Moderator: Hank Barry, Sidley Austin
Rebecca Tushnet, Georgetown Law School
I’m going to talk about managing the interface between copyright and several other rights—in the very first panel of the conference, Wendy Gordon reminded us that various doctrines channel some claims to copyright and others to patent. I’m going to briefly cover both quasi-copyright rights and their interaction with copyright and also what I’ll call marketing value IP rights and their interaction with copyright.
Two quasi-copyright rights: 1201 and 1202.
1201 anticircumvention: a disaster. 1201 trips up people who are trying to do the right thing, and doesn’t trip up people who are trying to do the wrong thing. The exemption rulemaking every three years is a bonanza for those firms that charge their clients by the hour and a nightmare for everyone else. We start preparing for the next round as soon as we finish the last. We elect presidents less often than we have 1201 exemption proceedings. In real copyright reform, 1201 should be eliminated and ordinary secondary liability allowed to do any necessary work. If not, at the very least exemptions should not expire.
1202 copyright management information: starting to see increasing use—sometimes the pattern with a new legal right is that it remains in relative quiet for a while and then is discovered, which may be happening here. 1202 has differential effects depending on medium, because some kinds of copying are inherently likely to preserve CMI and others aren’t: earlier this week, for example, Boatman v. United States Racquetball Association allowed a 1202 claim to proceed to trial based on garden variety infringement of a photograph. New lawsuits against ordinary reproduction of photos also are starting to include allegations of removed CMI because the way information is attached to photos means that it is very easy to copy the photo without copying the CMI, intentionally or not, and intention is often not an issue that can be decided early on in a case. E.g., Kelly v. Arriba Soft. Depending on how 1202(b) is read, it’s possible that liability for removing CMI can attach without any underlying copyright infringement, just as it’s possible to violate 1201 in the course of making a fair use.
My challenge: Has the CMI provision ever been used independently of an infringement case in an appropriate situation? Was 1202 just another bad congressional prediction about what technology would enable and/or require? It’s notable that 1202 concerns exactly the information that we expect to get out of the “copyright hub,” but I haven’t heard anyone discuss 1202 as something that is enabling us to get to that solution. Copyright owners already have the necessary incentives to provide that information. Nor, if we really do want to use CMI as part of automated systems, is it sufficiently clear that 1202 is only for that. I don’t see the current cases as covering instances in which CMI would have assisted in enabling detection of infringement. Instead, 1202 claims force courts to decide if having a copyright statement on the terms of service page of a website operates as CMI for a poem found on another page on the same site (Personal Keepsakes case, N.D. Ill.), or if a photo credit on the back of a record album is sufficiently connected to the cover photo to count as CMI (Levyfilm v. Fox Sports). If we do open DMCA issues up, this is a looming one. My suggestion: replace with direction to the Copyright Office to study CMI issues and the power to make rules (and not on a three-year cycle, either).
The other quasi-copyright claims on my agenda are two marketing value rights, the TM/copyright interface and the right of publicity. These are preemption issues. Conflict preemption and preclusion operates along with §301 and §301 should also be rewritten to the extent necessary to make that clear.
Dastar said that “origin” in the Lanham Act meant physical origin, not origin of ideas, and that copying an uncopyrighted work was allowed by the copyright law and should not therefore be interfered with by trademark law. This is preclusion, or as Mark McKenna has called it, channeling. In the more distant past, Sears and Compco were very clear statements from the Supreme Court that states could not make it a violation of trademark law to merely do that which one was entitled to do as a result of patent law’s negative space, which is to say copy an unpatentable (or patent expired) article. States could require labeling, but could not prohibit the copying itself on the theory that mere copying was deceptive. The same result should follow for copyright law, and ideally would be made explicit: it’s not a violation of trademark law to produce a communicative work whose subject is out of copyright. This would make the Betty Boop trademark case very easy, and have effects on Warner v. X One X (leaving Warner only with copyright claims based on copying elements of The Wizard of Oz and Tom & Jerry that weren’t contained in the copyright-expired promotional materials).
But courts are at least patchily working their way towards these conclusions now. Legislation could confirm the trend. The real preemption problem is the right of publicity, where courts (mostly the 9th Circuit) have created rights that directly interfere with copyright owners’ exclusive rights. The doctrine on this is metaphysical, and badly so, attempting to distinguish an uncopyrightable persona from copyrightable works depicting that persona in the service of controlling the use of copyrightable works. Among other things, this is like saying that because the natural world is uncopyrightable, there’s no conflict preemption problem with a state law right that bars people from commercially exploiting their copyrighted pictures of the natural world, where commercial exploitation includes selling their photos or paintings for decorative purposes. Just recently, this head-scratcher created yet another tangled loop in Garcia v. Google that distracted from the main issue there. I’m not a big fan of federalizing the right of publicity, but we should federalize its limits: nonadvertising use of material that is authorized by the copyright owner or by copyright law should be outside the scope of the right of publicity because of its conflict with the objectives of copyright law.
Glynn S. Lunney, Tulane Law School
Where is the radicalism at this Berkeley conference? Maybe copyright doesn’t need radicalism. But we seem to think copyright law isn’t achieving its objectives very well. When was the last great copyright act? The DMCA? 1790 was pretty good, downhill since then. Protects too much too broadly for too long. Let’s put more on the table.
The next great copyright act should abolish copyright. A lawyer who is planning to settle doesn’t start with the drop-dead offer. Compromise is the end, not the beginning. Also, he believes we might be better off with no copyright than the Copyright Act we have—long story of public choice inaction leading to law that enriches only a handful at the expense of the rest of us. Would the world look radically different? Coase: the parties will bargain; the government gets it wrong. People can work together and contract around a no-copyright rule. Most copyright infringement cases he dealt with were between former partners—architect/client, songwriter/publisher. Converting copyright to contract would be trivial.
Might make difference for stranger infringement, historically anyway. But now there are EULAs. Contract could accomplish a lot of what we do today. And it would eliminate need to fight about statutory damages.
Coase cuts both ways. If we get too much copyright from the gov’t, private markets can fix that too. If you really believe in markets, the private sector can fix it anyway. Creative Commons = one way. iTunes dropped its DRM. Free & open software. But not universal yet. Why? Some are not market transactions in the sense we ordinarily think; we don’t want the relevant value commodified. Fair use parodies: we don’t think licensing will work well. In terms of well-commodified terms still not working well: (1) markets for these works aren’t generally very competitive. Price competition: all movies $7.50 (lower cost of living in New Orleans, I guess); all iTunes songs $.99 (actually, now it’s $.69, .99, and 1.29, but I take the point). (2) Consumers have limited time/cognitive resources; hard for them to adjust on the fly. (3) Externalities, such as those imposed by bans on reverse engineering.
Jason Schultz, NYU Law School
Patent and copyright background. Patent lawyers are stereotyped as more conservative/nerdy, but they’re kicking our ass in legislative reform. We might want to codify some things to be clear, and others to have flexibility. Kirtsaeng: we got there, whether you agree or not—the statute helps in some ways, but interpretation is also important. What if we took the common law of copyright misuse and nailed some of them down in the statute? The more some restrictions end up in terms & conditions the more we might want statutory confirmation of rights.
Anticompetitive issues: interoperability, accessing facts/ideas, fair use. Anti-cheating clauses (MDY v. Blizzard). Information that allows repair by you or third party. Medical Justice: forms for drs/dentists that claimed copyright in your reviews. Datel flash drives for backing up Microsoft game data. Anti-exhaustion/anti first sale clauses not just with software and CDs, but also on iPhone/other mobile devices, related to jailbreaking.
All sorts of cases where we might want to address these quasi copyright concerns, because they’re rarely ordinary infringement claims. Instead it’s interference w/contract or some other concern. Basic unconscionability doesn’t seem to get the job done, even though these mass market contracts are procedurally unconscionable. Preemption under current §301 and conflict models is insufficient. We could recraft misuse as preemption if we wanted.
To the extent we ID things that are solely for individual benefit, ok, but we shouldn’t necessarily allow people to contravene public policy by private agreement, clickthrough or not.
§301 is just about rights; nothing about defenses. What if we said we should have an equivalent for conflicts with state attempts to restrict exceptions and limitations? This would allow us to avoid identifying particular state issues or particular anticompetitive uses in the statute. Could also allow “fair” breach of contract where copyright law allowed the conduct for public policy reasons/where the copyright is being misused; could allow actual damages from breach but not prevent it.
Could also do something better than §512(f) where there is an abuse of license; create an affirmative claim. Compulsory license = remedy for abuse, or even statutory damages. Copyright trolling where people exploit the power differential with individuals.
Fred von Lohmann, Google Inc.
Quasi-copyright: live in Title 17 but not really part of traditional system: bootleg rules, 1201, 1202. Doesn’t participate in full set of rights/exceptions/limitations. Droit de suite. Also TM claims that abut/interfere with copyright; right of publicity; contract crashing into copyright has created quasi-copyright issues as contract starts to look like right against the world. Also, pre-1972 sound recordings is an emblematic example of quasi-copyright, though not in Title 17—but like others, cause trouble to no one’s ultimate benefit.
Most of these: striking how incomplete they are. When you look at antibootlegging provisions or even 1201, you have a large body of nuanced copyright law with detailed remedial schemes, registration requirements, limitations and exceptions; when compared to Ch. 11 with no limits/exceptions and enormous ambiguity, we would have been a lot better off with the rest of Title 17 instead of this incompleteness. Similarly with pre-1972 sound recordings: what does state law protection entail? Is there a public performance right? Is there secondary liability? Who knows?
Intermediary liability is where the rubber meets the road for the reality of these provisions. Imagine that §107 were to disappear tomorrow. The day after, YouTube would look pretty much unchanged. Because the users wouldn’t know—they don’t know §107 today. If you changed intermediary liability, though, you’d see prompt, immediate, radical changes across platforms. If you care about how copyright is experienced/how it orders the market, you should care a lot about intermediary liability.
1201’s antitrafficking provisions: is that secondary liability? One could argue it is. Gordon v. Nextel: court just assumed that all copyright rules, including secondary liability, also applied to 1202—what would that look like, though? Antibootlegging: not clear whether there’s secondary liability; what’s its scope? How can a provider distinguish a live musical performance from something that’s not covered by Chapter 11? Pre-1972 sound recordings are currently in litigation, and the cases have come out different ways. One ruling found them to fall within the DMCA safe harbor. Vimeo and Grooveshark cases found that they didn’t because they aren’t part of federal copyright law. If you think it’s hard to figure out who owns a sound recording, try figuring out when it was made.
Of course it would be nice if we could federalize them, which would fix the problem. But we need not wait that long.
(1) We shouldn’t have any more quasi copyright law. Could absorb bootlegging into basic features of Title 17. Do we really want islands in the body of copyright that aren’t of the body of copyright.
(2) Or we could try to complete them. Think about limitations, remedies, secondary liability.
(3) Make preemption more sensible so we know where the lines are drawn between TM/copyright/contract.
(4) 512 has resulted in a lot of people reframing non copyright claims as copyright claims in order to get the power of notice and takedown, and that’s creating a lot of tension. Consider whether 512 was for these edge cases
Barry: would contract be more complicated than copyright?
Lunney: yes, but entire destruction of copyright not likely. Antitrust may be most plausible; misuse may have some potential but hasn’t gotten very far.
Wendy Gordon: why little mention of moral rights? Doing things with a copy = proper domain of quasi-copyright. Distribution right blurs the line.
RT: not active, which has to do with distaste for touching §107 and if you don’t do that it’s pointless to talk about moral rights.
Q: we see more reform in patent because patent is formalized—int’l effort, formalities? Little int’l harmonization of copyright by comparison. Also wonders about effect on other areas of copyright that haven’t been hit by the digital revolution—design copyrights. Likes statutory damages—they’re effective for industrial designs.
Von Lohmann: disagrees w/premise: enormous int’l harmonization via WIPO, free trade, multilateral negotiations.
Schultz: patent reform crowd has its act together. Some is politics, but also hard work organizing people and getting them to speak out—programmers, entrepreneurs, small businesses. Trolling may be worse but also better publicized. We have stories to tell too.
Von Lohmann: whatever else you can say about design copyrights, they are copyrights and we know what the rules are for intermediaries etc.
Q: we were doing well under 1909 Act and a lot of quasi copyright comes from calls to harmonize—especially 1101/bootlegging, which may not even have fair use/duration. See calls to harmonize for things like database rights and other quasi-copyright rights. So we could start trusting our own judgment and not that of the EU.
RT: I don’t think that’s driving Congress. We ignore int’l law when we want to.
Von Lohmann: need more discussion of harmonization. But we have laws that result from int’l treaty obligations, like Ch. 11 and 12, and he isn’t as optimistic as Tushnet to say that we violate our treaty obligations when we feel like it. We need to talk about reopening these treaties.
Schultz: Australia, Israel, Canada doing work. There are allies if we want to push back.
RT: first, we need to accept implementations of the kind that we deem appropriate for ourselves.