IPSC session 7

Fair Use and the Web

Michael D. Murray, Valparaiso University School of Law, What Is Transformative? An Explanatory Synthesis of the Convergence of Transformation and Predominant Purpose in Copyright Fair Use Law

His perspective comes from teaching art law as well as copyright. Didn’t think fair use was a terrible morass, but following Sag, Netanel, Beebe, and Samuelson, wanted to look at court of appeals cases from a different perspective. His question: is transformativeness one part of factor one, or does it work on all four factors? He thinks it’s the latter—transformative works are fair. Outlier cases are hard to reconcile, but wants to bring them in.

There has to be a change in predominant purpose from the original to the copy. Change in content; function (search engine cases); meaning, message, genre, or recontextualization (Blanch v. Koons); comment and criticism. What doesn’t work? If you allow the valuable, creative expression of the original work to shine through in the second work—this explains Gaylord v. Postal Service, Dr. Seuss Enters., Salinger v. Colting. If you allow the value of the first work to shine through then you’re not transformative. If you overwhelm it with new creative expression then you can still allow it to be seen—Naked Gun 33 1/3 case, Blanch v. Koons. You can’t repackage the valuable expression of the original in a new context/genre/medium but with a similar function or purpose. (I don’t get how this is more than a restatement of a conclusion; looked at from different aesthetic perspectives, the original shines through or not in the Pretty Woman case, Perfect 10, and cases on both sides.) In Gaylord, the photo’s purpose was to memorialize and celebrate Korean War veterans, as was the sculpture’s. (But purpose is not creative expression. In fact, we have extensive doctrine about what’s special and creative about photographic representations of 3-D objects.)

Q: is this helpful? To the questioner, the message in the Dr. Juice book overwhelmed the style because the Simpson murder trial was so disgusting. In Liebovitz, you see Demi Moore’s body and Leslie Nielsen’s head—this standard seems so subjective.

A: but the art was Dr. Seuss’s eye-catching style. You can still appreciate the creative work of Dr. Seuss, even though the meaning and genre differ. (Isn’t this also true of the riff in 2 Live Crew’s Pretty Woman? Or the seductive gleam of the legs in Blanch’s photograph?)

Samson Vermont: consider expression that the copyright owner is likely to create and expression it’s not. Perfect 10/Google: odds were nil that Perfect 10 was going to use images as reference tools in search engine. Change in purpose is not enough; has to be change copyright owner is unlikely to make.

A: Agrees.

Vermont: not clear how factor 2 can be boiled down to transformation.

Haochen Sun: what about the value of nontransformative use? Kind cite to my piece on the value of copying. What’s the consequence for nontransformative uses if we pay so much attention to transformation?

A: There’s a culture of self-expression/self-actualization, but he doesn’t think that the cases are working out that way. Even with a First Amendment purpose, you have to fit the criteria.

Eric Johnson: he tells his students that the most important part of the phrase fair use is “fair.” This is really about drilling down into the analytical framework of fairness, fleshing out the intuition in a way that can be evaluated by onlookers. Do you think your perspective fits with that or are you saying something else?

A: the idea is the First Amendment value of creating new expression. If that’s fairness, that’s borne out by the case law.

Tracy Reilly, University of Dayton School of Law, Good Fences Make Good Neighboring Rights: The German Federal Court Rules on the Digital Sampling of Sound Recordings in Metall auf Metall

Digital sampling is physical replication for use in another song: implicates the musical work as well as the sound recording. Is this legitimate art or theft? Most folks fall where she does, that there is a middle ground. Now sampling equipment is cheap. Sound recordings need incentives: record companies need to recoup their costs of production/promotion.

Led Zeppelin, When the Levee Breaks, 1971: they rented a mansion reported to be haunted in the middle of England. The resulting drum sound is immediately recognizable to a fan. (I’m interested in the language of recognizability given earlier discussions of trademark concerns creeping into copyright and vice versa.) Enigma’s Return to Innocence sampled the drum portions of the recording. This song remains widely sampled, often without a license.

Exclusive rights in US law are limited by fair use as well as by the de minimis defense, except in courts following the Sixth Circuit’s Bridgeport decision which eliminated the de minimis defense for sound recordings. Any sampling without permission is a per se taking. “Get a license or do not sample.” German court picks up on this theme: “Even when a small part is sampled … the part taken is something of value.”

German notion of neighboring rights: not copyright for sound recordings; not considered to be intellectual creations. Granted sometimes to performers but more usually to producers/technical folks responsible for tech/financial contributions. Kraftwerk v. Moses Pelham. Kraftwerk’s Metall Auf Metall was sampled by defendants’ Nur muir. Supreme Court said even if the core of the song hadn’t been taken, the partial reproduction interferes with the rights of the producer of the phonogram. Quality or quantity of plaintiff’s song is irrelevant. There’s a market out there for even the smallest snippets of recordings.

Strange twist: just as Bridgeport held that fair use could apply, the German court said the concept of free use could also apply if satisfied. Bridgeport gave no guidelines on how fair use should be treated in the sampling context, but Kraftwerk gave some odd/impossible guidelines: free use is a defense unless the defendant could reproduce the sounds from the plaintiff on its own or unless the d sampled a recognizable melody. How do we test this in a court? Do we test d’s talent? Financial wherewithal? Bad precedent, because the more unique a sound is, the more likely the d can have a free use defense. (Why is that bad?) Recognizable melody constraint is better—she’d like to propose a refinement of fair use for sampling: to prevail on a defense, d must prove transformativeness but also that p’s song is not recognizable to an average layperson. That would be a proper balance. (Why? What makes sound recordings different from works produced by other successful artists?) Famous artists should be compensated when others use recognizable sound recordings?

Matt Sag: New book by Kembrew McLeod on dysfunctional sampling market in the US—you can’t clear multiple samples, even with millions of dollars and six months to do it.

A: not having enough money to buy the sample doesn’t mean the market doesn’t work.

Sag: but these are also transaction costs.

A: flip side: Pink Floyd, Led Zeppelin, intentionally want to keep their techniques obscure and don’t want to license. They have that right to avoid dilution. People will pay if they have enough money.

Justin Hughes: Sampling problem may go away with tech. You no longer have to rent a castle to reproduce that sound if you have a gifted ear. Real argument that for all the ink spilled, it’s just going to go away as a matter of tech. One great sound engineer per studio.

A: True. Problem is that there are tracks that are hard to replicate, created in analog, and there’s still a market.

I asked my questions in parentheses above.

A: because sound recording copyrights have limits that other works don’t—no performance rights. Thus any part taken is economically viable. (This is like the statement in Eldred that term extension was balanced by letting small businesses play the radio for free. These are different people affected differently. Suppressing x’s expression doesn’t compensate y. Nor does this distinguish sound recordings in Germany, where there are performance rights in sound recordings, nor increasingly where there are digital performance rights even in the US. And, of course, the “economically viable” idea is entirely circular, especially in cases like Bridgeport where the sample is not recognizable.)

McGeveran: if you think it’s ok to imitate really well, then why is recognizability important?

A: because people can’t actually imitate/recreate the sound. There’s a reason sound recording rights are different, and thus any reproduction is a violation. (Those two sentence halves don’t have a logical relationship. The reason sound recording rights are different in the US are historical, and in Germany, as she pointed out, theoretical—the thought is that they aren’t intellectual creations in the same way as musical works, and while we might think that justification is bunk, it doesn’t mean that a reproduction of any fraction of the work is logically entailed in either version of the right.)

Exhaustion and License

Christopher Newman, George Mason University School of Law, “What Exactly Are You Implying?”: Rethinking the Legal Basis for Implied Copyright Licenses

Courts often say in passing that a license is a contract, often a contract not to sue. We get arguments over implied contracts whether they’re implied in fact or in law. He thinks this is wrong. It’s not contract but property. The grant of a license may serve as consideration; a licensor may bind herself contractually not to revoke a license; the actions that result in a license may serve in the creation of a written instrument that memorializes the agreement; but the license itself is a form of property. This doesn’t result in radically altering case law, but it would clean up some confusing/muddy reasoning. May also allow us to tackle more difficult problems later.

First step: what is the distinction between transfer of property interests and contract? Economists: Contract is a means by which we transfer property rights. Lawyers: contracts are means by which we enforce promises. If I promise to transfer property rights and renege, you don’t get the property right as a matter of law. Even if we provide specific enforcement, I will be ordered to perform the specific rituals resulting in transfer of title. Moreover, I can transfer title without a contract. I can even give stuff to you! Conversely, I can’t use contract to alter the rules by which property is transferred. I can agree with Yvette that whenever I wave my hand over something it becomes Yvette’s, but that won’t be recognized as binding on third parties.

This has important implications for first sale, but he’s not going there right now. The question whether a given transaction transferred title, though, can’t be simply answered by contract law.

What is a license? A grant of privilege that is product of your baseline right to assign use of an owned resource.

Is it proper to characterize a bare license as a property interest? Traditional property doctrine denied this because licenses are presumptively revocable at will, and property rights should be good against the world. Only license by deed would be a property interest.

Hohfield: we should regard every privilege to use as an interest, just varying in characteristics. He goes further: even a revocable license gives rise to irrevocable alterations in the landscape of possible in rem claims. Even revocable licenses are not retroactively revocable. If I act while I have a license, my actions under that license will be forever immune to your attack.

If you thought a license was just a contract not to sue, the analysis would be different. The grantor would simply be under contract promising not to sue, even though I could in principle be held liable. Suppose I commit a material breach of the contract resulting in termination: if my earlier acts are within the statute of limitations, you should be able to sue for acts while license was in force. But no one has ever thought this is how license law should work. This is one reason why a license isn’t really just a promise not to sue.

Most licenses are granted by means that objectively manifest intent to permit use. Relevant law is federal for copyright. Thus proper for federal courts to develop federal common law of implied copyright licenses, which they mostly do, though occasionally they worry about contract. Field v. Google: posting content without metatags is an objective manifestation of intent to allow caching. In no sense did the parties have a contract. The license was revocable at will, but the only proper means was to use the metatags.

Thornier cases: author creates and delivers work for parties’ use and agreement fails to address copyright. Effects v. Cohen: a bit divided on the nature of the license. Sounds like a property paradigm at first—Effects created a work, handed it over with objective manifestation of intent that d use it. But then footnote characterizes this as implied in fact contract. That would suggest that objective manifestation of intent wouldn’t be the issue, but rather meeting of the minds. And that’s led courts to hold that there can be no nonexclusive license where parties tried to create exclusive license but failed to make it written, and thus we’re left with no license at all. This leads to messy tap dancing. Better result: failure to comply with §204 defeats exclusivity, but does not affect objective manifestation of consent to use—First Circuit has the best approach to this, doesn’t care about subjective intent.

Why is the implied license in Effects irrevocable? Court’s answer is unsatisfying. Contract paradigm: we’re willing to imply a grant, but we’re not willing to imply a condition precedent of full payment of consideration. If this is an implied in fact contract, we should at least consider whether this was a condition precedent. One-sided ratchet if conditions precedent can never be implied. Better way: traditional common law of licenses. Historical common law, only two ways to make license irrevocable—one by deed, and another by incident to some other valid grant of a property right. If you grant rights to a haystack on your land, you can’t then deny right to enter the land to take it away. Analogy to Effects: delivery of specifically ordered work product. Once we’ve agreed that a particular delivery with an understood purpose is a grant, then it makes sense to say you can’t defeat the purpose of the grant through arbitrary revocation.

Grimmelman: doesn’t state law also govern other means of transferring, like gifts? Symbolic delivery plus acceptance might be the right frame.

A: Easy answer (will do more) is to do choice of law analysis. Intangible right created by federal law = look at federal law.

My reaction, which is not well formed: it seems to me there’s been a similar move in real property (e.g., MERS) for property owners to decide that they want to opt in to contract principles and out of traditional property transfer principles, as part of a status-to-contract move. It hasn’t worked well, but it’s certainly been tried. Is this project about conceptual cleanliness or is there something substantively wrong with a system that treats property as if it were contract? (E.g., consequences to third parties as a result of agreeing to ignore the property rules.)

Daniela Simone, University of Oxford, Copyright or Copyleft? Wikipedia as a Turning Point for Authorship

Not clear that Wikipedia contributors meet standards for joint authorship. Wikipedia’s community culture supports the idea of a common design among contributors, and in the UK there’s no requirement to prove intent, but it’s hard to prove collaboration without intent to work together. Should we infer intent from voluntary creation of work in an environment emphasizing interactivity (editability) as is clear with Wikipedia? Must reflect skill, judgment, creativity to be copyrightable, though the contribution itself need not be copyrightable. Software tester wasn’t joint author despite time and technical contributions, because work was more like proofreading than authorship. Following this reading, editing/resolving disputes are unlikely to count as the right kind of labor. Contribution also has to be more than merely trivial, which would exclude small contributions. Unlikely/uncertain that some Wikipedia contributors would be considered joint authors of pages to which they contribute.

Licenses police authorship/Wikipedia’s notion of collective creativity/non-authorship. Anyone may copy/modify text under appropriate circumstances—attribution, though commerciality is allowed. Such licenses are prevalent, but few cases on their validity. Federal Circuit has held enforceable as contracts, though she doesn’t find that persuasive given problems with consideration. Best seen as bare licenses rather than as a foundation for a breach of contract claim.

Wikipedia doesn’t fit neatly within copyright law’s conceptions. It’s not even a work capable of being finished. Copyleft can alleviate this uncertainty in practice. Culture of sharing relies on and is partly constituted by copyleft, but the legal effect and desirability of such licenses are unclear. Authorship and ownership are separated in Wikipedia in the name of greater good in a way they aren’t in copyright law. Seems to undermine instrumental justifications for copyright law. Is this something copyright just need not concern itself with? (Though Wikipedia demonstrably needs to worry about copyright!) Remains to be seen whether copyright will be stretched over time to cover Wikipedia, or whether Wikipedia will help rewrite meaning of authorship.

McGeveran: isn’t contract required? Is this a problem of copyleft license?

A: she’s cautious about copyleft licenses because of ambiguities, but yes, some agreement-based solution is required.

McGeveran: is the Facebook solution better?

A: no, not as a rule.

Betsy Rosenblatt: this is an IP-negative space because everyone’s part of the community. If we took the community away, would there be something copyrightable left behind? The platform might own it, no one might own it, or someone might own it but it’s hard to figure out who. What’s your take?

A: someone potentially owns it but it’s hard to figure out who.

Rosenblatt: then useful analogy is screenwriting, where authorship is difficult to figure out but they do it anyway; WGA arbitration can decide whose contributions mattered for purposes of credit.

Glynn Lunney: if you’ve contributed enough, you might be a joint author of every page. Or just the entry you worked on. Or you’re not a joint author but you have copyright in your contribution. US law probably would take the last option, since we don’t like the joint author default rules of equal shares.

A: wouldn’t it be too small to be a work?

Lunney: not in the US; almost anything will qualify. So which of those three is best?

A: her argument is that Wikipedia doesn’t need copyright, so she doesn’t want to pick.