[Comedies of Fair Use] Vaidhyanathan, Adler and Hansen

Siva Vaidhyanathan
1. Copyright touches more, but protects less than ever before. (see e.g. pirated DVDs on Canal St.)
2. How night we insure how (c) can protect investment and still protect speech
3. To what extent can we rely on fair use. Is it the best vehicle for protecting speech when it’s really only an american thing.
Allan Adler (Assoc. of American Publishers)
Overclaiming. There’s been a lot of overclaiming about the difficulties that fair use poses to culture and overclaiming about the problems of the public domain.
In the world of Washington, (c) is synonymous with Hollywood. In terms of political baggage, it carries a lot of negative connotations that makes DC people uncomfortable and spills over into their view of copyright. Publishers are thought of a backwater industry that hasn’t adopted new technology and not as the original reason for copyright. Forget that publishing is a promoter of speech values.
In DC, we usually think of copyright only in terms of the film (and occasionally record) industry. (c) protects the value of original creative expression. Fair use isn’t merely protecting the convenience of someone who wants to put his cd on his ipod.
Fair use per se? If all educational uses are free, what happens to the textbook market? Right of access to a particular copy in the format of choice? Where does that come from– Congress has never said that and the courts have explicitly rejected that (Universal v. MP3?) These are interpretations that have no foundation in law, public policy or original intent of copyright law.
Now we hear about fair use in Congressional hearings about making a copy of a new CD to provide to the 20 people on the x-mas list. They’re not competing with the seller and introducing it into the market– but fair use was never about that, either.
Lessig talked about a lot of heavy words– consumer, culture. Publishers rely a great deal on fair use.
Lots of talk about the problems with DMCA, but the DVD wouldn’t exist if not for the DMCA. We have this flood of culture because of all the economic incentives. There is a torrent of creativity because of all the economic value there.
US can no longer support its economy solely on manufacturing. Most of our jobs are the direct result of IP law. NYC is the capital of book publishing. We’re in a school of journalism. How can you get a job as a journalist without the protection of copyright?
If some (c) owners go too far in protectionism, it’s not that much of a big deal.
The anti-copyright movements haven’t taken off, because most Americans really only care about consuming and most people are satisfied by what the marketplace offers. The marketplace allows consumers to make choices. If you ask the gov to step in an regulate, you’re not going to like the results.
Should Congress rewrite fair use to make it more specific, and all said no. Some because they want to rely on the flexibility to be able to invoke fair use perhaps in some cases where it didn’t fit the original intent of the drafters; others because they don’t want to grant away specific rights.
Ultimately, fair use is not going to change too much. Our perceptions of it may evolve, but there is no momentum DC to rewrite the law. What we need to start doing is look at these differently to recognize that there is a tremendous diversity of interests involved here. There may be no definite resolution, but the flexible fair use concept seems to work well today (And this flexibility keeps DC lobbyists in business ;)). This will continue to be rewritten as technology advances, while Congress and the courts lag behind the tech. Gap between original intent of the law and the way it works in practice may not be bad.
Hugh Hansen (Fordham Law)
There’s really nothing going on in fair use on the international level. People who want more access would love to have it. In the civil law countries, rights are written affirmatively into the law– no flexibility.
law here is flexible and driven by judges. This is much more protective of free speech than the code countries.
The controlling mechanism of copyright is in courts, not in COngress.
The law hasn’t changed as much as the behaviors enabled by technology. New technology reallocates the transaction costs. Technology doesn’t sit on one side of this debate.
The only people with worse PR than the record industry is the Taliban. We have music publishers who take pride in the fact that they won’t license for the internet. On the other side, Richard Stallman jumps up at a conference and says that everything should be copied. It’s very easy to use anecdotes to get things on your side. Shouldn’t the martin Luther King estate be allowed to refuse to license to skinheads?
Just grow up and deal with it. Some industries (particularly documentary films) need protection, but generally, the small creators sitting in a small lifeboat in a digital sea don’t really get affected by the law [until they get sued, that is]. But the market generally works pretty well.
What we tend to do is polarize that all good is on one side, but that’s not really the case. The trouble with smart people– particularly economists– is that they often don’t have any judgment. Publishers are generally adverse to litigation because it’s really expensive.
Access to information is great. Rejoice in it. There may be problems, but they are not so dramatic that we have to change the whole system.
Vaidhyanathan (to Lessig): As an academic, you’ve stated that fair use is a distraction from thinking about how (c) works in the perfect world, but as an advocate, you assert fair use as a defense in the Google Library case. Can you envision a better regime for user rights? In ten words.
Lessig: Is there a tension? my view is that the system is not functioning well, because we are all asking the wrong questions. The academics should look at the bigger picture. But as advocates, we use the tools we ahve available. Those who say that there is no problem out there don’t get all the prospective cases that we do at the Stanford clinic.
The practical problem is that the middlemen in the process realize that lawyers are expensive and are rational to take a conservative, risk-averse position, so the actual bounds of fair use in practice are less than the extent in the law.
Hugh talked about the disconnect between non-commercial and commercial uses. Lessig wants the non-commercial uses to be legal. That would change the way we can teach. It’s legal to create something in a classroom that mixes the works of Shakespeare and Hemmingway, but its copyright infringement to create something in the same classroom that mixes the works of George Lucas and Alfred Hitchcock. We should encourage this creativity instead of saying that its criminal, but it won’t be prosecuted.
Vaidhyanathan (to Adler): Is there an underappreciation of fair use by your clients (the publishers)? Many authors quote other works, but it’s their own publishers who insist on expensive clearances (borne by the author) instead of relying on fair use?
Adler: Publishing industry is tremendously risk averse. Letters are often written not because of what the publisher thinks, but because of what the authors think. Some authors don’t want their works to be exerpted and taken out of context.
Maybe the law would be better if people tried to use it more and don’t worry so much about getting sued. Does a film studio or record label really need the publicity that would result from suing a sixth grade class. There are very few federal court decisions on fair use.
Vaidhyanathan: but there are.
Adler: There may be lawsuits or demand letters, but not decisions. There are very few decission. If you stand up in court to defend fair use, that’s how revolutionize the law. There’s been no champion for fair use in the court.
Vaidhyanathan: Should we have moral rights protection here (ala King estate example)? If we had it here, how would that affect fair use?
Hansen: It’s generally the heirs [link to Miro/Google] who don’t have to work as artists again who assert moral rights.
Publishers are very conservative. Lessig had the problem when dealing with his publisher. His publisher told him that he couldn’t quote as much of an article by Courtney Love as he wanted to, but he (the He
The reality is there is a middleman who decides what right you’ll stand up for– it’s a sound business decision.
Audience Question: Should we establish a statutory rate for fair use quoting? It works well for record labels when dealing with music publishers for recording cover songs. (§115)
Adler: You could go in that direction if you want to let the trains run on time, but then you’re taking the value off the market.When has Congress ever made a right decision about the market?
Siva: Some works will be undervalued with a flat price and others will be overvalued. A Paul Simon song is undervalued when its at the same rate as a song by Siva’s cousin.
Adler: THe public places different values on works by different artists. why should the government come in and say that all works have the same value per content.
Lessig: It’s ridiculous that you can record a cover song because the record industry has said that it’s central to the vibrant market. But on the other side, taking a sample from a recording is prohibited by the law [6th Cir.] Why does the government intervention that promotes the most creativity?
Hansen: When parties have been unreasonable, they look to the government to step in and fix the problem. ASCAP v. Girl Scouts. Maybe if (c) owners remain unreasonable, then perhaps we do need government intervention.
Audience Question: Authors quote pop songs often as epigraphs of a novel. It’s completely normal for an editorial to tell the author to seek a copyright clearance. Do you think that this is an area where the author should stand up to be a champion for fair use? [Sounds like someone is looking for free legal advice…]
Adler: If the industry colludes to do this all together, that’s an anti-trust problem. But if each publisher does this, it would do something. The GC might say, I have better things to do than bother with this.

[Comedies of Fair Use] Lawrence Lessig

It’s hard to take notes about Lessig’s presentation because he actually uses his slides well– to add context and not merely to duplicate the text of his talk. But this is a blog– where it’s just as good to do something quickly as it is to do it well:
Testifying before Congress, JP Sousa lamented the development of mechanical music reproduction, which would kill the culture of sitting around and singing popular and traditional songs.
With analog works, standard, everyday uses by citizens are unregulated (read, etc.). A small sliver of uses that involve copes
1. regulated uses (distributing mass copies)
2. fair uses (quoting a book in a review)
3. free uses (reading, loaning, the everyday uses by individual citizens)
New digital/internet culture
Two very different internet cultures evolving.
1. Read only culture (RO)
-Extraordinary empowered by these techs to buy and consume culture produced elsewhere. eg: Apple iTunes, pay-per-read ebooks.
-Offers perfect control over how people consumer– the couch potato culture
2. The read-write/internet culture (RW)
-blogger, flickr, 6apart, myspace
-consumers don’t just consumer, but create and share creativity.
-anime music videos (redits anime movies to create music videos. I know what we’re doing for our next video…)
-grey album, bush-blair, bush:hard work. (link to this)
It is a part of literacy now–
57% of teenagers created and shared “content” themselves and share it on hte internet. How they speak and think.
Anyone with a $1500 computer can do this. [just so long as they have 1500 to get a computer.]
It’s the same kind of speech people engaged in before, just using different tech to facilitiate this kind of speech. Differently empowered speech.
Freedom to speak.
Copyright law on the internet serves to promote the vision of the read-only culture on the internet. In the analog world, (c) owners couldn’t control these normal everyday uses.
If the law controls copies, in the digital world, those normal uses create copies, and so the amount of uses that are regulated by (c) law increase to include most uses.
DRM tech perfects control of how culture gets consumed– promotes the RO culture.
The RW culture conflicts with (c) law.
This culture makes use of copies as part of the normal (non distributive) uses
But the law presumptively regulates copies, so uses are presumptively illegal and permission is not coming.
At a fair use conference, Lessig comes out against fair use.
World with fair use is better than one without.
But, fair use shifts the debate over the important questions about how culture gets regulated.
Shifts attention away from free use.
In a world where every use is a copy, the free uses because presumptively regulated.
So then, why do we have to justify any freedom to use this.
It’s a very bad thing that the law regulates as broadly and presumptively as it does.
Quoting Prof. Litman: in the digital world, (c) law touches everyone and everything.
Discussion of fair use obscures the fundamental question: “why regulate at all?”
The second problem with fair use is that it ignores the costs.
Fair use is expensive. 4 factor balancing test is not too easy. There are no clear simple rules in fair use.
This is law written for lawyers– complex, uncertain. It’s harmless where it’s big companies that can afford (good for lawyers). When applied just by lawyers, it is decided rationally.
But it’s not just lawyers in court anymore. It’s any idiot with a computer.
Lawyers kill markets for creativity because of the uncertainty to the process.
Difficulty of acquiring rights to uses makes it difficult. e.g. films at Sundance needing to clear music rights. By leaving uncertainty, it drives away creativity (through risk-aversion) and makes it difficult (if not impossible) to sell marginally commercial (non-mass market) creative works.
See Patry & Posner- Fair Use and Statutory Reform in the Wake of Eldred
Incentives for (c) owners to overclaim their rights and the costs to creativity– not only the $$, but also prevents release of works by risk-averse creators.
We tend to focus on the $$ cost and not the threats to free speech.
Lessig feels blue.
What solution?
System of fair use is ridiculous for regulating this kind of speech
But we live in a culture where to question the foundation of IP law is to be called a communist– IP McCarthyism. Anything other than incremental change is a non-started in DC
Some ideas to mitigate the problem:
Documentary Filmmakers’ Statement of Best Practices in Fair Use (previous reference)
Stanford CIS Fair Use Project
Free Speech Insurance Cooperative and “fair use” insurance liable claims.
What we really need is some way of overcoming the insanity of these ways of regulating access to speech.
(c) law is necessary, but it shouldn’t extend beyond what is necessary (and threates free speech values)
We need a clear line (an affirmative fair use carve out) and limit the speech regulation to what is necessary and leaving the rest to be free.
The one thing Lessig agrees with Jack Valenti on is that the cost of the current copyright law is the creation of a generation of criminals. The morality expressed in the use of speech by children in a way that is against the law. Producing a generation of kids look to the law and see the law as an “ass.” And avoid the law and disengage from the idea that the law matters. There is great harm produced by this attitude towards the foundational rule of law in this country. [The broken windows theory of copyright.]

Why Oppose Net Neutrality?

An anti-net-neutrality coalition launched their lobbying site at Hands of the Internet. The best argument on their side: regulation is bad for the internet. THe internet has developed so quickly to what it is today because of the lack of regulation. Any new neutrality regulation will be burdensome and onerous for the pipe owners who will be prevented from making money by such a regulatory scheme.
The advantage of a non-neutral internet (to broadband service providers, that is) is the ability to offer premium services and not simply internet access. Why compete and speed and reliability when you can compete by offering premium services that cost less to implement and offer more potential value to consumers. Let’s take a quick trip to the sales pitch in the hypothetically non-neutral internet:


  • Want access to online video? You could download video that with your 5 MB/sec Broadband Basic connection, but for only an additional $7.99/month, you can have FastLane access to video that will let you watch video from our premier content partners (including NBC, Microsoft and MTV) at high-resolution.
  • -Want to connect to your office securely? For only $12.99/month more you can run a secure VPN connection.
  • Want to use VoIP? On our standard connection, all VoIP packets are blocked, but for only $7.99/month, you can make unlimited voice chats through your computer, or for only $11.99/month, you can connect a standard phone and talk for 1000 minutes per month with no long distance charges.
  • Want to download software updates? For an additional $4.99/month, you can use the FTP and BitTorrent protocol on your connection.
  • Instant messaging is free to other CableCo users!*
  • *Note: premium connection fees ($0.10/message) may apply to IMs sent to users of other ISPs.

ISPs look enviously at the business of the wireless carriers, who can charge premium rates for access to premium services on their wireless networks, like access to audio/video or news and sports scores. And those wireless networks are resulting in an unprecedented sharing of creative media by individuals. Oh wait, that’s the free internet. The advanced services offered by wireless carriers at advanced prices are rarely used. The NY Times reports: Video Handsets Mostly Just Used as Phones

Cellphone companies, especially Sprint and Verizon Wireless, have been aggressively promoting mobile video services, which cost an average of $10.70 a month for access to sports, news and weather clips. More than a quarter of cellphones now in use can play such videos. But only 1 percent of wireless subscribers are using their phones to watch them, according to a recent survey by the NPD Group, a market research firm.

Decisis: “Net Neutrality”, the cable industy, universal Wi-Fi, and the collective wisdom embodied in stock prices: “Now, maybe a bundle-happy, cash-ascendant cable industry and net neutrality coexist happily together and I’m being silly to even post on this, and really there’s just no conceptual connection. . .”
Will new net neutrality regulation allow the information economy to evolve as freely as it has over the last decade or will such regulation merely freeze the internet in 2006?
Did the internet develop so well because it was first delivered to households through the common carrier phone lines? Or did the internet develop slower than it would have otherwise because telephone companies were prevented from innovating because of the common carrier regulations?

Interesting Miscellany

Here are some recent links of interest from around the web on various topics:
Copyright term and the public domain
Raizel Liebler, LibraryLaw Blog: The Tale of One Bunny, Copyright Statements, & Public Domain: A Cautionary Tail: “This intellectual property cautionary tale starts because I was puzzled by the copyright notice in a historical mystery novel. Published in the United States in 2004, ‘Tale of Hill Top Farm’ by Susan Wittig Albert is based on the life of Beatrix Potter and includes references to many of her famous characters, including Peter Rabbit, his friends, and relations.”
Photography and Copyright fair use, Trademark fair use, Right of privacy/publicity
Lien Verbauwhede, WIPO: Legal Pitfalls in Taking or Using Photographs of Copyright Material, Trademarks and People: “Photographers and users of photographs face certain risks when taking and publishing photographs. This article provides an overview of the general legal principles applicable to taking photographs of copyright works, trademarks and people.” (Via I/P Updates.)
Copyright and search
Fred von Lohmann, EFF Deep Links: Copyright v. Indexing, Part 1: TorrentSpy: “A prediction: the world of copyright law is about to collide with the world of digital indexing and search, and the collision will be among the most important digital copyright issues of the next several years.”
Trademark and corporate formation/naming
Martin Schwimmer, The Trademark Blog: Why Did I Get A Demand Letter If I Was Allowed To Incorporate Under That Name?: “The problem is that a corporate name is the name that the Secretary of State (which oversees incorporation in a state), allocates to a legal entity, after conducting an idential or near-identical search of the name, in that state. The availability of a corporate name means only that there is no other legal entity by that name in that state, and there is no trademark significance to this fact…”
Copyright, music and mixtapes
Record store owner Alan Berry in the NY Times on mixtapes: The Tale of the Tapes: ” Illegal products should not be sold. But it’s disingenuous for the recording industry to compare hip-hop mixtapes to a bootleg recording of, say, a Dave Matthews Band concert. After all, mixes aren’t bootlegs at all— they’re advertisements.”

Hilden on TV Networks Indecency Challenge

Julie Hilden, Findlaw’s Writ: Four Major Television Networks Challenge the FCC’s Regulation of Indecency Why Modern Technology Has Made This Always-Dicey Area of Law Obsolete: “In this column, I’ll explain why indecency law has always been on extremely tenuous ground, from a constitutional perspective. I’ll also explain why – thanks to modern technology — the Supreme Court might finally take the networks up on their invitation to make indecency law a historical relic, in order to make way for a more robust information age.”

links for 2006-04-25

Blogging about conferences about blogging

Last week, Joe Gratz and David Maizenberg blogged the Blog Law and Blogging for Lawyers Conference. Conference organizer Cathy Kirkman recaps.
This week, The Berkman Center for Internet & Society at Harvard Law is hosting a symposium on Bloggership: How Blogs Are Transforming Legal Scholarship. The papers that will be presented at the symposium are available at SSRN
Blogging isn’t the subject, but LawMeme blogged the Access to Knowledge conference at Yale last weekend.
There’s no conference involved, but John Gruber is taking his excellent and thoughtful Mac-centric blog, Daring Fireball full time. He discusses the Catch-22 of successful blogging: Initiative: “What I’ve concluded, though, is that if I want to make a full-time income from Daring Fireball, I need to just do it full-time. I.e. that it’s not going to work the other way around — to wait for the revenue to burgeon and then start putting full-time effort into it.”

Impeachment Redux?

Elizabeth Holtzman, The Nation: The Impeachment of George W. Bush: “Finally, it has started. People have begun to speak of impeaching President George W. Bush–not in hushed whispers but openly, in newspapers, on the Internet, in ordinary conversations and even in Congress. As a former member of Congress who sat on the House Judiciary Committee during the impeachment proceedings against President Richard Nixon, I believe they are right to do so.”
Lewis Lapham, Harper’s Magazine: The Case for Impeachment: “That President George W. Bush comes to power with the intention of invading Iraq is a fact not open to dispute. Pleased with the image of himself as a military hero, and having spoken, more than once, about seeking revenge on Saddam Hussein for the tyrant’s alleged attempt to “kill my Dad,” he appoints to high office in his administration a cadre of warrior intellectuals, chief among them Secretary of Defense Donald Rumsfeld, known to be eager for the glories of imperial conquest.”
Garrison Keillor, Salon.com: Impeach Bush: “But torture is something else. When Americans start pulling people’s fingernails out with pliers and poking lighted cigarettes into their palms, then we need to come back to basic values. Most people agree with this, and in a democracy that puts the torturers in a delicate position. They must make sure to destroy their e-mails and have subordinates who will take the fall. Because it is impossible to keep torture secret. It goes against the American grain and it eats at the conscience of even the most disciplined, and in the end the truth will come out. It is coming out now.”
Michelle Goldberg, Salon.com : Bush’s impeachable offense: “Yes, the president committed a federal crime by wiretapping Americans, say constitutional scholars, former intelligence officers and politicians. What’s missing is the political will to impeach him.”
Also in Salon, Constitutional scholars Mark Tushnet, Jack Rakove, Michael J. Gerhardt and Cass Sunstein discuss impeachment in a series of essays: The I-word.
SCOTUSblog: From a village green…: “By a paper ballot vote of 121 to 29, according to news accounts, the town meeting approved the last item of scheduled business on the agenda, Article 29…’Therefore, the voters of the town of Newfane ask that our representative to the U.S. House of Representatives file articles of impeachment to remove him from office.'”

Caching and Copyright

In Parker v. Google, No. 04 CV 3918 (E.D. Pa. 2006), District Judge R. Barclay Surrick ruled that automatic caching of Usenet posts is neither direct or contributory copyright infringement.

When an ISP automatically and temporarily stores data without human intervention so that the system can operate and transmit data to its users, the necessary element of volition is missing. The automatic activity of Google’s search engine is analogous. It is clear that Google’s automatic archiving of USENET postings and excerpting of websites in its results to users’ search queries do not include the necessary volitional element to constitute direct copyright infringement.

William Patry: Parker v. Google: “The direct infringement holding in Parker may be a very welcome harbinger that courts are becoming more realistic about the way the Internet works and moving, finally, away from the misreading of ‘copy’ perpetuated by MAI v. Peak.”
Kevin Delaney, The Wall St. Journal: Google Wins Copyright Battle; Archiving Issue Is Still Unclear: “Some legal experts said the ruling, issued last week in a case brought by Internet publisher Gordon Roy Parker in U.S. District Court in Philadelphia, could influence judges in other cases pending against Google, potentially bolstering the Internet company’s legal defenses. Those cases include high-profile suits brought last year by writers and publishers and by the Agence France-Presse news agency alleging that Google’s services violate copyright.”