Thursday, August 12, 2021

IPSC Panel 20 – Copyright Theory

Shyamkrishna Balganesh, The Institutionalist Turn in Supreme Court Copyright Jurisprudence

[Mandatory laptop update delayed my entry; this is a typically rich paper]

Institutionalism example: commitment to Congress to decide in Eldred in Golan.

Substantive disagreement takes the language of interpretation in Kirtsaeng.

Methodology comes to the center in Aereo.

Textualism becomes an acceptable method in Star Athletica: there’s a plain meaning (despite an 8-way circuit split). Continuity with other areas of law; greater unanimity; Breyer-Ginsburg split becomes less important.

GvO is a win for fair use (good) but also a bad application of textualism to copyrightability. Court has no role in linedrawing copyrightability under 102(b), even though the legislative history is clear that courts were supposed to do that. [To me this is why textualism is often quite empty; 102(b) itself is quite clear about not protecting things that are part of protectable works.] Then the dissent says you’re overriding congressional policy by applying fair use. Breyer is sort of genius in using fair use—where textualism really cannot make any inroads.

Glynn Lunney: Cautious about stories that rely on a plan since it’s 9 Justices with different motives. Breyer’s treatment of factor four in GvO doesn’t seem very textualist.  Are we going to see an insistence that reproduction requires wholesale copying, instead of allowing copying of any significant part to be infringement?

A: Sure, not a concerted plan in the institutionalist turn. But the language of institutionalism makes its way into the structure of the cases and the outcomes reveal that. And he expects that the Court will stay away from the reproduction right; that means it will stay in the lower courts that aren’t particularly committed to institutionalism.

Matt Sag: Cert grants do show a pattern when it knew it was going to be 8 members—remedial © cases make sense when they know they’ll be split on hot-button ideological issues. But that wouldn’t be a © agenda, rather a Court management agenda. They need to keep some of the cases uncontroversial. Also, was Star Athletica textualist really? He just refuses to interpret it and insists the language is clear! [Again, reinforces my opinion about what textualism is.]

A: focus on plain/clear meaning whenever possible and no recourse to legislative history. Does influence how they write opinions—see also Georgia v. PRO dissent where Thomas says the statute is completely clear. Definitely the Court is caught up in other disputes about institutionalism and © proves to be the perfect vehicle.

Stephen Yelderman, The Supreme Court’s Fragile Copyright Law

Sometimes the Court disrupts well settled caselaw, even when the apparently settled law has been accepted by industry and engendered significant reliance. This overt disruption is unpredictable. Most circuit law doesn’t get overturned. Generates uncertainty even when the Court doesn’t act.

Examples of overt disruption: Stewart v. Abend. Rohauer had explicitly teed up the issue for cert and the Court had denied; it was written by Judge Friendly; it had a yes or no answer; and the Court let it sit for 12 years and industry had relied on it, including making new movies based on books or promoting those movies. Movie studios told the Court that in their arguments, saying 100s of films were in jeopardy. SCt didn’t care, though it engaged w/Friendly’s arguments as arguments, which he would have said was fine.

This happens repeatedly, including where the relevant circuit law is more than 2 decades old and the reliance interests ran to $100s of millions.

There are a number of vital provisions that have evaded SCt review, like the DMCA [yikes], and that means that a new question lacks SCt guidance. Without SCt cases nearby, it’s hard to argue for intervention in the absence of a circuit split. Contrast with patent law, where Court is more active. Among the results: reliance on 2d/9th Cirs. Other circuits often defer to them. But the Court is happy to override them and doesn’t consider overriding them as a stare decisis issue despite the reliance interests.

How many doctrines that are important pillars found only in circuit law? A lot! Notice how many of the key cases we teach are circuit/district cases. No choice, because they are not found in SCt law. De minimis exception; right and ability to control; lots of DMCA issues; character copyright. What protects that circuit law? They are open to different interpretation—regardless of your method of statutory interpretation. Some are even the result of judicial interpolation [the professor exception to works for hire!].

Court does take questions 20 years after they arise. And after it’s denied cert before. And after reliance has developed. The best thing that could possibly happen for industry/reliance interests is that the Court stays out of it. The only constraint is that 4 Justices must take an interest at the same time. Cert and merits process don’t talk to each other, especially w/r/t reliance interests in old circuit law.

Does that mean that the Court should never overturn old cases? Or always grant cert as soon as a split arises? No, sometimes the precedent is wrong and should be reversed; sometimes questions do merit percolation and the Court has limited resources [the declining number of cert grants suggests that its resources are much greater than are being used now, though]. But he does argue that these considerations should be taken into account at some point in the process.

Jeanne Fromer: why is this about © as opposed to just anything that the Court doesn’t hear regularly? Should this be a broader project or what are the © specific issues? Does this say anything about how well the SCt decides cases.

Xiyin Tang, Privatizing Copyright

Example: YT private deals with record labels, now model for Europe’s mandatory licensing law. Antidemocratic effect of allowing large parties to rewrite © rules with no public oversight. Music Modernization Act removed all consideration of public policy in compulsory licensing of music, removing four public-interest-oriented factors that required maximizing availability of works. The new rates are unapologetically market-based and take privately negotiated agreements as the lodestar. Follows the model of §1201, which allowed private decisions. But those older changes were more democratic and transparent than the new privatization. 1201 at least has rulemaking with public hearings and published rules. Even software end-user agreements are at least accessible to consumers who putatively agree to them. It’s no surprise that those essentially backfired to the industry—1201 led to an entire countermovement of © users who organized under broad umbrella of access to knowledge. By contrast, today’s users are largely complacent—they don’t know what the deals actually say. One possibility: revive © misuse. State consumer protection statutes? Could try to represent a group of users whose videos were blocked, though there would be commonality issues. The heart of the paper is not solutions, but about rethinking the internet’s transformative potential because of lack of participation in rulemaking can lead to lack of ability to participate in making new creative works.

Lunney: why do platforms agree to these? Threat of © litigation? Threat of legislation? Helping create a barrier to entry? Second, is there any feedback the other way? If © was narrowed, would that change the contractual situation.

A: the paper says it’s a mix of motives. Avoid litigation; more problematic explanation is certainly monetization—they could make more money by tracking what users were watching and if you want to monetize the content it’s harder to rely on the safe-harbor, so this was a win for YT and for the content owners. Who it isn’t a win for is the creators/users being tracked and monetized. FB has also been pressured to do this. [Though Lunney’s point is perhaps that saying FB was pressured may mistake FB’s market power—who has more market cap, FB or the labels?] Anticompetitive effects are also significant.

Bruce Boyden: Is it private contracts driving the problem or the non-© restrictions? What if YT on its own decided to pull videos it thought were made with external content, regardless of fair use? Can they pull down anti-vax videos without implicating the concerns you have? He thinks it has to be the contracts. So why exactly forming a contract that goes beyond what © might require is a problem. [I kind of think the whole paper is about that from a democratic perspective.]

A: one section of the paper is dedicated to artists’ objections. A leaked agreement between FB and one content holder—artists can object to the use of their music in connection with anything for any reasons; the label gets a certain number of such objections per month. But that could be critical/fair use.

Jake Linford: YT is providing the service to noncommercial users for free, in exchange for data mining. That’s just part of the ecosystem. It may not be unique: well heeled central players get better treatment in tax law; CVS gets a better deal from TM owners because it is big enough to negotiate. Maybe this is a window into a bigger world where you get whatever you can negotiate. Maybe individual user or even a collection of users lack leverage. Is the goal then to read contracts in light of hypermuscular fair use, and how would you sell that to courts? [Or the goal could be to change the law of contracts to disallow some provisions.]

A: there was a version of © misuse that would have prohibited provisions that went beyond ©, like prohibiting reverse engineering; those cases have been neutered. We could revitalize the doctrine—Omega v. Costco concurrence. It’s also useful to bring light to what these clauses say.

Matt Sag: Is it the privatization or the lack of democratic input or the lack of transparency that really is the core? How do we evaluate the extent of that problem versus the efficiency of the scale of Content ID?

A: Lack of public insight into new rules. Ability to take down things for any reason. If those provisions wouldn’t be upheld in court, they might not exist.

Glynn S. Lunney, Jr., Transforming Fair Use

From his perspective, © (and patent) is in a better place now than in decades—vast increase in number of people who can be published authors; memes have become popular ways of distributing points of view; and there are cat videos. Key differences: initial investments to create and distribute are now often trivial. Before, only the privileged few could share writings or music with the public at large. Often, the value of these works comes from the fact that they are copied—not unique objects. In the past, a book was often published once and then not reprinted; no matter the duration of ©, access deteriorated.

When everyone can hire a lawyer, standards are probably better than rules. In the new digital world, © should be weak, narrow, and short. In the digital environment, a book from 50 years ago can still be available online. Rules are better—for drivers’ license, we say 16 or older—because we want everyone to paritcipate. So too with rules when everyone is an author. Not perfectly just but more sensible in aggregate. Compulsory licensing is one option, but noninfringement is simpler: compulsory licensing with rate set to zero.

What then? Congress is hopelessly captured, which leaves the courts—and fair use is the main safety valve they can use, so that’s where they’ve turned. The earlier claim that analysis must generalize the effect on the market if the use were universally repeated (even in Folsom v. Marsh) is empirically false; if it were true, libraries would destroy the book market, which they don’t. GvO is more careful empirically—new market, ease of transition for programmers, size of what was copied. For the first time in a SCt decision, court says you have to take public benefits of copying into account in market harm analysis. But it is hard to separate the value generated by programmers from the value generated by fan fiction authors—it can’t really confine the rule to software on a factual basis. And we don’t live in a world where we can actually do the full utility analysis of whether Progress is better served by voting for Google or for Oracle. Looking for natural experiments: current results suggest that incentives don’t matter—more $ for Oracle wouldn’t lead to more and better future versions of Java. Music shows that throwing $ at the music industry doesn’t work—the highest revenue period for the industry, the 90s, is the least popular.

Given that we aren’t going to get reform from Congress, we have to focus on courts—300 out of 120,000 words was unfair; right now any copying needs justification. His proposal: for non-full copying, any penalty needs justification.

Yelderman: You briefly alluded to natural monopolies being easier in real world—strikes him as counterintuitive.

A: in the ideal world we wouldn’t need intermediaries at all. Platforms have developed into monopolies, but 1000s of people set up webcasting in their own homes. [That still required an intermediary, at least the wires] In the analog era, you needed a bro

[Display right seems to be heading in the wrong direction; unexplored ground in plain meaning of the distribution right which on its plain meaning terms no digital delivery can implicate directly to correspond w/your suggestions that the reproduction right should really mean reproduction, not copying of a tiny chunk]

Lisa Macklem, A Tale of Two Cases: A Fairer Approach for Creativity and Innovation

Oracle + Canadian case holding that Access Copyright tariff isn’t mandatory. What the decision says about collecting societies doesn’t apply to every situation. Both decisions affect ability to research/access materials to learn a craft and innovate. Pursuant to NAFTA replacement, Canada is about to increase term to life+70 and change the rules about intermediaries, which currently assume innocence/place burden on accuser. Also looking into AI. Struggling to keep up with tech. Seems obvious to make fair dealing exceptions illustrative instead of closed.

Canadian court said in essence that the real parties in interest weren’t present—© owners. Lower courts had misinterpreted some things about access/fair dealing. Focused on context, like GvO—what are the facts in the case? What is going on with users? Helps balance legislation.

If the result had been otherwise, one instance of infringement could have made a university liable for the full tariff, millions of dollars. They were getting licenses and finding other ways of getting access to students, but they weren’t getting licenses from Access Copyright—and the ruling was that they didn’t need to do so.

Looking at the institutional perspective and institutional nature of copying was an error in the lower courts in Access Copyright—failed to look at individual students. Funds saved by not subscribing went to legitimate educational uses, not to profit. Access Copyright argued that in theory a whole book could have been copied in chunks each distributed to a different student, but that was the wrong approach; generalizing would penalize larger schools over smaller ones.

Pam Samuelson: Acknowledgement that reuse can benefit creativity is really significant in the cases.

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