This weekend, Fifty Shades of Grey opens in theaters. The family-friendly tale of young love is based on a series of best-selling novels by British author E.L. James. Jonathan Band, a lobbyist for the Computer and Communications Industry Association (CCIA), yesterday posted an article about the film on CCIA’s Project Disco blog. In it, Band makes the extraordinary claim that “fair use is to blame—or thank—for the existence of the Fifty Shades franchise.”

Band correctly notes that James “originally wrote the trilogy as fan fiction of Stephanie Meyer’s popular Twilight series… At some point the popularity of the story must have convinced James of its potential commercial value, so she eliminated the vampires and the potentially infringing references to Twilight characters and plotline.” The series was indeed subsequently published, and indeed became commercially valuable. Band says, “Over 100 million copies of the novels have been sold, the first novel of the series has been on the New York Times bestseller list for 140 weeks, and the novels have been translated into 51 languages.” And soon, the film version will be playing in theaters worldwide.

So how, according to Band, does fair use play a role here? See if you can follow along. First, Band makes the erroneous legal assertion that “Fan fiction is a quintessential fair use.” There are no such categorical rules in fair use; it requires balancing multiple factors on a case-by-case basis. 117 USC § 107 provides in part that “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.” Second, he makes the questionable presumption that any fanfic author’s fair use of a copyrighted work automatically privileges any third-party site’s hosting and distribution of that work online, thus shielding the site that James first uploaded her story to. Finally, by sharing her fanfic stories on a site devoted to Twilight fan fiction, Band speculates that “James almost certainly would have received constructive comments from other fans of ‘Twific’ (Twilight fan fiction) recommending stylistic changes and plot twists, and urging her to continue writing.”

That is why fair use was essential to 50 Shades. Because who’s ever heard of a non-fanfic based writer community?

Idea Expression

But what’s really curious about the example that Band chooses is that it serves as a perfect example of how, contrary to persistent claims by copyright critics, copyright does not stifle creativity.

James was inspired by Stephanie Meyer’s work and admittedly copied it. Yet, with a bit of additional creativity, she was able to produce her own work that is clearly not infringing. This is thanks to the foundational—yet underappreciated—distinction between idea and expression in copyright law.

As the First Circuit has explained, “[I]n most contexts, there is no need to ‘build’ upon other people’s expression, for the ideas conveyed by that expression can be conveyed by someone else without copying the first author’s expression.” 2Lotus Development Corp. v. Borland Intern., Inc., 49 F. 3d 807, 818 (1st Circuit 1995). This distinction mediates between the need for a commons of ideas that all authors can draw upon freely and the exclusive rights that facilitate the commercialization of expressive works. 3See, e.g., Stan J. Liebowitz & Stephen Margolis, Seventeen Famous Economists Weigh in on Copyright: The Role of Theory, Empirics, and Network Effects [PDF], 18 Harvard Journal of Law & Technology 435, 453 (2004) (“Copyright protects expression, not ideas. Many economists have seen It’s a Wonderful Life, the Jimmy Stewart movie classic, and have read The Choice, Russell Roberts’ treatment of free trade. Although Roberts uses the plot device of a man who must return to earth to earn his angel’s wings, his book does not infringe the movie’s copyright. Though clearly an important creative element of the movie, the plot device is not protected by copyright… Artists do indeed draw on old themes, and they are allowed to do so. On the other hand, they are not allowed to incorporate details of copyrighted works. So the economists are correct in that copyright does raise artists’ costs—copyright forces artists to do some work themselves. However, since only specific expressions are protected, extensive parts of the culture are not, as it is sometimes claimed walled off from creative re-use.”). The fact that all works are built on existing works while the vast majority of works do not infringe on other works proves the centrality and effectiveness of the idea expression distinction.

Perhaps it is the case that the operation of the idea expression distinction is so fundamental to copyright that it becomes easy to ignore. As copyright law professor Jessica Litman has observed, “The concept that portions of works protected by copyright are owned by no one and are available for any member of the public to use is such a fundamental one that it receives attention only when something seems to have gone awry.” 4Jessica Litman, Public Domain, 39 Emory L.J. 965, 977 (1990). And perhaps the line between idea and expression, as Landes and Posner observe, is “often hazy.” 5William M. Landes and Richard A. Posner, An Economic Analysis of Copyright Law 18 J. Leg. Stud. 325, 349 (1989). Nevertheless, the vast majority of works both build upon existing works yet do not infringe upon existing works. This is due primarily to the idea expression distinction. 6Accord Jane Ginsburg, Authors and Users in Copyright, 45 J. Copyright Soc’y USA 1, 5 (1997) (“The fair use doctrine … and the idea/expression dichotomy … relieve most of the tension that exclusive rights for first authors may cause when confronted with the creative demands of second authors.”).

To Boldly Go Where No One Has Gone Before

A good example of the idea expression distinction in action can be found in the development of the original Star Trek television series. In The Making of Star Trek, Gene Roddenberry notes some of the ideas that influenced his concept, including, “A. E. van Vogt’s tales of the spaceship Space Beagle, Eric Frank Russell’s Marathon series of stories, and the film Forbidden Planet (1956).” 7Whitfield, Stephen PE; Roddenberry, Gene (1968). The Making of Star Trek. New York: Ballantine Books. ISBN 0-345-31554-5. OCLC 23859. When Roddenberry first pitched the show, he described it as a “’Wagon Train’ concept”, referring to the popular Western television show that ran from 1957-65. The captain of the Enterprise was described as “A space-age Captain Horatio[] Hornblower,” an allusion to the protagonist of a series of novels by author C. S. Forester.

Roddenberry created Star Trek by copying from these—and undoubtedly other—sources. Yet no one would consider such copying actionable under copyright law. Roddenberry, like all creators, copied, rearranged, and combined ideas from multiple sources. He didn’t, however, need to copy material expression from any existing works.

This is how the distinction between idea and expression, on a day-to-day basis, works. It mediates between protection of creative works and recognition that any creative work necessarily borrows from other creative works. It allows remedies against misappropriation while allowing creative appropriation. It gives creators and courts a rough guide for distinguishing between property and the public domain. 8Accord Warner Bros. v. American Broadcasting Companies, 720 F. 2d 231, 240 (2nd Cir. 1983) (“Though imprecise, [the idea-expression dichotomy] remains a useful analytic tool for separating infringing from non-infringing works”). The result is billions of dollars in economic activity creating and disseminating creative works with a trivial amount of litigation involving an idea/expression issue.

Progress of Science

Not only does copyright facilitate the dissemination and reuse of ideas, but its restraints on expression may also be beneficial to the public and culture. In Creating Around Copyright, Joseph Fishman writes that, as cognitive psychology, management studies, and art history has all shown, creativity requires restraints. Certain types of constraints, including those inherent in copyright law, are generative. Fishman talks specifically about the derivative work right, which is “is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” 917 USC § 101.

Without a derivative work right, we may get more homogenization. That’s damaging if the name of the game is creativity. The wider the range of undiscovered appropriate solutions to a problem, the more audiences may miss out when problem solvers become locked in to a single solution. And if audiences value a multiplicity of solutions separately from the content of those solutions, the cost of that lock-in becomes exacerbated. The expressive arts, where appropriateness is often extremely ill-defined and where we desire new works even though there’s nothing wrong with the old ones, check both of those boxes. To the extent that the derivative work right stimulates create-around effort, it furthers—not frustrates—copyright’s constitutional goal of “stimulat[ing] artistic creativity for the general public good.” Thus, although the current derivative works system constrains more broadly than a hypothetical blocking copyrights system, it may also constrain more wisely.

James’ original story, when it was still a “fanfic” of Twilight, would more than likely be considered a derivative work of that series. Yet James was able to “create around” Meyer’s original expressive elements to create a work that builds upon an existing work in a noninfringing way. And she did not need to rely on fair use to do so.

References   [ + ]

1. 17 USC § 107 provides in part that “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.”
2. Lotus Development Corp. v. Borland Intern., Inc., 49 F. 3d 807, 818 (1st Circuit 1995).
3. See, e.g., Stan J. Liebowitz & Stephen Margolis, Seventeen Famous Economists Weigh in on Copyright: The Role of Theory, Empirics, and Network Effects [PDF], 18 Harvard Journal of Law & Technology 435, 453 (2004) (“Copyright protects expression, not ideas. Many economists have seen It’s a Wonderful Life, the Jimmy Stewart movie classic, and have read The Choice, Russell Roberts’ treatment of free trade. Although Roberts uses the plot device of a man who must return to earth to earn his angel’s wings, his book does not infringe the movie’s copyright. Though clearly an important creative element of the movie, the plot device is not protected by copyright… Artists do indeed draw on old themes, and they are allowed to do so. On the other hand, they are not allowed to incorporate details of copyrighted works. So the economists are correct in that copyright does raise artists’ costs—copyright forces artists to do some work themselves. However, since only specific expressions are protected, extensive parts of the culture are not, as it is sometimes claimed walled off from creative re-use.”).
4. Jessica Litman, Public Domain, 39 Emory L.J. 965, 977 (1990).
5. William M. Landes and Richard A. Posner, An Economic Analysis of Copyright Law 18 J. Leg. Stud. 325, 349 (1989).
6. Accord Jane Ginsburg, Authors and Users in Copyright, 45 J. Copyright Soc’y USA 1, 5 (1997) (“The fair use doctrine … and the idea/expression dichotomy … relieve most of the tension that exclusive rights for first authors may cause when confronted with the creative demands of second authors.”).
7. Whitfield, Stephen PE; Roddenberry, Gene (1968). The Making of Star Trek. New York: Ballantine Books. ISBN 0-345-31554-5. OCLC 23859.
8. Accord Warner Bros. v. American Broadcasting Companies, 720 F. 2d 231, 240 (2nd Cir. 1983) (“Though imprecise, [the idea-expression dichotomy] remains a useful analytic tool for separating infringing from non-infringing works”).
9. 17 USC § 101.

Music Licensing Study — Yesterday, the Copyright Office released a comprehensive, 245 page report examining the music licensing landscape in the US and offering a set of nearly 30 recommendations that should more fairly compensate creators, make the licensing process more efficient, provide market participants with “access to authoritative data to identify and license sound recordings and musical works”, and provide rightsholders with greater transparency of payment and usage information. (And it cites to Copyhype, pg. 52, n.246.)

Intellectual property and trade: Moving in the right direction — “Last Friday, Senator Orrin Hatch, the new chairman of the Senate Finance Committee, spoke at AEI about his approach to trade legislation in 2015. The chairman’s remarks foster hope that Congress will make positive steps on trade policy and international intellectual property rights in the coming year.”

CPIP Supports Guidelines for the Protection of Fundamental IP Rights — This week, the Center for Protection of Intellectual Property, along with over 60 other organizations and individuals, published a letter affirming the protection of IP rights. The letter noted that the “Founding Fathers understood that by protecting the proprietary rights of artists, authors, entrepreneurs, innovators, and inventors, they were promoting the greater public welfare. The continued protection of these fundamental rights is essential to American innovation and competitiveness.”

Media Institute Files Brief in U.S. Supreme Court Supporting Stronger Copyright Protections for Photographers — A cert petition filed by the photographer in Kienitz v. Sconnie Nation has attracted its first amicus brief, from the Media Institute. The Institute argues the Supreme Court should take the case to, in part, reaffirm “the fundamental distinction between parody and satire.”

My Amazon bestseller made me nothing — “This past summer, my novel, ‘Broken Piano for President,’ shot to the top of the best-seller lists for a week. After Jack Daniel’s sent me a ridiculously polite cease and desist letter, the story went viral and was featured in places like Forbes, Time magazine and NPR’s Weekend Edition. The New Yorker wrote one whole, entire, punctuated-and-everything sentence about me! My book was the No. 6 bestselling title in America for a while, right behind all the different ’50 Shades of Grey’ and ‘Gone Girl.’ It was selling more copies than ‘Hunger Games’ and ‘Bossypants.’ So, I can sort of see why people thought I was going to start wearing monogrammed silk pajamas and smoking a pipe.”

Nigam: Can Google end investigation before it starts? — “Google’s motion to shut down Attorney General Hood’s effort to ask questions in the public interest goes before the judge in the next month. His ruling could set a precedent for consumers and corporations around America. We could see a whole new class of company that is, quite simply, too big to scrutinize.” Google’s motion has, however, garnered support from a number of organizations. Of this support, the Trichordist points out in Bring Out Your Shills: Google’s Shill Mill Attacking Mississippi Attorney General Jim Hood for Having the Audacity to Investigate Google, “the two amicus briefs filed in support of Google’s attempt to stop a criminal investigation were filed solely by organizations that receives funding from Google both directly and indirectly and in some cases has received that funding for many years.”

On January 12th, the Supreme Court called for the views of the US Solicitor General (SG) on a cert petition filed by Google in a case involving Oracle’s Java software platform. SCOTUSBlog has a wonderful background on calls for the Solicitor General (CVSG)—but, while the Supreme Court often follows the recommendation of the SG on whether or not to hear a case, in intellectual property cases it tends to listen to what it has to say and then chart its own path.

This case involves Google’s admitted literal copying of 7,000 lines of verbatim software code, as well as the nonliteral copying of the structure, sequence, and organization of Oracle’s Java API packages. Despite Google’s arguments, last May, the Federal Circuit held that these elements are indeed copyrightable, and remanded to the district court for further proceedings on Google’s fair use defense to the lower court’s finding of infringement. (For more background on the case, see my previous posts, Fed Circuit hears Oracle v Google arguments and Federal Circuit releases decision in Oracle v Google.) Yet, rather than seeking en banc review or waiting for a district court decision on fair use, Google took the rather unusual step of appealing straight to the Supreme Court for review.

The Supreme Court only hears a small percentage of cases it is asked to review, and at the petition stage, the focus is not typically on the merits of the case, but rather whether there is some factor making it worth Supreme Court review. In its opening brief, Google argues primarily that the Supreme Court should review the Federal Circuit decision because “it presents a longstanding, widely-recognized split in the courts of appeals.” It claims these courts “are in disarray about the application of Section 102(b) to software.”

In fact, there is no disarray. Google cites few Circuit Court decisions from the past three decades to support its claim of a deep split, and in addition, the most recent case Google cites for this proposition is from 1997—18 years ago.

If there is any such disarray in the courts regarding copyright protection for software, the software industry hasn’t noticed. As the Software and Information Industry Association reports, “From 1997 to 2012, software industry production grew from $149 billion to $425 billion,” outpacing the rest of the economy.1Robert J. Shapiro, The U.S. Software Industry as an Engine for Economic Growth and Employment, Sonecon (Sept. 2014).

A closer look at the cases cited by Google reveals that this purported split is largely illusory.

For starters, the four cases Google cites in its discussion on the split all stand for the same general propositions. Each Circuit agrees that infringement can arise from copying of either literal or nonliteral elements of software.2Mitel, Inc. v. Iqtel, Inc., 124 F. 3d 1366, 1373 (10th Cir. 1997); Lotus Development Corp. v. Borland Intern., Inc., 49 F. 3d 807, 814 (1st Cir. 1995); Computer Associates Intern., Inc. v. Altai, Inc., 982 F. 2d 693, 702-03 (2nd Cir. 1992); Whelan Associates v. Jaslow Dental Laboratory, 797 F.2d 1222, 1237 (3d Cir. 1986). They agree that copyright only protects expression, not ideas,3Mitel at 1371; Altai at 703; Whelan at 1234. and that copyright protection may exclude expression if it is purely functional/utilitarian, is considered scènes à faire, or is the only way to express an idea (the merger doctrine).4Mitel at 1374-76; Altai at 707-10 (describing scenes a faire in the context of computer software as “elements dictated by external factors”); Whelan at 1235-37.

The Federal Circuit’s decision is consistent with these decisions.

Google’s circuit split argument relies heavily on the First Circuit’s Lotus decision. Google’s argument, however, is misplaced, as Lotus is easily distinguishable on its facts from the Oracle case. First, Google verbatim copied 7,000 lines of admittedly original and creative source code, while the defendant in Lotus did not copy any code at all. Second, both parties, the district court, and the Federal Circuit all agree that Oracle’s complex declaring code and its organization is creative, but the evidence in Lotus established that the commands at issue were not. Third, the Federal Circuit found that “while the court in Lotus found the commands at issue were ‘essential to operating’ the system, it is undisputed that—other than perhaps as to the three core packages—Google did not need to copy the structure, sequence, and organization of the Java API packages to write programs in the Java language.”

Google’s “deep circuit split” simply does not exist on closer inspection. If there is any split, it hasn’t resulted in any noticeable difference in outcomes, and certainly hasn’t thrown the software industry in disarray. A circuit split implies that courts are employing contradictory tests—coming to opposite conclusions when presented with similar sets of facts. That is not the case here. Certainly one can see some variation in outcomes when one looks at decisions involving different underlying facts—but that would seem an unavoidable result when looking at the metaphysical boundary between idea and expression.

What’s more, Google’s other main argument—that issues of interoperability should factor into a copyrightability analysis—is both incorrect and further reason for the Supreme Court to deny review. As the Federal Circuit correctly observed, “Google’s interoperability arguments are only relevant, if at all, to fair use.” A doctrine that privileges a reasonable amount of copying for socially beneficial uses that don’t supersede a copyright owner’s interest is perfectly suited for dealing with interoperability. However, Google has appealed before any fair use determination could be made, making this case a poor vehicle for Supreme Court review regardless of any split.

Perhaps even more importantly, the Federal Circuit made clear that, as a factual matter, Android is not interoperable with Java—programs written for Android will not run on Java, and vice-versa. Google documents and witnesses admitted this during the district court trial. Indeed, Google purposefully designed Android in such a way as to fragment Java and ensure that programs written in the Android flavor of Java cannot run on any other operating system, circumventing Java’s goal of “write once, run anywhere.”

References   [ + ]

1. Robert J. Shapiro, The U.S. Software Industry as an Engine for Economic Growth and Employment, Sonecon (Sept. 2014).
2. Mitel, Inc. v. Iqtel, Inc., 124 F. 3d 1366, 1373 (10th Cir. 1997); Lotus Development Corp. v. Borland Intern., Inc., 49 F. 3d 807, 814 (1st Cir. 1995); Computer Associates Intern., Inc. v. Altai, Inc., 982 F. 2d 693, 702-03 (2nd Cir. 1992); Whelan Associates v. Jaslow Dental Laboratory, 797 F.2d 1222, 1237 (3d Cir. 1986).
3. Mitel at 1371; Altai at 703; Whelan at 1234.
4. Mitel at 1374-76; Altai at 707-10 (describing scenes a faire in the context of computer software as “elements dictated by external factors”); Whelan at 1235-37.

“Sponsored” by my husband: Why it’s a problem that writers never talk about where their money comes from — Few authors would admit to creating solely for the money, but many would agree that getting money does enable further creativity. Here, writer Ann Bauer says, “I do have a huge advantage over the writer who is living paycheck to paycheck, or lonely and isolated, or dealing with a medical condition, or working a full-time job. How can I be so sure? Because I used to be poor, overworked and overwhelmed. And I produced zero books during that time.”

Anti-Piracy Group Sides With Miss AG Against Google — “The International Anti-Counterfeiting Coalition this week asked a federal judge to deny Google’s request for an injunction that would prohibit Hood from enforcing a subpoena for documents from the company. ‘There is no reason why the Mississippi Attorney General should not be able to investigate reasonable concerns that unlawful conduct is occurring in connection with Google’s (or any other online company’s) services, advertisements, and statements,’ the organization argues in a proposed friend-of-the-court brief filed on Thursday with U.S. District Court Judge Henry Wingate in Jackson.” A hearing is set for February 13th.

Zoe Keating’s Experience Shows Us Why YouTube’ Attitudes To Its Creators Must Change — Mark Mulligan makes a number of good points here regarding this week’s back and forth between musician Keating and YouTube. Among them: “Content ID is not an added value service YouTube provides to content owners, it is the obligation of a responsible partner designed to help content creators protect their intellectual property. YouTube implemented Content ID in response to rights owners, labels in particular, who were unhappy about their content being uploaded by users without their permission. YouTube’s willingness to use Content ID as a contractual lever betrays a blatant disregard for copyright.”

[LORD CHANCELLOR:] As to what has been said by Mr. Attorney General of the [Statute of Anne] being a monopoly, and therefore ought to receive a strict construction, I am quite of a different opinion, and that it ought to receive a liberal construction, for it is very far from being a monopoly, as it is intended to secure the property of books in the authors themselves, or the purchasers of the copy, as some recompense for their pains and labour in such works as may be of use to the learned world.

Gyles v. Wilcox, 2 Atk. 141 (1740)

Online infringement hurts: interviews with Australian creators — Australian professor Melissa de Zwart writes, “What became very clear from the interviews was that our Australian creative people are under financial pressure. This is affecting their capacity to create. Many have to supplement their creative work, such as songwriting, with other jobs, such as teaching. While many joked that even if they didn’t receive any money they would still go on creating, those who had been in the industry longest made it clear that significant personal investment was required to do so. The question we have to ask is, do we want to foster an Australian creative industry and provide a fair reward to those who work in the industry – or are we prepared to sacrifice our culture for cheap downloads?”

The Cathedral of Computation — A great piece on the tendency for the computational aspect of new innovations to overshadow the very ordinary processes that go into making those innovations; e.g., Google Maps relies just as much on people driving cars as it does on software. “This attitude blinds us in two ways. First, it allows us to chalk up any kind of computational social change as pre-determined and inevitable. It gives us an excuse not to intervene in the social shifts wrought by big corporations like Google or Facebook or their kindred, to see their outcomes as beyond our influence. Second, it makes us forget that particular computational systems are abstractions, caricatures of the world, one perspective among many. The first error turns computers into gods, the second treats their outputs as scripture.”

CJEU says exhaustion only applies to the tangible medium of a work (so no such thing as a digital exhaustion?) — Eleonora Rosati writes, “Of course this case was not about digital exhaustion. However, by suggesting that exhaustion under Article 4 of the InfoSoc Directive only applies to the tangible support of a work, the Court appeared to imply that there is no such thing as a general digital exhaustion under EU copyright. In other words: the decision in UsedSoft was possible only because of the lex specialis nature of the Software Directive.”

We’re being stigmatized by ‘big data’ scores we don’t even know about — Soon, if you want a good job, a good education, or access to good credit, you’ll need to conform your speech and behavior to what “bosses, banks, or insurers” deem appropriate.

One of the more unfortunate outcomes to emerge over the past decade from copyright skeptics is criticism of the Martin Luther King, Jr. estate, and their maintenance of his copyrighted books and speeches—his legal property—that they inherited from him.

In 2005, for example, digital activists Downhill Battle (many of whom would later form activist group Fight for the Future) protested copyright law by posting civil rights documentary “Eyes on the Prize” online without permission. The film was unavailable on television or home video at the time because the original licenses for some of the material did not extend to those uses (the documentary has since become available again).

More recently, during the SOPA debate in January 2012, Vice took the opportunity to tie that bill and the copyright status of King’s legacy together. It called King’s “I Have a Dream Speech” “the rhetorical equivalent of a national treasure or a national park,” decrying the fact that it is protected by copyright and asking “What would King have made of all this, and of SOPA?”

Since then, it seems no opportunity has been wasted to delegitimize the King estate for political points. A year later, Vice was back to report on the one year anniversary of the defeat of SOPA and another online protest by Fight for the Future. This time, the group sought to upload a video of King’s “I Have a Dream” speech to YouTube. The group wrote that “Had SOPA and PIPA passed last year… you could have gone to jail for sharing this video.” Vice wrote that this protest “Echo[ed] the civil disobedience of King.”

On the fiftieth anniversary of King’s “I Have a Dream” speech (August 2013), a new round of articles appeared, making the same complaints that, yes, you could license the speech, or buy a copy on DVD (the Atlantic noted that, at the time, Amazon currently had a copy for $13.41), but shouldn’t it be free?

Most recently, the issue has come to the forefront again with the release of the film Selma, a narrative of the 1965 march from Selma to Montgomery. Like any film adaptation—whether based on fictional or nonfictional source material—creative liberties must be taken. In the case of Selma, these included paraphrasing some of King’s speeches.

A Washington Post article on the film explains:

Working with an original script by Paul Webb, [director Ava] DuVernay carefully paraphrased King’s oratory, so that the words [actor David] Oyelowo speaks in the film have King’s cadence and meaning, even when they’re not literal.

The reason is simple: “We never even asked” for the rights to King’s speeches, said DuVernay during a recent visit to Washington. “Because we knew those rights are already gone, they’re with Spielberg, and secondly we found a way to do it where we didn’t have to ask for permission, because with those rights came a certain collaboration.”

The result is a fascinating portrait that both eerily captures King, but also feels just a tick off from impersonation. Oyelowo doesn’t physically resemble the civil rights leader, nor does his voice possess quite the ringing timbre most people associate with one of the greatest orators of the 20th century. But the filmmakers’ decision to eschew mimicry liberates “Selma” from being mere hagiographic waxwork, or a series of speeches and set pieces, and allows it to be an authentic drama with fully realized, grounded characters.

But despite the fact that the above shows the filmmakers never sought rights to the speeches, didn’t want them, and made a film that didn’t suffer as a result, copyright critics took the opportunity to complain that copyright law “forced” the filmmakers to paraphrase the speeches. GigaOm reporter Jeff John Roberts opined that this is “because the King family aggressively enforces copyright at all turns, unleashing lawyers in the direction of anyone who seeks to use the civil rights icon’s speeches or images without permission.” Roberts argued that “the root issue here is entirely about money, and the King estate wants as much as it can get” and concludes that the deeper problem is that “copyright protection lasts for far, far too long.”

In honor of Martin Luther King, Jr. Day, I want to point out several reasons why these efforts to begrudge the legacy King left his family are misguided. While I’ve yet to find any King remarks directly about copyright—I’m certainly not claiming to speak for him or his family—I think two things are clear.

King and Copyright

First, King attached importance to his literary property by actively administering and enforcing his copyrights during his life.

In a November 20, 1964 letter, King’s literary agent, the notable Joan Daves, wrote King regarding a number of copyright matters, including preparations to ensure the copyright in his Nobel Prize lecture was secured. Daves concluded, “I hope that neither you or your office will find cumbersome my insistence that your writings and your speeches be protected properly by copyright. I am sure there will come a time when we will all be very glad of having organized these matters and of your having control over the further use of your works.”

King apparently agreed, as other correspondence shows that Daves actively licensed King’s work around the world, administered royalties, and fielded permission requests for reprints and translations. This correspondence shows a careful balancing of King’s various interests. For example, one letter denies a request to reprint King’s letter from the Birmingham Jail in a French book because, as Daves explains, “The letter in question will form a very important part in a forthcoming book by Dr. King and we feel that we cannot distract from its impact by allowing it to be published elsewhere before a French edition appears.” Another one grants permission to translate and publish a Marahati edition of Why We Can’t Wait “without a fee” after a request from Dr. Moray explaining how social problems in India were similar to the American problems King addressed.

And King was not shy in asserting his rights when they had been infringed. The copyright in King’s “I Have a Dream” speech, delivered August 28, 1963 at the Lincoln Memorial, was registered little over a month later on September 30. And only a few days later (October 4th), King filed a lawsuit against 20th Century Fox Record Corporation and Mister Maestro, Inc. for selling records of the speech without King’s consent. 1King v. Mister Maestro, Inc., 224 F. Supp. 101 (SDNY 1963). The District Court granted a preliminary injunction in December after concluding, “There are thus no principles which prevent relief to plaintiff from what seems the unfair and unjust use by defendants of his speech and his voice.” 2Id. at 108.

Publication of King’s work is what helped disseminate his ideas and benefit the public, but the ability to control and benefit from that publication is what allowed him to continue his work until he was brutally killed in April 1968 (and what allows his family to continue that work today).

From Civil Rights to International Human Rights

Second, the ability of someone to benefit from their labor, as King did through copyright, is consistent with his views on economic justice and individual dignity.

On the Fourth of July, 1965, King delivered an address to the Ebenezer Baptist Church called “The American Dream.” He begins by noting the spirit “of the founding fathers of our nation,” who created a system of government distinct from “any totalitarian system in the world” by saying “that each of us has certain basic rights that are neither derived from or conferred by the state.” The Declaration of Independence, said King, is a “profound, eloquent, and unequivocal” expression of “the dignity and the worth of human personality.” He adds, “The American dream reminds us, and we should think about it anew on this Independence Day, that every man is an heir of the legacy of dignity and worth.”

However, continued King, “We are challenged more than ever before to respect the dignity and the worth of all human personality.” This universal recognition of the equal dignity of all human personality is what, said King, made segregation and racism morally wrong. But, he would go on to say, it also meant that economic inequality and poverty must be addressed. “This is why we must join the war against poverty,” said King, “and believe in the dignity of all work.”

The “spirit of the founding fathers” that King speaks of was reflected in copyright discussions during the founding period. When the Continental Congress recommended in 1783 that the States pass laws securing copyright of authors, it did so after a committee consisting of James Madison, Hugh Williamson, and Ralph Izard were “persuaded that nothing is more properly a man’s own than the fruit of his study.” 324 Journals of the Continental Congress 326. And some states, such as Massachusetts, explicitly noted in their subsequent copyright acts that the “legal security of the fruits of [a person’s] study and industry … is one of the natural rights of all men.” 4Massachusetts Copyright Statute, Massachusetts (1783), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, jQuery("#footnote_plugin_tooltip_8649_4").tooltip({ tip: "#footnote_plugin_tooltip_text_8649_4", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); ']);" >www.copyrighthistory.org.))

Just as the experiences in the American colonies under British rule led to the Declaration of Independence, the experiences of the free world during the second World War led to an international declaration of rights.

Following World War II, the United Nations was formed to promote international cooperation, and in 1948, it drafted the Universal Declaration of Human Rights (UDHR), the first global expression of human rights. Among its articles is one that states, “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

This provision generated some debate during the drafting process, in part because it encompassed moral rights in addition to economic rights. 5Peter K. Yu, Reconceptualizing Intellectual Property Interests in a Human Rights Framework, 40 University of California, Davis 1039, 1054 (2007). During one of the final rounds of drafting, French, Mexican, and Cuban delegates reintroduced the above language for inclusion in the declaration. 6Meeting records also note, “While it accepted the principle which they expressed, the United States delegation thought that they would be out of place in the declaration, more especially since they dealt with a specific aspect of the rights of property already covered by article 15.” Meeting records summarize the Mexican delegate as arguing:

The Committee had already recognized the rights of the wage earner, the family, the mother and the child; if it did not wish there to be a serious omission in the text it was drawing up it must now proclaim the rights of the individual as an intellectual worker, scientist, or writer; in other words, the rights of aIl those who contributed to the progress and well-being of humanity.

***

If the United Nations decided to include such a provision in the Declaration of Human Rights, it would be proclaiming to the world, with all the weight of its moral authority, its consciousness of the necessity of protecting all forms of work, manual as well as intellectual, and of safeguarding intellectual production on an equal basis with material property.

This language was eventually adopted by the Committee and included in the Declaration.

I note this not only because of the parallels in principles between the supporters of intellectual worker protections and King, but because King actively worked and inspired those who worked on seeing such principles recognized at the international level.

Calling King an “international human rights leader,” Henry J. Richardson has written that King “fused the discourses of civil rights and human rights” and “borrowed directly from international human rights law doctrine” in his speeches. 7Henry J. Richardson, Dr. Martin Luther King, Jr. as an International Human Rights Leader, 52 Villanova Law Review, 471 (2007). And toward the end of his too-short life, “King had expanded his human rights leadership by moving, in concrete ways, to emphasize economic rights as human rights.”

Roger Alford at Opinio Juris has written that King’s work directly inspired those who struggled to achieve the same goals of racial and political equality at the international level. He notes that by 1964, membership in the UN had grown to 115 members, with 75% coming from the developing world. These delegates “were greatly influenced by Martin Luther King’s struggle against racial discrimination within the United States,” and worked to implement the UDHR into treaties. Alford writes, “The immediate result was the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (CERD)” and “The success of CERD broke the stalemate that had prevented completion of the work on the other major human rights covenants,” including the International Covenant on Economic and Social Rights (ICESR).

Article 15 of the ICESR implements the UDHR’s provision on intellectual property by requiring State Parties to recognize the right of everyone “To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

On this day, we honor and celebrate the tremendous legacy that Dr. Martin Luther King, Jr. left. King’s legacy hopefully inspires us all. But his work is not like “a national park” in the sense that it was bought and maintained by the public; indeed, it came about through great personal sacrifice, and King paid the ultimate price for his work when he was assassinated. It seems a bit presumptuous to say the public has a greater claim to this work than King’s own family, and it seems odd to say that the more lasting and important one’s work is, the less legal protection it should receive. More importantly, it seems better to focus on the content of the message King left us rather than the cost of his DVD.

References   [ + ]

1. King v. Mister Maestro, Inc., 224 F. Supp. 101 (SDNY 1963).
2. Id. at 108.
3. 24 Journals of the Continental Congress 326.
4. Massachusetts Copyright Statute, Massachusetts (1783), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, 5. Peter K. Yu, Reconceptualizing Intellectual Property Interests in a Human Rights Framework, 40 University of California, Davis 1039, 1054 (2007).
6. Meeting records also note, “While it accepted the principle which they expressed, the United States delegation thought that they would be out of place in the declaration, more especially since they dealt with a specific aspect of the rights of property already covered by article 15.”
7. Henry J. Richardson, Dr. Martin Luther King, Jr. as an International Human Rights Leader, 52 Villanova Law Review, 471 (2007).

Collective Soul on Taylor Swift, U2, & Music’s Future — “While digital streaming has been a boon for consumers, it has had a chilling effect on musicians, the majority of whom argue that it has eroded their ability to earn back the money and time they’ve invested in creating their unique song catalogues. [Collective Soul lead singer Ed] Roland offers his take on some of the challenges facing young artists…”

Content Creators Coalition comes to APAP with plea for fair compensation — This week, the Association of Performing Arts Presenters hosted a panel on artist rights issues featuring artists like Rosanne Cash, Marc Ribot, and Melvin Gibbs.

More than 100 Creatives sign letter thanking Senator Leahy for urging credit card companies to cut ties with pirate sites — Over 100 actors, writers, directors, producers, and others applauded the Senator for his work imploring credit card companies to “implement voluntary steps that can prevent their services from being misused to fund pirate websites.”

Involuntary Distribution Business Subsidies — The Dead Kennedy’s East Bay Ray writes “One of the talking points that various tech company commentators, academics and bloggers have used to try to justify companies exploiting an artist’s work without consent (a loophole in safe harbor ) is that it would lessen the barrier for tech companies to start up. The idea is that creators should be required to give something up to facilitate this goal. Business start-ups are all well and good, but to require anyone to involuntarily subsidize a business, internet or otherwise, with something they have put time, effort, money, and skill into is extremely problematic.”

In defense of quality — “The web is working hard to change this—in particular, companies run by web entrepreneurs who so worship the God of Page Views as to drain life of qualitative meaning entirely. It’s all about quantity, all about getting the most people to click a link or like or follow.”

Artist Rights Leaders: Taylor Swift — “When we look back on the last year, there’s probably no one who did more for artist rights than Taylor Swift. She really did not need to take on these issues, she could easily have sat back and let the money roll in. And yet she did.”

Happy New Year, Copyhype readers!

Among the Disrupted — 2015 starts out strong with this searing call for a humanist dissent against technology. “We can no longer roll over and celebrate and shop. Every phone in every pocket contains a ‘picture of ourselves,’ and we must ascertain what that picture is and whether we should wish to resist it. Here is a humanist proposition for the age of Google: The processing of information is not the highest aim to which the human spirit can aspire, and neither is competitiveness in a global economy. The character of our society cannot be determined by engineers.”

How postmodernism destroyed journalism — Odd title aside, this is a great introduction to Scott Timberg’s soon-to-be released Culture Crash, which looks at the crumbling “middle class” of creators.

A Year in Empowering Creators: Artists Speak Out — All types of artists and creators were vocal in 2014 about the importance of their craft and the need to be fairly compensated for it. Here are some of the highlights.

Digital Business Models Should Have to Follow the Law, Too — “[B]y YouTube’s own analysis, removing infringing content would reduce video views by 80% or even more. Copyright compliance, or lack thereof, was the key battleground: Users wanted copyrighted clips, rights-holders and royalties notwithstanding, and the market tipped towards the service that gave it to them.”

Copyright 2014: the year in review — Barry Sookman provides a comprehensive look at court decisions from across the globe dealing with substantial issues in copyright law.

Court Filing Ends AG v. HathiTrust Copyright Litigation — “‘Our pursuit of this claim was ultimately a success,’ said Authors Guild Executive Director Mary Rasenberger. “It led directly to HathiTrust’s 2011 abandonment of the Orphan Works Project. Moreover, the stipulation filed today resolves one of our biggest concerns with the HathiTrust Digital Library—namely, that its copying wasn’t done in accordance with the rules for library copying laid out in the Copyright Act.'”

On Monday, I looked at what’s in store for copyright in the policy world in the upcoming year; today, I want to take a look at what we might see in the courts. Although it is impossible to predict what will come out of the courts in 2015, there are a number of ongoing lawsuits and appeals that may lead to further developments over the next twelve months. The following discussion is nowhere near comprehensive and highly idiosyncratic, reflecting my personal interests.

Supreme Court

All is quiet on the copyright front at the Supreme Court as we enter 2015. The Court does not currently have any cases featuring copyright issues scheduled on its docket. But pending is a cert petition filed this past autumn by Google in an infringement suit brought against the company by Oracle. In May, the Federal Circuit held that software code copied by Google from Oracle’s Java platform was copyrightable. Google is asking the Court to reconsider that decision, arguing that the literal code, along with the “structure, sequence, and organization”, that it copied is uncopyrightable as a system and method of operation. Oracle has responded that the Federal Circuit decision was correct, and Supreme Court review is not appropriate at this moment.

It will be interesting to see how courts continue to respond to last term’s decisions in Aereo and Petrella. Though there was some hand-wringing that the Court’s attempt to cabin its decision so as not to unduly impact cloud computing services would be unsuccessful, some lower courts have seemed a little too cautious in applying Aereo. For example, in September, a Southern District Court of New York judge declined to apply Aereo’s holding to the question of whether the defendant was engaged in an unauthorized public display “because its holding was explicitly limited to technologies substantially similar to the one before the Supreme Court.” 1Capitol Records v MP3Tunes, Memorandum and Order, 07-CV-9931 (SDNY, September 29, 2014). See MP3Tunes and the Ghost of Cablevision for an analysis questioning this conclusion. Additionally, though the majority in Aereo never once mentioned the “volitional conduct” test, a non-statutory doctrine applied sporadically and inconsistently in a handful of lower courts, a judge from the Southern District Court of California held that this silence implied endorsement in a December decision. 2Gardner v. CafePress, Order, 3:13-CV-1108 (SD Cali, December 4, 2014) (“[T]he Supreme Court expressly decided not to address the volitional conduct issue which leaves Fox [Broad. Co. v. Dish Network L.L.C., 747 F.3d 1060, 1067 (9th Cir. 2014)] undisturbed. As this Court is bound by Ninth Circuit precedent and Fox is still good law, the Court finds that volitional conduct is a required element of direct infringement.”).

Ironically, one of the early beneficiaries of the Aereo holding has been Dish Networks. The satellite television provider has exclusive rights to transmit a number of Arabic language television channels in the US. In 2012, it sued TV Net, a company that had begun offering many of those same channels to US subscribers via internet streaming. In October, a federal magistrate judge recommended Dish’s motion for default judgment and a permanent injunction 3Report and Recommendation, Dish Network v. TV Net Solutions, No. 6:12-cv-1629-Orl-41TBS, 2014 U.S. Dist. LEXIS 165305 (MD Fla., Oct. 10, 2014). (a recommendation that was subsequently adopted by the court). 4Dish Network v. TV Net Solutions, 2014 U.S. Dist. LEXIS 165120 (MD Fla., Nov. 25, 2014). The magistrate cited to Aereo to support its conclusion that transmission of the channels by TV Net to its customers constituted public performances.

The irony here is that Dish Networks had just a few months earlier filed an amicus brief arguing the opposite—that providers of “user-controlled technologies” like Aereo (and, presumably, by extension, TV Net) should not be held liable for public performance.

In Petrella, the Court tackled the equitable doctrine of laches; however, one of the interesting potential outcomes of the case has nothing to do with its holding. The Petrella opinion included dicta that seemed to suggest the Court was endorsing one side of an issue that has split the Circuit Courts—whether a copyright registration is effective when the Copyright Office receives an application (the “application” approach) or when it completes the processing of the application (the “registration” approach). 5Under US law, copyright registration is not mandatory; however, it does confer a number of benefits, including serving as a prerequisite before a civil infringement suit may be filed. At one point, the Court in Petrella said, “Although registration is ‘permissive,’ both the certificate and the original work must be on file with the Copyright Office before a copyright owner can sue for infringement.” The reference to a requirement that the registration certificate be on file before an infringement suit can be brought suggests that the receipt of an application alone does not satisfy the law’s registration requirement. This issue does not come up too often, but it will be interesting to see if courts pay any heed to the Petrella language.

It’s worth noting that the Copyright Office firmly endorses the view that registration is only effective after processing is complete. It says in the Third Edition of its Compendium, the final version of which was published in December 2014,

The mere submission of an application to the U.S. Copyright Office does not amount to a registration. This is corroborated by the statute and the legislative history… [which], when read together, clearly evince Congress’s intention that the Register of Copyrights must either issue a certificate of registration or refuse an application for registration prior to filing a suit for copyright infringement. Not only would the filing of a lawsuit solely on the basis of submission of an application eliminate the mediating role that Congress intended the Office to fulfill, it also would nullify the Register of Copyrights’ statutory right to intervene in an infringement action in cases where the application for registration has been refused.

The Supreme Court continues to grant cert petitions through the end of its current term, which concludes in June, and it begins considering cases for its next term starting in October, so there’s always the possibility it will confront a copyright issue before the end of the year.

Circuit Courts

There are a number of appeals before the Circuit Courts dealing with interesting or noteworthy issues that may see rulings in 2015.

Digital sampling. In the Ninth Circuit, parties are still briefing VMG Salsoul v. Ciccone, involving alleged infringing sampling by Madonna for her hit Vogue. A California district court ruled in November 2013 that the portion copied—an individual “horn hit” from a 1976 composition called “Love Break”—lacked the required originality to be protected by copyright, and even if it did, the amount used was de minimis. Notably, the plaintiffs based their argument primarily on the Sixth Circuit’s 2005 Bridgeport Music v. Dimension Films decision, which held that copyright’s traditional “substantial similarity” test for infringement does not apply to sound recordings, and any copying, no matter how minute, is infringing. While no court outside the Sixth Circuit has followed Bridgeport, 6Most recently, the Southern District Court of New York on December 9, 2014. and a few have even explicitly rejected it, 7See Blurred Lines: Digital Sampling, Bridgeport, and Substantial Similarity. this could be the first time a sister circuit court has squarely addressed the issue.

Mass digitization. The Second Circuit heard oral arguments in Authors Guild v. Google, concerning the Google Books commercial mass digitization project, less than a month ago, which could mean a decision some time in 2015 (though not necessarily). 8In 2009, the most recent year statistics are available, the average time from notice of appeal to disposition in the Second Circuit was 17.6 months for civil cases. The notice of appeal in Authors Guild v. Google was filed December 23, 2013. In 2013, the district court had held that Google’s scanning and display of excerpts en masse was fair use. However, the Authors Guild has noted, “Whatever the outcome of this case, a Supreme Court petition is in the cards.”

DMCA safe harbors. The parties in Capitol Records v. Vimeo are also still in the middle of briefing an appeal at the Second Circuit. Vimeo, like YouTube, allows users to upload and publicly share videos. The court there is being asked to consider the proper application of “red flag knowledge” and “willful blindness” under the DMCA as well as whether the DMCA safe harbor extends to pre-1972 sound recordings. Oral arguments there may be heard this year.

Lower Courts

Finally, there are a number of lawsuits in both federal and state lower courts which may bring developments in 2015.

The Southern District Court of New York continues to keep an eye on the dispute between Fox News and media monitoring service TVEyes. This past September, the court held that TVEye’s creation of a database and provision of television clips to its paying subscribers is fair use, an unusually expansive interpretation of the privilege. Fox News has not appealed this decision at this point (though it may be appealed whenever a final judgment is entered), and the parties continue to litigate whether the “features that allow searches by date and time, and that allow clips to be archived, downloaded, emailed, and shared via social media” are also fair use.

Litigation against satellite radio provider Sirius XM for alleged unauthorized public performance of pre-1972 sound recordings continues in a number of courts across the country. As I wrote previously, federal courts in New York and California ruled that pre-1972 sound recording owners do have an exclusive right of public performance under state and common law in lawsuits filed by surviving Turtle’s members Flo & Eddie, while a state court in California held the same in a lawsuit brought by major record labels. A summary judgment motion on the same question remains pending in a Florida federal case brought by Flo & Eddie, as well as any appeals that may yet come out. 9A motion for reconsideration also remains pending in the California federal court. The California state court has certified the ruling for interlocutory appeal while the New York federal court has yet to rule on certification.

Relatedly, litigation against streaming service Grooveshark continues. 10See Grooveshark is Done for a previous discussion of these lawsuits. In UMG Recordings v. Escape Media Group, a New York state court is ready to rule on a motion for summary judgment as to Grooveshark’s liability—including on a claim of direct infringement of public performance rights for pre-1972 sound recordings. 11Supreme Court of the State of New York, County of New York, Index No. 100152/2010 . This is particularly worth watching since a state court ruling on state law presumably carries more weight than a federal court ruling on state law (as has occurred in the Sirius litigation). Grooveshark is also facing claims of federal copyright infringement by Capitol Records in the Southern District Court of New York. Last May, the magistrate judge there recommended summary judgment in favor of Capitol Records, a recommendation Grooveshark subsequently opposed. A resolution remains pending.

Last August, Getty Images sued Microsoft over a “Bing image widget” released by Microsoft that allows third parties to embed on web sites images supplied by Microsoft’s Bing search engine. Getty alleges that this conduct amounts to copyright infringement by Microsoft. The Southern District Court of New York has so far denied a motion for preliminary injunction by Getty (Microsoft had disabled the widget by then) and a motion to dismiss by Microsoft; last month, Microsoft filed its answer and counterclaim.

References   [ + ]

1. Capitol Records v MP3Tunes, Memorandum and Order, 07-CV-9931 (SDNY, September 29, 2014). See MP3Tunes and the Ghost of Cablevision for an analysis questioning this conclusion.
2. Gardner v. CafePress, Order, 3:13-CV-1108 (SD Cali, December 4, 2014) (“[T]he Supreme Court expressly decided not to address the volitional conduct issue which leaves Fox [Broad. Co. v. Dish Network L.L.C., 747 F.3d 1060, 1067 (9th Cir. 2014)] undisturbed. As this Court is bound by Ninth Circuit precedent and Fox is still good law, the Court finds that volitional conduct is a required element of direct infringement.”).
3. Report and Recommendation, Dish Network v. TV Net Solutions, No. 6:12-cv-1629-Orl-41TBS, 2014 U.S. Dist. LEXIS 165305 (MD Fla., Oct. 10, 2014).
4. Dish Network v. TV Net Solutions, 2014 U.S. Dist. LEXIS 165120 (MD Fla., Nov. 25, 2014).
5. Under US law, copyright registration is not mandatory; however, it does confer a number of benefits, including serving as a prerequisite before a civil infringement suit may be filed.
6. Most recently, the Southern District Court of New York on December 9, 2014.
7. See Blurred Lines: Digital Sampling, Bridgeport, and Substantial Similarity.
8. In 2009, the most recent year statistics are available, the average time from notice of appeal to disposition in the Second Circuit was 17.6 months for civil cases. The notice of appeal in Authors Guild v. Google was filed December 23, 2013.
9. A motion for reconsideration also remains pending in the California federal court. The California state court has certified the ruling for interlocutory appeal while the New York federal court has yet to rule on certification.
10. See Grooveshark is Done for a previous discussion of these lawsuits.
11. Supreme Court of the State of New York, County of New York, Index No. 100152/2010 .

2014 was a busy year for copyright policy on a number of fronts, with the House Judiciary Committee, US Copyright Office, and USPTO actively working on a broad range of issues. What will 2015 bring?

House Judiciary Committee

Turning first to the House Judiciary Committee, it will likely continue its review of copyright law. The current copyright review process began nearly two years ago when Register of Copyrights Maria Pallante addressed Congress, saying it was time for it to approach copyright law issues “comprehensively.” Heeding the Register’s call, a Congressional copyright review was formally announced April 24, 2013. Representative Goodlatte (R-VA), chairman of the House Judiciary Committee, said the Committee would hold over the next few months a “comprehensive series of hearings on U.S. copyright law” in order “to determine whether the laws are still working in the digital age.”

Since then, the House Subcommittee on Courts, Intellectual Property, and the Internet has conducted sixteen days of informational hearings, five in 2013, and eleven this past year, on a range of issues across the copyright spectrum. Following November’s elections, Rep. Goodlatte announced Rep. Darrell Issa (R-CA) as chairman of the IP Subcommittee for the 114th Congress, also announcing that all copyright related issues will be handled at the full Committee. Goodlatte has said elsewhere that while the review process will continue into 2015, it is “almost complete.” He has emphasized that no specific goal or end product has been set for the process, saying, “A lot of the problems will be solved not by legislation but by new technologies, by business models, by business deals.”

One issue that hasn’t been heard yet during the review process is the operation of the Copyright Office. The IP Subcommittee did hold an oversight hearing on the Copyright Office September 18, where Register of Copyrights Maria Pallante testified not only about the current status of the Office and its projects but also the obstacles and opportunities it faces going forward. Pallante noted that the Office is “leanly funded” and its “fee authority does not permit the Office to collect for capital improvements or other forms of investment above the cost it incurs in the ordinary course of business.” She said the staff is “smaller than it should be to carry out the volume and complexity of work prescribed by Title 17.” Finally, Pallante remarked that the Office may need to “absorb more direct responsibility for its” technological needs; it currently uses the technical infrastructure of the Library of Congress, “including its network, servers, telecommunications and security operations.” This arrangement results in “both synergies and resource challenges.”

Departments across the Library compete for services and equipment. However, these services do not always support the fact that the Copyright Office is a twenty-four-hour business with a distinct mission. The Copyright Office intersects with a dynamic global marketplace and affects the legal rights and economic interests of those who rely on the provisions of Title 17.

This has been a constant theme of the review process—when Pallante first proposed a comprehensive review of copyright law, she remarked that “Evolving the Copyright Office should be a major goal of the next great copyright act.” 1Maria Pallante, The Next Great Copyright Act, 36 Columbia Journal of Law & the Arts 315, 341 (2013). The article is “is an extended version of the Twenty-Sixth Horace S. Manges Lecture delivered on March 4, 2013 at Columbia Law School.” See also “The Register’s Call for Updates to U.S. Copyright Law”, Subcommittee on Courts, Intellectual Property and the Internet Committee on the Judiciary United States House of Representatives 113th Congress, 1st Session, Statement of Maria A. Pallante, Register of Copyrights of the United States (March 20, 2013); (“evolving the Copyright Office should be a major goal of the next great copyright act.”).

Copyright Office

Pallante expanded on her thoughts during the Eleventh Annual Christopher A. Meyer Memorial Lecture delivered on November 20, 2013 at George Washington University Law School, remarks of which have been edited and published as The Next Generation Copyright Office: What it Means and Why it Matters. There, Pallante noted that there is a desire among the broader copyright community to build a “next generation Copyright Office” that could take advantage of technology to provide a wider array of services.

For example, BMI suggested that it would be useful for the Office to collect and incorporate short digital samples of musical works as part of its registration records, to help people identify copyright ownership. The American Society of Media Photographers and the Graphic Artists Guild suggested it would be helpful for the Office to invest in image recognition technologies to help people find works of visual art. The Association of American Publishers said it would be helpful to the book publishing industry if the Office adopted commercially successful metadata standards for digital content, such as ONIX. And SoundExchange said that if the Copyright Office could develop APIs, then rights management organizations and aggregators could create innovative applications for collecting and disseminating information regarding copyrighted content across the supply chain. In a publication about the Copyright Office released in 2010, Public Knowledge observed that “[t]he long term cost savings created by an easy-to-use, comprehensive registry should easily outweigh the costs associated with its creation.”

Nevertheless, the Copyright Office remains busy going into 2015. It is currently engaged in active policy studies on orphan works and mass digitization, the making available right, and music licensing. While the Office has solicited public comments and held public roundtables on each of these studies over the past year, that does not necessarily mean we will see any outcomes in 2015—it would not be surprising for the Office to call for additional comments or other public input in any of these proceedings. 2Two recently concluded policy studies from the Copyright Office concerning resale royalty and copyright small claims could give some idea of report timelines. The Copyright Office solicited two rounds of public comment regarding resale royalties September 2012 and March 2013 and held a public roundtable April 2013. That report was released December 2013. The study of copyright small claims involved three rounds of comments—October 2011, August 2012, and February 2013—and two sets of public events—a roundtable May 2012 and two days of public hearings November 2012—with the final report released September 2013.

US Patent and Trademark Office

Shifting to the executive branch, The Internet Policy Task Force (IPTF)—a Department of Commerce group led by the US Patent and Trademark Office (USPTO) and the National Telecommunications and Information Administration (NTIA)—held a series of public roundtables over the past year on several topics identified in its 2013 Green Paper, Copyright Policy, Creativity, and Innovation in the Digital Economy. Those include “(1) the legal framework for the creation of remixes; (2) the relevance and scope of the first sale doctrine in the digital environment; and (3) the appropriate calibration of statutory damages in the contexts of (i) individual file sharers and (ii) secondary liability for large-scale infringement.” The stated purpose of these roundtables was to “seek additional input from the public in locations around the country in order for the Task Force to have a complete and thorough record upon which to make recommendations.” During the fourth and final roundtable, held July 30, 2014 in Berkeley, California, Chief Policy Officer and Director for International Affairs at the USPTO Shira Perlmutter remarked that the conclusions and recommendations would be issued in the form of a White Paper, which would likely be issued sometime early 2015.

During 2014, the IPTF also coordinated a multistakeholder process for consensus-building among stakeholders with the aim of producing an agreed outcome by the end of 2014 on the issue of improving the operation of the DMCA notice and takedown system. The final public meeting of 2014 occurred December 18, where the Working Group presented a discussion draft of “Good, Bad and Situational Practices.” The draft notes:

The document represents the near final outcome of eight months of intensive public discussions, meetings, and negotiations in a process that was open to any and all interested stakeholders. A broad range of practices for potential inclusion were considered and discussed intensively over the course of eight months, and this draft contains recommendations on issues within the scope of the group’s work as to which best practices could be formulated.

The draft goes on to note that comments on the specific wording of the draft are now being accepted, and the IPTF will provide further information as to any future plenary meetings of the group.

In sum, 2015 promises to bring plenty of developments in copyright law and policy.

 

References   [ + ]

1. Maria Pallante, The Next Great Copyright Act, 36 Columbia Journal of Law & the Arts 315, 341 (2013). The article is “is an extended version of the Twenty-Sixth Horace S. Manges Lecture delivered on March 4, 2013 at Columbia Law School.” See also “The Register’s Call for Updates to U.S. Copyright Law”, Subcommittee on Courts, Intellectual Property and the Internet Committee on the Judiciary United States House of Representatives 113th Congress, 1st Session, Statement of Maria A. Pallante, Register of Copyrights of the United States (March 20, 2013); (“evolving the Copyright Office should be a major goal of the next great copyright act.”).
2. Two recently concluded policy studies from the Copyright Office concerning resale royalty and copyright small claims could give some idea of report timelines. The Copyright Office solicited two rounds of public comment regarding resale royalties September 2012 and March 2013 and held a public roundtable April 2013. That report was released December 2013. The study of copyright small claims involved three rounds of comments—October 2011, August 2012, and February 2013—and two sets of public events—a roundtable May 2012 and two days of public hearings November 2012—with the final report released September 2013.