Is copyright law too uncertain?
That certainly seems to be the prevailing view. Any number of copyright critics point to the uncertainty of the law — especially for online users, who are in closer contact with copyright issues than any previous generation has been — as one of its biggest flaws.
As attorney Steven Horowitz notes in a forthcoming article, the conventional argument is that this uncertainty “deters lawful uses of copyrighted works.” But, as you may guess from the title of the article, Copyright’s Asymmetric Uncertainty, copyright is only uncertain depending on the perspective. Those issues important to copyright holders, says Horowitz, are clear; issues important to copyright users are not so clear.
I was struck by how closely Horowitz’s distinction between what is clear and what is unclear in copyright law mirrors the distinction between creative and consumptive infringement that I had I previously wrote about — though, upon reflection, it might be more accurate to label these two categories “creative appropriation” and “consumptive appropriation”; use of a copyrighted work either creatively or consumptively is not necessarily infringement.
While there is plenty of overlap, in general, the line between creative appropriation and creative misappropriation (or infringement), relies largely on substantive doctrines of copyright law: the idea/expression distinction, substantial similarity, and fair use. Broadly speaking, the new work is compared to the original work. The line between consumptive appropriation and infringement, however, is governed by more regulatory provisions; a comparison between the two works is unnecessary since this type of appropriation typically consists of verbatim or near verbatim copies of the original work.
This isn’t just arbitrary line-drawing. As I said in my original post on the subject, recognizing this distinction is important to discussions of copyright law because each category has its own separate issues. “Uncertainty” is one of those issues: while there may be confusion over the rules that govern creative uses of copyrighted works, that is not the case when dealing with outright piracy of existing works.
Horowitz explains copyright’s asymmetric uncertainty by first discussing what issues are most important to copyright holders:
Although there are many who would produce expressive works irrespective of copyright protection, those whose production depends on copyright care most about three features of the law. They want (1) a reliable entitlement, (2) prohibiting at least pure or close copying of their work, which is (3) protected by remedies sufficient both to deter copying and to compensate for any losses that result from it. These are the core protections that ensure meaningful incentives to produce copyrightable expression, for without them a copyright holder might have to compete against others who sell identical copies of his own work. Such competition against perfect substitutes would drive down the price toward the near-zero marginal cost of the copy, leaving him without the ability to profit from the work or to recoup the costs of its production. Uncertainty in these three salient features of the law would spell trouble for copyright holders, but fortunately the features are predictable in practice.
In other words, copyright holders are most concerned with consumptive appropriation of their works. That shouldn’t come as a surprise.
That’s not to say copyright holders are not concerned with creative appropriation of their works — I think it goes without saying that the level of this concern varies widely from person to person. Some copyright holders strictly police against most creative appropriations, some may evaluate each use on a case-by-case basis — perhaps asserting their rights against commercial uses but not worrying about noncommercial uses — and some may welcome (or even encourage) such uses.
But most copyright holders’ primary concern is about control over how and where their complete works are copied and distributed.
Horowitz next looks at the issues of importance to copyright users:
Most affected by copyright’s uncertainty are the potential users of copyrighted works, those who want to use a work in ways not intended or expected by the copyright holder. For example, users may mix pieces of prior works together or write new stories using characters from old ones. The intent of the user is not to produce or sell verbatim copies of a preexisting work but to put some portion of a work to a new purpose. The potential user is most concerned with whether his expressive activity will constitute infringement and if so whether the remedies for infringement will be proportional to the harm caused—in other words whether his liability has a reasonable ceiling. Copyright makes answering both of these questions difficult. A potential user cannot predict with confidence whether a contemplated use will be deemed infringing or whether the damages will be manageable or devastating.
Most of copyright’s uncertainty falls within the scope of creative appropriation, not consumptive appropriation. One would think, then, that it wouldn’t be an issue when discussing piracy.
But what happens is that the uncertainty criticism is used as an across-the-board attack on copyright — as though piracy cannot be addressed until courts or Congress figure out, for example, a fair use rule that is both applicable to a wide variety of situations and easy enough for a fifth grader to understand. Any uncertainty that exists primarily in the area of creative appropriation shouldn’t be used as an argument against reasonable efforts to curb the harms of consumptive misappropriation.
The PROTECT IP Act applies to sites that have “no significant use other than engaging in, enabling, or facilitating the reproduction, distribution, or public performance of copyrighted works, in complete or substantially complete form, in a manner that constitutes copyright infringement.” Similarly, the Commercial Felony Streaming Act only applies to criminal infringement, where the willfulness requirement forecloses its application to most creative infringements. Doctrines like fair use, substantial similarity, and the idea/express distinction play little role in the application of proposed laws like these.