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
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
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
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
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

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
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
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 1984
story 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
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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