Moderator: Andrew Gass, Latham & Watkins
Jessica Litman, University of Michigan Law School
Saying that the most important reason for copyright is to
encourage readers etc. to experience works of authorship might suggest that readers
etc. have interests the law should pay attention to, and that’s controversial,
though it shouldn’t be. Owners have concluded that attention to readers would
limit their rights. Thus we’ve heard “there
are no users’ rights under copyright law” and “fair use is a privilege, not a
right.” But cyberradicals didn’t invent
the concept that the public—readers, listeners, viewers—has interests that are
sometimes more important than those of authors; appears in almost every SCt
case in the 20th century and throughout the legislative history. Why
is it suddenly scary?
Evolution of digital networks/markets has been very fast;
looks like scary machine for disseminating millions of copies. Also, conviction
not grounded in law or history that © owners ought to control all uses of their
works. Some owners have gotten used to
arguing that it ought to be true. Copyfetish: any appearance of any part of
work anywhere is a copy that needs a license or excuse, whether or not anyone
will ever see the copy, whether it’s incidental to lawful use, etc. This
inspired Authors Guild to sue HathiTrust over copies that no one will ever see.
Copyright owners have been losing lawsuits they wouldn’t have brought if they
didn’t feel obliged to protect themselves from all unlicensed copies—devotion to
the RAM copy. Litman thinks the 9th
Circuit just made a mistake, but if we cling to the idea that RAM copies are
always actionable, then playing a DVD, reading an ebook, using an MP3 player
are all actionable reproductions. That would be major incursion on interests of
readers, listeners, etc. who have counted on freedom to use works they purchase
or license.
Another fetish: describing HathiTrust decision as “Plessy v.
Ferguson.” No one sees these copies; no
one reads them; they are instead indexed and used to perform sophisticated
analysis and attach metadata. They can be searched and users can find that a
word is in a book, but can’t see a snippet of text. They can generate readable copies for print
impaired readers, which is expressly permitted. The only objection is
dignitary: that the library has a whole bunch of copies it didn’t license. Copyfetish means that when I say you have to
consider the interests of readers, listeners and viewers, some in the room stop
listening.
Legislation happens when lawyers for institutions get
together and find a compromise they can live with. Until now, readers have not gotten a seat at the
table, and even NGOs representing them are banished to the children’s
table. Explains CONTU and section 108
study group. So we can predict short
shrift for readers’ rights, which should worry all of us. Every one of us who
writes, makes movies, etc. wants to convey our works to audiences so they can
enjoy them, interact with them, learn from them. Copyright works because it
encourages authors to create and audiences to read, listen to, etc. those
works. Now for some the primary goal is
to get paid, and allocation problems are real (see last panel), but that isn’t
the problem of readers.
We should value imaginative readers as we value imaginative
authors. If there is to be expansion, there should also be statutory readers’
rights. Pretty modest list (unless you’re
a copyfetishist). Someone who lawfully owns or lawfully accesses a work should
be entitled to make incidental uses: copies, adapt to her needs, entitled to
extract & use any material not protected by copyright, even if doing so
means making a copy or defeating tech protections; she should be able to
time-shift; loan, sell, give away; encouraged to respond to it and share her
response with others; should have expectation that intellectual privacy would
be respected. These aren’t radical. These were completely lawful before wide
deployment of networked digital technology. Links of networks don’t change
essence of reading, and engagement with works is as crucial today as it was 40
years ago.
We see impulse to control/suppress reader creativity
motivated by panic about online piracy, but creative reader reaction isn’t what
causes piracy and usually redounds to © owner’s bottom line’s benefit. More
importantly, it’s good for the creative system.
Proposals to subject reading, listening, watching to tight
control will not discourage people from stealing access to works they’re unable
to buy. Instead they’re more likely to discourage them from buying access to
works they’d otherwise be eager to see. Even if © owners came up with a perfect
tech, if controls interfered with reading, listening, and viewing, it would
harm half of the system. When talk of
reader’s rights discomfits authors it’s because the sense is that compensation
is already shockingly inadequate, and reader’s rights might shave off more of
the teeny tiny share of money that goes to creators from the sloshing pile of
money. But that’s the fault of the architecture, and hamstringing readers won’t
put any money in authors’ pockets.
Congress has repeatedly tweaked © law to enhance owners’ control over
works, and none of those tweaks put more money in authors’ pockets. If the
point is to help authors, ratcheting up owner control yet again is unlikely to
get the job done: instead restructure system to make getting money to authors a
higher priority.
Aaron Perzanowski, Case Western Reserve School of Law
The idea that you own the stuff you buy from online
retailers was deemed an extreme digital view.
Here to defend that idea. If you accept property rights framework, must
accept that creators are not the only ones with ownership interests at stake:
users own the copies of books and albums they have. The Q is which rights
deriving from ownership will survive transition to digital marketplace. Analog
world drew line using exhaustion. Exhaustion is not an unfortunate loophole exploited
by scofflaw competitors and rogue librarians. It’s a fundamental component of ©’s
balance between copyright owners and consumers. Exhaustion allows copyright
owner to set initial price. Rightsowner
receives reasonable return for that particular copy.
Incentives for consumers: by making sure consumers have
property rights in their purchases, encourages them to participate in the
market in the first place. © asks consumers to pay supracompetitive prices for
works available for free everywhere. How to convince them? Statutory damages
are sticks; exhaustion is a carrot.
§109 makes digital first sale very hard now. ReDigi court is
fixated on reproduction v. distribution; digital transfers demand reproduction,
so §109 can’t make sense of digital first sale. Copy ownership is the trigger,
but ownership isn’t defined in the Act and courts aren’t giving much clarity. 9th
Circuit: decides based on unilateral statements in license agreements; also
sometimes 9th Circuit does opposite and looks at economic realities
of transaction.
What does digital exhaustion look like? (1) Detailed list of exceptions spelling out
rights reserved for consumers and rights for copyright owners. Would not let 15
people read the “same” copy of a book as long as they weren’t all reading at
once. (2) Look at what’s really going
on. Should think about how transaction is characterized to consumer, not in
15,000 word terms of use but if they’re clicking on a button that says “buy.” Digital exhaustion is both workable and wise;
real extremism would be elimination of consumer property rights.
Jane Ginsburg,
Columbia Law School
Not a copyfetishist, but fair use has run amock. Two fateful and related developments in the
doctrine of fair use: First, its expansion from its historical role of
encouraging creation of new works by providing follow-on authors the breathing
space to write commentaries, analyses, parodies, and so forth without being
infringing derivative works. Played that role even before Folsom v. Marsh in the doctrine of fair abridgement. Sony consecrated fair use in new forms
of dissemination/technological fair use, with complete copies of existing works
without transforming those works into new works, for largely the same purpose
of enjoying the work. Second: the
transformation of “transformative” use, coined by Judge Leval. Transformed to transformative “purpose,”
allowing complete copies of the same work, for supposedly different purpose but
it seems that often means new business models. Transformative use has a
stampeding effect, as Barton Beebe says, on the four factor analysis. If a
court finds a use transformative, well, we never cared about factor two anyway.
The third factor might be thought to mean “not the whole work” but we got over
that in Sony. Factor four repeats
factor one: a transformative use is likely to be in a transformative market and
thus doesn’t negatively affect the market for the copyright owner’s work.
Wonderful and publicly beneficial use = must be fair use!
She thinks that’s the bottom line in HathiTrust and Google Books, whether or
not one thinks it’s a good outcome.
We get there because fair use is an on/off switch, all or
nothing. Proposes a middle route. (I
remember when it was copyright restrictionists who wanted a fair use payant
(like the domaine public payant), to allow more uses to be free of copyright
owners’ veto power. It’s a sign of the
change that Ginsburg is talking about that it’s now a rearguard proposal by
expansionists.) Some, like libraries, should get, if not a
free pass, a heavily discounted rate; proper source for that subsidy might be
the author/copyright owner. With market
failure where use would otherwise be foregone there could be fair use, but it’s
not the same normative justification as for new works or for subsidization;
logically, if a market develops it should no longer be a free pass.
Even with a totally functioning license market, we might
still think that some people should be subsidized. She doesn’t agree w/the case, but it’s an
example: Georgia State litigation
over e-reserves. Georgia State court
made up a 10% fair use quantum. Above
that, judge made up a rule: license it or lose it. If they offered a reasonable
license, no fair use; if not, fair use.
10% off the top is the straight subsidy and license it or lose it was
the rest—she wants to put that in broader context.
US is outlier in having capacious fair use that doesn’t
compensate copyright owners at all for redistributive uses (she is not
proposing to reform new creative uses cases—those have problems but they are
problems we’ve had forever). By and
large, the rest of the world, with respect to the social subsidy uses, has:
license or lose solutions; license or gov’t compulsory license; extended
collective licensing; new French law on unavailable books supposed to foster
mass digitization. If a book published before 2000 is not in commerce, and if
the publisher doesn’t object, a gov’t society administers licenses for
digitization and distribution, society composed half of authors and half of
publishers; half the money goes to authors. Countries with intermediate
solutions pay the authors for the uses.
Recognizes that a number of differences b/t US and EU exist, including
antitrust, scope of collecting societies, and our all-purpose fair use
doctrine, but still instructive.
What is to be done? We have compulsory licenses and bargaining
in their shadow. Should we have more?
Reading §119 is a good answer to that question.
But license it or lose it has a certain appeal. The problem is that it
has to be convenient and reasonable according to Georgia State—who is to decide? Will every court be a rate
court? So she’s working through a
proposal for a form of “last best offer” arbitration before CRB. Owning parties and using parties, who might
be represented by bargaining agent, would come in, each with last best offer,
and CRB then picks one. There are huge details to be worked out. If we did something like this it should have
a five-year sunset, because compulsory license is a problem because they just stick
around. Market licensing mechanisms should be encouraged, and sunset would
encourage that.
Alfred Yen; Boston College Law School
The problem of costless overreaching. Copyright concepts are
ambiguous. One can also be big about
rights one claims; this goes both ways (people post things they don’t own);
people send invalid takedowns or claim rights they don’t have. Amendments to the Copyright Act over past
decades have been explicitly designed to fight the aggressive copyright user.
As casebook author, my publisher wants everything cleared,
including exhibits in federal court decisions. We dutifully cleared everything:
including with Rogers in Koons v. Rogers.
Once this happens, we have copyright creep; the practice becomes more audacious
about what ought to be licensed—Jim Gibson, Jason Mazzone, etc. have documented
this. We should recognize that people who aren’t infringing are exercising free
speech and we shouldn’t accept interference with that as a fait accompli.
Two ideas: Someone who is trying to silence a critic v.
expedient overreachers who do it because it’s costless. Attorneys’ fees provisions aren’t enough
because so few people ever fight back. There should be costs. Suit for bad faith. Bad faith insurance
claims have caused insurers to be a little less greedy. Like §512(f) but
broader. Should be able to elect treble
damages, statutory damages, or punitive damages. Should be enforceable by declaratory
relief. To establish bad faith, the
would-be defendant has to explain to the © why the claim is bogus. The owner
can choose to insist or withdraw the claim.
Someone who declines to respect an assertion of fair use could potentially
face a bad faith claim.
Would also like to embellish effect of a putback notice:
create 6 month statute of limitations. If you don’t file a suit against a
putback, you should very quickly lose your right to sue. You know about the infringement; could put up
or shut up.
Gass: for Perzanowski: if users value ownership, why won’t a
market emerge?
Perzanowski: Apple and Amazon seem to be looking at that;
this might be a reasonable compromise in some respects, but there are still
reasons to worry. Licensed resale
markets within particular ecosystems lead to worries about platform lock-in.
Also doesn’t take care of transaction cost/information cost problem. Uniformity
emerging from legal process has value.
Litman: waiting for licensed market has big problems,
losses, while waiting for markets to arise. Barriers are less about tech and
more about business.
Ginsburg: unless you think we need an entire world of
ratesetting because we think that authors/owners ought to make only so much
(the content of the so much is unclear), she thinks we should leave it to the
market. Her proposal is a stopgap for when the market hasn’t formed (but we
think it should).
Q: what about we do about people who want to resell but keep
their copies?
Perzanowski: we’ve never asked people to prove they haven’t
made copies before they resell their copy at a used bookstore (or before they
resell their used CDs). So this isn’t
new, but there are possible solutions, with technological measures.
Q: prior notice of intended fair use sounds reasonable when
you’re doing it, but I worry about a trolling problem.
Yen: like lawyers run around setting up insurance companies
for bad faith claims? Although I’m not
entirely enamored of insurance practice, on the whole it’s a good thing. When
people say they’ll be trolled, it’s easy to protect yourself: if it’s a
reasonable use proposed, don’t object.
Ginsburg: a way of trying to compensate artists is the
resale right; that’s for the physical object, but it’s a similar theory that
the artist ought to get a percentage of resale, though not any continuing
control. This is the subject of a directive in the EU. It was in California,
but now preempted. Doesn’t think there’s much prospect of it at the federal
level but the impetus was the feeling that artists weren’t enjoying the
increased value of their works, while copyright gave rewards to other kinds of
authors who got royalties. Don’t confuse author’s right with copyright. Based on the physical object, and copyright
isn’t.
Peter Jaszi: another form of costless overreach: over the
top C&D letters. May be based on nominally plausible claim but asserts
statistically impossible damages claims.
Any remedy for that?
Yen: you need some savviness on the part of the recipient,
which is why I want to educate people.
Q: §108 study group—recommended preservation exception for
qualifying libraries, because there should be speed bumps/obligations to
protect and manage content, even though digitization is wonderful. Thoughts
about responsibilities for digitizing organizations?
Litman: the preservation problems posed by digital media are
very serious, b/c digital media degrade much faster than books. Seems a good
thing for libraries and archives to be more aggressive in preservation than a
narrow reading of §108 would support. The difficulties of updating §108 has
forced many to rely on fair use to carry out their mission of making sure
copies endure.
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