Hit songs, blockbuster movies, best-selling books — most creative industries are driven by sales of a small handful of the most popular releases.

In 2004, Wired editor-in-chief Chris Anderson wrote that the internet would render this model obsolete.

Physical limitations of the bricks-and-mortar world led to a focus on blockbusters in the first place. As Anderson explains in Rise and Fall of the Hit, “The world of shelf space is a zero-sum game: one product displaces another. Forced to choose, each link in the entertainment industry naturally selects the most popular products, giving them privileged placement.” Less-popular, obscure, and niche products remained unavailable to consumers because of the “tyranny of physical space.” In addition to this, creative markets are notoriously uncertain and inefficient; focusing on blockbusters helps lower these risks.

The internet, of course, doesn’t have the same physical limitations as warehouses and retail outlets. Shelf space is virtually infinite. Content can be easily and cheaply distributed around the world. The shift from an analog to a digital world is radical. In the music world, for example, what once took a vast amount of infrastructure and hundreds of millions of dollars — distributing music to consumers across the nation1 — could be done digitally for pennies.2

In his influential book, The Long Tail: Why the Future of Business is Selling Less of More, Chris Anderson suggests that these changes will result in a shift away from the blockbuster effect. In a traditional retail sales distribution curve, blockbuster products make up a large “head” that contribute to the majority of sales, while the rest of products reside in a smaller “tail” that eventually reaches to zero — most commonly this is referred to as the 80/20 rule, where 80% of sales come from 20% of  products. The “Long Tail” theory states that since online retailers have unlimited “shelf-space,” the tail can extend much further; wide product selection and worldwide access increases demand for less popular and niche products in the tail as well, until the majority of sales come from the tail instead of the head.

If the Long Tail theory is correct, what does that mean for copyright? Anderson and others have predicted that a shift in demand away from hits would reduce the role of those companies that have traditionally invested in content creation — record labels, film studios, publishers, etc. These companies typically rely on a solid framework of copyright law to operate. Content creators in the “tail”, it is argued, are less concerned with copyright’s protections, which could result in a “less rigorous de facto regime for the majority of works.”3

Which brings us to our next question. Is the Long Tail Theory correct?

Anderson presents several case studies consistent with his theory. But while a few studies done since the book was published have reached similar results,4 the full range of evidence shows a decidedly mixed bag.5

Billboard Magazine’s Glenn Peoples highlighted some of this recent research and other statistics which show that, despite Anderson’s predictions, demand for content remains concentrated around blockbusters. In The Long Tale?, Peoples writes:

So far, at least according to Nielsen SoundScan data on U.S. music sales from January 2004 through October 2009, that revolution hasn’t arrived—although the demand for albums has changed. Sales of albums, especially digital ones, became significantly less concentrated around hit releases since 2004. But sales of digital tracks—which this year account for 56% of digital sales by track volume—have grown more concentrated in hits during the same time period.

These findings are consistent with other research, including that conducted by Will Page and Anita Elberse. In his recent article, In Defense of Copyright: Record Labels, Creativity, and the Future of Music, Brian Day explains, “The results of both Page and Elberse‘s studies suggest that consumer demand for music has remained fairly constant despite the digital transition, with the vast majority of sales clustered around a small group of extremely popular titles.”6

If any conclusion can be gleaned from this, it is that the Long Tail Theory is not a natural phenomenon, caused solely by the economics and architecture of the internet. Factors besides these drive demand to content located in the tail.

And even though there are benefits to increasing the importance of “tail content”, “head content” still plays an important role. The success of hits and blockbusters provides the capital for content industries to take more risks, investing in the creation of non-mainstream and niche content. The importance of hits remains remarkably the same at every level across many different artistic fields — consider how many ballet companies rely on Christmas productions of The Nutcracker Suite to sustain themselves.7

In short, the demise of “traditional” creative companies predicted by The Long Tail, and any changes in the role of copyright law that may accompany that, has yet to occur in practice. Brian Day offers his own conclusions drawn from the discussion above specifically relating to the music industry — conclusions that I both agree with and think are just as applicable to other types of works covered by copyright law:

The Internet has thrown open the floodgates of music,offering consumers more selection than ever before. As the previously discussed studies demonstrate, however, increased access to music does not suggest that consumers’ appetite for music has changed or that record labels have artificially restricted musical diversity or creativity. To the contrary, the studies demonstrate that record labels successfully satisfy consumer demand by providing useful art to consumers. Without record labels, the long tail would likely grow even longer, requiring consumers to sift through thousands or perhaps millions of songs in hopes of stumbling upon a hit. Labels provide expertise in determining which songs and artists will appeal to specific groups of consumers, and invest significantly to market and promote their selections. A review of Billboard’s Top 100 most popular songs affirms the continuing popularity of label-funded music and artists.8

Footnotes

  1. It’s estimated that a national record distribution operation cost $125 million a year in the mid-1980s, according to David Nelson, Free the Music: Rethinking the Role of Copyright in an Age of Digital Distribution, 78 Southern California Law Review 559, 563 (2004). []
  2. Although there are still significant costs involved with preparing the music for digital distribution, and the costs of creation remained relatively similar. []
  3. William Patry, A Long Tail Effect on Copyright?, Patry Copyright Blog (Dec 19, 2006). I disagree with the contention that attitudes toward the appropriate scope of copyright protection can be generalized in this fashion. Indeed, there are many examples that can be used to show the opposite. []
  4. Brynjolfsson, Hu, and Simester, Goodbye Pareto Principle, Hello Long Tail: The Effect of Search Costs on the Concentration of Product Sales (January 1, 2011); Haro, Sainz, and Somalo, Is One Long Tail Enough? (Cuando Una Long Tail No Es Suficiente) (2008). []
  5. Òscar Celma, Music Recommendation and Discovery in the Long Tail, (2008). []
  6. 21 Seton Hall Journal of Sports and Entertainment Law 61 (2011). []
  7. For example, The Washington City Paper notes that The Nutcracker provides 20% of the Washington Ballet’s total ticket revenue each year; The Cincinnati Ballet received 51% of its annual revenue from the Suite in 2008-09. []
  8. In Defense of Copyright, pp 87-88. []

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What is piracy? When used to describe copyright infringement, the term causes a lot of debate.

Some say the term is inaccurate, since “piracy” only describes sea-faring buccaneers of the “Aaargh, matey” type.1 Others suggest it is inappropriate when applied to anything but large-scale, commercial counterfeiting of copyrighted works — an effort to invoke negative connotations of all unauthorized uses of copyrighted works in order to increase the scope of laws and enforcement in favor of copyright holders.2

Even setting aside these arguments, debate remains over the meaning of the term. Is all copyright infringement piracy? Or does it only refer to specific types of copyright infringement?

This post isn’t about addressing the arguments about the term or coming to a settled definition of the word — not to say either is unimportant or not interesting. Instead, I want to focus only on how I use the term on this site. Words are important, and I use the term piracy quite frequently here, so I want to clarify what I mean when I use it and why I use it that way.

I use “piracy” to refer to a subset of copyright infringement, specifically, the widespread reproduction and distribution of exact copies of an entire work without authorization. In this sense, the term is merely shorthand since I write a lot about the issues revolving around this type of infringement. Put another way, my use is descriptive rather than normative. This definition reflects how the term is commonly used today — I’ll leave to others the question of whether this definition reflects how the term should be used.

Historical Usage

“Pirate” comes from the latin Pirata, meaning “sailor” or “sea robber,” which itself comes from the Greek peirates, “brigand.”3 Since the time of the Ancient Greeks, the term has been used to describe those who plunder at sea.

The term “piracy” began to be applied to the plundering of intellectual property around the mid-1600s — give or take a few decades, depending on who you ask.4

The earliest appearances of the term, pre-dating the Statute of Anne and our modern idea of copyright, used it more to describe personal plagiary — the passing off of another’s work as one’s own — then the unauthorized reproduction of a work. It’s interesting to note that the term “plagiarism” itself comes from the classical Latin term plagiarius, meaning “kidnapper, seducer, plunderer.”5 By the 18th century, “piracy” was being used to describe copyright infringement.6

Indeed, in the early 19th century, the two terms were often used interchangeably. In Cary v. Kearsley, an 1803 English case that serves as a sort of godfather to the modern U.S. doctrine of fair use, the court explained, “That part of a work of one author is found in another, is not itself piracy, or sufficient to support an action; a man may fairly adopt part of the work of another; he may so make use of another’s labours for the promotion of science, and the benefit of the public.”7

Justice Story also used the term piracy as a synonym of copyright infringement. In Folsom v. Marsh, he refers to “the question of piracy” where today a court would refer to the question of copyright infringement.8 Likewise, in Emerson v. Davies, he wrote, “The question is, whether the latter work is a piracy upon any part of the former work, which the author of that work had a right to claim as his own property, in respect that it was his own composition.”9

Current Usage

Nowadays, the scope of the term has been narrowed; most courts, scholars, and commentators use piracy to refer to only a specific type of copyright infringement rather than all infringement.10

The Supreme Court in Goldstein v. California explained that the petitioners were engaged in “what has commonly been called “record piracy” or “tape piracy”—the unauthorized duplication of recordings of performances by major musical artists.”11 Though a patent case, the Court in Graver v. Linde implied that pirating a copyrighted work is an act of “unscrupulous” copying, where any variations are made not out of a creative nature, but only to “conceal and shelter the piracy.”12

Many scholars adopt the same definition as courts. Mark Lemley and Eugene Volokh talk about “outright piracy” as those cases where a defendant makes “identical or nearly identical copies” of a protected work, “and there is no claim of fair use.”13 Law professor Michael J. Meurer defines piracy as “the unauthorized public distribution of literal copies of a copyrighted work,” making a pirate, in the economic sense, “a competing supplier of the copyright holder.”14

While “piracy” is not a legal term, it has been used descriptively by Congress when holding hearings or passing legislation. The law making certain types of copyright infringement a felony was called the Piracy and Counterfeiting Amendments Act of 1982.15 The infringement covered by the act must be both willful and “for purposes of commercial advantage or private financial gain” — with higher penalties for the unauthorized reproduction and distribution of multiple copies.

Industry groups also limit the scope of what types of infringement are defined as piracy. The RIAA describes some of the forms piracy can take on its website: “individuals who illegally upload or download music online, online companies who build businesses based on theft and encourage users to break the law, or criminals manufacturing mass numbers of counterfeit CDs for sale on street corners, in flea markets or at retail stores.” The IFPI, in discussing online piracy, is referring only to file-sharing type activities.

Based on these (and many other) examples, I think my definition of piracy fairly represents the commonly accepted usage of the term.

Footnotes

  1. Richard Stallman, 21 Words to Avoid (1996). []
  2. William Patry, Moral Panics and the Copyright Wars, pp. 92-96 (Oxford University Press 2009); Jessica Litman, Digital Copyright, pp. 85-86 (Prometheus Books 2006). []
  3. Pirate“, Online Etymology Dictionary. []
  4. Adrian Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates, pg. 23 (University of Chicago Press 2009); The Oxford English Dictionary has 1603 as the earliest use in this manner, while the Online Etymology Dictionary dates the first recorded use to 1701. []
  5. Plagiarism,” Online Etymology Dictionary. []
  6. It has, throughout history, also been used to refer to certain practices outside of copyright infringement — pirate radio and pirate buses, for example. []
  7. 4 Esp. 168, via William Patry, Fair Use and Fair Abridgment, Patry Copyright Blog (Oct. 14, 2005); see also Campbell v. Acuff-Rose Music, 510 US 569, 575-576 (1994). []
  8. 9 F. Cas 342 (1841). []
  9. 8 F. Cas. 615 (Cir. Ct D. Mass 1845). []
  10. Though, as always, there are exceptions. See, e.g., SAS Institute v. S&H Computer Systems, 605 F.Supp. 816, 829-30 (MD Tenn 1985): “The question of the substantiality of the similarity is also a question of fact; the piracy of even a quantitatively small fragment (‘a rose by any other name would smell as sweet’) may be qualitatively substantial.” []
  11. 412 US 546, 549 (1973). []
  12. 339 US 605, 607 (1950). []
  13. Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147, 211 (1998). []
  14. Price Discrimination, Personal Use and Piracy: Copyright Protection of Digital Works, 45 Buffalo Law Review 845 (1997). []
  15. PL 97-180, 96 Stat 91, 93. []

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I would like to wish a happy new year to all my readers and fellow bloggers. I hope everyone had a warm and happy holiday season. Here’s to a new year filled with happiness.

Just a few notes from around the blogosphere:

  • Entertainment attorney Lionel Sobel has a new blog — Entertainment Law Reporter. Sobel covers a wide variety of topics in the entertainment law realm; the blog is a great addition to anyone’s reading list.
  • The Washington Legal Foundation runs a blog with some great in-depth analysis of different issues. They’ve recently devoted a couple posts to copyright. Check out Video Game “Bot” Provides Platform for Latest Judicial Pronouncement on Copyright & Software, about the recent World of Warcraft case, and The Supreme Court Left Most Copyright Litigants Wanting in 2010, for a review of the copyright cases that the Court heard (or passed on) in the previous year.
  • Chris Castle’s Music Technology Policy recently posted the third part of its thorough (and thoroughly entertaining) four part analysis of Google’s recently announced anti-piracy initiative. Well worth a read.
  • Finally, this video has been making the rounds. Musician Mike Lombardo responds to a blog post titled “Filesharing will go down in history as the greatest thing ever to happen to music,” a sort of “best of” listing of anti-copyright arguments (example: creating art doesn’t cost anything).

    A tad long, but worth the watch:

    [youtube]EwAiLICevc4[/youtube]

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Media Law Prof Blog points out a recent paper that examines the attitudes and beliefs of youngsters about copyright: Youth, Creativity, and Copyright in the Digital Age, by John Palfrey, Urs Gasser, Miriam Simun, and Rosalie Fay Barnes. The abstract reads:

New digital networked technologies enable users to participate in the consumption, distribution, and creation of content in ways that are revolutionary for both culture and industry. As a result, “Digital Natives” — young people growing up in the digital world with access to the technologies and the skills to use them in sophisticated ways — are now confronting copyright law on a regular basis. This article presents qualitative research conducted with students age 12-22 that explores youth understanding, attitudes, and discourse on the topic of digital creativity and copyright law. Our findings suggest that young people operate in the digital realm overwhelmingly ignorant of the rights, and to a lesser degree the restrictions, established in copyright law. They often engage in unlawful behavior, such as illegal peer-to-peer music downloading, yet they nevertheless demonstrate an interest in the rights and livelihoods of creators. Building upon our findings of the disconnect between technical, legal, and social norms as pertaining to copyright law, we present the initial stages of the development of an educational intervention that posits students as creators: the Creative Rights copyright curriculum. Educating youth about copyright law is important for empowering young people as actors in society, both in terms of their ability to contribute to cultural knowledge with creative practices and to engage with the laws that govern society.

The paper is worth reading and should prove valuable to other scholars and commentators for its research. The conclusions of the authors shouldn’t be too surprising to many of you, but it is useful to have confirmation of the assumptions of attitudes about copyright law among young people. In addition, the authors provide quite a few interesting quotations from “Digital Natives” which adds depth to the qualitative findings.

Among other things, the researchers found that confusion about copyright starts with the very basics: what does copyright ‘mean’? “Many of the young people we spoke to confused copyright with notions of plagiarism or patent protections; for example, one high school student wrote: ‘[copyright is] protected by law so you can’t steal ideas.’” Anyone familiar with copyright law won’t be surprised by that finding, as conflation of copyright with patents or plagiarism persists in any age group.1

Perhaps the confusion between copyright infringement and plagiarism — issues that are distinct but overlap — isn’t really a big deal. Of greater concern is the increased number of the younger generation who see nothing wrong with copyright infringement or plagiarism. As Jonathan Bailey has pointed out, the number of students who view plagiarism as “serious cheating” has decreased in the past decade.

Along with the basics, confusion over copyright specifics is prevalent in younger generations too. Again, this shouldn’t come as a surprise since such confusion is prevalent among the population as a whole. Last week, a minor scandal arose on the internet after an exchange between a writer and the editor of Cooks Source magazine after the writer discovered the magazine had reprinted one of her articles without permission.2 In a rather condescending reply, the editor, although claiming over three decades experience in the publishing industry, incorrectly told the author that “the web is considered ‘public domain.’”

The authors present several ideas for increasing copyright literacy among “Digital Natives.” One of the challenges of copyright education is the disconnect between the law and what is considered socially acceptable behavior. The ease with which content can be distributed and accessed online, even on legitimate services like YouTube adds to the challenge of helping young internet users distinguish between what types of uses are allowed and what types of uses are not.

However, the authors note that the focus of any copyright curriculum should not lie solely on copyright as mere restrictions and prohibitions. More important is educating students about copyright’s goals and purposes of encouraging creativity and art. Showing how copyright protection helps artists, and how “Digital Natives” can work within the copyright system to become the next generation of creators, will achieve more than presenting copyright as a set of rules aimed at punishing young people.

Although the authors of this article show some skepticism toward industry copyright education efforts, I’d like to point them out. The RIAA has a section devoted to tools for educators on its web site, with different programs for elementary, high school, and university students. The Copyright Alliance Education Foundation presents a comprehensive array of related educational programs for teaching copyright to young people, as well as educators themselves, on its site.

I agree about the need for increased copyright literacy among young people, whatever the approach. I believe, however, as pointed out in a previous post, that there is an even greater need for increasing literacy about the law in general — and not just for young people.

Footnotes

  1. Though it is interesting to note that some of the youngsters seem to have a firmer grasp of secondary liability than grown-ups: said one high school student interviewed in the article, “if the government has a problem with people stealing music, why don’t you shut down LimeWire? Why are you going after people downloading from the site?” []
  2. Vega, Tanzina, A Social Media Firestorm About Apple Pies, New York Times, Nov 4, 2010. []

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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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The First Amendment is perhaps the most famous part of the Constitution. Defending People’s blogger Mark Bennett ran a tally of how many times each article and amendment (of the ten included in the Bill of Rights) in the Constitution was specifically mentioned in the week leading up to Constitution Day; the First Amendment was mentioned by bloggers nearly as many times as all others combined. In the words of the Oxford Companion to the Supreme Court of the United States, the Amendment “reflects vital attributes of the American character,” “is the cornerstone of the nation’s liberty,” and “is known and cherished by virtually all citizens.”

It may come as a surprise then, that very few cases concerning the First Amendment arose in the first hundred or so years of its existence. It wasn’t until after World War I that the Supreme Court began to develop many of the free speech doctrines we see today.1

What does this have to do with copyright? Well, if you take a closer look, you can see an inherent tension between the First Amendment and copyight law. The First Amendment prevents the government from restricting freedom of speech; copyright restricts the ability of a person to “speak” using the words of another.2

Like the development of modern free speech doctrines, this recognition of a conflict between the First Amendment and copyright law is a relatively recent phenomenon. It wasn’t until about the 1960s when the idea began to receive attention from legal scholars.3 It wasn’t until 1985 that the “kernels” of the modern doctrines addressing the tension between the First Amendment and copyright law were sown by the Supreme Court, in Harper & Row v. Nation Enterprises. In 2003, in Eldred v. Ashcroft, the Court fleshed out the current state of the law concerning the relationship between the First Amendment and copyright.

Simply put, the Court said, First Amendment concerns are adequately addressed by “copyright’s built-in free speech safeguards.” It noted two of those safeguards: the “idea/expression dichotomy” and the doctrine of fair use. It also suggested that there are supplemental safeguards, like copyright law’s exceptions for libraries and archives.

Criticisms of this approach began in earnest after Harper & Row and multiplied in the wake of Eldred.4 The overall theme is that copyright’s safeguards are not, in fact, adequate to address First Amendment concerns – specifically in cases of what I label “creative infringement.”5

But something is missing in the discussion about copyright and the First Amendment. For all the attention given to the First Amendment concerns of alleged infringers, there is scant attention devoted to the First Amendment concerns of infringees – artists and creators.

Artistic Expression and the First Amendment

Part of this lack of attention stems from how the subject matter of copyright – artistic expression – is viewed. As constitutional scholar Sheldon Nahmod states, “Artistic expression has been assigned a derivative and second-class status in the views of many first amendment thinkers, the Supreme Court, and other courts.”6 Much First Amendment scholarship focuses on protection of political speech, with other forms of speech – like artistic expression or commercial speech – relegated to the margins of the discussion.

This slighting of artistic expression in First Amendment theory is not historically unusual; many philosophic schools of thought have placed relatively little importance on the role of art in society. Some have been downright skeptical of artistic expression. Nahmod notes that, “According to Plato, the state must control art for the good of the society as a whole. Otherwise, art threatens the stability of the state.”7 He adds that contemporaries of Marx, too, “are so convinced of art’s influence that they view art as an appropriate subject for state control.”8

Artistic expression has been subjected to censorship in the US throughout its history, with restrictions largely aimed at sexual content. Book bans are not unheard of; the film industry has a storied past involving first local government ratings boards and, later, voluntary industry ratings systems. Industry groups play a role in protecting the slighted First Amendment rights of artists and creators. The RIAA states that part of is its mission is working to protect the “First Amendment rights of artists and music labels”; lest the more cynical readers think this is just PR lip-service, I point out the amicus brief filed just last week by the MPAA, RIAA, and other industry groups arguing that California’s recent law prohibiting the sale of violent video games to minors is unconstitutional.

But artistic expression can serve other purposes that make it, even absent any objectionable content, unworthy of more than second-class status in scholarly discussion. It can often be used as entertainment, a diversion from the drudgery of ordinary life. Here, we can draw analogies between artistic expression as entertainment and other forms of entertainment throughout history to see that this low opinion of artistic expression is not an anomaly. Sports have, at various times, been the subject of regulation or outright banning by governments. In England during the Middle Ages, soccer, bowling, golf, and other sports were the subject of bans at various times. Often, these bans reflected the idea that these sports diverted young men’s energy away from military training and were thus a threat to law and order.9

Despite its at-times uncomfortable fit within First Amendment theory and a general snubbery throughout history, artistic expression flourishes in the US. Movies and television shows created here are watched around the world. Jazz, rock and roll, and hip-hop have all arisen within the US. As a result of all of this, artistic expression in the US can sometimes find itself in an odd position. For example, in the late 80s and early 90s, several record store clerks were arrested for selling 2 Live Crew albums to minors;10 in 1994, the highest court in the US upheld that same group’s right to release a ribald, dirty parody of Roy Orbison’s Pretty Woman as fair use.11

Artistic Expression, the First Amendment, and Copyright

Attention to artistic expression’s place within First Amendment theory remains underdeveloped. However, within discussions of copyright law, the role of artists’ First Amendment rights is practically ignored.

What do I mean by the role of artists’ First Amendment rights within copyright law? Courts that have addressed the tension between the First Amendment have, as I stated above, said that copyright law has built in safeguards to protect the First Amendment rights of those who make use of copyrighted works. But there’s another side of the coin. In Harper & Row - repeated later in Eldred – the Supreme Court declared that “the Framers intended copyright itself to be the engine of free expression.”12 The metaphor adopted by the court explains how copyright and the First Amendment accomplish the same goal – the dissemination of new ideas – through distinct means. Copyright pushes the dissemination – by providing an incentive to create new expression – while the First Amendment removes the obstacles in the way of that dissemination.

In many ways, the copyright incentive provides the most free method to spread new ideas. We don’t have to rely on the wealthy to fund whatever expression captures their fancy. We don’t have to rely on government to fund whatever expression it deems serves the state. Instead, we have a society where the values of artistic expression – as beauty, sublime, frivolity, or entertainment – and the value of artistic expression is determined solely by its members and the market. Patrick Ross, of the Progress and Freedom Foundation, puts it this way:

Our culture is remarkably vibrant and expressive, and is consumed around the world (even if many of those global consumers enjoy deriding our culture while consuming it). We embrace freedom of expression. We don’t burn down buildings when someone publishes a cartoon we find offensive. A bookstore can display the latest David McCullough biography beside a paperback collection of bathroom jokes. In fact, our culture seems pretty indestructible (we’ve survived the lip-synching scandals of Milli Vanilli and Ashlee Simpson, after all). While there will always be those who appoint themselves guardians and protectors of our culture, we can recognize that they aren’t truly needed. That is, they aren’t needed as long as artists retain their longstanding role in the culture. Artists, through the flexible exercise of their rights bundles, allow the culture to be enriched. No corporation can lock that culture down, and no p2p pirate can significantly erode that culture, as long as society collectively thanks its artists by respecting property rights.

But you won’t find much discussion of copyright’s role in the dissemination of new ideas when First Amendment concerns are raised in the context of copyright law. The “engine of free expression” metaphor is mentioned only in passing, ignored, or even dismissed as a “judicial sound bite.”13 That’s just wrong. In any case of “creative infringement,” there are two sides to the “free expression” coin. Any discussion of free expression rights which focuses on the rights of only one side (the alleged infringer) while ignoring the other (the infringee) is incomplete.

Footnotes

  1. The Oxford Companion cites Justices Holmes’ and Brandeis’ dissent in Abrams v. United States (1919) as sowing the “kernels of modern free speech doctrine.” []
  2. I use the terms ‘speak’ and ‘words’ here in a very broad sense, as copyright protection extends to subject matter beyond the written word. []
  3. See, e.g., Melville Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. Rev. 1180 (1969); Lionel Sobel, Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium (ASCAP) 43 (1971) (predicting a “coming clash between ‘free speech and press’ principles and copyright clause exclusive-rights principles.” []
  4. See footnote 2 of Alan Garfield, The Case for First Amendment Limits on Copyright Law, for a sampling of several dozen books and articles exploring the subject. []
  5. One such example of the relevance of this distinction regarding the First Amendment and copyright is provided by Mark Lemley and Eugene Volokh, who agree that “there’s no First Amendment problem” for preliminary injunctions in “piracy and other ‘easy’ cases” of copyright infringement. Freedom of Speech and Injunctions in Intellectual Property Cases (1998). But free speech concerns have also been raised in cases of “consumptive infringement” – albeit on issues outside the scope of copyright law. ((See the EFF’s amicus brief in Achte-Nuente v. Does for one such example. []
  6. Nahmod, Artistic Expression and Aesthetic Theory: The Beautiful, the Sublime and the First Amendment, Wisconsin Law Review (1987). []
  7. Nahmod, p. 227 []
  8. Nahmod, p. 224 []
  9. Andrew Pittman, The Interaction of Sport and Law: Where Has it Been, Where is it Now, and Where is it Going?, 2 Journal of Legal Aspects of Sport 64 (1992). []
  10. Steve Jones, Ban(ned) in the USA: Popular Music and Censorship, 15 Journal of Communication Inquiry 73 (1991). []
  11. Campbell v. Acuff-Rose Music, 510 US 569 (1994). []
  12. 471 US 558 []
  13. Michael D. Birnhack, The Copyright Law and Free Speech Affair: Making-Up and Breaking-Up, Idea: Journal of Law & Technology 43 (2003): 233. []

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I’d like to take a step back from discussions about copyright specifics to make a general observation. We can distinguish between two types of copyright infringement – let’s call them “consumptive” infringement and “creative” infringement.

“Consumptive” infringement includes what is generally called “piracy.”1 This is the type of file-sharing that has flourished on the internet, whether we’re talking about music, movies, books, software, images, or any other copyrighted subject matter. Consumptive infringement involves the reproduction and distribution through unauthorized channels of what is generally offered through legitimate ones.

“Creative” infringement, by contrast, involves the use of existing works, without permission, to create new works. It includes transformative uses, derivative works, and works which may be protected by fair use. This category also includes what has been described in academic literature as “remixes” or “mashups.”

I define consumptive infringement in such a way that it is de facto infringing at law. A work has been reproduced, in its entirety, for the sole purpose of substituting a legal use of the work. Creative infringement, however, is a grey area, and can only be declared an infringement by a court. With creative infringement, the line between infringement and non-infringement is necessarily fuzzy and undefined. Inherent in this category is the recognition that all creative works, to some extent, borrow from existing works. Some, like Men at Work’s Down Under, may be determined to have borrowed in a legally infringing manner, while others, like 2 Live Crew’s Pretty Woman, may be determined to have borrowed in a legally acceptable manner.

The doctrines used to determine whether creative infringement exist occupy close to 99% of copyright casebooks and a solid proportion of academic literature. Substantial similarity, fair use, the idea-expression continuum, de minimis – all these have been developed and employed by courts to sort perfectly acceptable uses of existing copyrighted works from those that cross the line into infringement.

I’m certainly not the first to note a distinction between these two types of infringement; I’m not even the first to make use of the term “consumptive infringement.” In Copyright and the Rule of Reason, author and law professor Christopher Sprigman defines “consumptive infringement” as those “forms of infringement involving the reproduction and distribution of copies that are either exact or near enough so that they are almost certain to compete with the original work for patronage.” He goes on to say that this “category of consumptive infringement will apply to a large percentage of copyright cases that plaintiffs will wish to bring. Most copyright violations involve the making and distribution of exact or near-exact copies. Virtually all of the infringement via peer-to-peer networks falls into this category.”

Why bother with this distinction?

While Sprigman makes the distinction between “consumptive” infringement and other types of infringement to propose a new legal standard, my purpose here is to merely note that a distinction exists to aid in our discussion of copyright. As noted above, cases of creative infringement occupy the vast majority of copyright discussion. When is a use fair? Where is the line between an idea and an expression? Consumptive infringement, however, is pretty cut and dry. It competes precisely with the rights that copyright law was designed to protect. Bootlegs and torrents act as displacements for the consumptive offerings of content creators.

The distinction I make is not often noted but apparent in practice. The RIAA lawsuits targeted those who shared those songs that record labels offer for sale. Criminal copyright infringement charges can be brought for any type of infringement, but as far as I can determine, the only cases which have historically been brought have been against those who have engaged in widespread consumptive infringement. And while you can find a flourishing mashup scene online, not a single lawsuit has been brought against a mashup artist, even a commercially successful one like Girl Talk.2

It should not be surprising that the grey areas of a law receive the most analysis while the black and white cases generate the most legal action. Copyright law is no exception. But here’s the problem: the entirety of copyright law has become somewhat of a boogeyman. A good portion of the online public has grown increasingly skeptical of content industries.

As a result, all aspects of copyright law have been placed under a microscope. Any and all deficiencies in court’s applications of substantial similarity, fair use, or the idea expression continuum have been duly noted. The shortcomings of these problems are transposed on discussions involving efforts to manage piracy.

It’s as if content creators are not justified in addressing piracy as long as all these other problems with copyright law remain.

What we need to remember is that any substantive problems with copyright law are independent of the problems of consumptive infringement. I don’t think I’m going too far out on a limb to say that most creators, whether large or small, are primarily concerned about the effects of consumptive infringement.

It’s also fair to say that while creative infringement occupies the vast majority of casebooks and academic literature, consumptive infringement occupies the vast majority of court dockets. Creators of all stripes are rightfully concerned about the effects consumptive infringement has on their livelihood, and shouldn’t have to become apologists for any perceived problems involving creative infringement.

Bottom line, I think it’s important to recognize this distinction between consumptive and creative infringement. Rational discussion of copyright policy is aided by separating the two. I’ve remained deliberately broad and general in this article; it’s my expectation to use this as a launching pad for more detailed topics in the future.

Footnotes

  1. Noted copyright scholar William Patry defines “piracy” as the “massive, commercial, unauthorized reproduction of copyrighted works.” []
  2. The New York Times notes the lack of legal action against mashup artist Girl Talk. A number of sites offering Danger Mouse’s Grey Album, one of the most famous mashup albums, received cease and desist letters from EMI, but the label never pursued further action. I’ve been able to find only one other report of a cease and desist sent to a mashup artist. []

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H/T to Eric E. Johnson at Blog Law Blog for providing in-depth coverage of the Righthaven lawsuits and Jonathan Bailey at PlagiarismToday for his thoughts on this subject.

Righthaven continues to file new lawsuits, seemingly unabated, adding seven new complaints to the dockets last week. That brings the total number of lawsuits up to 124 as of the writing of this article, according to site Righthavenlawsuits.com.

For those not familiar with Righthaven, it’s a private company engaged by the Las Vegas Review-Journal to protect its news content online. Righthaven’s strategy involves searching online for sites where Review-Journal articles have been republished, buying the copyright to those articles, and then filing an infringement suit against the site. This campaign against infringement began earlier this year, coinciding with an editorial by Review-Journal publisher Sherman Frederick, who announced point-blank (about copyright infringement): “We’re not taking it anymore.”

Those sued so far include everyone from a “cat blogger” and a real estate agent, to both right-wing and left-wing forums, the Nevada Democratic Party, NORML, and most recently, and perhaps most bizarrely, Nevada Senate candidate Sharron Angle – a candidate the newspaper is expected to endorse.1

Competitor Las Vegas Sun has committed to reporting developments in the Righthaven lawsuit story; their site provides numerous articles on the unfolding events. In addition, you can find a large amount of court filings from the various Righthaven suits at Scribd.

Opposition to the lawsuits is growing, not only from interest groups and the general public, but also from the defendants themselves. Some are responding to the complaints with allegations that Righthaven is misusing the legal system. In fact, I don’t even think it’s particularly noteworthy to register your opposition to Righthaven’s campaign, as public opinion appears almost universally critical. What is noteworthy is pointing out the conflation between criticism of Righthaven’s methods and criticism of copyright law in general.

My take on these lawsuits echoes what many others have noted. The complaints themselves have merit. While there are some issues which can be addressed, particularly fair use, the case for copyright infringement is pretty cut and dry.

The problem is the Review-Journal’s approach it has taken. It is using litigation as a way to make money,2 and the lawsuits border on vexatious. The way it skips over resolving cases of infringement privately and heads straight to filing a lawsuit undermines the strong public policy for using the legal system as a last resort.

I cannot stress enough that criticism of Righthaven is about its litigation methods, not about the validity of copyright laws and enforcing those laws. If you replace “copyright infringement” with some other cause of action, the criticisms mentioned above would remain the same. Unfortunately, opponents of effective copyright enforcement are more than happy to use the Righthaven lawsuits as yet another example of content industries run amok. This only adds to the challenges of all other content owners who are trying to address dealing with infringement in a digital world.

Safe havens and Fair Use

Let’s take a quick look at the copyright issues raised by these lawsuits. As I said, in many cases they are cut and dry. The Review Journal, as the copyright owner, has the exclusive right to reproduce and distribute its content (and the right to assign its copyright to parties like Righthaven, though the way it is exercising this right raises other questions that I’ll address later). Anyone who reproduces its content without authorization is infringing. As a strict liability tort, it doesn’t matter what the infringer’s intent was in reproducing the content, nor whether the infringer profited from the infringement. Of course, the alleged infringer must have taken more than an insubstantial portion of the original work to be liable. This seems to be the case in most of the Righthaven lawsuits. Sharron Angle, for example, reproduced two individual articles in their entirety on her site.

One defense often mentioned in connection with these lawsuits is the safe harbor provided by the Digital Millennium Copyright Act (DMCA). The law protects online service providers from liability for infringement, providing the famed notice-and-takedown procedure where a content owner can request infringing material removed without resorting to the courts as Righthaven has done. I think the applicability of the DMCA is limited in these cases, however. The DMCA safe harbors only protect service providers from secondary liability – liability for users posting content to forums or BBS’s. It doesn’t apply to direct infringement, and a number of the lawsuits were filed against owners of personal sites and blogs who posted the content themselves. Qualifying for the safe harbors also requires following certain procedures – registering a DMCA agent with the US Copyright Office and posting contact information with the site’s DMCA policies on the site3  - and it appears that Righthaven has been pretty careful about targeting only those sites that don’t follow these provisions.

The defense that is more likely to come into play with these lawsuits is fair use. The doctrine of fair use allows for certain uses of copyrighted material without the permission of the copyright owner. Courts typically4  use the four factors from 17 USC § 107 to determine whether a particular use is fair: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educa-tional purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in rela-tion to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Fair use is highly fact-specific, and it’s up to each individual defendant to raise the defense, so it’s difficult to make any generalizations about what role it will play in these lawsuits. You can see, though, that the noncommercial nature of many of the uses in these cases may favor a finding of fair use, though this may be negated where an entire article was reproduced and where no additional commentary or criticism was added to the republication.

Despite some of the limitations on a fair use defense under the traditional four factor test, Eric Johnson makes a strong argument that fair use should protect the right to republish news articles that a person is the subject of. He writes:

The free-speech, communicative, and democratic values that protect the right of newspapers to report and publish should also protect the right of persons who are subject to the scrutiny of the press to republish that material.

I would add that the practice of reprinting articles about oneself or one’s organization is a fairly well-established practice. Many routinely reprint news articles in press packets and internal newsletters. Many of the fair use opinions dealing with reproducing news content involve commercial press clipping services, where the purely commercial nature of these enterprises typically defeats a finding of fair use. When you consider that the reprinting here is done by the subjects of the articles themselves rather than commercial enterprises, and combine it with the fact that the Review-Journal already provides a multitude of options for sharing content5 it is conceivable that some defendants may succeed with a fair use defense.

It’s Not Copyright at Issue

But however interesting the copyright issues raised in these lawsuits are, they do not explain the almost instinctual aversion most have to Righthaven’s behavior. In theory, it seems odd to criticize Righthaven; if, for the sake of argument, the claims are meritorious, why would anyone speak out against their right to pursue those claims in court?

In a broad sense, the reaction to Righthaven can be compared to the reaction when an overzealous municipality shuts down a kid’s lemonade stand because the tiny tots failed to get the proper vending licenses, as an Oregon city did last month, or a California city did last year. It sparks our conscience whenever anyone, no matter how right, goes nuclear against a relatively minor infraction.

But the problems with Righthaven’s approach go deeper than just shocking sensibilities. They approach the territory of upending ancient notions of how a legal system should work. One hint at how old these notions are comes from some of the answers to Righthaven complaints. We see concepts like “barratry” and “champerty” coming back in style.

In addition to these defenses, the method of Righthaven’s pursuit of lawsuits has been attacked, with some calling them “ambush” style lawsuits. Most lawsuits begin with the aggrieved party contacting a would-be defendant, typically through a cease and desist letter. It is only after the parties fail to come to a satisfactory conclusion that the dispute is taken to the courts. Righthaven skips over this step entirely, going straight to filing suit. One group reported that its first notice that it was in trouble came from “a Google alert indicating a court document had been filed, followed by an e-mail of inquiry from a reporter for the Las Vegas Sun.”

Whether these criticisms of Righthaven’s legal strategy rise to legally recognized defenses remains to be seen.6 But regardless of whether Righthaven can do what it’s doing, most disagree with Righthaven that it should do what it’s doing.

Going to court is a last resort. This isn’t just good advice, it’s a cornerstone of western law – an assertion that finds support not only in secular thought, but also Judaism and Christianity.7 Litigation is costly and time-consuming, and most of the time, that’s ok. The costs encourage individuals to settle disputes themselves without getting the government involved. Righthaven flips the default on this view by pursuing litigation as a business and skipping the whole “let’s work this out” step.

We certainly don’t want to close the courts off to those with meritorious claims. But most of us believe that there should be some, well, justice in the justice system. Rules against using the legal system as a sword to vexate others or profit from lawsuits have been in place for a long, long time to prevent extortion and ensure that the legal system operates fairly for all of us.8

The Danger to Content Owners

The gravest danger to content owners and creators not caught in Righthaven’s cross-hairs is that these lawsuits will make their efforts to protect content more difficult. Those opposed to all attempts to maintain the incentive copyright provides are quick to lump Righthaven’s litigation-as-a-business-model in with all efforts by those who recognize that unabated piracy damages the incentive to disseminate new works. It’s doubtful anyone can say anything to change their minds, but it bears repeating that criticism of these lawsuits doesn’t implicate copyright law as much as Righthaven’s strategy.

Is there any lesson content owners can learn from Righthaven? The RIAA litigation demonstrated that lawsuits are cumbersome and costly as a shield against piracy. The Righthaven litigation demonstrates the dangers of using lawsuits as a sword against piracy. In my opinion, this is enough evidence to shift the focus away from the courts as a tool for managing piracy. Content owners and consumers alike would benefit from an alternative approach, whether it involves placing more responsibility on ISPs and service providers for policing infringement, or whether it involves revisiting some of the numerous proposals for addressing online piracy that have been advanced in the past.

Footnotes

  1. A former managing editor of the Review-Journal imagines the endorsement would say something like, “We think she’s a thief, but we like her a lot.” []
  2. There have been some reports of the amount Righthaven has already collected from settlements, but it’s difficult to see how suing one’s sources – and advertising agencies – is a good business model. []
  3. Check out this site for pointing out this important information for UGC site operators. []
  4. Close to 60% of the time, as noted by Baron Beebe in his extraordinary article, An Empirical Study of US Copyright Fair Use Opinions, 1978-2005, 156 Univ of Penn Law Review 549 (2008). []
  5. The site provides numerous RSS feeds, as well as providing options to email, print, or share on 19 different social networking sites each article. []
  6. The doctrine of champerty is often described as ‘vestigial’, see Paul Bond, Making Champerty Work: An Invitation to State Action, 150 Univ of Penn Law Review 1297 (2002). []
  7. See Max Radin, Maintenance by Champerty, 24 Cali Law Review 48 (1935). []
  8. For more information on the history of champerty and maintenance, as well as discussion on the various public policies the doctrines protect, check out Ari Dobner, Litigation for Sale, 144 Univ of Penn 1529 (1996), and Radin. []

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Earlier this month, Mark Lemley asked Is the Sky Falling on the Content Industries? In the paper (a draft), he traces content owner claims over the past two centuries that new technologies will disrupt their businesses. The essay quickly spread across the blogosphere – garnering mentions on sites like Hypebot and Techdirt – and hitting the #1 spot on the SSRN charts within days of being uploaded. While not the first person to make the claim that content producers repeatedly invoke the impending doom of their respective industries,1 the essay is notable because of who the writer is.

Lemley is “widely recognized as a preeminent scholar of intellectual property law,” a professor at Stanford Law School, and a founder and partner of Durie Tangri LLP. He has written over 100 published articles, six books (including two treatises), and is one of the 50 most cited authors in law journals. In other words, when Lemley speaks, people listen.

A casual Google search shows that nearly all the responses to Lemley’s article are positive – a reinforcement of what the writers and commentators already knew. The moral of the story seems to be that it’s time to stop listening to the content industries, cause we’ve heard this all before. That’s not, however, a very satisfying response for those most affected by disruptive technologies. Instead of nodding in agreement and moving on to the next hot topic of the day, let’s examine Lemley’s claims and conclusion in more depth and see what, if any, lessons we can learn from the examples he provides.

Chicken Little, meet the Boy Who Cried Wolf

The abstract reads:

Content owners claim they are doomed, because in the digital environment, they can’t compete with free. But they’ve made such claims before. This short essay traces the history of content owner claims that new technologies will destroy their business over the last two centuries. None have come to pass. It is likely the sky isn’t falling this time either. I suggest some ways content may continue to thrive in the digital environment.

The paper, at 15 pages, is brief, and the first ten of those pages are devoted to recounting those content owner claims. Unfortunately, within the first few sentences, Lemley writes, “The music industry tells us, as their revenues decline because of file sharing… No one is going to create new music anymore.” I’ve seen this canard repeated time after time. Obviously, as copyright is a comparatively recent development in human history, it is simply not true that people will cease to create without it. But is anyone actually claiming they will? All mentions I’ve seen of this statement have been in the context of setting it up only to knock it down – the classic straw man argument. If anyone can point out where a content industry has seriously made this claim, I’d be happy to see it.

Straw man aside, the tale of doomsday prophecies from content industries of yore concludes with Lemley saying “if you claim that the sky is falling whenever a new technology threatens an existing business model, the rest of the world can be forgiven for not believing you when you claim that this time around it’s going to be different than all the other times.” Or, as Mike Masnick more bluntly put it: “How many times will content industries claim the sky is falling before people stop believing them?” But is this the best lesson we can take away from these stories?

The sky is not literally falling every time it rains, but that doesn’t mean you won’t want an umbrella. Technology is disruptive to established industries; new media do displace old methods of communication. Saying “let’s not listen” whenever this happens ignores the fact that industries and creators bear the brunt of the disruption while struggling to adapt. Lemley tells how the spread of radio threatened the music industry at first, but soon became an integral part of that same industry. As noted by economist Stan Liebowitz, though, soon is a relative term – according to Liebowitz, it took nearly a quarter century for record sales to recover from the introduction of radio.2 Today, we are in the midst of another lost decade for the music industry – with similar disruptions occurring in other content industries like newspapers, books, movies, and television.

Rather than being labelled as chickens little, it would be more helpful to those affected by these disruptions to see how past generations have responded to previous disruptions.  We should recognize that – like the rain – technological disruptions are a normal occurrence and figure out the best way to weather the storm.

Learning From the Past

Lemley’s collection of anecdotes may be a “breezy read” and “enjoyable,” but taking away universal lessons from these stories is difficult since he conflates all content industries and all technological disruptions, as though each new innovation is just another chapter in the story of a monolithic content industry. In many cases, the only similarity between the separate industries discussed in the article is that the content is protected by copyright law. The publishing industry is far different than the television industry; filmmakers live in a different world from painters; even a term like the “music industry” conflates disparate groups, lumping together everyone from record labels, music publishers, live venues, and more.

So, for instance, it’s difficult to compare the effect of the VCR on the television industry with the effect of photography on painters. We are dealing with two different industries facing two different technological disruptions. It may help to categorize the different types of new technologies based on their effect. Perhaps something like this:

  • Technological reproduction – Before the printing press, books had to be copied by hand. And before photography, portraits had to be painted by an artist. The last hundred years especially has seen the introduction of technology that allows reproduction of content in a way that didn’t exist before.
  • Experience-shifting technology – Some new technologies changed the way people interacted with content. The gramophone allowed music to be archived where before it had to be performed. The VCR allowed “time-shifting” of television broadcasts. The shifts can also be between who we experience content with, as when movie attendance experienced a drop after the introduction of television.
  • Improved reproduction – Many of the later examples do not involve a disruption so much as an improvement. Cassette tapes are far easier for someone to copy than vinyl records. CDs were even easier, with the added bonus that you didn’t have to worry about quality loss. Copying mp3 files is almost effortless.

Lemley argues that shutting or locking down new technologies doesn’t work, and I’m inclined to agree. I’ll save that discussion for a future post. For now though, let’s focus on the broader picture. Talking about how “content industries” have cried foul over “new technologies” is overly simplistic and sheds little light on today’s challenges.

Instead, once we start categorizing disruptive innovations, we can begin seeing what responses work in each situation and what responses don’t. Technological reproduction where none existed before is monumental – the introduction of copyright law itself followed closely behind the invention of the printing press. Experience-shifting technologies open the door to new business models and innovations in copyright law like compulsory licensing schemes for phonographs and cable broadcasts. Technology that merely improves reproduction may call for a different response. After all, whether you’re listening to the Beatles on vinyl or on a CD, you’re still engaged in the same conduct. It makes little sense in these situations to scrap an entire business model and more sense to look at ways to better manage the inevitable increase in piracy.

My purpose here is not to “find the answers” to each individual content industry’s current struggle. My point is to be more than just dismissive when they point out that they are struggling. Rather than using past disruptions to craft a chicken little narrative, we should use them to create a framework for better understanding what role copyright law can and should play in today’s world.

The Other Side of the Coin

One would think that those calling out the content industries for their chicken little rhetoric would refrain from doing the same. Sadly, no. Legislation supported by content industries is routinely decried as an attack on consumers. Copyright laws either inevitably lead to censorship or destruction of culture. Free speech, privacy, and due process are always in danger when the industry is concerned with infringement – critics use terms like “Orwellian” a lot. We hear about how our jails will fill up with innocent children and others any time the “MAFIAA” calls for more effective enforcement. Any attempt at copyright education is propaganda; anyone who joins in support is a shill.

This is just a sampling of the rhetoric. I’m sure if one would examine the talk surrounding each new bit of legislation, court case, or technology as Lemley has done with technological disruptions, one would easily find exaggeration and hyperbole on the opposite side of the copyright aisle that parallels that of the content industries. How long before their cries of “the sky is falling” begin to fall on deaf ears?

Footnotes

  1. See, e.g., here, here (2002), here (2003), and here (2006). []
  2. Stan Liebowitz, The Elusive Symbiosis: The Impact of Radio on the Record Industry (March 2004). []

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August 09, 2010 · · Comments Off

Why Copyright?

Let’s get things started with an overview of copyright. Most people start off these kinds of discussions with the what of copyright – what is protected, what is the length of protection, etc. I’m more interested in the why. Learning that Title 17 of the US Code governs copyright, which is authorized by Section 8 of Article 1 of the US Constitution doesn’t give much insight into analyzing the hot-button issues we hear about every day.

Of course, there’s a lot of passionate debate over the nature and justification of copyright. What follows is my attempt to present what many scholars view as the prevailing framework for US copyright law.1

The Metaphysics of the law2

Before we get into copyright, let’s think for a moment about property in general.3 We grasp the basics of property easily. If you buy something, it becomes yours. You can use it, abuse it, sell it, or give it away. So why is it that when you buy a DVD, the FBI warns you that you can’t copy it?

The problem is that copyright protects something abstract, intangible. It’s a struggle to imagine ideas like rights or ownership over something you can’t touch.4 But the idea of property itself is abstract and intangible. All property is conceptual: your house, your car, your things. If you looked at any of this stuff under a microscope, you could discover their physical properties, but there’s nothing inherent in their physical nature that expresses the idea that they belong to you.

Property is best described as a relationship between people, things, and the law. These relationships create recognition of certain rights and interests between people and things. If you buy a bicycle, you have an ownership and a possessory interest in it. If a thief steals your bike, the law recognizes that you are the owner and allows you to recover it through the police or the courts. Nowadays, these relationships can be very complex, with different people holding different rights and interests in the same piece of property.5

Once we establish that property is conceptual, it’s just as easy to apply it to intangibles. You can buy and sell stocks and bonds. Banks buy and sell mortgages, and many companies sell debts to collection agencies. You can see these things represented on paper or a computer screen, but they don’t materially exist. Now, think of two different albums on CD. The CD’s themselves are physically almost identical (minus whatever is printed on them), yet each will give you a completely different experience when you press play. Imagine instead that you only have one album, but you have it on CD and on a vinyl record. If you press play on both, you’ll hear pretty much the same music, yet the two items couldn’t be more different physically. There is something that exists independently of the media.

Going way back to 1791, a German philosopher by the name of Johann Gottlieb Fichte said

We can distinguish two aspects of a book: its physical aspect, the printed paper, and its ideational aspect. The ownership of the former passes indisputably to the buyer upon purchase of the book. He can read it and lend it as often as he likes; he can re-sell it to whomever he wishes, and for as much or as little as he wants or can get; he can tear it to pieces or burn it — and who could quarrel with him? But since people seldom buy a book for such purposes, and most seldom of all simply to display its paper and printing and cover the walls with it, they must assume that when they buy a book they are also acquiring a right to its ideational aspect. This ideational aspect is in turn divisible into a material aspect, the content of the book, the ideas it presents; and the form of these ideas, the way in which, the combination in which, the phrasing and wording in which they are presented.6

In other words, any creative work consists of the tangible medium, the intangible ideas represented in the medium, and the intangible form of those ideas – or expression – represented in the medium. By establishing the existence of intangibles in a creative work, we can next look at the relationships that arise between people and those intangibles, as well as any rights and interests that may be recognized.

If you want two chairs, you have to buy two chairs – it’s not possible (yet) to create copies of physical items. But expression is intangible and abstract. It can be copied infinitely, either by hand or through technology. In a competitive, free-market economy, the result is that the price of any expressive work will ultimately be driven down to the marginal cost of the work – how much it costs to reproduce and distribute. This is great for consumers in the short term – free movies and music for everyone! But it’s troubling for those who wish to create new expressive works. Why would you spend the time and money creating new works if you have to compete on the same playing field as those who don’t have those costs?

This serves as the basis for the economic justification for copyright. By legally recognizing a temporary monopoly on the reproduction and distribution of expressive works, we allow creators the opportunity to recoup the costs of creating new works.

Like many areas of law, copyright did not begin as a highly principled approach to promoting knowledge and culture. However, the economic justification has long been established. In 1841, British historian and politician Thomas Babington Macaulay described it in a speech to the House of Commons -

The advantages arising from a system of copyright are obvious. It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated; and the least objectionable way of remunerating them is by means of copyright. You cannot depend for literary instruction and amusement on the leisure of men occupied in the pursuits of active life. Such men may occasionally produce compositions of great merit. But you must not look to such men for works which require deep meditation and long research. Works of that kind you can expect only from persons who make literature the business of their lives. Of these persons few will be found among the rich and the noble. The rich and the noble are not impelled to intellectual exertion by necessity. They may be impelled to intellectual exertion by the desire of distinguishing themselves, or by the desire of benefiting the community. But it is generally within these walls that they seek to signalise themselves and to serve their fellow-creatures. Both their ambition and their public spirit, in a country like this, naturally take a political turn. It is then on men whose profession is literature, and whose private means are not ample, that you must rely for a supply of valuable books. Such men must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright.

The Founding Fathers embraced this mindset decades earlier, and the result was the Copyright Clause of the US Constitution. It gives Congress the power to grant copyright – but in a departure from other grants of power, it includes a purpose: the promotion of the progress of the useful arts and sciences. The Founders recognized that knowledge and culture are hallmarks of a democratic society, as important as commerce, justice, or the common defense. We promote these through many ways: public schools, libraries, government grants. Copyright is an additional way to promote it. It gives incentives to those outside the wealthy and leisure classes to pursue and perfect their craft, which in turn, advances knowledge and culture for all of us.

Conclusion

Describing a model for the basis of copyright is only the first step. As with any model, we have to ask “is it working?” How can we tell if it’s working? What specific laws do we implement to make it work?

The challenge with copyright is balancing its goal of promoting the progress of the arts for the general public with the fact that it is, after all, an anticompetitive monopoly. We want to ensure continued dissemination of new works while at the same time protecting creators of new works.

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