Thursday, January 28, 2016

USPTO white paper on remix, first sale, and statutory damages

Here.  No love for an exception for noncommercial user-generated content (Canada's YouTube exception), but at least some support for the viability and importance of fair use, including discussion of the OTW's contributions.  What is a bit aggravating is the apparent belief that, because the noncommercial/commercial barrier is permeable, it is therefore of little significance to policy--after all, some noncommercial users might grow up to be professional artists in the field in which they first made noncommercial remix, meaning ... what, exactly?  That art students copying Picassos in the art museum should be licensed and paid-for, because it encourages the development of capabilities that are later employed in for-profit endeavors?  That the person who writes Star Wars fan fiction and later writes NYT-best selling novels about dragons should kick back some money to Disney?  Look, even my alma mater recognizes that it's only entitled to ask for some of my earnings now, despite its contributions to my capacities (such as they are).  That is, the observation "the noncommercial/commercial barrier is permeable," mostly with respect to creators but occasionally with respect to specific works, doesn't entail any inability to identify when a particular activity is commercial or noncommercial, or any reason to disregard that status.  And there's a lot of reason to treat activities that are noncommercial differently because of the different ways that people behave, reason, and learn in noncommercial spaces, even if some of them later take the skills they developed and make commercial art. 

(The White Paper does formally disavow any value judgment as between amateurs/professionals, but its implicit assumption that the natural arc of the amateur is to aspire to professionalism is understandable only in a context that expects or demands monetization to identify value.  I imagine all the drafters have some hobby or other that they engage in--singing in a choir, knitting for friends, telling stories to children--that they never plan to monetize.  Is their development stunted?  Or are they making choices about pleasure and nonmonetizable value that law should do its best not to squelch?  I know where my money, so to speak, is.)

1 comment:

  1. Anne Gilson LaLonde8:27 AM

    The paper was very condescending to fan fiction, I thought. The authors seem to think it's just written by teenagers who can't put a sentence together and are only doing it to learn how to write. Some is like that, true, but the paper has a relatively fundamental misunderstanding of fan culture.