IPSC, Copyright Theory III

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
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
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
: 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
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 ©?

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