Session 3, Copyright
Abraham Bell (& Gideon Parchomovsky), Copyright Trust
Incentives to create: if we recognize too few owners, then we haven’t incentivized them enough. If we have too many owners, we disturb the efficiency of use. Many owners with power to license creates an effective commons, because the price of licensing would be driven down; play them off against each other. Many owners with vetoes = effective anticommons.
Many doctrines: work for hire, joint authorship, collective works, transfer, sole authorship, implied license. Tasini: easy to end up outside the collective works privilege. Transfers themselves are imperfect/subject to termination.
Their idea: copyright trust, alternative form of ownership. Could be adopted by parties by contract or by court after the fact. Not all or nothing; greater v. lesser. Division between beneficial and trustee ownership, w/owner trustee and owner-beneficiary. Beneficial shares may be unequal. Standard fiduciary duties. Mastermind will control the use of the work but not necessarily get all the profits.
Sources of inspiration: property, allowing division of equitable and legal ownership; corporations law—division of ownership and control.
Q: is this mandatory or voluntary? If voluntary, they can contract into it and arguably does exist, e.g., for movies w/big stars; writers share income with publishers. Fiduciary duty is not the same, but duty of good faith does exist.
A: Wouldn’t be mandatory, but there are situations where people didn’t think of it in advance—Aalmuhammed v. Lee, Garcia v. Google, Effects Assoc. v. Cohen.
Rosenblatt: relatively common/well known in entertainment industry: back-end deal; several unions provide for residuals. Not an ownership-type right but an income stream that comes as a result of success. Devil’s in the details. One is individually negotiated, the other isn’t. Those are key details. These cases happen because of non-union employment.
A: Mandatory isn’t the word to think of. Post hoc or ex ante. We should deal w/ residuals—closest thing contractually that exists.
Bob Brauneis: Now we have a test: author or not. You are adding a third category: author-trustee, author-beneficiary, and nonauthor. How do you figure that out post hoc when the parties by definition haven’t come to an agreement? What is the test for the ownership-author versus the control-author?
A: Something very close to the Aalmuhammad court: among the people who otherwise look like authors, is there a mastermind? If there is a clearly dominant person, that’s the owner-trustee, and everyone else who prima facie satisfies the criteria of authorship satisfies the criteria to be author-beneficiary.
Brauneis: so anyone who makes a creative contribution intended to be folded into a creative work is an author?
A: this is the problem with having a low threshold for © protection. Anybody can be an author. Aalmuhammad is a drastic solution to the problem that everybody is an author; we are something in between.
Brauneis: I’m just curious about what that something is. [Agreed: he seems to be going to “everybody is an author.”]
A: everyone who satisfies the statute on its own terms is an author-beneficiary.
Q: if memory serves, Aalmuhammad got paid. If I’m the trustee, how much money does he get?
A: practical problem of figuring out shares.
Q: The industry will indeed care about the answer.
A: Apportionment happens all the time. © judges make value judgments all the time. Thinking in advance is always the better solution, but if they haven’t, we should be able to land between zero and one.
Brauneis: you could stick with the even division but give one person control: percentage is separate from the issue of control.
Q: CARP requires 18 month proceedings with huge records. That could be very unhappy for district court judges.
Rebecca Curtin, The Transactional Origins of Author’s Copyright
Practice before the Statute of Anne might have affected that evolution in © history by which we started off with the Stationer’s right, protecting an infant industry à a right for authors.
Licensing Act expires in 1695: censorship in return for protection; Stationers try to get the quid pro quo up and running again, or if not that at least protect the industry. Doesn’t get political traction. Then stationers start arguing on behalf of author’s copyright. Rhetoric is there even if the rights are not.
Looking at what happened before to explain the Statute of Anne, and also potentially as a way to explain the renewal right. Stationers’ petition, Feb. 26, 1706: “Discouragement of Persons from writing Matters, that might be of great Use to the Publick.” But there’s more emphasis on alienability and transferability in the rest of the petition. Many learned men who used to dispose of their copies, and their families, are being hurt. Looking for descendibility, devisability, divisibility.
1709 Petition: subtle changes; this one is ultimately successful. Protecting the ability of the author to sell to the stationers.
Before 1709: do transactions give authors more rights than the legal default? There are examples. Typical entry: name of printer/bookseller and title; author doesn’t have to be part of it. But: a handful of alternative transactions. E.g., additional note: copy never printed again w/out author’s consent. A reversion/right of first publication. More complex contracts: similar to royalty streams. Milton’s contract for Paradise Lost called for a stream of contingent payments. Another example: author paid in copies. If the book proves popular, he can sell those copies. Author’s discount for copies, allowing author to get not just clawback rights but opportunity to become his own retailer. These kinds of experiences allow people to be comfortable with the idea of authors’ rights, understanding that transferability would favor printers anyway because of the barriers to entry—little to fear from authors’ rights.
Jessica Silbey: tracing everyday practices through evidentiary fragments is great. Are there other indices of bargaining power you are ascribing to authors? Who are they? Repeat players? Can you attach names?
Rosenblatt: reminds me of movie deals—clawbacks, pay or play, etc. More like movies than the current book industries.
Ben Depoorter (& Alain van Hiel), The Dynamics of Copyright Enforcement
Enforcement against noncommercial online infringement. Initial campaign; enforcement letters to campuses; settlement offers allegedly averaging $3000. 2008-2010—industry says it’s abandoning mass suits. But still pursuing high profile cases in the pipeline for statutory damages.
Empirical study: followup study of earlier enforcement studies. Allows us to study enforcement more generally because of changes on axes of certainty and severity: low certainty but high severity (statutory damages); settlement letters medium certainty and severity; Copyright Alert System (CAS) lower severity but higher certainty of getting caught.
So, what was the effect on deterrence? What about norms? Effect of CAS; influence of legal alternatives like Spotify. Research methods: surveys and experiments; a lot of self-reported behavior and reactions to hypotheticals, which have downsides. But this is anonymous and there’s no obvious reason to lie one way or another.
Most students engage in some type of illegal downloading—music, movies. Includes music swapping between devices. 41 of 349 claim never to have done that. Legal subscriptions/purchases—correlation with that and illegal downloads. Illegal downloaders: 92% use legal alternatives too. Future downloading: 29/100 say they won’t use illegal downloads in the future, about the same say it’s very likely—two distinct humps, not much in middle.
How have norms evolved? Industry says it was about education, not deterrence. Moral judgments about downloading music and movies—do you think immoral; does public think it; do peers disapprove? On a scale of 9, immorality of downloading music is at a bit over 4/9—not completely moral. Expectation of peer disapproval is almost nothing (2); expectation of public disapproval is a bit higher.
Change over time—4.5 in 2007, 4.2 in 2011, and down to 4.1 in 2014 (relatively small but downward trend). Moral judgment relating to one’s download history. Those who download a lot think it’s not immoral (3.9); never download think it is (6). But this doesn’t tell you about causality.
How likely is it that file-sharers that download daily will face repercussions: 26.5% think it’s very unlikely, 60% total “unlikely.” Most think 1 in a million or 1 in ten thousand chance. Not much difference in perceptions among downloaders and non-downloaders: both average a bit over 3/9 (unlikely that downloaders will face repercussions). No different perception of enforcement likelihood. Deterrence is not playing much of a role.
Effect of receiving CAS letter: likelihood of perceiving greater chance of being caught was much greater, but very small N (7).
In 2014, less in the way of plans to download illegally than in 2011, but goes from around 4.5 to 4.27. Past behavior predicts future behavior.
Priming: unjust enforcement. What’s most unjust/disproportionate? Statutory damages; private trolls; CAS and RIAA campaign are equivalently objectionable or okay. Not really significant improvement. Is there need for copyright reform/more balanced ©? Statutory damages, but also CAS and settlement campaigns also trigger belief in need to reform.
CAS isn’t a great deterrent for future infringement plans; a little better than the RIAA settlement campaign. Backlash: do people intend to download more if you’re free from risk? CAS = nearly 4 agreement; settlement campaign = almost exactly the same; statutory damages = more backlash by a bit.
Privacy concerns also may be important. CAS is not “norm-superior.”
Heymann: You seem to include P2P and direct swapping. Later questions talk about downloading. What are you trying to test?
A: we said any type of tech where you know you’re paying v. where you know you’re not paying. P2P isn’t as common in 2014 as streaming sites.
Q: did you go outside of © law?
A: no. Students aren’t representative of society as a whole, but in this context they are the primary target audience of the enforcement anyway.
Q: what’s their appetite for risk in other situations, as opposed to this one?
A: we did ask for their views on others’ opinions/preferences, but that would be helpful too.
Elizabeth Townsend Gard (& Geena Yu), Is Fair Use Codable?
Thompson Reuters is licensing the Durationator for use by clients. Launches next week. Every country in the world coded after this year. What we’ve learned from coding the Durationator: how to think through law and communicate results in a simplified manner.
Course: research each case, group cases, create flowchart based on outcomes to see if they were similar in finding, and if dissimilar what mattered. Class split 50/50 on whether fair use could be coded, and pretty passionately so. Wanted to create greater probability though no absolutes. Coding depends on the type of audience you’re trying to reach. Best practices approach might be more practical for local creators/artists, the community we want to help understand fair use.
Next steps: need an army for research—perhaps groups of law students throughout the country. Need many paths doing the same thing concurrently: the way every scholar did it; the best practices approach—put the same info in and put it different ways to see the answers you get. Idea is to have experts put their system in and train it.
Q: qualitative coding?
A: we have to be exploring that. Not like Durationator.