Two great tastes that taste great together

Two of my enthusiasms, plastination and copyright, meet. It is an interesting, possibly exam-worthy question: if I skin and preserve a body in the same pose as my rival plastinator, have I infringed his copyright in a sculptural work? I am inclined to think that the pose is the idea and using a different body prevents infringement, but the case law is far from certain -- the case about taxidermy forms, in particular, would seem to provide my rival with a colorable claim. (Side note: the body would be a useful article, I think, but its precise configuration might be conceptually separable from its utility. Ah, the puzzles of copyright law.)

Terry Pratchett on free speech theory

Terry Pratchett, the great fantasist, has just released another Discworld book, Thud!, about immigration and racial tension as played out among the trolls and dwarfs of Ankh-Morpork. In the process, he has a character restate one of the great problems of free speech theory -- a sort of concise Kent Greenawalt moment.

Lord Vetinari, ruler of Ankh-Morpork, begins: "'... A wise ruler thinks twice before directing violence against someone because he does not approve of what they say.'"

Watch Commander Sam Vimes thinks, in response, "He himself directed violence daily and with a certain amount of enthusiasm against people, because he didn't approve of them saying things like 'Give me all your money' or 'What are you going to do about it, copper?' But perhaps rulers had to think differently."

You should read the book because it's good; Pratchett is perceptive and humane as well as darned funny.

Mattel Toys, infringement inducer?

So Mattel is coming out with this videocamera for kids, the Vidster, allowing them to shoot digital video, presumably including video in a movie theater. Given what the Supreme Court said about the evidentiary effect of Grokster's choice of name, was Vidster really a smart branding choice?

Wertham is unsurprised

Gay Batman watercolors served with cease & desist letter. The pictures are still on the Artnet site for now -- some are not work-safe. These are all apparently "Gay Batman watercolors," though most of the pictures are simply "nude Batman watercolors" -- the kiss/snuggling, both of which are portrayed clothed, make the solo nude portraits gay, I guess. Understandable in headline shorthand, of course, and consistent with the usual meaning of male nudes/males tantalizingly half-clothed, but still interesting to me.

Thanks to Eve Tushnet for the link.

Picker's Mobblog

I'm participating in this week's discussion of Fred von Lohmann's Measuring the DMCA Against the Darknet. My contribution so far, discussing media fans as part of the Darknet, is here.

Indefinitely Renewable Copyright: Batman versus the Utility Monster

I recently read a draft of a forthcoming article by Dennis Karjala on congestion externalities as a justification for extending copyright terms indefinitely, at least as long as their owners assert an interest in controlling them. The argument advanced by Judge Richard Posner & Professor William Landes, sketched out here, is that there is a relevant sense in which a copyrighted work is subject to scarcity: if people are overexposed to it, they may get sick of it and it will lose its value, like an overgrazed plot of land. Karjala does an admirable job of debunking this theory, explaining both why this is unlikely to be a common scenario (Santa, anyone?) and why, even if the theory were true as to individual works, it would not suggest that society was in any way worse off when consumer preferences shifted from overexposed works.

My own interest is specific to a particular way in which Posner and Landes suggest a work may lose value, which might be called confusion or dilution rather than simple congestion or overexposure. The value-loss mechanism involves characters who can appear in multiple contexts, like Harry Potter or Superman; it has very little application to many types of copyrightable works. As Justin Hughes argued before them, Landes and Posner assert that, absent a single owner, different versions of Harry Potter will spring up, and his image will be diffused and/or tarnished, so people will no longer be as interested in him, even in the original format. Just as someone who’s seen L’HOOQ can no longer look at the Mona Lisa with untainted eyes, someone who’s read about Harry Potter and the Mary Sue Bloodbath can’t enjoy the original in the same way. Crucially, this is not just a harm to the copyright owner, but a harm to the class of readers who really did like Harry Potter the way Rowling wrote him.

I’m fascinated by this class of readers, who I concede exist (at least for some works). I think of them as J. Geils readers, from the 80s hit “Centerfold” – “My blood runs cold/My memories have just been sold/My angel is a centerfold.” The memories of the original work are retroactively tainted by exposure to the new work. This characterization of “originalist” readers may be unfair of me, because though the J. Geils song expresses real anguish, it’s also the anguish of a jerk – he’s upset that a girl he had a crush on, who owed him nothing, has apparently changed.

And that, of course, is one of the big problems with using copyright owners’ rights to protect the interests of originalist readers – copyright owners have visions of their own about how best to exploit the copyrighted work, and even about what the real Harry Potter would do. DC Comics authorized the Batman TV show and all the varied Batman movies, at least one of which would have to give a Batman purist fits. Anne Rice and J.K. Rowling are prominent examples of individual authors whose artistic visions have diverged with some fans’, leaving the fans feeling betrayed and violated. (Let’s not even start talking about the later seasons of The X-Files or Buffy the Vampire Slayer.)

Another way I think of originalist readers – again, without much sympathy, even though their anguish is concededly genuine – is as utility monsters. There are a couple of ways to define utility monsters – one example is a person who gets so much pleasure from hurting other people that, if we just want to maximize utility, we should let him hurt those people. But a utility monster can also be someone who gets so much pleasure from monopolizing resources that we should let him have those resources even though that means other people will starve. He might be indifferent to the starvation rather than actively pleased by it, but again pure utility maximization gives everything to him and nothing to everybody else. If it is in fact true that originalist readers get enormous utility out of having just one Harry Potter and no others, then Harry Potter is a scarce resource because of their preferences and they may be utility monsters, even if they don’t wish to harm people who like multiple ways of looking at Harry Potter.

Defining the class of originalist readers this way raises the issue of whether their preferences are really likely to outweigh the preferences of others who like or tolerate variety. Utility monsters are often more theoretical than real – your preference for torture probably doesn’t outweigh my preference for not being tortured. I strongly suspect that the same is true with variation-intolerant readers versus variation-tolerant readers. Most of us are happier being able to pick the Batman we like even though we’re aware of the existence of other Batman versions. Even people who are originalist in the sense of thinking that Miller’s Dark Knight is the only worthwhile one usually don’t suffer so greatly from the mere existence of Bat-Mite and Bizarro Batman (or fan-fictional versions of Batman having an affair with Superman) that their pleasure in the “real” Batman is destroyed. Thus, I think Hughes, Landes and Posner are wrong empirically (as well as theoretically, in that I’m not sure we should give any weight to someone’s preferences about what other people should read – another classic problem of utilitarianism).

Same planet, different worlds

I guess I have some sympathy for the nostalgia for physical books expressed by this type of article. After all, I not only label and file my nonfiction books using Library of Congress categorization, I surround myself with fiction alphabetized by author, and I have a rationale for so distinguishing fiction from nonfiction. But then I get to something like this:

Computers are helpful, but the stacks cultivate intuitive bookish instincts. Those instincts may not be quantifiable, but they produce discoveries that the rational structure of electronic databases almost inevitably preclude. It's like in Star Wars when the ghost of Obi-Wan Kenobi tells Luke Skywalker to turn off his computerized targeting system and "use the Force" instead.

And I have to wonder how "Professor Benton" thinks the stacks got organized in the first place -- perhaps by the (presumably intuitive) library fairies? What makes the LoC catalogers (or, in the case of old Widener holdings, Harvard catalogers) better at making serendipitous connections than Google's algorithms, which I've also known to produce fascinating juxtapositions for various searches? This sort of sentimental rubbish makes me turn more and more to Clay Shirky's "Ontology is Overrated," about the kind of multiple-user-generated information that can be used to organize digital information in interesting and useful -- yes, even serendipitious -- ways.

Steve Burt pointed me to the following story, in which the Edgar Rice Burroughs estate threatens to sue a New Zealand publisher over a novel in which Tarzan grows up to become Elvis. New Zealand's term is life plus fifty and Burroughs passed away in 1950, so fair use is unnecessary as a defense of the novel in New Zealand -- but the estate has nonetheless threatened suit if the publisher reprints the novel in New Zealand (or sells it in other countries). I wish I knew what was the basis, other than unmitigated gall, for the threat against reprints in New Zealand. Perhaps trademark?

I've been trying to follow the Grokster commentary, though I'm sure I've missed a lot. I was moved to respond by Tim Wu's confidence that iTunes would have nothing to worry about if it came out with "Rip. Mix. Burn." today. As I understand it, he sees iTunes as safe-harbored by Grokster because it uses encryption to avoid infinite filesharing and has a deal with the music industry, which presumably shows good faith as well as making a lawsuit unlikely in the first instance.

Basically, though Tim's analysis, as always, makes interesting reading, I think he's conflating iTunes with the iTunes store. As others have pointed out, one fills one's iPod mostly with music that isn't purchased from the iTunes store -- I am a heavy iTunes store user, I suspect, and I have slightly under 300 songs in my "Purchased Music" sublibrary, out of a total collection of over 6700 songs.

"Rip, Mix, Burn" promoted iTunes, not the iTunes store. "Rip" only matters if you have CDs, since purchased iTunes files come preformatted for iTunes. Purchased, DRM-protected music can't be shared without either circumvention or quality-diminishing re-encoding, but iTunes does nothing to limit massive distribution of all those mp3s it encourages you to rip from your own collection (or download from others' to fill that nice big iPod). There is no encryption on ripped files, no deal with the record industry on ripping, and I just don't see which "safe harbor" helps immunize "Rip, Mix, Burn" in particular. This is not important for iTunes, since as a business matter Apple is unlikely to get sued. It's important for the next music player startup that doesn't happen to have music deals in place already, that maybe wants to make money just through the player without having an associated music store.

This really matters, though, for the next industry; we know a lot more about what the digital music industry will look like in the future than we do about digital video.

Of course if anticircumvention technologies are deployed successfully, it might not matter much at all, since they provide an easy workaround for all this kerfuffle about contributory infringement.

This is a copy of what I posted at SCOTUSBlog's Grokster discussion:

While I was not involved in Grokster, I do have a clear bias: Justice Souter, for whom I clerked, is the very model of a thoughtful, committed and careful jurist, and thus I am inclined to support any proposition he endorses. (Though maybe not his apparent appreciation for Modest Mouse.)

That said, I am concerned that not every court is as careful as Justice Souter – this was a problem with his opinion in Campbell v. Acuff-Rose, which quite clearly says that satire can be fair use (though it has comparatively less advantage in the fair use analysis than parody does) but which has widely been overread to say that parodies win fair use defenses, but satires don’t. I fear that similar uncertainties will follow the Grokster ruling. In fairness, though, I can’t imagine a plausible majority opinion that wouldn’t leave many thorny questions.

The previous posts have made a number of excellent points which I’ll try not to reiterate, though I adore Kathleen Sullivan’s image of “strangling little iPods in their cradles.” I don’t quite get Charlie Petit’s idea that the Betamax involved “authorized source material and authorized distribution channels” whereas Grokster doesn’t. Except for unreleased pilots such as “Global Frequency” and bootlegs, the music and TV shows available through peer-to-peer networks came from authorized source material and authorized distribution channels (CD stores and broadcasts). Then they got moved to forms the copyright owners didn’t authorize and couldn’t control – a lot like TV shows got moved to blank videotapes.

This leads into my big questions: What would this opinion really have meant for the VCR? Would “See any TV show you want to, anytime you want to see it” or “build a library” count as enough obvious encouragement of librarying – which was not found to be fair use – to justify a finding of contributory infringement? (I’m still looking for a copy of the “build a library” ad, unfortunately.) What about “any TV show” in the context of pay cable, which again was not analyzed as fair use when the Court looked at time-shifting free broadcast TV?



Moving onward, what would a responsible lawyer tell Apple about “Rip. Mix. Burn.” after today? Does that clearly promote infringement?



How about Sourceforge, which distributes Azureus, a major BitTorrent client? Let me make clear that Sourceforge offers BitTorrent software, not torrents or files – it seems to me trivial even in the pre-reversal 9th Circuit to establish that sites hosting unauthorized torrents are contributory infringers. Sourceforge is not such a site. It offers only the peer-to-peer technology, naked and pure. Except: drill down into the description on the site a bit, and you get this: “The RSS Feed Scanner is an automatic RSS feed parser which is highly configurable and allows unnattended operation via its advanced filtering capabilities. .... The filter strings can be easily edited via the graphical configuration tool, and each filter can also support targeting of specific episodes within a series of the same titles (for example in downloading episodes of shows).” So maybe not so pure after all. Maybe this means that Sourceforge is a black hat, despite initial appearances, or that this particular plugin is inherently infringement-promoting. I would definitely not rest easy tonight if I ran Sourceforge.

Another question is whether the decision, which is explicitly targeted at “devices” including software, will have spillover effects on non-device-related conduct. Already in the Napster/venture capitalist litigation and in the Canadian P2P litigation questions have been raised about whether someone who enables sharing of files on her computer is encouraging infringement by those who download those files. If all she does is enable (or fail to disable, depending on how her file-sharing software is configured) uploading, has she done enough to be liable for others’ infringement? This may not be all that important if the copyright owner’s right of distribution is broadly defined, but the scope of the distribution right remains unsettled.

Relatedly, I’ve long wondered whether this PBS lesson plan, which encourages the creation of unauthorized derivative works and even their dissemination on the Internet, constitutes contributory infringement. That page has plenty of “solicitation that broadcasts a message designed to stimulate others” to create unauthorized copies (slip op. at 20). Many people will, of course, think that most or all of the resultant art is fair use – but fair use is not usually what people want to rely on when copyright owners’ lawyers come around. If I encourage you to create mash-ups of existing songs, believing that at least some of the time the results will be fair use, have I induced infringement if, some of the time, the results are infringing?

Justice Souter doesn’t get into this question, because Grokster conceded that unauthorized copying using its software would be infringement, but it could become important for other technologies, including a future “Rip. Mix. Burn.” campaign.

The fan fiction discussion is now available as a mp3 file here. I come in near the end, about 3/4 of the way through. It was an interesting discussion, though I wish we'd gotten to talk more about post-Star Trek developments, particularly shows and movies that do have strong central female characters.

Still hoping for an archived source for the Open Source radio show, which was quite interesting -- we spent more time on Star Trek fandom than I'd hoped for, but I have forgotten what it's like to introduce an audience to the subject, and Star Trek is always a helpful way in. One thing I wished I'd gotten to say about Lee Goldberg's position that fan fiction shows disrespect for creators' intellectual property -- he compared it to another person giving "your children" "attitudes you never intended or wanted." Which to me sounds a lot like raising a real child -- they come from us, but they aren't us, which is alternately a source of joy and despair. I'm going to be writing a piece for a book on IP and gender about the "work as child" metaphor. What fascinates me is that the metaphor has persisted and still seems persuasive to many even as the persuasiveness of the original claim to ownership of one's children has faded. It takes a village to raise a child; it takes an interpretive community to create a text.

Naomi Novik and Francesca Coppa, two very smart women, will be talking about fan fiction on Open Source Radio tonight from 7-8, as noted here. You can stream the show, which is a live, call-in show, here. The call-in number is (877) 673-6767. I am supposed to do a portion of the show sometime after the halfway mark, focusing on legal issues; anti-fan fiction writer Lee Goldberg is also supposed to participate.

You can be a Jedi or a Sith in the Star Wars online game, but you can't make music because of copyright concerns. So you can play a musician character, but only perform a few pieces of music. Sounds like a pretty boring job.

I'm not really sure why LucasArts and Sony Online wouldn't qualify as ISPs and therefore be able to avoid infringement liability through standard DMCA models. Allowing people to play individual notes, which they could in theory turn into infringing performances, seems a lot like allowing people to type individual letters, which they could in theory use to retell The Da Vinci Code in the game, the same way that performance artists recreated an episode of "Friends" in Quake. Am I missing something?

As a side note, I read this story because I personalized my Google page. I'm trying to figure out how Google changes the way schools and libraries should think about information provision, and how copyright law will influence or inhibit those changes. The basic question for me is, in a world where every hard drive is a library, what should the law say about libraries as distinct from other entities? (As Theodore Sturgeon asked: If all men were brothers, would you let one marry your sister?)

Salon writes about a book on my wishlist, "Mix Tape: The Art of Cassette Culture." As I pointed out in Copy This Essay (PDF), mix tapes are creative, expressive endeavors made out of other people's creative endeavors. As Salon says, "the mix taper faces the same choices as the writer: what to include, what to exclude, where to start, where to end, what to emphasize and what to hide between the lines. Besides, for a large part of an entire generation, a good mix tape carries more emotion and potential for transport than any book, film or individual song."

Incidentally, tushnet.com has finally, finally been updated, including full-text versions of my publications.