IPSC: Copyright again

Copyright History
Shyam Balganesh University of Pennsylvania Law School The Questionable Origins of the Copyright Infringement Analysis
Jerome Frank’s infamous/canonical © infringement test from Arnstein v. Porter, influential across the country. Step 1: actual copying, dissection allowed, expert testimony allowed, question of fact. Step 2: improper appropriation: was the taking enough to be wrongful?  Lay observer is the standard, subjective/intuitive; also a question of fact for the jury.  A new account based on Frank’s papers. By 1946, Frank had a developed judicial philosophy.  Had disdain for the jury in general; so why trust the jury here?
District court’s opinion seems to rub Frank the wrong way—complains about heavy workload and says he won’t analyze Arnstein’s remaining arguments.  The Second Circuit was at the time the most prominent court in the country—a lot of New Deal academics while the SCt lacked strong personalities.  The Arnstein panel was Frank; Learned Hand (who’d crafted the © infringement test up to then); and Charles Clark.  Clark is a civ pro legend.  Principal architect of FRCP, especially Rule 56 (summary judgment). 
Frank has a unique/outlying legal philosophy in Legal Realism.  Core ideas: (1) legal indeterminancy, rules don’t ever constrain; (2) hunches are more important than rules—judgments are rationalizations; (3) fact-skepticism: rights and rules are myths and everything depends on facts, but fact-finding can be manipulated, so there’s no point in talking about rules/rights; facts are subjective guesses because the process is flawed; lower courts are deluded and manipulative, finding facts to fit their chosen outcomes; hated summary judgment.  Compare to other Legal Realists who are rule-skeptics, not fact-skeptics. 
Arnstein comes from a New Deal feud: Frank and Clark disagreed about everything; personal and professional distaste.  Of 200 appeals they were on the same panel, in 58 one wrote a dissent.  Felix Frankfurter told Frank to be nicer to Clark. 
Practice: one week after oral argument, judges would not meet and could only exchange written memos.  Frank’s initial memo: listened to both compositions and thought there was a marked resemblance, and so did his secretary, “who improvises music.”  Don’t jeer this fellow out of court simply because he appears a little touched.  Newton was also odd.  No reference to summary judgment or copyright law.  Worried that Judge Caffey had not done his job.
Clark’s first memo: went and spent time with Professor Luther Noss, a Yale musician: really good musician = no doubt there’s nothing to this.  Dismayed at attack on summary judgment.
Frank was deeply offended by Clark’s “enlightened” view of procedure and SJ. He appears to have scribbled notes on the infringement standard, almost anticipating Clark’s response—what would eventually become the std.
Clark accuses Frank of sidestepping the “musical analysis” altogether—but Frank never returns to the musical issue itself. Never articulate their disagreement on that.
Frank accuses Clark of secretly calling in an expert witness, an irregularity that shouldn’t make its way into the opinion.
Hand finally weighs in. Troubled by the case.  Initially assigned it to himself, but then agreed with Frank and gave it to him.  His ear detected some resemblance, but has no doubt that jury would not find infringement. Our country loves litigation, so let this go forward and let the black arts be practiced.
Two of them never give up on Arnstein in later exchanges.  Frank basically admits he was testing a musical hunch, not prejudging the case.  Hunches weren’t bad things unless rationalized ex post. 
Frank hid behind Hand’s copyright expertise; badly put together research memo.  Clark: the cases you cite show how hard you must grub for not even a faint suggestion of what you have done.  Five days later, Frank was willing to sign off on Heim, where they granted SJ on lack of substantial similarity. 
Put in place his philosophy of deep fact skepticism: trial courts would fudge the facts. Needed a mechanism that would take the entire logic of infringement away from the judge.  Some decisions could not be rationalized and reasoned, and one of them is music.  Treating copying as a question of fact separate from improper appropriation: Only way to keep an expert report on improper appropriation out, and test the hunch.  He knew no expert would let this get past summary judgment.  Arnstein was in the image of Frank’s fact skepticism and we still live with it despite the death of the distrust of district judges.
Copyright & Other IP [the ‘sorry, we are not even trying any more’ panel]
Christina Mulligan Brooklyn Law School
Killing Copyright
Digital world makes reproduction right, previously central to copyright but not implicated by every act of experiencing the work, work differently. Makes selling a digital work difficult w/out a license, unless we get rid of RAM copy doctrine—even then, backing up or switching devices creates issues forcing us into licensure. 
General critiques of boilerplate contracts; increased transaction costs of idiosyncratic licenses.  Need a workable legal system default rule allowing people to buy a digital work and use it in a reasonable way.  Consumer expectations should generally line up with law: a good in itself and encourages respect for law.
Would eliminate reproduction right and create distribution, performance, and display rights.  Would be private and public performance/display.  Revised 109(a): owner of a particular lawfully distributed copy can sell or otherwise transfer the possession of a copy and also the right to privately perform and privately display the copyright work.  Downloader of unauthorized copy would infringe by privately performing, though not by mere reproduction.  Could sell Kindle book and not be liable if you never read the book again.
Would doing this retroactively be a taking? It’s a rejiggering of the rights—regulatory, giving rights and getting rights, could be more valuable.  There are also problems with Berne, which requires a reproduction right, so you’d have to say this was the same result—but really there are Berne problems.  The wheels are coming off the bus of ©’s conceptual framework. Even though this proposal isn’t likely to be enacted, we should recognize that moments of value extraction are important and not reproductions.
Q: Originally © only had a right to vend, not reproduction.  Could use history to help.
Pam Samuelson: Also true of Berne for a long time.  National Academies 1999 digital dilemma report—computer scientists said repro. rt shouldn’t be focus.
Q: Does this destroy the ability to price discriminate?  Or do you still have the ability to lease software.  If so, wouldn’t that put more pressure to lease music/movies.
A: intentionally designed to be allowed to flex minimally/maximally.  License for a company’s workers is different from one digital work.
Matt Sag: maybe you want to say © is already killed.
RT: When I buy a Kindle book am I an owner of a copy?  Why would you need to delete/not read the Kindle book again under this language?
A: could have rules not allowing certain transactions to be characterized as “licenses.” Neutral as to that.  Some back and forth around the proposed language; she wants to have a rule where if you transfer one of the many copies you (as owner of legitimate copy) are allowed to make, then you lose your right of private display/performance of the other copies, but can transfer that right along with the copy you transfer.  Language as drafted doesn’t currently say that, but it could.
Aaron Perzanowski Case Western Reserve University
“Buy Now” and Other Lies
When we buy a Kindle book we get something different from a hardcover, but most consumers don’t understand that distinction in a particularly sophisticated way.  1984 story: Amazon remotely deletes book from 1000s of people’s devices. You wake up no longer owning a copy—a bit ironic.
Why does this matter?  Apple and Amazon use phrases like “buy now” and “Own it in HD!”  That may be deceptive: statement that consumers interpret in a way that isn’t true and that changes consumers’ behavior. 
Broader concern: shift in our relationship to the idea of ownership.  (Cf. the cars that automatically turn themselves off if you miss a lease payment.)  We need to have a conversation about what ownership means, rather than having a subtle and slow redefinition of what ownership means.
Surveying in attempt to find out how consumers understand this language. 1000 person panel. Looking for people in market for digital goods; presented with fake product page offering eBook using “buy now,” with tiny print link to terms of use.  Another group sees a physical product with “buy now,” and third variation is eBook that says something else.  Struggled with what that should be—needed to be more precise than ToS.  Ended up with “license now.”
Then we ask what they think they can do with the thing they just bought.  Lend it to friend, sell it, leave it to someone in a will, use on a device of your choice.  All things consumers might associate with the idea of ownership.  Then ask about materiality: how much they care about ability to lend, sale, transfer by will. 
Buccafusco: how are you recruiting subjects?
A: qualtrix panel; demographics we care about—nationally representative in age, gender, income. Screened based on questions on purchase/intent to purchase these kinds of goods.  Average Amazon shopper.  Telling them it’s a survey about media.
Q: License now—will people see this as legalistic/not like it?
A: that’s the response they should have! They don’t know what it means and that very realization is important.
Q: what about “access now”?  Also, people can lend things by handing over a Kindle or by sending a digital copy.  You may want to get at that difference by having different versions of the question.
A: “access” is an interesting option, but we wanted some indication that you are paying for what you obtain.  Apple has made some changes on its app buttons.  Apple used to say “free,” then “free+” for in-app purchases. Then maybe someone at the FTC had a conversation: it moved to “get.”  “Get” and “access” suggest no payment at this point.
Q: is order of questions randomized?
A: Believes so.
Q: are there questions checking comprehension/attention?  50% were not paying attention in his bad experience w/them.
A: They are including check questions and we are not paying for people who flunk; they are also excluding people who fill in the questions in less than 1/3 of the average time.
Q: Amazon experience has been such a big part of people’s experiences for so long—is that an issue?
A: you want this to replicate real world experiences as much as possible, so that’s not necessarily bad.  But enough people have heard the 1984story that they could be influenced. We don’t just want an Amazon survey.
Sag: ownership is elastic—you may own a concert ticket, but “no reentry” is a common feature. Our expectations may depend on context.  Are you looking for the physical/digital dislocation?  Do you think everyone’s beliefs will be different in 10 years.
A: I expect a shift over time, but not clear which way it will go or how long people will remain confused/deceived, which could lead us to different kinds of interventions.
RT: Mortgages: lien theory/title theory states; in title theory states the mortgagor is not the legal owner of her own house, but there’s been a modern convergence of treatment in the states—turns out that practical realities of ownership may override legal distinctions in terms of how courts will consider equitable treatment. Title theory states have used trust theories to reach these outcomes.  Concept of property being held in trust as useful?  Similar to consumer protection rationale but also has a property basis.
Edward Lee IIT Chicago-Kent College of Law
Music Fair Use
Fair use originated in text/literary works.  Blurred Lines verdict rekindled his interest in why we don’t see fair use in music cases that often.  Blurred Lines: Transposed to be in A major but actually G major—argument for transformative use?
Why so rare?  Defendants prevail on other issues?  Forgo fair use because it’s not part of music industry practice?  It’s a losing argument?  He doesn’t think there’s precedent that bars it (see also Campbell).
Found just 4 fair use defenses: 3 parodies: Campbell, Bourne v. 20th Cent. Fox, Fisher v. Dees, and one non-parody, Bridgeport v. UMG (6th Cir. 2009) (no fair use of George Clinton’s Atomic Dog).  Will be looking for more—all musical work cases under the 1976 Act.  Trying to figure out their characteristics; also trying to identify cases in which fair use is raised but fails.
Q: when defense is no copying, fair use would be inconsistent.  No access is now harder to argue, which may encourage more fair use defenses.
Kristelia Garcia: Music folks think that there’s no such thing as fair use, only lack of substantial similarity which does the work of fair use.
A: but isn’t that fascinating?  §107 doesn’t exclude musical works.  Maybe it’s hard to have fair use in architectural works. What’s the explanation?  Fair use doesn’t do the same work as substantial similarity.
Q: Agrees w/Garcia about what the music industry does in demand letters. Very effective to end discussion of fair use.  [But that would’ve been true of many fields for a while—other types of parodies etc.  Why has this industry proved so resistant to change?]
Buccafusco: The option of adding authorship credit/negotiating to that result in music makes it easier to reach agreement than in cases like Prince v. Cariou.  Selection effects/outliers in litigation.  Hard to say anything meaningful about outliers. 
Samuelson: Dancing Baby case—user generated content cases involve fair use of music.  Fair use does quite a bit of work.  MP3.com made a fair use defense on behalf of its users, as did RIAA v. Diamond Multimedia.  If you’re going to say those cases don’t count, then you have to narrow your discussion—even Napster involved fair use claims.  Zomba karaoke case should be in there.
A: I think those cases make this pattern more surprising.  The industry just doesn’t believe in fair use.  [See also their comments in the PTO/NTIA Green Paper discussion, saying just that.]
Roberta Kwall: early section on even anecdotal evidence of music industry norms would help/provide counterpoint to data.
Rosenblatt: (1) may have more difficulty assessing transformativeness when you have no idea what the first work means; (2) situations in which fair use is likely to come up are just less likely to be lawsuits b/c in many musical cultures quotations and recontextualization of musical/harmonic elements is celebrated and accepted; (3) changing genre using the cover right simply isn’t actionable, but we might get fair use out of custom arrangements.
District court cases: Abilene Music, Inc. v. Sony Music Entertainment, Inc., 320 F.Supp.2d 84 (SDNY 2003) (It’s a Wonderful World); Henley v. DeVore, 733 F.Supp.2d 1144 (C.D. Cal. 2010) (All She Wants To Do Is Dance).  Pre-1978: Berlin v. E.C. Pub’g, 329 F.2d 541 (2d Cir. 1964); Elsmere Music, Inc. v. National Broad. Co., 482 F. Supp. 741 (S.D.N.Y.).
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