Copyright Theory
Shyamkrishna Balganesh, The
Uneasy Case Against Copyright Trolls
Three things: unpack the idea of copyright trolling, an
undertheorized idea compared to patent trolling. What trolling is, how it’s recent, and how it’s
a bit surprising it took so long after the 1976 Act to emerge. Second, show that it’s bad even though what the
troll does in in strict compliance with the letter of the law. Third, offer a solution for the troll’s
behavior.
Patent: troll is a NPE (nonpracticing entity) that only
wants to monetize, not work or commercialize, the patent. Copyright troll: interest in copyright
entitlement is limited almost entirely in enforcement, not distribution, use or
“working” of underlying work. Interest
in monetizing infringement. First
copyright troll: England, Harry Wall, used power of attorney privileges to
collect royalties after artists/composers died; didn’t remit royalties to them. Described as “not caring for the work” or the
creative process.
Structural incentives from the 1976 Act. Independent standing for exclusive licensee;
copyright bundle can be broken down into an infinite number of idiosyncratic
subrights called exclusive; statutory damages.
Righthaven: locates infringers, obtains exclusive assignment
from owner, commences action for statutory damages. Brought about 285 lawsuits and settled
most. Everyone dislikes this, including
courts, and they find ways to shut it down.
Righthaven’s mistake: strategic alliance agreement. Exception to infinite divisibility: in 9th
Circuit, right to sue cannot be assigned in itself. Turns out, the Stevens-Righthaven agreement
has language that can be construed this way; a number of courts find that
Righthaven lacks standing. Righthaven
loses, is sanctioned, go under.
In trying to fix the problem of Righthaven, courts lacked a
long-term solution to what it was doing.
A smarter troll with a better structured agreement would have gotten
away with it.
Why is copyright trolling bad?
It doesn’t normally implicate fair use. The kind of actions RH was going after were
hard to classify as clear-cut fair use; otherwise RH might have lost fairly
early on. They involved verbatim
copying, often without copying. RH wasn’t
just over-enforcement; we’ve seen that before, with for example the RIAA’s
action, which were considered [by whom?] legitimate over-enforcement. The problem seemed to be the identity of the
plaintiff.
Why should it matter who sues?
In copyright theory there is a presumptive alignment of
incentives to create and enforce. When that alignment breaks down, there are
problems. Because copyright is structured as private law, there’s a hidden equilibrium
that can be broken by trolls. The equilibrium provides a norm for coordination
between owners and users, which the troll disrupts.
Copyright’s primary purpose is incentives to create. Copyright’s ability to protect incentives
depends on enforcement and its costs.
Incentive to litigate arises when payoff is positive. If infringement is widespread and litigation
is too expensive and the creator knows that, the incentive to create
diminishes. Well-known in tort law.
As private law, enforcement decisions are delegated to
rights holders. This creates
sorting. Type I: actionable as a matter
of law and enforced. Type II: actionable
but tolerated. Type III: Non-actionable
as a matter of law (paradigmatically fair use).
The ratio of I and II to III is determined by Congress entirely. [This seems quite wrong to me; among other
things, the ratio depends on what people are actually doing both in terms of
infringing and making fair uses, and they do those things based on various considerations
including but not limited to likelihood of enforcement. Either that or the definition of “ratio” is
not mathematical at all.] The principle
variable for I and II is litigation costs.
Breathing space is injected by Type II, determined by
copyright holders themselves. It’s not
about optimality but rather a reflection of what copyright owners see as their
incentives moderated by litigation costs.
Thus, this can be changed when copyright owners determine they need more
incentives, for example in the RIAA litigation.
Has no normative significance as a matter of law but is a
focal point for coordination between copyright owners and users. When users can determine an equilibrium at a
particular type, certain kinds of de jure activities nonetheless continue to
thrive because there’s no enforcement: a credible expectation users develop
based on concerted inaction.
This is what the troll disrupts. Troll’s expertise lies in ability to lower
litigation costs/raise probability of positive outcome. Result is change in Type I/Type II
equilibrium. The problem isn’t just in the change in equilibrium. The problem is the fact that the troll’s
entry into the system disrupts the function of the focal point in a
coordination game. For a focal point to
work, actors need sufficient information about each other and need to be able
to assess each other’s motivations.
Troll’s motivations are fundamentally different from those of copyright
owners, making it hard for users to figure out their motivations.
Why “uneasy” case?
Because what the troll did wasn’t regulated by formal law. Solution: tinkering with statutory damages.
Extensive reactions follow:
Well, this paper made me think! Balganesh argues that the wrong of trolling
is that it encourages trolls to sue people whose uses are harmless to the true
author/owner and therefore, in the absence of trolling, tolerated though
infringing. Among other things,
Balgenesh suggests that it will be easy to solve the Righthaven standing
problem by transferring enough of an exclusive right to confer standing. But how would you word that grant? An online newspaper won’t, for example, want or
be able to grant the next Righthaven “the exclusive right to distribute in
[defendant’s home city, or home block],” since the online version of the paper
will also be available there. I’m not
saying it can’t be done, but I am interested in how exactly.
I also think there’s a lack of clarity in the concepts at
work in the paper of actionable/not actionable claims—they are categorized as
Type I (infringing/actionable and likely to be brought), Type II
(infringing/actionable but unlikely to generate actual litigation), and Type
III (noninfringing/fair use etc., apparently without regard to whether they are
likely to generate litigation).
Actionable could mean “one could sue with almost no worries about paying
the other side’s attorneys’ fees,” or it could mean “one could expect to win if
litigated out.” Those are very different
things; there’s almost no claim that falls outside of the first definition,
including plenty of actual fair uses,
but many claims fall outside the second definition. I see a lot of Type II cases (what Tim Wu
calls tolerated uses, which Balganesh suggests populate his Type II category) as
at least arguable defendant victories. If
actionable means “could expect to win,” then I’m going to classify fact
patterns very differently than Balganesh apparently does. (If actionable means instead “one could
expect to win because the defendant would be fearful/unable to bear the costs
of litigation,” then Type III also changes substantially in its contours; I
don’t think that’s what he means.)
And this leads me to some serious disagreements with the
paper’s analysis. E.g., “The fair use
doctrine, in short, was both useless to Righthaven’s defendants, and
structurally facilitative of Righthaven’s strategy.” Except that several defendants won fair use
rulings (and, not for nothing, it’s not accidental that they did: Righthaven’s
acts seemed unreasonable even if the law developed for non-troll situations
didn’t necessarily predict this result). Balganesh thinks fair use shouldn’t have helped these defendants,
but to call it “useless” seems to represent a triumph of hope over experience. This is related to the fact that the paper
deems fan fiction infringing (apparently with no real hope of fair use, which I
think is a serious misdescription of the law).
“Gray areas” in this paper are just where enforcement hasn’t happened
(yet), not where the uses might actually be legal; compare, for example, the
recent approach of Canada’s Supreme Court.
In this sense, the paper offers a direct challenge to arguments made by
Michael Madison, Peter Jaszi & Patricia Aufderheide, Pam Samuelson and
others that norms can solidify particular practices as noninfringing.
This idea that there is an abstract answer to the question
of whether a use is infringing that is both static and known leads Balganesh to
suggest in his dynamic analysis that a particular set of facts can only move
between Type I and Type II (actionable but likely to be sued or unlikely), at
least in the absence of congressional action.
By contrast, I would say that types of uses can move out of Type II (not
likely to be sued, maybe because no one is really sure what would happen and
potential plaintiffs don’t want to risk the various expenses of a loss) to Type
III (fair use and generally accepted as fair).
Even Type I (likely to be sued) can move to Type III, as Jeff Koons and
Google might have noticed. The same
unwillingness to admit that categories of fair use are shaped by practice,
including litigation, comes in the claim that “given that the decision whether
something is in Type II or instead in Type I (and therefore enforced) is
entirely a private decision delegated to copyright owners, potential defendants
have little ability to contribute to the scope of Type II claims on their
own.” Tell this to the Righthaven
defendants who fought, or any of the recipients of C&Ds who’ve done the
same. (This somewhat depends on what
actionable means, but a defendant’s known willingness to scrap can certainly
change a potential plaintiff’s mind about actually suing.)
I see a similar issue arising from the claim, “Individual
home downloading is today viewed as likely to trigger an infringement action.” By whom?
Certainly not by individual home downloaders. Illegal, maybe—but not likely to get you caught. That’s
just a wording problem, but it reflects a lack of a sense of contestedness of facts and law. So, then the paper calls Sony a Type II case because many copyright owners were ok with home
taping—but now I’m even more confused: the Supreme Court told us it was a Type
III case because time-shifting is fair use!
Perhaps Balganesh thinks Sony is
wrongly decided. But here again the
paper seems to exclude the possibility that norms, some of them created by
non-copyright owners, can/do in fact help determine whether something is a fair
use, even though in Sony the idea
that “many owners tolerate it” apparently contributed to the finding of fair
use.
All these disagreements don’t necessarily go to the paper’s
core: assuming we don’t like copyright trolls, what is to be done? The paper’s proposed solution is to require
trolls, though not authors, to show harm in order to be allowed to sue for
statutory damages. I’m not clear on the
statutory basis, but ok.
It’s not clear to me that this principle would have
disallowed Righthaven’s claims: if the argument for harm is “I’d like to charge
you a $750 licensing fee,” as many online newspapers would, unless the use is
fair that seems like a pretty standard harm argument. We still have to figure out the
baseline. And this perhaps connects my
discomfort with the paper’s typology with the core question about trolling:
there doesn’t seem to be any basis to condemn trolling if it’s just about the
cost curve. Current owners have better
things to do than sue ordinary noncommercial copiers, but that has no deontological
or utilitarian force if someone shows up to say “I’ll specialize and do it
cheaper!” You need a defense of Type II
behavior in itself, as Tim Wu has offered.
Side note: I also wondered about the difference between
authors and owners in the proposed fix, since “authors” and “trolls” don’t seem
to fill the entire set of owners. Arguing
that we can infer harm from infringement when an actual author brings a claim, Balganesh
points out that we give authors special privileges, such as termination
rights. But again there’s equivocation
about meaning: Warner Bros. is legally the author of a large number of works,
but has no termination rights because it is the author of works for hire.
Industries Without IP
Kate Darling, What Drives IP without IP? A Study of the
Online Adult Entertainment Industry
Adult entertainment online: big advantages, but easy copying
and sharing.
Copyright enforcement is difficult because of
DMCA/whack-a-mole strategies, and P2P end user litigation problems (a wave of
litigation against AE downloaders); the lawyers involved are not representative
of the industry as a whole. Even those
who litigate only litigate non-standard-het content: gay porn is easier to get
settlements for. Courts have begun to
see that these cases are about settling to avoid embarrassment, which courts
don’t like. (RT: There’s an interesting
side note here about the history of gay blackmail, or the history of the
heartbalm torts and dislike of use of the court system for that.)
Also, standard content is a commodity: others are giving it
away for free. Undermines model of
trying to sell. So, effectively
operating in copyright’s negative space.
Shift towards goods that are difficult to copy: convenience
goods and services and experience goods.
Similar to other fields: Sprigman & Oliar find that negative space
in comedy shifted production.
People will pay for convenience of not sifting through free
stuff; cloud and cross-platform services (despite Apple’s restrictions, apps
are thriving). Increased interactivity: live chat/cam shows; choose your own
adventure; games.
There is still an incentive to produce traditional content,
basis for these other goods and a very powerful marketing tool as long as it’s
branded. Works because production costs
are low.
A lot of consolidation, vertical integration; weaker players
are being weeded out. But stronger
players are surviving and even thriving and that seems it may continue.
Industry-specific factors: consumers highly value privacy
and convenience; high deamnd for content = viral marketing; low production
costs. Non specific factors: experience
goods, free content as marketing.
There may well be market failure. But the fact that
production incentives remain at all challenges basic assumption of simplistic
copyright theory.
Ramsey: any product placement?
A: not seen that.
Companies struggle with the fact that they don’t have mainstream
deals. As they professionalize, some
companies are trying to make deals with men’s cologne etc. Not clear that will work.
Goldman: the list of industry-specific factors describes
almost all content except big Hollywood blockbusters and other niches. Books, music, some movies may have low
production costs. Consumers want
convenience and privacy elsewhere too.
Not everything goes viral, but everyone has local communities. Are these really different?
A: There are parallels but there are relevant
differences. Production costs: theory of
copyright assumes that investment in quality of content makes it better for
consumers. But at least for some of the industry there’s preference for cheap
to produce amateur content: optimally cheap. You don’t see much actual amateur
content because of recordkeeping requirements, but bad lighting/shakycam/few
people involved is both cheap and very popular.
Also privacy is way more important.
RT: The promise of feminist porn/porn for women was that it
would have nice production values and would be something women would want to
see, or women would want to watch it with men.
What happens to that in an optimally cheap world? Is this optimally cheap guy porn?
A: niche markets can still sell because of convenience: it’s
still hard to find that stuff in the slush free. If you want to watch something with your
partner, you’ll buy a DVD & create an experience at home, so that still
works. (I still think there’s an
interesting question here about the distribution of kinds of content.)
Heymann: say more about branding. What is the brand
signalling? Niche, quality?
A: basically the name.
Kristellia Garcia: in music, the argument is that experience
etc. doesn’t make up the difference lost to piracy. True here?
A: the producers say that the difference is made up: people
are willing to pay.
Sprigman: why isn’t there a Viacom case against these
sites? You could also flood the site
with bad clips, or with short clips as ads, or what.
A: premium Tube sites are now owned by content production
companies, and making deals with content producers to police for unauthorized
content but in return the companies provide 5-minute clips of good quality and
have revenue-sharing. Producers prefer
good quality content; also prefer hosting on Tube sites, since bandwidth costs
are much higher than actual production costs.
Matt Sag: are other industries being harmed by the
reluctance to allow John Doe joinder of torrent swarms because the plaintiffs
come from porn?
A: a lot of the reasons judges use do translate, even though
the underlying reasons may be reluctance to support the extortion scheme—although
another reason they don’t like these cases is the huge amount of paperwork.
Erez Reuveni, Copyright, Neuroscience, and Creativity
Disclaimer: only his opinions. The neuroscience of creativity allows us to
design legal instructure that completments the processes within our brains responsible
for creativity.
Models: utilitarian/economic, moral rights/personhood. Also romantic authorship. Creativity is, in fact, a function of many
variables and interactions between people within systems: cultural
environmentalism. Copyright is one
element in designing an optimal environment for creativity; the neurobiology of
creativity can serve as a baseline within that environment.
Simple rule: the more (connections) the better. Convergent and divergent thinking: when you
encounter a problem, look for low hanging fruit: what you consciously
know. If that doesn’t work, divergent
thinking: pattern-sifting, search algorithm, and then a convergent/executive
process managing things to see how well what you find works. Result: idea.
Creativity is a function of the richness of brain’s internal
environment, immediacy of communication, and efficiency of interface with
external environment.
Internet effects: Transactive memory: actual information v.
locational information. When you don’t
remember where your car is, but remember that your spouse knows, that’s
locational information. Not a bad
thing! Notebooks, bookshelves, etc.
Increasingly, new information in longterm memory is locational.
So: let’s complement these realities of transactive memory
and externalized memory storage. Law
should facilitate an efficient interface between neural networks and external
networks housing information referenced by transactive memory. Things that matter: internet infrastructure,
including net neutrality and network management (data caps, graduated response,
metered billing); internet content and copyright enforcement. DMCA, SOPA/PIPA, domain seizures. Criticisms: over-incentivize content removal,
under-incentivize challenges to removal; reverse traditional burdens of proof
in prior restraint stetting; overbroad targets: whole domains v. specific
pages; ignore the real party in interest.
Who is the real party in interest?
People relying on the stored information?
Domain seizure: this is a prior restraint, which in analog
world requires notice and adversarial proceedings. This default has been flipped in domain-wide
seizures/takedowns. Neuroscience should
move the needle away from them.
Minimizing false positives: the people using Megaupload legitimately
despite the massive infringement. Online
storage lockers are not illegal Put the
gov’t to its burden: if it wants to take down an entire domain, it should take
account of individuals who are legit. We
don’t use missiles to take down a whole block for one person with drugs in one
house (RT: though overseas, one Al Qaeda member probably qualifies for that
treatment). Minimize false positives by requiring
a bond, swearing under penalty of perjury, etc.—sword over seizers’ head. Smaller domains/claims should lead to smaller
bonds.
Immunity: claims of infringement should bear some risk. Complete v. partial infringement: claiming
wholesale infringement could be tilted to remove complete copies more readily,
whereas partial/potential fair use should stay innocent til proven guilty.
Q: how do we get legislators to consider this?
A: SOPA/PIPA shows the possibilities: the tech community
woke up. In the next go-round we can put
out more of the evidence.
Gilden: are you actually proposing a more radical First
Amendment argument? To have the basic tools
of our brains/express ourselves, we need this information.
A: maybe the cognitive domain is protected by the First
Amendment. Now that we know better how the brain works, we can add that to the
argument.
Brauneis: are there any particular kinds of content/services
that deserve more protection than others?
A: Google is the connector—you know you’re looking for
something but not exactly. Not sure how to make that argument, but maybe the
tools have a heightened obligation to behave as connectors.
Eva Subotnik, Subconscious Fair Use
Recent Georgia case analyzing fair use on a case by case
basis for use in course assignments. Compare
that to Cariou v. Prince, where there were a variety of pictures with greater
and lesser alterations: the district court analyzed the pictures in one fell
swoop. Cariou: affected by the court’s
reliance on statements by the defendant.
Intent of the putative user: not just binary in terms of bad faith, but
more substantively whether there is or should be a fair use intent component to
the fair use analysis. District court: “Prince
did not intend to comment on any
aspects of the original work or on the broader culture.” Multiple references to intent.
Campbell: whether a parodic character may reasonably be
perceived. Suggestion of objective
standard. Kennedy’s concurrence: we
shouldn’t make it easy for musicians to exploit existing works and then claim
their later rendition was valuable commentary—take care to ensure against post
hoc parody rationalizations. Is there an
expectation of rationalization pre hoc?
Authors’ Guild v. Google: Google didn’t conduct a case by
case inquiry into copyright ownership or conduct individualized evaluation as
to whether posting snippets would constitute fair use.
Of the factors, factor one is the one over which the defendant
has the most knowledge/control. Can
think about affirmative defense in this light.
Not arguing for a new intent-based component, but rather trying to
distill descriptively what’s going on, and characterizing intent in fair use
compared to other parts of copyright: easy to become an author (don’t have to
intend it in any sense—but see joint authorship); intent not required in
ordinary direct liability, which is strict; secondary liability often considers
intent/knowledge.
Intent to do what? Perhaps whether the putative fair user
had authorial intents and purposes.
Blanch v. Koons: court says we don’t need to depend on our own poorly
honed artistic sensibilities, because Koons explained why he used Blanch’s
image.
Some suggest we should look at responses of interpretive
communities to the second work. (I
agree!) Argues for a role for
subconscious fair use: unknowing fair use serves the goals of copyright, and should
be possible under our law. Objective purposes
should trump subjective intent. (RT: is
objective/subjective the only binary?
Communities of practice/interpretive communities may not have an
objective view either.) Interested in
how this translates from appropriation art to corporations like Google.
Katz: Abraham Drassinower has written
about relevant issues.
RT: asked my question/best practices as interpretive
communities deciding what’s fair use.
A: Sure, but will that lead to increased documentation
requirements that will backfire if there’s no documentation in similar
circumstances.
Zahr Said: how do we distinguish legal from artistic intent?
We are skeptical of post hoc intention description that matches
transformativeness. But artistic statements of intention are apparently more
common in the art world than elsewhere, where curatorial practices encourage
them. If you disaggregate legal and artistic intention, you can unpack the effects
of the theory of the death of the author.
Even if the author says she meant to do something, can we trust
that? Can we trust her memory? Should we still find it fair if the author
refuses to interpret meaning?
Brauneis: interpretive communities often (necessarily?)
impute authorial intent. If you find out
that a blotch on a painting was added not by the author but by a pigeon, that
may well change the community’s view of its meaning. (Though perhaps the person who sees it could
create their own authorial intent in appropriating that randomly modified
piece.) The interplay between subjective and objective is difficult because the
thing you impute may be modified with further information.
Heymann: post hoc rationalizations are also possible
strategically in interpretive communities.
One question for the paper: How would you deal with those in a
litigation setting?
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