Consent is irrelevant in black letter law, but consent and
disapproval are not binary. Case law’s most extensive treatment: Letterese v.
Scientology, 11th Cir. 2008; use over decades, and then falling out
between the parties. DCt considered
ordinary fair use factors + history of parties’ dealings. 11th circuit rejects, saying
consent is irrelevant.
Modeling communications between authors/copyright owners and
users. Pre-use and post-use. Author faces choice before use: offer to license,
ignore, etc. After use: adds whether to
sue. Pre-use, user faces choice about
using at all, trying to get permission.
Pre-use negotiation, all else being equal, should better trace the social
value of the use. Pre-use the user can threaten not to make the use. Post-use the user is locked in and faces
statutory damages. When the communication costs are low (preexisting
relationship) or low-cost mechanisms to opt out of a particular use, the model
concludes that should matter.
Failure to consider consent allows opportunistic behavior by
users and copyright owners. Users can use strategies to avoid detection even in
bad faith. Copyright owner has incentive
to engage in wait-and-see strategy to take advantage of improved post-use
bargaining situation. When communication
costs are low, we should encourage pre-use negotiation; users won’t be tricked
into relying on acquiescence.
If consent isn’t binary, how dealt with? Quantitative
dimension is explicit on both sides and silence in the middle. Qualitative is
motivations for copyright owners’ and users’ behavior—good and bad faith.
Timing of communication also matters.
Implicitly, courts consider consent in a number of
ways. Opt-out in Field v. Google, finding Google’s caching fair; talks a lot about
Google’s provision of an opt-out, and that affects the analysis as does the
copyright owner’s bad faith. Mistakes
made in iParadigms: 4th
Circuit found it fair based on Perfect 10
and Field v. Google etc. But iParadigms’ system is not consent-based
and individuals can’t opt out. That
should weigh against fair use and possibly swing the balance, and the court
doesn’t even address it.
Another category of implicit consent cases/partial consent: Worldwide Church of God. Breakaway church wanted to use a text that
the WWCG had rejected. Estate of MLK v. CBS: MLK encouraged CBS
to use the footage of his speech, and that should matter when the estate
changes its policy and demands a huge licensing fee.
Q: catchall nonstatutory consideration. What do you do about the fact that courts
never really consider additional factors though they can or should? Are these extras just about whether the judge
liked the work or not?
A: true courts are hesitant.
Thinks that’s wrong and is trying to be convincing otherwise. Moral notions can lead to more efficient
outcomes. Good faith/bad faith is part
of his proposal.
Q: we do see the value of tolerated use and not pushing
copyright owners to attack each use; doesn’t your proposal work against that?
A: most serious concern.
If consent is properly formulated, the concern over overactive policing
isn’t great. Analogy would be TM (where
policing obligation isn’t anywhere near what many lawyers/brand owners claim or
think as a way of shifting obligation). His standard would be case by case;
tolerating one thing wouldn’t have any bearing on tolerating the next. Change
in use would matter—commercializing the Harry Potter Encyclopedia. Only estoppel would be things allowed for a
very long time.
RT: I always worry about what happens when you add a factor;
this is one that would ordinarily weigh against users in the cases that get to
litigation, and that disturbs me.
I don’t think the description of not considering consent was
strictly true of iParadigms: the
court talks about the effect of minority and how the students had to use it to
graduate and got a benefit from using the system. Those are consent-related.
A: wants to be neutral for users. Thinks iParadigms
is a close fair use case. They’re unpublished works; the users are minors;
there isn’t an optout; they’re using the whole thing; there’s a market harm
(!). Transformativeness is present, but
he doesn’t think that’s enough. (Which
is why I’m nervous!)
Eva Subotnik, Intent to Fair Use
The law should formally accommodate those who can document
that they tried/intended to make a fair use. Downstream practices by courts—how
do they affect upstream creators? References to intent in farflung places,
including Georgia State coursepack cases, where the court reviewed 75 claimed
infringements and found 5 unfair. Court
concluded that GSU did try to comply with the Copyright Act, but didn’t
perfectly predict the court’s results; but intent wasn’t relevant to
infringement even though fair use is notoriously unpredictable. This seems straightforward: either you
complied with the law or you didn’t.
But remaining on the fair use side isn’t like remaining
under 65 mph. Fair use can be a difficult call.
Scholars have looked for patterns and groupings. This paper attempts to close the circle by
suggesting that in close cases where a seondary user looked for guidance that
should be a thumb on the scale of the fair use defense. That can better
guarantee breathing space.
Judge Leval argues for no role of intent. Tony Reese points in a different direction—early
courts did consider good faith in intent to abridge rather than supersede to
draw lines in hard cases. Even Folsom
makes a passing reference to intent: a reviewer can cite largely, if his design
be really and truly use the passage for the purposes of fair and reasonable
criticism.
While a bad faith standard might be a bad idea, giving
weight to a good faith attempt to comply is utilitarian because it encourages
calculated risks that benefit the rest of us.
What is good faith? Usually
discussions of good faith in the case law are actually about what bad faith is—knowing
use of purloined work, obtaining copy under false pretenses, removing copyright
information, or asking and being denied permission (which last Campbell says is not a problem). Some of the Court’s language is “whether a
parodic character may reasonably be perceived,” but other language talks about
the reasons for the defendant’s choice.
Opening for subjective and objective evidence. Prince
v. Cariou doesn’t shut the door on subjective evidence entirely—Prince’s
failure to explain himself might have lent strong support to his defense, but
that’s not dispositive. The test is not simply
what the defendant says. Court even
cites Prince’s deposition to show his drastically different approach.
Aspects on the spectrum: intent to comply, intent to
transform (but not necessarily with copyright oriented sensibilities), absence
of intent, contrary intent/intent merely to supplant.
A steadfast but wrong claim of fair use, or an attempt to
comply with a mistaken understanding of the law, shouldn’t let D win fair use.
But attempt to comply should count in D’s favor. One distinction: privilege
statements tendered prior to litigation, though SCt has said proper labeling
isn’t a prerequisite. Seeking out legal
advice/opinion letters should be favored. With less access to counsel,
consulting various sources on law should also count. Best Practices. Seeking license to use should count in user’s
favor. Process of informing themselves
should lead user to make more acceptable use to copyright owner. Any distortion in use is natural and ok given
that we have copyright.
RT: (1) Lack of knowledge.
People don’t know what they don’t know; don’t know fair use best
practices exist. Level of misinformation
is so high. MPAA distributes curriculum
for classes. People making remixes etc.
are often 15—they don’t know they need to seek advice and they don’t know where
to go. TM doctrine: if you’re wealthy
enough to conduct a survey and don’t, we weigh the absence of a survey against
you. I could much more easily get behind
a standard that was more like that: if you’re wealthy enough to get legal
review, then doing so favors you, contra GSU. (2) I know in TM we have factors that never
benefit the defendant. But can you have a factor that never benefits the
plaintiff? If there was no good faith attempt, then won’t that weigh against
the defendant? Barton Beebe’s data may
have some bearing here; maybe you can have such factors. (3) That’s an
interesting spectrum, understandable but it prioritizes law and submission to
law over artistic judgment, which may be fundamentally incompatible with the
artistic projects of people who most likely be affected by this change, which
again means the effects may be different.
Lunney: normative side—what is fair use for? How does intent
adjust the balance?
Rosenblatt: implementation is a real barrier.
A: Current situation is asymmetric: the question only comes
up when bad faith is addressed. Even 9th
Circuit has mentioned good faith, though, and she’s trying to give content to
that.
Mary Gani-Ikilama, An Analysis of the Effects of Copyright
Law on the Creative Autonomy
of the Performing Author in the Nigerian Popular Music
Authors and performers are often the same person in Nigerian
popular music. Legal system inherited
from Britain; part of Berne and TRIPS. 170 million people: big market. 15 years
ago, American music was more popular, but there’s been a Nigerian renaissance.
Growing commercial influence in the African diaspora as well. At the moment, growing concerns about
sameness of sound of Nigerian popular music.
Many complain that you can sing the verse of one song to the chorus of
10 others.
Research: record label subjects overwhelmingly saw
authorship as business measure versus authorship as self-expression. Business
managers suggest style and content to artists; many had disputes with
artists. Performing authors overwhelmingly
saw authorship as means as self expression and had often experienced pressure
on commercial grounds. Some of their
favorites had been rejected. Label: we
define the artist when we choose to sign them; we don’t allow them to express
themselves differently. But 90% of artists she interviewed either had or
desired record deals because of the financial platforms. Developed world:
possibility of independent promotion allows some people to work around the
labels. In Nigeria, internet
access/electricity issues make this unviable.
Immediate effect is that music is homogenous. Adorno: the problem of a technological theory
of culture/mechanization. Economically,
reduces cultural output and revenue.
Ratio of songs written to songs released: 4:1. Culturally: a gift that isn’t used will
wither.
Copyright’s position: moral rights theoretically exist. Producer still has edge over performer—though
ownership initially vests with author, that can be changed by contract, and
performers lack bargaining power.
Nigerians aren’t keen on litigation and there isn’t much case law. Also business problems. Inconclusive
restrictions on transfer of moral rights, which are negative/waivable rather
than property rights; she’s seen it a lot.
360 deals are also used; the performer has to sing the songs that
promote the record label. Also there
aren’t distinct payments for assignment of publishing rights and recording
contracts. Reversions aren’t recognized
in Nigerian law.
Shyam Balganesh, Copyright and Good Faith Purchasers
Alienability is crucial to property. Good faith purchaser for value doctrine: if a
transfer from A to B is voidable/tainted (fraud, etc.) and before A learns of
the taint B alienates the chattel to C.
This sale itself is clean and C lacks knowledge of the earlier
taint. C’s title in common law
originally was void: nemo dat—you can’t give what you don’t have. Problematic, because chattels pass through
many hands; if everyone must worry about tracing chain of title back to
untainted first sale, value of chattels will drop. Voidable title doctrine developed: transfer
to third party bona fide purchaser (BFP) in good faith and at arm’s length/for
value gives perfect title to the BFP.
Codified in UCC and in many recordation statutes for land. Avoids clogging title. As between A & C, there is a sale we can
reconstruct. (Void title—stolen property—is
different.)
What about with distribution right? Things are very
different. A makes an infringing copy
and transfers it to B. Assume that B had
no knowledge that the copy was infringing and that it’s an arms-length
transaction. B gets imperfect title:
under current law, B will be infringing if B sells the copy to C. Distribution
right’s only mechanism of parsing ownership is first sale, but the very first
sale of the copy has to be authorized and lawful.
Adopting a BFP doctrine would move the consequences of
infringement from innocent purchasers to copyright owners; incentivizes
copyright owners to publicize infringement and provide notice; variable
determination from one purchaser to the next; avoids the need for innocent
infringer doctrine.
Q: think about other requirements—for land, there’s often a
registration requirement before taking advantage of BFP doctrine. Why is
copyright so different?
A: doesn’t have a historical answer for why copyright
differs.
James Grimmelmann: 3 other things of interest from UCC—the warranty
of noninfringement/incentives for purchasers.
UCC’s distinguishing of void from voidable, going to care taken by
copyright owner; are there differences that we could look at to see what the
copyright owner has done to avoid voidable sales; rules for conflicting
transfers from a common owner—could they be borrowed?
Andrew Gilden: how would this actually work? Would this hypothetical sale be visible to
the copyright owner? Contributory
infringement is also relevant.
A: mechanisms where you look whether the person has tried to
make an effort to distinguish genuine from nongenuine goods—eBay sales. Big brands refuse to validate whether a
resale is valid or not.
[Adrian Johns has a lot of writing about the historical reasons for making
distribution a right; though he doesn’t put it in those terms, the issue is the
whack-a-mole quality of having to go after printers. Also Wendy Gordon’s paper, which I’ll be
presenting later, gets into the source of the distribution right: again, it was
historically hard to go after manufacturers who could just disappear.]
Sarah Burstein, Costly Designs
We’re not necessarily worried about screening out bad art;
we don’t mind giving copyright to really crappy paintings. But bad design patents are a problem. This week a patent was issued on an underwire
for a bra. Not only is it functional, but also no one sees it in ordinary use,
which seems to defy the point. Partial
designs are claimed; Apple uses continuations/divisions to claim little
parts. This allows immense scope for
people smart enough to game the system. Also note that we’re not getting
anything new: we already have the whole device, so if you care about incentives
it’s not clear what extra the partial claim allows. Patent on the bottom of a thought bubble icon.
Costly screens for patenting: what gets through are things
with high private value, whether they have high or low social value. Things with low private value get screened
out; the question is whether there are designs with low private value and high
social value that we’d lose, because they took a while to be successful. Are there differences in industries? Industrial designs v. fashion/experimental
and discursive design? How IP-sensitive
are the areas that we want to encourage v. those that are just incidentally
covered? Costs can be a feature, not a
flaw.
Sprigman: if you think design is mostly cheap to make, you
might think that the prospect of getting there first and tying it to your TM is
enough; a costly screen might be a way of saying that we don’t think design
generally needs extra incentive. Designs
that are very expensive also tend to be highly functional—design of a jet
airplane. What you’ll have left with costly screens + some functionality
screen, that will whittle design patent down a lot.
A: might be good. In
theory functionality is part of the examination, but not so much in practice.
Collins: hard to manipulate utility patent standard to get
rid of the many patents, one object issue.
Is the partial design patent problem something you could address with a
costly screen, or does that require some other fix?
A: doesn’t think there’s no role for partial claims, but
doesn’t like claiming every tiny bit.
The next step in the project is to figure out what should cost more—so maybe
every continuation and every divisional should be more expensive.
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