WIPIP Concurrent Session #6 Copyright Theory

Justin Koo, Exporting Fair Use to Developing Copyright Systems

Difficult to grow when the law doesn’t have flexibility—across the Commonwealth Carribean. Either involuntarily imposed on us or adopted from UK w/o adaptation to local needs/lack of resources in former colonies. A relatively new willingness to litigate, but lack of awareness/understanding of copyright law in Carribean is a barrier. Discussion about moving from fair dealing to fair use hasn’t focused on developing countries/© systems in particular. Developing a jurisprudence: you need to implement an overall copyright policy—what is the purpose of ©? There needs to be a catalog of foundational case law identified—can’t just say “fair use”—even in the US, elements developed in the common law. This also involves using © rights in appropriate ways. Is a jury required to make the system work? [No!] Will importing fair use solve any problems? Worth elaborating.

Brauneis: The US took 100 years post-colony status to stop citing primarily British cases; the transition can take a while.

RT: Don’t need a jury (though there may be subtle effects on how judges behave because of the jury background); Google v. Oracle suggested fair use mostly wasn’t a jury question. Israel might also have some foundational cases to look for.

Naama Daniel, Lost in Transit – How Enforcement of Foreign Copyright Judgments Undermines the Right to Research

Copyright is territorial, but the internet is not; different scopes of protection.

Copyright owner has initiative, choice of forum, enforcement; researcher can at best get a no-infringement ruling. Enhanced by Equustek v. Google’s global injunction against Google requiring delisting a site worldwide. Courts have started to issue global injunctions, making the problem even more severe. Risk of strategic litigation; most restrictive jurisdiction prevails, leading to race to the bottom. Heated debate on countries about enforceability of IP judgments; kept out of int’l convention.

Is the right to research getting an unwanted transplant? Compare to foreign defamation and privacy judgments. Easier to get consensus on excluding those as representing national balancing; she thinks that the same should be true for IP.

Fromer: go bigger in protecting countries’ exceptions generally.

Silbey: surface the debate over what © is for: that privacy and defamation got excluded while IP was still being debated suggests a lack of consensus about what IP is for. Is © a personal dignity right or a property right? One suggests more about local values, perhaps, than the other.

Brauneis: Should repugnant to public policy be built into any result?

A: it already is, but has some problems detailed in the paper.

Lisa Macklem, We Love What You’re Doing… Now Stop or We’ll Sue

Examples: Axanar; unofficial Bridgerton musical; Fleetwood Mac retweeted a video of a man using his skateboard to ride down highway drinking cranberry juice and playing “Dreams”; users managed backlash against Dungeons and Dragons planned rule changes requiring payment for things like podcasts.  When does fan creation cross a legal line, and when is that line a monetary one?

Early stage creators are often willing to collaborate/lack resources. Do fans have greater power as content owners vie for their attention and dollars? DnD fans spoke with $ by cancelling their subscriptions. Motivation for © owners to change how they view ownership? Is there real substitutability in home-grown stuff compared to professional content with special effects? Is fair use/fair dealing the answer? In Canada, the UGC exception is limited to things that don’t substitute. Paramount’s fan film guidelines for noncommerciality make it hard to fundraise to create good stuff.

Contract instead of ©? Micropayments? There’s something going on but looking for thoughts about legal responses.

Rosenblatt: consider implied license and laches. Most insidious about behavior you describe is precarity of fan endeavors after they’ve been downright encouraged to do these things by bringing them in, exploiting fan labor, then going after them when they’re successful.

Feist: won’t find much in free to play, which is really about antipiracy/controlling entry. But larger companies have guidelines for fans, mostly about commerciality/no spoilers.

Sarah Louise Bishop, Scenes a Faire, Novelty, and Genre

Before 2013, no court of appeals affirmed use of scene a faire on motion to dismiss, and since then it’s happened a fair amount: 45% in last 5 years. Should that be possible? Need to define what’s common or standard within the genre, but these dismissals are happening before discovery; 9^th Circuit used to say you couldn’t even do it on summary judgment unless it was uncontested. Why?

Internet = loss of access as a filter to get rid of marginal cases, so need other parts of the toolbox?

Twiqbal: judicial experience and common sense.

How do they do it? (1) vibes, aka judicial experience and common sense; (2) factual precedent; (3) judicial notice.

(1)  Is by far the most common. Either there are no citations or support at all or examples from own experience or that of clerk’s: Luke Skywalker, the Hobbits, and Buffy the Vampire Slayer as examples of reluctant heroes. They aren’t saying, as Gracen does, that your copyright is in the small variation you did from the trope and D didn’t copy that, just speaking broadly.

Maybe we should mind, because the result is that creators working in unfamiliar topics and genres are being held to a different standard. Can’t get them dismissed early. Courts did MTD in following genres: sci fi, horror, romance, spy films, vigilante theme, stories about Americans living in Paris, buddy cops.

Courts declined: colonial architexture, makeup art, waiver and release forms, telenovelas.

Third bucket: Ds who don’t even bother to try knowing judge won’t know enough to decide.

Potentially pernicious effects of cultural competency/homogeneity.

(2)  Citing factual precedents, which isn’t how this is supposed to work. Precedent is for rules, not facts. But courts treat scenes a faire as a legislative fact—a fact about the broader world that doesn’t change case to case. Don’t we want this? Uniformity, predictability, efficiency. But civil procedure scholars are very skeptical of this notion because of the risks of herding, lack of factual support for previous finding, ossification (facts about artistic genre change). 1950s books with both having a plot about a woman elected VP who becomes president when the male president dies. Court says that was a scene a faire given the premise of a woman president, given that no woman would ever be elected. And at MTD, risk of influence by biased submissions of more resourced repeat players who define the genre they’re in for their own benefit.

(3)  Judicial notice—rare; maybe inappropriate under FRE 201 which requires adjudicative facts “generally known” or “not subject to reasonable dispute.” Not for legislative facts.

These cases look like a novelty requirement: not new. As access declined, David Nimmer predicted, courts might turn access against Ps and say they need to prove up originality, turning it into covert novelty requirement.

Importance of genre: courts often quote “standard in the treatment of a given topic.” 7^th Cir. has its own formula: scenes a faire don’t serve to distinguish one work in a class from another.

But you need to define genre or you just have a novelty requirement based on vibes. Ok with this? 10^th Cir said there was no requirement of actually having a genre for the doctrine to apply.

Fromer: scenes a faire roughly breaks into (1) depicting things about the world, like a frat party, (2) tropes internal to fictional worlds that people do—superhero depictions are standard; there is an in between where there’s a stereotypical depiction of college frats in movies. Different categories might make judicial notice easier. Also, note dynamic nature of category—experience of going to law school now is different than it was in Paper Chase.

Said: working on a taxonomy. Posner must be wrong about distinguishing a work because he’s combining it with substantial similarity. [but isn’t it a way of assessing substantial similarity? If the only similarities are at the level of trope, it’s not substantially similar in protected expression].

RT: My priors: Substantial similarity is junk and these techniques develop to clean up some of its junkiness instead of using derivative works properly. So, b/c a programmer can’t get this, a sci fi film has to go to discovery when you couldn’t imagine facts that would change your finding? Seems to benefit no one. Why not targeted discovery/expert instead? And a woman president is still a scene a faire—what’s wrong with a one way ratchet? Idea/expression; I agree with 10^th Circuit that an idea can generate its own scenes a faire: once you think about recreating dinosaurs from fossilized DNA, it is obvious that no story about that ends with the dinosaurs not escaping and everything being fine]