August 25, 2007

posted by Frank Pasquale

(1) Do you think there's a high probability Nixon Peabody doesn't own the song? If not, I don't get what the "bluff" is in their takedown notice to YouTube.

(2) "Industry capture" makes for a great epithet, but a less good argument, I think. If the CO has been captured by an industry (which one? law firms?), what's up with the 1201 exemption proceedings? Bread and circuses?

I'm not quite ready to sign up for the proposition that mocking the song is obviously fair use. David Lat might be one step removed from Victor Navasky, and we know how that case ended.

To me, this little dispute says nothing new about fair use and everything old about how copyright is a poor vehicle for non-economic interests. NP is trying to clean up a mess of its own making and trying to make (c) and the DMCA do the dirty work. On the law, though, the firm may have a better claim than some think.

Bruce:

1) I'll stipulate that they own the song. And I'd be willing to stipulate that merely providing it, ala Lat's move after the YouTube takedown, is not a fair use. My question is: how does anyone get to mock it if the firm can control all copies?

Imagine a situation where the firm, with lightning speed, shuts its dissemination down completely. Does that mean the DMCA simply extinguishes the possibility of fair use? I guess Richard Epstein's work on Food Lion may point in that direction, but it wasn't taken by the courts Epstein was criticizing.

As for bluff; no bluff from NP, but they take advantage of a regime that copyright owners play like a fiddle--the point of the Yen/Pollack links. Getting the takedown of the pure song may have been precisely what Congress envisioned with DMCA. But they could probably just as easily get rid of (what ought to be an obvious) fair use; the 1-minute ChurchPlaysTucker video.

2) Would the only acceptable proof against capture be a regime with *no* exceptions? I'm afraid I can't provide that.

By the way, I'll also concede that what Lat did is not like the institution Cohen & Burk envisaged for dealing with fair use-hobbling DMCA.

However, it fits into a sad storyline in the entertainment industry over the past few decades: owners' insistence on absolute control & pricing freedom, owners' resisting virtually all efforts to limit this "property-like" control over what ought to be considered a subsidy, technology undermining owners' capacity for control comes on the scene, and few have any sympathy for the victims of copying.

For example, here's a comment on the decline and fall of the CD:

"What he should really be writing about is the record companies' insane insistence on holding a high price-point with a whopping profit margin on CDs. When CDs are manufactured for a few pennies, and record companies are charging $10-15 each, after a few years, the snap-back of the market is going to happen, like it or not. In this case, the snap-back came in the form of iTunes and digital downloading, but when you overprice your product to that degree, and don’t offer consumers what they want — and record companies had been doing that for decades, forcing folks to buy albums, when people wanted singles, before CDs even came along — it comes in the end."

from
http://andrewsullivan.theatlantic.com/
the_daily_dish/2007/08/why-compact-dis.html

I know, NP is not a record company. But the big reaction against it shows that people who consider a law unjust or unfair are going to ignore it when they can do so with impunity.

It's easy for any copyright owner to bluff YouTube into taking down a video of IP it claims to own--even if the video is clearly fair use.

Frank, I suppose the obvious counterargument is that it's easy for any one of the billion or so people worldwide with Internet access to put the videoback up -- even if the video is clearly not fair use. Or else they can just put it somewhere else. Presumably this has to be factored into the balance (otherwise it would be a really one-sided balance, no?).

I know, NP is not a record company. But the big reaction against it shows that people who consider a law unjust or unfair are going to ignore it when they can do so with impunity.

Frank, do you really think that's the lesson? I think the lesson is that people who consider a law annoying to them because it gets in the way of what they want will ignore it when they face no sanctions. I don't think it's about high-minded "justice" and "fairness" so much as old-fashioned "entertainment."

Frank, even if NP can get complete, non-transformed copies of its song taken down from YouTube, that's hardly "extinguishing the possibility of fair use." You're setting up a false dichotomy here. There's a range of intermediate stages between everyone having complete access to the original, unmodified song, and no one having any access to any piece of it.

Re: regulatory capture, I'll take a definition that means anything more than "occasionally (or even often!) makes decisions I don't like."

Orin, there's at least a perceived legitimacy component here, I think -- for example, the risk of getting a ticket for running a red light at 3 am is pretty low (at least it used to be, prior to red-light cameras), and it's a pain to wait at a light when there's no cross-traffic, but I rarely see anyone run the lights when I'm up at that hour.

Orin,
As for your first comment: the technology needs to be factored into the balance, but the history of copyright is full of examples where courts and Congress just decided it was not worth their while to protect the copyright owners against the new tech. Dan Solove's old post "What if Copyright were Strictly Enforced in the Blogosphere" suggests that such a lack of strict enforcement may well be necessary to the development of creativity on the net.

You may find what Lat is doing unjustifiable under current law, but I think many copyright lawyers would have said the same thing about home taping of movies in 1979. Blackmun's dissent in the Betamax case of the mid-80s shows just how shocked the copyright establishment was in the mid-80s that hordes of lawless home-recorders could somehow "adversely possess" a right to record that one might easily have assumed had to be licensed from the content owner. One commentator even called an earlier case (permitting the National Library of Medicine to reproduce medical journal articles) the "Dred Scott" of copyright law.

Admittedly, digital reproduction changes the balance in important ways here. People's "time-shifted" videos could not have been made available to, in principle, millions of people. Nevertheless, I don't think that distinction in itself makes a case like this obviously outside the realm of a finding of fair use. If I were on the jury and had to decide at this point, I might well think that this could be a "Sony for a new age"...though perhaps the plaintiffs *should* have convinced me it was Napster. The one thing all sides have to admit is the radical unpredictability of the doctrine of fair use.

Content owners use that unpredictability to their advantage in many cases, shutting down obvious fair uses. (See, e.g., chillingeffects.org and Jason Mazzone's article on Copyfraud.). I'm just saying that nobody should weep when the unpredictability suddenly works against them.

Frank, your last comment in particular seems to rely on a weird notion of "us versus them" in copyright law. I haven't seen much evidence of a "copyright establishment." Copyright owners sue each other all the time, for one thing. Most of the best-known fair use and de minimis cases I can think of are one big content owner versus another. Are the defendants shocking themselves with the arguments they are making?

And the idea that all copyright owners are undeserving of sympathy just because some owners, at some times in the past, may have made overbroad arguments certainly simplifies matters, but not in a good way, I think.

Bruce,

As for no capture--oh yes, I forgot about all those lavish parties and campaign contributions from the library associations and Public Knowledge. Didn't Parker Posey reprise her librarian role in Party Girl to push for DMCA exemptions for archives?

Seriously, Jessica Litman's Digital Copyright is a considered and scholarly look at the matter, and I'll quote her at the bottom of this post.

As for us vs. them: I think this all comes down to what one thinks the fundamental problem is. I think the fundamental problem is that an antiquated legal regime denies access to knowledge and entertainment to millions of people without regard to their ability to pay. By all means, owners should charge people who can pay. But denying access to those who can't fits rather uneasily into an incentives-based regime ideally designed to assure compensation, not complete control.

I see the issue through that frame, and I'm probably going to be suspicious of efforts to "tighten the screws" of copyright until I can be assured that the people who are doing the tightening are fully cognizant of the "bycatch" that happen to get caught up in that legal regime.

However, if one thinks the "fundamental problem" is assuring complete, property-like control over works, one is going to disagree with my perspective.

Do you think there's much middle ground between the Ginsburg concurrence in Grokster and the Breyer concurrence? There's a fundamental split in the legal community, and I see no harm in reminding people of the policy reasons for the Breyer direction.

Finally, here's Litman, from

http://www.msen.com/~litman/digital-copyright/ch2.html

"In 1998, copyright lobbyists persuaded Congress to enact a 26,000 word, 50 page coda to the copyright statute setting forth a new and convoluted series of rights and exceptions for digital copyright. Among other innovations, the new law for the first time purports to make it illegal for individual consumers to gain unauthorized access to protected works."

***

"[C]opyright lawyers, who, after all, make their livings interpreting and applying this long and complex body of counterintuitive, bewildering rules, insist that the current model is very close to the platonic ideal, and should under no circumstances be jettisoned in favor of some untried and untrue replacement. They naturally prefer to make the copyright rules they know the rules that all of us need to operate under whenever we encounter copyrighted works. Congress, for its part, is content to let them make the rules they want to."

OK, so "capture" = "campaign contributions." So noted. Although now I'm unclear on how the Copyright Office was "captured."

"[I]f one thinks the 'fundamental problem' is assuring complete, property-like control over works, one is going to disagree with my perspective." This is a perfect example of what I was talking about. There are other people that might disagree with your perspective as well.

As for the rest, thanks for quoting Litman but I don't think that clarifies matters. Inordinately complicated statutes are not good evidence of one side having unfettered control of the pen. Inordinately complicated rules are what you get from hard-fought compromises. When one party gets its way, what you get are *really simple* statutes. It's sort of like Grant Gilmore's story about Hell: In Hell there is nothing *but* due process, and it is meticulously observed.