Category Archives: Uncategorized

Top-Ten Lists And Five-Star Reviews: Ratings, Rankings, And Creativity

Sep 18, 2012 Laura A. Heymann

Until about a year ago, as the New York Times recently reported, Todd Rutherford had a successful business working with writers to help them market their self-published books on the Internet.  Rutherford’s previous career had involved more traditional publicity efforts — talking up his clients’ work in the hope that a reviewer at a newspaper or a blog would take notice.  But eventually he realized that it made more sense to “cut out the middleman and write the review himself.”  And so GettingBookReviews.com was born, a business that, depending on how much the author was willing to pay, would write one, twenty, or even fifty online reviews singing a book’s praises.  “Before he knew it,” the Times reported, “he was taking in $28,000 a month” and had to hire freelancers to keep up with the demand.  Rutherford may have been particularly up-front about the nature of his business practices, but he was by no means an outlier; one estimate is that about one-third of online reviews purporting to be by actual consumers are marketing schemes rather than genuine reviews.

Rutherford did not, apparently, assert a proprietary interest in his company’s reviews; in any event, the service later foundered when Google, and then Amazon, took notice.  But one might suggest that the inherently creative nature of the reviews – at least one of the freelancers admitted that she hadn’t actually read the books she “reviewed” – would put them squarely at the heart of copyright law’s scope of protectability.  If this is the case, does that suggest something troubling about ratings?  Or about copyright law more generally?

A recent article by James Grimmelmann seems to pose a simple question: Are ratings copyrightable?  But what makes this short piece especially thought-provoking is the way in which Prof. Grimmelmann uses this question as a way of interrogating various fundamental doctrines of copyright law: the idea/expression dichotomy, the originality and creativity requirements, and the nature of fact versus opinion among them.

Prof. Grimmelmann begins by providing an overview of the case law considering the copyrightability of ratings.  Because individual ratings are too short to be copyrightable, post-1976 Copyright Act courts analyze ratings systems as potentially copyrightable compilations.  In some cases, courts treat ratings as statements of fact, capable of being proved true or false (such as the ranking of a particular CEO as receiving the fifth highest income in the country).  In other cases, courts treat ratings as an opinion, entirely the product of their creator (such as the typical restaurant or product review).  And in a third category of cases, courts treat ratings as “self-fulfilling prophecies, which remake the world in their own image” (854).  Akin to John Searle’s social fact, a “self-fulfilling prophecy” takes on factual status because the relevant community treats it as such.  A reporter’s prediction that a new comedy will be the highest grossing film of the upcoming weekend may itself cause audiences to flock to see the film, thus “proving” the reporter correct.  The use of such ratings by others cannot be condemned as infringement; rather, it “reflect[s] the plaintiff’s influence” (864) in determining the price, value, or quality of the subject of the rating.  Like a trademark that eventually becomes the generic name for a good, a self-fulfilling prophecy may have started life as the product of creative effort but eventually becomes a basic tool of communication for the public.

As Prof. Grimmelmann explains, however, these categories are not particularly rigid, as various ratings and rankings incorporate more than one of these features.  The U.S. News & World Report rankings of U.S. law schools are based in part on data such as acceptance rates and LSAT scores (which are only as accurate as the information the schools themselves supply) but also on more subjective factors such as the reputation scores accorded by a sample of law school faculty and administrators.  A restaurant critic’s award of one to four stars to a local restaurant may be seen by readers as subjective opinion, but those readers no doubt assume that the rating is based on the reviewer’s own experience at the restaurant and not on a grudge she holds against the manager.  And, of course, even the most fact-driven rating derives from choices about what types of data to include in the analysis, as Malcolm Gladwell has demonstrated, and some courts that have found ratings to be copyrightable typically focus on such choices as providing the necessary modicum of creativity.

This kind of evaluation matters because copyrightability depends, in part, on whether the work at issue represents facts (which should be available to all) or creative expression.  The problem with focusing on the process used to produce the rankings as the source of creativity, as Prof. Grimmelmann explains, is that copyright law is ultimately concerned with works of authorship.  As he perceptively notes, a photographer who takes a photo with the lens cap on may have engaged in a variety of creative decisions up to that point regarding lighting, framing, positioning, and so forth, but her error means that she has failed to create a copyrightable work. And to the extent that copyright law is about economic or other incentives (a conventional wisdom that has been increasingly challenged of late), Prof. Grimmelmann notes that the idea/expression distinction may get things exactly backward.  If the creators of ratings are told that they can protect their work only if they are opinions, then the ratings will become increasingly less fact-bound and, presumably, less useful to users.

But is utility copyright’s proper focus?  If copyright law should set aside notions of aesthetics, as Bleistein suggests (however impossible or inadvisable the task), why should it care about the Todd Rutherfords of the world?  Here, Prof. Grimmelmann concludes with a gentle encouragement to reconsider first principles.  Perhaps we should evaluate not only whether ratings (or any such effort) are copyrightable but also what is gained or lost by such a decision.  Perhaps copyright law would benefit from more direct consideration of the social utility of various works, taking its cues from doctrines (such as defamation law) that more directly address the value of various forms of speech.  Or perhaps (to invoke one of my own hobbyhorses) copyrightability is not the driving force here at all; validating reputational or attributional concerns may provide creators with all the incentive they need while increasing the availability of the underlying work.

Prof. Grimmelmann does not presume to answer these questions in the space of his short article.  But his recognition that a deceptively simple question —are ratings copyrightable? — can give rise to many further, and interrelated, avenues of inquiry makes the article well worth reading.

The Negative Externalities of Claiming Property

Jul 30, 2012 Kevin E. Collins

In Notice Failure and Notice Externalities, Peter S. Menell and Michael J. Meurer coin a new term—a “notice externality.”  In the process, they do nothing less than turn the conventional story about property rights and externalities on its head and reconceptualize many of the inefficiencies of contemporary intellectual property regimes.

The externality part of the term should be familiar by now, given the extent to which economic thinking has permeated intellectual property discourse.  An externality arises whenever one party’s conduct has consequences for other parties that are not considered—read “internalized”—by the decision maker.  In some of the classic examples, the externalities are negative: the conduct of sending pollution out a smokestack generates negative externalities for neighbors.  In other classic examples, the externalities are positive: the conduct of inventing new technologies generates benefits for all those whose lives are improved by using the technology.

Externalities may lead to market failure as the private and social welfare implications of undertaking the activity diverge.  Polluters over-pollute.  Inventors under-invent.  In the conventional story of property rights and externalities, property rights are seen as one way, among others, of eliminating externalities and staving off market failures.  Neighbors can bring nuisance suits to prevent levels of pollution above the social optimum by forcing the land owner to internalize the negative externality.  Intellectual property rights allow inventors and creators to internalize some of the social welfare gains attributable to their technologies and creative works, bringing investment in innovation and creativity closer to the socially optimal level.  In both cases, property rights serve the function of internalizing externalities and decreasing the divergence between the private and social welfare implications of an individual’s conduct.  (There are many subtleties in, and problems with, this conventional story, but this is not the place to pursue them.)

Menell and Meurer offer a mind-bending twist on the conventional story of the relationship between property rights and externalities.  In their story, the act of claiming property rights in a resource is the conduct that creates the negative externalities.  They argue that my act of claiming a copyright or patent has welfare-decreasing consequences for you (if you are an author or inventor, respectively) and that I do not internalize those consequences.  More specifically, Menell and Meurer argue that the negative externalities derive from the fact that you had poor notice of my rights—hence the term “notice externality.”  In a world of costless, perfect information and unambiguous property rights, there would be no notice externalities.  In the actual world, however, Menell and Meurer argue you suffer the following costs because I claim property rights in the “neighborhood” or “vicinity” of your authorial or inventive pursuits: “(1) costs of determining owners of potentially conflicting property rights; (2) costs of ascertaining boundaries of those properties; (3) costs of assessing the scope of those property rights; and (4) dispute resolution costs.”¹

The crux of the argument is that property may mitigate some externality problems, but that it can also generate a new externality problem.  Notice externalities are therefore second-order externalities.  We created legal property regimes precisely because we wanted to ensure that actors would internalize the externalities of non-legal conduct such as manufacturing or inventing.  Think of these as the first-order externalities.  Menell and Meurer demonstrate that we need to take into account the second-order externalities that result from using the legal property regime to achieve the goal of internalizing the first-order externalities.

In an unpublished book review of Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk by James Bessen and Michael Meurer that I wrote a number of years ago², I mulled on one possible equilibrium that could result from understanding the act of claiming property as an act with negative externalities.  If what Menell and Meurer refer to as notice externalities are sufficiently large, individuals who claim property rights in resources could generate what I called a tragedy of property.  “A tragedy of property results from the inefficient, externality-generating overuse of the institution of property itself.”  The private benefit that each individual receives from claiming a patent may be positive, but the negative externalities that the property claimant imposes on others may be greater in magnitude.  The tragedy of property is symmetrical to the tragedy of the commons, but it focuses on the second-order externalities generated by property claims rather than first-order externalities that are mitigated by property claims.

This short review has framed Notice Failure and Notice Externalities as an article about the relationship between property rights and externalities, and it thus may be taken to suggest that Menell and Meurer have written an article that is chock full of high-level property theory.  In actuality, however, that is far from the truth.  The article is drafted as an eminently practical piece.  In part, the article is a descriptive exercise—a reconeptualization of the inefficiencies of intellectual property that makes us see many problems of which we are already aware in a new light.  Picking up on a now-familiar theme, Menell and Meurer argue that real property and intellectual property differ in the magnitude of the notice externalities that they generate.³ The nature of real property rights and the institutions that have developed to administer them is such that one person’s land claims impose only minor notice externalities on other land developers.  Menell and Meurer develop an extensive and detailed taxonomy of differences between real property and intellectual property regimes to explain why notice externalities are much more significant in the latter.  In part, the article also provides a platform for some innovative reform proposals.  Because they see the problems differently, Menell and Meurer offer different remedies.  Because the problems are revealed as externality problems, they are able to bring the full slate of responses to externality problems that have been developed in other contexts to bear on intellectual property.  They develop some original solutions that hybridize the traditional responses, too.

The Same Old Song?

Jun 14, 2012 Christopher J. Buccafusco2 comments

Last semester, I taught Comparative Intellectual Property Law in London, and I enjoyed the opportunity to think about different ways of structuring IP regimes. One of the more interesting differences is the use of jury trials in U.S.intellectual property litigation. Other countries are much less likely to have juries pass on such questions as the obviousness of an invention, the confusion created by different trademarks, or the similarity of two copyrighted works.

Whether juries are capable of making these determinations is ultimately an empirical question, and it is one that Jamie Lund from St. Mary’s University School of Law has sought to answer. Her recently posted paper on the “lay listener” test in music composition copyright cases suggests that our trust in juries may be poorly placed. I like her article, An Empirical Examination of the Lay Listener Test in Music Composition Copyright Infringement, lots.

Music copyright is a strange bird. When you hear a new song on the radio, that song is generally protected by two different copyrights, one in the underlying composition (composition copyright) and one in the particular recording of the composition (recording copyright). The composition copyright protects the author’s use of melody, harmony, rhythm, and lyrics to create a musical work, while the recording copyright protects the performer’s decisions regarding phrasing, style, genre, tempo, key, timbre, and orchestration. These are separate copyrights, often owned by different people, to which different sets of rights attach.

The bifurcated music copyright creates a number of difficulties, perhaps the most challenging of which is ascertaining whether a song by artist B infringes one or both or neither of the copyrights in a song by artist A. If A alleges that B violated the composition copyright of her song, how should the law determine whether B copied from A and whether B took “too much” of A’s song? The solution that copyright law typically adopts is the jury-centered “Lay Listener” test. Because the market for the music is the consuming public, courts believe that jurors are best positioned to determine whether the defendant took “so much of what is pleasing to the ears.” Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946).

The difficulty is that the lay public, and the jurors that come from it, have only indirect access to the underlying composition. Given the state of musical education, they are typically unable to read sheet music, so they only experience the composition through the recording. Courts have responded to this dilemma by allowing jurors to listen to the recorded versions of the plaintiff’s and defendant’s songs, usually unguided by expert evidence. But this means that some aspects of the musical work the jurors are hearing (those relating strictly to performance) are irrelevant to the task of comparing compositions. Jurors are asked to decide both whether the defendant actually copied from the plaintiff as opposed to independently creating the work or copying it from another source (the Copying in Fact inquiry) and, if so, whether the defendant’s copy of the song was “substantially similar” or took too much of the heart of the plaintiff’s song (the Substantial Similarity inquiry).

Lund suspected that jurors might not be particularly adept at answering these questions, and she set up a delightful study to test whether this was the case. Her main hypothesis was that aspects of the musical recording would unduly influence jurors’ likelihood of finding infringement of the musical composition. The study, in brief, compared the responses of two different sets of subjects to questions about Copying in Fact and Substantial Similarity between two songs that were actually litigated. The first set of subjects heard the two songs performed in a similar manner (tempo, orchestration, key, and style), while the other group heard the songs performed differently. Lund has posted the recordings to her website. Take a listen.

With one of the pairs of songs, Lund strongly confirmed her hypothesis. Subjects who heard the songs performed similarly were much more likely to report a higher degree of similarity between the compositions, higher likelihood of copying, and higher degree of substantial similarity. For example, when subjects heard the songs performed similarly, 86% of them thought the songs were substantially similar, but when they heard them performed differently, 85% thought the songs were not substantially similar. That’s quite a reversal! (Note that Lund’s data on a second pair of songs were not quite as striking, although this could have been due to order effects, the underlying similarity of the songs, or other experimental factors).

These findings should cause serious concern not just for music composition copyrights, but for the role of juries in IP cases more broadly. Lund discusses a number of possible solutions to the problem including using expert evidence, special verdict forms, or multiple recordings of the same piece of music. But as Lund herself notes, these tools may have little effect considering the poor understanding that jurors are likely to have regarding essential issues of a copyright lawsuits, such as the meaning of “originality” in copyright law and the relationship between litigated works and their public domain forbears. Maybe, and I never said this last semester, the U.S. should follow the French example and get rid of juries in IP cases. My other proposal is to have jurors watch this video before hearing the songs.

What’s in a Name? The Value of That Which We Call Attribution

May 14, 2012 Jason Schultz

We all like to get credit where credit is due, but how much is it really worth to us? In another installment of their provocative series of IP experiments, Sprigman and Buccafusco team up with Burns to test that question specifically in the context of online photography.

The setup is similar to their past papers – subjects are given the opportunity to sell their chance at winning a prize in a creativity contest. The amount they are willing to sell for stands as a proxy for how much they think their IP might be worth. In the past, these experiments demonstrated a tendency for those who owned IP to fall prey to an “endowment effect” and those who created the IP to a “creativity effect,” both of which artificially inflated subjects’ perceptions of the IP’s value, thus leading to market inefficiencies and higher transaction costs. Sprigman and Buccafusco then argued that this differential supports the use of liability rules over property rules for IP, as liability rules tend to mitigate the costs incurred from such irrational holdouts.

In this paper, the focus is on two experiments investigating how creators value attribution and publication, and how those valuations might affect IP market transactions and policies.  Subjects in the first experiment were casual amateur photographers who submitted nature photos into a contest to win $1000 dollars. They are then randomly given one of three conditions: (1) an offer to buy their right to win the contest; (2) the same offer with an additional opportunity to have their photo published without attribution if the parties are able to reach a deal and the photo also wins the contest; and (3) the same offer but with publication and attribution if the parties are able to reach a deal and the photo wins.

Not surprisingly, the study found that subjects were willing to accept much less money for the possibility of having their photo published with attribution, thus showing the value of the attribution. This was reinforced by the finding that publication without attribution was even less valuable than winning the contest, meaning that many photographers might even forego publication if attribution was unavailable.

The second experiment focused on differentials that might exist between professional and amateur photographers. The contest conditions were the same, but the subject population was more professional than amateur. Here, the response to the attribution condition was even stronger, with professional photographers valuing attribution even more than casual amateurs.

The implications of the paper are quite interesting and timely. With the rise of more and more social economies and reputational systems online, norms for appropriate attribution are becoming a flashpoint. For example, the social image curation site Pinterest recently experienced blowback over its “Pin Etiquette” and Terms of Use which both discouraged self-promotion and posting third-party content without permission (leaving one to wonder what, exactly, users should “pin” to their boards). At the heart of the conflict was copyright and in particular, norms around who gets the credit for producing and “pinning” works of art.

The authors provide a useful framework for helping us understand their data and, by analogy, conflicts such as the Pinterest one by breaking attribution down into three types of value – extrinsic value (promoting additional commercial success), intrinsic value (positive emotional experiences), and moral value (the proper treatment of art and artists). In the Pinterest conflict, complaints ranged along all three lines. Unfortunately, as the authors admit, they were unable to distinguish in their experiments between these different types, so it is unknown which and to what extent each drove the behavior of the photographers they studied.

Still, one wonders if artists were given a choice, which of the three types of value they would prioritize in a given situation. Identifying the appropriate value could allow both online platforms and policy makers to craft appropriate tools to respond to attribution failures. For instance, YouTube’s ContentID provides rightholders with options to monetize, attach attribution, or removal content posted by third parties without permission. While the removal option reinforces the property rights approach that the authors criticize, the attribution and monetization seem to be rational approaches by YouTube to the attribution needs of creators.

So what are we to take from all this? In the end, the paper is less about new information on attribution and more about the accuracy of our intuitions. Attribution is clearly important to artists and to the extent it has become normatively dominant online, it can help mitigate any potential loss of economic value that artist and other creators might feel (however irrationally) when they find their work posted without payment. Thus, it continues to be a smart strategy for those who post, pin, or publish images without permission. However, I agree with the authors that this does not mean we should adopt mandatory attribution or any other form of property-like reputational right as a matter of policy. As their data shows, this would only lead to greater presumptions of irrational economic value and the ability to control content – two concepts which are increasingly problematic in networked economies.

Law in the Books vs. Law in the World: The Case of Copyfraud

Feb 29, 2012 Christopher J. Sprigman3 comments

So what does my frustration with the New York Mets have to do with copyright law?  A surprising amount.  And I say this even though the Mets have done a lot of things to make life difficult for their fans.  Over the years, I’ve watched my ballclub pay insane money to a series of pitchers who could not pitch, hitters who could not hit, managers who could not manage.  I’ve endured a seemingly endless string of Subway Series failures against the hated Yankees. I’ve celebrated the demise of the awful Shea Stadium, only to see it replaced with a new ballpark named for a bank that combined greed, arrogance, and ineptitude at a scale nearly sufficient to destroy the American economy.

And yet, from an IP geek like me, the ways in which the New York Mets have abused the copyright laws of the United States are even worse.

At some point during the telecast of every Met game, we are treated to this announcement:

This copyrighted telecast is presented by authority of Sterling Mets. It may not be reproduced or retransmitted in any form, and the accounts and descriptions of this game may not be disseminated, without the express written consent of Sterling Mets.

Which is a lie.  Or at least a gross overstatement.  And it isn’t just the Mets.  It’s all of Major League Baseball, which inserts a similar warning into the broadcast of every baseball game.

So, what’s the problem?  It’s hard to know where to start.  First off, it’s just wrong to assert that a broadcast of a baseball game “may not be reproduced or retransmitted in any form.” To say this ignores the fact that snippets of the game will appear on all of the local evening newscasts, and on ESPN’s “Baseball Tonight”. Of course Major League Baseball and its teams are probably thrilled to have this coverage, but even if they weren’t, they couldn’t stop these news organizations from using short clips of the telecast to recap the game.  Copyright’s fair use doctrine almost certainly allows the use of short clips from a baseball game for the purpose of news reporting.  But the Mets’ copyright warning acts as if the fair use doctrine doesn’t exist.

Worse is the assertion that “the accounts and descriptions of the game may not be disseminated” without the Mets’ consent.  Let’s say I take to my blog to complain about yet another Mets late-inning collapse.  I angrily bang out a blog post describing the series of mishaps, bad decisions, and plain awfulness that led to the loss.  In doing so, I am certainly “disseminating” “accounts and descriptions of the game.”  Am I violating the copyright law in doing so? Certainly not.  Copyright protects original expression.  It does not allow anyone to assert ownership of facts.  My “accounts and descriptions” of how the Mets lost are cold, hard facts; they are not copyrightable. And, consequently, the Mets’ stern warning against disseminating “accounts and descriptions” of the game is a sort of fraud.  It’s an assertion of copyright rights where none exist.  Or at least an assertion of rights that is far broader than what the law actually provides.

This sort of thing happens a lot, and a few years ago, Brooklyn law professor Jason Mazzone gave the phenomenon a name – “copyfraud”.  Mazzone first limned the term in an article published in the New York University Law Review in 2006.  And he’s now expanded his analysis in a new book, Copyfraud and Other Abuses of Intellectual Property Law (Stanford Law Books, 2011).

According to Mazzone, the clearest example of copyfraud is the act of attaching a copyright notice to a public domain work.  Mazzone gives many examples, including claims of copyright in the U.S. Constitution, sheet music of compositions by Beethoven, Chopin, Handel, and Bach, posters of paintings by Monet, Van Gogh, and Cezanne, the plays of Shakespeare, the Federalist Papers, and the opinions of federal judges.  In all of these instances, property rights are asserted that simply do not exist.  And that, Mazzone argues, is a fraud on the public.  Copyright provides temporary property rights designed as inducements – i.e., as bait to lure creators to produce new works.  Copyright does not need to last forever to do that job – a fact which the Constitution recognizes by restricting copyright to “limited Times”. And this conduct, Mazzone argues, is damaging to all of us:

“Copyfraud stifles creativity and imposes financial costs upon consumers. False copyright claims lead individuals to pay unnecessarily for licenses and to forego entirely projects that make legitimate uses of public domain materials.  Copyfraud is a land grab.  It represents private control over the public domain.  Copyfraud upsets the balance that the law has struck between private rights and the interests of the public in creative works.”

More broadly, Mazzone describes other kinds of copyright overreaching – in particular, dubious claims by copyright owners that are made possible by the law’s lack of clarity, and by the severe consequences that defendants may suffer if they lose in a lawsuit.  The Mets’ copyright warning is an example.  So too is the copyright warning attached by Adobe to its ebook version of Lewis Carroll’s Alice’s Adventures in Wonderland – a work that is in the public domain.  The warning reads like something the Mad Hatter would have come up with:

Permissions on: Alice’s Adventures in Wonderland

Copy – No text selections can be copied from this book to the clipboard.

Print – No printing is permitted on this book.

Lend – This book cannot be lent or given to someone else.

Give – This book cannot be given to someone else.

Read Aloud – This book cannot be read aloud.

Or consider the execrable conduct of the estate of James Joyce, which has repeatedly threatened copyright lawsuits against scholars and others who make use of materials owned by the Joyce estate – even when those uses should obviously fall within the ambit of fair use. The Joyce estate threatened a choral production that used 18 words from a Joyce novel.   And the estate’s copyright threats forced English professor Carol Schloss to cut crucial evidence from her book detailing the important relationship between Joyce and his daughter, Lucia.  Schloss eventually sued the Joyce estate (with the help of lawyers from the Stanford Law School Center for Internet and Society) and prevailed.  But in many other cases, overzealous assertion of copyright has chilled or altered academic projects – in part because academic publishers lack both the stomach and the wallet to fight back hard against dubious copyright claims.

By detailing these examples and many, many others, Mazzone’s book convinced me that copyfraud happens often enough to be worth noticing.  And Mazzone does a great job explaining the many ways in which copyright overclaiming leads to mischief.  If this was its only achievement, Mazzone’s slender and readable book would be worth your time.  But the real value of Mazzone’s book lies in the way in which it links to a broader issue.  The copyright law on the books is not the copyright law we have out in the world.  The rights of copyright owners are both broad and relatively clear, and the remedies available for infringement of those rights are very powerful – indeed, they are purposely designed to be supra-compensatory.  But the rights of users – i.e., of the public at large – are both narrow and poorly defined.  The result of this mismatch is predictable: over-assertion of copyright is unlikely, in the run of cases, successfully to be resisted.  This fact contributes in turn to a slow shift in the real-world content of the copyright law toward broader property claims, and away from the careful balance that copyright law attempts to achieve between private rights and public access to our culture.  And this means that in considering changes to copyright law in the future, Congress should not presume that its understanding of the proper copyright balance will be the rule that governs conduct.  Out in the real world, people take what they can grab, and our current copyright law puts a lot within reach.

So what can we do about it?  Mazzone proposes a number of cures.  He suggests we should treat copyfraud as fraud – and deter it by toughening penalties for false copyright claims and dialing back evidentiary requirements required to impose copyfraud liability.  He also proposes a number of ways in which we could make copyright’s fair use doctrine a more effective shield against copyfraud.  His principal suggestion in this regard is that we gin up a federal agency responsible for developing and enforcing the fair use doctrine.  Oh how I wish this would help, but I fear that Mazzone’s proposal to create a federal Fair Use Agency would more likely make things worse.  Narrowly focused federal agencies are subject to capture, and it’s difficult to imagine a environment more ripe for capture than a federal fair use agency.  What fair use bureaucrat wouldn’t dream of escaping the dreary confines of DC for a job in Hollywood?  More seriously, the content producers would be repeat players before the agency, and the principal source of employment for former federal fair use agency workers.  The likely result is that fair use would come to be exactly what content producers would prefer: fairly useless.

So Mazzone’s book misfires a bit on the proposed solution.  But that is far from a fatal critique.  The book is a good, quick, bracing read, and it details a piece of the copyright debate that no one had properly understood before Mazzone got to it.  In my view, that’s a fair achievement.

The Copyright Law is An Ass: A Brash New Installment in this Fascinating Ongoing Series!

Feb 1, 2012 Ann Bartow1 comment

This article is a fine example of smart and accessible copyright scholarship that identifies and clearly describes a perplexing aspect of the current law, and then succinctly proposes sensible solutions.  The somewhat startling problem that Saint Louis University Law Prof Yvette Joy Liebesman identifies is this: A consumer who purchases authorized downloads of musical recordings, intending to behave legally and in consummately copyright law compliant manner, may actually be guilty of copyright infringement if the songs she purchases in digital format turn out to infringe the copyrights of other songs, such as by including unauthorized samples of vocal or instrumental riffs.

Liebesman points out that based on the ways the pertinent statutory provisions of the Copyright Act were written and interpreted, had the same people purchased the same songs, but with the copies embedded in vinyl or written on a compact disk, they would not be vulnerable to liability infringement for owning them.  But the recording industry has been so eager to frighten off prospective unauthorized downloading of music that it persuaded Congress and the courts to construct a legal regime under which even legal downloaders are at risk, facing strict infringement liability for completely innocent acts of (e.g.) purchasing songs from iTunes and loading them on an iPod.  This group of potential defendants includes me, and most of you reading this.

Suing people who had paid for authorized downloads would, of course, make the large music companies look preternaturally nasty and greedy.  While they have not hesitated to aggressively pursue their own customers in the past, the goal of that litigation was to persuade the public to engage in only legal downloading of music. To suddenly signal to the world that not even purchasing songs from mainstream online outlets will keep consumers safe from copyright suits would seem against the rational self-interest of the entire industry.  Consumers would reasonably conclude they might as well engage in illegal downloads if the risks of legal downloads are comparable, or forgo downloading altogether.

So perhaps it seems upon preliminary consideration that Liebesman has simply identified an arcane legal anomaly that while interesting, is unlikely to have significant practical importance.  But in an age of so called “copyright trolls” it would be unwise to be so sanguine. As Liebebsman explains, an individual copyright holder who had won an infringement claim against a commercially successful musician could see a class action as a money machine. A musician who had part of her song non-permissively copied may never have a hit song herself, but could “hit the lottery” by suing the millions of customers who downloaded a hit song that had infringed her copyright. The logistics might be complicated, but a lawyer with free time and a fast Internet connection could plausibly convince a large number of consumers they were better off paying a few hundred dollars to settle quickly than trying to defend against a complicated law suit.

Liebesman ends the piece by proposing several legislative solutions. I’m inclined to endorse her suggestion of express immunity for consumers who made good faith legal downloads because I think it would be the most palatable to the music companies, and therefore the simplest to adopt. I highly recommend this article for its clear and entertaining presentation of what might seem like turgid copyright law geekery in the voice of a less gifted writer.