IPSC 2008: Copyright and Technology, and iP

Copyright and Copy-Reliant Technologies
Abstract | Paper
Matthew Sag
DePaul University College of Law

Sag’s paper focuses on technologies that copy en masse, but do not make the expression of the copies available to the public. The archetype: plagiarism-detection software, which looks for repeated strings of words, and can report on how much of one work was copied from another (10%, 50%) without even showing you the expression. Or Google Books can tell you how many times the word “whale” appears in Moby Dick and other works.

Do copyright owners have a right to object to the functioning of this technology? His argument: a nonexpressive use of a copyrighted work is presumptively noninfringing/fair use. He also investigates the use of opt-out mechanisms in such technologies.

Key doctrines, including idea/expression, substantial similarity and other limiting doctrines, have a common thread: expressive communication to the public is the touchstone of the copyright owner’s right. He also looks at the collective work privilege as interpreted by Tasini—the Supreme Court doesn’t care about how the data is stored, only about how it’s presented to the public, whether it’s presented as the freelancer’s separate work or as part of a whole.

Interesting doctrinal wrinkle: there are lots of cases (strike suits) involving movies where someone who’s written a short work will sue for copyright infringement. They get kicked out at summary judgment, and plaintiffs invariably say “even if the final screenplay doesn’t infringe, you should allow discovery of the unpublished drafts, because that will show copying of my work earlier in the development process.” Courts reject this argument because the rights of the copyright owner are limited to the communication of original expression to the public. We don’t care if you start out with a copyrighted work and revise until you get to a noninfringing work: the only question is whether the result is infringing.

Descriptive proposition: all of the rights of the copyright owner are limited by or at least calibrated in reference to the communication of original expression to the public. Normative: acts of copying that do not communicate the author’s expression to the public shouldn’t be seen as copyright infringement. Prescriptive: There might be reasons to call some such copying infringement, because the distinction between expressive and nonexpressive is occasionally unclear. So rather than having a categorical exclusion and shift the debate into category definition, the better approach is to use this insight in fair use.

Nonexpressive uses should be presumed to be fair uses, basically because of their purpose and character. He thinks the commercial/noncommercial distinction is dead. We have a copyright system to free authors from patrons and government. If that’s what copyright is good for, it’s good for commercial and noncommercial players alike, and we should not discriminate against people for wanting to make money. There may be increased spillovers from noncommercial use, but that doesn’t make Google’s commercial aims relevant to copyright claims against Google Books.

The third and fourth factors: shouldn’t matter unless the copier is interfering with the copyright owner’s ability to communicate its expressive message to the public.

Opt-outs are very common—the remaining question is how to think about them. He thinks they must be relevant in that opt-outs change the market effect, as well as the character and purpose of the use. (On this record, I’m not convinced—the synergy of large databases is harmed by opt-outs.)

Eric Goldman: Google is complicated, because some excerpts can contain significant expression—e.g., AP News headlines. And the cache has the whole thing, which is displayed to the public (Goldman’s always found Field v. Google bizarre on this point, though I’m certain he thinks it’s rightly decided). So Sag should consider disaggregating different Google practices.

Sag: Displaying search results is at least potentially infringement because it displays the expression to the public, so for example display of full-size images as part of image search could be infringing, or excerpts from news stories. He’s focused on the underlying copying that creates the database that is used to generate the search results. Up until the results are displayed, the copying is not expressive. If you ask Google how many books in the Stanford Library use the word “whale,” and Google gives you just a number as an answer, no one would argue that the display could infringe. You assess the merits of the display based on substantial similarity etc.

My comments: I like the proposal as a way of separating out different kinds of uses that have been confusingly lumped under the general heading of transformative use. It’s even a way to combat the pernicious dictum in Perfect 10 that Google’s use was more justified than parody.

Also, in combination with transformativeness as it’s more conventionally understood, this proposal would seem to make the first factor into a parabola—as the use becomes expressive of nothing at all, it becomes more fair; likewise as the use becomes expressive of something other than the copyright owner’s expression, it becomes more fair. Of course you are left with the problem that tweaking a different slider—say, the marketplace harm slider—could in theory make even a nonexpressive use unfair. Sag’s theory is a way of crystallizing the idea that database use isn’t an appropriate market any more than parody is an appropriate market for factor-four analysis.

The Role of Copyright Policy in the Enforcement of Copyright Licenses, Information Contracts and Technical Protection Measures
Abstract
Chris Ridder
Stanford Law School

His paper is about the ways copyright owners can limit uses. He focuses on licenses purporting to bind the public at large, not individually negotiated contracts. Background: Restrictions in licenses can be scope restrictions, or they can be covenants—e.g., agreements to pay royalties. Only contract damages are available for breach of covenants (as opposed to copyright remedies). Sometimes it can be hard to distinguish between covenants and scope restrictions: MDY v. Blizzard. The Terms of Use said that you had to be a human to play the game; the court said that this was a scope restriction—there was only a license for a human to copy the code into RAM, not a bot; he thinks this was a tough call. There can be conditions precedent to rights vesting—if the contract says “pay before you get the right to copy,” then the right doesn’t vest until you pay.

How if at all should copyright constrain conditions precedent? The GPL relies on conditions precedent: you can convey the code, as long as you publish the license and convey the source back to the community. Licensors may also use covenants controlling access, which implicate the RAM copy doctrine. And they use TPMs.

Copyright owners have discretion to choose whatever form they want, and opt in to whatever restrictions they want. For attribution, copyright owners could embed a scope restriction in the license; they could use a covenant; they could use a condition precedent like the GPL does; or they could use TPMs. If attribution is consistent with copyright policy, which he thinks it is, then copyright owners should be able to require it using any method they want. Contrariwise, regardless of the form, anti-reverse engineering terms should be unenforceable.

Creative use of copyright, including preemption and misuse, is the way to deal with this. Unconscionability can also play a role. The tough part will be figuring out what’s consistent with copyright policy. The form of the restriction should not be dispositive; rather, courts should look to the substance.

Q: Easterbrook says license rights are just between the parties, not against the world like copyright.

Ridder: Not true of modern mass market contracts, which apply to everyone who touches the work, making them a special case. The contract in ProCD was like that.

Sag: What about if the copyright owner offers, off-the-rack, a really restrictive $5 license that bars reverse engineering and critical commentary and everything else, and also a $500,000 license that allows such things—wouldn’t Easterbrook’s position be more attractive?

Ridder: Copyright policy still has a role to play.

Christina Bohannon: The touchstone is whether the contract interferes with copyright policy. In ProCD, the terms allowed price discrimination, and price discrimination is generally assumed to increase access to the thing being sold.

Ridder: The problem in ProCD was that the contents were uncopyrightable information.

Bohannon: But the price discrimination increases access to the information, which is consistent with copyright policy. (Whoa, I detect some sleight of hand here, since copyright has a theory about how access to facts is to be achieved.)

Ridder: You shouldn’t be able to get all the remedies copyright allows for material copyright won’t protect.

Rethinking Anticircumvention's Interoperability Policy
Abstract | Paper
Aaron Perzanowski
UC Berkeley School of Law

The DMCA interferes with interoperability much more than traditional IP law. The internal mechanisms intended to safeguard interoperability have largely failed. Reliance on antitrust to solve this problem is problematic. Thus he proposes a legislative fix to expand the scope of §1201(f).

Generally, IP permits and even encourages unilateral efforts to achieve interoperability, unless it entails patent infringement. The DMCA prohibits certain acts of reverse engineering that might be necessary for interoperability. Congress tried to fix this with §1201(f), which both allows reverse engineering for interoperability and purports to allow creation and distribution of circumvention tools for interoperability purposes.

So far there have been no successful §1201(f) defenses, largely because courts have done such a bad job interpreting it. Remeirdes is a particuarly bad offender in this—see the paper for details. Lexmark and Chamberlain, being decided on other grounds, didn’t offer much help.

But it’s not all on the courts. §1201(f) only allows circumvention of TPMs that restrict access to computer programs, as opposed to other sorts of works like movies and music. Why is access to those works important? The relation between iTunes and the iPod demonstrates why we might care about interoperability of programs/devices used to experience audiovisual works.

Antitrust as a remedy? There are three pending class actions against Apple in the US for having 70%+ market share; competition scrutiny of Apple in Europe. Legislation in France requires disclosure of technical information for interoperability, which Apple has attacked as legalized piracy. But he thinks that antitrust is unlikely to succeed, because each of the theories has weaknesses: tying (the iPod and the iTunes store aren’t clearly tied to one another and there are DRM-free options for filling your iPod); essential facilities for people who want to compete in the digital music or digital music player markets (access isn’t denied); refusal to deal (it’s generally ok to refuse to license one’s legitimate IP).

Partial solution: expand §1201(f): permit all sorts of interoperability, conditioned on adherence to/respect for other material restrictions on accessing/copying the works protected by the TPM. So you should be able to circumvent to play your rented video on a different, unauthorized video player, but only if your player adheres to the time-limited nature of the rental.

Hughes: What kind of access/copying controls are unrelated to the playback device?

A: Many TPMs rely on the ability to control hardware in order to impose restrictions, which is a problem. A 30-day-access restriction isn’t connected inherently to the hardware. If someone constructed an interoperable technology to play DVDs, §1201 should just make sure it didn’t allow the sort of copying CSS is intended to block. (Comment: So, bye-bye Linux player? Or Linux players would be ok, so long as they didn’t have record buttons?)

iP: Making Our Culture
Abstract
Madhavi Sunder
University of Chicago Law School

An expansion of earlier work into book form. Clay Shirky’s story about a little girl watching TV, who jumps up and goes behind the screen. Why? She’s looking for the mouse. Culture of the last century was symbolized by a Mouse: Mickey. This century’s mouse is different, a tool for making culture. Culture itself is radically shifting from commodity to community. It’s not off-the-rack, but bespoke—tailored for the self, like Harry Potter fan fiction that foregrounds Hermione or that resets Harry as Hari and gives him adventures on the streets of Bombay. Democratizing culture has a parallel in von Hippel’s Democratizing Innovation. Those who don’t have power over the stories that construct their lives truly are powerless.

The aim: to shift the single-minded focus away from efficiency and the production of more products of culture to the promotion of democratic values and pluralism in which each individual has the power to create the world—to put the “I” back in IP.

The “author function” defined the 20^th century: power and knowledge was controlled by a few (comment: or at least some of us pretended that was true—the challenge to the author predates the 21^st century). Not so anymore. Virginia Heffernan says: The only authentic response to a YouTube video is another YouTube video.

(I think that Sunder is, quite understandably, romanticizing these phenomena; looking at only the good stuff may be a necessary corrective to the way that mainstream media defenders want to compare only their best work, not their worst or their average work, to the average piece of “user-generated content.” Sturgeon’s Law: 90% of everything is crap, and UGC is no different, though perhaps it’s a larger pile. My main criticism is that calling practices of customization and talking-back new, as opposed to newly accessible and salient in an industrialized and internet-enabled world, makes them seem risky and utopian. Practices of distributed cultural production, and individualized interpretation of mass-culture products, are the baseline. It’s current IP that is new and creepingly (creepily?) imperialist. Subcultural reinterpretive practices, along with theoretical investigations of them, are a lot older than I am, and older than the 1976 Copyright Act.)

Traditional IP takes a micro view of production and ignores the macro context. IP is not just economic policy or trade policy; it is social and cultural. WIPO’s new development agenda focuses not on GDP but on freedom: health, equality, democracy, the right to participate in cultural life. As American IP scholars, we haven’t asked ourselves enough what implications this has for our understanding of law at home.

One possible critique of her own argument: This YouTube world is narcissistic, individualistic, and not about community or democracy: the Cass Sunstein argument bemoaning the rise of the “Daily Me” and echo chambers in which individuals surround themselves with likeminded individuals. For historically disadvantaged minorities, cultural democracy allows creation of diverse images; for many minorities, the “Daily Us” Sunstein likes is the “Daily Them.” Also, the proliferation of derivative works shows how people are engaging with one another in shared cultural forms and debates. Many of the benefits in political dissent hold true for cultural dissent as well.

Another critique: Alternative accounts of IP are dangerous because they lead to maximalism, shrinking the public domain. But recognizing the diversity of values is more likely to open up the public domain. New theories of property from personhood enhanced our ability to explain limits on some property rights.

Q: One argument: the internet is just “look at me!” That’s one issue, but the other is Andrew Keen’s The Cult of the Amateur. When everyone can be a moviemaker, what happens to Bergman and Woody Allen? If everyone’s an expert, then no one is.

Sunder: You’ll find examples of narcissism, but the constant viral nature of the discourse means there’s a back-and-forth. Even when someone just shows off their own life, there’s a speaking-to a broader culture, filling in holes in past representations. On the cult of the amateur: yes, we are moving away from the cult of the expert, in favor of a recognition of each person as a valued contributor of knowledge. (I think there’s a lot to be said here about “expert on what”—see the work on Wikipedia about people who contribute substance v. people who edit the articles for style, grammar, etc.)

Q: Look at China, where it’s mainly young men on the internet—who is making this culture? And which groups get left behind?

Sunder: Absolutely—this has been happening for some time, and the move to democratize culture follows on the heels of the Enlightenment itself; culture has lagged in recognizing the right to dissent and talk back. The technology has pushed cultural movements forward much more dramatically.