On Thursday, the Digital Citizens Alliance released a report revealing how profitable copyright infringement can be for cyberlockers. The study by NetNames, Behind the Cyberlocker Door, found that the top fifteen direct download cyberlockers and top fifteen streaming cyberlockers rake in over $96 million a year. This represents absurdly high profit margins — 63.4% for direct download and 87.6% for streaming — due in no small part to the exploitation of infringing content. The study estimates that “78.6 percent of files on direct download cyberlockers and 83.7 percent of files on streaming cyberlockers” infringe.

One interesting question that emerges from the report is whether one can draw a distinction between cyberlockers and legitimate online storage providers. The NetNames report provides a useful guide.

Copyright implicates tricky questions when it comes to services that enable copying. Copying is no doubt a useful function: think of photocopiers, VCRs, or even your hard drive, which copies as a matter of function. Yet copying is also one of the exclusive rights of a copyright owner; unchecked copying of copyrighted works can undermine the system of property rights that has resulted in the wealth of cultural prosperity we see today.

Sony Sheep and Grokster Goats

The Supreme Court first broached the question of copyright and copying devices in Sony Corp v Universal City Studios, concerning an infringement case brought against the manufacturer of one of the earliest consumer home video recorders. The district court had found that Sony could not be directly liable for user infringement; it does not “loan or otherwise provide the copyrighted work”, and “The copying occurs not in a store operated and managed by the defendants but rather in a person’s home, a location in which individual privacy is constitutionally protected and over which defendants have no control. Furthermore, defendants’ acts of selling the Betamax and blank tapes to consumers can easily lead to noninfringing uses.” On appeal, the Supreme Court looked at indirect liability. Specifically, it asked when the provision of copying devices gives rise to liability. It answered this question by saying that the mere “sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes.”

A touch over thirty years later, the Court was asked to look at the liability of companies that provided software that allowed peer-to-peer trading of computer files in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. Unlike the manufacturer defendant in Sony, the defendants in Grokster provided the ongoing infrastructure needed for users of their software to distribute files of all types. In addition, there was clear evidence that defendants “clearly voiced the objective that recipients use [their software] to download copyrighted works, and … took active steps to encourage infringement.”

The Supreme Court was asked to apply the Sony test in Grokster, a rule that “barred secondary liability based on presuming or imputing intent to cause infringement solely from the design or distribution of a product capable of substantial lawful use, which the distributor knows is in fact used for infringement.” However, the Court declined. It said:

Sony‘s rule limits imputing culpable intent as a matter of law from the characteristics or uses of a distributed product. But nothing in Sony requires courts to ignore evidence of intent if there is such evidence, and the case was never meant to foreclose rules of fault-based liability derived from the common law.

The Court went on to describe how one could be liable for inducing infringement, holding, “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.”

After Grokster, it was clear that there was a line between legitimate services that might be capable of infringement and illegitimate services that were intended to facilitate infringement, but it was less clear where that line would fall in every case — a question of increasing relevance given the explosion of online services that come into contact with copyrighted works. Columbia Law professor Jane Ginsburg refers to this inquiry as “separating the Sony sheep from the Grokster goats.” 1Jane Ginsburg, Separating the Sony Sheep from the Grokster Goats, 50 Arizona Law Review 577 (2008). She observes that many cloud services are “dual purpose.”

That is, they are not inherently pernicious; they can in fact be put to perfectly lawful and socially desirable uses. If the technology itself is at least in theory neutral, does this pose an insoluble quandary: either enforce copyright at the expense of technological evolution, or promote technology at the cost of copyright? Or can we have it both ways, fostering both authorship and technological innovation? To reach that happy medium, we need to ensure the “neutrality” of the technology as applied in a given business setting. If the entrepreneur is not neutral, and is in fact building its business at the expense of authors and right owners, it should not matter how anodyne in the abstract the technology may be.

Reaching this “happy medium” is particularly challenging when it comes to cloud storage services, since their essential purpose is to serve as repositories of files for third parties. The ability to remotely store and share files is valuable. But it can also allow for a damaging level of copyright infringement — a prospect which, given the profit margins mentioned above, serves as a strong temptation to those willing to risk getting away with it.

Cyberlockers vs Cloud Storage

Prior to the NetNames report, a few observers have discussed ways to distinguish between “legitimate” services — like Dropbox — and services which tend to facilitate infringement — like Megaupload, which was indicted by a grand jury in 2012 for “massive worldwide online piracy.” In Hotfile, Megaupload, and the Future of Copyright on the Internet: What can Cyberlockers Tell Us About DMCA Reform?, Ross Drath highlights four features “that copyright owners (and governments) typically find objectionable” when it comes to remote file storage services: “(1) public (as opposed to password-protected) sharing capability; (2) direct linking; (3) lack of search function; and (4) rewards programs.” 212 J. Marshall Rev. Intelli. Prop. L. 205, 212 (2012).

Carrie Bodner describes a taxonomy of cyberlockers in Master Copies, Unique Copies and Volitional Conduct: Cartoon Network’s Implications for the Liability of Cyber Lockers. 336 Columbia Journal of Law & the Arts 491, 498-504 (2013). On one end of the spectrum are services like Dropbox, SkyDrive, and Amazon Cloud. These services are marketed “primarily as a backup service, similar to an external hard drive,” and thus such services tend to be employed for productive or business uses rather than entertainment. Some services are more geared toward entertainment uses — for example, Amazon Cloud Player and Google Music, both of which provide storage specifically for music files — but Bodner notes that some have nevertheless “avoided an illicit reputation,” citing close ties to reputable businesses and legitimate online music stores. 4Bodner does not mention this in her article, but most of the major services also have explicit agreements with major rightsholders governing features of their cloud storage services that more directly impact copyrighted works. See, e.g., Amazon’s music cloud is licensed by all top labels. On the other end of the spectrum are “one-click file hosts” such as “Rapidshare, Hotfile, Megaupload, MediaFire and 4Shared.” The primary difference is that these services lack any restrictions on who can download files that have been uploaded. Other distinguishing characteristics include the offering of monetary incentives to users who upload content that is downloaded frequently and premium accounts that remove restrictions on download speeds and waiting periods.

The distinction drawn in the NetNames report largely tracks that made by Bodner and Drath. According to the report, cyberlockers (as opposed to “legitimate cloud storage services”) generally place no limits on who can download or stream a file and frequently offer “affiliate programs that reward users when their uploaded content is accessed.” In addition, cyberlockers often delete files that haven’t been accessed after a period of time and don’t offer synchronization with a user’s devices, indicating that their purpose is not personal storage and access. Finally, cyberlockers are lax when it comes to enforcing repeat infringer policies.

In short: for cyberlockers, the client is the downloader. For legitimate cloud storage services, the client is the uploader. Yes, both allow users to store files remotely, but the similarities end there. For cyberlockers, the goal of spreading files as widely as possible permeates every aspect of the service.

That’s not to say that any of the characteristics described above, by itself or taken together, necessarily does or should render any given service liable for copyright infringement. In fact, Behind the Cyberlocker Door calls on credit card processors to take steps to prevent cyberlockers from profiting off the work of others. Outside of the report, voluntary efforts to mitigate piracy from all the various participants in the online ecosystem continue. These efforts are aided by a clear distinction between cyberlockers and legitimate cloud storage services.

References   [ + ]

1. Jane Ginsburg, Separating the Sony Sheep from the Grokster Goats, 50 Arizona Law Review 577 (2008).
2. 12 J. Marshall Rev. Intelli. Prop. L. 205, 212 (2012).
3. 36 Columbia Journal of Law & the Arts 491, 498-504 (2013).
4. Bodner does not mention this in her article, but most of the major services also have explicit agreements with major rightsholders governing features of their cloud storage services that more directly impact copyrighted works. See, e.g., Amazon’s music cloud is licensed by all top labels.

The Cult of Jeff Koons by Jed Perl (via CultureCrash) — Jeff Koons is known in the copyright world as a defendant in at least two major decisions involving appropriation art (Rogers v Koons and Blanch v Koons). Here, the New York Review of Books runs a gutting critique of his latest exhibition, a retrospective of his work at the Whitney Museum of American Art in New York City. “Koons, simply put, is Duchamp with lots of ostentatious trimmings. This is not a pretty sight. Duchamp’s readymades have an almost monastic austerity. Koons has bulked them up, transforming the ultimate insider’s art into the art that will not shut up.”

U2 and the Irony of “Permission Rage” — “All those folks busy downloading all that music for all those years that just seemed to be out there for the taking: do you think they were getting anyone’s permission? All the music sitting there on all the torrent sites, waiting to be taken, 24 hours a day—how much of that is up there with anyone’s permission? But oh my goodness, dare to insert 11 U2 songs into my iCloud storage area and suddenly I am Lord High Minister of Permission? Ironic, ain’t it?”

Using Search Results to Fight Piracy — Smith, Sivan, and Telang released a new study this week that examined how the prominence of pirate and legal sites in search results impacts consumers’ choices for infringing versus legal content. Their “results suggest that reducing the prominence of pirate links in search results can reduce copyright infringement.”

Common Ground: How Intellectual Property Unites Creators and Innovators — And if you’re in the DC area in October, consider attending this CPIP conference, with a keynote by Richard Epstein and two days of fascinating panel discussions.

In 1985, the Supreme Court said, “The fair use doctrine is not a license for corporate theft, empowering a court to ignore a copyright whenever it determines the underlying work contains material of possible public importance.” 1Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 US 539, 558, quoting Iowa State University Research Foundation, Inc. v. American Broadcasting Cos., Inc., 621 F. 2d 57, 61 (1980). Last week, a court held to the contrary.

In a September 9th order, the Southern District Court of New York granted summary judgment in favor of TVEyes, a media monitoring company, on the issue of fair use. Fox News Network had filed a lawsuit against TVEyes for recording its station continuously and creating a searchable database out of its content and the content of 1,400 other television and radio stations.

Like other media monitoring services, TVEyes allows subscribers to track news coverage of particular events or issues. The service begins at $500 month; in 2013 the company had revenues of $8 million, with over 2,200 subscribers. Fox News Network owns and operates Fox News Channel and Fox Business Network, delivering twenty-four hour news and business coverage. It also actively licenses video clips to third parties. Fox News asked the court to order TVEyes to stop using Fox content without permission for its service, and both parties moved for summary judgment. In last week’s order, the court only addressed the copying and distribution of Fox News clips to TVEyes subscribers — the service also allows subscribers to “save, archive, download, email, and share clips,” features that the court needs more evidence to rule on.

But in finding this wholesale, commercial copying to be fair use, the decision stands as an example of just how dramatically — and fundamentally — the fair use doctrine has been transformed in just a few decades. What was once a bounded exception allowing reasonable use of copyrighted works when necessary for specific purposes has become a broad and sweeping mechanism that allows courts to seemingly ignore copyright at their own discretion.

Transformative Use

The modern conception of “fair use” — an independent, affirmative defense against copyright infringement that takes into account a number of factors such as the purpose of the use — does not seem to have consistently established itself in US courts until the mid-1950s. This was also the same time that the Copyright Office released a study on fair use as part of the revision process that would eventually result in the 1976 Copyright Act. The 76 Act marked the first statutory reference to fair use. Section 107 of the Act reads:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation 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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

But perhaps just as important to the development of the fair use doctrine is a 1990 law review article by federal judge Pierre Leval, Toward a Fair Use Standard. The prescriptive essay argued that the “heart” of the fair use inquiry was the first factor, the purpose and character of the use, and that the answer to the inquiry lied in determining whether the challenged use is “transformative.” Leval wrote:

The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story’s words, it would merely “supersede the objects” of the original. If, on the other hand, the secondary use adds value to the original–if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings– this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.

Four years later, the Supreme Court referenced Leval’s “transformative” framing, and lower courts have followed its lead since. 2Campbell v. Acuff-Rose Music, Inc., 510 US 569, 579 (1994). But regardless of how descriptively accurate this framing might be, the TVEyes decision demonstrates its shortcomings as an actual standard.

For one, it is ill-defined, an incoherence revealed by the TVEyes court at the outset. The court begins its discussion by stating that “Transformation almost always occurs when the new work ‘does something more than repackage or republish the original copyrighted work.'” But that sentence is immediately followed by this one: “A use ‘can be transformative in function or purpose without altering or actually adding to the original work.'” Perhaps these two seemingly contradictory statements — both from Second Circuit decisions from the past year — can be reconciled, but the court spends no time doing so. Instead, it offers the following conclusory analysis:

Unlike the indexing and excerpting of news articles, where the printed word conveys the same meaning no matter the forum or medium in which it is viewed, the service provided by TVEyes is transformative. By indexing and excerpting all content appearing in television, every hour of the day and every day of the week, month, and year, TVEyes provides a service that no content provider provides. Subscribers to TVEyes gain access, not only to the news that is presented, but to the presentations themselves, as colored, processed, and criticized by commentators, and as abridged, modified, and enlarged by news broadcasts.

In other words, “the use is transformative because TVEyes copied the entire work verbatim, and don’t worry if that is indistinguishable from the definition for infringement.” The court does little to shed more light on its reasoning when it later endorses TVEyes’ assertion that “monitoring television is simply not the same as watching it.” Along the same lines, I suppose you could argue that it’s fair use to copy reality television shows so long as you watch them ironically.

Fortunately, less than a day ago, the Seventh Circuit explicitly rejected the transformative use test, noting that “To say a new use transforms a work is precisely to say that it is derivative and thus, one might suppose, protected under §106(2).” 3Kienitz v. Sconnie Nation, No. 13-3004 (7th Cir. 2014). The court characterized the discussion of transformative use in Campbell as a “suggestion.” Instead, said the court, “We think it best to stick with the statutory list…”


Another dramatic turn in fair use doctrine is seen in the treatment of “commerciality” in the first factor. Traditionally, courts have given wider berth to scholarly and non-profit users of copyrighted works. In its 1984 Betamax decision, the Supreme Court observed that every commercial use of copyrighted material is presumptively unfair. However, a decade later, the Court would retreat from that holding and remove the presumption. In Campbell, the Court explained that, “If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities ‘are generally conducted for profit in this country.'” Instead, the Court adopted a sliding scale approach, where commerciality should be treated as merely “a fact to be ‘weighed along with other[s] in fair use decisions.'” Nowadays, commerciality has little, if any, role in the fair use doctrine. 4See Matthew Sag, Predicting Fair Use, 72 Ohio State Law Journal 47, 77 (2012) (finding commercial use as a factor insignificant in a study of 280 fair use decisions from 1978-2011); Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978–2005, 156 U. PA. L. Rev. 549 (2008) (finding commerciality has no significant impact on case outcomes in study of 306 fair use decisions from 1978-2005).

TVEyes continues this trend. The court does note that “Clearly, TVEyes is a for-profit company, and enjoys revenue and income from the service it provides.” But it follows this with a recitation of the above language from Campbell without a word more.

Amount and Substantiality Used

The implementation of the third fair use factor, which looks at “the amount and substantiality of the portion used in relation to the copyrighted work as a whole” has also noticeably shifted in recent decades. In fact, until Betamax, it was virtually axiomatic that copying an entire work could never be fair use. 5See Williams & Wilkins Company v. United States, 487 F. 2d 1345, 1366 (Ct of Claims 1973); Public Affairs Associates, Inc. v. Rickover, 284 F.2d 262, 272 (DC Cir. 1960); Benny v. Loew’s Inc., 239 F.2d 532, 536 (9th Cir.1956); Leon v. Pacific Telephone & Telegraph Co., 91 F.2d 484, 486 (9th Cir.1937) (“Counsel have not disclosed a single authority, nor have we been able to find one, which lends any support to the proposition that wholesale copying and publication of copyrighted material can ever be fair use.”). But Betamax held, in part, that home taping of broadcast television by VCR owners was a fair use, despite the fact that exact duplicates of complete works were being made. This holding drew a sharp rebuke from the four Justices on the dissent, who said, “Fair use is intended to allow individuals engaged in productive uses to copy small portions of original works that will facilitate their own productive endeavors. Time-shifting bears no resemblance to such activity, and the complete duplication that it involves might alone be sufficient to preclude a finding of fair use. It is little wonder that the Court has chosen to ignore this statutory factor.”

Since then, the floodgates have been opened. Last year, for example, the Southern District Court of New York held that the wholesale copying of twenty million books (by a for-profit corporation) was a fair use. 6Authors Guild, Inc. v. Google Inc., 954 F. Supp. 2d 282 (SDNY 2013). Though, to be fair, the court did note that the third factor weighed “slightly against” a finding of fair use.

In TVEyes, the departure from third factor tradition is even more striking. Not only is TVEyes copying entire works, it’s copying entire stations. There is nothing Fox News airs that TVEyes doesn’t copy. Yet, not only does the court not consider this a negative that might otherwise be outweighed by the other three factors, it suggests that this factor favors TVEyes. Said the court, “One cannot say that TVEyes copies more than is necessary to its transformative purpose for, if TVEyes were to copy less, the reliability of its all-inclusive service would be compromised.” Or, you can copy everything if your purpose is to copy everything.

Public Benefit

The final area of fair use transformation is seen in the court’s consideration of the fourth factor, “the effect of the use upon the potential market for or value of the copyrighted work.” The court here says, “The fourth factor requires a balance between the ‘benefit the public will derive if the use is permitted, and the personal gain the copyright owner will receive if the use is denied,'” (emphasis added) citing to the Second Circuit’s 2006 decision in Bill Graham Archives v. Dorling Kindersley L’td. Since that language appears nowhere in the statute, it’s worth taking a closer look at where it came from. Bill Graham itself cites an earlier Second Circuit decision: MCA, Inc. v. Wilson. There, the court said of the fourth factor, “where a claim of fair use is made, a balance must sometimes be struck between the benefit the public will derive if the use is permitted and the personal gain the copyright owner will receive if the use is denied.” (Emphasis added). So already we’ve made the jump from a balance that “must sometimes be struck” to an absolute requirement. But if we look even closer, we see that the cases MCA cites to support its proposition are not discussing the fourth fair use factor specifically but fair use in general. This makes sense, since fair use is a doctrine where courts strike a balance between public and private interests. But somewhere along the lines, the Second Circuit duplicated this principle into the fourth fair use factor.

Leaving the doctrinal history aside, TVEye‘s discussion of the public benefit leaves much to be desired (never mind the fact that the service is, as noted by the court, not available to the general public). It essentially boils down to this: TVEye offers a useful service. Of course, most businesses offer useful services; otherwise, they wouldn’t remain in business long. And the operation of business does benefit the public in the broadest sense. But this definition of the public benefit if too wide to be of much use here — and, more importantly, it doesn’t explain why a for-profit business that provides a service involving the regular copying of copyrighted works should be privileged under the law from licensing those works. Maybe I’m old-fashioned, but I don’t think asking a business to pay its suppliers is unfair.

And the Supreme Court would agree, at least thirty years ago. After its line about fair use and corporate theft, quoted at the beginning of this article, the Court in Harper & Row continued:

In our haste to disseminate news, it should not be forgotten that the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.


It is fundamentally at odds with the scheme of copyright to accord lesser rights in those works that are of greatest importance to the public. Such a notion ignores the major premise of copyright and injures author and public alike. “[T]o propose that fair use be imposed whenever the `social value [of dissemination] . . . outweighs any detriment to the artist,’ would be to propose depriving copyright owners of their right in the property precisely when they encounter those users who could afford to pay for it.”

References   [ + ]

1. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 US 539, 558, quoting Iowa State University Research Foundation, Inc. v. American Broadcasting Cos., Inc., 621 F. 2d 57, 61 (1980).
2. Campbell v. Acuff-Rose Music, Inc., 510 US 569, 579 (1994).
3. Kienitz v. Sconnie Nation, No. 13-3004 (7th Cir. 2014). The court characterized the discussion of transformative use in Campbell as a “suggestion.”
4. See Matthew Sag, Predicting Fair Use, 72 Ohio State Law Journal 47, 77 (2012) (finding commercial use as a factor insignificant in a study of 280 fair use decisions from 1978-2011); Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978–2005, 156 U. PA. L. Rev. 549 (2008) (finding commerciality has no significant impact on case outcomes in study of 306 fair use decisions from 1978-2005).
5. See Williams & Wilkins Company v. United States, 487 F. 2d 1345, 1366 (Ct of Claims 1973); Public Affairs Associates, Inc. v. Rickover, 284 F.2d 262, 272 (DC Cir. 1960); Benny v. Loew’s Inc., 239 F.2d 532, 536 (9th Cir.1956); Leon v. Pacific Telephone & Telegraph Co., 91 F.2d 484, 486 (9th Cir.1937) (“Counsel have not disclosed a single authority, nor have we been able to find one, which lends any support to the proposition that wholesale copying and publication of copyrighted material can ever be fair use.”).
6. Authors Guild, Inc. v. Google Inc., 954 F. Supp. 2d 282 (SDNY 2013). Though, to be fair, the court did note that the third factor weighed “slightly against” a finding of fair use.

Monkey Selfies & Animal Artists — An interesting take on the frequently discussed monkey selfie from a philosophical perspective.

Yes, Internet TV is near, but there’s too much money in cable to go there — “‘What is the appropriate way to market your product? Is it good to go directly to the consumer? Is it appropriate to be streaming? What is the future, how do we grow these businesses?’ Moonves asked. ‘I don’t think there is a media guy you’ve got up here that isn’t involved every week’ in those discussions.”

The concept of parody and the legitimate interests of parodists and copyright holders — Kluwer Copyright Blog examines a recent CJEU decision concerning parody.

D.C. door swinging Google’s way — It may soon be the case that the best way to get into government work is to start at Google. And vice versa.

Google Is Target of European Backlash on U.S. Tech Dominance — “Accusations are mounting that Google unfairly exploits its dominant position in search, giving a competitive edge to its growing stable of businesses, like YouTube videos, its Google Play app store and its news alerts.”

LouFest 2014: Cake’s John McCrea Talks Follow-Up To ‘Showroom of Compassion,’ Disdain For Tech Companies, State Of Music Industry, And More (via Trichordist) — McCrea: “And there are people, mostly in the tech industry, who say, ‘Oh, music shouldn’t be a job, you should have a day job and then play music on the side.’ But most day jobs don’t allow you to go on tour. So that’s why friends of ours have quit because you can’t just take off from your day job and go on tour for a month. There is a choice. So I see it as rather disingenuous of an industry that is actually monetizing our work and making really good money off it but not even thinking to share that money with artists to tell us that we can’t have a professional career. It is kind of selfish and sh*tty.”

The Classical Cloud (via CultureCrash) — “If I were a music-obsessed teen-ager today, I would probably be revelling in this endless feast, and dismissing the complaints of curmudgeons. No longer would I need to prop a tape recorder next to a transistor radio in order to capture Bruckner’s Sixth Symphony. The thousand-year history of classical music would be mine for the taking. But there is a downside to the glut of virtual product and the attendant plunge of prices. As the composer-arranger Van Dyke Parks has argued, in a recent essay for The Daily Beast, the streaming model favors superstars and conglomerates over workaday musicians and indie outfits. Its façade of infinite variety notwithstanding, it meshes neatly with the winner-take-all economy. And if it ever comes crashing down—streaming services have struggled to turn a profit—hoarding may return to fashion.”

On Scalia’s Aereo Dissent — Devlin Hartline takes a closer look at the dissent from this summer’s Aereo decision and finds it lacking, primarily because it applies case law concerning the reproduction right to a question involving the public performance right.

Book Excerpt: “Showrunners: The Art of Running a TV Show” — Very interesting look behind the scenes of television production. The book combines an informative look at the art of creating and running a TV show with interviews with showrunners from popular shows.

Google Accord With Harvard Tie Fails Judge’s Smell Test — Another cy pres settlement rejected because money from Google would be funded to institutions it enjoys close relationships with. For an in-depth look at this topic, be sure to read Google and Facebook’s new tactic in the tech wars.

More on How a Fox News Lawsuit Might Impact the Future of News — This week, summary judgment motions from parties became publicly available. The lawsuit pits Fox News against media monitoring service TVEyes, with the former alleging the latter runs a commercial service reproducing and distributing copyrighted content without permission. TVEyes is asserting a fair use defense.

Getty Images sues Microsoft over new online photo tool — “In effect, defendant has turned the entirety of the world’s online images into little more than a vast, unlicensed ‘clip art’ collection for the benefit of those website publishers who implement the Bing Image Widget, all without seeking permission from the owners of copyrights in those images,” said Getty.

Intellectual property and economic prosperity: Friends or foes? — Mark Schultz and Adam Mossoff: “Looking at the bigger picture, the broad sweep of economic history indicates that when it comes to economic prosperity and innovation, the U.S. and a few other nations have been doing something right for the past two centuries. The U.S. and Great Britain led the world into unprecedented prosperity and development through the Industrial Revolution, and the U.S. remains responsible for a vast amount of the innovation and creativity driving global prosperity – from the world’s most successful creative industries to smartphones to life-saving drugs.”

Behind the Best Pictures From Ferguson, With Getty Photographer Scott Olson — Olson, who was briefly arrested while covering the protests in Ferguson, Missouri, talks to New York Magazine about some of the popular and powerful photographs he has so far captured.

How Social Media Silences Debate — The New York Times points to a study that finds that people are less likely to express dissent on issues online than they are in person, contrary to what some had predicted.

Meet The Publisher Who Ditched Amazon And Is Selling More Books Than Ever — “In a turn of events that might offer some solace to other publishers, White recently announced that EDC has not only survived the leap into the unknown but just had its best year ever in net revenues. July sales were up 28% over the same month last year, and first-quarter revenues came in 20% higher than 2013’s numbers.”

How do writers find their voices? — Interesting preliminary results from a survey of writers. “One particularly startling finding has been that many writers are unable to ‘see’ the faces of their protagonists. The main character often registers as a blank – or, in one case, pixelated like a censored photograph.”

Last week, the US Copyright Office released the third edition of its Copyright Compendium. This edition was long awaited – the second edition was released in 1984. The Copyright Compendium details internal regulations concerning how the Copyright Office determines whether an application can be registered or not. In the US, works are protected by copyright the moment they are fixed in a tangible format, however, registration does provide certain benefits. It is required before a civil lawsuit for infringement is filed, for example.

Almost immediately, a number of news outlets zeroed in on one sentence within the 1,222 pages of the Compendium. “The Office will not register works produced by nature, animals, or plants,” says the Compendium. This includes, “A photograph taken by a monkey.” This led to what the internet does best: a viral story about nothing of particular consequence.

The Internet took this sentence as a reference to a certain monkey photograph. To recap: in 2011, a British photographer, David Slater, traveled to Indonesia to photograph black macaques. As he was there, one female macaque grabbed his camera and happened to trigger the camera, taking a series of photos. Upon retrieving the camera, Slater found that several of the photos were quite remarkable and published them, leading to a fair amount of fame.

One of the photos was uploaded to Wikipedia without Slater’s permission. Slater requested removal of the photo, but Wikipedia editors refused, coming to the factual conclusion that the macaque, not Slater, was the sole author of the photograph, thus placing it in the public domain.

The internet exploded with a wealth of discussion about monkey selfies and copyright. Some of it was even worth reading.

Just as things began to calm down, the US Copyright Office announced the third edition of the Copyright Compendium, containing its reference to a photograph taken by a monkey. This led to the most recent burst of news, some of it suggesting that “the government” has “settled” the issue.

Comprehending the Compendium

This is not so for a number of reasons.

First, even if the Copyright Compendium is making a definitive statement about the copyrightability (or not) of the monkey selfie, such a statement is not binding as law. The Compendium itself points this out, saying, “The policies and practices set forth in the Compendium do not in themselves have the force and effect of law and are not binding upon the Register of Copyrights or U.S. Copyright Office staff.”  It should also be noted that a decision by the Register of Copyrights to deny a copyright registration is not dispositive of the ultimate question of copyrightability. 1In fact, the Copyright Act expressly allows for a civil infringement suit to be brought in cases where registration is refused. 17 USC § 411(a).

Second, the statement that “The Office will not register works produced by … animals” is not novel nor surprising. But to say that this settles the question of this particular photograph, as many stories in the past week seem to suggest, begs the question that the monkey is the sole author of the photo.

Third, there is no reason why this question would be answered by US law. Copyrightability is most likely “determined by the law of the state with ‘the most significant relationship’ to the property and the parties”, 2Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F. 3d 82, 90 (2nd Cir. 1998). The court here was looking at the question of ownership, which is distinct from copyrightability, but I believe the analysis is the same. which would clearly not be the US under the facts here: Slater is British, and the photo was taken in Indonesia.

Authorship and photographs

But let’s pretend US law would apply.

The Copyright Act has little to say about authorship. 17 USC § 102(a) says that “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression”, and § 201 says, “Copyright in a work protected under this title vests initially in the author or authors of the work”, but these terms – “works of authorship” and “author” are not defined anywhere within the Act.

The Supreme Court, however, has defined “author,” and it has done so, coincidentally, in a decision establishing that photographs can be protected by copyright in the first instance. In Burrow-Giles Lithographic Co. v. Sarony, the Court said that an “author” is defined as “he to whom anything owes its origin; originator; maker.” 3111 US 53, 58 (1884). Over a century later, the Court would expand on this idea of the author as originator. “The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.” 4Feist Publications, Inc. v. Rural Telephone Service Co., 499 US 340, 345 (1991).

So authorship requires two things: absence of copying and a modicum of creativity.

With this in mind, there are at least three possibilities concerning the authorship of this photo: 1) The monkey is the sole author, 2) Slater is the sole author, or 3) the monkey and Slater are joint authors.

We can quickly dismiss the last possibility. Joint authorship requires, in part, that “each of the authors prepared his or her contribution with the knowledge and intention that it would be merged with the contributions of other authors as ‘inseparable or interdependent parts of a unitary whole.’” 5H.R.Rep. No. 1476, 94th Cong., 2d Sess. 120 (1976). The claim that a monkey could do such a thing is even more extraordinary than a claim that animals have knowledge or intent in the first place.

In the case of the monkey as author, the sole act involved is the pushing of the button that triggered the camera and resulted in the shot. This act is certainly necessary to the creation of the photo, but I am not convinced that it is sufficient to establish the monkey as an author. The monkey possesses no knowledge of the nature of the camera, nor knows that pushing the button would result in the creation of a photograph. While copyright law is silent on what, if any, knowledge or intent is required for authorship, surely there must be some level needed to distinguish what the monkey did here from any other force of nature or deus ex machina that could cause the creation of a photograph. The intuition is that there is something specifically human required under copyright law for authorship.

Slater, on the other hand, did everything but push the button. He chose the location, camera, film, and time of day. He set it all up with the intention to create photographs. He processed and developed the resulting photos. The photos would not exist but for these conscious acts.

Courts have found similar acts sufficient for copyrightability. The Southern District Court of New York said the following in 1968 when it was confronted with alleged copying of the Zapruder Film by Life Magazine:

Any photograph reflects “the personal influence of the author, and no two will be absolutely alike”, to use the words of Judge Learned Hand.

The Zapruder pictures in fact have many elements of creativity. Among other things, Zapruder selected the kind of camera (movies, not snapshots), the kind of film (color), the kind of lens (telephoto), the area in which the pictures were to be taken, the time they were to be taken, and (after testing several sites) the spot on which the camera would be operated. 6293 F. Supp. 130, 143 (SDNY 1968).

So it would seem to me under this definition that Slater would be considered the author of the photographs.

I do think it’s interesting to note that the division between those who think the monkey is the author of the photo and those who think Slater is the author generally tracks the division between copyright skeptics and copyright proponents. On the one hand are those who have devalued creativity to the point where they think all it involves is the push of a button – even a monkey can do it. So, in that case, why do we even need copyright protection?

On the other hand are those who still recognize some value in human authorship, who think that creativity does not just spring forth independent of human effort, who understand that human effort does not emerge spontaneously but responds to motivation, and that one of the most just and dignified forms of motivation comes in the form of property acquired through creative productive labor.

Updated August 28, 2014 to correct photographer’s name


References   [ + ]

1. In fact, the Copyright Act expressly allows for a civil infringement suit to be brought in cases where registration is refused. 17 USC § 411(a).
2. Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F. 3d 82, 90 (2nd Cir. 1998). The court here was looking at the question of ownership, which is distinct from copyrightability, but I believe the analysis is the same.
3. 111 US 53, 58 (1884).
4. Feist Publications, Inc. v. Rural Telephone Service Co., 499 US 340, 345 (1991).
5. H.R.Rep. No. 1476, 94th Cong., 2d Sess. 120 (1976).
6. 293 F. Supp. 130, 143 (SDNY 1968).

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