Monthly Archives: December 2011

Copyright Issues and Legislation, international IP, Technologies

Using copyright for its intended purpose

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At its roots, copyright in the Anglo-American legal system is a statutory grant of rights intended to be an engine for innovation.  Copyright and patent legislation is the only type of law whose authorization in the Constitution is specifically tied to a purpose — “to promote the progress of science and useful arts.”  If copyright legislation does not serve this purpose it is, arguably, unconstitutional.

This is part of the real irony of SOPA, the bill currently being considered by the House of Representatives that would fundamentally alter how the Internet works in the U.S. in order to protect the traditional entertainment industries.  Such a bill, which would kill innovation in the name of protectionism, may be unconstitutional. That it is a bad idea is especially clear when we look at how other countries are considering adjusting their copyright laws precisely to better support innovation and economic growth.

In Brazil, a third draft of proposed copyright legislation has recently been released.  As Pedro Paranagua, a Brazilian copyright expert, tells us, there is both good and bad in the bill, but as I read his list of incorporated provisions, I am jealous of the attention being given to the real purpose of copyright, which is economic development through innovation.  Exhaustion of rights, what we call first sale in the U.S., would be defined in a way to prevent the recent debacle in which Omega abused copyright, in my opinion, to suppress legitimate price competition for its watches.  Collecting societies would be overseen by government watchdogs, and contract principles about serving the public interest and avoiding undue burdens would be explicitly incorporated into the copyright law.  Compulsory licenses would be available for uses of orphan works, and creators would have the explicit ability to dedicate their work to the public domain.  Finally, there is a proposed set of exceptions that covers at a lot of the socially beneficial uses that are still unreasonably controversial in the U.S.

Even one of the things that Pedro is nervous about, ISP liability under a notice and take down scheme, seems like a good idea that the U.S. must fight to maintain.  The notice and take-down system under the DMCA has allowed a lot of innovative businesses to thrive (YouTube being the most prominent), and that system is under severe threat if the provisions of SOPA get enacted.  So while Paranagua worries about a DMCA-style regime in Brazil, I am desperately hoping that we can keep that regime in place in the U.S.

Brazil has also been at the forefront of the World Intellectual Property Organizations discussion of limitations and exceptions.  The resulting WIPO agenda, looking primarily at exceptions for libraries and for access for persons with disabilities, reflects many of the ideas mention above, including cross-border uses (the subject of first sale and the Costco dispute), a solution to the problem of orphan works, and the relationship between copyright law and private contracts.

This last issue brings me to the most detailed document I have been looking at recently, the “Consultation on Copyright” released by the British government.  The UK has undertaken a thorough review of their copyright law in the past couple of years, explicitly to address the places where copyright interferes with innovation rather than fostering it.  The consultation is seeking hard data about the impact of the changes that were proposed by the commission it set up, called the Hargreaves Commission.  Many of the provisions are similar to the ones I have already mentioned.  But here is the language the really caught my eye:

The Government agrees that, where a copyright exception has been established in UK law in order to serve certain public purposes, restrictions should not be re-imposed by other means, such as contractual terms, in such ways as to undermine the benefits of the exception.
Although contract terms that purport to limit existing exceptions are widespread, it is far from clear whether such terms are enforceable under current contract law. Making it clear that every exception can be used to its fullest extent without being restricted by contract will introduce legal and practical certainty for those who rely on them.

I have argued in the past that contracts should not be allowed to preempt copyright’s limitations and exceptions, at least in cases where the contract at issue is not subject to “arms length” negotiation.  Here the Conservative government seems to be embracing that position (not because I suggested it, of course, but because the Hargreaves commission did) and even carrying it further.  Recognizing that copyright exists to serve a public purpose, and that that purpose should not be undermined by one-sided private agreement, such a “click-through” contracts on websites, would be an important step toward providing the consistency and certainty that all law-making aims for.

The point of this very quick and cursory survey of international proposals for copyright reform is simple.  Throughout the world, even in those countries that, unlike the U.S., embrace a natural-rights account of copyright, reform is focused on supporting innovation and not allowing a system that worked in the past become an obstacle for the future.  Yet in the U.S. all of our copyright proposals, and even statements from our Registrar of Copyrights, seem focused on protecting the old ways and staving off as long as possible the innovation that provides our best economic hope.  If we cannot learn from our competitors and our trading partners, we will certainly be left behind.

 

Copyright Issues and Legislation, Fair Use

What fair use is for

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When I considered the Authors’ Guild lawsuit against the Hathi Trust and some of its partner institutions a couple of months ago, only the complaint had been filed, so it it was natural to focus on the motivation of the plaintiffs.  And those motives are not hard to discern; after tasting the possibility of monetizing orphan works through the Google Books settlement and then having it snatched away, the AG is looking for an alternate way to use litigation to carve a profit-making opportunity from the labors of others.

Now, however, answers to the suit have been filed, both by the named defendants and by a potential defendant.

The defendants’ answer, filed on Dec. 2,  is a very lawyerly document, and for that reason it might disappoint some readers.  There are no lofty assertions about public benefits and the purpose of fair use ( I will make those assertions on their behalf).  Instead, the defendants’ answer does what it is required by the rules of federal civil procedure to do; it goes point-by-point through the complaint and, largely, admits the factual assertions while denying the conclusions of law.  It also states quite baldly the defenses on which these parties intend to rely.  We have a system called “notice pleading” in the U.S., and the defendants are only required to give notice to the court and the plaintiffs of the arguments they intend to make.

Nevertheless, we can see the broad outline of a response here.  The plaintiff’s complaint focused nearly exclusively on section 108 of the Copyright Act, the so-called “library exceptions” which deal with preservation and copying made for patrons (the foundation of inter-library loan).  The plaintiffs want the court to conclude, it seems, that this one section of the law entirely encompasses all that a library is entitled to do with copyrighted material.  As they go through the points alleged in the complaint, the defendants repeatedly assert that “Section 108 of the Copyright Act is one of many limitations on copyright holders’ rights” and “that plaintiffs description of section 108 is incomplete and therefore mischaracterizes the statute.”  What is left out, of course, is that section 108 states explicitly that fair use –section 107 — is still available and that nothing in 108 “affects the right of fair use” (section 108 (f)(4).

Fair use, which exists for the purpose of allowing exactly the activities that Hathi is designed for — research, teaching and scholarship — will naturally be the heart of this case, however badly the plaintiffs wish this were not so.  But the defendants raise several other defenses as well, including sovereign immunity (since all but one of the defendants are public institution),  the plaintiffs’ lack of standing (since they cannot show that they or their members own most of the works at issue), the statute of limitations, and the fact that many of the works that the AG wants to impound are actually in the public domain.  And, of course, these defendants assert fair use.  In fact, they assert a whole slew of the exceptions that Congress built in to the copyright law.  One of the places we will learn most from this case will be where the defense weaves together sections 107, 108, 109, 110 and 121 into, I imagine, a thicket of justification that emphasizes how comprehensively Congress intended to permit the socially beneficial uses that Hathi will facilitate.

The reference to section 121, which allows reproduction of copyrighted materials “for blind or other people with disabilities,” took on added importance on Dec. 9, when the National Federation of the Blind filed a motion asking the court to let it intervene as a defendant in the case.  Such intervention is allowed in federal procedure “as a matter of right” when a party can show that it has a substantial and legally protectable interest in the matter at hand, that they could be harmed by a decision, and that their interests will not be adequately represented by the parties already involved.

Unlike the formal defendant’s answer, this document does make a full-blown argument, and it is a compelling one.  The National Federation For the Blind tells several stories of university students and teachers whose ability to do their work is hampered by the laborious, and sometimes impossible, process of obtaining copies of works that can be read by a computer text-to-voice reader.   They provide a vivid picture of how the Hathi Trust project “would allow blind students and faculty to participate fully in university life,” and that this has been a major purpose of the Trust since its inception.

The spare language of the one document, and the fully developed rhetoric of the other, combine to produce a convincing picture of what fair use and the other exceptions to the copyright monopoly were intended not merely to allow but to facilitate.  Research, teaching, scholarship and access for persons with visual impairments.  If copyright is allowed to impede the advancement of these purposes through mass digitization, and in the name of tying these files up until a private organization figures out a way to make money from them — to reap where they did not sow, as it were — then copyright law will have proved a failure indeed.  But I do not believe that a court will allow that to happen.

Copyright Issues and Legislation

SOPA and the Constitution

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I have written before (here and here) about the bills now before Congress that go by the name of PROTECT IP in the Senate and SOPA (Stop Online Piracy Act) in the House of Representatives.  There are many reasons why these are bad bills, and an alternative approach has recently been proposed.  Since discussions about the flaws in these bills has entered the mainstream media, I have not felt a strong need to continue to write about them.  But I do think it is worthwhile to point readers to a blog post by Professor Marvin Ammori on the legal blog Balkinization about why he and Lawrence Tribe of Harvard have both written to Congress, independently, about the unconstitutionality of the bills.  This is a different, and in many ways more fundamental, objection then those that I have seen elsewhere.  Let’s hope Congress is listening.