What Ifs? Copyright Law I

Michael W. Carroll, Villanova University School of Law, What if the Section 512 safe harbors for online service providers had not been enacted?

If MAI is right, then all transitory copies implicate the reproduction right, creating an explosion of “copyright events” in the digital world. Section 512 limits monetary liability, not the copyright owner’s exclusive rights. Thus, the underlying theory of liability covered is not clear; implicitly, 512 accepts the broad scope of copyright law outlined in the NII White Paper. At the same time, taking the money out of the equation decreases the incentive to test liability theories. (Perhaps we’ll see that in the YouTube litigation.)

512 is a reminder that copyright doesn’t have to be a story of relentless expansion, at least if you have political muscle, even though 512 accepts the general breadth of copyright. Also it’s important that 512 was enacted pre-Napster, whose presence would have made 512 impossible.

Linking: does 512(d) make a difference? Not really; liability would rarely be appropriate anyway. But, without 512 there might have been more litigation clarifying that linking doesn’t exercise any rights, including display. Only secondary liability is appropriate, meaning a judicially enacted notice-and-takedown scheme. Might have had to clarify the Utah Lighthouse case that suggested that linking could infringe.

Core ISP functions: transmitting copies. Netcom had read in a volitional requirement to the reproduction right. 512(a) arguably overrules that, because it’s hard to see what 512(a) means if it doesn’t accept that there’d be infringement in the absence of 512(a). Litigation might have clarified that transmission copies are not “copies,” and Carroll thinks appellate courts would have followed Netcom. Without 512(a), though, there might have been issues with offshore pirate sites – ISPs might have been forced to cut them off.

System caching: A private ordering solution could have emerged leaving essentially the same terms.

512(c) is the one that made a big difference in exempting ISPs from monetary liability for user-directed storage. Storage isn’t one of the exclusive rights in the Copyright Act – so does this include display and distribution as well as reproduction? ISPs as hosts could have been sued for direct reproduction violations – unlike analog landlords, digital landlords own the machines that make the copies. This generated substantially greater uncertainty. Courts might have created a notice-and-takedown scheme through common-law rulemaking, but 512(c) played a big role in fostering web hosting.

In YouTube, we’ll hear from both sides that the other is breaking the “deal” agreed to in 512. Yahoo! and GeoCities were big lobbiers for 512(c), though, and they’re the precursors to MySpace, YouTube, etc. Notwithstanding Viacom’s claims, 512(c) is good for Hollywood – we’d probably still have video sharing, but much more ex ante filtering on legitimate sites. That would have given much more impetus to illegal peer-to-peer applications and led to a buildout of the underground video economy. Also, some of the videos are like fan fiction and should be tolerated uses.

Takeaway: 512 decreased uncertainty, but most ISP functions would still be performed in its absence. Social media would have been driven underground. We didn’t get as much litigation about important doctrinal questions, but the certainty may have been worth it.

Jon Garon, Hamline University School of Law, What if DRM fails?

Steve Jobs says Apple would embrace DRM-free music. Bruce Lehman has said that the DMCA didn’t work out very well, and predicts the rise of new patronage. Garon’s biases: Garon is a typical consumer who hates DRM, gets audiobooks from the library, and skips commercials by only watching DVRed content. At the same time, he’s a playwright and represents copyright owners. Garon agrees somewhat with Lehman, except that we don’t live in the benign world of Canadian government-funded cultural enrichment but a more commercial society.

His thesis: music is different. For music, DRM does more harm than good, ignoring ripped CDs and other sources of music. Only a few percent of music on iPods has DRM. Jobs is right that abandoning DRM would leave the music industry just fine.

But short stories are different – all reasonably sized copyrighted sf stories are available for free on the internet. (I’d love to see the proof of this. It is not my experience, though I admit I have not searched for pirate Frederik Pohl sites.) Big novels are too bulky to read online, but the short story market has collapsed. People are reading a lot less literature. (Is that because of piracy? How could that be so? Are the pirates not reading, just pirating? More importantly for copyright, are people spending less time amd money overall consuming creative works, whether literature or video games? My guess is not.) Commercial publishers can’t afford to take as many risks as they used to. Likewise, theater and independent film are economically unsustainable. Only very short clips are profitable online.

Who will be the new patrons? Consumers. Advertisers, shifting from wraparound to embedded content. Private patrons donating to museums etc.; are these healthy – do we want all theater, all publishing, all opera to follow that elitist model? (Um, what are the chances that, no matter how robust IP rights and DRM, there would be a non-elite-supported opera company? Garon doesn’t seem happy with current tastes in entertainment, but I find it difficult to connect that with lax IP enforcement.) Manufacturers and distributors – Steve Jobs may want to support content to have things to fill his devices.

We can’t follow music. Music is atomized; the album never really worked. We need to get over the failure of DRM for music delivery. If we’re in a world where we can’t fund film or publishing or video games and need to rely on volunteers, technology will just create an ever-greater wasteland.

Michael Landau, Georgia State University College of Law, What if the anti-bootlegging statutes really are upheld under the Commerce Clause?

Martignon in SDNY has been on appeal (for years!) to the Second Circuit. What if the Second Circuit reverses? If you accept that unfixed works and other uncopyrightable works can be protected under the Commerce Clause because they are outside the scope of the Copyright Clause, will it render copyright superfluous? Will it revitalize the database protection attempt? What about the trademark-copyright interface? If you can protect bootlegs forever, maybe you can also protect Mickey Mouse forever.

Also, what if the Second Circuit affirms? Would Congress attempt to fix the hole? If you can fix a sports event simultaneously with its transmission, why not provide that a performance fixed without the performer’s consent is still considered fixed, and to belong to the performer? Why hasn’t Congress done this already, given the uncertainty?

Mary Wong, Franklin Pierce Law Center, What if the WIPO Development Agenda is adopted?

WIPO has been criticized for facilitating the ratcheting up of IP, and for focusing on the alleged economic benefits of high IP protection even though there is no consensus on whether IPRs lead to economic development and social benefits. One size fits all may not be the right solution.

There is increasing involvement in IP issues by NGOs and civil society groups, as well as a recognition of the link between IPRs and human rights. The 2006 Consumers’ International Study on Copyright & A2K on 11 developing countries in Asia found that none of the countries had taken advantage of existing flexibilities in international treaties; generally, they provide greater rights protection than required. Now this issue is part of the development and human rights agenda, providing a perspective from which to decide when there should be limits on IP rights. At this point, even if formal proposals aren’t adopted, there is greater awareness of the development dimension as it relates to already-available limitations and exceptions to copyright, and new interest groups have realized that they need to be at the table.

Q: If the Federal Circuit were in charge of copyright law, would Carroll be so sanguine about the world in the absence of 512?

Carroll: No, because copyright is a common-law field – at least in the 9th and 2nd circuits – and the Federal Circuit lacks the experience and the temperament for that. At that point, probably the parties would have run to Congress.

Lemley: And yet, the Federal Circuit’s take on anticircumvention has been most aggressive in twisting the statute to get the right result.

Bartow, for Garon: Billy Joel sold out South Carolina’s stadium with $80 tickets; Mamma Mia also sold out; local bands sold out. People are spending money on entertainment, just differently. Lucy smoked cigarettes on I Love Lucy. Have things changed that much?

Garon: The cigarette ads were banned. But advertisers have been trying to cheat with product placement from the beginning. The difference is that now we embrace what we used to think was evil and pernicious. Live entertainment continues to matter to us; and music is sui generis in having live performance as an independent revenue stream and having the ability to use branded merchandise as an adjunct as most other art forms can’t. He’s not worried about music. Mamma Mia is a trademark-based content show. The number of Broadway shows that aren’t subsidized are fewer and fewer; but the content is very different from the content in London, which relies less on branding strategies. Some of the differences go to the heart of what kind of society we want to have.

Q for Landau: What implications does Martignon have for a federal right of publicity statute?

A: We need such a statute to avoid problems of copyright preemption. With the exception of name, almost all of the uses for a right of publicity are in copyright’s subject matter, so you could even do it as part of the Copyright Act. But an adjunct to TM law is more likely.

Q: We’d still have a constitutional preemption issue, though.

A: But it would solve state-level differences.

Q for Wong: How do the bilateral TRIPs-plus agreements we’ve been signing affect the WIPO discussions?

A: That’s a key issue for future work, and the next step for the development agenda. (Indeed, we seem to be turning to bilateral agreements precisely because they enable us to leave behind all the new groups that have shown up at the multilateral table.)

Q for Landau: Isn’t the “limited times” for bootlegs the statute of limitations, at least for the person who created the bootleg? That doesn’t help with trafficking, of course.

A: The real harm is the distribution/transmission. Also, if it’s outside the Copyright Clause, nothing prevents perpetual protection. This has an easy statutory fix. Broader question: if the live performance right is eliminated, what about the §106(4) public performance right? The answer there is that the initial work is fixed – but we could say that about the bootleg too.

Q for Carroll: Was section 230 of the CDA a predecessor of 512?

A: Only indirectly. The ISPs were caught in the middle for a lot of forms of liability, but they knew they needed a different deal with the copyright industries than they could get with the plaintiff’s bar, which was their only opposition for 230. Congress was primed for the argument that some new rule was required for these new intermediaries, but mostly Congress just wanted the parties to go do a deal. An interesting issue is 512’s international modeling effects.

Seltzer: Why haven’t we seen more litigation under 512(f) from people harmed by defective notices?

Carroll: Because there’s not enough money in these disputes now that the ISPs are out of it. Other than law professors who want to make a point, most people move on.

Q for Garon: What would be evidence of DRM’s success?

A: It may have already failed. To shift to DRM2, we need the industry to concede the point on music and give up on a one-size-fits-all approach. We need to convince people that film and TV are socially acceptable categories for DRM-protected works. We do condemn people who download thousand-dollar software in ways we don’t condemn music downloaders.

Q: Product placement produces a revenue stream whether or not DRM succeeds. Why won’t we get both?

A: Distributors will look to maximize revenue streams, but artists will balance their individual visions with their commercial needs. A world in which product placement is unnecessary will maintain some space for non-product-placement-based art.

Q: Isn’t it possible that some media are just on their way out?

A: Theater has been declared dead since well before these debates began. What we’ve seen in theater is a change in patronage to large donors. The result: an increased separation between what the general public wants and what the funders are willing to pay for. Mamma Mia is a rock opera, not Les Miz or Andrew Lloyd Webber. The content follows the money.

Q: Artists start out with no money; they’re taking a chance on success, and won’t they continue to do so?

A: Yet people respond to economic incentives to stay in the game – most people give up after 2-3 creative works that don’t find a place in the market. There will always be volunteers, but professionals won’t work if they can’t feed their kids. (And yet DRM just doesn’t seem that helpful to ensure that those kids get fed. Piracy isn’t the problem; the problem, if it is one, is that most people can’t write or sing or draw well enough to make a living doing it.)

Distributors want to maximize eyeballs. There is less and less narrative in film, more violence and explosions. (So if DRM favors distributors over initial authors, as it seems to, I’m not sure how Garon’s prescription treats the disease he sees.) The WPA created an incredible flourishing of US theater – patronage does wax and wane. Historically, though, copyright has contributed greatly to the richness of culture, and he’s worried about that segment.

Q: SF hasn’t died; lots has shifted to graphic novels. TV is better than it’s ever been, even if movies aren’t as good. We’re seeing changes in how talent is deployed, not the collapse of culture.

A: He hopes he’s wrong. But when a 2-hour download takes 2 minutes on your broadband connection, then the collapse will hit.