Kozinski on fair use and injunctions

Judge Kozinski on Fair Use, part of the Washington College of Law’s IP program:

One of the controversial fair use cases of the past few years: Dr. Seuss Enterprises v. Penguin Books: “One knife, two knife, red knife, dead wife.” Kozinski delivered a Seussian take on the resulting litigation, including the deathless lines “it copies rhymes from here and there, it infringes everywhere!” He tried to get a copy of the book from one of the lawyers, but the lawyer pointed out that there was a federal injunction against distributing it!

He finds it difficult to say the opinion is clearly wrong. When you apply a multifactor test with unclear factors, it’s difficult to be clearly wrong, though you can do it if you work at it. The real issue is that fair use doctrine is a red herring that we should just dump.

Fair use is our legal tradition’s way of grappling with the central issue of IP: at what point does protection start to defeat the very purpose of protection in the first place? There’s no place for a nuanced answer about whether something is fair use – it’s binary. It’s infringing and enjoined, or it’s fair use and you can thumb your nose at the copyright owner while you rake in the bucks. Kozinski is uncomfortable with both solutions.

If the disappointed defendants had libeled a living Seuss/Geisel, he wouldn’t be able to get a preliminary injunction, and he probably wouldn’t be able to get a permanent injunction. Copyright is bizarrely different. Congress has given copyright owners the power to burn books. (A line I’ve used myself.) By contrast, you can publish the secret Pentagon Papers!

Public value isn’t an appropriate distinction between the Pentagon Papers and The Cat NOT in the Hat. The district court might have been right that the OJ Simpson book wasn’t all that good, but it involved creative effort and expressed opinion on a topic of considerable public interest. Well, did the authors need to use the Cat in the Hat? Sure, and Paul Cohen could have said “I strongly resent the draft.” Form is content; restrain words and you restrain meaning.

It takes creativity and hard work to write a sustained satirical pastiche that people will be willing to pay money for. It’s not true that this type of satire is just done to “avoid the drudgery of working up something fresh.” It’s also not true that the satirist could pick something else just as easily. Not all vehicles get you where you want to go. You need to start with an original that’s well-known and that either seems congruous or particularly incongruous with the satirical topic. The Capitol Steps had Paula Jones sing “Don’t Cry for Me Justice Scalia,” and it was useful for their message to be able to tap into our associations with Evita.

IP rights aren’t property sufficient to trump the interests of others regardless of circumstance. IP protection isn’t one of the ends of government, but a means to the end, as set forth in the Exclusive Rights clause. Thus, balancing utilitarian considerations is appropriate. In Dr. Seuss, though, the balancing process could have gone either way, and the result is uncertainty for future authors.

Looking beyond the specific, the question is whether courts should have the power to enjoin infringing works in the first place. Private ownership leads to efficient allocations, but private property can also be used inefficiently, as when you say no to Donald Trump’s offer to buy your home for a billion dollars so he can build a casino. You can say no for economic, sentimental, or mean-spirited decisions. We don’t scrutinize the rationality of your refusal.

What happens when holdout authors inefficiently prevent the creation of value in new works? The analogy doesn’t hold because the secondary use is nonrivalrous. So long as authors are rewarded for their contributions, we could all be better off if derivative works can be created.

We also respect the right to hold out in real and personal property not just because they are efficient but because they are anchors of personal autonomy and liberty. Overriding private property every time it would be socially beneficial to do so would be totalitarianism. It’s not clear that the same things apply to IP. Suppose someone writes a sequel to Harry Potter. (Yes, suppose.) If everyone knows it’s not Rowling’s, does taking Harry Potter deprive Rowling of her character in the same way that taking her car deprives her of her car? Her day-to-day life is the same, her reputation is the same. The only thing wrong is that other people are making money off her creation and she’s not being compensated.

Allowing the Dr. Juice book on the market without compensation to Dr. Seuss would be unfair. Much of the value of the book comes not from Dr. Juice’s authorship but from Dr. Seuss’s. So the plaintiff should have been able to share the profits, rather than to enjoin the work.

A different approach to derivative works would offer a nuanced approach to remedies, rather than infringement. If you use someone else’s work to make profits, or in such a way as to reduce a copyright owner’s ability to profit, you’d be held financially accountable. At the same time, there’d be no right to enjoin in most cases. Copyright owners could only collect actual damages or defendants’ profits. Both parties would thus have incentives to bargain instead of sue. (Comment: This of course assumes that defendants/copiers plan to charge for their works; if they don’t, the system breaks down. The question period got into this a bit.)

What if the copyright owner hates the book? It can still sue, alleging actual damages, and if that were true compensation would be in order, along with a portion of the defendant’s profits.

Copyright owners will oppose this proposal. (Comment: What about fair users? Kozinski worries about Seuss’s heirs hating Dr. Juice, but Alice Randall may not want to pay more money into the coffers of what is in her view the racism-built and –glorifying Mitchell Estate.) But don’t worry about that: Betamax shows that copyright owners aren’t great at divining their own interests. Owners of IP are control freaks. Control is possible only in secrecy, though. Once a work is released to us, it enters our minds and becomes ours as well.

People will find new ways of extracting value from IP that original authors wouldn’t risk. Creators always think they’ve created the perfect work. Sometimes they’re wrong. (Comment: Love is not love that alters where it alteration finds?)

This proposal is unlikely to be adopted. But at a minimum, we should think about when injunctions are appropriate.