IP Scholars Roundtable at Drake

Peter Yu continues his awesome conference run, now at Drake.

Panel 1: Copyright and Fair Use

Jason Mazzone, Brooklyn Law School ―Administering Fair Use

Based on the paper he presented at William & Mary. Administrative agencies play a bigger role in other areas of law than in IP/copyright. Here, he wants to fix fair use: its lack of clarity, and the ability of copyright owners to leverage uncertainty to expand their rights. Fair use is a classic case for rulemaking: Congress didn’t want a specific standard because it didn’t anticipate everything that could happen, and courts decide cases that are so specific that they aren’t good general guides. A key part of whatever scheme, whether the agency had advisory or adjudicatory authority, would be preempting attempts to use contract law to get around fair use.
Agencies can provide predictability for large numbers of users at once.

Alina Ng, Mississippi College School of Law ―Property Rights and Access to Information

Copyright optimists have a market-based approach: property rights are necessary and sufficient to get optimal creativity. Minimalists tend more to civil rights, constitutional, social rights arguments: copyright limits spur creativity. §106 rights are given to encourage dissemination. Compare to §102, which says rights are limited to original works in tangible media, which is designed to encourage creativity/innovation. We should think of §106 as privileges, with an economic basis. Hohfeld’s right/privilege distinction can be of use here. Any property rights should be rights of the owner/author; more limited rights should go to the distributor.

Mark Schultz, Southern Illinois University School of Law ―Tolerated Uses and Property Rights in Copyright

Customary, permissive uses are becoming more pervasive and important as digital media are becoming more prevalent. Users don’t bump up against copyright law as much as we often think, but when they do the potential harm is quite high because of things like statutory damages. Wants to respond to skepticism about the use of customary practices—Tim Wu, Jennifer Rothman. He thinks tolerated use is helpful and productive.

Implied license is a good start, but isn’t robust enough. Look to property law: a rich body of insights and theory regarding how we should reconcile adverse or permissive uses of others’ property with property rights. Importing these doctrines by analogy will give us greater certainty and flexibility. We don’t want to encourage copyright owners to put fences around their works to avoid the development of permissive customs.

Examples of custom: The practice of quoting text with attribution: Bridgeport and Ringgold show that text is for some reason treated differently from AV works. Is it fair use? It’s a custom from time immemorial. (Or are Bridgeport and Ringgold just wrong?) Email quoting is similar.

Second, dedication to the public. Are CC licenses revocable? Applying the doctrine of dedication to the public could build a defense against such revocation.

Third, an implied license arises more often when property owners use it defensively, to defend against a claimed easement/adverse use. They say that the use was by permission—it’s understood in the community that neighbors allow each other to do such things; therefore, the use was not adverse and I can revoke my permission. In copyright, this could be potentially important: when you make a use that most copyright owners tolerate, the one who doesn’t (like Prince in Lenz) can currently assert a claim for statutory damages. Treating customary uses as subject to revocable licenses would (1) encourage toleration, because toleration wouldn’t create a risk of losing rights, and (2) protect users from big damages when the copyright owner behaves unusually.

Ned Snow, University of Arkansas School of Law ―Proving Fair Use: Burden of Proof as Burden of Speech

Key question for his project on shifting the burden of proof: Does shifting the burden of proof really matter? Many readers said: only at the margin would it make a difference. But a burden of proof is more than getting evidence. The market impact factor certainly raises concerns of the burden of production—potential markets are speculative—but there is also a burden of persuasion with respect to the first three fair use factors. These aren’t matters of law, but matters of fact as courts deal with them.

First factor inquiry into transformation: that factor is at least as weighty as the fourth, after Campbell. So how would a burden of proof shift affect it? Transformativeness is a qualitative inquiry. This means subjectivity in determinations. People are often confident in their assessments of transformativeness, based on their own idiosyncratic experiences and backgrounds. It can be hard to see a middle ground, and empirically people are often quite convinced that something is either highly transformative or not transformative at all: e.g., CleanFlicks case, where Hollywood movies are edited to remove objectionable content. This inflated certainty is a problem for arguing that a burden of proof shift will make a difference, especially when we’re dealing with a single fact-finder, the judge, on summary judgment—a common scenario. In a jury, there’s more opportunity for different confident people to talk to each other and shake each other up. We might need a clear and convincing standard to matter.

Nonetheless, Snow thinks that burden of proof could make a difference, and that recognizing that transformativeness is an issue of fact would be an important step forward. This has implications for First Amendment analysis as well. (Query: how would this affect the determination in Mattel v. Walking Mountain that survey evidence on transformativeness was irrelevant?)

Sun Haochen, Visiting Researcher, Harvard Law School ―Toward a Public Trust Doctrine in Copyright Law

Copyright has an environmental crisis: copyright industries had all the power in making the law. Expansion of copyright has significantly harmed the public interest in the free flow of knowledge.
Solution: The public trust doctrine from property, where certain areas are naturally and irrevocably committed to the public, even if the government attempts to privatize them. These resources are held in trust for the public. (Funny, we recently touched on trusts in property; trustees now generally have the power to alienate underlying property as long as it’s for the benefit of the beneficiaries. The public trust doctrine seems a little inconsistent with modern private trust doctrine.)

Public trust allows us to implement the insights of public sphere theorists like Habermas: open spaces where everyone can enter on equal terms. By enacting copyright law, the government gives private parties exclusive control of what was free for the public to use. It affects public access to knowledge. And the copyright law we actually have has been manipulated.

If knowledge and information were held in trust for the public, the public would be entitled to them by virtue of membership in the human community. Think of it as a collective right: a right to environmental protection, cultural participation, and/or benefit from technological development. Fair use then is not just an individual affirmative defense but an assertion of public right.

Courts could require copyright owners to allow the use of their works as a social responsibility.

Discussants: Michael J. Madison, University of Pittsburgh School of Law

Everybody talks about the weather, but no one does anything about it: The papers are all about how to fix doctrine. They don’t generally address actual creative practices out there, except in individual cases.

For Mazzone: If the primary goal is to infuse the doctrine with predictability, it seems odd to add administrative to judicial procedures, which seems like it just adds another layer of unpredictability.

For Ng: Focusing on appropriability is an interesting idea. The historic copyright law challenge has been to divide private production, not typically a concern, from public exploitation. This is a different conceptual framework and raises the question what the standard should be—should the standard for originality/creativity be higher? Copyright scholars don’t like to talk about that, partly because of the long shadow of Holmes, but we do often think that some content is good and some is bad, and often that’s driving the discussion—we make fun of Britney Spears, or whoever, when we teach. It’s useful to have that discussion out in public. Eldred was in part about skepticism about Disney; Disney makes bad stuff, therefore we don’t want to make it so easy for Disney to make more stuff.

For Schultz: Wants to solve the problem at the back end, whereas Ng is about the front end. Madison isn’t sure that all the issues Schultz covers fit into “tolerated use”—the question is how long we look at things from the copyright owner’s perspective and when we start to look at things from the user’s perspective.

For Snow: Third-party intermediary liability is where the burden of proof becomes really important. Aimster: failure of proof on noninfringing uses. Likewise, the DMCA makes noninfringing uses key, and the burden of proof might matter hugely.

For Haochen: Madison is skeptical that the public trust doctrine helps. Great book: Joseph Sax’s Playing Darts with a Rembrandt—the argument doesn’t work because of the conflict between the intangible work embodied in a physical thing; access becomes a question of access to both. You may have a public trust right to use a beach, but how do you get to the beach? Property owners fight tooth and nail to cut off access to the beach.

Mary Wong, Franklin Pierce Law Center

How might these models work outside the US? The US has influenced lots of other countries, for good or ill. International standards and norms, especially Berne, affect our ability to change the law. Comparatively: Haochen’s paper, for example, invokes concepts that resonate with Canada’s CCH decision.

One thing she’s been thinking about: when we talk about transformativeness, we don’t always mean the same thing. Purpose, process, result—which do courts choose?

Mark McKenna for Schultz: Likes thinking about ways to deal with these problems other than fair use. Normative principle underlying Schultz’s work: these things that are tolerated ought to be within the copyright owner’s control, even if most don’t care; if the unusual copyright owner does care, it should control. That’s a fundamental difference between your approach and fair use. If the analogy is that the unusual copyright owner is like the unusual, annoying neighbor, it’s not just statutory damages that are the problem. The other problem is that you don’t know who you’re dealing with until you get sued.

Llew Gibbons for Snow: How do you reconcile transformative use with the right to prepare a derivative work? And should we have a patent fair use doctrine?

Schultz: Some of what he’s thinking about stems from pragmatic concerns: Berne, political economy. We’re not going to get a detailed code of established fair uses. Thus: statutory damages are permitted, not mandated by Berne and we can limit them. But he agrees there’s a normative assumption; the universe of uses he’s thinking about include many that probably should be within the control of the copyright owner.

McKenna: Spell out the extent to which you agree that these should be controlled, and the extent to which it’s just a second-best solution.

Snow: Transformativeness/derivative works conflict has been around for a while. Most people can’t answer the question clearly, which bolsters the argument that the burden of proof may be controlling.

Haochen: Note how seeing user rights as collective rights backs the idea for shifting the burden of proof—public rights have to be defeated because they win by default.

Doris Long: One of the virtues of fair use over fair dealing is flexibility: Doesn’t predictability have costs for people who don’t fit into preexisting categories? A separate comment: the user rights focus always runs up against the idea that the users need to get the creators to create first. Land is there, but works need incentives. (Me: Well, they don’t always need incentives as conventionally defined, and they regularly don’t need copyright incentives; nor is valuable stuff always on the land first, so that opposition is far from absolute.)

Q: The more we move to constitutionalize, the more we have problems of entanglement. If we add in an administrative agency picking winners and losers, content discrimination seems to become more worrisome from a First Amendment perspective.

Q: The part of Mazzone’s proposal on preempting contracts hasn’t received enough attention. Why shouldn’t people be able to contract around the baseline rules. On Haochen: distinguish between public trust and public domain—what are the differences? We remove things from the public domain for a time for overall social benefit.

Schultz: He has a strong normative preference for a property approach over regulatory, in part because of the problem of regulatory entanglement. There are ways to insulate regulators—the National Endowment for the Arts has actually done a pretty good job—but mostly that’s because it has a small relative role in the arts; mostly we fund the arts in other ways, including by subsidizing choice through charitable deductions.

Snow, in response to my question about Mattel: His knee-jerk reaction is that the survey on transformativeness ought to be admissible, and like other factual issues go to the jury. (I think this is a mistake, though the issue is connected to problems with surveys, including problems with training survey respondents to understand legal categories and problems with deferring to a percentage of people, even a significant one, when some other significant percentage disagree. If 60% of people see no transformative message and 20% do and 20% aren’t sure, has the plaintiff’s burden of proof been satisfied?)