The initial song is an unwitting (and cruel) self-parody and there is clear public interest in revealing it to the world. ATL’s release of the video is not commercial in the relevant sense because it does not compete with the law firm’s own exploitation of its IP.
Sag believes that a second user has an even stronger claim for protection. One question, though–are we comfortable with a world in which any embarrassing music/video that a company creates can be instantaneously distributed as soon as someone makes a fair use of it? Richard Epstein has argued that “the success of both personal and business endeavors depends on our ability to respect confidences and to keep private information private” (52 Stanford L. Rev. 1003). Epstein complains that the First Amendment has run roughshod over contracts that try to protect privacy.
So perhaps it should be no surprise that copyright–which consistently trumps First Amendment claims–should be invoked by Nixon Peabody. And fair use, as we were reminded in Eldred v. Ashcroft, is one of the few places where copyright tends to give way to First Amendment concerns. Perhaps firms of the future will classify their theme songs as trade secrets and contractually bind employees never to reveal them. It’s not exactly clear where the rock/scissors/paper game of IP/privacy/First Amendment would lead in such a case; Pam Samuelson’s piece on the topic offers some clues.
August 28, 2007 at 4:01 pm
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Responses (3)
Marty Lederman - August 29, 2007 at 7:36 am
Isn’t it a bit odd to be discussing this without any mention of Harper & Row and the Salinger case, in each of which there were even clearer “public interests in revealing it to the world?” Do you think that those cases were wrongly decided, Frank?
Matthew Sag - August 29, 2007 at 10:50 am
In my opinion harper & row is best understood as a kind of mutant trade secret case – it simply makes no sense as a fair use decision. Salinger is likewise best thought of as an unfortunate sequel to H&R, put right by Congress in its 1992 amendment to Sec. 107.
I should be clear, the law firm would have a good trade secret law claim if it derived some non-reputation-based economic value from this song not being generally known. My comments relate purely to the copyright claim.
Mike Madison - August 30, 2007 at 9:01 pm
I’m sympathetic to DL and ATL on the copyright claim, but I don’t see the relevance of the song’s alleged self-parodic character. (The song is objectively idiotic, but not, from NP’s point of view, subjectively idiotic.) If the fact of the video means that fair use is a likely conclusion, can the thing ever be infringed? Is this something akin to an individual having such an objectively awful reputation that s/he is allegedly defamation-proof? I also don’t see the strong public interest in revealing the video. Had we all *not* seen the video or heard the song, absolutely nothing about our lives would be different (except, perhaps, for the deadweight loss associated with all of the blogging about the thing).
That said, the secrecy angle (though not a privacy angle, and not necessarily a “confidences” one a la Epstein) seems to be the right take. Nixon Peabody, like H&R, had a secret that it wanted to share with the world on its own terms (H&R) or not at all (NP). The H&R case is at least odd and perhaps wrong either because the alleged secret wasn’t really secret (read Bill Patry’s fair use book on this), or because some things are simply so important that they ought never to be secret at all (metaphorically and in a small way, H&R may have been repeating Nixon’s error: the attempted cover-up was worse than the “crime”). NP’s position is arguably stronger than H&R’s. Economic value or no economic value, there’s no normative reason that NP shouldn’t be able to assert that the song and video *are* (or were) secrets. Affairs of state don’t hang in the balance. The fact that DL is only a post-hoc enabler, and that NP might locate and pursue the leaker(s), doesn’t weaken *NP’s* interest. The problem facing both NP and H&R, as Matt concludes, is that both copyright and trade secret law are poor fits for this argument.
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