Panel IV. Campbell and the Future of Digital Technologies
(Moderator, Dean O'Connor)
O’Connor: output of one creative person becomes input for
the next. Consider how copyright and fair use work in that system.
Robert Brauneis, George Washington University: How have new
technologies influenced fair use jurisprudence?
(1) Personal copying and distribution and the personal/commercial
distinction. Before Sony, there had
never been a single published opinion on fair use in private noncommercial
copying. Non-networked tech brought
personal copying to the attention of copyright owners, leading to fair use for
some forms of personal copying. Few
decades later, networked computers challenged personal/commercial
distinction.
(2) Computer programming/functional works. Pre-Feist, there was a big branch of fair
use jurisprudence devoted to ok uses of factual works; that faded as
noncreative facts were excluded. But a new branch arose, dealing w/largely
functional works and reverse engineering.
(3) Nontraditional uses. Accessibility to the blind.
(4) Dissolution of the concept of the copy. New tech
significantly eroded the role of the copy as the intuitive unit of consumption.
Fair use will likely step in to mediate between the intuitive sense of exploitation
versus formal reproduction. In
non-networked world, users typically acquired only one copy. Now many of us don’t
know whether we own a copy of a work or not, since Spotify commingles local and
streamed; we don’t know how many copies we own or where they’re stored or when
another copy is being made—the cloud obscures, faithful to its name. Correlatively, it doesn’t make sense to treat
cloud syncing as we do printing another hardcover book. Reframe from copying to
access/exploitation? But it’s more than a little difficult to create a new
conceptual scheme and harder to get Congress to act; courts will mediate
slippage between rights and practices that seem widespread and harmless, and
they can call on fair use to do so.
Sandra Aistars, Copyright Alliance: Worth distinguishing b/t
creating new copyrighted work and facilitating new tech. Campbell
worked very well for the former, but not so with new distribution
models/purposes. The beauty of fair use is that it’s both flexible and
case-specific; allows courts to consider all the nuance; guard against new set
of reflexively applied presumptions w/negative effects on creativity. (Ideological drift …)
Authors aren’t threatened by the concept of fair use, nor do
they want to see it limited. Authors of all types need to facilitate the use of
existing works, and celebrate contributions tech has brought to their lives.
Tech innovators face similar challenges trying to get product/service launched
and authors are sympathetic. Seems to
her odd, as June Besek noted, that partial copying by an individual artist is
scrutinized more than massive full-on copying of entire works by commercial
entities, which is presumed to be transformative b/c different purpose.
Intermediate copies are all lumped together. They can be
used in ways not linked to traditional sources of income for copyright owners,
or simply to design around existing law to avoid licensing. Aereo
is a good example of design-around. Intermediate
copies used to facilitate new products/services can have different impacts on
different market sectors. Search engine that exposes artists to users is
beneficial, but taken too far or applied specifically it might undermine the
market or supplant the market for visual images entirely. Should distinguish and not say all
intermediate copies are created equal.
Do we need different approaches when a new work is created
versus new purpose? No. The four factors
serve us well, allowing each use to be considered on its merits. Interesting to hear Beebe’s empirical
research indicating that it’s easier to predict outcome than some might have
expected. She worries that it’s easier to make a decision based on nuanced
analysis of four factors than it will be if we allow the trend to compress
everything down into one test, bringing a tendency to be guided by perceptions
of morality or social utility, which are far harder to predict.
Yoko Miyashita, Getty Images: over 200,000 photographers,
100 million online and 85 million more in storage. When we talk about
copyright, we mean creative, technical, highly skilled works that our
photographers may put themselves in harm’s way to get. We moved through technologies than now make
anyone a photographer and a publisher. The universal language is imagery. Part of that language is “like” and “share.” For younger generations, using images is
essential to speech and personality, not just a “nice to have.” Genie’s out of the bottle. We don’t want to be regarded as the ones who
want to break the internet and not taken seriously. Trying to take expression away from the
public is a losing game.
We tried the enforcement route and we learned the hard way. (Turns out they sent a letter to Corbis,
despite cross-distribution agreement.) Unwinnable whack-a-mole, plus potential
long term brand harm. So we needed to
evolve instead of becoming irrelevant. Getty Images Embed: 99% of content is
available for free, for noncommercial purposes. Social sharing has been added
to our images. Facebook, Twitter, Tumblr, Pinterest: adds watermark, link back
to images, and information on license. We want user traffic, eyeballs, data:
the currency of our marketplace.
Our biggest competitor is Google. Among buyers who regularly license
content. 9 out of 10 unauthorized users
we speak to point to Google as their source of imagery. Kelly
v. Arribasoft & Perfect 10:
what’s happened in search over 12 years.
We went from thumbnails, which used to have little links to the source
site; now shows nothing but images like Getty Image search results. Then it
goes to a beautiful large view with functions that have had a huge impact on
us. The addition of larger images, and arrow features that allow you to toggle
from one image to the next, has had a devastating impact on traffic for
us. Not going to get into the framing
issue (by which she means whether framing implicates any §106 right). Easy to
right click and save on a computer; they are the same size on a mobile device.
They significantly reduce clickthrough rates for source sites.
This substitutes for eyeballs for all our paying customers
who are licensing these images. We are bearing the cost of hosting those framed
images when viewed that way. Is it
transformative or substitutional? Look
at the market harm. Is this search or a
wolf in search’s clothing? (I’m gonna go
with search.) All we want is eyeballs,
data—it’s negotiable currency. Are these
intermediate copies designed around existing law to avoid licensing? That’s a
key question for us. (And a weakness of
the Aereo reasoning: should we say that Google search behaves as if it is
making a copy, so we’ll consider §106 implicated?)
Matt Sag, Loyola University Chicago: The dissolution of the
traditional concept of copying. Exchange of value b/t author and consumer was
made easier/clean by first sale: money for copy. Then public performance entered the field;
broadcast as another source of value, so we get broadcast/cable retransmission
rights, crowding around reproduction right but not really changing its
significance. Then we get tech led by photocopier, disintermediating copying
for businesses and consumers. Then goes
digital and networked. Now it’s possible
to look at when people stopped saying “the United States are” and said “the
United States is” by copying the contents of an entire library: a nonexpressive
use. The machine is the only one that sees it all. We’ve never had to think
about copying not for expressive use before, but courts have handled it rather
well. There’s an interesting question
about whether nonexpressive use should be considered transformative, or
recognize it as a different form of fair use—latter would be cleaner, but Campbell is still important because it
tells us that it’s not the loss of despotic dominion that’s a problem, but
rather expressive substitution.
Jule Sigall, Microsoft: He’s not really worried about any of
the stuff his family does, like using image search for personal
communication/creating new meanings within the family. Think of all the things
we use: Outlook, Powerpoint, image search, telephone lines, Photoshop, Skype.
Tech becomes part of the speech. These
are our users. Where should we go to help answer questions about whether tech
should permit these uses, how we should market the tech? As the person who represented Kelly in Kelly v. Arribasoft, I got a painful
lesson in trying to answer those questions using the basic structure of the Copyright
Act—a set of broad rights designed to cover lots of stuff, with narrow
exceptions (w/exception of fair use).
Presenting it that way left the court with a lot of disturbing
questions, and thus justified the use of fair use. You proceed at your peril as a copyright
owner if you present a copyright infringement case w/out considering the kinds
of things fair use considers—it’s just not effective advocacy.
It’s good for fair use to answer these questions, b/c it
provides the most robust set of factors to answer the question of whether an
activity is ok. They can be
misinterpreted, but they’re better than the other portions of the Act (compared
to Netcom, which invented a
volitional conduct requirement, or Cablevision
on breadth of performance right). Not obviously complete or clear, but good set
of precedents. Fair use is right in the
norm of predictability for laws that in-house counsel are asked to opine
about. When you look how my kids use the
tech, there’s no going back to the old ways of “paraphrase or get a license.” Not for them, not for the courts. That doesn’t mean all fair use claims will
succeed. But fair use has plenty of
applications now.
O’Connor: New tech always popping up, like livestreaming
Periscope. Does it matter any more whether there are multiple copies, or just
uses?
Sigall: Software has had the longest history with digital
copying. Industry is moving to offer
products away from counting copies in the offering to the consumer. Office 365 in the cloud. As a business
matter, the ability for the user/customer to not think about copies is now the
expectation—counting would be distraction/inconvenience.
Sag: it’s not the case that Google Book search à
Napster. But my computer backs up to the
cloud. I have no idea how many copies of my authorized purchase I have floating
around, and neither should the copyright owner. More ambiguity about where the
copy resides = need to be less doctrinaire about “every copy is controlled/has
independent value.”
Aistars: doesn’t matter unless you’re in a litigation
posture where you have no other way to advance the argument other than claiming
that there are multiple copies. It’s a distributional argument: how to divvy
the pie up. Consumer electronics were
innovating in the 80s and 90s, in symbiotic relationship with the “content”
industry to sell expensive devices. The
business model is now more about giving the content away and relying on the
data to sell stuff. Leads to more
interaction for the user, but the creative work is subsidizing the ability to
make those uses. Not the same as 80s and
90s where nobody was capturing that value; tech innovators are capturing that
value by showing ads/using that data. (I
think “nobody” here means “consumer surplus,” if I understand her properly.)
Brauneis: space and time shifting are quality enhancement
technologies. Fox v. Dish: automatic ad skipping. Suppose all those
technologies are fair use. One way of thinking: it doesn’t matter whether the ©
owner sells you a high balcony seat if through the use of tech you can make it
a front row seat without having to pay more.
It’s not obvious that the answer is that there should be no
differentiation between qualities or levels of access to work to improve social
welfare.
O’Connor: we used to think of vinyl as lasting forever, and
then it doesn’t. Now we can, in the
cloud. But am I buying a forever copy?
Or do I lose access if I don’t pay?
Sag: Peter DiCola has a good paper on this, the option value
of music. Cassette: really a one or two year license. (How badly does he treat those?)
Aistars: buying a new device to listen costs you something,
whether it’s having to watch ads or lost data. If you are buying one, why not
pay for the rest?
O’Connor: I don’t want to buy new devices.
Sag: consider logic: if a blind person has glasses that
capture an image of a book and translate it into an audio version I can hear.
Do I really need to pay for the book twice? The tech has enabled more increased
value, but why should some of that value go to the book’s copyright owner for
those digital images?
Aistars: would depend on what the manufacturer is doing in
terms of gathering info about what the person’s reading, developing additional
lines of business that depends on the interest of the underlying work to the
consumer. In that case some share should go to the person who’s creating the
work that the individual wants to read or hear.
(Wouldn’t that share be “the cost of the copy she bought”?) Many people do want to upgrade over time. If
you complain about having to buy in a new format, you should be equally upset
about having to buy the new device to play it on, and she doesn’t see that
happening in this new space. (That’s because of the classic excludability
problem. The device is excludable without law; the sound recording is only
excludable if the law forces tech makers to design that way. That’s why they
feel and are different.)
Sigall: dual purpose tech raises issues (infringing and
noninfringing). But since more and more stuff is more like an app on different
platforms, it’s less about design of particular app or device or purpose.
Challenge in this space is to say: everyone will use this for everything; that’s
the world. Trying to segregate what you should/shouldn’t do is extremely
difficult. Fair use is relatively good at this.
Subset of copyright owners tends to object; what about the rest of the
copyright owners whose works flow through the tech? We have really bad info
about the preferences of those owners. How do you as a tech provider segregate
these, especially without a formalities system?
Some © owners don’t speak with all but the tech is all for everything.
Naeve: some © Act provisions are extremely reactive to tech—cf.
§110. Fair use is more open ended. Which
is a better promoter of © policy?
Miyashita: you have to be flexible. We can’t anticipate 18
months ahead in new tech.
Aistars: both are promoters. You need flexible fair use to
account for unanticipated events or one-off situations. There are situations
where it’s been beneficial to have a more specific permitted use and in some
cases have that use compensated. Would prefer not to have industry-specific
terms in legislation, but in some other place.
(Presumably a reformulated Copyright Office.)
Sigall: interesting to see whether a plaintiff owner argues
at a high level of abstraction where the tech doesn’t matter versus arguing about
which server makes which copy. His sense is that it goes both ways all the
time.
Brauneis: the longer a delay there is in legislative action,
the more we will use the courts to make new law.
RT: public statistics on uptake of Getty Images? Is Getty sending C&D or non-C&D letters
to people who aren’t using it to switch people over?
Miyashita: we are sending letters. Encouraging/highlighting the
availability. (But no answer on
statistics on uptake, sigh.)
Heald: thought that Kelly
is defensible but appalled by current Google image search. Is anyone
litigating it? Second, Hargreaves (UK)
report—no changes in the absence of empirical data (RT: though note that the
initial law was not adopted with the same rigorous standards). Is that a good
idea?
Sigall: It’s hard to argue against policy based on empirical
evidence, but the question is how you get it in timely and effective fashion.
Can be very difficult.
Q: did Getty have photographers object to the Getty embed
feature?
Miyashita: no. We
have to acknowledge practical reality of the types of uses for which embed and
social sharing are ideal. Attribution, traffic, eyeballs, data, linkbacks start
to make sense as overarching strategy.
Loren: also have questions about new image search. Are you doing anything? You have market power. You could choose the
robot exclusion header. Setting the law
aside, there’s a business reality.
Miyashita: we could use robots.txt, but the 100s or 1000s of
other licensees—there’s no means for them to exclude; publishers would have to
implement robots.txt, and then the stolen sites would be the prominent
results. (That’s … not exactly true in
that the publishers could implement robots.txt just for images, and allow text
to be indexed. And then there is the
DMCA.)
Aistars: many people we work with are individual authors. To
the extent there are ways to aggregate and get value from works, whether
monetary or data/interaction, those are positive things.
Sigall: has seen interesting things happen around
accommodating multiplicity of uses, fair and unfair. Videogames.
Valve’s Steam platform: starts from ground-up understanding of what
customers and users and creators all understand about what you can and can’t
do. They accept fair limits because the platform has been built that way. Create norms around usage that are more
meaningful, enforceable, and practical than if you looked to the Copyright Act
to mediate the transaction.
Samuelson: the role of TPMs and anticircumvention. When I
read §1201 submissions from GM and the Auto Alliance, they have concerns about
battery life and warranties, not about infringement. In the internet of things,
TPMs may become a new set of issues; fair use circumventions already happen every
day. How will TPMs and anticircumvention evolve?
Sag: most TPMs don’t work. When they’re circumvented, often
won’t give rise to liability, for courts following Chamberlain and Lexmark.
Attempts to use TPMs to control aftermarket could be an antitrust violation if
you buy a single-brand lock-in theory. Lots of moving parts, and then there’s
whether the Copyright Office should be writing regulations. (Um, the answer is clearly no: what business
of the Office is it how long the battery of your car lasts?)
Sigall: there’s a role for TPMs to preserve the rights of
copyright owners. Valve uses TPMs in a pretty significant way, but they’ve
built it to be flexible. Tech is
deployed in a social and communal setting that determines whether or not the
tech works; the legal architecture sits in the broader community. If you do it right you diminsh the need for
circumvention. You will have abuse of
tech, abuse of legal protection. Safety valves: the © Office rulemaking, which
gives us information about what’s working and what’s not. Chamberlain and Skylink
also showed courts willing to create exemptions that didn’t exist in the
statute. Don’t paint too broad a brush: TPMs aren’t going to save copyright
owners or destroy users. (Just uses.)
Brauneis: in a networked world, when you can keep important
parts of the works on a remote server, the use of TPMs is less important.
Aistars: TPMs can reassure authors into supporting new
formats. Problematic when used for printer cartridges and garage door openers;
courts have been able to get it right.
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