Tuesday, July 19, 2011

John Tehranian's Infringement Nation

John Tehranian, Infringement Nation: Copyright 2.0 and You: At the outset, I should note that in many ways it’s easier to critique a book by a fellow copyright restrictionist than something like, say, the output of the Progress & Freedom Foundation, whose suppositions about how the world works are so alien to my own that I just read it as wrong all the way down. So this review is largely about the narcissism of small differences.

Tehranian thinks that copyright has gotten out of control in the US, and starts off by offering a hypothetical in which an average professor John accrues potentially billions in liability by going about his day—forwarding emails, taking pictures, teaching by showing his class excerpts from other works, writing his own work with quotations, downloading music from a blog he likes, and so on. He argues that, though most or all of these activities are likely protected by various defenses if they were litigated to the hilt, the law is uncertain enough that his estimate of liability can’t be discounted. I think this is a big rhetorical mistake, as well as a series of smaller legal ones (while some of the examples he offers are tough cases, others are not “likely” protected; they really very clearly are, and litigating would be a good way for the plaintiff to get fees awarded against it, as Righthaven is now finding out to its sorrow). Rhetorically, this terror story is not convincing because we know John won’t be sued for any of this stuff; we also know that even people who are “misbehaving” a lot more than John, downloading full TV shows off of torrent sites for example, are really unlikely to get caught, and thus the hypothetical liability does very little to affect their level of activity. Fear of copyright liability does deter people; it’s just that they’re usually deterred in exactly the wrong way (from making public, transformative or educational uses that are fair or otherwise exempt from copyright control), and there Tehranian and I are in full agreement.

Tehranian also makes a move I’ve made as well, called out by Lawrence Liang: treating the Western autonomous consumer who is fully recognized as a legal citizen-subject as the ideal rights-bearer. So, transforming copyrighted works becomes part of the democratic project, since copyrighted works make up so much of the culture that surrounds us. “The majority of Americans may not exercise their political rights to vote at the polls biennially on election day, but we exercise our economic rights at the store (or cybershop) on a daily basis. And, through these myriad quotidian decisions, we cast our monetary votes by spending our dollars. These economic votes—cast as consumption decisions—are a central part of our individual definition.” Tehranian doesn’t have as much to say to you if you aren’t already a full citizen-consumer.

Tehranian argues that the US registration requirement, which requires registration within a few months of publication or before infringement commences before statutory damages and attorneys’ fees are available to prevailing plaintiffs, discriminates against small authors and in favor of large corporations. Corporations regularly register, and so when you download a song that’s available for 99 cents on iTunes they can threaten you with $150,000 in statutory damages. But individuals are unlikely to timely register, which allows large corporations to steal from them with impunity, since the costs of suit are usually too substantial to justify a lawsuit without the prospect of statutory damages and attorneys’ fees.

Despite the presence of footnotes (which generally deal with other aspects of his claims), he actually doesn’t have much evidence that this latter injustice happens on a regular basis. He argues, for example, that screenwriters are screwed by using the WGA registration system instead of actual copyright registration, but he doesn’t discuss Catherine Fisk’s empirical work which reveals the practical power the WGA system has had for writers (who do better negotiating as a group than using their individual copyrights to extract value from studios), nor does he note that California’s idea submission law packs some extra protective punch not available from copyright. I have no doubt that individual screenwriters have lost credit they should have had, but that’s not because of lack of copyright registration; it’s because of contracts and because any factfinding system is going to get stuff wrong sometimes.

He concedes that allowing every plaintiff to ask for statutory damages and fees would increase the speech-suppressive power of copyright, but proposes to mitigate this with a series of defendant-friendly reforms basically liberating noncommercial transformative use without any need for a case-specific fair use inquiry and allowing commercial transformative uses with mandatory profit-sharing. I could probably get behind that swap, but I wouldn’t pretend that it was a great blow for small artists. His argument is also weakened by his insistence that our failure to award statutory damages and attorneys’ fees to every copyright owner might violate the Berne Convention, a treaty that very clearly does not require that statutory damages or fees be available (and a good thing too for our co-signers, since, while fee-shifting is relatively common in other countries, statutory damages weren’t until we started pushing them on people). It’s true that later agreements like TRIPs do require that “effective” remedies be available, but Tehranian’s not willing to argue in the text that we’re in violation of TRIPs on that front (in part perhaps because other aspects of TRIPs, particularly the three-step test, arguably constrain our ability to adopt the kinds of restrictionist reforms he wants). As we’ve discovered in various TRIPs-related disputes, it’s a lot harder to tell a country its legal system isn’t “effective” than it is to get law on the books.

Weirdly, Tehranian’s proposed profit-sharing system would only apply when the secondcomer had registered its transformative work as a transformative work with the Copyright Office. Except that he’s just spent a great deal of time explaining why small artists don’t know about and won’t comply with a registration requirement, so that won’t be too much protection.

Tehranian has a lot of good arguments (thus, the narcissism of small differences). As he points out, the district court in the Wind Done Gone case bizarrely conflated characters with actual people, along with conflating canon with non-canonical versions, in concluding that Alice Randall’s decision to kill off/marry her versions of Gone With the Wind characters made it impossible for the Mitchell estate to authorize future novels in which the O’Hara/Butler romance continued. Then, for extra credibility, he points out that the authorized Star Trek movies killed both Kirk and Spock at different points, with no apparent harm to the franchise. (Maybe Tehranian’s not a Kirk/Spock fan, but I liked the resonances there, though one could also discuss Stephen King’s narrator in Misery and his ability to resurrect his O’Hara-like character from the dead when necessity required.)

I also particularly liked Tehranian’s point that songwriters in the US are writing in great quantity despite their inability to control who makes a cover version of their songs after first publication. The fact that anyone can mangle their “babies” simply by paying the going rate is a strong argument against the claim we sometimes hear that artists won’t create if they can’t control what happens to their works after they’re released into the world. Maybe the mix is different—maybe you don’t go into songwriting if you can’t handle cover versions—but the overall level, which is what copyright purports to be interested in, is still pretty high. What would be really useful for this discussion is some empirical work on the practices and reasoning of songwriters. I’m willing to bet some of them really hate the cover right, because, sure, they’d like to be able to say no to some covers, but what’s the range of opinions, and why do the ones who hate the cover right keep composing anyway?

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