Friday’s Endnotes – 05/20/11

By , May 20, 2011.

Copyright is Not Dead — Though maybe it will be after tomorrow, what with the world ending and all. Anthony Accardo pens an excellent editorial over at Harvard Business Review. “It would be much easier for content owners to explore innovative suggestions about pricing, distributing free content for promotion, and using distribution technologies such as bitTorrent, if they saw any material steps taken by the tech community to help them, not challenge them, in the copyright arena.”

Google Shows Its True Colors — The Copyright Alliance comments on remarks by the search giant’s chief executive Eric Schmidt regarding its opposition to rogue sites legislation. Among the remarks, Google says the US should be held responsible for other countries copying our laws to infringe on their own citizens’ rights, even though the US doesn’t have the right and ability to control them.

Right to Register? — The big news from the UK this week was the release of the Hargreaves review. Dominic Young shares his thoughts.

HADOPI Study Says France’s Three-Strike Law Having Positive Impact on Music Piracy — The independent body in charge of administering France’s gradual response program released results of its first study on the effect of the law, which began last October. So far, it appears to be reducing

Is Google News Legal? — A Belgium court found Google liable for copyright infringement earlier this month. While many reported on the decision, few looked closely at the actual decision. Barry Sookman rectifies that and offers up some in-depth analysis of the important case.

Pearls Before Breakfast — The Washington Post sends one of the world’s best violinists, with one of the world’s best violins, to play some of the world’s best classical music in a DC Metro station to see what happens. I was a little leery when I started reading this, as these pieces tend to devolve quickly into overly broad pop sociology, but the story turned out to be interesting and though-provoking at times.

The Garner Transcripts: That v. Which, and Other Supreme Court Writing Tips — Writer Bryan Garner managed to interview 8 current and former Supreme Court Justices about the black art of legal writing. Now, the full transcripts of those interviews are available online. Highly recommended reading for law students, practicing lawyers, and fans of writing and/or the law.

PROTECT IP Act

By , May 19, 2011.

A good bill just got better. On May 12, Senator Patrick Leahy and other Senate Judiciary Committee members introduced the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT IP Act). The text of the bill is available here.

The bill is designed to advance two goals: enhancing the enforcement against overseas rogue websites and taking the profit out of piracy. It allows those ad servers and payment processors who only want to count legitimate businesses as their customers to cut off service to rogue sites without risking liability, and it encourages providers that are less inclined to cut off customers using their services for illegitimate purposes to act more responsibly.

This legislation is important in ensuring that laws protecting the progress of the arts and sciences keep up with the rapid progress of digital communications. A wide cross-section of the public recognizes this importance. In A Broad Coalition Indeed!, Kate Spence of the MPAA lists a few of the many organizations, unions, and trade associations that support the bill. The Copyright Alliance provides links to public statements in support of the bill in Join the Chorus: Voices Against Digital Theft. And, just a few days ago, forty-two state Attorneys General announced their support of the bill.

The PROTECT IP Act is a substantial rewrite of last session’s Combating Online Infringement and Counterfeits Act (COICA). The impact of provisions on existing secondary liability doctrine and the DMCA is made more explicit. Procedural protections for operators of web sites and third-party providers served with orders under the act are beefed up. Most notable is the addition of a private right for action under the law, though court orders by an individual rights holder are limited to financial service providers and advertising providers — court orders requiring search engines and domain name system servers to block access to a web site can only be made in actions initiated by the Attorney General, and even then are limited only to nondomestic domain names.

Perhaps one of the biggest changes from COICA is PROTECT IP’s requirement for the Attorney General or rightsholder to file a personal action against a registrant of a rogue site before proceeding against the domain name. Under COICA, the Attorney General could go straight to an in rem action against the domain name. The provision:

(2) IN REM.—If through due diligence the Attorney General is unable to find a person described in subparagraphs (A) or (B) of paragraph (1), or no such person found has an address within a judicial district of the United States, the Attorney General may commence an in rem action against a nondomestic domain name used by an Internet site dedicated to infringing activities.

Note that this provision is the same under both sections 3 and 4 of the Act; that is, an individual rights holder can only pursue a claim under the Act against a personal defendant. In rem actions remain solely within the Attorney General’s power.

It’s also worth noting that this provision is reminiscent of the language of the Anticybersquatting Consumer Protection Act, passed in 1999 as part of the Trademark Act.

(A) The owner of a mark may file an in rem civil action against a domain name in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is located if— … (ii) the court finds that the owner— (I) is not able to obtain in personam jurisdiction over a person who would have been a defendant in a civil action under paragraph (1); or (II) through due diligence was not able to find a person who would have been a defendant in a civil action under paragraph (1). 115 USC § 1125(d)(2).

The PROTECT IP Act includes a provision for the development of guidelines, largely similar to a provision in COICA, for the Department of Justice, law enforcement agencies, and intellectual property rights holders regarding the implementation of the act. It also provides for two separate reports to measure the effectiveness of the bill after it is enacted:

(1) REPORT ON EFFECTIVENESS OF CERTAIN MEASURES.—Not later than 1 year after the date of enactment of this Act, the Secretary of Commerce, in coordination with the Attorney General, the Secretary of Homeland Security, and the Intellectual Property Enforcement Coordinator, shall conduct a study and report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives on the following:

(A) An assessment of the effects, if any, of the implementation of section 3(d)(2)(A) [required actions for operators of nonauthoritative domain name system servers] on the accessibility of Internet sites dedicated to infringing activity.

(B) An assessment of the effects, if any, of the implementation of section 3(d)(2)(A) on the deployment, security, and reliability of the domain name system and associated Internet processes, including Domain Name System Security Extensions.

(C) Recommendations, if any, for modifying or amending this Act to increase effectiveness or ameliorate any unintended effects of section 3(d)(2)(A).

(2) REPORT ON OVERALL EFFECTIVENESS.— The Register of Copyrights shall, in consultation with the appropriate departments and agencies of the United States and other stakeholders—

(A) conduct a study on—

(i) the enforcement and effectiveness of this Act; and

(ii) the need to modify or amend this Act to apply to emerging technologies; and

(B) not later than 2 years after the date of enactment of this Act, submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives on—

(i) the results of the study conducted under subparagraph (A); and

(ii) any recommendations that the Register may have as a result of the study.

Cut and Paste

Anyone reading the proposed bill will be struck by the similarities between sections 3 and 4. I was curious about how closely the two mirrored each other, so I worked up a side-by-side comparison, which I’ve included below in a PDF. Differences are highlighted in red, while language only appearing in one of the sections is highlighted in yellow.

[scribd id=55679464 key=key-p1p2uj8th023u48ugcs]

After comparing the two sections like this, my curiousity was piqued even further. As you can see, aside from the fact that the first section deals with nondomestic domains, which only the Attorney General can proceed against, while the second deals with all domains, which the Attorney General or rights holders can proceed against, the vast majority of the provisions are exact duplicates. Even more curious, there are a tiny number of insubstantial differences in the two — compare (3)(d)(C)(ii), (3)(d)(3), (3)(e)(3), and (3)(f)(2)(A) to (4)(d)(2)(B)(ii), (4)(d)(3), (4)(e)(3), and (4)(f)(2)(A). If these sections were simply cut and paste, we would expect zero differences in the similar language; if they were written independently, we should expect differences throughout the same provisions. But instead, the language is identical except in four (that I’ve found) instances.

My larger question is, why is the bill drafted in this way? I agree that juggling the differences between the two provisions might result in some inelegant language, but separating them out like this — resulting in lengthy, duplicative provisions — seems like far less elegant drafting. My best guess is that there is a substantive reason for drafting the law in this fashion, but I’m hard-pressed to think of exactly what the reason would be. Planning for severability to mitigate the effects of a court striking down any provision in the future? That still doesn’t strike me as especially convincing, though, so I’d be interested to hear thoughts from my readers on this.

References

The Free Speech Critique of Copyright Mistake

By , May 17, 2011.

Did you hear that Florida just outlawed sex?

This was pointed out by Southern Fried Scientist, after reading of a Florida bill that prohibits “knowing sexual conduct or sexual contact with an animal.” Humans are, after all, animals, so by definition, Florida has just made normal sexual relations a crime.

Obviously, that’s not what happened. As Rick Hasen at Election Law Blog points out, “A court facing a question of interpreting the statute would almost certainly read the statute’s use of the term ‘animals’ as ‘non-human animals,’ both to avoid absurdity and to conform with (1) the intent of the drafters; (2) the purpose of the statute; and (3) a commonly used (if scientifically inaccurate) understanding of the term ‘animal’ to exclude humans.”

But it does provide a good example of language in the law. Law, in many respects, is semantics. It is based on words written down in constitutions, statutes, and court opinions, and shaped by how courts, lawyers, and the public interpret those words.

Underneath the veneer of the plain meaning of language in law is a mass of complex and sometimes inscrutable precepts. Hasen, above, advances three such precepts to explain why ‘animal’ doesn’t include humans in the Florida law. To a lawyer, understanding how language works in law is second nature, but to the layperson, much of it may seem like “the art of the puzzling and confounding.”

Law professor Frederick Schauer describes this better than I do:

There are times when law uses language of its own making, often in  Latin — replevin, assumpsit, quantum meruit, habeas corpus, res judicata — and sometimes even in English—bailment, demurrer, due process, joinder, interpleader, easement. Such terms have little if any meaning for the layperson, but they can still have plain meanings in law and for lawyers and judges. So as long as one believes in anything close to plain or literal meaning at all, such terms, when used inside the legal world, do not present special problems. Like the words of ordinary language, the meaning here is determined by the rules of use of the relevant linguistic community, but here that community is the community of legal actors rather than the men on the Clapham omnibus.

Things become somewhat more problematic, however, when terms have both ordinary and technical legal meanings. We know that ‘due  process’ in the Fifth and Fourteenth Amendments has a legal/constitutional meaning with no ordinary counterpart. The  women on the D train are no more likely ever to use the term than are the men on the Clapham omnibus. But the same does not hold true for ‘speech’ and ‘religion’ in the First Amendment or ‘arms’ in the Second or ‘searches’ in the Fourth. Here there are both ordinary and legal meanings, and the question is about the relation between them. So too outside of constitutional law, where words such as ‘trespass,’ ‘complaint,’ and even ‘contract’ have legal meanings that diverge from their nonlegal ones. 1A Critical Guide to Vehicles in the Park, 83 New York University Law Review 1109, 1123 (2008).

When is content not content?

What does this have to do with copyright?

Well, some critics of the law base their objection on the premise that copyright protection infringes on the freedom of speech. 2See Copyright and Censorship, note 17, for an inexhaustive list of such criticisms. A few — certainly not all — of these criticisms are based on the following line of thought: copyright law regulates content, content-based regulations presumptively violate the First Amendment, therefore much of copyright law is unconstitutional.

One recent example is from a paper by Andrew Sellars, who wrote, “Copyright itself is a content-based form of regulation: it determines the legality or illegality of speech on the basis of how the speech is expressed.” 3Seized Sites: The In Rem Forfeiture of Copyright-Infringing Domain Names (May 8, 2011). (I don’t mean to single out Mr. Sellars, I only highlight this quote to provide an example of the argument.)

The Supreme Court, of course, rejected the classification of copyright as even a content-neutral regulation — which, in First Amendment parlance, still merits a higher standard of review than general laws. 4Eldred v. Ashcroft, 537 US 186, 218-19 (2003). But, looking at the language being used, how can this be? How can copyright law restrict content yet not restrict content?

The answer lies in understanding how language is being used. Law professor Marc Greenberg explains:

The strength, and weakness, of this argument lies in the definition of the term ‘content’ in the Free Speech context, in the context of judicial interpretations of the First Amendment, and in the copyright context.  I submit that content in the free speech context refers both to the ideas a speaker presents, and the language or other expressive means used to present that idea.  For courts applying the term ‘content’ in a strict scrutiny context seeking to determine if a statute violates the First Amendment by banning certain works, the term ‘content’ is focused on the ideas expressed, and not on the means of expression used. Finally, copyright, in particular infringement cases, focuses purely on the means of expression used, since the statute expressly precludes protection for ideas. The Critics seek to use the free speech definition as a basis for challenging copyright—arguing under this definition that since copyright clearly ‘deals’ with content, it is a content-based law which requires strict scrutiny and a bias in favor of finding that it violates First Amendment protections.  The problem with this approach is that content, when subject to any copyright law analysis, only pertains to expression, and therefore the claim that for constitutional purposes it means more than that is erroneous. Professor Baker supports the Critics’ view by suggesting that under a strict scrutiny analysis, warranted because copyright deals with content, the market incentive concerns underlying copyright do not rise to the level of a compelling government concern, and proposes that perhaps those concerns can be addressed by less restrictive means. He writes: “If content must be examined to determine if a law is violated then the law is content based.” Does  this  mean that reporting a theft of art from your home, in which the police must have a description of the art, means that art theft is a content-based law?  Similarly, in a case of the theft of a rare book, a description of the book, the art on the cover, and its subject matter is required—does this make the theft law subject to a content-based strict scrutiny?  Additional examples from art and music illustrate the problems with this approach.  A copy of a musical piece focuses on the sequence of notes, not the underlying melody or musical concept embodied in the piece.  A derivative copy of a piece of artwork repeats elements of the composition, not the content, consisting of the concept of the piece.

The question that should be asked is whether the restriction on content found in copyright law really abridges someone’s freedom of expression and whether there is a fair policy in saying that anyone is free, for example, to paint a portrait.  However, they are not free to take someone else’s property, their painting of a portrait, and use that for their own benefit.  Interestingly enough, what this argument does is turn one of copyright’s attributes, the ability to reuse the work via copies without diminishing it, against the creator.  There is no question that if I wanted to paint a portrait, and saw a similar portrait you did on your wall,  that I cannot, in my expression of free speech, come into your house, take your painting, cut out the face in it, and put it in my painting.  But because art in the digital world can more easily be reproduced through mechanical means, suddenly it is a violation of your freedom of expression to take a copy of the work, which is sold with the express understanding that it may not be used by you, and use it for your own purposes, be they commercial or noncommercial. 5Reason or Madness: A Defense of Copyright’s Growing Pains, 7 John Marshall Review of Intellectual Property Law 1, 15-16 (2007).

This point shouldn’t be dismissed as merely arguing semantics. It’s important to make the distinction between “content” in the ordinary sense of the word and “content” in the First Amendment sense of the word. And not because it lets copyright law escape constitutional protections.

How does copyright deal with content?

The First Amendment protects against government control over “content” in the ordinary sense.

At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion. These restrictions “rais[e] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.”

For these reasons, the First Amendment, subject only to narrow and well-understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals. Our precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content. Laws that compel speakers to utter or distribute speech bearing a particular message are subject to the same rigorous scrutiny. In contrast, regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny, because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue. (Citations removed). 6Turner Broadcasting System v. FCC, 512 US 622, 641-42 (1994).

The Supreme Court has developed doctrines to test whether general laws violate the First Amendment. These doctrines aren’t applied to copyright law — not because it is immune from First Amendment scrutiny, but because copyright law’s own “built-in free speech safeguards” already account for First Amendment analysis. And these safeguards mirror the tests developed by the Court surprisingly well.

When you recognize “content” as the ideas conveyed by a speaker, and recognize that a government cannot generally suppress these ideas, you see that copyright law already accounts for this through the idea/expression distinction — the law only protects the specific expression of an idea, not the idea itself.

Traditional First Amendment jurisprudence recognizes that laws that don’t specifically target the “content” of speech may nevertheless violate free speech principles. Such laws are typically analyzed under the test set out and explained by the Supreme Court in US v. O’Brien:

We cannot accept the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O’Brien’s conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. We find that the 1965 Amendment to § 12 (b) (3) of the Universal Military Training and Service Act meets all of these requirements, and consequently that O’Brien can be constitutionally convicted for violating it. 7United States v. O’Brien, 391 US 367, 376-77 (1968).

Copyright’s analogue to the O’Brien test is found in the fair use doctrine. That is, when does copyright law allow the speech that is made with the normally prohibited conduct of copying another’s expression?

Like O’Brien, courts use a balancing test. The balancing test is the familiar four-part fair use analysis, which looks at: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit 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.” 817 USC § 107.

Implicit in the fair use factors are the same prerogatives of the O’Brien test. Along with the preamble, enumerating several purposes of fair use, the factors guide courts in considering whether a specific use promotes the progress of the useful arts. The qualitative and quantitative factors, along with the effect on the potential market, ensure that the restriction on using copyrighted expression is no greater than necessary to promote that progress.

I’ve talked a lot about the intersection of free speech and copyright on this site. The notion that the two areas of law are in conflict should be put to rest — I’ve even advanced the notion that copyright helps expand free speech rights. A careful analysis of the language we use, and how legal doctrines incorporate that language, show that the two are wholly consistent with the values that underlie our concept of what a free and just society should embody.

References

References
↑1 A Critical Guide to Vehicles in the Park, 83 New York University Law Review 1109, 1123 (2008).
↑2 See Copyright and Censorship, note 17, for an inexhaustive list of such criticisms.
↑3 Seized Sites: The In Rem Forfeiture of Copyright-Infringing Domain Names (May 8, 2011).
↑4 Eldred v. Ashcroft, 537 US 186, 218-19 (2003).
↑5 Reason or Madness: A Defense of Copyright’s Growing Pains, 7 John Marshall Review of Intellectual Property Law 1, 15-16 (2007).
↑6 Turner Broadcasting System v. FCC, 512 US 622, 641-42 (1994).
↑7 United States v. O’Brien, 391 US 367, 376-77 (1968).
↑8 17 USC § 107.

Friday’s Endnotes – 05/13/11

By , May 13, 2011.

Content and Technology is not an Either/or Choice — The Copyright Alliance disputes the framing of efforts to better protect IP rights as a choice betweencopyright and innovation. “The copyright community and the technology sector drive and sustain each other.  They each contribute disproportionately to the wealth of this nation, and both sectors depend on a vibrant, legal marketplace of digital content.”

Celebrating World Press Freedom Day, and What the First Amendment Means to the MPAA — The Motion Picture Association of America’s new chairman Chris Dodd reflects on the role of the organization in defending free speech rights for filmmakers, a theme I discussed on this site recently. “Many people don’t realize that the MPAA itself was born as an answer to government censorship.  Before the establishment of the MPAA’s Classifications and Rating Administration, early filmmakers battled a mishmash of local, state and federal boards that mandated strict ‘moral standards’ that often destroyed the artistic integrity of films or kept them from being shown at all.”

Limewire Case Settles, Mid-Trial, For $105 Million — Thursday evening brought news that the file-sharing service reached a settlement agreement with the record labels that had brought suit against it before the close of the first week of the jury trial to determine damages. Q: How much of the settlement is going to the artists? A: More than they got from Limewire.

MPAA v. Zediva is Shaping up to be Quite the Legal Showdown — Remember Zediva, the video-on-demand startup that streams movies online from actual DVDs in remote DVD players to avoid licensing fees? They were, of course, sued by film studios. PaidContent reports that both sides seem to be placing a high priority on this lawsuit, considering the high-power lawyers being called on for litigation.

YouTube boosts movie rentals with over 3,000 Hollywood titles — The video-sharing site joins online movie providers like iTunes and Amazon, allowing users to watch films for a couple of bucks. The titles include classics like Goodfellas and newer releases like Inception.

Library of Congress and Sony create the National Jukebox — The record label has made thousands of previously unavailable historical recordings available to the general public through a joint effort with the Library of Congress. According to the LA Times, “The collaboration between Sony and the Library of Congress is intended to keep any cost to taxpayers to a minimum and to make the streaming files available quickly. In return, Sony will receive data on which recordings are streamed most frequently to help determine which may have commercial potential.” Win-win-win.

Interview: The Art of Video Games at the Smithsonian — Boing Boing contributor Rob Beschizza interviews the organizer and exhibition curator of the Smithsonian’s upcoming Art of Video Games exhibition. “We want to show people that video games are more than they might appear on the surface, that they can have incredible depth, beauty, and emotion.”

4 Predictions for Copyright Reform Attempt 4 — With the recent Canadian elections completed, it is likely that the new government will resume the efforts to reform the nation’s copyright law. Attorney James Gannon offers his predictions on what changes to expect this time around in light of recent developments in copyright law and digital technologies.

The E-Book Gold Rush — Author Lee Goldberg injects some reality into the recent success stories of self-publishing authors in the digital world. Yes, authors can find new opportunities with e-books and shouldn’t ignore their potential. But the fact remains that a new system that makes it easier for an author to spread her work makes it easier for every author to spread her work — bringing us back to square one in the amount of time and effort needed to build an audience.

Google Books and the Rule of Law— Howard Knopf pens this op-ed about the broader rule of law and international law implications of the Google Books project. “The Google Books project has frequently been likened to a reincarnation of the Library of Alexandria in a digital, fireproof format—because it could include virtually all the world’s important books in an instantly accessible database. However, what has been shown to be technically achievable and widely praised is far from clearly legally viable. There is considerable concern from those who care about core values in copyright and international law, and indeed the rule of law itself. Nobody is above the law—not even Google. Class actions were never intended to usurp legislation and treaties.”

GAO Still Stonewalling on Sources for “Stealing is Good” Report — Chris Castle documents his efforts requesting information from the Government Accountability Office regarding the unnamed experts who advanced the idea of positive effects of piracy in last year’s report on “Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods.”

Cheezburger Networks of sites suck — A very short blog post from photographer Terry Border at Bent Objects, but a great excuse for me to point people to his work. Border uses everyday objects to create whimsical scenes — circus peanuts performing in a circus, for example. Here, he complains about the popular image aggregator sites which misappropriate photos from the web, routinely without regard to attributing the original authors. Says Border, “I’ve heard a couple of comments that blame the submitters to their sites, and not Cheezburger themselves. Well, who put together the way their sites work? They can try to wash their hands of wrong-doing, but it’s their system, and they know the end result will be lots of anonymous images thrown into the furnace of their giant money making machine.” Hm, sounds familiar.

Finally, from the academic world, I recommend the following:

Copyright, Complexity and Cultural Diversity (via Legal Theory Blog) — In this forthcoming Chapter, available at SSRN, Michal Shur-Ofry-

“challenges the prevailing view pertaining to the connection between broad copyright protection and lack of cultural diversity. Prominent scholarship in the field of copyright links the lack of diversity in cultural consumption to the broad copyright protection afforded to cultural works. Copyright, so goes the argument, constitutes a major basis for the activities of mass media corporations, which flood our cultural sphere with formulaic cultural products, whose sole purpose is to appeal to the taste of the masses. The limitation of copyright, so the argument proceeds, would diminish the cultural domination of mass media products, and promote audience exposure to ‘other’, more diverse works.

“The Chapter questions the importance attributed to copyright law in this context. Based on complexity and network theory dealing with the evolution of popularity and the self organization of complex systems, it illuminates the fact that the inclination towards popular cultural works is an intrinsic phenomenon of social networks, and does not depend upon copyright protection. It continues to analyze recent ‘long tail’ data, which indicates that positive changes in the degree of cultural diversity occur even under a broad copyright regime. In light of these observations, the Chapter attempts to offer a broader perspective on diverse cultural consumption, relying on socio-cultural research. This literature indicates that cultural diversity is a complex and multi-faceted issue. The non-linear nature also implies that the level of diversity cannot be easily calibrated by changing the scope of copyright protection. Rather, the attempt to promote diverse cultural consumption must address a series of difficult questions which are outside the scope of copyright law.”

UMG Recordings v. Veoh Networks

By , May 12, 2011.

In the world of current lawsuits dealing with the future of the DMCA, the Viacom and YouTube appeal in the 2nd Circuit may win a popularity contest, but the UMG and Veoh appeal in the 9th will cross the finish line first.

The similarities between the two cases are striking. Like YouTube, Veoh had operated a site allowing users to upload and share videos. Like Viacom, UMG sued the site for failing to do enough to prevent infringing content from appearing in its system. And like the Southern District Court of New York, the Central District Court of California granted summary judgment in favor of the defendant after determining that the safe harbor provisions of the DMCA immunized the site from liability for its users’ actions.

Because of these similarities, the 9th Circuit’s eventual decision may serve as a precursor to the ultimate outcome of Viacom v. YouTube.

Background and Oral Argument

The original court ruling was released September 11, 2009 and can be found at UMG Recordings v. Veoh Networks, 665 F. Supp. 2d 1099 (CD Cali 2009).)) Ben Sheffner offers his thoughts on the District Court’s holding.

The appellate briefs of both parties are available online: Brief of Appellee Veoh Networks, Brief of Appellant UMG Recordings.

Last Friday, May 6th, oral arguments for the appeal were heard by the 9th Circuit. You can listen to audio of the hearing here. Attorney Michael Barclay attended the hearings in person and offers his observations at IPDuck.

The appeal actually consolidates three separate actions. Besides the DMCA ruling, Veoh is appealing the court’s denial of attorneys’ fees, and UMG is appealing the court’s dismissal of infringement claims against Veoh’s investors. If you’re interested in those aspects of the case, Eric Goldman has analysis of the court’s attorney fees decision, and Ray Dowd offers his response to Goldman’s analysis. Check out “Capital” Punishment: Evaluating an Investor’s Secondary Copyright Infringement Liability After Veoh, by James L. Proctor, Jr., 16 Washington Journal of Law, Technology & Arts 217 (2011). for discussion on the latter.

Barclay estimates that the court’s opinion will likely take 2-6 months to issue; the 9th Circuit’s own website pegs the time frame at 3-12 months.

Scope of the Storage Safe Harbor

In Is YouTube a Service Provider or Content Provider?, I looked at one of the periphery issues raised on appeal by Viacom — whether, as a threshold matter, YouTube’s actions take it outside the scope of the §512(c) safe harbor, which immunizes online service providers from liability for “infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” That issue plays a much larger role in UMG’s arguments, however, and took center stage at Friday’s hearing.

Because of this, it is likely that the 9th Circuit will be the first appellate court to consider the scope of what service providers can do with material stored on their systems at the direction of a user and still remain protected by the DMCA’s safe harbor. 2The closest is CoStar Group v. LoopNet, a 2004 case from the 4th Circuit.

The key statutory language here is the phrase “by reason of.” Does it imply a broad “but for” causal relationship between a user’s act of storing material on a service and the infringing activities that are shielded from liability? Or does it imply a narrow proximate causation?

The former standard means that once a user has uploaded content, it becomes fair game for a service provider to transform and distribute as it pleases, and it is the standard the district court adopted in an earlier ruling. “Common sense and widespread usage establish that ‘by reason of’ means ‘as a result of’ or ‘something that can be attributed to ….'” 3UMG Recordings v. Veoh Networks, 620 F. Supp. 2d 1081, 1089 (CD Cali 2008). Combine this with the broad readings of the other requirements for safe harbor protection made by the court, and the law is left to state that a service provider can operate a full-fledged, unlicensed content providing service so long as it essentially “launders” the content through its users — and experience shows that users need little encouragement to upload massive amounts of unlicensed and infringing content.

The latter standard is the one UMG argues the 9th Circuit should adopt. It provides legislative history that supports such an interpretation of the language. In addition, it calls upon the notion that when Congress uses specific language in a statute that is similar to language in other statutes, courts should presume that Congress intended for that specific language to be interpreted in the same way that courts have interpreted the similar language in the past. 4See Cannon v. Univ. of Chicago, 441 US 677, 696-98 (1979). In this instance, the Supreme Court has, in the past, interpreted “by reason of” language in other statutes as incorporating a proximate causation standard. 5Holmes v. Securities Investor Protection Corp, 503 US 258, 267-68 (1992).

Judge Berzon prodded Veoh’s attorney on whether its, and the district court’s, interpretation of “by reason of” stood up to scrutiny. At one point, she asked directly, “What’s the stopping point?” While all parties agreed generally that the safe harbor contemplates some form of “access” to the stored material, she wondered if, based on the language and legislative history, there was a distinction between access through normal means — a third-party viewing the stored material through a web browser — and providing access and distribution through a service provider’s own system. If the DMCA was intended primarily to shield passive services that provide infrastructure and “backbone” services, like web hosts, BBS’s, and message boards, that would mean only the first falls within the scope of the §512(c) safe harbor. A broader reading of the statute makes such a distinction irrelevant.

Too Little, Too Late?

UMG admittedly faces an uphill battle with this argument. The district court’s interpretation of the scope of the §512(c) safe harbor is consistent with the interpretation of a number of other district courts, including the court in Viacom v. YouTube. Considering the rapid development of the internet since the DMCA was passed over a decade ago, the 9th Circuit may be hesitant to upend how the law has been interpreted in practice.

I think Wikipedia presents a good example of what I mean by how the law has been interpreted in practice. I think it would be difficult to make a case that Wikipedia is protected by the §512(c) safe harbor — users are only “storing” their contributions to articles in the strictest technical sense.

Yet, most operate under the assumption that Wikipedia is protected under the statute. The Wikimedia Foundation has a registered DMCA agent to respond to takedown notices for infringing material uploaded by users. And, though rare, Wikipedia has received and responded to takedown notices. 6See here, for example. According to Shun-Ling Chen’s article, Self-Governing Online Communities in Web 2.0: Privacy, Anonymity and Accountability in Wikipedia, the Wikimedia Foundation receives two takedown notices a year. I do want to point out that whether or not Wikipedia actually qualifies under the safe harbor makes much difference — the DMCA only removes liability for certain activities but otherwise plays no role in the ultimate question of whether a specific service provider is liable for copyright infringement directly or indirectly. Wikipedia receives so few notices in part because it has a strong copyright policy that is actively enforced by its users. I find it highly unlikely that any court would hold the site liable even absent safe harbor protection.

Wikipedia is just one example of many that shows how common practice seems to have stretched the meaning of §512(c) beyond what Congress may have initially intended for it. It will be interesting to see how the 9th Circuit approaches the question of the scope of the storage safe harbor.

References

References
↑1 6 Washington Journal of Law, Technology & Arts 217 (2011).
↑2 The closest is CoStar Group v. LoopNet, a 2004 case from the 4th Circuit.
↑3 UMG Recordings v. Veoh Networks, 620 F. Supp. 2d 1081, 1089 (CD Cali 2008).
↑4 See Cannon v. Univ. of Chicago, 441 US 677, 696-98 (1979).
↑5 Holmes v. Securities Investor Protection Corp, 503 US 258, 267-68 (1992).
↑6 See here, for example. According to Shun-Ling Chen’s article, Self-Governing Online Communities in Web 2.0: Privacy, Anonymity and Accountability in Wikipedia, the Wikimedia Foundation receives two takedown notices a year.

Friday’s Endnotes – 5/06/11

By , May 06, 2011.

As Trial Begins, Early Results Don’t Look Good for Limewire — This week, record labels and the P2P software company went in front of the jury. Limewire had already been found liable for copyright infringement last year; the trial is focused solely on the amount of damages it is liable for. Courthouse News Service offers some more insight into the first day of the trial. The lawsuit has already spawned two opinions on novel issues regarding copyright’s statutory damages — Loeb & Loeb provides background on them to bring you up to speed.

Star Wars and Transformers — Faza at The Cynical Musician has an interesting discussion of different approaches to merchandising in movies and how it may apply to the music biz.

Digital Radio Paid Musicians $36 Million More Than Paid Subscriptions Last Year — The RIAA released the 2010 numbers for its member labels this week. Among the insights is the fact that digital radio services like Pandora and Sirius XM are far outperforming streaming services like MOG and Spotify.

MPAA Blog — The Motion Picture Association of America, under the new leadership of former Senator Chris Dodd, has recently begun its own blog. Says Dodd in the inaugural post: “I found myself wondering what DeMille, Goldwyn, Louis B. Mayer, Jesse Lasky and Adolph Zukor would have said if they could have seen Avatar—in a theater, in 3D.  What an incredible journey: We’ve come all the way from The Squaw Man to the blue N’avi in less than a hundred years.  That century has been marked—and, in many ways, defined—by the giants of our industry, their incredible creative visions, and their mind-boggling technological innovations.  Movies have come to shape the American psyche—and dominate the attention of consumers—like nothing else.” Check it out — and I’m not just saying that because this site made their blogroll.

Is the Dedicated Songwriter Going Extinct? — “Disruption invariably produces winners and losers, and stand-alone songwriters may just become the losers. That was the sentiment among several top composers at the Rethink Music Conference in Boston” last week, “most of whom were great at describing the problem but lost when it came to generating solutions,” reports Digital Music News.

Wrong Assumptions and Netflix — Ethan Kaplan, former SVP of emerging technology at Warner Music Group talks about why the Netflix business model wouldn’t necessarily work for music. An interesting discussion about the differences between how we experience different media.

That’s it for this week. Keep the great comments coming, and if you have any stories you want to bring to my attention, feel free to contact me.

I leave you from this quote from the Supreme Court made over a century and a half ago: “Whilst the remuneration of genius and useful ingenuity is a duty incumbent upon the public, the rights and welfare of the community must be fairly dealt with and effectually guarded. Considerations of individual emolument can never be permitted to operate to the injury of these. But, whilst inventors are bound to diligence and fairness in their dealings with the public, with reference to their discoveries on the other hand, they are by obligations equally strong entitled to protection against frauds or wrongs practiced to pirate from them the results of thought and labor, in which nearly a lifetime may have been exhausted; the fruits of more than the viginti annorum lucubrationes, which fruits the public are ultimately to gather.” 1Kendall v. Winsor, 62 US 322, 329 (1859).

References

References
↑1 Kendall v. Winsor, 62 US 322, 329 (1859).

Who Benefits from Copyright?

By , May 05, 2011.

One of the recurring themes seen in some criticisms of copyright law is that it is weighted too strongly in favor of creators and copyright owners, with the public good taking a back seat.

A couple of recent online posts provide examples of this argument. The first is from politician and Swedish Pirate Party founder Rick Falkvinge, who writes at TorrentFreak about Why the Copyright Industry Isn’t a Legitimate Stakeholder in Copyright. Journalist Julian Sanchez provides the second in Things that are Irrelevant to Copyright Policy.

Both provide similar views of what copyright policy should be. Falkvinge states that the purpose of copyright “is to maximize the available culture. Nothing more and nothing less.” To Sanchez, the question when considering copyright policy “is whether a marginal restriction on the general ability to use information incentivizes enough additional information production over the long run to justify denying that marginal use to every other human being on the planet, whether for simple consumption or further creation.”

I don’t want to go into a deeper discussion of either article here (though I welcome readers to discuss them further in the comments). Rather, I want to address the broader point made, as it is emblematic of a point made by copyright critics.

It’s true that copyright’s ultimate beneficiary is the public. But the immediate beneficiary is creators. More importantly, the best way to ensure the public benefits the most from copyright law is by ensuring that creators have secure and stable rights to their creations. It makes little sense to argue otherwise — if the public benefits from the creation of new works, how is that interest served by reducing the incentive to invest in creating new works?

How Copyright Benefits the Public

In the US, the Constitution gives Congress the authority, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors … the exclusive Right to their … Writings.”

Explanations of how the public receives its benefit through the law begin with the author of the Copyright Clause itself, James Madison. In the Federalist Papers, No. 43, Madison writes, “The public good fully coincides in both cases with the claims of individuals.”

Since then, the Supreme Court has expanded this explanation:

• “Copyright is a right exercised by the owner during the term at his pleasure and exclusively for his own profit and forms the basis for extensive and profitable business enterprises. The advantage to the public is gained merely from the carrying out of the general policy in making such grants and not from any direct interest which the Government has in the use of the property which is the subject of the grants.” (Emphasis added.) 1Fox Film v. Doyal, 286 US 123, 130 (1932).

• “The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’ Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.” (Emphasis added). 2Mazer v. Stein, 347 US 201, 219 (1954).

• “The limited scope of the copyright holder’s statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.” 3Twentieth Century Music v. Aiken, 422 US 151, 156 (1975).

In Eldred v. Ashcroft, the Supreme Court took on the idea sometimes made that there is some kind of bargain implied in the Copyright Clause. 4537 US 186, 214-17 (2003). It is not a quid pro quo, as the grant of patent rights entails. With copyright protection, “disclosure is the desired objective, not something exacted from the author in exchange for the copyright.” As explained by the Court, unlike patent law, “copyright gives the holder no monopoly on any knowledge. A reader of an author’s writing may make full use of any fact or idea she acquires from her reading.”

Access to Culture

At times, copyright’s critics argue that the purpose of the law is not only to increase the creation of new works, but also to increase the public’s access to those works. This argument only works if we expand the meaning of “access” to include not only the ability of someone to read, watch, or listen to copyrighted works — the number of outlets for getting legal content has exploded in recent years — but the ability to do so instantly, in as many formats as possible, for as close to free as possible.

The four dissenting Justices in Sony v. Universal City Studios warned against this idea of access. It’s “tempting,” they said, to reduce the scope of copyright protection to “permit unfettered use” by new technologies “in order to increase access,” but doing so “risks eroding the very basis of copyright law, by depriving authors of control over their works and consequently of their incentive to create.”

The Justices added these remarks from Abraham Kaminstein, Register of Copyrights during the run-up to the 1976 Copyright Act revision:

I realize, more clearly now than I did in 1961, that the revolution in communications has brought with it a serious challenge to the author’s copyright. This challenge comes not only from the ever-growing commercial interests who wish to use the author’s works for private gain. An equally serious attack has come from people with a sincere interest in the public welfare who fully recognize … ‘that the real heart of civilization… owes its existence to the author’; ironically, in seeking to make the author’s works widely available by freeing them from copyright restrictions, they fail to realize that they are whittling away the very thing that nurtures authorship in the first place. An accommodation among conflicting demands must be worked out, true enough, but not by denying the fundamental constitutional directive: to encourage cultural progress by securing the author’s exclusive rights to him for a limited time. 5464 US 417, 481, n.34 (1984).

Conclusion

The public, rather than copyright holders, is the true beneficiary of the law. It benefits by the creation of works that might otherwise not have been created, and by the exclusive rights encouraging dissemination. Julian Sanchez even notes this, saying, “We are all the massive beneficiaries of millennia of accumulated human scientific knowledge and cultural output, and not one of us did anything [to] deserve a jot of it.”

Barbara Ringer, the first female Register of Copyrights in the US, provides the best summary of the argument against claims that the public’s interest is underserved by copyright law. Her words, spoken over 30 years ago, are just as relevant today:

The 1909 Joint Congressional Committee, in its report No. 2223, made a statement which has been quoted many times and which I agreed with at one time, but which I have ceased to agree with.

I will paraphrase it. It was that copyright is not for the protection of the author, but for the public and that where the author’s interests and the public’s interests conflict, the author must yield.

This sounds great and for a long time, I felt that this was probably correct. But, the more I have looked upon the status of authors in this country and the fact that the public interest is badly served when authors are badly served, I have felt that too often the public interest has been identified with economic users rather than with authors.

In recent years, partly as a result of this whole revision exercise, I have been trying to gage individual issues in terms of their impact upon creativity and authorship, which I consider the ultimate public interest.

The Constitution speaks of the desirability of promoting the progress of science and useful arts, science in the broad sense of learning or knowledge, by offering protection for limited times to authors and inventors.

It seems to me that it is this protection, the exclusive rights that are supposed to be granted to authors, that is the ultimate public interest that the Constitution and its drafters were thinking about.

I do not think that this has ever been fully or even partly realized in any copyright law we have had in our entire history.

[…]

I think that the system that we have had has been based on the desire to induce dissemination, make works available to the public by offering protection to authors.

I think that this system is now subject to some difficulty because of the fact that the new technology has made it an absolute detriment to disseminate. In other words, an author in certain situations who lets the bird out of the cage, finds that there is no way to regain it, that once he has made a tape and it has been played over the radio or television, he finds suddenly it is being pirated or made in duplicates all over the country.

It is very, very difficult in that situation for him to realize any economic gain or reward for his creation and there may be situations in which he would prefer to keep his bird in its cage, so to speak.

I am speaking in terms of music, but I think the example is better in some areas where there is a more realistic possibility of exercising complete control.

The task of your committee, as I see it, is to try in some way to evaluate the impact of the new dissemination media on the basic task of giving authors a reasonable return and inducing them to let the work go out to the public. 6Copyright Law Revision Hearings Before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the Committee on the Judiciary, House of Representatives Ninety-Fourth Congress, First Session on H.R. 2223, pp. 116-17 (May 7, 1975).

References

References
↑1 Fox Film v. Doyal, 286 US 123, 130 (1932).
↑2 Mazer v. Stein, 347 US 201, 219 (1954).
↑3 Twentieth Century Music v. Aiken, 422 US 151, 156 (1975).
↑4 537 US 186, 214-17 (2003).
↑5 464 US 417, 481, n.34 (1984).
↑6 Copyright Law Revision Hearings Before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the Committee on the Judiciary, House of Representatives Ninety-Fourth Congress, First Session on H.R. 2223, pp. 116-17 (May 7, 1975).

How Copyright Expands the Freedom of Expression

By , April 28, 2011.

Ishkur’s Guide to Electronic Music has long recognized by fans of electronic music for its comprehensive and irreverent descriptions of the numerous and protean sub-genres of the musical form. Kenneth John Taylor, the author of Ishkur’s Guide, makes this observation about Miami bass:

Every few years, like clockwork, a Miami Bass track will come out of nowhere and get REALLY big on the Top40 charts. It happened with Tag Team’s “Whoomp there it is”. It happened with 69 Boyz’ “Tootsee Roll”. And it happened (unfortunately) again with Baha Men’s “Who Let the Dogs Out.” For such a fun genre, I’m still trying to figure out why this happens with only a select few songs, and not all of them. Like, for instance, why did Tag Team’s “Whoomp! There it is” make it big and not 95 South’s “Woot! There it is”, when they are practically the same song?

One of the Miami bass groups that did get really big on the charts was 2 Live Crew — the group had seven studio albums that entered the Billboard 200 during the 80’s and 90’s. Sometimes called the “godfathers” of Miami bass, 1John Leland, Singles column, Spin Magazine, pg 76 (February 1989). the Crew was also notorious for writing lyrics that, to say the least, would make a sailor blush.

In 1989, the group released their third album, As Nasty as They Want to Be. At the same time, a “sanitized” version of the album, As Clean as They Want to Be, was released. 2I’m relying primarily on Mathieu Deflem’s Rap, Rock, and Censorship: Popular Culture and the Technologies of Justice, Paper presented at the annual meeting of the Law and Society Association, Chicago, May 27-30, 1993, for details about 2 Live Crew and the Parents Music Resource Center in the discussion that follows. In a curious stroke of circumstance, both of these albums resulted in the band going to court, but for entirely different reasons.

Prurient Interests and Parody

As Nasty as They Want to Be was almost immediately criticized for its objectionable lyrics. Several record store employees in various parts of the country were even arrested for selling the album to minors. 2 Live Crew fought back in Broward County, Florida, in response to actions taken by the Sheriff’s Department to discourage sale of the album.

The ensuing case made its way to the 11th Circuit Court of Appeals, which had to determine whether the album was considered “obscene” under the test laid out by the Supreme Court in Miller v. California. 3413 US 15 (1973). Under the Miller test, obscenity is determined by asking “(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest … ; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” In Luke Records v. Navarro, noting that this was “apparently the first time that a court of appeals has been asked to apply the Miller test to a musical composition,” the 11th Circuit concluded that, since there was no evidence presented that the work lacked “serious artistic value,” the album was not obscene. 4960 F.3d 134 (1992).

Just eight days after the 11th Circuit’s decision in Luke Records was handed down, 2 Live Crew’s lawyers were in front of the 6th Circuit for oral arguments in a separate case.

Along with cleaned-up versions of songs, As Clean as They Want to Be included the song “Pretty Woman”, not present on As Nasty as They Want to Be. The song was a raunchy take on Roy Orbison’s rock ballad, “Oh, Pretty Woman.” Music publisher Acuff-Rose Music had denied 2 Live Crew a license to parody the song; 2 Live Crew recorded and released it anyway, and Acuff-Rose sued for copyright infringement.

The 6th Circuit reversed the District Court’s holding that 2 Live Crew’s version of the song was a fair use, 5Acuff-Rose Music v. Campbell, 972 F.2d 1429 (1992). and the decision was appealed to the Supreme Court. In one of copyright’s seminal decisions, the Supreme Court reversed the 6th Circuit and held that 2 Live Crew’s parody was a fair use, despite its commercial nature and the amount of expression borrowed from the original. 6Campbell v. Acuff-Rose Music, 510 US 569 (1994).

As the Court pointed out in Campbell, fair use often serves the same function of copyright protection itself — to promote the progress of the useful arts. Twenty years earlier, a different court had noted that “the development of ‘fair use’ has been influenced by some tension between the direct aim of the copyright privilege to grant the owner a right from which he can reap financial benefit and the more fundamental purpose of the protection ‘To promote the Progress of Science and the useful Arts.'” 7Williams & Wilkins Company v. U.S., 487 F.2d 1345, 1352 (Ct. of Claims 1973). This promotion of the progress, said the Court in Campbell, is “generally furthered by the creation of transformative works” — works that include parody, which “can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.”

Had either case gone the other way, we would have had some interesting results. 2 Live Crew’s music could have been found to be both lacking “serious literary, artistic, political, or scientific value” yet promoting the progress of the useful arts, or vice versa.

Content Industries’ Defense of Free Speech

While 2 Live Crew’s coinciding legal battles involving free expression and copyright are interesting trivia, they lead me to a broader point about connections between the two issues. Copyright is sometimes criticized as stifling creativity — yet 2 Live Crew’s success at the Supreme Court shows otherwise. And if we dig deeper into the Crew’s obscenity case, we can begin to see, perhaps, that copyright law even played some part in the favorable outcome for the group there.

In the past decade or so, there has been increasing academic interest in the relationship between the First Amendment and copyright law. 8I previously listed a number of articles on this subject in Copyright and Censorship, see especially footnotes 15, 16, and 17. Additionally, as content industries look for more effective methods of addressing online piracy, critics have ratcheted up their attempts to equate copyright protection with censorship. 9See, for example, ICE Seizures Criticism: Magic Words for examples of the criticism surrounding the seizure of domain names as property facilitating copyright infringement.

But what’s often ignored is the contributions of content industries to the protection and expansion of first amendment rights.

Artistic expression, political dissidence, and religious heterodoxy form a sort of free speech triumvirate that has been the target of content regulation most frequently by most societies throughout history. I previously discussed the proclivity for regulating creativity in Artistic Expression, the First Amendment, and Copyright. As the RIAA states, “The history of our nation’s music is also a history of those who would censor that creative expression, afraid of what it explores and exposes.” For a closer look at how pop music in particular has been targeted, check out The History of Banned Rock ‘n’ Roll by blogger Nikkieg23, which includes such anecdotes as this one from 1955: “Police in Bridgeport, Connecticut cancel a dance at the Ritz ballroom featuring Fats Domino. Authorities say the cancellation is because they discovered that ‘rock and roll dances might be featured'”.

2 Live Crew’s brush with obscenity resulted in a flood of academic attention. 10See Deflem’s article linked above. But the tension between ‘obscene’ music and the law had been increasing for some time before the 11th Circuit’s decision.

In 1985, the Parents Music Resource Center (PMRC) was formed to confront what was seen as a problem with pop music lyrics that were sexually suggestive or glorified violence. The Center’s founding members included several wives of politicians, including Tipper Gore, so it was able to quickly gain traction in Washington. Its goal was to pressure the music industry into taking a number of steps to prevent children from being exposed to explicit music, though some of the Center’s husbands wanted the government to step in.

Senator Hollings, whose wife was affiliated with the PMRC, said at a Senate Committee hearing on Contents of Music and the Lyrics of Records, “I will be looking from the Senator’s standpoint, not just to bring pressures to try to see if there is some constitutional provisions to tax, but an approach that can be used by the Congress to limit this outrageous filth, suggestive violence, suicide, and everything else in the Lord’s world that you would not think of. Certainly the writers and framers of our first amendment never perhaps heard this music in their time, never considered the broadcast airwaves and certainly that being piped into people’s homes willy nilly over the air.”

The RIAA strenuously opposed the PMRC’s efforts. It did agree to place warning labels on records with explicit content after initially resisting the idea, but refused the other steps suggested by the Center, seeing them as an affront to its members’ expressive integrity. In a letter to the PMRC, the RIAA said, “the music industry refuses to take the first step toward a censorship mode to create a master bank of ‘good/bad’ words or phrases or thoughts or concepts”.

The parental advisory labels adopted by the RIAA were inspired in part by the movie rating system which the MPAA uses.

Since practically the beginning of the movie industry, the medium was subject to censorship. By the 1920’s, encouraged in part by a Supreme Court decision that the First Amendment did not protect motion pictures, 11Mutual Film Corporation v. Industrial Commission of Ohio, 236 US 230 (1916). numerous states and local governments had censorship boards — administrative bodies whose job was to determine what individuals were allowed to see. But as the film industry grew in size and importance, it began to make moves against the outright censorship of motion pictures.

The forerunner of today’s MPAA, the Motion Pictures Producers and Distributors Association, was formed in 1922 as an industry trade and lobbying organization. It began self-regulating the content of its members, fearing that censorship might make it to the federal level. From 1930 until 1968, the Motion Picture Production Code (commonly referred to as the “Hays Code” when it began) set guidelines for film studios about what type of content was appropriate. It was eventually replaced by the movie ratings system that we’re familiar with today, a voluntary system that describes rather than proscribes the content of films.

Attitudes about the legitimacy of motion pictures as expression also changed during this time. The Supreme Court went from considering films as “spectacles”, not a “part of the press of the country”  or an “[organ] of public opinion”, as stated in Mutual Film Corporation, to having “no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment” in 1948. 12US v. Paramount Pictures, 334 US 131, 166. In 1952, the Supreme Court overturned the holding in Mutual Film Corp. and recognized that the First Amendment extends to motion pictures. 13Joseph Burstyn v. Wilson, 343 US 495. The Court declared a number of movie censorship laws unconstitutional in the years that followed. 14See Superior Films v. Department of Education of Ohio, 346 US 587 (1954); Kingsley Int’l Pictures v. Regents of the Univ of NY, 360 US 684 (1959); Freedman v. Maryland, 380 US 51 (1965); Interstate Circuit v. Dallas, 390 US 676 (1968).

Today, content industry groups like the MPAA and RIAA continue to work toward protecting the free expression rights of their mediums and members. For just one example, see the MPAA’s brief, joined by other trade groups and unions, in Schwarzenegger v. Entertainment Merchants Association, currently before the Supreme Court, arguing that California’s prohibition on the sale of violent video games to minors is unconstitutional.

Copyright’s Role in Protecting Rights

It’s fair to say that creators of all stripes today in the US are more free to express themselves than in decades past. Audiences too can access a wider range of ideas because of this freedom — making their own choices of what to experience rather than having those choices made for them.

And as discussed above, industry groups and trade organizations have undoubtedly played some role in the expansion of that freedom. That they have should not come as a surprise. True, they are motivated largely by self-interest. A company engaged in producing and distributing content wants the broadest latitude of what is acceptable content in a society as possible. Government limits on that latitude, like obscenity laws, increase the risks and costs of the company — either subjecting the company to liability after publication or increasing the time and money spent on ensuring compliance before publication. But self-interest is not a bad thing, as Adam Smith pointed out over 200 years ago. 15“It is not from the benevolence of the butcher the brewer, or the baker that we expect our dinner, but from their regard to their own interest.” An Inquiry Into the Nature and Causes of the Wealth of Nations (1776). And when self-interest coincides with expanding fundamental freedoms for everyone, that’s certainly a good thing.

It also seems evident that the expansion of these rights would not have been as quick or effective absent these groups. Groups have bigger influence than individuals on policy, especially when the interests at stake are diffuse, as is the case with freedom of speech.

Most importantly, however, is the fact that the existence of content industries, and the fact that they have been able to grow and develop to such an extent, owes a great deal to the existence of copyright. The law provides a stable rights system that has encouraged the development of industries devoted solely to the creation of content for content’s sake. The amount of investment in the creative industries would be greatly diminished absent such a system.

Copyright’s role in protecting free speech rights is just one of the values it has for society. It is just one of the reasons why, despite the challenges of the law posed by digital technology and the internet, copyright should continue to serve as the framework for producing and distributing creative works rather than be discarded or hamstrung.

It’s unlikely that James Madison had this concept in mind when he talked about the Copyright Clause of the Constitution in the Federalist Papers, but his words are just as applicable. When it comes to copyright, “The public good fully coincides … with the claims of individuals.” 16Federalist No. 43.

References

References
↑1 John Leland, Singles column, Spin Magazine, pg 76 (February 1989).
↑2 I’m relying primarily on Mathieu Deflem’s Rap, Rock, and Censorship: Popular Culture and the Technologies of Justice, Paper presented at the annual meeting of the Law and Society Association, Chicago, May 27-30, 1993, for details about 2 Live Crew and the Parents Music Resource Center in the discussion that follows.
↑3 413 US 15 (1973).
↑4 960 F.3d 134 (1992).
↑5 Acuff-Rose Music v. Campbell, 972 F.2d 1429 (1992).
↑6 Campbell v. Acuff-Rose Music, 510 US 569 (1994).
↑7 Williams & Wilkins Company v. U.S., 487 F.2d 1345, 1352 (Ct. of Claims 1973).
↑8 I previously listed a number of articles on this subject in Copyright and Censorship, see especially footnotes 15, 16, and 17.
↑9 See, for example, ICE Seizures Criticism: Magic Words for examples of the criticism surrounding the seizure of domain names as property facilitating copyright infringement.
↑10 See Deflem’s article linked above.
↑11 Mutual Film Corporation v. Industrial Commission of Ohio, 236 US 230 (1916).
↑12 US v. Paramount Pictures, 334 US 131, 166.
↑13 Joseph Burstyn v. Wilson, 343 US 495.
↑14 See Superior Films v. Department of Education of Ohio, 346 US 587 (1954); Kingsley Int’l Pictures v. Regents of the Univ of NY, 360 US 684 (1959); Freedman v. Maryland, 380 US 51 (1965); Interstate Circuit v. Dallas, 390 US 676 (1968).
↑15 “It is not from the benevolence of the butcher the brewer, or the baker that we expect our dinner, but from their regard to their own interest.” An Inquiry Into the Nature and Causes of the Wealth of Nations (1776).
↑16 Federalist No. 43.

The Long Tail’s Role in Copyright Debates

By , April 25, 2011.

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

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

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

The internet, of course, doesn’t have the same physical limitations as warehouses and retail outlets. Shelf space is virtually infinite. Content can be easily and cheaply distributed around the world. The shift from an analog to a digital world is radical. In the music world, for example, what once took a vast amount of infrastructure and hundreds of millions of dollars — distributing music to consumers across the nation 1It’s estimated that a national record distribution operation cost $125 million a year in the mid-1980s, according to David Nelson, Free the Music: Rethinking the Role of Copyright in an Age of Digital Distribution, 78 Southern California Law Review 559, 563 (2004). — could be done digitally for pennies. 2Although there are still significant costs involved with preparing the music for digital distribution, and the costs of creation remained relatively similar.

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

If the Long Tail theory is correct, what does that mean for copyright? Anderson and others have predicted that a shift in demand away from hits would reduce the role of those companies that have traditionally invested in content creation — record labels, film studios, publishers, etc. These companies typically rely on a solid framework of copyright law to operate. Content creators in the “tail”, it is argued, are less concerned with copyright’s protections, which could result in a “less rigorous de facto regime for the majority of works.” 3William Patry, A Long Tail Effect on Copyright?, Patry Copyright Blog (Dec 19, 2006). I disagree with the contention that attitudes toward the appropriate scope of copyright protection can be generalized in this fashion. Indeed, there are many examples that can be used to show the opposite.

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

Anderson presents several case studies consistent with his theory. But while a few studies done since the book was published have reached similar results, 4Brynjolfsson, Hu, and Simester, Goodbye Pareto Principle, Hello Long Tail: The Effect of Search Costs on the Concentration of Product Sales (January 1, 2011); Haro, Sainz, and Somalo, Is One Long Tail Enough? (Cuando Una Long Tail No Es Suficiente) (2008). the full range of evidence shows a decidedly mixed bag. 5Òscar Celma, Music Recommendation and Discovery in the Long Tail, (2008).

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

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

These findings are consistent with other research, including that conducted by Will Page and Anita Elberse. In his recent article, In Defense of Copyright: Record Labels, Creativity, and the Future of Music, Brian Day explains, “The results of both Page and Elberse‘s studies suggest that consumer demand for music has remained fairly constant despite the digital transition, with the vast majority of sales clustered around a small group of extremely popular titles.” 621 Seton Hall Journal of Sports and Entertainment Law 61 (2011).

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

And even though there are benefits to increasing the importance of “tail content”, “head content” still plays an important role. The success of hits and blockbusters provides the capital for content industries to take more risks, investing in the creation of non-mainstream and niche content. The importance of hits remains remarkably the same at every level across many different artistic fields — consider how many ballet companies rely on Christmas productions of The Nutcracker Suite to sustain themselves. 7For example, The Washington City Paper notes that The Nutcracker provides 20% of the Washington Ballet’s total ticket revenue each year; The Cincinnati Ballet received 51% of its annual revenue from the Suite in 2008-09.

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

The Internet has thrown open the floodgates of music,offering consumers more selection than ever before. As the previously discussed studies demonstrate, however, increased access to music does not suggest that consumers’ appetite for music has changed or that record labels have artificially restricted musical diversity or creativity. To the contrary, the studies demonstrate that record labels successfully satisfy consumer demand by providing useful art to consumers. Without record labels, the long tail would likely grow even longer, requiring consumers to sift through thousands or perhaps millions of songs in hopes of stumbling upon a hit. Labels provide expertise in determining which songs and artists will appeal to specific groups of consumers, and invest significantly to market and promote their selections. A review of Billboard’s Top 100 most popular songs affirms the continuing popularity of label-funded music and artists. 8In Defense of Copyright, pp 87-88.

References

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

Friday’s Endnotes – 04/22/11

By , April 22, 2011.

Copyright Blog | Arguments, debates and ideas about copyright — Dominic Young has started a new blog, bringing his extensive experience working with copyrights from a business (rather than legal) perspective. Young hopes to counter the many voices critical of copyright, believing it instead to be “a hugely positive driver of many of the things it stands accused of inhibiting.” He already has a number of excellent and thought-provoking posts, like Mish-mashing-up (on mash-ups), How do we know copyright is working?, and Perfect economies (on “freemium” business models).

How I learned to stop worrying and love the copy — Many of the arguments made in favor of copying music and video are just as applicable to copying money, as James Gannon humorously points out. “Gutenberg did not invent the printing press so that it would be controlled in the hands a few rich and powerful central bankers who desperately cling to outdated business models. With the advent of digital technologies, everyone can and should be free to copy their own money.”

Innovation and the Creative Community — The Copyright Alliance’s Sandra Aistars refutes the oft-repeated notion that copyright somehow stifles innovation. It instead promotes innovation, in sometimes striking ways. Just one example provided by Aistars: “A lighting system created by Luminys Systems for film sets now is in use by car companies for crash test videos that help make cars safer.”

Raising Movie Funds on Kickstarter — Screenwriter John August (credits include Charlie and the Chocolate Factory, Big Fish, Go) has notes from a talk by  Kickstarter founder Yancey Strickler during Sundance. Some numbers specifically related to film funding through the site as well as useful tips for indie filmmakers looking at fan funding. $15 mil raised in 2 years for film projects is heartening news for new and emerging film-makers, though still a far bit away from what established studios invest in making movies.

Losing Independence — Andrew Keen, writing for the DGA Quarterly, points out that piracy hurts low- and mid-budget films the most. Keen says, “[Jason] Reitman [director of Up in the Air and Juno] has a term for the type of motion picture facing extinction because of piracy. He calls them ‘tweeners’—the movies between the $10,000 YouTube home videos and the large-budget studio productions. Reitman sees the ‘tweener’ as the lifeblood of the creative industry—producing movies as culturally significant and economically successful as Lost in Translation, American Beauty, and Pulp Fiction. It’s these movies, he believes which ‘push cinema forward,’ producing the Sofia Coppolas and Quentin Tarantinos who then go on to make bigger budget and more lucrative movies.”

The truth about TV ratings, online viewing, and sci-fi shows — Craig Engler, GM and SVP of Syfy Digital, does a tremendous job explaining the complex and sometimes confusing inner workings of the television biz to the general public. This is an older article, but well worth a read. Engler is also on Twitter (@Syfy), where he often takes biz-related questions from his followers.

The IP and Entertainment Law Ledger— the online-only newcomer to law journals from NYU School of Law has just “published” its Spring 2011 issue. I highlighted Andrew Berger’s article on statutory damages in yesterday’s article about the Tenenbaum case. Also worth checking out, Graham Ballou’s Substantial Disparity: Copyright Chaos in the Second Circuit.

Working as a Musician — Cynical Musician Viridian Faza has some advice for making money as an indie artist. Hint: it doesn’t involve giving it away and making up for it in volume.

The Wrecking Crew — “From the start of rock ‘n’ roll through the nineteen eighties, there were about two dozen people who played on seemingly every hit record produced in Los Angeles.” Collectively known as “The Wrecking Crew”, Music Industry Newswire takes a look at the amazing group of session players and the forthcoming documentary based on them.

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