Friday, October 23, 2009

Vanderbilt conference, part 2

Panel 2: Digital Authorship, Free Expression, and the First Amendment

Christina Bohannan, University of Iowa College of Law

The problem of First Amendment overbreadth/vagueness at the intersection of the derivative works right and fair use. Recent dogfighting case before the Supreme Court provides a point of departure. Prohibits certain video depictions of animal cruelty, with exceptions for those with political etc. value. 3d Circuit’s dicta: might be overbroad, covering speech that doesn’t pose the same problems of harm.

Seems likely that the statute will be held unconstitutional for want of narrow tailoring/overbreadth/vagueness. People won’t know what conduct falls within he exemption.

Relationship between derivative works right and fair use is similar. Both the animal cruelty statute and the Copyright Act regulate speech. In Eldred, the Court applied ordinary rational basis review. Copying isn’t speaking, and the CTEA merely extended duration, not scope of protection, and thus didn’t alter copyright’s traditional contours, including idea/expression and fair use. Derivative works: not merely copying, so kicks over into speech even under Eldred.

Derivative works right does alter the scope of copyright. It’s true that, today, the derivative works right overlaps with the reproduction right, but historically the derivative works right has an effect on the scope of protection. Uncle Tom’s Cabin translation case—existence of the right affects what we think counts as sufficient reproduction to constitute infringement. See also the Dr. Seuss case.

Even if we don’t have heightened scrutiny, overbreadth and vagueness concerns still apply to derivative works. In the dogfighting case, the prohibited conduct was defined very broadly. So too with derivative works. The new work must only be “based upon” the older work—doesn’t say that the new work must copy the expression of the old one. So when Dan Brown goes to Holy Blood, Holy Grail for facts, he might appear to violate the derivative works right on its face. Courts have helped by saying that the user must incorporate protected expression, but the language is still very broad. “Any other form” in the definition is also problematic—Congress said it was codifying fair use in 1976, but at the same time the derivative works right allocates a lot to copyright owners—including uses that they might never have anticipated, or satires.

Dogfighting statute: exceptions for serious literary, artistic, etc. value. Copyright’s fair use works as a similar exception for the derivative works right. At oral argument, Justices pointed out that these were vague terms, and this is also true in fair use. In fact, courts also routinely find that there’s no fair use even when the use falls within the listed categories (criticism, research, etc.). If courts and scholars can’t draw the lines consistently between derivative works and fair uses, how is a layperson supposed to?

Modest proposal to save statute from overbreadth/vagueness. Canon of noscitur a sociis—interpret general language in light of specific language, often used in First Amendment cases. Look seriously at harm issue as well as another constraint.

Alina Ng, Mississippi College School of Law, When Users Are Authors: Authorship in the Age of Digital Media

Authorship is her main concern. Web 2.0 facilitates collaboration, sharing of information, etc. Communal owernship of creative works—wikis, community radio, etc. Plus, once content is produced, distribution networks are vast.

Is there any purpose in using the word property for literary/artistic works?

In the pre-digital environment, the production and distribution functions of the copyright system are separate. A user who made a copy would get an inferior result compared to a publisher-produced copy. Author-publisher-user model assumed an efficient market would transmit works to the market. If we move away from patronage, we need to allow rights to transfer from author to publisher. Need exclusive rights to allow author to recover costs of publishing. Efficient market = learning and progress.

Now, the production and dissemination functions of copyright have merged. The user can be publisher and distributor. Authorship isn’t necessarily commercially motivated; baseline right to exclude isn’t necessary and may be waived; economic efficiency is not obviously a normative criterion for protecting works as property.

Authors always borrow from others, so she’s not insisting on the romantic author as a feature of the analog world—but we can identify borrowing, as when Milton borrowed from the Bible. In the digital world, authorship is more communal; the focus is on sharing and not on borrowing. (I’m reminded of Severine Dussollier’s critique of Creative Commons—by this logic, online collaboration could be seen as a matter of grace and not obligation.) Dissemination has moved towards the author and away from the publisher.

Analog world: exclusive rights are fundamentally utilitarian. Digitally: authorship self-perpetuates through desire to share. Rewards are not economic but personal. People say that propertization and removal from the public domain stifles creativity.

Her view: there is still a need for a strong property rights system, not for the traditional reasons of production and distribution. Sustainability: Property rights serve to identify the original author, recognizing individuality. Should only abridge rights if none of the ideals intended (encouraging authorship, providing a connection between authors and readers) when rights were first recognized will be at stake; if a competing right would be undermined otherwise; or if there will be an unanticipated social cost going beyond the cost anticipated when the rights were first granted.

Alfred C. Yen, Boston College Law School

A preliminary First Amendment analysis of a law that would treat content aggregation of news as copyright infringement. Some have suggested that, if we don’t act, there won’t be correspondents in Moscow, or Afghanistan, etc. One way to deal with this: legislation.

Constitutionality is his concern, not good policy, because (1) legislation has been proposed, and (2) discussing the constitutionality of legislation also tells us something about possible judicial solutions.

Problem: Papers’ information is being reused by others for advertising purposes, and newspapers used to have exclusive access to that ad revenue. Papers sold eyeballs to advertisers. News aggregator: someone who posts links to stories. The paper used to make money because you scanned the headlines as you paged through; now you are scanning your aggregator, and advertisers are paying the aggregator. Papers want that money back.

Possibilities: treat copying headline/lead sentence as copyright infringement, or treat linking as infringement. Does it possess the minimal creativity required for copyright? Currently, not every use of a work is infringing—quotes, classically; and there’s no copyright in facts. Plus, merger: when there’s only a limited number of ways to express something, no copyright.

Conclusion: in most cases, aggregators do not commit infringement. Caselaw: linking doesn’t involve a copyright violation, because a link is not a copy. As for copying: most headlines are not copyrightable, though maybe some clever ones are. Even if a court were to find a headline original, merger would defeat claims, because in the limited space headlines have, there are relatively few ways to express the news. Also reaches the same result with lead sentences. Finally, fair use would still shield a number of uses. Purpose: changed, not from reading the work but presenting the work for purposes of deciding whether you want to investigate further. (Again there’s the question of whether that’s a purpose the copyright owner should control. Many newspaper sites put similar teasers on their home pages.) Amount: small. Nature: factual. Harm: not a substitute for reading the article. But if the real market is the market for advertisers, then perhaps the activity of news aggregators could be found infringing.

What if we changed the law? Eldred. A news case wouldn’t justify deference to Congress—copyright doesn’t normally present First Amendment problems, but that’s because the traditional limits on copyright prevent serious speech impacts. Legislation to protect newspapers would change the traditional contours, both fact/expression (subject matter) and fair use. Intermediate scrutiny of the sort applied in Golan, using Turner v. FCC standard. Turner involved must-carry of TV signals, done to sustain over-the-air broadcasters from losing economic viability to cable.

In Turner, the cable operators alleged violation of First Amendment. The Court said the gov’t purpose was constitutionally acceptable: preserving the benefits of free over-the-air TV; promoting a multiplicity of sources; promoting fair competition. Then asked whether it burdened substantially more speech than necessary. Must-carry was ok: only affected a few channels; increased public access to information. We can imagine the same arguments being made on behalf of regulating news aggregation.

Distinctions between news legislation and Turner: (1) None of the cable operators was prohibited from speaking, which isn’t true in news aggregation—a limit on a certain type of activity. (2) Wouldn’t increase public access to news. (Compared to what? If you really believe that this is necessary to save the news, then maybe it would increase access compared to the no-law world.)

Can Congress do other things? Micropayment liability rule only.

Q for Ng: Are you arguing for moral rights of attribution?

Ng: She hasn’t gone hat far—still wants to call them property rights, allowing the author to exclude users of whom he doesn’t approve. She’s not just concerned with economic incentives.

For Yen: What about a hot news doctrine by statute?

Yen: Hot news could be constitutional, if short term. But it wouldn’t help.

Lolly Gasaway, for Ng: There are also digital works with the same attributes as analog works—no serial authorship, etc.

Gasaway for Yen: How do you differentiate aggregation from what libraries do?

What libraries do is fair use too in a large number of situations. They don’t affect profits; the real question is these new business models. Raises the point that new legislation would have to be limited to figure out what it covered.

Gasaway: If headlines are protected in Europe, even directing to the paper’s site would infringe.

Madison: Don’t you have to show a causal connection between aggregation and papers’ economic woes? Reuse may not be affecting the papers—it’s really about a dramatic decline in classified ads, which has very little to do with content. Doug Baird’s chapter on INS in IP stories. Maybe we need to let newspapers sponsor gambling, or something else that allows them to subsidize news.

Yen: On the general Q of why newspapers are suffering, we don’t really know. The business model is broken, and copyright may be irrelevant. But the decline of newspapers is a problem of social importance. Regardless of reasons, gov’t might want to do something about that. But legislation may not be necessary—a lot of aggregators commit flat-out infringement, taking copies of articles/photos. The papers just need to get off their keisters and sue!

McKenna: On causation, if you could say that the real issue was lost eyeballs, the flipside is that people read articles in papers they’d never otherwise encounter. One might think that a tech fix would be useful: if robots.txt says don’t aggregate, then don’t. But most papers are likely to want aggregation (and payment!).

Yen: Google News does respect robots.txt. Papers want it both ways: payment plus aggregation. That’s a policy question. (Compare to Tasini: the freelancers wanted to stay in the database and get paid; this is a matter of economic leverage, as the NYT was able to tell them that it wasn’t going to do that going forward, and contract prices didn’t change when freelancers started giving up all electronic rights. Even with a legal right in the papers, we might expect aggregators to drive the license price down to pretty low/nonexistent.) Google-AP deal: Google may get extras from AP, similar to the Book Search deal.

McKenna for Bohannon: Does Eldred define the traditional contours? If not, what other things count? We’ve had a derivative right for some time.

Bohannon: Depends on how we look at the time period. Abridgements and translations can be viewed as new forms of the same story. But now there are some unforeseeable extensions, which is where the problem lies. Vagueness/overbreadth don’t necessarily concern traditional contours.

Yen: How broadly would Bohannon’s framework apply? If aspects of the Act are unconstitutional, every argument you make could be applied to substantial similarity and fair use.

Bohannon: Certainly would need to think about substantial similarity. She’s trying to follow up on what courts care about with overbreadth; for her, this is really a problem about the intersection of fair use with the exclusive rights. People find it difficult to rely on fair use in any meaningful way. Publishers/copy shops just won’t rely on fair use.

Yen: Perhaps you should look at libel law, not just overbreadth/vagueness. The truth/falsity line was supposed to govern. But the SCt said judges had to interpret that law in certain ways/certain burdens of proof. Perhaps to avoid a chilling effect we need to say that the thumb should be on the defendant’s side of the scale.

Bohannon: Generally, we say that you can’t condemn speech without finding harm that the gov’t has an interest in avoiding.

Lunney for Bohannon: Never quite gets how you draw the line between constitutional and unconstitutional: making a film from a book v. making a mash-up. Economic analysis has a toolbox for drawing lines, given uncertain empirics. But what does the First Amendment have to say about drawing the line?

Bohannon: notice is key—wherever the line is, it must be intelligible. We don’t know how far the entitlement should go. We need to take harm more seriously, though; in libel, we don’t say that failure to benefit a person is a harm, but in copyright we do say “you could have paid a license fee, therefore you’ve harmed the copyright owner.” Amount/kind of harm usually required for other types of legislation to pass First Amendment muster is greater—we tolerate a lot more speculation with copyright.

Lunney for Ng: Your argument: digital property rights play a coordination role just as they do in the real world. Why do we need coordination when there’s no physical rivalousness?

Ng: Attribution to creator is key.

Lunney: But we don’t let farmers control the subsequent use of their tomatoes; why give authors such control?

Ng: Greater connection between author and work than between farmer and tomato.

My thoughts on Yen: without causation, the argument that there’s no less restrictive alternative to restricting aggregators seems to fail—if the problem is the papers need more money, find some way to give them more money. Fred Schauer has a paper on defamation and papers’ willingness to absorb costs that might be of interest here. Frederick Schauer, Uncoupling Free Speech, 92 Colum. L. Rev. 1321 (1992).

Q: On a practical level, is a focus on harm likely to make it difficult to resolve cases quickly, for example where a defendant wants to release a movie on schedule? (Expelled and its use of Lennon’s Imagine.)

Bohannon: We ought to have a pretty clear showing of harm; First Amendment cases pose a higher barrier in terms of what harm needs to be shown. Copyright law tends to accept might/could arguments more readily. Too speculative.

Cotter: cognizability is part of the fourth factor. Critiquing Lennon’s Imagine is not cognizable.

Gervais: The derivative work is something like dilution in TM: you’re not sure you can prove confusion, but you really want to give the owner control, so you extend the right with a slightly different rationale.

Bohannon: She thinks that derivative works has influenced our perception of the reproduction right; we could get rid of derivative works now and see no diminution of scope, but that might not always have been the case. She thinks of it as a clarifying amendment to the reproduction right—look at substantial similarity of expression, not at whether form changed. She hesitates to say that the entire Act is overbroad, but maybe this is really about fair use.

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