IPSC, Copyright Theory II

Copyright Theory II 
Brad Greenberg Columbia Law School
Bizarro Copyright
Does having lots of different antennas in one place v. all
over the place make a difference to whether there is public performance?
Central question of Aereo: looks like
cable, must be cable.  Aereo follows a long line of cases about
new tech asking whether judges should look inside the machine or just look at
the inputs and outputs.  The case is thus
fairly ordinary.  Why it matters:
constanct conflicts over behavioral perspective (majority) or technological/structural
perspective (dissent).  Who should decide
how © touches new tech: the answer is determined by behavioral v. structural
perspective.  Statutory signals theory
applied in Aereo and Google Book
Napster and Grokster: different tech, same
result.  Goes back at least to White-Smith Music; also occurred in video
game cases. Majority position in White-Smith
is structural: absent machine, piano roll is unintelligible.  Dissent takes behavioral perspective: no
reason to decouple roll from machine; makes a sound that sounds like the song.
Structural perspective: narrower rights and narrower
limits.  Behavioral: broader rights and
broader limitations, like fair use.
Who should decide? Congress has increasingly punted on
tailoring © to new tech. Presumptively, courts and CO articulate limitations.
Two key features of 1976 signal congressional deference: tech neutrality and
standards over rules.  Tech neutral: §101,
102, 106 exclusive rights.  Tech specific:
§108, 111, 115-119, 122.  The choice of
provisions is important signal for how © should be applied by future courts—behavioral
or structural.
Google Books: outcome would be different if it were a full
digital library, not just snippets, and so it should be. Fair use is tech
neutral and flexible. Behavioral is the right perspective because §106 rights
are tech-neutral.  Even if the cable
analogy is wrong, it’s likely that it doesn’t matter b/c the court had to find
some way to shoehorn its decision into §106.
Counterargument: Congress has tinkered plenty w/satellite
tech, compulsory license, etc. That’s true, and when you ask about §119 etc.
you probably do need a structural inquiry/ask about Congress’ particular
mindset, but for now everything else falls under §106 by default.
Christina Mulligan: If Aereo is rightly decided, is the RAM
copy doctrine wrong?
A: It should be wrong, but it’s probably not b/c Congress
did tinker w/§117 in response.  First
sale is a similar issue. 
Jake Linford: One way to read Aereo is just Breyer as Cong. intent
and Scalia as text—isn’t this the same dumb point that isn’t really about ©?
A: would make the same argument regardless.  Second Circuit was much more about behavior
v. structure.
Q: Ambiguity in question of who should decide.  What has Congress done? Who ought to be
deciding various parts of the © system?
A: taking an imperfect world—judges regularly look to
statute for answers.  Judges often choose
a perspective w/o explaining why or even saying that they are. Maybe Congress
isn’t the best source of innovation policy, but it’s what we’ve got.
Peter DiCola: White-Smith
isn’t as clean as that either. The president had weighed in publicly; there
were already negotiations in Congress.  I’ve
interpreted that case as being about the Court pushing the parties to bargain;
composers weren’t coming to the table and were being punished for bad behavior
in licensing only one company.  1976:
§106(4) and 106(6) are tech-specific and Congress did decide to do it that
way.  They’re broad in rights and narrow
in most exceptions—which signal is Congress giving? It will always be mixed.
A: see those as tethered to tech mindset of Congress—intent to
be tech neutral to the extent that something can be publicly performed (?)
regardless of whether tech was known in 1976.
Sag: number of aerials didn’t matter in Aereo. What mattered
was interposition of lots of copies (even though that wasn’t before the Court).
A: Aereo is a tough example b/c so many people don’t like
it, but that still shows his point.
RT: Behavior: is that right? 
B/c I think you mean audience reception. Connects Aereo to Tasini, a connection made by the Court itself.
Connected to what you mean by tech neutrality. Both parties claimed the mantle
of tech neutrality.  Neutrality means
different things to different people, as in equal protection.
Kevin Hickey, University of California, Berkeley, School of
Law, Center for Law & Technology
Paternalism in Copyright
Aims: explore tension between incentive model of © and its
paternalistic provisions; envision legal structure of © if we took
paternalistic impulse seriously—a thought experiment, not a normative
What do we mean by paternalism? State limits choices of
individuals to protect them from consequences of their own decisions. Nothing
inherently wrong with intervention.
Soft paternalism tends to fail for the very reasons that
motivated the regulation in the first instance. 
(RT: And the existence of entities motivated to make it fail, pace Lauren Willis!)
Potential behavioral market failures: creation stage
(intrinsic motivation; judgment under uncertainty—© as distant, uncertain,
indirect incentive, but contrary to that are lottery effects).  Also assignment stage: bounded
willpower/short-sightedness; social preferences for “fair” allocations v. the
endowment effect.
Paternalism in ©: termination rights; elimination of formalities;
limitations on alienability (writing requirement); moral rights. Due to lack of
bargaining power, short-sightedness, poverty, uncertain valuation.
Tension between incentive model with its rational actors and
paternalistic provisions; rational actors respond to 20 additional years of
protection after life +50, but paternalistic provision supposes an author
incapable of protecting her own interest, making bad deals—if those bad deals
are made, then the prospect of future rewards wasn’t driving creation in the
first place.
Normative and policy implications: current hybrid model
risks costs of moral rights like system without the benefits. Social costs of
expansive, default © through eliminating formalities.  Fails in curing perceived unfairness and
actually securing a piece of the profits for the author. Existing author
protections are weak and ineffective for the vast majority of authors (whose
rights aren’t that valuable 35 years later). 
Writing requirement might help a bit, but it just means they sign away
rights for a pittance instead of orally granting them for a pittance. 
Taken seriously, we’d either eliminate paternalistic
provisions and reintroduce formalities, or do more in the way of author
protection such as EU-style voidable terms, mandated fair compensation;
incentives would focus on present-time, direct, certain outcomes.
Betsy Rosenblatt: how much is paternalism v. market
uncertainty/accounting for an unknown future? 
Formalities are value-neutral; others are harder to chalk up to that.
A: often given as justification for termination, but
publishers are also subject to uncertainty; transferring risk to publishers may
make sense given publishers’ portfolio. 
Regardless whether it’s short sighted or difficulty in valuing, it’s
paternalistic in operation. 
RT: What if it doesn’t matter what the law is? Abraham
Drassinower & Jessica Silbey: if all you’re about is incentives, then there’s
really just one entity, TM/©/patent/IP. 
Also Laura J. Murray, S. Tina Piper, & Kirsty Robertson, Putting
Intellectual Property in Its Place: Rights Discourses, Creative Labor, and the
Everyday: Rather than listening to experts, “people actually choose to understand the law through
information and opinion gathered from friends, strangers, coworkers, and the
media.” If you gave up on people understanding the law, at least at the point
of creation, then you could essentially ignore the creation stage in terms of
making authors better off.  You’d be led
to focus on the assignment or commercialization stage.
A: thinks the law matters. 
(But I think you can’t have that as the assumption for this project.)  Would also be led to think about access to
lawyers as well.  (Again, that’d be after
creation, which has implications for which provisions would work to help
Sag: Add in compulsory remuneration.  How is this different to distributional
concerns in ©?
Q: difference b/t irrational and uninformed.  (Hmm, not sure that’s true. Chicago school
people would disagree b/c the choice to become informed is itself a cost that
people choose to bear or not bear.)  In
formalities, formalities limit my freedom. 
Creators wouldn’t understand that they needed to give notice. There’s a
nonpaternalistic explanation in terms of market structure.  (?  But
notice requirements are useful in forcing information so that markets can more
easily form.)
A: There is evidence that termination rights exist to
protect the impecunious/irresponsible author. 
These are fairly weak default rules; if we are serious we’d want
something stronger.   Push back on
formalities elimination as nonpaternalistic. Depends on whether your baseline
is © as natural right or statutory right. 
Elimination does depend on conception of authors as careless.
Q: Keep an eye on the context of the time: eliminating
formalities was also about joining Berne. 
(Which pushes the issue back to a different entity: why were formalities
eliminated from Berne? Answer may well be that it wasn’t paternalistic but
based on authors’ rights view, a kind of romanticism—but consider that
elevating authors as more important than other kinds of people and thus giving
them special rights is just the flip side of paternalism, as the sexism
inherent in the term indicates—putting on a pedestal = putting in a cage in
many ways.)
VARA allows for waiver, but not transfer.  That may hurt authors.
Margot Kaminski & Guy Rub, Ohio State University College
of Law
Zoom-in Zoom-out of Copyright
Outcome of cases/scope of copyright protection is determined
by court’s point of reference. If you evaluate a small unit (God’s finger touching
Adam’s in the Sistine Chapel), you give strong copyright protection/shrink the
public domain.  You get lots of different
IP rights/transaction costs.  If you zoom
way out (the whole ceiling) you frustrate other interests by weakening ©, and
maybe unfairly punish people who create complex works.
Natural tendency of © in US is that © owners argue for
zooming in as much as possible for statutory damages/fair use, but only up to
the point of invalidity.  Statutory
framework: the word “work” is not defined. After formalities were limited,
authors can do whatever they want at the point of claiming infringement, and
registration is a huge mess for these purposes.
Our work is about zooming as a framing decision that judges
or regulators or legislators make. It’s not about defining a work.  Judicial framing move takes place across
doctrines.  Initial findings: courts
often set level of zooming without noticing the issue; if noticed, do it
without principled reasoning; if do reason, adopt different tests across and even
within doctrines.
Example: statutory damages. 
Factors: independent economic value; can each TV episode be consumed
separately; was each episode produced separately; registration as an additional
factor. W/two albums, 2d Cir. rejected independent economic value test because
(1) statutory text says one compilation is one statutory damages award; (2) ©
owner decided to bundle the songs together. 
Under Arista Records, SDNY 2010, court says that if, before
infringement, the copyright owner offers an unbundled product, zooming in is
appropriate.  (Of course even before
iTunes there was sample licensing for individual songs, so there was “unbundling”
of a sort even w/in songs since the 1990s at least.)

Registration to the rescue? Author expressing intent through registration
system; cost of registration at least helps. 
But it doesn’t work because it has its own zoom problem. 9th
Cir. found that registration of database of stock photos registers every photo;
SDNY has found to the contrary. Having the DB registration reach individual works
w/o having to list indiv. works eliminates the utility of registration and don’t
have transaction costs identifying each work as a work. 
New Copyright Office compendium: (1) registration policy
sometimes conflicts w/statutory damages approach—allows author to register one
CD as unit of registration, which reaches each individual song. That’s the
opposite of the result in the courts. (2) registration policy is calibrated
against statutory damages!  CO sets
policy as a result of what CO thinks result would be in statutory damages
case.  CO assumes that unpublished works
should be registered as individual works, not compilation, b/c it wants to
preserve statutory damages.
There are multiple inconsistent tests where they exist.  Four factor fair use test also has zooming
problems: factor three amount (factor four also has a zooming problem).  Photocopying cases show this: Williams &
Wilkins looked at all the magazines; Texaco looked at each article and was the
only one that engaged in reasoning; Princeton Univ. Press looked at each
article; Cambridge Univ. Press v. Patton zoomed out & thought the issue was
raised too late.
Zooming and substantial similarity: total concept and feel
of rugs in 2d Cir.; Calabresi wants zoom in to make sure that public domain
works are discounted.
Zooming and authorship: Garcia v. Google.  Majority says: this is one work.  If so, she’s not a joint author.  Kozinski fights the zooming and looks at 5
seconds as relevant reference point. 
Maybe she can be the author of that. 
(I think it’s worse than that—it’s not the 5 seconds but the performance
in that 5 seconds.) 
Also finds zooming in other areas: Notice; revision of
collective work; separability with PGS works; etc.
Questions: other areas of IP law where this happens?  Scope of project—descriptive v.
presecriptive?  Judges versus regulators
v. legislatures?
Q: some of these questions are more about sets than zooming
in and out.
Andrew Gilden: is this an evidentiary q—how to courts prove
their conclusions?  But if it’s more a
conceptual issue, then looking at briefs in the cases might help.
Ramsey: songs in an album are easier to count than
characters in a book—there might be a bunch of ways to count in a book.  [I’d also note, as above, that chunks of a
song can be counted in particular contexts, such as ringtones and sampling.]
Sag: some approaches have no limiting principle—turtles all
the way down. Those approaches are probably wrong.
A: we can probably agree that Garcia’s position won’t work.
Q: market effect in fair use, definition of nascent markets—it
also occurs.  Choosing which it is pervades
© generally.
Q: if you take the 2d Cir. approach, I have serious issues
with newspapers/photo collections. You just couldn’t register at an acceptable
cost.  But newspapers will license
individual articles.
Niva Elkin-Koren, Haifa Center for Law & Technology,
& Orit Fischman-Afori, The Haim Striks School of Law, College of Management
Academic Studies
Rulifying Fair Use 
Presented by Fischman-Afori. 
The trigger was the Cambridge Univ. Press case, a rule against fair use
rulification.  Fair use is a standard;
can courts develop the standard into more concrete guidelines? 

Their position: rules/standards is a spectrum, not a dichotomy. Fair use was
not meant to foreclose evolution into more concrete guidelines. Rulification
can serve copyright goals. Courts should do more rulifying and the 11th
Cir. is wrong. Ancillary rules to assist the court—does fair use prohibit any
such ancillary rules or is it a mandatory rule against rulification?  Designed as a permissive standard.  Lower courts have allowed some rulification,
with Cambridge Univ. Press being the big (and bad) exception.
Advantages: avoid uncertainty creating a chilling effect;
allows both flexibility and certainty.  You
can have your cake and eat it too because rules/standards are a spectrum.  Transparency: avoid manipulation of the fair
use four-factor analysis. Rulification may force judges to fully disclose
underlying analysis.
Q: Appellate court in Cambridge Univ. Press was concerned w/
10% being pulled of thin air; we have more rulification than you suggest.  Timeshifting = fair use is also a rule.  Transformativeness is also quickly becoming a
rule of its own—Neil Netanel’s work.
Q: SCt doesn’t say every parody is fair use.  DCt went much further than any previous
court.  Safe harbor = not the same as a
A: our paper does address difference b/t common law style
rulification and safe harbors. We should check what the rules are. There are
75% safe harbors, etc. 
Sag: doesn’t think categories are the same as rules—reverse engineering,
genuine parodies, digitizing library to make a search index—but maybe we’re
just debating terminology.  Clear
categories do provide guidance.  10% rule
also, but that’s subject to gaming, so there’s a huge difference.  If we could rulify fair use we wouldn’t need
fair use.

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