2009 ip club lecture

A 2009 presentation to the Rutgers Law IP Club

User-Generated Content & Virtual Worlds, 10 Vanderbilt Journal of Entertainment & Technology Law 893 (2008).

Digital Attribution, 87 Boston University Law Review 41 (2007).

Amateur-to-Amateur (with Dan Hunter), 46 William & Mary Law Review 951 (2004).

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Be careful with social software.

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  Incentives theory   A brief history

  Ancient copyright   The Stationers’

Company   The Statute of Anne   The United States

Constitution   Steady expansions in

19th & 20th century   1976 Act   1998 revisions   International law

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(1)  literary works; (2)  musical works; (3)  dramatic works; (4)  pantomimes and

choreographic works; (5)  pictorial, graphic, and

sculptural works; (6)  motion pictures and other

audiovisual works; (7)  sound recordings; and (8)  architectural works.

Or, colloquially, books, music, plays, films, pictures, photographs, sculptures, building, computer software, etc.

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Thanks to Tom Bell

 General Rights   102 – Base Requirements   106 – Exclusive Rights   106A – VARA   107 – Fair Use

 Scope & Limitations   108 - Libraries   109 - First sale   110 – Non-profit Performance   111 - Television   112 - Television   113 – VARA   114 – Music: Sound Recordings   115 – Music: Cover versions   116 - Music: Jukeboxes   117 - Software   118 – Public Broadcasting   119 - Television   120 – Architectural Works   121 – Blind & Disabled   122 – Television

  Authors create works due to the incentives offered by copyright’s prospect of financial reward.

  Industry professionals purchase the content from authors, package it in copies, market it and distribute it. They are the expert commercial intermediaries.

  The public benefits from having access to a broad selection of high quality content.

product

product

payment

payment

Creators

Industry Professionals

Consumers

product

product

payment

payment

Creators

Industry Professionals

Consumers

Congress seems to regard the entertainment industry as the chief “client” of copyright legislation.

  To what extent does the story of the Stationers’ Company explain the contemporary landscape of copyright?   Have we returned to a licensed

monopoly right?   To what extent is copyright law’s

historical expansion (in scope and duration) attributable Lockean, rather than utilitarian, intuitions?

  1976 Act? 1998 Acts?

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product payment

Industry Professionals

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“The VCR is to the American film producer and the American public as the Boston Strangler is to the woman alone.”

-- Jack Valenti (MPAA)

Framing the problem: New technologies, such as cassette tapes and photocopiers, allow consumers to create and exchange copies of works, depriving the copy licensing industry (and the creators who rely on the industry for revenue) of their profits.

Answers to piracy: Expand rights Strengthen enforcement Criminalize infringement Regulate Technology (DRM)

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product

product

payment

payment

Piracy

Creators

Industry Professionals

Consumers

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Principles 1)  Copyright law

creates private property rights in information patterns

2)  This exclusive rights are normatively desirable and benefit society

3)  Copying of information patterns should occur only when authorized by the proprietor

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Principles 1)  Information patterns

should be shared for purposes of collaboration

2)  Copying of information patterns should be fast, simple & transparent

3)  Central control is not desirable – the power in the system should be at the endpoints

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  Widespread copying threatens to destroy the business models of the [music / film / software] industry.

  Major lawsuits against tools/platforms that facilitate copying: Napster, Grokster, YouTube   DMCA 512 provisions

  Congress is generally sympathetic ($$$)

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19 Sharing

Creators

Industry Professionals

Consumers / Creators “Prosumers”?

What if networks facilitate “amateur” authorship?

product

product

payment

payment

Piracy

Creators

Industry Professionals

Consumers

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Creators

Industry Professionals

Consumers / Creators “Prosumers”?

What if networks facilitate “amateur” authorship?

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Creators

Industry Professionals

Consumers / Creators “Prosumers”?

What if networks facilitate “amateur” authorship?

  Are there no implications?   Is non-commercial copyright

production legally insignificant?   What does this say about the

authorial incentive theory?   Do the implications turn on

issues of quality?   Do the implications turn on

issues of collective coordination?   What does this say about the

complexity of copyright law?   Does it matter that amateurs do

not seem to understand copyright law?

  What about technology?

22 Sharing

Creators

Industry Professionals

Consumers / Creators “Prosumers”?

product

product

payment

payment

Piracy

Creators

Industry Professionals

Consumers

24 Sharing

Creators

Industry Professionals

Consumers / Creators “Prosumers”?

  A fan website with multiple authors collects encyclopedic details about the Harry Potter series.   The Harry Potter Lexicon

http://www.hp-lexicon.org   Formerly praised by J.K.

Rowling as a valuable resource   Lawsuit by Rowling claims

copyright infringement   District court determines this is

not fair use   Subsequently rewritten to

conform to court’s standard

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Not Fair Use

  Lenz uploads a video of her toddler dancing to a Prince song on the YouTube

  UMG removes the video from YouTube via the DMCA notice & takedown provisions

  Lenz countersues claiming that fair use clearly permits her to post the video, hence the notice was in bad faith.

  Following a motion to dismiss, the court allows the claim to proceed.

  Who controls the shape of online tools?

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Clearly Fair Use

  Fairey presents himself as a rebel “street artist”

  He often appropriates images for his work

  Found and changed a photo of Obama via a Google search

  Iconic poster distributed “virally” over the Web

  Original photograph used by Fairey ascertained by bloggers (originally denied by Fairey)

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Fair Use?

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The Public Web •  Optimal for maximum distribution of information •  Vulnerable to commercialization •  Small players dependent on search •  Major commercial winner: Google

The Semi-Public Platform (Predominant) •  Often provides better tools (e.g. for blogs, photos) •  Technology is opaque to users •  Applications often push to become “sticky” •  Major commercial winner: Facebook*

The Walled Garden •  Popular model during the 1980’s •  Subscription barrier to entry •  Must provide some additional value •  Major commercial winner: World of Warcraft

  Google, Facebook, World of Warcraft, and Web 2.0 businesses see user copyright as a potential liability, not a source of revenue

  Cf. radio broadcasters in 1941 – except that copyright is in the hands of the multitudes

  If the logic of the Stationers’ Company controls, where does this point for the future evolution of copyright?

  Answer: “solve” the copyright dilemma via contract

  If users can be bound to surrender copyright interest in exchange for platform/tool access, user copyright interests will not threaten revenue models.

  Ironically, this licensing “solution” is a close relative to FSF, Wikipedia, Creative Commons, etc.   But it deflates the scope of

the authorial interest for business (not altruistic) reasons

Greg Lastowk

a: lastowka@cam

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City of Heroes = Toolmaker/

Hosting Platform/Proprietor

Marvel = Copyright owner,

potential exploiter

Player = infringers

  The users are charged with direct copyright infringement.

  The users pay to access City of Heroes and have assigned their authorial interests by contract.

  The lawsuit is brought against the toolmaker/platform, using copyright to constrain the power of technological tools.

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  If users are authors, what does the UGC inflection offer?   A shift to loss of authorial

rights via contract   Cf. status quo

  A shift to bearing infringement risks

  Cf. status quo   A shift to tools hobbled by

concerns over ©   Cf. status quo

  Plus   Pay for access   Loss of information privacy   Loss of information control

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In a world where authorship powers are now widely distributed, copyright law should look at:

1.  Attribution rights 2.  Notice

requirements 3.  Shorter terms 4.  Clear, short,

“bright line” rules 5.  Funding the

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