Wednesday, September 26, 2007

Informal formalities

BNA reports that, at a Sept. 18 Pike & Fischer event, "Legal Risk Management in a Web 2.0 World," Matt Schruers, senior counsel for the Computer & Communications Industry Association, said something very interesting: the technological solutions being implemented by many sites to screen for content posters do not have authorization to post may be reinstating formalities sub rosa.

These technological measures compare submissions to a central database, for example of songs, but only a small fraction of copyright-protected performances are in the database. "We thought that abolishing formalities would protect the little guys," Schruers said. "Instead, we've seen the large content providers drift back towards a form of private-sector protection of content that may end up leaving the smaller players by the wayside."

Separately, Patrick Ross, the executive director of the Copyright Alliance, spoke at the conference. I found one remark particularly telling: "Whether the DRM is on a service sponsored by a rights holder, or is used by an upload service to ensure copyrighted works are treated differently than user-generated-content, there will always be a role for DRM" (emphasis added).

We tell our students that all works are born copyrighted now, that copyright is no longer a verb. (As the Copyright Alliance site puts it, "In fact, every time a child takes crayon to paper, he or she has created a copyrighted work ....") But the fact that even Mr. Ross, whose organization defends strong and ever-increasing copyright rights, thinks in terms of works that are really copyrighted versus those that aren't is evidence that an affirmative desire to claim rights is still important in our moral and practical evaluations of various copying practices.

Copyright minimalists like me are fond of formalities. We have talked a bit about lack of notice as unfair surprise; perhaps, following on
Schruers's observations, we should also talk about the importance of public regulation rather than informal formalities created by private parties.

7 comments:

Bruce Boyden said...

"Instead, we've seen the large content providers drift back towards a form of private-sector protection of content that may end up leaving the smaller players by the wayside." It seems the solution for that would be for Viacom to win in its suit against YouTube; then even small copyright owners could not be ignored.

Rebecca Tushnet said...

What business model are you imagining, if Viacom shuts down YouTube? Since Viacom seems to want better screening, if anything the lawsuit may only accelerate the trend to check everything against a privately maintained database before allowing it to be posted.

Separately, I want to return to explore the idea of opt-out as new formality. The publishers in Google Books say "current law means you have to ask permission before copying, no matter what is or isn't said"; the response is "opt-out is an acceptable rule under these circumstances," which is in some ways reinstantiating formalities. Which actually might seem to raise an interesting question under Berne & TRIPs -- could a court explicitly endorse opt-out as part of a fair use determination?

Rebecca Tushnet said...

Patrick Ross, who's having trouble with comments, writes: Rebecca,



You make a good point about my statement in my prepared remarks for the Web 2.0 conference. I think if you get beyond your semantic critique, however, you know to what I was referring. Perhaps a better way of putting it would be, for example, to say copyright owners wishing to retain their rights vs. those wishing to surrender them. After all, most of these UGC sites have statements saying they assume ownership of your content when you upload it to them.



The point that was being made is that just because we now have technology where I can upload your blog entries to Scribd without asking you first, that doesn't mean you have lost your rights to those entries, and DRM may be a tool to help you preserve your rights if you had an issue with my posting of them.

Patrick Ross

Rebecca Tushnet said...

The thing is, I think the semantics reveal an underlying substantive point, the implications of which we may disagree on but the existence of which we do not: These days, many people who create copyrighted works have no particular interest in exercising a copyright owner's statutorily granted exclusive rights. In the past, with formalities required, people had to opt out of the public domain default when they published in order to get exclusive rights. Now the default is different, and most people who don't earn their living through creative works don't know the rules and stay within the default. But as a practical matter, they still don't care, and won't -- for example -- take steps to get their works put in these private screening databases.

That's okay, but it leaves us with works that are functionally uncopyrighted but still not free for a risk-averse and letter-of-the-law compliant third party to use. And that has costs; it is perfectly reasonable to be willing to accept those costs, but they are very different than the (also significant) costs of the prior regime, in which copyright claimants lost rights because of honest mistakes or ignorance of formalities. In many ways, informal formalities could produce worse outcomes from a small producer's standpoint: it may be pricey to get one's work in a screening database, so it will be harder to claim rights as a practical matter than under pre-1978 rules.

If we're talking semantics, I would also dispute that UGC sites "assume ownership of your content." If you could identify any such sites that require copyright transfer, as opposed to a nonexclusive license -- necessary for legal comfort in a world where every computer user generates reproductions & public displays, etc., a world I thought the Copyright Alliance liked -- I would be happy to warn people about them.

Bruce Boyden said...

Rebecca, I'm not sure I get your question; I'm not talking about business models, or shutting down of anything. Rather, it seems to me that if Google/YouTube wins, then that means ISPs have no duty to implement whatever automatic detection of copyrighted content might be possible; it would just be left to the big players to work that sort of thing out on a voluntary basis, with small players being left out in the cold. But if Viacom wins, then video upload sites *will* have a legal obligation to employ screening measures, at least if they want to retain their 512 immunity, and small players will be able to invoke that without having to get a seat at any negotiation table. If the concern here is that small players will get left out in a voluntary system, you should be rooting for Viacom to win!

Rebecca Tushnet said...

See, I don't think either scenario offers much for small players. If Google wins, I still doubt the trend for screening will go away (and I'd expect a move to impose it legislatively, though whether that would succeed is an entirely open question).

If Viacom wins and YouTube stays in business, it's going to demand a good screening system, but I'm not sure any court would impose a requirement that Google populate that screening system with all existing content. Now, in that world, rather than sending notice to get a takedown, a small producer would send a copy of its work to Google for inclusion into the database, so maybe that's a more effective informal formality. But it's still something that will naturally be more burdensome for small parties. And that's perhaps inevitable. But can we think of better alternatives?

Bruce Boyden said...

Well, I think it's unavoidable that small players will have to do something to protect their works if that's what they want to do. An infringement suit is a hassle, and there's also the burden of "formal formalities" in the form of registration before bringing suit. Creating a hash might not be so burdensome in context.