Fordham IP conference, Session 7: Copyright
U.S. Copyright Law: Where Has It Been? Where Is It Going?
Moderator: Morton David Goldberg, Cowan, Liebowitz &
Latman, New York
Prof. Jane C. Ginsburg, Columbia Law School, U.S. Copyright
Law: 20 Years Ago, Today, and What the Future Holds
New interpretive challenges include: who makes a copy—is there
a volition requirement? Then there may
be a copy but not made by a commercial intermediary, and if it’s made by the
end user then that’s a less attractive case.
Derivative works: does one have to intervene into the actual content to
make a derivative work or is an overlay/complementary product also a derivative
work? E.g., Duke Nukem, Family Movie Act where the intervention is in the
playback not in the copy sold to consumers.
Also: is “sale or other transfer of ownership” an indication that the
distribution right is limited to physical copies, since you can’t transfer a
copy digitally; rather you create a new one?
Is distribution accomplished when there’s an offer or when a new copy
has been created, so do you have to demonstrate that someone’s computer
actually created/received a copy? What’s
a performance? Is there a difference
between a stream and a download? Is
individual delivery a pay-per-view performance or a private performance? New business models have sprung up after Cablevision, including the Aereo
personalized antenna system, now awaiting a preliminary injunction ruling.
Public display: a right of real potential economic value in
the digital world, as compared to the physical world where first sale
dominated. Still thinks the 9th
Circuit’s ruling that framing isn’t display if the source website provides the
image is up for debate.
Compulsory licensing is also a live issue; the compulsory
license sets aside some income for performers, which is unusual. One used to
think that full exclusive rights were the essence of copyright, but if
copyright still has something to do with creators/performers, a compulsory
license with mandatory setaside for authors/performers might look more
attractive than a full exclusive right that they can’t actually enjoy because
of contracts or works for hire.
From the creator perspective, the most important development
of the last 20 years is Harry Potter. JK Rowling is the poster child for
copyright, going from public assistance to riches greater than the Queen of
England—a happy reminder of the centrality of the individual creator in
copyright. Author has also succeeded in maintaining artistic control over her
works, possibly because she was lucky enough to avoid a publisher that demanded
control over everything in the first place.
HP is also an example of the importance of international copyright; has
given rise to various lawsuits, including Tanya Grotter (held infringement in
Netherlands), and Hari Potter (held infringement in India). US: HP Lexicon case involving website (ok) and
lawsuit over commercial publication. The
author of the Lexicon took too much and did too little—traditional fair use
case. Less traditional fair uses (or are
they, she asks? Answer: Yes.) include
fan fiction. Over 75,000 stories on one site: JK Rowling doesn’t pursue
those. “Tolerated use.” Goes under the radar. (Okay, that’s just a misdescription. They may
be unpursued and for good reason, but they are not “under the radar.”)
HP also offers encouraging glimpses of author-managed
work. Pottermore released HP in ebook
form, exclusive to the site. (Here’s a more
skeptical description of the DRM and here
of the site, but the site’s young.)
Of course, not everyone is Rowling and can drive traffic to their sites,
but Rowling started unknown too.
Close on a somber note: we’ve seen an increasing denigration
of authors, romantic author bashing. The romance of crowdsourcing and communal
creativity and altruism. Rise/return of
formalities, which are in many respects a good thing but historically have
tended to screw authors. Authors as a
tax on industry. A question for the
future: are authors a drain on transactions on copyrighted works that will
somehow get produced, or are they valued and autonomous contributors to the
progress of knowledge?
Andrew P. Bridges, Fenwick & West LLP, San Francisco
Copyright was a private party for specialized industries for
a long time. Digital transition gave a
great deal of new power to copyright owners.
Almost every action in the realm of human intellectual activity became
subject to copyright law: e.g., reading a book; no prior right of copyright
owner to control the experience of reading a book. But now there may be a reproduction in the
computer’s RAM, a reproduction to change devices, etc.
Marybeth Peters, Oblon, Spivak, McClelland, Maier &
Neustadt LLP
Agrees with Ginsburg, especially on a somber note.
Michael S. Shapiro, Senior Counsel for Copyright, Office of
Policy and External Affairs, United States Patent and Trademark Office
Technological adjuncts to copyright also matter—DRM, rights
management information. Enormously
promising with respect to oldest interests of authors.
Tom Rubin, Chief Intellectual Property Strategy Counsel,
Microsoft Corporation
Cloud computing era is distinguished by digitization of
content itself but also seamless digital delivery. Many favorable aspects—new forms of content
being produced.
Q: how do we go about protecting the author in the US? Euro-style moral rights, regulation of
contract terms? Collective rights
management? Something else?
Ginsburg: ideally all of those; realistically, moral rights
are difficult though she’d like an attribution right, possibly through
protected embedded CMI. The way the law
is written it’s not so easy to prevail on a CMI claim. Restrictions on what an author can
transfer/percentage remuneration requirements would be terrific, but she doesn’t
see it as likely. When in doubt in the US we go for WFH. The trend that favors the most seamless
distribution of works also favors WFH because then you have to deal with only
one rightsholder. We see this with
digitization of books—compare the new French law. A wholesale transfer of digital rights to the
publishers whether or not they got those rights from the publishers!
Q: death of romantic concept of publisher as well as of
author. Problems are not just technical
but attitudinal and how the public sees IP.
Can we engage this?
Ginsburg: Authors’ voices have not been communicated as
effectively as some other voices. Think
of SOPA debacle, which involved a supposedly plebiscitary rejection of a law
whose text nobody actually read—there weren’t any authors in that debate,
though she’s not saying whether SOPA would have been good. Disturbing that we
haven’t heard from creators. (Why would
creators be advantaged in parsing the text of SOPA or predicting the effects it
would have on the technology?) The media’s
attention has been on the big players in tech, producers. All the way back to Napster, there was very
little about actual composers/performers, and Metallica was portrayed as the
bad guys when they sued.
Bridges: Copyright has lost legitimacy in the eyes of the
public for several reasons. Term
extension created backlash; trans pacific partnership is now mandating that
worldwide; going after a single mother in the Midwest for $1.5 million for 24
downloads was a bad idea; authors don’t seem, in public perception, to get
anything out of copyright, so why would they be participating in SOPA;
perception that record labels are screwing artists; public hears itself being
demonized. He’s heard things at this conference showing disdain for the public
and insulting the public—“nobody read ACTA, nobody read SOPA”: actually some
did, and some of them objected! When the
debate is this brittle, a path forward is hard.
If there’s more than Don Henley showing up at a hearing—if there is a
perception of a real relationship between fans and artists—then we have a way
forward.
Q: The woman was offered $5000 to settle.
Bridges: does that matter?
He thinks it was $25,000, but they didn’t have to sue for millions.
Q from author/former leader of enforcement at a publisher/now
CCC: our authors liked that we were able to go on the internet and remove
illegal links/copies. It was a point of competitive differentiation for us. As
much as he likes the idea of authors’ rights/control, the prevalence of
unauthorized copies on the web is a challenge: authors as individuals have
other things to do. Is there an alternative to pairing up with a large
publisher?
Goldberg: alludes to small claims issues.
Ginsburg: not every author wants to be her own business
manager; question is whether that role has to be played by traditional
publishers taking 90% of the royalties.
Authors don’t just want to get paid afterwards; they need to get paid
for the year it takes to write the book. (These two sentences may have an inherent
tension; at least the publisher will say that it needs a big cut to fund the
people who might or might not pay out.) Not
every author is going to get seed money from Kickstarter. We need systematic ways to support authors
while they’re creating works we all want.
(Are there many noncelebrity authors who get advances before finishing any book? Also, I’m sympathetic to these issues, but it’s
complicated—if you want to play the violin, it’s just harder to become
fabulously wealthy for a given level of talent than if you play the acoustic
guitar and like to sing radio-friendly songs; what level of support should you be getting, privately or
publicly? Just as the pop music field is
now relatively friendlier to really attractive people who can sing and dance than it might have been before
the rise of video, the literary field is becoming relatively friendlier to
people who are willing to engage in careful self-promotion and cultivation of a
fanbase through direct or seemingly-direct contact. That might be a bad thing; it definitely
changes the content we get; but changing it in a way that actually works to
fulfill our intentions for that change may be a lot trickier.)
Q: seems to be enthusiasm for exporting the label of fair
use, at least, in Europe. Same may be
true for remuneration rights or contract law—EU and US versions differ. Levies have been a huge problem for decades,
never worked for anyone; collecting societies are also problematic. If you’re
not JK Rowling, and you don’t have collecting societies, how do you deal with
an intermediary?
Bridges: may need more competition for collecting
societies. Transaction costs are
enormous. Paying people not for the
rights but for the business of obtaining the rights.
Q from CCC guy: microtransactions can add up to a real check
through collective licensing. If it’s voluntary, it’s self-regulating, but
involuntary tends to be a bit less so. (One
source of my CCC skepticism.)
Q from Canadian: We distribute money to Americans for rights
you don’t recognize/reciprocate. We have
a single one-stop shop for performance rights, instead of 3. Our idea seems to be spreading around the
world and makes more sense than yours.
Ginsburg, in response to Q about software: sense that programmers
weren’t really authors seems to be creeping over to affect real authors.
Peters, The U.S. Copyright Office: Yesterday, Today, and
Tomorrow
Big issues in the runup to the 1976 Act—library photocopying,
cable retransmission—had heavy Copyright Office involvement.
Copyright Office sees itself as helping Congress when it
chooses to act, which might not be as often as it should. If you look at the number of studies Congress
has asked for, most of which don’t result in legislation, there are a few
examples of action: after WIPO treaties in 1996. TEACH Act (which one opponent called the
Theft Act)—Congress sent them to work out a deal, and they did, §110(2). But it’s too complicated to use, so everyone
relies on fair use. That was one of the
successes! But Office studies still
bring attention to issues; then Congress has to act. Will Congress update §108? Doesn’t know!
It would be nice if we didn’t have to rely on fair use all the time;
Congress does need to update the law. One
congressperson, recently: Congress doesn’t understand the internet, transparency
or due process. His position: You should
worry when Congress takes up tech.
New Register is very pro-author’s rights and has a strategic
plan to make things better. But it’s
hard to see a bright future right now. If we care about authors and the system
we have, we must work together to bring back respect for authorship and have a
law that speaks to today’s balances.
David Carson, Copyright Office
Many exciting projects.
Small claims solutions, orphan works, §108, mass digitization; rogue
website issue; criminal penalties for illegal streaming; public performance
right for sound recordings (wait a couple of decades).
Small claims: there is a general problem with access to
justice for people who don’t have much money.
The only place you can go for copyright is federal court, so you can’t
go to small claims court. For a
copyright owner with a claim worth only a few tens of thousands, there’s not
much you can do. The threat of statutory damages might help if you timely
registered, but lawyers are unlikely to take that on contingency so you have hourly
rates to pay. What are the
alternatives? Existing royalty tribunal—probably
not. Federal small claims court, either
adjunct to district court or separate.
There is a right to a jury trial, but that’s not a spur to
efficient, low-cost litigation. (How
many jury trials are there in copyright cases?)
So another possibility is to remove the exclusive jurisdiction in the
federal courts for low-value claims. You
will lose some potential expertise, which not all federal district judges have,
but hopefully you will get a judge who will do the right thing. (I wonder about removal in such a system.) Administrative law? In the federal system, ultimately you need a
judicial remedy, though. Or group
filings by representative organizations.
Office will start having roundtables this summer on the
matter. Next month at GW, there will be
a roundtable on small claims in IP in general, including patent and TM. May 10: hoping to get useful feedback.
Google Books threw orphan works into disarray; threw mass
digitization onto the table as it hasn’t been.
Settlement is dead and nothing like a solution is likely to come out of
it; maybe it’s a model but maybe not. No copyright legislation will happen this
year; the taste for it has evaporated.
Section 108: study group report, 2008. GBS also brought that to a halt, but we’ve
picked up again.
Mass digitization alternatives: various kinds of licensing
options, though direct licensing is unlikely to work. Voluntary CCC/publisher licensing. Extended collective licensing where there’s
representation of some critical mass, with an opt-out provision. Statutory licensing in cases of market
failure. Is this something that we need
to address through legislation? It’s the
notion of the day that we need to digitize everything, but maybe facilitating
that with legislation isn’t required to make it work out ok.
Bridges: fee shifting and statutory damages didn’t seem to
incentivize small claims. If we have small claims, is it time to reform
statutory damages?
Carson: Office hasn’t looked at the issue, but when you talk
about situations where companies engage in acts that might facilitate
infringement of thousands of works at a time, a question worth posing is
whether there ought to be a cap on damages in a single action when all the
claims are related. Trillions in dollars
in damages; that’s worth rethinking.
Tom Rubin: ownership of rights can be unclear, which is a
big impediment to licensing. Insufficient information means orphan works.
Howard Knopf: Canada has a simplified action with limited
discovery/nothing live. Not a lot of
interest in it, not used much for whatever reason. Our territorial courts have always had
jurisdiction, but very little action. We have a flexible statutory damages
regime where the judge can lower it. We’re
not as litigious, but you still might want to look at Canada. Is there something to be done about copyright
trolls as well? Courts are acting.
Carson: not sure what role there is for Congress or the
Copyright Office here—the courts have done a pretty good job.
Knopf: Big record companies are still suing everyone in
sight; could call them trolls. Why
Canada is different: genuinely, we’re less litigious. Used for collection
matters on a fairly regular basis.
Q: if you consider state court small claims, then have you
considered arbitration?
Carson: requires both parties to agree. You might get a
lawyer to write a letter, but defendant’s counsel, if they see the value of the
claim, will respond: go ahead and sue. Mandatory
arbitration: possibly as a prerequisite for court. But the problem with any
system that doesn’t divert you to the state courts, you ultimately have to give
either party to give a right to go to court.
Doubt you could mandate binding, nonappealable arbitration, which means you
can increase costs for the copyright owner.
Q from Canadian: collection matters are typically open and
shut, so smaller claims can work. Knopf
was involved in a similar small claims/expedited court for individuals.
Knopf: got close to being enacted, but was defeated. Would
have set up tribunal for IP claims.
Peters: Google Books changed everything; time to move
forward. Questions whether extended collective licensing is the solution, but
it is time to examine the facts and see if it’s a viable alternative.
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