Copyright Theory III
Abraham Bell, Bar Ilan University
The Dual-Grant Theory of Fair Use
Granted rights are limited in order to avoid unnecessarily exceeding the requirements for incentivizing. Fair use is a broad reservation of privileges for the public during the term of protection. Maximizing incentives with broad rights, but also broad privileges—alternative would be fewer rights or more limited times.
Protected uses have widespread, nonpecuniary follow-on benefits. Privilege focuses on non-“use” utility, meaning indirect benefit—not the person using the © expression who receives utility but other parties beyond this user. The idea is not that there are transaction cost problems, though there might be such problems, but that there’s no reason to include this in the grant of rights in the first place. Fair use is an allocational tool.
Proposed two-step test: (1) is this a presumptively fair use? (2) would recognizing this category of use as fair for this work eliminate incentives to create this work? Less fact intensive inquiry. Parodies v. satires—cases are almost entirely wrong. A work satirized in order to create political commentary, such as Cat NOT in the Hat, that’s a perfect fair use. Transformativeness isn’t the issue.
Factors one and three deal with presumptively fair use: nature and purpose; can you accomplish your goal with the amount of the portion used/a good faith test. Preserving incentives: factors two and four.
Lunney: Preserving incentives or preserving creation?
A: We want to cut back on incentives.
Q: how general do you want the second inquiry to be? If Texaco does this, will it drive the publishers out of business? Or if everyone does what Texaco is doing? SCt favors the latter approach and I think you must too.
A: we are asking this type of use, but for this work, not for all works. [But that work has already been created.] This catgory of works?
Christopher Buccafusco, IIT Chicago-Kent College of Law/Benjamin N. Cardozo School of Law
A Theory of Copyright Authorship
Relationship between a person we call an author and an entity we call a work/writing. What is the scope of Congress’s power? What aspects of works can qualify for copyright protection? Related questions.
Statutory works of authorship are a smaller set than “writings of authors” under the Constitution. What do authors do? Express ideas? What’s the idea in a piece of classical music or photo? What’s the idea in a taxonomy or computer program? This approach is a massive failure, see Mannion. Application of §102(b) has been incoherent; idea of unconstrained choice has not been helpful.
Authorship entails the intentional production of mental effects in an audience; a writing is any medium capable of producing mental effects. Copyright can attach to any fixed object that expresses this.
Semantic intentions: what does the work mean? Is it a satire? Categorical intention: the thing the author has written is a poem and not a laundry list—the kind of thing she has created. We need not care about semantic intentions for categorical issue of protectability. Did the author intend to create some aspects of the thing to create mental effects in an audience? If yes, those aspects are “authorship” and can be copyrighted if appropriate.
Caretesian duality: paintings, novels, pohotos, music, all create mental effects, produce thoughts, feelings, emotions. Copyright: mind/brain. Patent = rest of the world. This language is preferable to expressing ideas, b/c not all works express ideas/have semantic content. Idea/expression is too rationalist.
Manner or form: © attaches to the manner or form by which the author produces mental effects, not to the effect itself. Authors select, arrange, and combine formal elements like line, color, notes, words. The manner or form constitutes authorship. Protectable if original, creative, and fixed; §102(b) drops out/is unnecessary. Don’t have to figure out what a taxonomy is or what a dance is.
“Writings” is significantly broader than has been appreciated: gardens, cuisine, yoga, tactile medium—creating experiences for others that authors expect to have influence on others. (Paths through the world/order of walking through a museum, as long as fixed in written path?) Potential aspects of authorship. But this does not mean that these things are or have to be protected in the current © system—still potentially outside the statutory works of authorship. But things could change. If 3D printed food becomes a problem and threatens to drive chefs out of business, we could figure out a way to deal with that, but not if we decide they aren’t authorship.
Also helps us understand what aspects of a given work are protectable. Only certain aspects count. Everything else must be filtered out. If it doesn’t create mental effects in audience, it’s not authorship. Find aspects of the work intended to create mental effects in the audience; those constitute authorship, not manner or form choices choices made for purposes of convenience, interoperability, etc. This obviates need to resort to 102(b). Photos: Which of photographer’s choices are minimally creative. Same with taxonomies: is there some aspect of the manner or form in which these things were arranged that the author intended us to experience something about them? Software: also limits.
Dan Burk: you have to deal with operating systems, and personal diaries locked in a drawer.
A: add on: if they were perceived. If MS-DOS was intended to produce some effect, then ok.
Lemley: doesn’t find that satisfactory. The point of the code is not to induce a mental state in anyone. You can only get © for software under your view is high level gestalt, not low level code.
A: might not protect anything in code. Not a programmer.
RT: Your standard reminds me of Chicago: “I guess you could say we broke up because of artistic differences. He saw himself as alive. And I saw him dead.” Or maybe Se7en. Lots of acts are intended to create effects in an audience, like racially motivated killings. Seems to be a reframing of the speech/conduct distinction in First Amendment law—there, it tends not to solve the problem it is offered to solve. For example, Duchamp’s toilet: fixed, and intended to create mental effects, but copyrightable?
A: may not make differences in easy cases where it’s clearly authorship. [I don’t believe there is consensus in this room of © scholars about whether it is an easy case that Duchamp is an author.] Duchamp got a thing and presented it in such away, unambiguously to create mental effects—clears the © hurdle; we then have to ask harder questions about originality and creativity. My inquiry isolates other stuff that was getting in the way.
Dan Burk, University of California, Irvine, School of Law
Copyright and the Cybernetic Circuit
Legacy assumptions of ©: romantic author, original genius, classical narrative. A classical narrative has: plot, chronology, setting, sequential events, causality, characters, point of view. The paradigm case for © is text. But we find it in AV works as well.
Then you get to computer games and other types of digital media. Ted Friedman wrote an influential piece: no real characters/protagonists in SimCity and Civilization—you end up identifying with cognitive maps. Whole new type of work. Has narrative but not in the way we used to think about it. Cybernetic circuit: player, system, and content: something emerges in storytelling from that interaction.
Reader-response theory: reinterpretation/reimagination. Hands-on: you’re creating new storylines, characters, outcomes as you go along. Reader is now co-creator with developer of content but also with the technical system in something like Donna Haraway’s cyborg.
Friedman had huge effect on analysis of new media: hypertext, DVDs—once skip/fast forward is in viewer’s hands, DVD becomes cybernetic circuit that’s not the director’s cut/what the director intended.
Can help us think about a number of cases: Duke Nukem in 3D/MicroStar v. Formgen: video game architecture—library of images; game engine; map files that were instructions to game engine of when and where to place items from the library. Developer encouraged users to develop extra levels of the game—new MAP files. Someone copied a bunch and sold them on a disc, and developer didn’t like that. MAP files don’t on their face have any content that belongs to the game developer, and weren’t written by game developer. Kozinski said they were derivative works—which takes a lot of hoop-jumping. They’re somehow sequels to the game—new stories about Duke Nukem. But that’s a weird characterization; there’s no content there, just code that specifies where the content goes. Potential narratives. Games don’t play themselves—they only become stories in the context of a technical system and a player generating an output. More sensible way to think about it than Kozinski used.
ClearPlay—easier to think about with this approach. Useful work in narratology that helps us think about digital works in ways we haven’t before.
Is this reductionist in breaking down works too far? Unstable texts: dynamically generated content. Multiple versions, drafts continually stored in computer’s memory—where does © attach?
RT: Vanity of vanities, all is vanity: Not a distinctly digital problem. Kozinksi’s dissent in Garcia asks what about the dailies of nondigital film—when is that chunk of film a work? DVD skip v. a book that falls open to the most-reread passage. Is this just an effect of RAM copies that © even cares about this? How should we think differently in ClearPlay?
A: True, it’s been true all along but less salient.
Buccafusco: it’s all about authorship. Who is the author in video games? (Is there a game in this class?) Rethink what people are doing that might constitute protectable authorship.
A: Players are contesting this question now, though contracts purport to give developer complete control. Not the romantic author but the collaborative genius.
Lunney: why is authorship the right source of insight here? If it’s a matter of who gets the spoils from the entertainment, should it just be allocation of rights?
A: Authorship isn’t the only place to push down on this.
Kwall: is authenticity applicable here? Economic rights v. moral rights.
A: rereading Walter Benjamin because of that. It’s a political decision. Authenticity has a particular connection to the romantic author he’s not sure works here. May need a radically different notion of authenticity—maybe we can’t say “This is Blizzard’s game,” or maybe it goes by the wayside in some cases.
Mike Carroll: How important is narrative to the question: if we treat reader as perfomer or performer as athlete? Dancers perform choreography; players carry out sports play; Twitch asks what makes them different. Sport contest is a kind of story, but doesn’t fit as neatly into your explanation of narrative.
A: What Friedman is saying is that there are other nontraditional kinds of narrative, and the way we have baked in narrative into copyright may be wrong; revisiting sports performances might be one consequence of rethinking.
Thomas Byron, Boston University
A la recherche du sens perdu: Deconstructing the Creativity Standard in Copyright
Rutgers researchers wrote a program to take in images and algorithm measures originality/novelty historically, can determine what’s creative. Used 62,000 pieces of art from Renaissance to modern times. Mondrian and Da Vinci were identified as creative, others not so much. This could be really helpful for ©.
Feist set a very minimal standard, but didn’t give you any way to calibrate creativity—a yardstick without any inches on it. No notion of the positive: what is creative?
Idea/expression: The higher you go with an idea, the more alternatives there are. Some courts seem to view idea/expression as coextensive with creativity, like the ADA v. Delta Dental: if you can find alternatives for doing something, it’s creative. Other courts play up authorial choice between the alternatives—a fairly common approach. Other courts are probabalistic: there are less probable and more probable choices and we favor the less probable ones. But that’s a minor tweak.
Alito’s opinion in Southco v. Cambridge: parts number taxonomy was uncopyrightable. Photos by contrast have complex and indeterminate ideas. Should distinguish creativity from idea/expression. Author’s engagement w/cultural landscape around them that creates creativity, not isolated imagination of a bunch of alternatives.
Proust’s novel In Search of Lost Time—there are no alternatives for his first sentence. “For the longest time I went to bed early.” He made a wildly creative choice (throws off your sense of time), but having chosen to say this he had almost no choice in how it would be done. But choice is not the right methodology for choosing creativity. It’s not realistic as to how creativity works: a creative work is not assessed as having chosen one of many alternatives. Creativity = unpredictable.
Bergson: Nobel Prize for literature in 1920s. We think of things as being repeatable, reversible in a lot of ways. We like to break things down into chunks, rather than the whole movement or process. Cinematographic method. Faults humans for reducing events to things and states. The possible only becomes possible when it becomes real: a nub of the alternative approach to creativity. The choice idea presupposes a lot of possibles that never come into being, but they don’t exist and maybe never will. Think about creativity as movement, processes—the work is never done. The process that led to that particular artifact matters.
Burk: distinguish creativity from obviousness/nonobviousness: what part of creativity is relevant for ©?