The following is an excerpt from Copyright: Its Law and Literature, written by Richard Rogers Bowker. Published in book form in 1886 (it was first published as a series of articles in Publishers’ Weekly the year before), the book was, according to the preface by Bowker, “an attempt to give in brief and simple shape a comprehensive view — such as did not exist, despite an evident need — of the principles, history, and present law of copyright, domestic and international.”

I found the excerpt to be interesting, not only as history, but also because many of the concepts he talks about are still debated today. He explains difficult concepts like the difference between a copyright and a copy, concepts that continue to cause confusion. Arguments that are very much alive today — how can copyright be valid if every work builds on previous works, for example — are addressed. There’s little new in the copyright debates, and Bowker’s telling of the copyright story is a good read.

Bowker was editor of Publisher’s Weekly and Harper’s magazine, as well as a strong proponent of libraries. After his death, the American Library Association included him as one of the 100 most important leaders they had in the 20th century.

Bowker lived during a time when there was a great deal of interest in “international copyright.” Copyright: Its Law and Literature was published the same year the Berne Convention for the Protection of Literary and Artistic Works was completed. Bowker was a strong proponent of international copyright; one of his motivations for writing the book was the hope “that the United States will not long remain almost the only exception among civilized nations in rejecting international copyright.”1

Of historical note, the book includes a comprehensive bibliography of books, articles, and legal cases relating to literary property and copyright compiled by a Library of Congress staffer named Thorvald Solberg. Solberg went on to become the first US Register of Copyrights in 1897.

Much of the book was substantially updated and incorporated into Bowker’s later work Copyright: Its History and Its Law, published in 1912. This second work has been widely cited by courts since then, including the Supreme Court, and as recently as EMI April Music v. White in 2009.2


CHAPTER 1: THE NATURE AND ORIGIN OF COPYRIGHT.

COPYRIGHT (from the Latin copia, plenty) means, in general, the right to copy, to make plenty. In its specific application it means the right to multiply copies of those products of the human brain known as literature and art.

There is another legal sense of the word “copyright” much emphasized by several English justices. Through the low Latin use of the word copia, our word “copy” has a secondary and reversed meaning, as the pattern to be copied or made plenty, in which sense the schoolboy copies from the “copy” set in his copy-book, and the modern printer calls for the author’s “copy.” Copyright, accordingly, may also mean the right in copy made (whether the original work or a duplication of it), as well as the right to make copies, which by no means goes with the work or any duplicate of it. Said Lord St. Leonards: “When we are talking of the right of an author we must distinguish between the mere right to his manuscript, and to any copy which he may choose to make of it, as his property, just like any other personal chattel, and the right to multiply copies to the exclusion of every other person. Nothing can be more distinct than these two things. The common law does give a man who has composed a work a right to it at composition, just as he has a right to any other part of his personal property; but the question of the right of excluding all the world from copying, and of himself claiming the exclusive right of forever copying his own composition after he has published it to the world, is a totally different thing.” Baron Parks, in the same case, pointed out expressly these two different legal senses of the word copyright, the right in copy, a right of possession, always fully protected by the common law, and the right to copy, a right of multiplication, which alone has been the subject of special statutory protection.

There is nothing which may more properly be called property than the creation of the individual brain. For property means a man’s very own, and there is nothing more his own than the thought, created, made out of no material thing (unless the nerve-food which the brain consumes in the act of thinking be so counted), which uses material things only for its record or manifestation. The best proof of own-ership is that, if this individual man or woman had not thought this individual thought, realized in writing or in music or in marble, it would not exist. Or if the individual, thinking it, had put it aside without such record, it would not, in any practical sense, exist. We cannot know what “might have beens” of untold value have been lost to the world where thinkers, such as inventors, have had no inducement or opportunity to so materialize their thoughts.

It is sometimes said, as a bar to this idea of property, that no thought is new — that every thinker is dependent upon the gifts of nature and the thoughts of other thinkers before him, as every tiller of the soil is dependent upon the land as given by nature and improved by the men who have toiled and tilled before him, a view of which Henry C. Carey has been the chief exponent in this country. But there is no real analogy — aside from the question whether the denial of individual property in land would not be setting back the hands of progress. If Farmer Jones does not raise potatoes from a piece of land Farmer Smith can; but Shakespeare cannot write “Paradise Lost” nor Milton “Much Ado,” though before both Dante dreamed and Boccaccio told his tales. It was because of Milton and Shakespeare writing, not because of Dante and Boccaccio who had written, that these immortal works are treasures of the English tongue. It was the very self of each, in propria persona, that gave these form and worth, though they used words that had come down from generations as the common heritage of English-speaking men. Property in a stream of water, as has been pointed out, is not in the atoms of the water but in the flow of the stream.

Property right in unpublished works has never been effectively questioned — a fact which in itself confirms the view that intellectual property is a natural inherent right. The author has “supreme control” over an unpublished work, and his manuscript cannot be utilized by creditors as assets without his consent.” If he lends a copy to another,” says Baron Parks, “his right is not gone; if he sends it to another under an implied undertaking that he is not to part with it or publish it he has a right to enforce that undertaking.” The receiver of a letter, to whom the paper containing the writing has undoubtedly been given, has no right to publish or otherwise use the letter without the writer’s consent. The theory that by permitting copies to be made, an author dedicates his writing to the public, as an owner of land dedicates a road to the public by permitting public use of it for twenty-one years, overlooks the fact that in so doing the author only conveys to each holder of his book the right to individual use, and not the right to multiply copies, as though the landowner should not give but sell permission to individuals to pass over his road, without any permission to them to sell tickets for the same privilege to other people. The owner of a right does not forfeit a right by selling a privilege.

It is at the moment of publication that the undisputed possessory right passes over into the much-disputed right to multiply copies, and that the vexed question of the true theory of copyright property arises. The broad view of literary property holds that the one kind of copyright is involved in the other. The right to have is the right to use. An author cannot use — that is, get beneficial results from his work, without offering copies for sale. He would be otherwise like the owner of a loaf of bread who was told that the bread was his until he wanted to eat it. That sale would seem to contain “an implied undertaking” that the buyer has liberty to use his copy but not to multiply it. Peculiarly in this kind of property the right of ownership consists in the right to prevent use of one’s property by others without the owner’s consent. The right of exclusion seems to be indeed a part of ownership. In the case of land the owner is entitled to prevent trespass to the extent of a shot-gun, and in the same way the law recognizes the right to use violence, even to the extreme, in preventing others from possession of one’s own property of any kind. The owner of a literary property has, however, no physical means of defence or redress; the very act of publication by which he gets a market for his productions opens him to the danger of wider multiplication and publication without his consent. There is, therefore, no kind of property which is so dependent on the help of the law for the protection of the real owner.

Footnotes

  1. Though the US joined a number of international copyright agreements in the early 20th century, it did not become a party to the Berne Convention until 1989. []
  2. 618 F.Supp.2d 497, 503 (E.D. Virginia). []

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Water is wet, fire is hot, and people hate lawyers.

None of these statements are noteworthy enough to even bear repeating. You probably couldn’t walk down the street without running into someone who is willing to share their distaste with the legal profession.

And this distaste is nothing new. You can find examples of it in historical sources stretching back thousands of years. In the 1930 book Law and the Modern Mind, Jerome Frank has this to say:

Diatribes against lawyers contain such words and phrases as “duplicity,” “equivocation,” “evasions,” “a vast system of deception,” “juggling,” “sleight of hand,” “craft and circumvention,” “the art of puzzling and confounding,” “darken by elucidation,” “the pettifogging, hypocritical, brigandage rampant under forms of law.” Kipling expresses the feeling of many in his fling at the “tribe who describes with a gibe the perversions of Justice.”1

Last week, over at Volokh Conspiracy, Orin Kerr — accurately and vividly — described non-lawyers’ perceptions with legal institutions as displaying “an almost pathological aversion to the common sense and the justice of the situation.”

I think the ideas expressed above raise issues that are worth discussing. Yes, this site is focused primarily on one specific area of law. Most of the time I talk about the issues that arise from the “copyright wars”: discussions about how instruments of culture, knowledge, and entertainment are created and disseminated. These discussions inherently deal with copyright law as the foundation of this creation and dissemination in today’s society, but they also draw in broader concepts of the law: the role of courts; the interpretation of constitutions, statutes, and case law; the nature of liability.

Understanding these issues in-depth requires some modicum of “legal literacy.” But I think it’s safe to say that there are plenty of issues outside the copyright realm that also require a bit of legal literacy to understand better; however, legal literacy remains an elusive goal. The problem is caused by misunderstandings of the law and various stumbling blocks that get in the way of understanding, two of which I want to highlight today.

I don’t think improving legal literacy requires going to law school, but I do think it is beneficial to society. In Adventures in Law & Justice: Exploring Big Legal Questions in Everyday Life, Australian legal researcher and commentator Bryan Horrigan explores the public’s understanding of the law and why it is important to improve that understanding. In the introduction, he underlines the key themes that he addresses in the book:

One is that law and justice matter for citizens and not just law-makers, and that law and justice concerns deeply touch both our everyday and community lives. Another is that much popular and professional understanding of law is critically flawed, and that these flaws are obstacles to better understanding, communication, and handling of ongoing law and justice challenges. A third theme is that law and society influence one another in more ways than many people realise […] A final theme is the need for better public legal literacy as a vital part of citizenship education, and to help hold all three arms of government accountable to the people.

Complexity and Technicalities

Many of the complaints against lawyers written above focus on the belief that the legal profession wrongly gets in the way of justice: “perverting it” or showing a “pathological aversion” to it. Are these complaints warranted? Jerome Frank offers some insights:

What lies back of this popular criticism? It appears to be founded on the belief that the lawyers complicate the law, and complicate it wantonly and unnecessarily, that, if the legal profession did not interpose its craftiness and guile, the law could be clear, exact and certain. The layman thinks that it would be possible so to revise the law books that they would become something like logarithm tables, that the lawyers could, if only they would, contrive some kind of legal slide-rule for finding exact legal answers.

The error of the layman, states Frank, is blaming the complexity of law on the lawyers. But the complexity is not a result of lawyers; rather, it is the result of the complexity of society itself. No one in history has been able to set down a complete set of rules that could anticipate every possible scenario in the future. Frank continues, “The law deals with human relations in their most complicated aspects. The whole confused, shifting helter-skelter of life parades before it — more confused than ever, in our kaleidoscopic age.”

He concludes, emphatically: “Much of the uncertainty of law is not an unfortunate accident: it is of immense social value.”

The other common theme in complaints against the law is its apparent aversion to “common sense.” Sure, the layman may say, the law is complex, but so many of its results seem to defy logic. How much weight does this criticism hold? Preeminent jurist Oliver Wendell Holmes described the peculiar challenges of understanding the Law in his seminal work, The Common Law:

[O]ther tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic — it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become.

Related somewhat to the previously mentioned criticisms is this notion of “technicalities” in the legal world. The above-mentioned post by Orin Kerr attempts to explain why “lawyers seem so obsessed with technicalities” by examining the institutional roles within the legal system.

Kerr writes, “The law often breaks down power among different institutions, with each institution getting one part of a broader problem. That means that each institution only has limited power, and the question of how that institution is supposed to act is limited by the specific grant of power given to that particular institution.” He uses the example of a routine criminal case. The ultimate goal in criminal law is to determine guilt. But the process of reaching that goal is broken into discrete institutions, with each institution playing a very small and specific role — from the investigator, prosecutor, and grand jury to the defense attorney, trial judge, and trial jury. Not understanding how this system works is what causes the frustration among non-lawyers that the law seems to run counter to “common sense.”

Alice Speaks With Humpty-Dumpty2

A proper understanding of the complexity of the law and the role of legal institutions may go a long way in improving public legal literacy. But if we revisit those common complaints against lawyers, we can see another source of criticism: lawyers’ use (or misuse) of words and language. Many non-lawyers vent frustration at the seeming linguistic chicanery of those in the legal profession. While slick speakers run circles around “what the meaning of ‘is’ is,” common sense and justice escape out the back door. The idea seems to be that if “the law” is simply a collection of rules, then all this arguing over what these rules mean is just semantic sleight-of-hand designed to circumvent the clear meaning of the law. To understand a law, one can simply open a book, read what the law says and parse its meaning the same way one parses sentence in a Stephen King novel.

Bryan Horrigan calls this the “rule-book metaphor” and identifies it as a stumbling block to popular understanding of the law. In his chapter on “Myths, Fictions, and Realities,” Horrigan says this stumbling block “assumes that, whatever law’s real nature, finding and understanding any particular law is just like opening and reading a dictionary or catalogue.” But that assumption is incorrect. As Horrigan points out, “just like floating candles bobbing around in a bowl of  water, legal language sits immersed in a context which affects its meaning.  Words alone do not determine meaning.

Earlier this year, Kerr picks up on what I think is another source of this frustration among non-lawyers: the use of legal “terms of art”. Many times in the law, there are words or phrases used that mean one thing in the general sense but have quite a specific meaning within the law. Kerr uses the example of the phrase “reasonable expectation of privacy.” He explains:

The key idea is that the phrase “reasonable expectation of privacy” is a constitutional term of art, much like other constitutional terms of art like “due process,” “free speech,” “strict scrutiny,” or “fundamental rights.” You normally can’t answer if something violates “due process” just by asking if there was a “process” that seemed “due,” much like you can’t answer if a regulation satisfies “strict scrutiny” by scrutinizing the regulation while being “strict.” In all of these cases, the phrase captures a complicated body of caselaw; You can’t just repeat the name for the test and think that the name accurately captures the doctrine. Rather, you need to recognize the test as a term of art that reflects a large body of caselaw, and you need to get the answer from the caselaw.

[…]

[T]he key point is that a “reasonable expectation of privacy” is not just an empirical question into whether a reasonable person would expect privacy. You can’t just mull over the words “reasonable expectation of privacy” and derive an answer from those words any more than you can mull over words like “due process” and derive an answer from for what the due process clause forbids.

The frustration, I believe, derives from a sort of “sez who?” The non-lawyer might ask, “Why do lawyers (or judges) get to decide what these phrases mean? I can read, I have a dictionary.”

The short answer to this response is: that’s how the law works. The development of these legal terms of art and the tests that accompany them is a result of the processes of the common law system we live under that reflects the principle of the “rule of law“. The Legal Theory Lexicon provides a good introduction to the values of the rule of law:

What values are served by the rule of law? Why is the rule of law important? Those are big questions, but we can at least give some quick and dirty answers. One reason that the rule of law is important has to do with predictability and certainty. When the rule of law is respected, citizens and firms will be able to plan their conduct in conformity with the law. Of course, one can dig deeper and ask why that predictability and certainty are important. Lot’s of answers can be given to that question as well. One set of answers is purely instrumental. When the law is predictable and certain it can do a better job of guiding conduct. Another set of answers would look to function of law in protecting rights or enhancing individual autonomy. The predictability and certainty of the law creates a sphere of autonomy within which individuals can act without fear of government interference.

That’s not to say that all laws are perfect, or even good: quite the opposite. There will always be areas in the law where reform is necessary; indeed, it would be shocking if this weren’t the case. When you consider “the whole confused, shifting helter-skelter of life” parading in front of the law, it should be apparent that ideal laws are almost never attainable. This idea even has even been given a name by legal scholars: “second best” or “nonideal theory.” The idea of the “second best” in law echoes what Voltaire once said: “The perfect is the enemy of the good.”

Conclusion

There are plenty of other obstacles to understanding the law besides the few I highlighted above. I used examples of complaints about lawyers in this discussion not because I think lawyers are totally blameless in the deficiencies of the legal system but rather to point out where those criticisms are based on misunderstandings of other topics. The legal profession certainly has its share of “bad apples,” like any other profession. Then again, lawyers play an important role in a functioning society and can and should be held to high ethical standards. All that aside, improving legal literacy is a worthy goal and one I hope this site helps promote.

Footnotes

  1. Law and the Modern Mind, 1930, pg. 5 (Transaction Publishers, 2008). []
  2. See Lewis Carroll, Through the Looking Glass, chap 6. []

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Within the past 15 or so years, we’ve seen a large number of cases and laws addressing the issue of indirect liability — also referred to as secondary liability or third-party liability — for copyright infringement online.

In 1998, Congress passed the Digital Millennium Copyright Act, providing conditional safe harbors for online service providers. There’s also been a number of high-profile lawsuits against Napster, Aimster, Grokster, Limewire, and YouTube addressing indirect infringement.

Even so, there remains a misunderstanding among the public, especially online, about indirect liability. Why should X be liable when someone else is engaged in copyright infringement if X is only hosting/transmitting/providing a link to the unauthorized work?

This misunderstanding is embraced by TechDirt, who last week highlighted a story about an open letter from Russian ISPs to the entertainment industry in response to pressure on the ISPs for the copyright infringement of their users. TechDirt characterized the letter as explaining “basic liability concepts” to the entertainment industry. “The basic idea is that a third party service provider or tool should not be held liable for what users do with those tools,” explained Mike Masnick at TechDirt.

But that idea is not a “basic liability concept”; to the contrary, the idea ignores reality and the bulk of the history of law in most countries. Indeed, Masnick’s characterization of “basic liability concepts” isn’t even recognized in Russia1 — hence the reason the letter was written in the first place.

I previously wrote about secondary liability in Viacom Appeals Lawsuit Against YouTube, but I think the topic merits further discussion. There’s a gap in the common, public understanding of liability and how the law treats liability. The gap stems from a misunderstanding of tort law in general and is compounded when we start talking about indirect tort liability and how it is applied in the copyright context. You can see the gap in this understanding of tort law not only in debates concerning indirect copyright infringement, but also displayed in the perennial debates about tort reform, or in public reactions to what are sometimes referred to as “frivolous lawsuits.”2

To bridge the gap in understanding, I want to take a walk through tort law and why we have it. Next, I want to take a look at secondary liability in general and then specifically in terms of copyright. Finally, I want to look at how these concepts transferred to the online world and the legislative responses to dealing with the particular challenges of applying them to internet service providers. We’ll see that zero liability for service providers for the actions of their users is not a “basic liability concept” — far from being a logical or foregone conclusion, it is one of several possibilities of liability for service providers based on ancient concepts of tort liability, and it is an option that has, in part, been discarded in most of the world.

First, let’s talk about what “torts” are and why I brought them up.

These Torts are Delicious

Torts, in their broadest sense, are legal “wrongs”. They are private, rather than public, wrongs — distinguishing them from crimes — and they stem from universally applicable duties, rather than voluntarily agreed-upon duties — distinguishing them from contract claims.

The reason I’ll be talking about torts is that copyright infringement is a tort. In 1869, the Massachusetts Circuit Court wrote:

Rights secured by copyright are property within the meaning of the law of copyright, and whoever invades that property beyond the privilege conceded to subsequent authors commits a tort.3

This characterization of copyright infringement as tort has survived since then.4

The Goals of Tort Law

I think a big reason for the gap in understanding comes from a lack of understanding the goals of tort law. Most people understand the basic goals of criminal law. Some things are just bad — murder, robbery, rape. Society as a whole wants to either prevent them from happening or punish those who do them. Criminal law serves these goals; prison and fines act as punishment, the threat of prison and fines acts as a deterrent.5 The problem comes when people assume that the law of torts — private wrongs — has the same goals as the law of crimes — public wrongs. Deterrence and punishment are indeed part of the goals of tort law, but there are more goals to consider. One way of looking at it is laid out by Sir John William Salmond, who wrote in 1891:

A law is a rule of conduct set by the state and enforced by a sanction; a sanction is an evil inflicted upon those who disregard the rule; the administration of justice is that function of the state which consists in the infliction of such sanctions, that is to say, in punishment . Now, as a matter of fact, punishment is not an invariable or essential end of the administration of justice, but is merely one of several ends. These are at least three in number; namely, (i) prevention, (2) punishment, and (3) compensation.6

The addition of “compensation” to the ends of justice plays a large role in the administration of tort law. Indeed, nowadays economics plays just as much a role in shaping the law of torts as morality and ethics. Tort law professor F. Patrick Hubbard restates these goals from a modern perspective as such:

The tort system’s redistribution of the loss from the plaintiff to the defendant has been justified in terms of three policy goals. First, the liability for payment of compensatory damages prevents wrongdoing and thus protects rights in several ways, particularly: (1) the payment for injuries caused by wrongful conduct provides an incentive to avoid wrongful conduct; and (2) even where no wrongdoing is involved, imposing liability for accident costs provides an incentive to reduce injuries not currently preventable by due care by lowering the level of activity, or by seeking innovations that result in new, more cost-effective safety measures. Second, our sense of fairness requires that, as a matter of “corrective justice,” victims who suffer injury because their rights have been wrongly denied should have recourse to a system that requires injurers to pay compensation. These injurers “deserve” to bear the costs of their wrongs, not innocent victims. This concept of “just desert” also serves to limit liability from becoming disproportionately large in comparison to a defendant’s wrongdoing. Third, compensation of victims is frequently said to be, by itself, a goal of tort law.7

A thorough discussion of the goals and justifications of tort law is well beyond the scope of this article; for more, check out Stanford Encylopedia of Philosophy’s entry on Theories of Tort Law. For purposes of our discussion, it’s enough to say that modern tort law goes beyond merely “placing blame.” It asks also, among other things, what are the most efficient ways to allocate the losses attached to wrongs among the parties involved and what rules provide the best incentives to reduce the likelihood of wrongs. While differing theories about tort law compete, it is safe to say that the goals of “fairness” and “efficiency” are at the heart of modern tort jurisprudence.

Secondary Liability in Tort Law

The gap in the public’s understanding of tort law grows wider when it comes to secondary liability — those doctrines that place liability on someone other than the person who actually committed the wrong. How can this be? In 1883, political economist William Edward Hearn wrote:

§ 4. The general principle of justice which governs men’s responsibility for their conduct has two branches. One is that, subject to certain specified grounds of defence, every man is answerable for his own acts and his own forbearances, or for those which he has ordered. The other is that no man is answerable for the conduct of any other person. To the latter proposition, however, there are certain exceptions. These are cases of vicarious liability.8

Vicarious liability grew out of the long-established doctrine of respondeat superior in common law. Respondeat superior states that an employer, or principal, is liable for the acts of his employee, or agent.9

Contributory liability is the name most often used in the intellectual property context to describe the doctrine of holding someone liable for their contribution to the commission of a tort.10 The theory behind it is sometimes referred to as “concert of action” and it finds its genesis in the criminal law idea of “aiding and abetting.”11

“The most ancient authorities of the law” considered those who assisted in the commission of a crime to be guilty of the crime itself.12 So, for example, a getaway driver for a bank robber could be found guilty of the robbery even if his role was limited to sitting in the car while others did the actual robbing.

This principle remains the same when the wrong in question is a tort rather than a crime. In 1831, the Supreme Court of Ohio wrote in Bell v. Miller:

All concerned in the commission of a trespass are considered principals. An assault and battery may be committed by a party not present, if he be a principal actor in or adviser and promoter of making the attack. If one person employ another to commit an assault and battery or any other trespass, and the act is perpetrated, both are guilty, and both responsible in damages. It was not supposed that this was now a debatable question.13

The justifications for secondary liability build off of the fairness and efficiency goals of tort law. Associate professor of law Mark Bartholomew restates it as such: “While vicarious liability exists to redistribute risk in the absence of fault, contributory liability seeks to apportion liability on the basis of moral dessert.”14

Secondary Liability in Copyright Law

As mentioned above, copyright infringement is a tort. One would expect, then, that doctrines of secondary liability have made their way into cases dealing with copyright infringement. And indeed, they have.

Courts have generally recognized three theories for holding a third party indirectly liable for direct infringement caused by another:

  • Vicarious infringement — where one profits from direct infringement that one has the right and ability to control15
  • Contributory infringement — where one has knowledge of the infringement and causes or materially contributes to the infringement16
  • Inducement — where one engages in purposeful conduct that encourages infringement with the intent to encourage infringement17

These well-established principles of secondary liability have been applied in infringement cases for decades, if not longer.18 But it wasn’t until the widespread adoption of the internet over the last 20 or so years that these doctrines have played an increasingly important role in copyright infringement cases.

One quick note: some copyright critics cling to the belief that secondary liability doesn’t exist in the realm of copyright infringement because it is not mentioned in the Copyright Act. The belief is bolstered, perhaps, by Justice Stevens’s remark in Sony v. Universal City Studios that “The Copyright Act does not expressly render anyone liable for infringement committed by another.”19 But the idea that third-party liability in copyright infringement is invalid is wrong on two counts.

First, the US operates under a common law system. The law is developed in the courts unless and until it is modified by statute. As shown above, courts have long recognized doctrines of secondary liability in infringement cases. And if you read just a couple sentences more, you see Stevens explain the same:

The absence of such express language in the copyright statute does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity. For vicarious liability is imposed in virtually all areas of the law, and the concept of contributory infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold one individual accountable for the actions of another.

Second, even recognizing that secondary liability exists in copyright law under the common law, some have suggested that Stevens was, in fact, wrong that the Copyright Act didn’t expressly recognize it. Peter Menell and David Nimmer explain:

The extensive legislative history underlying the 1976 Act refers specifically to the law of torts in clarifying that “where the work was infringed by two or more joint tort feasors, the bill would make them jointly and severally liable …” More references to tort law undergird the 1976 Act’s remedial provisions. These references cement the proposition that tort doctrine furnishes the background law for determining what circumstances render someone liable for infringement and, if liable, the scope of remedies.

The legislative history makes two direct references to indirect liability standards, both of which support the continuation of then-existing doctrines and their further refinement through judicial decisions. In explaining the general scope of copyright, the House Report recognizes contributory liability:

The exclusive rights accorded to a copyright owner under section 106 are ‘to do and to authorize’ any of the activities specified in the five numbered clauses. Use of the phrase ‘to authorize’ is intended to avoid any questions as to the liability of contributory infringers. For example, a person who lawfully acquires an authorized copy of a motion picture would be an infringer if he or she engages in the business of renting it to others for purposes of unauthorized public performance.

In discussing infringement, the House Report explains:

Vicarious Liability for Infringing Performances

The committee has considered and rejected an amendment to this section intended to exempt the proprietors of an establishment, such as a ballroom or night club, from liability for copyright infringement committed by an independent contractor, such as an orchestra laeder [sic]. A well-established principle of copyright law is that a person who violates any of the exclusive rights of the copyright owner is an infringer, including persons who can be considered related or vicarious infringers. To be held a related or vicarious infringer in the case of performing rights, a defendant must either actively operate or supervise the operation of the place wherein the performances occur, or control the content of the infringing program, and expect commercial gain from the operation and either direct or indirect benefit from the infringing performance. The committee has decided that no justification exists for changing existing law, and causing a significant erosion of the public performance right.

That excerpt shows legislative intent to preserve the principles of vicarious liability that had developed through the courts under prior law under the 1976 Act.20

Copyright Liability Online

With the advent of digital technology — allowing text, music, and visual works to be reproduced easily and perfectly — and the internet — allowing digital files to be distributed cheaply across the globe — liability for copyright infringement quickly entered new territory.

Copyright infringement has traditionally been characterized as a strict liability tort, meaning one can be liable without intending to infringe any of the exclusive rights protected by copyright.21 This strict liability, in theory, implicates many parties that make up the backbone of the internet since transmission of digital data necessarily involves “copying” and distribution, as well as public display or performance, at many different stages.

In the US, the Digital Millennium Copyright Act (DMCA) — specifically, the safe harbors the bill amended to §512 of Title 17 of the US Code —  was a watershed bill for dealing with copyright liability online. One can divide how the law treats copyright liability for online service providers into two eras: pre-DMCA and post-DMCA.

Prior to the DMCA, it was up to courts to determine whether service providers were directly infringing on copyright for their role in copying and transmitting infringing works originally uploaded by users of the service. In at least one case, Playboy Enterprises v. Frena, the court found that the service provider was liable for direct infringement.22 Despite Playboy Enterprises, however, the case law suggests that courts were largely unwilling to hold service providers liable for direct infringement.23

When we turn to the question of indirect infringement — whether a service provider is liable for vicarious or contributory infringement — the pre-DMCA case law shows a far more muddied application of the doctrines. Contrasting approaches to these doctrines as applied to service providers emerged in the courts, with the result being a great deal of uncertainty for service providers.24

Governments around the world faced the same issues. The internet represented a great source of innovation and advancement. How best to craft liability rules that would ensure continued innovation and advancement while protecting long-established, real world rights online? The US Congress ultimately crafted the DMCA to address these concerns and provide certainty.

Addressing Online Liability Through Legislation

The choice for what level of liability online service providers should be subjected to, by law, generally comes down to one of three options: no liability, strict liability, or some type of limited or conditional liability. The DMCA takes a mixed approach, depending on what role an online service provider has taken on. Service providers have zero copyright liability if they are only engaged in transmitting and routing data, or if copies are made for system caching purposes.25 Conditional liability is placed on service providers for infringing works residing on the provider’s system at the direction of a user — for example, an unauthorized video uploaded to YouTube, an unauthorized photo posted on a message board, or an unauthorized song hosted on a user’s web site.

The general consensus is that conditional liability for service providers in the copyright context is the best of the three options.26 This approach balances the multitude of competing factors involved: it creates incentives on parties to reduce the harms of copyright infringement while avoiding overzealous monitoring that may suppress noninfringing speech. Most major countries around the world have adopted some form of conditional liability for online service providers in the copyright realm.27

What would liability for service providers look like today had there not been a DMCA? The answer is unclear. Certainly, there would have been a period of great uncertainty at the early stages of the growth of the internet as courts addressed the question. Perhaps the common law would have developed toward standards which fairly and efficiently allocated the risks of user infringement among the various parties; it is not unlikely, however, that courts could have adopted rules placing more of a burden on service providers for user infringement. Either way, if the question was left to the courts, it would likely have stifled innovation when such a result would have been most detrimental. A large company at the time like Yahoo or AOL could easily fend off legal challenges, where a cash-strapped startup might have folded, unable to fight in court no matter how likely its eventual success would be.

Conclusion

Zero liability for online service providers is far from a “basic liability concept.” Tort law has long recognized several doctrines where indirect liability may be imposed, and copyright law has long adopted those doctrines. Absent legislation like the DMCA, it is uncertain how courts would have applied those doctrines to service providers in the online context. The period of greatest uncertainty in the law would have coincided with the early stages of the widespread adoption of the internet: a time when uncertainty would have provided the most detriment.

It’s true that the laws regarding online liability for service providers are far from perfect. Stakeholders on all sides have expressed areas where they could be improved. But claims that zero liability for service providers are a foregone conclusion from a “common sense” point of view or that they reflect “basic liability concepts” are entirely off-base.

See Also

Footnotes

  1. Christopher Osakwe, Russian Civil Code. Parts 1-3: Text and Analysis (Wolters Kluver 2008). []
  2. Most notably the “hot coffee” lawsuit against McDonalds. []
  3. Lawrence v. Dana, 15 F. Cas. 26, 61 (C.C. Mass. 1869). []
  4. Peter S. Menell & David Nimmer, Unwinding Sony, 95 California Law Review 941, 996 (2007). []
  5. This is obviously an over-simplification for the purpose of discussion. For a more detailed look at theories of criminal law, start at Stanford Encyclopedia of Philosophy – Theories of Criminal Law. []
  6. Essays in Jurisprudence and Legal History, pg. 123. []
  7. Hubbard, The Nature and Impact of the ‘Tort Reform’ Movement, 35 Hofstra Law Review 437, 445-46 (2006). []
  8. The Theory of Legal Duties and Rights, pg 125. []
  9. See, for example: Broom, Manisty, and Cagney, A Selection of Legal Maxims, Classified and Illustrated, pg. 798 (1884) for a discussion of the doctrine and its long-standing place in history. []
  10. For example, in trademark cases like Inwood Labs v. Ives Labs, 456 US 844 (1982) and especially in patent cases: Thomson-Houston Electric v. Kelsey Electric, 72 F1d 1016 (1896). []
  11. See In re Aimster Copyright Litigation, 334 F.3d 643, 651 (7th Cir. 2003); Boedecker, Kasulis, Morgan, and Stoltman, The History of Enterprise Liability, Ninth C.H.A.R.M. Conference on Historical Analysis and Research in Marketing, 205, 210 (1999). []
  12. The American and English Encyclopedia of Law, pp. 29-30 (Edward Thompson Company, 1896). []
  13. Bell v. Miller, 5 Ohio 250 (Supreme Court of Ohio, 1831). []
  14. Mark Bartholomew, Copyright, Trademark and Secondary Liability after Grokster, 32 Columbia Journal of Law & the Arts 445, 465 (2009). []
  15. Shapiro, Bernstein & Co. v. HL Green Company, 316 F.2d 304, 308-309 (2nd Cir. 1963). []
  16. Gershwin Publishing Corp. v. Columbia Artists Man., 443 F.2d 1159, 1162 (2nd Cir. 1971). []
  17. Arista Records v. Lime Group (SDNY 2010). While there has been some doubt as to whether inducement is a new theory of secondary liability or just a restatement of contributory infringement, the court in Arista Records concluded that the Supreme Court in MGM v. Grokster confirmed inducement as a “distinct cause of action.” []
  18. See Unwinding Sony, pp 996-1005 for a thorough discussion of the history here. []
  19. 464 US 435. []
  20. Unwinding Sony, pp. 995-96. []
  21. Patry on Copyright, §9:5. []
  22. 839 F. Supp. 1552 (M.D. Fla. 1993). []
  23. Alfred Yen, Internet Service Provider Liability for Subscriber Copyright Infringement, Enterprise Liability, and the First Amendment, 88 Georgetown Law Journal 1833, 1842 (2000). []
  24. Yen, 1877. []
  25. 17 USC § 512 (a) and (b). []
  26. See, for example, Alan Woodfield, When Should the Bell Toll? The Economics of New Zealand’s Debate on Indirect Liability for Online Copyright Infringement, 1 Review of Economic Research on Copyright Issues 119, 147 (2004), discussing why New Zealand’s adoption of conditional liability was the best of the three options. []
  27. See Woodfield; Aditya Gupta, The Scope of Online Service Providers’ for Copyright Infringing Third Party Content Under the Indian Laws – the Road Ahead, 15 Journal of Intellectual Property Rights 35 (2010) (discussing UK, Canada, Australia, and India); VK Unni, Internet Service Provider’s Liability for Copyright Infringement – How to Clear the Misty Indian Perspective, 8 Richmond Journal of Law & Technology 13 (2001) (also discussing Canada, Australia, and India, as well as Singapore); the procedure the Russian ISPs propose in their letter highlighted in the TechDirt article mirrors these approaches. []

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October 18, 2010 · · Comments Off

On October 11, The Irish High Court ruled that it did not have the authority to order Irish internet service provider UPC to implement a graduated response solution – a so-called “three strikes” approach – to reduce online piracy. The four major record labels – Warner Music, Universal Music Group, Sony BMG, and EMI – had sought the injunction after successfully getting Irish ISP Eircom to adopt a similar solution in a settlement agreement earlier this year.

Canadian attorney and blogger Barry Sookman has a thorough write-up on the case that I highly recommend, EMI Records v UPC – the case for legislative solutions to illegal file sharing, which includes links exploring the issue of graduated response solutions to online piracy in more detail.

Since I’m in the US, my familiarity lies with US copyright law. However, this case does highlight some issues relevant to the distinction I made previously on this site between creative and consumptive infringement. Copyright critics frequently lump their concerns with both types of infringement together to create one big copyright bogeyman. But this conflation only hinders discussion of copyright policy.

Discussion of creative infringement centers upon internally substantive aspects of copyright law – for example, how do you draw a line between acceptable transformative use of a copyright work and infringing transformative use. When you talk about consumptive infringement – verbatim, substitutive use of a work – there’s very few substantive copyright issues to consider. Instead, the discussion centers around procedural and enforcement issues.

Case in point is the opinion from this case. While the case concerns the enforcement of copyrights, it isn’t so much a copyright case as it is a separation of powers case.

Reading the case, and paying attention to the language used, you can see that the Court fully accepts the positive value of copyrighted works and the damage online piracy causes. Justice Charleton seems highly sympathetic to the record label’s struggle against “Internet piracy.” He noted that piracy is not only a “grave economic wrong against copyright holders” but that copyright is a constitutionally protected right for creators under Irish law.

In the end, however, as much as Justice Charleton wants to help the record labels, he simply can’t. To see how he reached that conclusion,1 let’s take a quick trip down remedy lane to injunction junction.

Injunctive Relief and its Limitations

An injunction is simply a “court order commanding or preventing an action.”2 The modern remedy of injunctions developed in the equity courts of medieval England. Back then, the court system was divided between two separate court systems: courts of law and courts of equity. Courts of law were rigid and formal; plaintiffs were typically limited to receiving money to compensate for damages or injuries. Courts of equity, however, were more flexible and afforded a broader array of remedies to plaintiffs.3

The reasoning behind equitable remedies is that there are certain situations where monetary compensation is thought to be inadequate – inadequate in the sense that a money award is incommensurate with the injury. An example of such a situation is a neighbor who cuts across your lawn to get to his property. If you don’t like him doing this, and take him to court, money damages will probably be inadequate. The trespass results in only a nominal injury – a court will likely only award nominal damages, if it awards any damages at all. Even if it does, the neighbor can continue to trespass, forcing you to continue to sue. An injunction – a court order prohibiting your neighbor from further trespass – is a more adequate remedy, as it more directly addresses the result you want.

The separate courts of law and courts of equity have largely merged in common law countries, though the distinction between legal and equitable remedies remains.

As you might imagine, injunctions are a powerful remedy – and with great power comes great responsibility. Common law countries like the US and Ireland – both of which count English common law as an ancestor – generally recognize a legislature’s power to place limits on equitable remedies through statutes. In the US, Congress has limited the availability of injunctions in labor disputes and rate orders of state public utility commissions, for example.4

Leading the Court Beyond the Threshold of the Judicial Arm

Justice Charleton appears to have been willing to grant an injunction against UPC. He states that the “evidence convinces me that there is no just or convenient solution open to the record labels other than seeking injunctive relief against the service provider.” This evidence also convinced him that the injunctive relief sought by the labels – “detection, warning, and discontinuance” – is “proportionate to the vast scale of the problem.”

However, “courts must defer” to the legislature when the legislature has set out what remedies are available in a specific cause of action. Justice Charleton examines the legislative framework of Ireland relating to copyright thoroughly: examining both the text of the Copyright and Related Rights Act 2000 itself and construing it in light of European law, as well as comparing it to related legislation in other countries. This examination leads to his ultimate conclusion that the court is precluded from ordering the injunction sought by the record labels in this case.

Respecting, as it does, the doctrine of separation of powers and the rule of law, the Court cannot move to grant injunctive relief to the recording companies against Internet piracy, even though that relief is merited on the facts.

The Future of Graduated Response in Ireland

The decision appears to be only a setback for the music industry in Ireland. The Irish Times reports that “representatives of the music industry, internet service providers and the Government will now meet” to discuss new approaches to combating online piracy in light of the ruling.

An interesting twist in this case is that Justice Charleton was the same judge who presided over the record labels’ earlier lawsuit against Eircom. In that case, Eircom agreed to implement a graduated response procedure as part of a settlement agreement with the labels, so it is a bit unclear how the UPC decision will affect that agreement.

Charleton addresses the issue in the UPC ruling, stating that the previous judgment is both “correct” and “unaffected” by this case. However, there are suggestions that Eircom is exploring its options regarding its settlement agreement in response to this decision.

Aside from that, this decision is unlikely to have too much effect in the near future. Content industries in other countries continue to favor some sort of graduated response solution. But those efforts are largely being pursued through legislation – as has already happened in France – or through voluntary agreements with ISPs.

Footnotes

  1. And because I want to share my fascination with what many feel are the boring parts of law. []
  2. Black’s Law Dictionary. []
  3. James B. Stoneking, Injunctions and Equitable Remedies, Oxford Companion to the Supreme Court of the United States (Kermit L. Hall, ed., Oxford University Press, 2005). []
  4. Congressional Limitation of the Injunctive Power, OneCLE. []

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October 13, 2010 · · Comments Off

Many critics of current copyright doctrine believe its problems stem largely from an infusion of “property talk” into policy discussions. William Patry writes in Moral Panics and the Copyright Wars, “By describing copyright as a private property right, proponents of the description hope to get policy makers and courts to believe that only private, and not public rights are implicated.”1 Later, he adds, “The effort to describe copyright as property is intended to invoke ancient entitlement to powerful rights of exclusion, rights granted automatically as a member of the oldest families.”2

A similar argument is made by Steve Collins in “‘Property Talk’ and the Revival of Blackstonian Copyright“:

The possessiveness and exclusion that accompany “property talk” are difficult to reconcile with the utilitarian foundations of copyright. Transformative uses of copyrighted materials such as mashing, sampling and appropriative art are incompatible with a propertarian approach, subjecting freedom of creativity to arbitary licensing fees that often extend beyond the budget of creators (Collins). “Property talk” risks making transformative works an elitist form of creativity, available only to those with the financial resources necessary to meet the demands for licences.

This view is shared by many copyright critics online. Mike Masnick, at TechDirt, consistently argues that copyright is not property, and can in fact be viewed as “anti-property.” Boingboing blogger Cory Doctorow says,

Trying to shoehorn knowledge into the ‘property’ metaphor leaves us without the flexibility and nuance that a true knowledge rights regime would have.

Copyright – with all its quirks, exceptions and carve outs – was, for centuries, a legal regime that attempted to address the unique characteristics of knowledge, rather than pretending to be just another set of rules for the governance of property. The legacy of 40 years of “property talk” is an endless war between intractable positions of ownership, theft and fair dealing.

But is this necessarily true?

Transformation in Property and Copyright

Legal Theory Blog points to a new paper by Christopher M. Newman that argues many of the problems in current copyright doctrine – specifically relating to how it treats creative uses rather than consumptive uses of existing works – may be better addressed by treating copyright more like property rather than less.

Transformation in Property and Copyright is available at SSRN, and I second Legal Theory Blog’s recommendation. The abstract reads:

Copyright requires us to distinguish between two different ways of transforming a “work of authorship”: “derivative works” and “transformative fair uses.” The absence of a clear line results in a tendency to assign all value arising proximately from a work to copyright owners. Many people blame this expansionist tendency on a “propertarian” understanding of copyright, and argue that the solution is to abandon any notion of copyright as property. I agree that current copyright doctrine often gives excessively broad scope to the exclusive rights of copyright owners, but argue that this may be a result of copyright not being “propertarian” enough. Property is an attempt to coordinate resource use through a system of in rem rights whose content can be understood by third parties without reference to the subjective use preferences of others. Traditional property law dealing with the transformation of mundane objects uses objective, socially intelligible tests of identity to determine when an owner’s rights in a thing have been extinguished, thus preventing owners from asserting subjective use preferences as a means of extracting value from transformed objects created by others.

Far from implying “absolutist” authorial rights, an in rem approach to copyright requires that we place clear boundaries around the identity of the “work of authorship.” This means moving away from the notion that disembodied fragments of “protected expression” can be owned separately from the “work of authorship” of which they are a part. I show how this might be done, proposing to define a “work of authorship” in terms of a coherent expressive experience designed by an author. Putative “copies” that are not tailored to facilitate beneficial use of the work as conceived by the author, but rather to communicate second-order information, or to give rise to expressive experiences radically discontinuous from the ones the author designed, therefore fall outside the author’s right to exclude altogether. Such a “propertarian” approach could be both clearer and more protective of free speech than current doctrine, because limits on the scope of the author’s rights would be defined intrinsically, obviating the need to resort to fair use doctrine with its value-laden weighing of social worth.

Essentially, Newman argues that copyright doctrine needs a better theory to sort out the age-old question of “which ‘further purposes’ authors should control, and which they shouldn’t.” Along the way, he touches on a number of situations in which current copyright doctrine finds infringing use where many would argue noninfringing use: unauthorized sequels (like The Wind Done Gone), “fictional facts” (at issue in the lawsuit against the Seinfeld Aptitude Test), and uses of a work to convey second order information (for example, incidental captures of copyrighted works in film scenes). Newman convincingly argues that his “propertarian” approach would sort out infringing and noninfringing uses that are better aligned to the underlying goals of copyright law.

It’s definitely worth a read. Those outside the legal and academic fields may find it long (it’s just under 80 pages) and technical at times, but there’s plenty of good stuff inside.

Newman’s article builds upon a number of previous works, but I wanted to specifically point out two that are worth reading if you’re interested in this area of the copyright debates. The first is Adam Mossoff’s Is Copyright Property? and the second is Richard Epstein’s Liberty versus Property? Cracks in the Foundations of Copyright Law, both available at SSRN.

Upon reading Newman’s article, I was reminded of an earlier article by David Fagundes, Crystals in the Public Domain. Newman argues along much the same lines as Fagundes, as you can see in the abstract:

The law increasingly treats copyright as if it were any other form of property, and numerous writers decry this trend. In particular, scholars who express solicitude for the public domain fear that the propertization of copyright means an inevitable accretion of private rights in information at the expense of the public domain. This Article critiques this conventional view, arguing that the propertization of copyright has unappreciated advantages for users of public information goods. The conventional view relies on an overly narrow view of what propertization means. The treatment of copyright as a form of property generally entails not only reduction of entitlements to private ownership, but also the bounding of those entitlements with clearly demarcated, or crystalline, borders. Although many writers prefer muddy entitlements that create fluidity regarding the extent of the public domain, this Article argues instead that it is this very fluidity that is at fault for excessive accretion of private rights in information. Uncertainty about the extent of public entitlements in information allows well-capitalized private actors lay claim to resources whose public/private status is at all ambiguous, and then deter the public’s claims through threats of litigation. By contrast, a public domain characterized by crystalline rule structures would benefit users, not only owners, by allowing them to better comprehend the extent of their entitlements and thus exploit common resources without fear of suit. By way of illustration, this Article provides three examples of how copyright law could be reformed to create user-friendly crystalline entitlement structures. It then concludes by situating the propertization of copyright law, and this critique of the dominant narrative about that trend, in the context of current debates in property law more generally.

Fagundes’s article includes several specific proposals to copyright law as a way of incorporating his arguments.

The cries that “copyright is not property!” embrace not only a simplistic idea of “property” but also ignore the benefits that taking a more “propertarian” approach to copyright doctrine may provide. The idea that “property talk” is a pretext for exerting “sole and despotic dominion” over all uses of a copyright does not hold weight upon closer examination. Newman’s article provides one such examination, and I highly recommend giving it a read.

Footnotes

  1. Moral Panics, pg. 107 (Oxford University Press, 2009). []
  2. Moral Panics, pg. 113 (Oxford University Press, 2009). []

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“They make me madder than a yak in heat.” – Marge Simpson

A little over a month ago, I wrote a post titled Is Copyright Infringement Theft? The post sparked several other thoughtful articles and many comments – most notably a response by Mike Masnick at the popular TechDirt blog, Why It’s Important Not to Call Copyright Infringement Theft.

This is one of those ongoing debates, along the lines of “Mac vs. PC” and “Kirk vs. Picard.”1 Not surprisingly, many comments responded as if I had actually said “copyright infringement is theft.”  But the title of the post was merely a question, and in the body I explicitly said “I’m not going to answer that question today.”

I want to continue the discussion today. I think the debate serves as a launching point for many different discussions involving copyright law and the law in general. I obviously can’t cover all of those different discussions in one post, but hopefully I can highlight a few that I find interesting.

At the end of the day, I still think arguing over “theft” or “not theft” is a semantic sticking-point, but unlike Masnick, I think the foreclosure happens on both ends. He thinks “if you are seeking to understand what is happening and how to respond to it, calling it ‘theft’ immediately shuts the door on a variety of important points.” I think the same is true from the perspective of the creators and businesses in the creative industries: if you’re seeking to understand what is happening to them as we continue to move to a digital environment and how to respond to it, decrying anything but complete acceptance to widespread piracy – down to the very language they choose to use to describe it – shuts the door on a variety of important points.

Metaphor

Copyright infringement as theft is a metaphor. According to Masnick, calling copyright infringement “theft is wrong.” Why? “Because it’s wrong at an absolute level.”

When is a metaphor wrong? It’s a curious question. Over at the Legal Profession Blog, Jeff Lipshaw succinctly describes the role of metaphor in meaning using the example of subatomic particles. He says, “What thinking about electrons as billiard balls does is to give them a meaning by analogy to other things, and we base our view of the coherence of the explanation (not its rightness or wrongness) on how it compares to other explanations we already view as coherent.”

I included the Simpsons quote above to illustrate the difficulties in answering the question of the correctness of a metaphor. A yak in heat may very well exhibit aggressive behavior, making the comparison apt. But the comparison is at the very least a clumsy one; many of us are presumably unfamiliar with yak behavior, so the metaphor is more a non sequitur than a useful explanation.

“Love is like an onion, and you peel away layer after layer until you’re just … weeping over the sink.” – Pete Hornberger

The use of metaphor in language is very flexible. Its success in contributing to understanding is context-dependent. Saying you are “madder than X” aids the listener only if they have some knowledge of X. The metaphor itself does not depend on a literal comparison – computing the relative anger-level of you and X. Indeed, we tend to laugh at anyone who rebuffs a metaphor on literal grounds – imagine correcting Hamlet because troubles clearly don’t exist in liquid form.2

And yet that is one of the arguments used by those against the idea of copyright infringement as theft: the comparison is wrong in a descriptive sense. I addressed the fallacy in this argument in my first post. Based on the response to that post, I wanted to explore it further today. The idea that the comparison is wrong in any sort of descriptive sense has no basis in logic, language, or history.

The other argument against equating infringement with theft has to do with metaphor in framing – comparing the two in a prescriptive, or normative sense. The idea is that the language one uses reflects the result one wants to achieve. This argument, by far, is the more salient of the two. I touched on this argument briefly in my first post. Some of the responses to that post have explored this argument, so I’d like to flesh it out a little bit more today.

Comparing Apples to Oranges

Masnick concludes his article by calling to mind the idea that comparing copyright infringement to theft is like comparing “apples to oranges”. Even here you can see the challenges with talking about the rightness and wrongness of metaphors – even our metaphor for describing incomparable concepts is flawed!3 One is a round, tasty fruit that grows on trees, while the other is – wait…

The argument against a descriptive comparison between infringement and theft fails logically, historically, and legally.

Logical

Perhaps the best illustration of the logical argument against equating copyright infringement to theft can be found in the following YouTube video:

[youtube]IeTybKL1pM4[/youtube]

Cute. But it misses the point on several levels. If you steal a bike and your friend has to ride the bus, you’re certainly a thief. But if your friend sneaks on the bus without anyone noticing and gets a free ride, what do we call that?4

Our concept of “property” is not based on inherent characteristics of physical objects – you can’t look at a bicycle under a microscope and deduce who owns it. It’s better to think of “property” as a set of relationships between people and tangible or intangible things. Property in this sense requires a recognition by law and/or society of the rights, duties, privileges, etc. that connect any given individual with any given thing.5

The reasoning displayed in the video above is that (1) theft requires deprivation of possession, (2) reproducing a copyrighted work does not result in deprivation of possession, (3) thus, infringement is not theft. This argument begs the question, however, that the definition of theft is limited to deprivation of possession. The argument only works if you insist on restricting the definition of “theft” to that of common law larceny. This is an overly prescriptive restriction on the term. The idea is that the comparison is wrong not just on a literal level, but an arbitrarily narrow application of the literal meaning of “theft.”

It’s easy to reconcile infringement with theft using the broader view of property rights as a set of legal relationships between individuals and things. “Possession” is only one of the relationships recognized by law and society. “Theft” in its colloquial sense – the definition commonly used over time – involves some deprivation of a recognized right. “Theft” of a physical object typically means the deprivation of the exclusive right of possession. Copyright, by statute, secures the exclusive right to copy, among other rights. Copying without permission thus deprives the author of that exclusive right.

Historical

The above video is an example of “linguistic peeving.” In one sense, it is a latching onto a specific usage one believes is right, while proclaiming all other usages to be wrong. But when it comes to the use of language, we can compare claims of “peevery” against actual usage throughout history. “Lingustics is descriptive, not prescriptive.”

The debate over the words used in discussing copyright is nothing new. William St. Clair notes that “the language of stealing” became the main metaphor for copyright infringement at the end of the seventeenth century.6 Infringement was, at that time, “frequently equated with theft,” “shoplifting, letter-picking, purse-cutting, highway robbery, burgling a house, plundering a hospital. And piracy.”7

New terms continue to be termed to describe the relationship between infringement and theft. Among hip-hop artists, the term “beat-jacking” – a derivation of carjacking – is used to describe the deliberate use without permission, or a false claim of authorship, of another writer’s instrumental.8

This language usage is not hard to find among people within the creative fields. One of the responses to my initial post comes from friend and PlagiarismToday blogger Jonathan Bailey, who notes that while he limits the use of the term “theft” in connection with copyright infringement, he has no issue with its casual use in this context for three reasons: (1) It’s a common term, (2) It’s not meant to be literal, and (3) It’s not the only misnomer. Bailey’s site is aimed at content creators of all stripes, both large and small, and the terminology reflects to some extent the feelings these creators express when they see others copy their work.

Legal

In my first post, I specifically pointed out the fallacy in relying on the Supreme Court’s opinion in Dowling for “not theft” proponents, and included a quote from the Court in MGM v. Grokster equating unlawful copying to “garden-variety theft.” The first example illustrated the problems with misapplying judicial language to prove a point; the second, to show the comfort that the highest court in the land has in using the language at issue in a colloquial sense. This colloquial use of “theft” in the copyright context was not, however, an isolated incidence.

  • In the 1974 Supreme Court case Teleprompter Corp. v. Columbia Broadcasting System, Justice Douglas and Chief Justice Burger wrote in their dissent, “A CATV that builds an antenna to pick up telecasts in Area B and then transmits it by cable to Area A is reproducing the copyrighted work, not pursuant to a license from the owner of the copyright, but by theft.”9
  • Judge Patel began his opinion in the District Court ruling in A & M Recordings v. Napster, “The matter before the court concerns the boundary between sharing and theft, personal use and the unauthorized world-wide distribution of copyrighted music and sound recordings.”10
  • In 1980, the Second Circuit wrote in Iowa State University v. American Broadcasting, “The fair use doctrine is not a license for corporate theft, empowering a court to ignore a copyright whenever it determines the underlying work contains material of possible public importance.”11

One could find examples of this language from branches of government outside the judiciary. Among other usages of describing copyright infringement as theft, I can point to:

Perhaps most strikingly, the case can be made that copyright preemption shows a similarity between infringement and theft. In the comments of his response, Masnick says the point of refraining from using “theft” language in the copyright context is that the two are not “analogous.”

The Copyright Act explicitly preempts “all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright” (emphasis added). In other words, you can’t bring a cause of action in a state or local court if the rights at issue fall within the scope of copyright law. Among the causes of action which have been found by courts to be preempted by copyright law: conversion – the “wrongful exercise of dominion and control over tangible, physical objects”;12 theft of services;13 and theft of satellite signals.14

According to Wiktionary, “analogous” means “Having analogy; corresponding to something else; bearing some resemblance or proportion.” “Equivalent” means “similar or identical in value, meaning or effect; virtually equal.” If causes of action like conversion and theft of services – species of theft – are “equivalent” under the doctrine of preemption, than the argument that they are not analogous – that they don’t bear some resemblance or proportion – fails.

It’s simply disingenuous to say that a metaphor which has been commonly used for centuries by individuals of all stripes, courts, legislators, and governments is “wrong.” Legally and logically, the metaphor holds up. To say that copyright infringement is not theft on a descriptive level only demonstrates ignorance.

Ought Copyright Infringement be Considered Theft

I mentioned earlier that the more salient argument in the “theft” debate has to do with “framing.” The self-ascribed camps of ‘pro-life’ and ‘pro-choice’ in the abortion debates illustrate precisely the power of framing in shaping the character of the debate. Within highly contentious debates, the question matters as much as the answer.

The heart of the issue about equating copyright infringement to theft is not whether it is theft, but whether it ought to be considered theft. That is, it is not important whether we can look to the past and see the metaphor as an accepted linguistic usage, but it is important to consider the effects that using the metaphor has on lawmakers, judges, and policy makers as they craft responses to future problems.15

One quick note about plagiarism. Nandita Saikia springboarded off my post to consider whether plagiarism should be equated to theft. The issue of plagiarism is distinct from, but overlaps with, copyright infringement. Nevertheless, it warrants mentioning here. Jonathan Bailey points to recent research involving children and plagiarism. And generally, there has been an increase in the prevalence of plagiarism in the past several years.16 I think the issue of plagiarism is unequivocally a moral issue, but one that can be addressed outside the confines of copyright law. At the same time, discussions of plagiarism do inform some discussions of copyright law.

Back to copyright infringement in general, and also from India, Amlan Mohanty briefly discusses my piece in the larger context of Indian copyright law. Mohanty gets at the heart of the issue about framing, saying “The term ‘theft’ carries with it significant ethical connotations, is regarded as moral turpitude, and involves considerable value-judgement.”

In this sense, the question over whether infringement should be equated to theft comes down to whether infringement should carry the same moral considerations as theft is said to carry. The debate is over whether this metaphor – this use of language – accurately describes society’s and the law’s response to copyright infringement.

Fortuitously, John Locke, the philosophical godfather of American legal theory, actually used the term “stealing” as an example of how language aids in our understanding of the ideas behind laws:17

16. The denominations of actions often mislead us. But because very frequently the positive idea of the action, and its moral relation, are comprehended together under one name, and the game word made use of to express both the mode or action, and its moral rectitude or obliquity: therefore the relation itself is less taken notice of; and there is often no distinction made between the positive idea of the action, and the reference it has to a rule. By which confusion of these two distinct considerations under one term, those who yield too easily to the impressions of sounds, and are forward to take names for things, are often misled in their judgment of actions. Thus, the taking from another what is his, without his knowledge or allowance, is properly called stealing: but that name, being commonly understood to signify also the moral pravity of the action, and to denote its contrariety to the law, men are apt to condemn whatever they hear called stealing, as an ill action, disagreeing with the rule of right. And yet the private taking away his sword from a madman, to prevent his doing mischief, though it be properly denominated stealing, as the name of such a mixed mode; yet when compared to the law of God, and considered in its relation to that supreme rule, it is no sin or transgression, though the name stealing ordinarily carries such an intimation with it.

One may note that both theft and copyright infringement are against the law. If the problem with equating the two is that theft is immoral because it is contrary to the law, than the discussion is moot. Either one will subject you to civil liability; either one may subject you to criminal penalties. We “know” at an early age that garden-variety theft is illegal, and anyone who has seen an FBI warning on a movie or paid attention to the recent record label’s litigation campaign “knows” that copyright infringement is illegal.

In fairness, the pushback against equating the two is based on relative morality – copyright infringement is not as bad as theft – sussing out dichotomous forms of copyright infringement,18 and the importance of countervailing goals in copyright law beyond securing exclusive rights to authors.

These are not tiny bases. One could devote entire books to them – something William Patry has done as I noted in my first post.

William St. Clair describes the use of “theft” language in the copyright context as “literary knockabout.”19 The historical effects have largely remained within the rhetorical arena. This metaphor is neither recent, nor solely attributed to the largest stakeholders – individual, amateur, and small-time creators typically make use of it. We can talk about whether or not the language has influenced the copyright debates in the wrong direction, but foreclosing the term “theft” in the copyright arena hinders the debate as much as using it puts up “a wall to understanding.”

Footnotes

  1. The truly geek would answer “Linux” and “Jack O’Neill.” []
  2. From Hamlet, Act 3, Scene 1, “Whether ’tis nobler in the mind to suffer The slings and arrows of outrageous fortune, Or to take arms against a sea of troubles And, by opposing, end them.” []
  3. Check out “apples and oranges” on Wikipedia for an introduction into this curious cliche. []
  4. A millennia old problem is what we call it. []
  5. The genesis of this line of thought is often attributed to Wesley Hohfeld in Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale Law Journal 16 (1913). []
  6. William St. Clair, Metaphors of Intellectual Property, Privilege and Property: Essays on the History of Copyright (Open Book Publishers). []
  7. Privilege and Property, pg 388. []
  8. See, e.g., M.O.P. Denies Beat JackingBeatjacking or Fair Game? []
  9. 415 US 394, 417. []
  10. 114 F. Supp. 2d 896, 900. []
  11. 621 F. 2d 57, 61. []
  12. Patry on Copyright 18:34 []
  13. See, eg, Orth-O-Vision v. HBO, 474 F. Supp. 672. []
  14. Patry on Copyright 18:52 []
  15. I want to point out Interpretation and Coherence in Legal Reasoning at the Stanford Encyclopedia of Philosophy for further insights into this area. []
  16. See, eg, Danielle Kanclerz, Internet to Blame for Increase in Plagiarism Cases. []
  17. John Locke, An Essay Concerning Human Understanding, Book II, Chap. XXVIII (1690). Google Books link []
  18. See my post on Creative vs Consumptive Infringement for an introduction on this subject. []
  19. Privilege and Property, pg 391. []

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Update: the title of this post refers to the season (as in “the summer of savings!”). I inexplicably hadn’t thought of the more common meaning of ‘fall’ when I wrote it (d’oh!), and this post is not meant to imply that I think file-sharing is going away anytime soon.


This is the fall of file-sharing. With negotiations on the ACTA wrapping up and legislation like the Combating Online Infringement and Counterfeits Act making their way through Congress, I thought it would be a good time to take stock of “the state of online piracy”, as it were. Call it what you will – file-sharing, digital theft, copyright infringement – the ease and speed that unauthorized reproduction and distribution of creative works over the internet has caused content industries and creators much consternation over the past decade or so.

The recording industry, by way of example, has seen its sales cut in half in ten years:

Nearly every other creative industry has felt the pinch, from book publishers to film studios, television producers, photographers, and newspapers. But music file-sharing is often thought of as the “canary in the coal mine” of online piracy because of small file sizes and the nature of consumption habits. It’s not surprising then that the recording industry has been one of the first to respond to online piracy, and its actions have garnered the bulk of the attention in the copyright debates.

From 2003-2008, record labels engaged in a campaign to sue individuals for downloading and uploading music online. Although they filed around 35,000 lawsuits, only two of those cases went to trial. Those cases are still not completely settled.

Today, I want to take a look at where these cases stand. What do industry groups think about this strategy? Recent interviews shed some light on this question. Finally, what role does online piracy play in the dive in sales illustrated by the graph above? I sum up the research to date.

File-sharing Litigation Developments

Last year, the only two defendants to make it to trial in the record labels campaign against individual file-sharers were found liable for copyright infringement and faced considerable damages. In both cases, the damages were subsequently reduced on different grounds and the outcomes challenged. A separate defendant never made it to trial but is seeking Supreme Court review of her verdict.

The third trial for Jammie Thomas-Rasset is set for November 1. Thomas-Rasset was first sued in 2006 by several record labels for downloading and uploading music using the P2P software KaZaa. A jury found her liable for copyright infringement and awarded damages of $222,000. The judge sua sponte ordered a new trial after he determined there had been an error in the jury instructions.1 In 2009, Thomas-Rasset was found liable again by the jury, this time awarding damages of $1,920,000. A few months later, the judge reduced the award to $54,000 using the common-law doctrine of remittitur. After Thomas-Rasset rejected a settlement offer of $25,000, the record labels rejected the remittitur and opted for a new trial – one concerning only damages.

Also making its way through the courts is an appeal in the Tenenbaum file-sharing case. Last year a jury found Joel Tenenbaum liable for downloading and uploading music and awarded damages of $675,000. Tenenbaum subsequently moved for a reduction in damages. This past July, the court granted his motion and reduced damages to $67,500 – on constitutional grounds rather than under the doctrine of remittitur as in the Thomas-Rasset case. The record labels appealed the reduction; briefing and oral arguments will likely begin in the next couple months.

There are hints that the Supreme Court may take up an issue raised in a third file-sharing lawsuit, albeit one that did not make it to trial. A district court ruled on cross-motions for summary judgment that Whitney Harper was liable for copyright infringement but, as an “innocent infringer“, qualified for mitigated statutory damages of $200 per infringed work.2 In February, the Fifth Circuit reversed the court’s ruling on innocent infringement. Harper subsequently petitioned for Supreme Court review of the Fifth Circuit’s ruling, a petition the Court is currently considering.

The RIAA and MPAA Speak Out

As industry groups that represent the bulk of companies that produce and distribute movies and music, the RIAA and MPAA are on center stage of the copyright debates. Perhaps more than any other event, the RIAA member label’s litigation campaign against individual downloaders has pushed copyright law into the public conscious.

Recently, representatives of both industry groups have talked online about internet piracy, shedding some light on their reactions and approaches. In August, RIAA President Cary Sherman spoke with Vice Magazine. While it’s clear the interviewer doesn’t side with the RIAA,3 Sherman provides insights into the enormity of the problems online piracy poses to the recording industry and its response to it:

A few years ago the RIAA switched tactics. Instead of high-profile prosecutions of people who pirated music, you decided to put the onus on the ISPs. How successful was that transition?
The time had come to shift over to a strategy that would be more effective. The lawsuits were obviously controversial in the media, but the reality was that most people had no idea that what they were doing was illegal at the time of those lawsuits. We did all sorts of surveys. We tried PR firms. We did everything to look at how to begin to change the culture of using illegal P2P. We realized that 1) none of the messages resonated, and 2) most people had no idea that what they were doing was illegal, let alone thought it was wrong. That completely flipped overnight when we started the lawsuits. It made an enormous impression and we were constantly generating dinner conversations about what you may or may not do with your computer. We think it would be very good if there were more such conversations about all the other things that can be done inappropriately with a computer. So we think it had a tremendous impact by very clearly searing in the minds of the public that maybe getting all of this stuff for free isn’t legal after all.

Just yesterday, Copygrounds posted an interview with MPAA representatives Fritz Attaway and Craig Hoffman. Like the interview with Sherman, the piece covers many topics relating to the state of online piracy today. In particular, Attaway compares the MPAA’s response to online piracy with the RIAA’s:

We have used slightly different tactics than RIAA in part because of the nature of our respective works. There are certainly other reasons as well but MPAA has filed end user lawsuits like RIAA has. However, they are very expensive and we have determined that there are other routes that provide a better return; among them education, working with intermediaries like ISPs to discourage infringing activity, and one, that is probably the most important, is encouraging the development of new business models that provide legitimate alternatives. All of these avenues we are pursuing very aggressively. Because for a number of reasons RIAA has focused on end-user suits and that makes sense for them. It is absolutely necessary we would agree that there be consequences to infringing behavior. If bad behavior does not result in consequences pretty soon no one thinks it’s wrong. And that is not a good thing. So we agree that it is helpful to establish that there are consequences for infringing behavior but there are also a number of other things that can be done to discourage bad behavior and we are pursuing those as well.

Effects of Online Piracy

Surprisingly, there are some who oppose the industry’s response to online piracy, but the idea that online piracy harms sales itself. These beliefs are bolstered by a 2004 paper by researchers Olberholzer-Gee and Strumpf which concluded that the net effect of online piracy on sales is “statistically indistinguishable from zero.” The paper was widely hailed among the file-sharing crowd as conclusive proof that online piracy is justified.

However, this crowd missed the news that this past June, Olberholzer-Gee and Strumpf announced a new paper that found up to 20% of the recording industry’s decrease in sales is attributed to file-sharing. This conclusion is more consistent with industry estimates and other independent research. Other researchers, most notably Stan Liebowitz, had previously noted deficiencies in the original paper.

The reality is that a number of independent scholars have researched the effect of online piracy on recorded music sales. The consensus hovers around a 15% reduction in music sales directly attributable to file-sharing. I’ve included a summary of as many studies as I’ve come across below.

Conclusion Author Date Report
2.1% reduction of music sales Wu & Sukoco 2007 The Influence of Internet on Music Market – Revisited
13% reduction in CD purchases Michel, Norbert 2006 The Impact of Digital File Sharing on the Music Industry: An Empirical Analysis
“Lost sales amount to a 131% of the legal market” Montoro-Pons & Cuadrado-Garcia 2006 Digital Goods and the Effects of Copying: An Empirical Study of the Music Market
9-10% reduction in reduction in album sales Rob & Waldfogel 2006 Piracy on the High C’s: Music Downloading, Sales Displacement, and Social Welfare in a Sample of College Students, Journal of Law and Economics
14-23% reduction in CD sales Zentner, Alejandro 2005 File Sharing and International Sales of Copyrighted Music: An Empirical Analysis with a Panel of Countries
33% of the total reduction in recorded music sales Hong, Seung-Hyun 2004 The Effect of Internet Piracy on CD Sales: Cross-section EvidenceThe Effect of Napster on Recorded Music Sales: Evidence from the Consumer Expenditure Survey
10% reduction in CD sales Paetz & Waelbroeck 2004 The Effect of Internet Piracy on CD Sales: Cross-section Evidence
20-25% reduction in music revenues Liebowitz, Stan 2003 Will MP3 Downloads Annihilate the Record Industry? The Evidence so Far
7.8-14.5% reduction in music sales Zentner, Alejandro 2003 Measuring the Effect of Online Music Piracy on Music Sales

Along the same lines as the question “does online piracy hurt sales” is the question “does managing piracy help sales.” Research suggests that it does. A study by David Blackburn concluded that a 30% reduction in file-sharing across the board would increase music sales by 10%. Analysis of the litigation campaign by RIAA record labels also show a positive benefit:

The RIAA’s litigation efforts against direct infringers have led to an initial decrease infile-sharing on P2P networks, have prompted universities to adopt copyright policies and initiate negotiations with legitimate sites, and have increased the appeal of legitimate sites. In addition,album sales increased for the first time in several years by 4.7 percent in the last quarter of 2003. In January 2004, sales showed a 10.4 percent increase since January of the previous year. Total sales in 2004 are predicted to exceed those in the last two years, although the rate of increase has slowed.

The Fall of File-sharing

The upcoming weeks and month will no doubt show a lot of movement within the law on issues relating to online piracy. Expect the copyright debates to continue at a fevered pitch. In the meantime, if you have any stories or topics you’d like to see covered here, drop a message or comment.

Footnotes

  1. Ben Sheffner, The Jammie Thomas Re-trial: Frequently Asked Questions, June 10, 2009. []
  2. It is a common misconception that “innocent infringement” is a defense to copyright infringement, but that is not the case. A plaintiff in a copyright suit may seek statutory damages in lieu of actual damages. If a defendant is found liable of copyright infringement, a court may award between $750 and $30,000 per infringed work. If statutory damages are sought, a defendant can make a showing that he was as not aware and had no reason to believe that his or her acts constituted an infringement of copyright” – if successful, the court has discretion to reduce the minimum statutory damages to $200 per infringed work. []
  3. The article begins, “Many, many people believe that the Recording Industry Association of America is a giant hairy tumor on the neck of the music business. Many people further feel that this disgusting malignancy has slowly spread its cancerous wrath across the public domain in recent years.” []

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Copyright protection vests automatically when a work is created and currently lasts for the life of the author plus 70 years. The duration of copyright protection is frequently cited as one of the major problems in current law – one critic says “copyright protection lasts absurdly long,” a not uncommon view.1

Most commonly, arguments against copyright’s duration stem from the fact that all creative works, to some extent, build upon existing works. Too long of a time keeps new works from entering in the public domain, where they can be used without risking liability. There are also concerns that less-popular works may be lost forever due to the ravishes of time – archivists and librarians wary of preserving or displaying them without permission.

It would seem, then, that the length of copyright protection is an easy target for reform – indeed, many proponents of copyright reform address duration. However, several factors make copyright duration resistant to simple solutions. It’s easy to say “copyright lasts too long, make it shorter.” Taking on the subject is challenging; today, all I want to do, is give a broad introduction to copyright duration. I want to give a sense of the law as it stands now, then briefly survey some of the research and proposals regarding copyright duration.

Copyright Duration and the Law

The US Constitution gives Congress the power

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries [emphasis added]2

The Constitution adopts the utilitarian model of copyright: government grants a limited monopoly in expressive works to authors that eventually expires, placing the works in the public domain. This is in contrast to the perpetual, “natural rights” model of copyright. The idea is that society and future creators benefit the most when expressive works aren’t locked up forever. But there’s a long time between now and forever; how long is a “limited time”?

History shows a gradual expansion of the limited time of copyright protection. The first copyright law, the Copyright Act of 1790, set the duration of protection at 14 years, dependent upon registration, with an optional renewal of 14 additional years. The initial period of protection was increased to 28 years in 1831. The renewal period was increased to 28 years in 1909, for a possible total of 56 years of protection (28 + 28). The Copyright Act of 1976 dispensed with the need for formalities in securing copyright protection (as well as the need for renewal) and set the term of protection to the life of the author plus 50 years. Finally, the Copyright Term Extension Act of 1998 (CTEA) increased the term to the life of the author plus 70 years.3

The Supreme Court has only once addressed whether the Constitution places limits on copyright’s term, in the 2003 case Eldred v. Ashcroft (537 US 186).4  Even then, it did not answer “how long is too long.” In a constitutional challenge to the CTEA, both sides conceded that “life plus 70″ is a “limited time.”5 The question the Court answered was far narrower – whether the Constitution’s “limited time” language prohibited Congress from extending the term of protection for existing copyrighted works. The Court said there was no such prohibition, despite the argument that Congress could effectively create an unlimited copyright term by repeatedly passing extensions.

Lawrence Lessig, who argued against the CTEA in Eldred, subsequently tried direct challenges against the constitutionality of the “life plus 70″ term itself. The argument was raised and rejected by both the 9th Circuit – in Kahle v. Gonzales – and the 10th Circuit – in Golan v. Gonzales. Both courts accepted that Eldred did not directly address whether “life plus 70″ was outside the bounds of the Copyright Clause’s “limited times,” but ultimately held that the Supreme Court had implied that it was not, foreclosing Lessig from succeeding in his claim.

International agreements also govern copyright duration. The Berne Convention – of which currently there are 164 member nations - mandates a minimum term of life of the author plus 50 years.6 TRIPs, an international agreement administered by the World Trade Organization, requires member parties to adhere to those provisions of Berne that include minimum copyright duration.7

Copyright Duration and Economics

Given the economic justification that US copyright law subscribes to, it follows that we would use economics to see how well the law is meeting its goal. An “optimal” term of copyright protection should be one that best balances all the costs and benefits to creators and society. But, economists have struggled with answering the question of what constitutes the “optimal” term of copyright protection.

Justice Breyer cites an amicus brief filed by 17 economists in his argument in his dissent in Eldred that the CTEA’s “life plus 70″ was unconstitutional.8 Those economists conclude that the costs of the CTEA’s copyright duration outweighed any benefits realized by creators. However, economists Stan Liebowitz and Stephen Margolis, in a direct response to the 17 economists’ brief, note that existing empirical research doesn’t definitively conclude what length of protection provides the maximum benefit proportional to creators and society.9

In light of these arguments, a few researchers have attempted to tackle the question of optimal copyright duration. One example is Rufus Pollock, who concludes that the optimal copyright term is 15 years.10 Others have examined what effect term extensions have had, such as Png and Wang, who found an 8.5-10% increase in movie production in 19 countries which had extended copyright protection from “life plus 50″ to “life plus 70.”11

Proposals

Many people have proposed shortening copyright term from its current length. The proposals vary in length but are typically a set number of years. Also common are proposals that reintroduce registration formalities to copyright, tied in to a fixed initial term and combined with optional renewal periods.

The best known example of this type of proposal is Lessig’s Public Domain Enhancement Act, introduced in Congress in 2003 and 2005 with little success. The bill would have set an initial period of 50 years of protection, with a fee of $1 every ten years to maintain copyright protection afterward. Failure to pay the maintenance fee would result in the expiration of copyright protection.

Joseph Liu proposes an alternative to reducing the length of copyright protection that addresses some of the concerns of its critics.12 He argues that courts should expressly consider how old a copyright is in their fair use analyses – giving more latitude to creators who make transformative use of older copyrighted works than newer ones. He notes:

[O]ver the course of the copyright term, the impact of protection on copyright incentives wanes, as does an author’s moral claim to the fruits of his or her labor. At the same time, the societal interest in ensuring widespread access to works and in encouraging re-use and adaptation of copyrighted works increases. By considering time in fair use analysis, courts can adjust the scope of copyright protection to respond more dynamically to these changes in copyright interests over the length of the copyright term.13

While not directly related to the issue of copyright duration, I would include proposed legislation regarding “orphan works” here. Orphan works are those works where the creator is difficult or impossible to find – foreclosing even authorized use of a work without risking liability. Libraries and archives especially confront the problem of orphan works. The current length of copyright protection (and the removal of formalities) has resulted in a vast number of older works which cannot be utilized by these institutions. Orphan works legislation had been highly anticipated to pass through Congress in 2006 and 2008 but ultimately failed. The US Copyright Office has a comprehensive report detailing the problem and outlining its proposal.

Drawbacks to Proposals

As noted above, copyright duration is governed not only by US law, but through several international agreements. In addition, the Berne Convention prohibits formalities as a prerequisite for copyright protection, a feature numerous proposals share. Any proposals to reduce the copyright term below the minimums of these treaties would either require (1) amending the treaty, (2) withdrawing from the treaty, or (3) running afoul of the treaty and accepting the consequences. Patrick Ross of the Progress & Freedom Foundation notes that these proposals tend to fail to consider the implications any of these courses of action would entail.

Besides the complexities of international law, many of the proposals also ignore the complexities of economics. Copyright is a lightening rod for outrage, and copyright duration seems an easy target for reform, so it’s natural that a simple solution like “copyright is too long, make it shorter” would be attractive. The 14 year term of the first Copyright Act operates as a model. After all, the Framers were smart enough to make the Constitution, so it follows that they would be smart enough to make a copyright law that works in today’s world.

Professor Thomas Nachbar advises caution when following this logic though, saying it would be a mistake to assume “the Framers faced the same copyright-related problems that we face today.”14 “Given how profoundly the markets for intellectual property have changed since the time of the framing, we should be wary of historically based arguments that the Constitution speaks to the modern problems of intellectual property law,” he notes. “It would be nice if the Framers had possessed the super-human prescience and intelligence to do so, but we shouldn’t rush to embrace myths that tell the story of how they did.”

Conclusion

No doubt, the duration of copyright protection will continue to occupy a central place in the copyright debates. I will most likely explore the topic in more detail in future posts, with this article serving as merely an introduction. Arguments and proposals concerning term length touch on many different areas and involve a complex array of factors. For now, I can only say that I share Nachbar’s cautionary approach – addressing copyright duration doesn’t provide any “easy answers” to the multitude of criticisms aimed at copyright law in general.

Footnotes

  1. See, eg, New York Times, Free That Tenor Sax, editorial, August 21, 2010: “That time period has been criticized as too long;” Techdirt, The Economist on Why Copyright Needs to Return to its Roots, April 20, 2010. Concerns over the length of protection are not universally held, however; see, eg, Mark Helprin, A Great Idea Lasts Forever. Shouldn’t its Copyright? New York Times, May 20, 2007. []
  2. Article I, section 8. []
  3. Anonymous works, pseudonymous works, and works made for hire received protection for 100 years after creation or 75 years after publication, whichever occurs first, under the 1976 Act; that increased to 120 years after creation or 95 years after publication under the CTEA. In addition, the 1976 Act extended the renewal period for works created under the 1909 Act from 28 to 47 years, increased to 67 years under the CTEA. []
  4. Craig Dallon, Original Intent and the Copyright Clause: Eldred v. Ashcroft Gets it Right, 50 St. Louis Univ. Law Journal 307 (2006). []
  5. Eldred at 199. []
  6. Berne Convention, Article 7. []
  7. TRIPs, Article 9. []
  8. Eldred at 255. []
  9. Liebowitz & Margolis, Seventeen Famous Economists Weigh in on Copyright: The Role of Theory, Empirics, and Network Effects, 18 Harvard Journal of Law and Technology 435 (2005). []
  10. Forever Minus a Day? Some Theory and Empirics of Optimal Copyright (2007). []
  11. I.P.L. Png & Qiu-Hong Wang, Copyright Duration and the Supply of Creative Work (2006). []
  12. Joseph Liu, Copyright and Time: A Proposal (2002). []
  13. Liu at 412 []
  14. Thomas B. Nachbar, Constructing Copyright’s Mythology (2002). []

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Proposed anti-piracy legislation is currently making its way through Congress and causing quite a stir online. Called the Combating Online Infringement and Counterfeits Act (COICA), the bill, like nearly every proposed IP legislation in the last decade, will, according to its opponents, surely result in a 1984-style government where all of our rights are harshly crushed by a freedom-hating police state. It has been described as “fundamentally a censorship bill” by the president of the Computer and Communications Industry Association. It “will risk fragmenting the Internet’s global domain name system,” according to a group of 80 internet engineers, and “create an environment of tremendous fear and uncertainty for technological innovation.”1 HuffPo warns it “would be a tremendous blow to free speech on the Internet.” The EFF agrees: “This is a censorship bill that runs roughshod over freedom of speech on the Internet” and “is designed to undermine basic Internet infrastructure.”

Maybe I’m not cynical enough to accept these apocalyptic predictions at face value. Maybe I don’t think the government is hellbent on shredding the Constitution at any opportunity it gets. And maybe, just maybe, I don’t think the creators who devote their lives to entertaining, enlightening, and enriching us, the millions of technical and administrative workers who help them, and the businesses that aid in disseminating their works around the world are ready to destroy the Internet to get a couple more bucks.

Let’s take a closer look at this bill and see if we can’t separate the rhetoric from the reality.

COICA

The Combating Online Infringements and Counterfeits Act was introduced in the Senate on September 20, 2010, by Patrick Leahy, along with six Republican and nine Democratic cosponsers. The bill was subsequently amended, but debate was postponed until after Congress’s current recess.

Supporters of the bill include the US Chamber of Commerce, IATSE, Screen Actors Guild, Directors Guild of America, American Federation of Television and Radio Artists, Viacom, and the Motion Picture Association of America. This past week, Jeff Price, Founder and CEO of TuneCore – a service dedicated to providing digital distribution to independent artists - publicly added his support to COICA.

COICA, as its name suggests, addresses the challenge of managing widespread piracy online. It creates a streamlined procedure for in rem actions against the domain names of sites “dedicated to infringing activities.” When first introduced, the bill provided for the creation of a list of infringing sites by the Attorney General; that provision has been removed from the most recent amended version.

Domain Names

I’m hardly a computer expert, so what follows is the first-grade version of domain names. Domain names are those website addresses we’re all familiar with: www.facebook.com, www.youtube.com, www.copyhype.com, etc. – what you type into your browser to get to a particular site. Every computer that connects to the Internet is given a numerical IP address. Domain names make it easier to connect to the site you want without having to know the specific IP address of the server or computer that the site is hosted on at the moment. This is made possible by domain name registries, which keep a database of domain names and their corresponding IP addresses.

Remove the domain name from the registry and anyone who tries to go to the site gets an error message, or something that looks like this:

Civil Forfeiture

As the illustration above indicates, domain names are treated as any other property that can be seized and forfeited as a matter of law. Asset forfeiture is an important tool in law enforcement. A bank robber can, as part of his sentence, be required to hand over his loot. This type of forfeiture can be referred to as an in personam order – the order to forfeit the assets is a result of a case against a specific person. Less familiar, but perhaps equally as important, is civil forfeiture.

In a civil forfeiture case, the objectives are the same: to recover the proceeds of the crime and the property used to facilitate it; but the procedure is different. Instead of bringing an action against a person (in personam) as part of a criminal case, the action is brought against the property (in rem). In other words, it is a civil case in which the Government is the plaintiff, the property is the defendant, and the persons objecting to the forfeiture are intervenors called “claimants.” This is why civil forfeiture cases — in the United States at least — have such unusual names, such as United States v. $160,000 in U.S. Currency, or United States v. Contents of Account Number 12345 at XYZ Bank Held in the Name of Jones.2

Civil forfeiture against domain names makes sense in addressing online piracy. In many cases, the owner of the domain may be unclear due to the ease of falsifying registration information, or the owner may be difficult to find. Criminal prosecution against the site owners may not be in the interests of justice. And often, these sites are nothing more than their domain name and a collection of links – quick to setup and easy to operate. Traditional criminal prosecution is too costly and ineffective against this widespread digital piracy.

Old Dog, New Tricks

The most ironic part of the complaints that this bill will censor or break the Internet is that in rem procedures against domain names are nothing new. The image above shows one example of a domain name being removed. The in rem action this bill describes is not something the DoJ could not do before. All this bill does is streamline the process. It specifies how to determine issues like the situs of a domain name, the proper jurisdiction for bringing these actions, and appropriate venue – issues that have largely developed through case law.3

Contrary to fears that this bill will result in the takedown of YouTube4 or any number of other sites,5 COICA is aimed only at the most egregious pirate websites, like the ones taken down during this past summer’s anti-piracy initiative Operation In Our Sites – sites which were replaced with the graphic shown above. Fears that the MPAA or RIAA could muscle the DoJ into expanding the definition of sites “dedicated to infringing activity” past the plain meaning of the statute’s text are unfounded; one need only look at the history of criminal copyright prosecution to see there is no evidence that this bill would be used against anything other than the most clearly infringing sites.

In short, the ease and scale of online piracy requires more effective legal tools to manage. The rhetoric against COICA is overblown; the reality is that it offers improvements on one such tool that may better protect the rights of creators.

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