Jane Ginsburg, Overview of Copyright Law — Ginsburg has posted her chapter from the forthcoming Oxford of Intellectual Property. A great look at copyright’s history, philosophy, and doctrine. This passage from her conclusion is worth quoting here:

Copyright law secures human creativity in works of authorship. Enforceable authorial property rights advance the public interest by promoting an ecosystem of authorship: a robust copyright environment encourages authors to create works that inform and enrich the polity, and from which other authors may draw ideas, information and reasonable amounts of protected expression in their own authorial endeavors. Copyright promotes artistic freedom and free speech by enabling authors to earn a living from their creativity.

What Does Madonna’s Court Victory Mean For Sampling? — Future of Music Coalition takes a closer look at last month’s Ninth Circuit decision in VMG Salsoul v. Ciccone, which concerned the alleged use of a digital sample by Madonna in her 1990 track Vogue.

Owner of Most-Visited Illegal File-Sharing Website Charged with Criminal Copyright Infringement — The DOJ announced this week that it has charged the alleged owner Kickass Torrents with four counts related to his operation of the site, which allegedly enabled illegal reproduction and distribution of copyrighted works on a massive scale. This represents the most significant criminal copyright effort in the US since the 2012 indictment of Kim Dotcom and other operators of Megaupload.

Indie designer accuses Zara of stealing work, Zara says artist’s work isn’t ‘distinctive’ — “Tuesday Bassen is a Los Angeles-based clothing and accessories designer whose work refers heavily to comic book illustrations and a 1950s girl gang aesthetic. Her popular logo ‘mixed emotions club,’ emblazoned across the back of a satin baseball jacket, as well as pins and patches, has become a sort of coveted alt-girl version of the Birkin bag. It’s not as if Bassen is entirely unknown (she told the Daily Dot her website gets about 8,000 visitors per day), which is why she was taken aback by Zara’s response to a cease-and-desist notice her attorney sent the giant corporate fashion house after it appeared to have completely ripped off Bassen’s work.”

CISAC: 90 Years In The Service Of Authors And Composers — “Founded in June 1926 by a small group of authors’ societies, with its headquarters in France and four regional offices, CISAC now represents the interests of more than 4 million creators across the world, from all artistic and literary fields. Now leading CISAC is electronic music pioneer Jean-Michel Jarre in cooperation with a highly multicultural and interdisciplinary group.”

H.R.5757 – To amend title 17, United States Code, to establish an alternative dispute resolution program for copyright small claims, and for other purposes. — On Wednesday, Representatives Jeffries and Marino introduced a bill that would create a copyright small claims process that would allow creators who can’t afford federal court to pursue infringement claims. The Copyright Office detailed the problem and recommended the creation of such a process in a 2013 report. As of posting date, the text of the bill is not yet online, but should be up within the next couple of days.

New Librarian of Congress Faces Copyright Modernization — This week, the Senate confirmed Dr. Carla Hayden as Librarian of Congress. Among the challenges she’ll face when she assumes the role is outdated IT both in the Library and in the Copyright Office, which is housed within the Library. Bloomberg reports, “The office’s services play a direct role in the conduct of business in significant industrial sectors that depend on copyrights, and the technological challenges faced by the agency are critical to those transactions, according to Robert Brauneis, a copyright law professor at George Washington University. For example, when copyright owners record their copyright interests, ‘they actually have to print a copy, put it in an envelope with stamps on it, and send it off in snail mail,’ Brauneis said. ‘Multimillion dollar transactions depend on registration getting processed quickly and documents getting processed quickly.'”

Senators ask feds to look at digital ad fraud — When so much content on the internet depends on ad revenues, the issue of fraudulent ad traffic raises concerns. Senators Schumer and Warner Monday asked the FTC to take a look at the issue. “A 2015 industry study cited by the lawmakers estimated that advertisers would lose more than $7 billion to this kind of activity this year.”

Amazon’s Chinese Counterfeit Problem is Getting Worse — CNBC reports, “Always a problem, the counterfeiting issue has exploded this year, sellers say, following Amazon’s effort to openly court Chinese manufacturers, weaving them intimately into the company’s expansive logistics operation. Merchants are perpetually unsure of who or what may kill their sales on any given day and how much time they’ll have to spend hunting down fakers. Facebook and WhatsApp groups have formed for sellers to voice their complaints and strategize on potential fixes. In May, CNBC.com reported on a Facebook group, now consisting of over 600 people, whose members have seen their designs for t-shirts, coffee mugs and iPhone cases show up on Amazon at a fraction of the price of the originals. The designers described it as a game of whack-a-mole, where fakes pop up more quickly than they’re taken down.”

Sharing Netflix Passwords Hasn’t Become a Felony — Snopes debunks reports (encouraged in part by the EFF) that a recent court decision would lead to jail time for sharing passwords. Says Snopes, “[T]he operative factor was that the case involved had nothing at all to do with streaming, Netflix, HBO Go, Facebook, or other services by which users commonly share passwords for myriad reasons. The specific issue was lack of authorization and deliberate intent to circumvent access revoked in an employer-employee capacity. Extrapolating that such a ruling might affect Netflix users wasn’t out of the bounds of possibility, but was unnecessarily alarmist given the scope of the ruling.”

The IP Platform: Supporting Invention & Inspiration — Last fall, the Center for Protection of Intellectual Property hosted a conference exploring how IP, including copyright, operates as a platform supporting invention and inspiration. The George Mason Law Review this week published its summer issue containing articles originating from that conference. Lots of great stuff, including a piece on copyright and remix by me.

‘Courts Have Twisted Themselves Into Knots’: U.S. Copyright Protection for Applied Art — Copyright scholar Jane Ginsburg looks at the issue of conceptual separability, which distinguishes between what is protected by copyright and what is not for useful articles. This question is currently in front of the Supreme Court, which will hear Varsity Brands v. Star Athletica next term.

Canada’s Accession to Marrakesh Treaty Brings Treaty into Force — Says WIPO, “Canada today became the key 20th nation to accede to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, which will bring the Treaty into force in three month’s time on September 30, 2016.” The treaty requires parties to adopt copyright provisions that permit the copying and distribution of published works in accessible formats such as Braille.

The Trusted Notifier Program: Outcomes of First Referrals by MPAA — In February, film studios reached an agreement with the Donuts domain name registry that created a framework for notifying the service of sites engaged in clear and pervasive infringement. Recently, Donuts revealed some early outcomes of the program so far. In a blog post, the registry announced that two sites were confirmed to be engaged in infringement, and Donuts suspended their domain names. A third referral is being investigated further.

America must be as independent in literature as in Politics, as famous for arts as for arms.

Noah Webster (1758-1843)

Copyright Small Claims Court: Not Just a Dream — “For decades, copyright infringements worth a few thousand dollars in damages have frustrated photographers, because suing ‘small’ infringers in federal court costs $30,000 or more. Finally, there’s hope for a solution: a Copyright Small Claims Tribunal that would give photographers and other copyright owners access to the legal system at a much lower cost.”

Creators frustrated with Copyright Office’s outdated technology, procedures — “According to industry representatives and creators, the system discourages groups from registering their copyrights. Some songwriters and makers of standardized tests delay or avoid registering because they do not trust the office’s computer security. Newspapers must be submitted in the form of costly and increasingly redundant microfiche, driving some to avoid registering altogether. Others simply get fed up with the office’s clunky registration process. When creators don’t register, people like Kempner struggle to find an owner if they want to buy a work. Skipping registration also severely limits the legal recourse a creator can pursue if their work is used illegally.”

1,000 Artists Including Coldplay, Lady Gaga, Ed Sheeran Write Letter to European Leaders Over YouTube — The letter, calling “for Europe’s leaders to address the value gap that exists between digital music consumption and revenues returned by user-generated services like YouTube” follows a similar one appearing in US publications.

Citing Kirtsaeng, Publishers Ask Judge to Deny Legal Fees in GSU Case — The publishers cite to the Supreme Court’s decision that directs courts to put substantial weight on the objective reasonableness of a losing party’s litigation positions and argue that the case represented “a quintessential example of the type of ‘useful copyright litigation’ that is to be encouraged.”

Seven things we’ve learned from the first year of Apple Music — “1) You don’t need a free tier to get people to pay.”

The STAR TREK Fanfilm Guidelines Saved Fanfilms — “The basic creativity of fans can be allowed to flourish while the people who own the property feel like they’re not getting screwed. Because the reality is that without rules like these the only other options are for the property owner to just throw up their hands and let anyone make and sell stuff based on their IP (coming this fall: Disney’s fanfilm of Batman!) or be truly draconian and allow nothing at all, to cruise YouTube all day sending takedown notices for any small, goofy fanwork.”

The Second Circuit is set to consider Fox News v TVEyes, with both parties having submitted their briefs (see Fox News brief and TVEyes brief). The appeal represents the latest evolution of the “transformative use” standard that Judge Pierre Leval first wrote about in his seminal 1990 Harvard Law Review article, Toward a Fair Use Standard.

When Judge Leval articulated his idea of “transformative use” as the key to understanding fair use, his goal was to provide “a better understanding of fair use and greater consistency and predictability of court decisions.” He perhaps could not foresee just how expansively this idea would broaden fair use. 1See Statement of Professor June Besek at a hearing in front of the House Judiciary Committee on fair use for one account of this expansion.

In fact, when the Supreme Court embraced Leval’s “transformative use” in Campbell v. Acuff-Rose just a few years after his article was published, it took care to limit any future expansion. While the Court noted that the fair use doctrine should recognize that a parody of a copyrighted work “must be able to ‘conjure up’ at least enough of that original to make the object of its critical wit recognizable”, it followed up by remarking, “This is not, of course, to say that anyone who calls himself a parodist can skim the cream and get away scot free.” And the Court, though finding the work at issue to be a transformative parody, stopped short of declaring it fair use. It remanded to the lower court on the issue of the amount and substantiality of the original work used, saying, “we express no opinion whether repetition of the bass riff is excessive copying, and we remand to permit evaluation of the amount taken, in light of the song’s parodic purpose and character, its transformative elements, and considerations of the potential for market substitution sketched more fully below.” 2The parties subsequently settled; see Did Campbell v Acuff-Rose find 2 Live Crew’s song to be fair use?

Justice Kennedy was even more cautious in a concurring opinion that he wrote. While he agreed with the majority’s conclusion, he wrote separately to reiterate “the importance of keeping the definition of parody within proper limits.” He concluded by saying, “If we allow any weak transformation to qualify as parody, … we weaken the protection of copyright.”

Over 20 years later, Judge Leval would revisit the doctrine he invented in the Google Books case, Authors Guild v Google. And if he didn’t contemplate the limits of transformative use in his original article, he recognized them here, beginning his opinion by writing, “This copyright dispute tests the boundaries of fair use.”

Although Leval’s ultimate holding that Google’s copying was fair use can seem astonishing in its breadth, his opinion at least recognizes potential outer limits of the doctrine. He took care to confirm that a “would-be fair user of another’s work must have justification for the taking” (emphasis added). 3See What did Google Books Decision do to Cariou v Prince for a discussion of Leval’s focus on justification. He observed that Google’s copying is done to provide “dissemination of information about the original works”, not “the re-transmission, or re-dissemination, of their expressive content.” He noted that while Google makes copies of entire works, it does not “reveal” those copies to the public—the copying is done to create a searchable index, and Google provides snippets of the copies, but only enough to provide context to help a searcher “evaluate whether the book falls within the scope of her interest.” And finally, he held that a secondary user like Google, who makes copies for an internal, transformative purpose, must employ security measures to ensure it does not unreasonably expose copyrighted works to the public.

If Google Books tested the outer bounds of fair use, TVEyes threatens to break them.

TVEyes is a video news clipping service which “monitors and records all content broadcast by more than 1,400 television and radio stations twenty-four hours per day, seven days per week, and transforms the content into a searchable database for its subscribers.” 4Fox News Network v TVEyes, 43 F.Supp. 3d 379 (SDNY 2014). For $500 a month, subscribers can play unlimited high definition clips from TVEyes’ database, archive them online, download them to their own devices, and email and share them with unlimited numbers of nonsubscribers. And TVEyes offers all of this without having permission from any copyright owner or broadcaster. 5Nor, for that matter, from the MVPDs it used to receive content. Satellite MVPD DirecTV sued TVEyes for alleged unlawful retransmission of a pay-TV signal. The two parties reached a settlement in November 2015, with TVEyes agreeing to cease obtaining content for its service from DirecTV. See DirecTV Settles Fight Against TVEyes. In July 2013, Fox News Network sued TVEyes for copyright infringement. TVEyes claimed fair use.

What’s astonishing is not the sheer breadth of what TVEyes sought. What’s astonishing is that the District Court agreed. 6See Fox News v TVEyes: Fair Use Transformed for more discussion about the decision. In a September 2014 decision on cross motions for summary judgment, the Southern District Court of New York held that “TVEyes’ copying of Fox News’ broadcast content for indexing and clipping services to its subscribers constitutes fair use.” The court called for further development of the record regarding other functions provided by TVEyes. On renewed motions for summary judgment, the court held that TVEyes’ archiving function—which enabled subscribers to save an unlimited number of clips indefinitely—was fair use, and its emailing feature could be fair use provided it “develops and implements adequate protective measures.” However, it did hold that its downloading feature and date/time search functions were not a fair use.

There would seem to be a clear cut case against fair use on all counts. TVEyes’ purpose for copying 1,400 stations 24/7 is to deliver portions of them wholesale to its subscribers. It is a for-profit entity financially benefiting from providing access to the works. It does not transform the works in any way save to index them. The nature of the works being copied runs across the entire spectrum, from factual to fictional, from news to entertainment and more. Entire works are being copied. While TVEyes doesn’t deliver entire works, only clips up to 10 minutes, there is no limit on the clips, and subscribers can easily piece together entire programs (in high resolution). And the market harm was clearly established by the record—there is not only harm to existing, “traditional” television revenue sources but also to existing clip licensing markets and emerging online revenue sources.

But the court read the record in an idiosyncratic way and applied a number of novel concepts unsupported by case law. It primarily fixated on potential fair uses of the works by TVEyes’ subscribers such as media criticism—and that, in enabling such uses, TVEyes’ own copying and delivery of copyrighted works becomes fair use.

On appeal, TVEyes argues that the court didn’t go far enough. It is asking the Second Circuit to hold that all of its functions, including email, download, and date/time search, are “protected fair use.” TVEyes focuses almost entirely on what it enables its subscribers to do, asserting that its services allow them to engage with the copyrighted works in putative transformative purposes—essentially arguing that it should be allowed to stand in the shoes of its customers when it comes to fair use.

If the Second Circuit were to accept these arguments, it would undermine the principles that fair use is based on and, consequently, the principles of copyright law itself.

Fair use has historically been seen as a corollary to copyright law, available in those circumstances when unauthorized use of an existing work furthers rather than impedes the aims of copyright. 7See Campbell v. Acuff-Rose, 510 US 569, 574 (1994), “From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts…’; Harper & Row, Publishers v. Nation Enterprises, 471 US 539, 549 (1985), quoting H. Ball, Law of Copyright and Literary Property 260 (1944), “[T]he author’s consent to a reasonable use of his copyrighted works ha[d] always been implied by the courts as a necessary incident of the constitutional policy of promoting the progress of science and the useful arts, since a prohibition of such use would inhibit subsequent writers from attempting to improve upon prior works and thus … frustrate the very ends sought to be attained.” It is necessarily limited—in ordinary cases, securing authors’ exclusive rights furthers the aims of copyright, and the market promotes “the progress of science and the useful arts.” Fair use serves as a complement by either privileging certain justified uses like news reporting and criticism, or excusing uses that by custom are considered reasonable or outside an author’s control. 8See A. Latman, Fair Use of Copyrighted Works, Copyright Office Revision Study 14 (1958). Some, including Leval, have described fair use as a mechanism for drawing a boundary line between protected and unprotected uses. 9See Google Books at 213, stating the crucial fair use question was “how to define the boundary limit of the original author’s exclusive rights”; Folsom v Marsh, 9 F. Cas 342 (D. Mass. 1841), “no one can doubt that a reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy. A wide interval might, of course, exist between these two extremes, calling for great caution and involving great difficulty, where the court is approaching the dividing middle line which separates the one from the other.”

But however fair use is conceptualized, it should be self-evident that too broad of an application would undermine the goals of copyright instead of promoting them. As Justice Kennedy said in his Campbell concurrence, “[U]nder-protection of copyright disserves the goals of copyright just as much as overprotection, by reducing the financial incentive to create.” Unless one does not see any value in copyright, and views fair use as merely a mechanism for nullifying the protections authors currently see under the law, one should recognize that fair use has its proper limits. We’ll see if the Second Circuit finds that TVEyes goes beyond those limits.

References   [ + ]

1. See Statement of Professor June Besek at a hearing in front of the House Judiciary Committee on fair use for one account of this expansion.
2. The parties subsequently settled; see Did Campbell v Acuff-Rose find 2 Live Crew’s song to be fair use?
3. See What did Google Books Decision do to Cariou v Prince for a discussion of Leval’s focus on justification.
4. Fox News Network v TVEyes, 43 F.Supp. 3d 379 (SDNY 2014).
5. Nor, for that matter, from the MVPDs it used to receive content. Satellite MVPD DirecTV sued TVEyes for alleged unlawful retransmission of a pay-TV signal. The two parties reached a settlement in November 2015, with TVEyes agreeing to cease obtaining content for its service from DirecTV. See DirecTV Settles Fight Against TVEyes.
6. See Fox News v TVEyes: Fair Use Transformed for more discussion about the decision.
7. See Campbell v. Acuff-Rose, 510 US 569, 574 (1994), “From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts…’; Harper & Row, Publishers v. Nation Enterprises, 471 US 539, 549 (1985), quoting H. Ball, Law of Copyright and Literary Property 260 (1944), “[T]he author’s consent to a reasonable use of his copyrighted works ha[d] always been implied by the courts as a necessary incident of the constitutional policy of promoting the progress of science and the useful arts, since a prohibition of such use would inhibit subsequent writers from attempting to improve upon prior works and thus … frustrate the very ends sought to be attained.”
8. See A. Latman, Fair Use of Copyrighted Works, Copyright Office Revision Study 14 (1958).
9. See Google Books at 213, stating the crucial fair use question was “how to define the boundary limit of the original author’s exclusive rights”; Folsom v Marsh, 9 F. Cas 342 (D. Mass. 1841), “no one can doubt that a reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy. A wide interval might, of course, exist between these two extremes, calling for great caution and involving great difficulty, where the court is approaching the dividing middle line which separates the one from the other.”

Responding to Piracy: What the evidence shows — In previous installments, the authors of this post looked at “available academic evidence on whether piracy harms media sales, and whether this harm leads to reductions in the supply of creative works,” finding that “most all the studies on the first question conclude that piracy does have an adverse effect on sales, and there is also evidence of an adverse effect on the supply of new works.” Here, they look at research that considers what can be done to shift consumers from illegal content to legal content, focusing on two strategies: making legal content easier to access, and making pirated content harder and more costly to access.

Facebook Signs Deals With Media Companies, Celebrities for Facebook Live — One does not live on user-generated content alone. The Wall Street Journal reports that Facebook has entered into over 100 contracts with media companies and individuals totaling over $50m to provide video content for their Facebook Live platform. See also YouTube Red buys its first big TV series.

To Fee or Not to Fee: Kirtsaeng v John Wiley & Sons — I have a post at CaseText discussing last week’s Supreme Court decision in Kirtsaeng II, which held that courts should focus on the objective reasonableness of parties’ litigation positions but consider all other relevant factors when determining whether to award attorney’s fees.

Taylor Swift, Paul McCartney Among 180 Artists Signing Petition For Digital Copyright Reform — Rob Levine reports on a letter published this week, signed by 180 recording artists and others, including Taylor Swift, Paul McCartney, and Little Big Town. The letter calls for reform of the DMCA safe harbors.

Who owns the news consumer: Social media platforms or publishers? — The Columbia Journalism Review presents research it has undertaken to see how newsrooms are using social media and online publishing platforms to disseminate news stories. A thorough look at a very dynamic area.

Turow: “The Protection of Copyright Is Deeply Related to the Protection of Creativity” —  Scott Turow: “I suspect that creativity tends to be inspired by the artist’s fantasy that her or his work is destined to find an audience that places value on it. That doesn’t presuppose earning vast riches. The effort a reader makes by going to the library is enough to make most authors feel valued. But the notion that work will be stolen and tossed into the wind defeats the artistic enterprise.”

Why “Stairway to Heaven” Doesn’t Infringe “Taurus” Copyright: analysis & demo of “scenes a faire” motif common to both — Rockers Jimmy Page and Robert Plant are in court this week defending against a claim they copied from an existing song to create the classic Stairway to Heaven. Here, Professor Sean O’Connor provides a thorough analysis arguing there is no infringement, complete with video demonstrations.

IP Scholars to FCC: It’s not about “the Box” — “Put simply, the proposed rules would take away the ability of creators and copyright owners to license their works on their own terms. It would give third parties all of the benefits afforded to pay-TV providers by their agreements with copyright owners without the burdens of paying a license or agreeing to the underlying contract terms. This isn’t about “the box,” and it isn’t about what consumers do with the creative works they receive in their homes. The issue is what goes into “the box,” and more importantly, how it gets there.”

Why Photographers Need a Copyright Small Claims System — The Professional Photographers of America has been hard at work in recent weeks making the case for a copyright small claims process. As they note, “Recent surveys have found that 70% of professional photographers have dealt with copyright infringement, and most within the past 5 years. But the problem is that most infringements are valued at $3,000 or less, and 2/3 of intellectual property lawyers say they wouldn’t take a copyright case with a potential payout of less than $30,000.”

Opinion analysis: Court clarifies availability of fee awards in copyright cases — Yesterday, the Supreme Court released its decision in Kirtsaeng v John Wiley & Sons, which is an iteration of its 1994 Fogerty v Fantasy decision providing guidance on what courts should look at when determining whether to award attorney’s fees to prevailing parties in copyright cases. Here is SCOTUSBlog’s analysis of the opinion.

House Creative Rights Caucus: Protecting Intellectual Property Rights Protects American Jobs — Last week, the House Creative Rights Caucus, along with a number of creative associations, put on a panel discussion with individuals involved in making the Academy Award winning film Spotlight. The panel focused not only on the importance of being able to create important films like Spotlight, but also the importance of being able to engage in the type of investigative journalism that is the subject of the film.

Stealing Books in the Age of Self-PublishingThe Atlantic reports, “In the world of self-publishing, where anyone can put a document on Amazon and call it a book, many writers are seeing their work being appropriated without their permission. Some books are copied word-for-word while others are tinkered with just enough to make it tough for an automated plagiarism-checker to flag them. (Though the practice is legally considered copyright infringement, the term ‘plagiarism’ is more widely used.) The offending books often stay up for weeks or even months at a time before they’re detected, usually by an astute reader. For the authors, this intrusion goes beyond threatening their livelihood.”

Irving Azoff Calls on Music Industry to ‘Work Together’ in National Music Publishers’ Assn. Keynote — The notable music exec delivered a powerful address at NMPA’s 99th annual meeting this week, concluding, as Billboard reports here, by telling those in the audience that “no matter what role he played in the industry, as a manger, a promoter, a label executive, ‘If you do what’s right by the creator’—whether that’s the artist or songwriter—’it will eventually be right for your company as well.'”

JFK on Poetry, Power, and the Artist’s Role in Society: His Eulogy for Robert Frost, One of the Greatest Speeches of All Time — “If art is to nourish the roots of our culture, society must set the artist free to follow his vision wherever it takes him. We must never forget that art is not a form of propaganda; it is a form of truth… In free society art is not a weapon and it does not belong to the spheres of polemic and ideology. Artists are not engineers of the soul. It may be different elsewhere. But democratic society — in it, the highest duty of the writer, the composer, the artist is to remain true to himself and to let the chips fall where they may. In serving his vision of the truth, the artist best serves his nation.”

Spoiler alert: Superheroes are regular people — Tom Ortenberg, executive producer of the film Spotlight, writes, “The real-life journalists portrayed in ‘Spotlight’ are superheroes. The filmmakers and crewmembers that made this film possible are superheroes. That is why I consider our film to be its own kind of superhero movie. But it is also a story about a fading segment of our culture: print journalism. Great films about true events can become a part of the historical record. If I have any grand ambitions for ‘Spotlight’ beyond accolades and awards, it’s that this film will preserve for all time the era of investigative journalism that appears to be slipping away in the face of technology that promises quick and easy fixes for virtually everything.”

Don’t Block Geoblocking — “[R]ules that allow copyright holders to charge different prices to different consumers benefit society by encouraging greater distribution at a lower average price overall. A movie studio might charge a higher price in a developed country while charging a lower price in developing countries. Because rich markets are normally less sensitive to price, this practice normally favors poorer consumers. But it can only exist if price discrimination and geoblocking is protected. If consumers are allowed to arbitrage the market, the producer will create less and charge higher prices.”

The Google/Oracle decision was bad for copyright and bad for software — Op-ed from Ars Technica Technology Editor Peter Bright argues that last week’s jury verdict that found that Google’s copying of elements of the Java platform was fair use “makes things worse, not better” for developers and the software industry. Bright is one of the few commentators on the case to delineate between the different patterns of API use: “use without reimplementation”,  “third-party reimplementation”, and “interoperable reimplementation”. Others, particularly supporters of Google’s view, tend to conflate these different patterns.

Madonna Gets Victory Over ‘Vogue’ Sample at Appeals Court — Although a number of lower courts have declined to follow or even criticized the Sixth Circuit’s Bridgeport Music v. Dimension Films decision—which held that the ordinary substantial similarity analysis does not apply to infringement of sound recordings—this week was the first time a sister Circuit Court of Appeals did so. In a case involving Madonna’s song Vogue, the Ninth Circuit held that the unauthorized use of a single horn hit from a VMG Salsoul recording was de minimis, and thus not infringing.

Google Promotes Pirate Movie Ratings in Search Snippet — Torrentfreak reports that Google is returning movie ratings from a pirate movie site in a detail box. The link leads users to the pirate site, “where a high quality stream of the film is readily available.” A preview of what a Google set-top box might look like?

FCC chairman pushes back on lawmaker request for box study — Speaking of set-top boxes, this week FCC Chairman Wheeler responded to a request from fifty-five lawmakers for “independent, peer-reviewed studies to be completed of current developments towards market-based solutions and of the potential costs and benefits of the proposed rules, including the impact of the proposed rules on diversity of programming, independent and minority television programming, content protection and consumer privacy” before ruling on set-top boxes. Chairman Wheeler responded that the rulemaking “must move forward” without such studies.

Music World Bands Together Against YouTube, Seeking Change to Law — “In recent months, the music world has been united to a rare degree in a public fight against YouTube, accusing the service of paying too little in royalties and asking for changes to the law that allows the company to operate the way it does. The battle highlights the need to capture every dollar as listeners’ habits turn to streaming, as well as the industry’s complicated relationship with YouTube.”

Everybody says we should strive for balance in copyright law. Indeed, who is against balance in principle? The real question is what exactly you mean—what is being balanced?

Copyright skeptics have a consistent answer to this. When Carla Hayden was nominated to be Librarian of Congress earlier this year, American Library Association Managing Director of Government Affairs Adam Eisgrau urged Hayden to talk about the “importance of a real balance in copyright law, one that really puts limitations and exceptions on equal footing with rights.”

Similarly, in an amicus brief to the Supreme Court, Public Knowledge framed the concept of balance in copyright law as one between an author’s right on the one hand and “numerous limitations on the scope of that monopoly right that guarantee to the public certain rights to use, access, and enjoy those created works.”

EFF’s Corynne McSherry has previously written that it is the role of fair use to make sure that “copyrights serve rather than impede the public interest.”

Thanks to copyright rules governing the right to copy, distribute and perform, the folks who held copyrights in the works at issue in the above cases has (and have) a chance to seek compensation. And thanks to copyright rules protecting fair uses, other creative people, their users and the public had (and have) an opportunity to engage with those works in new and unexpected ways. That’s the copyright balance at work.

I contend that this conception of balance, setting authors’ rights on one scale and limitations and exceptions on the other, is both one-dimensional and detrimental to the overall goals of copyright. The underlying assumption is that authors’ interests are distinct from the public’s interests, and that one can only be furthered at the expense of the other. But this isn’t the case.

It seems more accurate to describe authors’ interests and the public’s interests as interrelated and mutually reinforcing. After all, at a very basic sense, the performer and the audience need each other; likewise with the author and the reader. The idea behind copyright is that a marketable right in the tangible expression an author produces is the best way to advance the interests of both. The eighteenth century economist Adam Smith is noted for articulating this logic—that “rational self-interest in a free-market economy leads to economic well-being.” As he says in Wealth of Nations, “It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest.” Copyright gives authors a means to pursue their self-interest, and the public benefits as a result of this pursuit.

Although there is a lot of speculation about what motivated the Constitution’s drafters to include copyright authority at the Federal level, the most direct evidence of that motivation points toward an embrace of Smith’s ideas. In The Federalist Papers 43, James Madison, the chief proponent of the Constitution’s Copyright Clause, wrote that “The utility of this power will scarcely be questioned.” Echoing Smith directly, he said, “The public good fully coincides…with the claims of individuals.”

The US Supreme Court has recognized this principle on several occasions. In Mazer v. Stein, it said, “The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.'”1347 U.S. 201 (1954).

Register of Copyrights Maria Pallante captured the above discussion perfectly in her 2013 article on The Next Great Copyright Act. There, she says, “The issues of authors are intertwined with the interests of the public. As the first beneficiaries of the copyright law, authors are not a counterweight to the public interest but are instead at the very center of the equation.”

Maintaining Balance in Copyright Law

Once we recognize the intertwined nature of author rights and the public interest, we can examine several ways in which balance between the two is maintained.

First, establishing marketable property rights balances between two of the primary goals of copyright: rewarding the intellectual labor of authors and encouraging the dissemination of expressive works to the public. Generally speaking, authors and distributors want to reach as wide an audience as possible, so they will offer their works on terms and prices that achieve this. The ability to recoup investment in the production and distribution of such works facilitates stable and sustainable markets. And as many have pointed out, though any given individual work is unique, copyright does not have monopolistic properties since there exist many close substitutes, eliminating the ability of copyright owners to extract supracompetitive prices.2See, for example, Tom Sydnor, Can Economic and Historical Analyses End Copyright Law’s Property/Monopoly Disputes?, American Enterprise Institute (2015); Stan Liebowitz, Is the Copyright Monopoly a Best-Selling Fiction? (2008).

Second, a number of internal copyright doctrines balance between ensuring that authors can recoup the value of their work while also preserving the ability for follow-on and downstream creators (and the public) to build on existing works through inspiration, homage, criticism and commentary. The Supreme Court said in Harper & Row v. Nation Enterprises,

The challenge of copyright is to strike the “difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other hand.”

The “originality” requirement now embodied in § 102 of the Copyright Act is crucial to maintenance of the appropriate balance between these competing interests. Properly interpreted in the light of the legislative history, this section extends copyright protection to an author’s literary form but permits free use by others of the ideas and information the author communicates.

Originality goes toward copyrightability of a work, and it is an admittedly low threshold, requiring only “independent creation plus a modicum of creativity.”3Feist Publications v. Rural Telephone Service, 499 US 340,346 (1991). As the House Report for the 1976 Copyright Act explains, the standard for originality, “does not include requirements of novelty, ingenuity, or esthetic merit.” The distinction between ideas and expression that is discussed later does more work in an infringement analysis, particularly when there has been nonliteral copying or copying of less than an entire work. The distinction between ideas and expression should over time naturally result in an equilibrium between protecting legitimate interests in expressive works while permitting the necessary borrowing from existing works that new works rely upon. Although some individuals may idiosyncratically demand more protection than they deserve, in the aggregate, claims between owners of existing works and creators of new works will balance out. This is especially true when you consider the existence of firms with larger copyright portfolios—they will invariably find themselves on both sides of the “v.” in infringement suits, and so it is in their best interests not to be overly aggressive when arguing what can be protected or what can’t be protected under copyright law.

Third, much of the work balancing between copyright and free speech interests is achieved through the exclusive rights. The Supreme Court has identified two “built-in First Amendment accommodations” to copyright law.4Eldred v Ashcroft, 537 US 186 (2003). One of these is fair use, an exception to exclusive rights, but the other is the idea-expression dichotomy, which acts to define the scope of the exclusive rights themselves. But along with these safeguards, the Court has also recognized that copyright itself promotes free expression. In Harper & Row, the Court called copyright “the engine of free expression” and explained, “By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” Without these marketable rights, the creation and dissemination of certain types of works would be chilled.

A prime example involves journalism. In looking at whether news clipping service Meltwater’s unauthorized copying of news material from the Associated Press was a fair use, the Southern District Court of New York said the public interest weighed against Meltwater:

Paraphrasing James Madison, the world is indebted to the press for triumphs which have been gained by reason and humanity over error and oppression. Investigating and writing about newsworthy events occurring around the globe is an expensive undertaking and enforcement of the copyright laws permits AP to earn the revenue that underwrites that work. Permitting Meltwater to take the fruit of AP’s labor for its own profit, without compensating AP, injures AP’s ability to perform this essential function of democracy.5Associated Press v. Meltwater, 931 F.Supp.2d 537, 552 (SDNY 2013).

Finally, we do indeed have explicit limitations and exceptions on authors’ rights, such as fair use or fair dealing. These exceptions are absolutely necessary and important, but they do most of the work outside the core of copyright protection.

A view of balance that pits authors rights against the public interest thus ignores the law’s internal balancing mechanisms and is ultimately detrimental to the goals of copyright. By keeping in mind the intertwined nature of the private right and the public gain, we can better reach a balanced approach. Such balance would ensure that rights are clear, marketable, and enforceable. It would, for example, disfavor government intervention in the form of compulsory licensing, rate setting, etc, except when there is demonstrable market failure; it would encourage cooperation between rightsholders and OSPs and others in the online ecosystem to minimize online infringement; it would provide access to meaningful remedies for individuals and small businesses. A balanced copyright system would, in short, create a vibrant, diverse culture that enriches the public sphere by protecting creators’ right to seek their fair share.

References   [ + ]

1. 347 U.S. 201 (1954).
2. See, for example, Tom Sydnor, Can Economic and Historical Analyses End Copyright Law’s Property/Monopoly Disputes?, American Enterprise Institute (2015); Stan Liebowitz, Is the Copyright Monopoly a Best-Selling Fiction? (2008).
3. Feist Publications v. Rural Telephone Service, 499 US 340,346 (1991). As the House Report for the 1976 Copyright Act explains, the standard for originality, “does not include requirements of novelty, ingenuity, or esthetic merit.”
4. Eldred v Ashcroft, 537 US 186 (2003).
5. Associated Press v. Meltwater, 931 F.Supp.2d 537, 552 (SDNY 2013).