Saturday, April 18, 2015

Campbell conference: IP and cultural expression

Panel VI. IP and Cultural Expression (Moderators, Professor Said and Professor Margaret Chon)
 
Mark McKenna, Notre Dame: Influence of Campbell outside copyright/in right of publicity: the First Amendment cases in which there’s an arguably expressive use of someone’s identity—movie, song, video games.  Courts use a lot of tests; consensus in TM developing around Rogers, but no such consensus exists in RoP despite the fact that these cases are almost always brought as RoP and §43(a) cases. One approach uses Rogers for both, which makes sense since Rogers itself involved both claims.
 
Comedy III is another option. But the problem is that a person is not a work, so it’s impossible to do a true transformativeness analysis. Courts don’t evaluate whether a defendant’s work is transforming the P’s identity, but rather how creative the d’s work is.  This means that this is essentially productive use; it’s a terrible approach to the RoP. It’s unclear whether we look at the creativity in depicting the person, or creativity in the work as a whole. The recent sports videogame cases make this conflict apparent.  You could ask how much of the work as a whole consists of the identity, but the courts don’t do that. That would still be a poor test because it would still be hard to know when a painting of a celebrity was protected. In both video game cases, creators were penalized for the realism of the game.  Suggests that least worthy would be biography and documentary film, which should be instead at the core of the First Amendment.  Of course a court is unlikely to find a violation here, but why not?  What work is transformative use doing?  Courts are actually judging the value of the work: video game exceptionalism notwithstanding SCt’s directive to the contrary.  That’s a story of Campbell’s influence, but not a happy one.
 
Lateef Mtima, Howard University: Hathitrust as template for social justice arguments in copyright.  If print-disabled access is non-transformative, but fair use, that opens other arguments. The EU doesn’t have flexible fair use, but rigid limitations.  Several cases in ECJ are doing the same thing of purposive interpretation: Decma v. Vandersteen: court has to interpret the application of the exceptions under Art. 5 of harmonization directive, as to whether or not an unauthorized use of an altered cartoon was a parody.
 
A social justice use, like the use of rendering books available to the blind, can be defended by looking at the objectives of an expressly articulated law or gov’t policy; there should be a nexus between the social utility objectives of the law or policy and the copyright law.  Finally, the last question is whether the specific use isn’t antagonistic to the overarching objectives of copyright.  The fourth fair use factor does look after the rights of the copyright holder, but we need to ask this again because copyright holders have noncommercial interests that should be respected. Often when copyright owners complain they’re getting no money we can sometimes point to noncommercial benefits they may nonetheless be getting. 
 
Access/cultural preservation is another worthy goal, for significant cultural events/documents, e.g., women’s rights events.
 
Christopher Newman, George Mason: Fair use is not holistic enough.  Factors still being weighed against each other, however minimally. Souter avoids this in Campbell; remains holistic, w/ glaring exception being factor two, the neglected middle child of fair use doctrine. Factor 2 = dean’s speech at graduation: a customary part of the ceremony, but has limited variation and no one ever expects to learn anything from it; its greatest virtue is usually that it’s short.  Kienitz: “Factor two is unilluminating” is the sum of the discussion.
 
Why? We’ve made the mistake of thinking that each factor must have weight rather than being a lens through which we should triangulate the whole. So we only say things that weigh for or against fair use.  Not only is Campbell’s factor two analysis incoherent, Souter goes on to say it’s irrelevant.  If the question is fairness, how do you decide the nature of the original work/what it was doing before it was transformed?  Ought to ground the rest of the analysis, rather than a factor that weighs for or against fair use. Should instead provide a qualitative baseline: calibrate the scale, not put a thumb on the scale. Instead these discussions take place under the rubrics of the other factors.  But it would improve analysis by making sure we’re taking the time to look at the problem from various distinct angles.  If we spent more time focusing on the original work on its own terms, we could ID and create bodies of doctrine showing works/characteristics of works that add to the analysis.
 
Why don’t we talk about what kind of work it is?  The ways in which we process and draw meaning from a work vary depend on type: music/writing. Amount of work necessary to transform may vary: relatively small alterations to an image may have a profound impact on its meaning in ways that wouldn’t happen w/text or sound.  Kelly etc. are often cited as complete copying cases, but actually the resolution was altered in ways that make transformation a more plausible conclusion. Be careful in analogizing types of cases across types of works. 
 
What’s the work’s expressive purpose?  Current analysis is undisciplined, failing to distinguish between the purpose of expression embodied in the work and all the instrumental ways in which that expression might be used.  Irrelevance of good faith: we want to be able to look at objective qualities of two works and not at what’s going on in people’s heads.  Expressive content of photos can be entirely unaltered—Dillon v. Doe, headshot of politician to ID her, used for the same purpose: to physically identify the person under discussion. The effort to convey positive/negative meanings was separate; there was no transformation.  You might say once a politician chooses to make an image identify her, that image is fair game. Okay. But then we need to know when secondary associations should be considered part of a work for fair use purposes.
 
Factor two could also ground the discussion of factor four. What kind of market are © owners trying to participate in, and how are they using it to further expressive aims? Doesn’t see why market has to mean economic value, but rather some other kind of gain.  We shouldn’t categorically opposed to let artists use exclusive rights to protect whatever idiosyncratic values they have. If artists want to be paid in attribution, and release work under CC licenses, then someone who copies w/o attribution shouldn’t win fair use automatically b/c there’s no market harm.
 
Moral rights through the back door? What I’m suggesting doesn’t increase scope of author’s §106 rights just because of objection.  Fair use is like nuisance law.  Requires actual harm to use & enjoyment of property, which isn’t limited to ability to profit. But owner doesn’t have carte blanche to define use & enjoyment—depends on the character of the neighborhood and the neighbors’ interests. Violation of a ban on criticism shouldn’t be honored, but that’s not true of all idiosyncratic values. So discuss what sorts of use & enjoyment authors value in this space, and is there any reason to stop them from using exclusive rights to further those values.
 
Betsy Rosenblatt, Whittier: Young women’s voices on fair use.  People make things they may not realize they’re making, including community or themselves.  Fanworks, overwhelmingly female communities under investigation. Deep dedication to gift economy.  In post-Campbell world, these fanworks pretty uncontroversially don’t infringe, even resisting the temptation to separate the factors out from each other. Transformative of meaning; noncommercial; small portions; don’t compete in the market.  There has never been a lawsuit about a noncommercial fanwork (despite threats and rumors).
 
Skin in the game: Organization for Transformative Works legal committee head; OTW runs the Archive of Our Own w/over 400,000 registered users, 1.3 million works, 5.8 million unique visitors/month. 107 responses to our call for fan stories to submit as part of our response to the USPTO/NTIA Green Paper call for comments on remix.  We had to depend on self-identification as women/girls. We only asked about benefits of creating remix, not drawbacks: reflects our pro-fanwork agenda.
 
We found very powerful trends in the responses. Particularly: creating fanworks provided unique opportunities for developing selfhood, emotional maturity, and professional skills.  Broad fair use permission for noncommercial derivative works promotes expression by often marginalized speakers and offers benefits otherwise unavailable.  Fandom helped them understand themselves. Many had a narrative of fandom as rescuer—literally lifesaving in some cases.  Felt they were not alone in the world; helped them find their voices; taught them to value their own expression and their own opinions, which served them later in life.
 
Women believed fandom allowed them to talk back to mass culture, especially one that didn’t adequately represent them. Claim agency around popular narrative, explore issues of gender and sexuality by working with popular characters; nonheteronormative narratives; issues of race and disability. Infinite diversity in infinite combination.  The derision of fanworks was often bound up with other negative attitudes towards feminine pursuits. The young writer in any genre will not start out good; she finds her voice and that’s a benefit.

Remix taught important skills—language, writing and editing w/ the system of beta reading in fandom, critical thinking, visual art, programming/coding, other fields that could be used in professional lives.  The rewards are support and feedback, a community/culture of learning. Transformativeness, because community that supports empowerment through changing the original, comes disproportionately from underrepresented groups.  Permission culture would make this all difficult/prohibitive.
 
Margaret Chon: Legal transplantation, examined by McKenna—we’ve seen this in other contexts such as the three-step test of Berne being implemented in national legislation.  Mtima is talking about similar issues: © looking outside of itself and even IP as a whole, towards other kinds of laws and policies.  Specifically the ADA.  Perhaps IP isn’t the be all and end all for innovation—think about leveraging and connecting other social policies.  McKenna isn’t a cheerleader for transplantation, whereas Mtima is.
 
Newman and Rosenblatt do deep dives into two fair use factors, which Leval urged us to consider as deeply connected.  Chon also has the tendency to handwave factor two; Newman’s project is to bring factor two back into the fold. Rosenblatt/Tushnet also dive deeply into the transformativeness factor: how do these two impact each other?  How would Newman’s approach deal with the Rosenblatt/Tushnet process-oriented approach to transformativeness.  Is there value to Newman’s approach for thinking about fanworks?
 
Breathing space may tie this all together.  We tend to think of this as tied to First Amendment/free expression goals, but “breathing space” is open enough to capture many ideas expressed on the panel.  Securing copyright is good, but one must not put manacles on science: quote from older case is her favorite part of Campbell.  Fair use had earlier precedents, not just in America.
 
McKenna: not averse to transplantation in itself. Courts often don’t think nearly carefully enough about what they’re doing when they transplant something. E.g., courts often pretend they’re just using tort principles in secondary liability cases, but they don’t. Most likely to go awry when court is unfamiliar with the borrowed-from body: Cal. SCt doesn’t get very many copyright cases! Likewise, the SCt doesn’t get many tort cases, but thinks it knows torts.  No rhyme or reason. Mtima wasn’t advocating borrowing willy-nilly but was arguing for borrowing w/relation to copyright.
 
Mtima: we all seem to be saying that the nature of the work matters.  The right type of access to works—being able to get them and then to reuse them—helps continue the evolution both individually and as a society.
 
Newman: People usually think about fair use w/regard to fan fiction as copyright being a looming, never materializing threat.  Newman takes strict view of idea/expression and thinks fanworks usually don’t count as derivative works.  Super rich depiction of artistic community: I’m curious to know to what extent is © useful, not because I have to shield myself from it, but perhaps because they want to keep it noncommercial/constitutive of their personhood.
 
Rosenblatt: Very suspicious of considering intent of original creator, but intrigued by considering purpose as something different from intent. Expressive substitution may not just be for what the original work says, but for what the original work does.  Wary of importing moral rights through the back door. But these communities depend on certain things they want their works to accomplish for themselves and others.  Recent ebooksTree issue of copying fanworks to attempt to convince people to pay for “free” ebooks. Fans definitely want their works to remain free.
 
Yen: If the phenomenon you observe with transformativeness in RoP cases mimics the problem w/transformative use being so broadly applied that it loses coherence and simply becomes a result announced in advance.  Public pressure to compensate NCAA players; this just happens to be our vehicle.
 
McKenna: it’s true, that seems influential—and I want them treated fairly too. But there is a core way in which it makes sense for copyright; it doesn’t make sense at all in the RoP.  It is in some ways announcing a result b/c it’s hard for Ds to win.  On the very same day the 9th Circuit announced that the videogame wasn’t transformative for RoP purposes, it announced that it would use Rogers for 43(a) claims against the same conduct.
 
Besek: Factor two/coursepack cases: some texts are created specifically for the educational market; that’s an important aspect of their nature. Is there a place for the publishers’ goals? Courts have rejected authors’ own desires for wide dissemination as probative.
 
Newman: should start by understanding what role © actually plays in enabling and encouraging the people who are trying to cultivate the value of the work doing what they’re doing, which includes publishers/intermediaries. 
 
(RT: Barthes’ readerly and writerly texts as a factor two consideration?  That would tie in with the fan communities that respond to certain works. Except it turns out that almost texts can be writerly.  Newman might not be into that, b/c he seems to look at “purpose” as something objective about the creators/publishers, rather than purpose as function in the reader-writer interaction.  Readerly/writerly might fit into the fact/fiction, published/unpublished distinctions we have though.)

Campbell conference: copyright and music licensing

Panel V. Copyright and Music Licensing (Moderator, Dean O'Connor)
 
Peter Menell, U.C. Berkeley: We seem to approach fair use depending on how we approach our careers. Lawyers: fair use is attractive b/c it has so much potential.  Social science: not so perfect b/c it doesn’t solve core problems in many areas.  Selma: director concluded (whether correct or not) that she couldn’t use real MLK speeches. This is a lost opportunity to portray history, with no arts-promoting benefits.  Jimi Hendrix biopic opens without his music, thanks to copyright. Fair use needs help. 
 
Another pocket of law: mashup as the breakout musical genre of this generation, just as hip hop was of a previous area. Sampling was channeled into licensing but never achieved all that it could, since labels wouldn’t release uncleared content. Internet/digital tools: new wave didn’t need labels.  No big threats of lawsuits.  But then you can’t monetize and distribute—that’s the boundary.  Norwegian Recycling: example of pop subgenre.  Sees copyright as an impediment. If you make it to the top of the remix world, you can perform for $100,000 a night, but many people would like to put their work out in recorded form, and that’s hard to do with no ability to monetize. They can do it live b/c there’s no public performance rights in sound recordings and the clubs already have blanket licenses. (They may bring in recorded remixes but no one has made a stink about it.)
 
Remix is in state of unrelievable tension: some think it’s all fair use, others think it’s morally and legally indefensible.  Girl Talk sometimes takes big chunks; not clear how that would come out under fair use. Solution might be compulsory licensing, as several studies of remix artists suggest—artists are happy to share some of the revenue without being fettered in creation.  Cover right = kind of remix that is unfettered in that way.  Many might be fair uses, but covers don’t seem to bother people; help promote the older versions too.  Rethink our exceptions for revenue sharing: complement to fair use; use limitations with no ads, no synch.  No statutory damages for mashups.  There are objections but we won’t get perfection, and we’ve already been waiting years for some help. 
 
Moral rights: William Hung did a Xmas album; we live with the cover right.  We could be explicit that there’s no cutback on fair use.  Many remix artists would go along without demanding fair use rights—less pressure on the doctrine.
 
Eric Priest, Oregon: Music in China. Creators do produce works in China despite difficulty monetizing them. China’s film industry is booming.  Basically no money from online music. One revenue stream: exists by happy circumstance, b/c Chinese consumers happen to really like ringback tones.  Those aren’t piratable unless you hack your phone; centrally controlled by mobile provider. But mobile providers do a lot of record label style accounting, so record labels don’t get much, and artists get less still—2% of the revenue generated by the providers.  Labels lack leverage to renegotiate deals/enforce deals they already have b/c this is their sole source of revenue.
 
When there’s only one revenue stream, you force people to accept that stream.  As you get monopsony intermediaries, that vests tremendous power and leverage in that intermediary. We’re seeing glimpses of that in the US.  One Amazon, one Google, one dominant player per space—not clear who that’ll be in music distribution, though some will say YouTube has won. YouTube can say: agree to our terms or your videos will be private. Strongarm negotiating is part of the model, when revenue streams dry up.
 
Kristelia Garcia, Colorado: We don’t want to limit the cover right by forcing any distance at all from the first performance.  But what does that mean for other issues, like the Blurred Lines case?  We don’t normally see 10% similarity analysis in substantial similarity in music: what does it mean to say that Blurred Lines “sounds and feels” like Got to Give It Up?  Not at all clear how people are throwing around these musicological terms.  Also a bunch of nonsense phrases, including in instructions to the jury—“a constellation of distinctive and important elements,” “vocal and instrumental themes,” “unusual cowbell and instrumentation” as opposed to the standard cowbell, copying of “omission of guitar,” and use of male falsetto, which seems unfair. “The very essence of the work”?  Is that because it’s in the genre?  There is substantial similarity of feel in the works, but so what?  Sub Pop: Do you hope the artist you hear next sounds completely new?  Answer: No, we hope they sound like artists who sound like the artists we have who are already successful.  We have records to sell. Don’t have time to risk with artists doing completely new things.  Does that create risks of label mates suing each other?  Universal’s acts are suing each other: Marvin Gaye & Robin Thicke.  Substantial similarity is the equivalent of fair use in music; that’s the only tool we have.
 
Olufunmilayo Arewa, U.C. Irvine: Music and similarity. Part of what we’re dealing with is that a lot of music is very similar. Not just pop music: historically, a lot of music has been similar. We tend to interpret music through the lens of the canon: we ignore 1000s of composers in classical, blues, jazz.  But that means we forget a bunch of similarities. If you play a bunch of music from Robert Johnson’s time, it’s not clear how he differs from other contemporary artists, which is not to say he wasn’t a great artist.  Rise of African-American influence in music: popular western music used to sound very different, a century ago.  Not just in US.  Think of change in assumptions about how we create, which we don’t think about enough from a © perspective.
 
Lawyers and writing. We think about lyrics. But Campbell and other cases, when they talk about musical features, courts lose their way—much less sophisticated and nuanced. Reflects that lawyers are trained to focus on writing.
 
Notation, and its use in unintended ways in legal cases. Notation is a particular kind of writing with a specific historical trajectory of trying to write down Western art music, as something that singers and instrumentalists can both use. Rhythm is very hard to notate.  A lot of rhythm is learned orally, even today.  Notation is a shortcut, not a complete embodiment.  That impacts popular music today, because a lot of infringement cases are about the musical work. Courts would often play the music and tell jurors to abstract out different portions to get to some kind of essence. That’s very difficult, b/c there are important cognitive/perception aspects of music that we need to think carefully about. Music writings and music sounds are processed in different parts of the brain.  Reactions to music can be highly individualized.  Courts don’t have a good enough understanding of how writing v. sound is processed.  Notation is representation, and what it means varies a lot, especially for African-American music where the lead sheets don’t fully embody the written music.  Sound recording copyright doesn’t really help because most infringements aren’t verbatim copies of the sound recording.
 
Underlying assumptions. Need to think about the relationship between musical sound and musical writing. Influence of things like genre, musical perception/cognition. How do we think about and measure musical relationships.
 
O’Connor: example of musician who shows her bass playing by playing it over a recording of I Wanna Be Sedated—doesn’t fit into conventional categories, but maybe we want to allow it, including under Menell’s proposal.
 
Heald: Maybe one way to look at it is whether there are local borrowing norms that allow a certain amount of copying.  Argument: Berne should be held to mandate this b/c it says it’s permissible to quote a work lawfully made available to the public provided this conforms w/fair practice.  Not limited to just words.
 
Arewa: sounds good, but look at Rolling Stones, who borrowed heavily from blues traditions but then enforced heavily against, e.g., Bittersweet Symphony. 
 
Heald: maybe they’re hypocrites.
 
(Other discussion: the labels/publishers sue; their norms are different/are they even relevant since they benefit from the artists’ underlying acts?)
 
(I’m really intrigued by Garcia’s suggestion that substantial similarity serves the fair use role (well or badly) in music infringement cases. This gets to something often missed by ideas about parody/transformation that reduce it to criticism.  Sometimes quotation is a way of participation in a conversation; it doesn’t have to be critical for there to be a transformative new work created.  To the extent that similarities situate a work within a genre—similarities that might be called tropes or scenes a faire in non-music cases—they do serve one function of quotation that might in other contexts be analyzed as fair use.  The problem in music cases seems to be insufficient appreciation that substantial similarity is also serving the fair use role, though I’m not quite sure what should be done about that given that breaking out fair use would also require articulating the musical concepts that Arewa points out judges/courts don’t understand all that well.)

Friday, April 17, 2015

Campbell conference: Justin Hughes keynote

Closing Keynote Address: Justin Hughes
 
In a world of complex laws, like tax regulation, everyone likes the idea of a rule that’s both general and exculpatory—fun and safe because when you’re applying a multifactor test it’s very difficult to be clearly wrong. But fair use is also notorious because it’s a principal arena in the struggle between proponents and opponents of IP. The doctrine has an unstated and perhaps unconscious idea: the open ended possibility of the negation of copyright protection.  This is the source of fair use’s popularity among digerati and the source of the fear copyright owners have of fair use.

Don’t you mean an open-ended regulator of copyright protection where protection doesn’t advance the underlying purposes of ©?  No.  It’s a kill switch.  It’s not a device to withdraw © protection in all circumstances, at least not in a way we could make a policy decision about. It’s an iterative process, endless rollercoaster of expensive litigation. That’s what makes it a little bit scary but fun.
 
Many of us are concerned about how transformativeness has become so malleable, so dependent on what judge had for breakfast, that the twists and turns are getting quite wild. He thinks the doctrine will eventually sort this out, but wants to give a cautionary tale.
 
Where he doesn’t disagree necessarily w/result, but w/use of transformativeness: use of expert’s CV in legal case.  Consider SOFA Entertainment v. Dodger Productions: 7-second clip of the Ed Sullivan show introducing Four Seasons used in the musical Jersey Boys, projected onto the screen before the actors began performing. Court found transformation: used as biographical anchor and its biographical significance gave it new meaning, not just used for entertainment value. Clearly both works are works created and distributed/performed for their entertainment value.  Clip conveys mainly factual information about the group about to perform.  He doesn’t see any way you can say there’s a tremendous transformation: it was biographical/informational when it was originally broadcast.
 
Monge v. Maya district court is a poster child for transformativeness wandering the desert: four federal judges reached three different conclusions in a relatively simple case.  Monge, a Latina star, got discreetly married; a story ran about the marriage with photos. DCt granted sj on fair use; 9th Circuit reversed over a vigorous dissent.  The dct found it transformative: photos were used not in original context, documentation of wedding night, but rather at confirmation of the accompanying text challenging repeated denials of the marriage.  Ct of appeals found only marginally transformative.  There’s mere wordplay to say that photos are transformed from documentation of wedding to confirmation of text saying people are married.

Then there’s White v. West, which seemed to conclude that putting something in a comprehensive database is grounds for a transformative use.  WW Norton would never have to pay for a royalty again in its anthologies!  Thus he is concerned that recent jurisprudence on transformativeness is becoming unwieldy. Not saying that the decisions are wrong, just that they were achieved the wrong way.
 
Low protectionists may see this as a good thing and even call for further expansion of transformativeness. Lea Shaver: translation should be recognized as transformativeness. But that would conflict with Berne Art. 8. 
 
Berne 9(2)/Trips Art. 13 is the three step test.  WTO dispute resolution panels say we apply it as it reads, with three steps: (1) certain special cases, (2) no conflict w/ normal exploitation, (3) no unreasonable prejudice to legitimate interests of right holder.  Lunney’s unitary analysis is popular with academics in Europe who think current version is too restrictive. Interpreted this way, defenders of copyright see three-step test as lynchpin of copyright/critics see it as Darth Vader.
 
Is the American fair use doctrine as embodied in §107 compliant?  I have always thought the answer is yes. I still think the answer is yes, though I was initially too simplistic.  Back in 1988, on accession to Berne, there was a lively debate about compatibility of American copyright with Berne; we gave up formalities.  Then there was fair use.  In 1988, then general director of WIPO, identified formalities as the only real incompatibility with Berne, suggesting that fair use was no problem. Six years later, the WTO was created and TRIPS extended the three step test to all exceptions and limitations in ©.  Absolutely no diplomatic fuss over whether US law would be compliant.  In early days, a few countries questioned the US about fair use.  Standard US response: while §107 may appear indeterminate, carefully developed 150 years of case law assures that §107 meets the requirements of the three-step test. 
 
More countries have adopted provisions at least inspired by §107: Sri Lanka, Singapore, Israel, South Korea and the Philippines; arguably Uganda, and Canada is moving in that direction. Not sure whether it’s a good thing for developing countries.  Their local judicial institutions may not be developed enough to exercise a balanced application of the doctrine. Makes WTO challenge to §107 more difficult, politically and probably juridically. Vienna Convention on Treaties: a treaty shall be interpreted in good faith in accordance with ordinary meaning and in light of subsequent practice.
 
But Ginsburg and Besek raise legitimate issues.  §107 passes the test because it is not an exception to be judged under the three step test. It is a mechanism to establish exceptions.  When significant courts rule the same way, or when the SCt weighs in, the result is a pretty clear rule. A little exception: e.g., parody.  At least as clear as the codified parody exceptions that exist in other countries.  Sega v. Accolade/Sony v. Connectix: an exception has clearly been established for intermediary copying to produce a new work.  With fair use we entrust judges to craft new exceptions to our copyright law, just as the Chinese court can issue sweeping interpretations of IP laws if the People’s Congress doesn’t act. TRIPS doesn’t require national legislatures to write the rules (though Berne does). WPPT and Beijing treaties likewise just say it’s for the members to do; WCT has a weird straddle. 
 
But Ginsburg and Besek have a point.  A whopper of a fair use decision could trigger a challenge, and the case would be about that decision/that new exception in American copyright law. As-applied challenges are possible. A broad fair use application to foreign works could trigger that showdown. Many in Geneva think only a SCt decision could be subject to dispute, but others think that the court of appeals should also possibly allow WTO proceeding.  Could be brought by someone we’re always dragging to the WTO as retaliation (China).
 
At the domestic level, our judges should be cognizant of our treaty obligations, properly interpreted: Charming Betsy doctrine.  An act of Congress ought never to be construed to violate the law of nations if any other possible construction remains. Congress regards IP treaties as non-self-executing—adamant about that w/Berne, TRIPS, and 1996 internet treaties. But many reasons related to separation of powers still exist to give effect to Charming Betsy: if a court believes that one interpretation “could” violate the three-step test, it should go with a different interpretation. 
 
Campbell: March 1994; TRIPS signed April 1994, effective Jan. 1995. We haven’t had a SCt fair use case since. Interface of foreign/domestic obligations will get more interesting over time.

Campbell conference: future of digital tech

Panel IV. Campbell and the Future of Digital Technologies (Moderator, Dean O'Connor)
 
O’Connor: output of one creative person becomes input for the next. Consider how copyright and fair use work in that system.
 
Robert Brauneis, George Washington University: How have new technologies influenced fair use jurisprudence?  (1) Personal copying and distribution and the personal/commercial distinction. Before Sony, there had never been a single published opinion on fair use in private noncommercial copying.  Non-networked tech brought personal copying to the attention of copyright owners, leading to fair use for some forms of personal copying.  Few decades later, networked computers challenged personal/commercial distinction. 
 
(2) Computer programming/functional works. Pre-Feist, there was a big branch of fair use jurisprudence devoted to ok uses of factual works; that faded as noncreative facts were excluded. But a new branch arose, dealing w/largely functional works and reverse engineering. 
 
(3) Nontraditional uses. Accessibility to the blind.
 
(4) Dissolution of the concept of the copy. New tech significantly eroded the role of the copy as the intuitive unit of consumption. Fair use will likely step in to mediate between the intuitive sense of exploitation versus formal reproduction.  In non-networked world, users typically acquired only one copy. Now many of us don’t know whether we own a copy of a work or not, since Spotify commingles local and streamed; we don’t know how many copies we own or where they’re stored or when another copy is being made—the cloud obscures, faithful to its name.  Correlatively, it doesn’t make sense to treat cloud syncing as we do printing another hardcover book. Reframe from copying to access/exploitation? But it’s more than a little difficult to create a new conceptual scheme and harder to get Congress to act; courts will mediate slippage between rights and practices that seem widespread and harmless, and they can call on fair use to do so.
 
Sandra Aistars, Copyright Alliance: Worth distinguishing b/t creating new copyrighted work and facilitating new tech.  Campbell worked very well for the former, but not so with new distribution models/purposes. The beauty of fair use is that it’s both flexible and case-specific; allows courts to consider all the nuance; guard against new set of reflexively applied presumptions w/negative effects on creativity.  (Ideological drift …)
 
Authors aren’t threatened by the concept of fair use, nor do they want to see it limited. Authors of all types need to facilitate the use of existing works, and celebrate contributions tech has brought to their lives. Tech innovators face similar challenges trying to get product/service launched and authors are sympathetic.  Seems to her odd, as June Besek noted, that partial copying by an individual artist is scrutinized more than massive full-on copying of entire works by commercial entities, which is presumed to be transformative b/c different purpose.
 
Intermediate copies are all lumped together. They can be used in ways not linked to traditional sources of income for copyright owners, or simply to design around existing law to avoid licensing.  Aereo is a good example of design-around.  Intermediate copies used to facilitate new products/services can have different impacts on different market sectors. Search engine that exposes artists to users is beneficial, but taken too far or applied specifically it might undermine the market or supplant the market for visual images entirely.  Should distinguish and not say all intermediate copies are created equal.
 
Do we need different approaches when a new work is created versus new purpose?  No. The four factors serve us well, allowing each use to be considered on its merits.  Interesting to hear Beebe’s empirical research indicating that it’s easier to predict outcome than some might have expected. She worries that it’s easier to make a decision based on nuanced analysis of four factors than it will be if we allow the trend to compress everything down into one test, bringing a tendency to be guided by perceptions of morality or social utility, which are far harder to predict. 
 
Yoko Miyashita, Getty Images: over 200,000 photographers, 100 million online and 85 million more in storage. When we talk about copyright, we mean creative, technical, highly skilled works that our photographers may put themselves in harm’s way to get.  We moved through technologies than now make anyone a photographer and a publisher. The universal language is imagery.  Part of that language is “like” and “share.”  For younger generations, using images is essential to speech and personality, not just a “nice to have.”  Genie’s out of the bottle.  We don’t want to be regarded as the ones who want to break the internet and not taken seriously.  Trying to take expression away from the public is a losing game.
 
We tried the enforcement route and we learned the hard way.  (Turns out they sent a letter to Corbis, despite cross-distribution agreement.) Unwinnable whack-a-mole, plus potential long term brand harm.  So we needed to evolve instead of becoming irrelevant. Getty Images Embed: 99% of content is available for free, for noncommercial purposes. Social sharing has been added to our images. Facebook, Twitter, Tumblr, Pinterest: adds watermark, link back to images, and information on license. We want user traffic, eyeballs, data: the currency of our marketplace.
 
Our biggest competitor is Google.  Among buyers who regularly license content.  9 out of 10 unauthorized users we speak to point to Google as their source of imagery.  Kelly v. Arribasoft & Perfect 10: what’s happened in search over 12 years.  We went from thumbnails, which used to have little links to the source site; now shows nothing but images like Getty Image search results. Then it goes to a beautiful large view with functions that have had a huge impact on us. The addition of larger images, and arrow features that allow you to toggle from one image to the next, has had a devastating impact on traffic for us.  Not going to get into the framing issue (by which she means whether framing implicates any §106 right). Easy to right click and save on a computer; they are the same size on a mobile device. They significantly reduce clickthrough rates for source sites.
 
This substitutes for eyeballs for all our paying customers who are licensing these images. We are bearing the cost of hosting those framed images when viewed that way.  Is it transformative or substitutional?  Look at the market harm.  Is this search or a wolf in search’s clothing?  (I’m gonna go with search.)  All we want is eyeballs, data—it’s negotiable currency.  Are these intermediate copies designed around existing law to avoid licensing? That’s a key question for us.  (And a weakness of the Aereo reasoning: should we say that Google search behaves as if it is making a copy, so we’ll consider §106 implicated?)
 
Matt Sag, Loyola University Chicago: The dissolution of the traditional concept of copying. Exchange of value b/t author and consumer was made easier/clean by first sale: money for copy.  Then public performance entered the field; broadcast as another source of value, so we get broadcast/cable retransmission rights, crowding around reproduction right but not really changing its significance. Then we get tech led by photocopier, disintermediating copying for businesses and consumers.  Then goes digital and networked.  Now it’s possible to look at when people stopped saying “the United States are” and said “the United States is” by copying the contents of an entire library: a nonexpressive use. The machine is the only one that sees it all. We’ve never had to think about copying not for expressive use before, but courts have handled it rather well.  There’s an interesting question about whether nonexpressive use should be considered transformative, or recognize it as a different form of fair use—latter would be cleaner, but Campbell is still important because it tells us that it’s not the loss of despotic dominion that’s a problem, but rather expressive substitution.
 
Jule Sigall, Microsoft: He’s not really worried about any of the stuff his family does, like using image search for personal communication/creating new meanings within the family. Think of all the things we use: Outlook, Powerpoint, image search, telephone lines, Photoshop, Skype. Tech becomes part of the speech.  These are our users. Where should we go to help answer questions about whether tech should permit these uses, how we should market the tech?  As the person who represented Kelly in Kelly v. Arribasoft, I got a painful lesson in trying to answer those questions using the basic structure of the Copyright Act—a set of broad rights designed to cover lots of stuff, with narrow exceptions (w/exception of fair use).  Presenting it that way left the court with a lot of disturbing questions, and thus justified the use of fair use.  You proceed at your peril as a copyright owner if you present a copyright infringement case w/out considering the kinds of things fair use considers—it’s just not effective advocacy.
 
It’s good for fair use to answer these questions, b/c it provides the most robust set of factors to answer the question of whether an activity is ok.  They can be misinterpreted, but they’re better than the other portions of the Act (compared to Netcom, which invented a volitional conduct requirement, or Cablevision on breadth of performance right). Not obviously complete or clear, but good set of precedents.  Fair use is right in the norm of predictability for laws that in-house counsel are asked to opine about.  When you look how my kids use the tech, there’s no going back to the old ways of “paraphrase or get a license.”  Not for them, not for the courts.  That doesn’t mean all fair use claims will succeed.  But fair use has plenty of applications now.
 
O’Connor: New tech always popping up, like livestreaming Periscope. Does it matter any more whether there are multiple copies, or just uses?
 
Sigall: Software has had the longest history with digital copying.  Industry is moving to offer products away from counting copies in the offering to the consumer.  Office 365 in the cloud. As a business matter, the ability for the user/customer to not think about copies is now the expectation—counting would be distraction/inconvenience.
 
Sag: it’s not the case that Google Book search à Napster.  But my computer backs up to the cloud. I have no idea how many copies of my authorized purchase I have floating around, and neither should the copyright owner. More ambiguity about where the copy resides = need to be less doctrinaire about “every copy is controlled/has independent value.”
 
Aistars: doesn’t matter unless you’re in a litigation posture where you have no other way to advance the argument other than claiming that there are multiple copies. It’s a distributional argument: how to divvy the pie up.  Consumer electronics were innovating in the 80s and 90s, in symbiotic relationship with the “content” industry to sell expensive devices.  The business model is now more about giving the content away and relying on the data to sell stuff.  Leads to more interaction for the user, but the creative work is subsidizing the ability to make those uses.  Not the same as 80s and 90s where nobody was capturing that value; tech innovators are capturing that value by showing ads/using that data.  (I think “nobody” here means “consumer surplus,” if I understand her properly.)
 
Brauneis: space and time shifting are quality enhancement technologies. Fox v. Dish: automatic ad skipping. Suppose all those technologies are fair use. One way of thinking: it doesn’t matter whether the © owner sells you a high balcony seat if through the use of tech you can make it a front row seat without having to pay more.  It’s not obvious that the answer is that there should be no differentiation between qualities or levels of access to work to improve social welfare.
 
O’Connor: we used to think of vinyl as lasting forever, and then it doesn’t.  Now we can, in the cloud. But am I buying a forever copy?  Or do I lose access if I don’t pay?
 
Sag: Peter DiCola has a good paper on this, the option value of music. Cassette: really a one or two year license.  (How badly does he treat those?)
 
Aistars: buying a new device to listen costs you something, whether it’s having to watch ads or lost data. If you are buying one, why not pay for the rest?
 
O’Connor: I don’t want to buy new devices.
 
Sag: consider logic: if a blind person has glasses that capture an image of a book and translate it into an audio version I can hear. Do I really need to pay for the book twice? The tech has enabled more increased value, but why should some of that value go to the book’s copyright owner for those digital images?
 
Aistars: would depend on what the manufacturer is doing in terms of gathering info about what the person’s reading, developing additional lines of business that depends on the interest of the underlying work to the consumer. In that case some share should go to the person who’s creating the work that the individual wants to read or hear.  (Wouldn’t that share be “the cost of the copy she bought”?)  Many people do want to upgrade over time. If you complain about having to buy in a new format, you should be equally upset about having to buy the new device to play it on, and she doesn’t see that happening in this new space. (That’s because of the classic excludability problem. The device is excludable without law; the sound recording is only excludable if the law forces tech makers to design that way. That’s why they feel and are different.)
 
Sigall: dual purpose tech raises issues (infringing and noninfringing). But since more and more stuff is more like an app on different platforms, it’s less about design of particular app or device or purpose. Challenge in this space is to say: everyone will use this for everything; that’s the world. Trying to segregate what you should/shouldn’t do is extremely difficult. Fair use is relatively good at this.  Subset of copyright owners tends to object; what about the rest of the copyright owners whose works flow through the tech? We have really bad info about the preferences of those owners. How do you as a tech provider segregate these, especially without a formalities system?  Some © owners don’t speak with all but the tech is all for everything.
 
Naeve: some © Act provisions are extremely reactive to tech—cf. §110.  Fair use is more open ended. Which is a better promoter of © policy?
 
Miyashita: you have to be flexible. We can’t anticipate 18 months ahead in new tech.
 
Aistars: both are promoters. You need flexible fair use to account for unanticipated events or one-off situations. There are situations where it’s been beneficial to have a more specific permitted use and in some cases have that use compensated. Would prefer not to have industry-specific terms in legislation, but in some other place.  (Presumably a reformulated Copyright Office.)
 
Sigall: interesting to see whether a plaintiff owner argues at a high level of abstraction where the tech doesn’t matter versus arguing about which server makes which copy. His sense is that it goes both ways all the time.
 
Brauneis: the longer a delay there is in legislative action, the more we will use the courts to make new law.
 
RT: public statistics on uptake of Getty Images?  Is Getty sending C&D or non-C&D letters to people who aren’t using it to switch people over?
 
Miyashita: we are sending letters.  Encouraging/highlighting the availability.  (But no answer on statistics on uptake, sigh.)
 
Heald: thought that Kelly is defensible but appalled by current Google image search. Is anyone litigating it?  Second, Hargreaves (UK) report—no changes in the absence of empirical data (RT: though note that the initial law was not adopted with the same rigorous standards). Is that a good idea?
 
Sigall: It’s hard to argue against policy based on empirical evidence, but the question is how you get it in timely and effective fashion. Can be very difficult.
 
Q: did Getty have photographers object to the Getty embed feature?
 
Miyashita: no.  We have to acknowledge practical reality of the types of uses for which embed and social sharing are ideal. Attribution, traffic, eyeballs, data, linkbacks start to make sense as overarching strategy.
 
Loren: also have questions about new image search.  Are you doing anything?  You have market power. You could choose the robot exclusion header.  Setting the law aside, there’s a business reality.
 
Miyashita: we could use robots.txt, but the 100s or 1000s of other licensees—there’s no means for them to exclude; publishers would have to implement robots.txt, and then the stolen sites would be the prominent results.  (That’s … not exactly true in that the publishers could implement robots.txt just for images, and allow text to be indexed.  And then there is the DMCA.)
 
Aistars: many people we work with are individual authors. To the extent there are ways to aggregate and get value from works, whether monetary or data/interaction, those are positive things.
 
Sigall: has seen interesting things happen around accommodating multiplicity of uses, fair and unfair.  Videogames.  Valve’s Steam platform: starts from ground-up understanding of what customers and users and creators all understand about what you can and can’t do. They accept fair limits because the platform has been built that way.  Create norms around usage that are more meaningful, enforceable, and practical than if you looked to the Copyright Act to mediate the transaction.
 
Samuelson: the role of TPMs and anticircumvention. When I read §1201 submissions from GM and the Auto Alliance, they have concerns about battery life and warranties, not about infringement. In the internet of things, TPMs may become a new set of issues; fair use circumventions already happen every day. How will TPMs and anticircumvention evolve?
 
Sag: most TPMs don’t work. When they’re circumvented, often won’t give rise to liability, for courts following Chamberlain and Lexmark. Attempts to use TPMs to control aftermarket could be an antitrust violation if you buy a single-brand lock-in theory. Lots of moving parts, and then there’s whether the Copyright Office should be writing regulations.  (Um, the answer is clearly no: what business of the Office is it how long the battery of your car lasts?)
 
Sigall: there’s a role for TPMs to preserve the rights of copyright owners. Valve uses TPMs in a pretty significant way, but they’ve built it to be flexible.  Tech is deployed in a social and communal setting that determines whether or not the tech works; the legal architecture sits in the broader community.  If you do it right you diminsh the need for circumvention.  You will have abuse of tech, abuse of legal protection. Safety valves: the © Office rulemaking, which gives us information about what’s working and what’s not. Chamberlain and Skylink also showed courts willing to create exemptions that didn’t exist in the statute. Don’t paint too broad a brush: TPMs aren’t going to save copyright owners or destroy users.  (Just uses.)
 
Brauneis: in a networked world, when you can keep important parts of the works on a remote server, the use of TPMs is less important. 
 
Aistars: TPMs can reassure authors into supporting new formats. Problematic when used for printer cartridges and garage door openers; courts have been able to get it right.

Campbell conference: Judge Leval keynote

Keynote Address: The Honorable Pierre Leval
 
Earned a reversal rate of 67% in his significant fair use cases; at the cutting edge of law in the role of the salami.  Campbell: good framework for authors, without manacles on science.
 
The law before Campbell: with the exception of Story’s spare but well targeted caution in 1841 that fair use must not supersede the objects of the original, courts had failed to distinguish between infringement and fair use; decisions made largely from the gut. The notion that commercial uses were presumptively unfair plagued fair use analysis until blunted by Campbell.  He is also dubious whether Sony’s fair use analysis was correct at all—seems like an outlier.
 
Harper & Row emitted numerous distracting aphorisms. Repeated Sony’s pernicious declaration of hostility to commercial uses; asserted that quotation from unpublished works tends to negate fair use. If correct where there was a scoop of imminent publication, couldn’t be correct when it reveals facts the rightsholder tries to conceal—e.g., hypothetical correspondence between Nixon and Ford promising a pardon in return for agreement to resign.
 
There is need to test accuracy of factual works, allowing quotation. But that doesn’t mean you can copy wholesale from an earlier treatment of same subject just because it’s a factual topic—again contrary to Harper & Row. And finally, the Court erred in saying “fair use presupposes good faith and fair dealing,” in reference to the Nation’s scoop/unauthorized access.
 
Campbell brought an end to this bad piloting and aimless drift.  Undertook at last to explain fair use in terms of the goals of copyright: protection of author’s exclusive right to publish for profit while allowing for the enrichment of public understanding to advance new objectives or achieve new understandings so long as there isn’t too much interference with the author’s market. Most important: Campbell taught us not to look too hard for answers in the words of the statute, because Congress clearly did not intend to tell us what fair use was but rather to acknowledge the doctrine’s existence, leaving further development to the courts. Judges often feel insecure w/copyright cases and the doctrine is quite complex. Would have been better for Congress to say “fair use is not an infringement.”
 
Campbell reinforced Story’s insistence on superseding the object of the original, and rejected anti-commercial law. Negated/cast doubt on continuing validity of Nation’s good faith requirement. Cautioned courts in cases raising nonfrivolous fair use defenses to be hesitant to enjoin.
 
Asking: whether the copying pursues a different objective, and does it compete significantly with the original by offering itself as substitute in a market the law reserves to the copyright owner? These are intertwined questions. More divergence in objectives, less likely competition in original’s exclusive markets.  Substitution needs to be more than trivial.
 
Campbell’s touchstone is copyright’s touchstone. A © law without fair use would fail to satisfy copyright’s objectives. Coming just before the dawn of the internet, Campbell was prescient or just lucky in formulating a mode of analysis that could answer new questions arising in droves in the digital age.
 
How is Campbell doing? The view that complete unchanged copies can’t be fair use is arbitrary/incompatible with objectives of copyright. Would be disastrously limiting. Innumerable valuable functions are served by complete copies that don’t harm copyright owner’s market.  Only way to explain how bad L. Ron Hubbard was is to quote big chunks of his letters.
 
Internet: innumerable copies of the entirety; numerous well-reasoned decisions allow complete copies if the copying expands knowledge about the copied items—e.g., Kelly v. Arribasoft, where low resolution protects against substitutions  iParadigms: detecting plagiarism.  HathiTrust: tool for identifying and locating books that use a particular word/subject.
 
Another objection is that under Campbell, transformativeness may override the fourth factor. Courts need to determine whether the secondary work competes with a derivative work of the original.  These aren’t criticisms of Campbell but of misinterpretations thereof. Public benefit is important, but not at the expense of the fourth factor.  Campbell said so and remanded for factfinding on that point.  Lower courts may be speaking incautiously, or in the absence of a plausible argument based on derivative rights, when they discuss only the market for the original.
 
Vagueness and unpredictability: Predictability is a good thing, but bright line rules are likely to produce bad results in complicated situations.  Ultimate loser is the public, the primary intended beneficiary of copyright.  Injury occurs regardless of whether fair use is construed too broadly, deterring creation, or too narrowly. Any bright line test he’s seen suggestion would either place unreasonable restraints on creativity or diminish the rights of copyright owners. Hard to imagine a better test with more acceptable results.
 
Also doesn’t agree with unpredictability claim. Courts of appeals cases seem to have produced reasonable/predictable results.
 
Posner argues that instead we should look to complement/replacement relationship.  Complement: hammer & nails. Is the D’s work a complement?  Posner says book reviews are complements to books. If reviews depended on permission of publisher, public would distrust reviews. Thus, both sides benefit from the right to quote without permission, and consent to quote can be inferred from overall benefit of quotation rights to publishers.  Respectfully, nope. This may work fine for the book review example, but not other heartland examples.  (RT: I think it doesn’t work for book reviews—it assumes that book review readers know the law and take it into account in their credibility determinations, and that this is why publishers generally refrain from trying to license book reviews. That is implausible.)  Consider when secondary author is investigative reporter who quotes from unpublished works to reveal crimes, bigotry, corruption, etc.  There would not be general permission.  So too with parody.  Few authors are eager for ridicule.  Complementary formula would kill off many forms of fair use.
 
A futher problem: the word complementary perfectly describes classic derivative works. Novel to film or cartoon character to plush toy or translation of poem into another language. 
 
Overlap with derivative works right: it doesn’t follow from ambiguous language that transformativeness is inappropriate to signify the crux of the factor one inquiry.  Hasn’t heard a better word for that question: Is there a productive change?  The word derivative suffers from the same ambiguity.  “Transformative” was never intended as a full definition of fair use.
 
Congress wasn’t defining derivative works, but legislating in an older mode, using courts as partners by using a list of examples conveying the types of transformations Congress had in mind as derivative works, leaving courts to formulate a standard that would accomplish Congress’s goal. Campbell didn’t say much on this: only those markets that creators would in general develop.  That’s a limitation, not a scope: makes sense as a limitation preventing authors from enlarging the scope of their rights by making offers to license parody. But Campbell didn’t explore the territory covered by derivative right. 
 
Focus on nature and purpose of copyright can provide a helpful approach. © protects author’s manner of expression. Examples in statutory list are works that seek to re-communicate expression of original converted into different form or medium. The more the aim of the secondary copying is to communicate the original author’s manner of expression in changed form without commentary on it or providing information about it, the stronger the argument for classification as a derivative work. The more the new work undertakes to communicate attitudes or information about the work, the more it goes to fair. If you love it for the same reason—it re-presents original creation in a new form—then it’s derivative.
 
Few pronouncements more harmful to fair use than that fair use presupposes good faith and fair dealing.  Good faith requirement would undermine ©’s primary goal of enriching public knowledge, and have bad consequences for all. © is a commercial right given to stimulate creativity to benefit society at large.  Any right to suppress facts, ideas, fair use would be harmful.  User’s good or bad faith has no bearing on the copyright law’s goal. Shouldn’t matter if secondary author obtained copy by armed robbery: there are other remedies for that.  Good faith would also impose huge inefficiencies/uncertainties on everyone concerned. Fair use should generally be resolvable on the pleadings or at most on sj.  If moralistic evaluation of conduct is important, courts will frequently be unable to decide a case pretrial. SCt should finish the job and expressly disavow the Nation’s terrible statement.
 
Copyright and freedom of the press are uncomfortable bedfellows. © might have trouble being constitutional without express authorization; if too broad, still intolerable clash w/free press. Fair use is 1A’s agent within the framework of copyright, converting conflict into synergy.

Campbell conference: ethical and strategic issues in fair use litigation

Panel III. Ethical and Strategic Issues in Fair Use Litigation (Moderator, Professor Naeve)
 
Naeve: discuss ethics of parody, disparagement, use in pornographic work. Should you ask permission?
 
Lydia Loren, Lewis & Clark: for all its positive effects, she dislike Campbell’s characterization of fair use as an affirmative defense.  A defense is any reason D might prevail: work is in public domain; P isn’t the owner; I didn’t copy.  These may be pled as defenses, but an affirmative defense is a “yes but.” I infringed, but it’s ok. That really solidified in Campbell: only address fair use after the prima facie case has been met, putting burden on D.  But why?
 
D counsel conceded it was an affirmative defense at oral argument in Campbell.  Campbell cites Harper & Row, which calls it a defense many times but an affirmative defense only once. We teach it as affirmative defense, but it falls apart as such.  The statutory language does not support the characterization: §107 says fair use is “not an infringement.” §106 says the rights are subject to §§107-110; §501 says violations in the statute as provided §§106-122. Legislative history (cited by Harper & Row) speaks of fair use as part and parcel of the definition of the copyright owner’s right. And indeed the genesis of the doctrine is in Justice Story’s determination of whether there was infringement, not a separate fair use inquiry.
 
Courts should therefore stop putting lack of evidence as a reason why sj shouldn’t be granted. Instead it’s part of the scope of copyright owner’s rights.
 
Chris Buccafusco, Chicago-Kent: Why do people object to uses of their works? Fair use is supposed to provide a safety valve when those objections are not related to legally cognizable interests. Copyright is consequentialist, reserving some rights to authors and others to users/downstream creators.  But people create for lots of reasons, not just (or often) © incentives.
 
Dave Fagundes and I have started to look at why people object to copying.  Moral foundations: Harm rationales; unfairness/lack of reciprocity; purity; loyalty; authority.  Authors who object to “murdering their babies”: authority rationale; Scientologists; Christian sculptor upset by appearance of his sculpture in The Devil’s Advocate in a pagan/heathen context.  Can we learn by systematizing these reasons?
 
How well does fair use respond to diverse and heterogeneous moral concerns authors and owners have about use of their work? Which factors do the work of excluding noneconomic objections?  Is fair use doing a better job of constraining certain kinds of nonmarket objections than others?  Gotten pretty good at dealing with objections that are really just about control, like Scientology. Not as good with objections dealing w/ purity or fairness.
 
To what extent should fair use become even more psychologically realist? Fair use is a story of market harm, but creation has less to do with markets than copyright claims. If we start recognizing true creative motivations, do we need to recognize certain moral objections if they turn out to affect creative production?
 
Duncan Macfarlane, Macfarlane Law: Sync licenses versus cover rights.  Sync licenses are in practice moral rights: artists have turned down sync licenses simply because they didn’t want their music used in a particular way. Sync licenses are also often exclusive, so an artist must pick which project to go with.  Freeplay v. Maker litigation: using AV works without sync licenses.
 
Must copyright owner consider fair use before sending a takedown?  Lenz v. Universal: so obviously fair use that Universal shouldn’t have issued a takedown?  He doesn’t think so.  In his mind, she’s using the music as originally intended; her children are interacting w/ the music.  Not incidental and background, and anyway incidental and background doesn’t make it fair use.  Third factor doesn’t weigh one way or another (in 29 second film).  Regarding market effect: SCt said it wasn’t the single use, but whether unrestricted and widespread similar uses would negatively impact the market. YouTube has dramatically impacted the market; some of his client left the creative industries because they feel their work is too easily used.  He understands that YouTube is here to stay and fair use is here to stay.
 
Paul Heald, Illinois (w/Buccafusco): Study on parody, testing theories of tarnishment.  Test theory: in copyright, the existence of Madeline Does Dallas might lead to awkward questions during bedtime stories: used to justify term extension as well as the result in Air Pirates: strong sexual connections w/ a work harm it.  Testimony: we can’t have Mickey Mouse porn or Superman porn.  (Oh, do I have some news for those people.  Also, see the IMDB entry for this movie.)  TM: similar claims—brand associated with incompatible values or unpleasant images = less likely to buy.  Photos of the allegedly tarnishing uses themselves are “potent witnesses” even w/out other evidence of harm.
 
Summary of consumer psych research on sex in ads: sex generally increases brand recall; may have negative effect on brand perception depending on context; marginally positively influences purchasing decisions.  Baseline survey: late-night movies, eliciting opinions on pairs of movies, e.g., You’ve Got Mail/Sleepless in Seattle.  Then try to tarnish one movie and see whether you get different results.  (If you pair w/some other film before asking about the two, it doesn’t affect results so it’s not a reminder effect.)
 
Then tested You’ve Got She-Male and Bi-Tanic, then ten pairs later You’ve Got Mail and Sleepless in Seattle.  The claim is that mere knowledge of the tarnishing use is enough to lessen the value of the underlying mark.  We also asked would you like a T-shirt from movie A or B. Haven’t found a whole lot. Significant negative difference in whether they want a T-shirt with one movie, but exposure to tarnishing movie doesn’t move consumer preference between movies.
 
Next iteration: test movie title recall and desire to watch a sequel.  We do ask age, gender, religion, porn tolerance, movie watching frequency, politics (Amazon Turk folks are more likely porn tolerant and liberal). So far no demographic data has proved significant either.
 
Mark McKenna, presenting for William McGeveran, Minnesota: How do courts treat parody in TM? Parody is less relevant in TM than copyright.  Relevant doctrinal category isn’t parody, resulting in diminished importance of defining what a parody is. His takeaway: courts overwhelmingly protect the parody and declare it noninfringing, with overwhelmingly old exceptions, most predating Campbell.  TM law was in expansionist mode, but doctrine has settled back into a parody-protective stance. There’s a reason it’s been easier in TM: don’t present a direct conflict w/ the right—TM is not a right against mere use, but against use w/certain effects; © does protect against mere use.  Developing consensus around expressive uses/use of marks in expressive works, a set of doctrines prominently associated with Rogers v. Grimaldi.  (Older: nominative fair use or even using descriptive fair use.)
 
Problem is not w/decided cases and we should stop saying that it is. Please.  There are a few outliers, but as compared to any other doctrine, courts get it right. Real problem is at the C&D stage. Old cases have incredibly long legs, asserted in letters even now—Enjoy Cocaine, Balducci, Mutant of Omaha—8th Circuit is especially to blame. But even the 8th Circuit seems to be moving.  C&D are effective in part b/c of these older cases, but also trades on a narrative that McGeveran wants to help us avoid: lawyers too often repeat that there’s uncertainty about what will happen, making people reluctant to fight back. Courts get the right results, but often through unpredictable doctrinal categories/doctrines that require fact development and thus aren’t used early in the case.
 
Thus, we should focus on reforming procedural dimensions to fast-track certain dismissals. Embrace of Rogers is helping, since artistic relevance and explicit misleadingness can often be answered early in the case. Give confidence to people to tell TM owner to pound sand.
 
Mark Wittow, K & L Gates: What happens to people who can’t hire a lawyer but approach free legal clinics, like Washington Lawyers for the Arts and ArtistsTrust, Wayfind.  Sony v. Faulkner estate—people can sue for anything, even a single sentence, even though he’d previously have thought no one in their right mind would’ve sued over that. You always have to advise in the context of risk.  After Campbell: There’s no benefit/detriment to asking permission/skipping a request.  If what you’re doing is likely to stay under the radar/not make much money, don’t ask permission.
 
What about the non-brought cases such as Girl Talk?  Nobody’s willing to take him on for fear of making bad law; also he doesn’t make any money from his samples.
 
Attribution: people often want to know whether it’s helpful to attribute: he says it doesn’t help for © but is the right thing to do.
 
Loren: you need to plead a plausible claim of similarity.  If you stay pristine, can’t be 12(b)(6), which happens in the Brownmark case where the court of appeals says, do it on the pleadings under 12(c).  Has seen Iqbal interpreted to dismiss a fair use affirmative defense because there weren’t enough facts pled to make fair use plausible: ugh.  How do you prove lack of harm?  Innovative approaches, like HathiTrust, where they asked the Ps in interrogatories: state any harm.  Court points to the answer—we don’t have any—as evidence of no harm. If burden were on plaintiffs, we’d have to have a full harm debate. 
 
Preliminary injunction stage: shifts the burden to Ps. We see that in Perfect 10 v. Amazon: court excised a portion of the opinion saying that likely success inquiry should consider likelihood of overcoming fair use defense.  So this concept does have impact, especially in procedural aspects of the case.
 
Naeve: after Lenz and Brownmark, is there an affirmative obligation to do a fair use analysis?
 
Macfarlane: Lenz is undecided; the argument is that the burden should be on the copyright owner.  Google receives 10 million+ takedown notices/month.  Fair use would be a sword rather than a shield.  Unworkable.  (NB: attorneys’ fees eligibility already makes fair use a sword in some circumstances.)  DMCA contemplated that counternotification would be used to get a work back up promptly.  Proven to work. (RT: actually, counternotification requires the work to stay down for a number of days.)
 
Naeve: with Tiffany v. eBay, burden is on the TM owner.  Sometimes, is fair use so obvious that there should be an obligation?
 
Wittow: technical management problem. Sampling tech detects things automatically. Not really possibility of fair use analysis. But once there’s a fair use response, the action needs to shift and the veracity of initial notice is beside the point; there should be real proof it’s not fair use.
 
Loren: does the ISP have an obligation to consider fair use?  The © owner will never sue unless the ISP refused to take down.  The user won’t be able to sue, as long as ISP behaves according to DCMA.  That’s the point of §512; also user agreements make it hard to sue. Hard to construct a theory of liability for failure of ISP to consider fair use.
 
Naeve: how do you counsel clients on parody/satire?
 
McKenna: not even a strong distinction in Campbell; parody was just a paradigmatic example of transformativeness.  Maps well onto some uses and not others.  Transformative use means more than parody, and that’s a good thing as the dilution of this always unstable parody/satire distinction became more apparent.
 
Heald: Court was thinking about an old case in which Jack Benny skit was held liable for taking too much.
 
Buccafusco: some of our porn versions explicitly say “parody” or “a porn parody” on them and we don’t see any differences in results; some appear to poke fun at the original and others don’t, and again there doesn’t seem to be a difference.  Maybe viewing would make a difference, but the harm claim doesn’t depend on people viewing, just knowing about the parodic version.
 
Is/ought distinction: law need not adopt moral outrage.  Can stay committed to a brand of consequentialism that promotes creativity and preserves opportunities for sequential innovation.  First Amendment externalities.
 
Naeve: how do you counsel v. defamation?
 
Wittow: people have brought me defamation problems, mixed in w/copyright issues. Defamation is so much easier b/c the rules are pretty straightforward; it’s not that you can’t get a bad verdict, especially outside the US, but it’s easier—comparison highlights how much harder it is to advise someone on fair use.  Fact is a defense, opinion is a defense, and public figure changes the standard entirely.  It will be the unusual parody that isn’t opinion and isn’t about a public figure. Most people worry about defamation for no reason.
 
Buccafusco: speculates that for a lot of people, unauthorized uses that we think of as parodies feel like defamation to the authors—not opportunities for cultural exchange but individually felt harms—emotional, or other kinds of moral interests.
 
Heald: argues that we have moral rights functionally in US law, at least for music; fair use may be used to fight against that.
 
Said: falsity is a requirement for defamation.  When defamation is pled in such a way to object to something that isn’t squarely provable as false, it’s operating the same way as moral rights in copyright. (See why I’ve written that this makes dilution unconstitutional.)  But there’s a strong privilege protecting against abuse of right: fair use, and burden of showing falsity/actual malice for public figure.
 
Naeve: we do overlap with defamation, rights of publicity, TM.  You might have one creative work that intersects w/all these areas.
 
Hughes: What about the existing fame of You’ve Got Mail—what if it’s so powerful that the effect of You’ve Got She-Male doesn’t come through? 
 
Heald: in the next iteration we will be doing recall—ten titles you remember from the survey.  They won’t have any images in front of them.
 
Buccafusco: some of them have variation in the sample—but so far there don’t seem to be differences across comedies, children’s films, etc.
 
McKenna: the Q is whether there’s any effect on demand.  We seem to be mashing up a dilution effect on demand for the work v. demand for the mark.  There is some work on marks alone, which finds pretty much the same thing.