IPSC Panel 20 – Copyright Theory

Shyamkrishna Balganesh, The Institutionalist Turn in Supreme
Court Copyright Jurisprudence

[Mandatory laptop update delayed my entry; this is a
typically rich paper]

Institutionalism example: commitment to Congress to decide
in Eldred in Golan.

Substantive disagreement takes the language of interpretation
in Kirtsaeng.

Methodology comes to the center in Aereo.

Textualism becomes an acceptable method in Star Athletica:
there’s a plain meaning (despite an 8-way circuit split). Continuity with other
areas of law; greater unanimity; Breyer-Ginsburg split becomes less important.

GvO is a win for fair use (good) but also a bad application
of textualism to copyrightability. Court has no role in linedrawing
copyrightability under 102(b), even though the legislative history is clear
that courts were supposed to do that. [To me this is why textualism is often
quite empty; 102(b) itself is quite clear about not protecting things that are
part of protectable works.] Then the dissent says you’re overriding
congressional policy by applying fair use. Breyer is sort of genius in using
fair use—where textualism really cannot make any inroads.

Glynn Lunney: Cautious about stories that rely on a plan
since it’s 9 Justices with different motives. Breyer’s treatment of factor four
in GvO doesn’t seem very textualist.  Are
we going to see an insistence that reproduction requires wholesale copying,
instead of allowing copying of any significant part to be infringement?

A: Sure, not a concerted plan in the institutionalist turn.
But the language of institutionalism makes its way into the structure of the
cases and the outcomes reveal that. And he expects that the Court will stay
away from the reproduction right; that means it will stay in the lower courts
that aren’t particularly committed to institutionalism.

Matt Sag: Cert grants do show a pattern when it knew it was
going to be 8 members—remedial © cases make sense when they know they’ll be split
on hot-button ideological issues. But that wouldn’t be a © agenda, rather a
Court management agenda. They need to keep some of the cases uncontroversial. Also,
was Star Athletica textualist really? He just refuses to interpret it and insists
the language is clear! [Again, reinforces my opinion about what textualism is.]

A: focus on plain/clear meaning whenever possible and no
recourse to legislative history. Does influence how they write opinions—see also
Georgia v. PRO dissent where Thomas says the statute is completely clear. Definitely
the Court is caught up in other disputes about institutionalism and © proves to
be the perfect vehicle.

Stephen Yelderman, The Supreme Court’s Fragile Copyright Law

Sometimes the Court disrupts well settled caselaw, even when
the apparently settled law has been accepted by industry and engendered
significant reliance. This overt disruption is unpredictable. Most circuit law
doesn’t get overturned. Generates uncertainty even when the Court doesn’t act.

Examples of overt disruption: Stewart v. Abend. Rohauer had explicitly
teed up the issue for cert and the Court had denied; it was written by Judge Friendly;
it had a yes or no answer; and the Court let it sit for 12 years and industry
had relied on it, including making new movies based on books or promoting those
movies. Movie studios told the Court that in their arguments, saying 100s of
films were in jeopardy. SCt didn’t care, though it engaged w/Friendly’s
arguments as arguments, which he would have said was fine.

This happens repeatedly, including where the relevant
circuit law is more than 2 decades old and the reliance interests ran to $100s
of millions.

There are a number of vital provisions that have evaded SCt
review, like the DMCA [yikes], and that means that a new question lacks SCt guidance.
Without SCt cases nearby, it’s hard to argue for intervention in the absence of
a circuit split. Contrast with patent law, where Court is more active. Among
the results: reliance on 2d/9th Cirs. Other circuits often defer to
them. But the Court is happy to override them and doesn’t consider overriding
them as a stare decisis issue despite the reliance interests.

How many doctrines that are important pillars found only in
circuit law? A lot! Notice how many of the key cases we teach are circuit/district
cases. No choice, because they are not found in SCt law. De minimis exception;
right and ability to control; lots of DMCA issues; character copyright. What
protects that circuit law? They are open to different interpretation—regardless
of your method of statutory interpretation. Some are even the result of
judicial interpolation [the professor exception to works for hire!].

Court does take questions 20 years after they arise. And
after it’s denied cert before. And after reliance has developed. The best thing
that could possibly happen for industry/reliance interests is that the Court
stays out of it. The only constraint is that 4 Justices must take an interest
at the same time. Cert and merits process don’t talk to each other, especially
w/r/t reliance interests in old circuit law.

Does that mean that the Court should never overturn old
cases? Or always grant cert as soon as a split arises? No, sometimes the
precedent is wrong and should be reversed; sometimes questions do merit
percolation and the Court has limited resources [the declining number of cert
grants suggests that its resources are much greater than are being used now,
though]. But he does argue that these considerations should be taken into
account at some point in the process.

Jeanne Fromer: why is this about © as opposed to just
anything that the Court doesn’t hear regularly? Should this be a broader
project or what are the © specific issues? Does this say anything about how
well the SCt decides cases.

Xiyin Tang, Privatizing Copyright

Example: YT private deals with record labels, now model for Europe’s
mandatory licensing law. Antidemocratic effect of allowing large parties to
rewrite © rules with no public oversight. Music Modernization Act removed all
consideration of public policy in compulsory licensing of music, removing four
public-interest-oriented factors that required maximizing availability of
works. The new rates are unapologetically market-based and take privately negotiated
agreements as the lodestar. Follows the model of §1201, which allowed private
decisions. But those older changes were more democratic and transparent than
the new privatization. 1201 at least has rulemaking with public hearings and
published rules. Even software end-user agreements are at least accessible to
consumers who putatively agree to them. It’s no surprise that those essentially
backfired to the industry—1201 led to an entire countermovement of © users who
organized under broad umbrella of access to knowledge. By contrast, today’s users
are largely complacent—they don’t know what the deals actually say. One
possibility: revive © misuse. State consumer protection statutes? Could try to
represent a group of users whose videos were blocked, though there would be
commonality issues. The heart of the paper is not solutions, but about rethinking
the internet’s transformative potential because of lack of participation in
rulemaking can lead to lack of ability to participate in making new creative

Lunney: why do platforms agree to these? Threat of ©
litigation? Threat of legislation? Helping create a barrier to entry? Second,
is there any feedback the other way? If © was narrowed, would that change the
contractual situation.

A: the paper says it’s a mix of motives. Avoid litigation;
more problematic explanation is certainly monetization—they could make more
money by tracking what users were watching and if you want to monetize the
content it’s harder to rely on the safe-harbor, so this was a win for YT and
for the content owners. Who it isn’t a win for is the creators/users being
tracked and monetized. FB has also been pressured to do this. [Though Lunney’s
point is perhaps that saying FB was pressured may mistake FB’s market power—who
has more market cap, FB or the labels?] Anticompetitive effects are also

Bruce Boyden: Is it private contracts driving the problem or
the non-© restrictions? What if YT on its own decided to pull videos it thought
were made with external content, regardless of fair use? Can they pull down
anti-vax videos without implicating the concerns you have? He thinks it has to be
the contracts. So why exactly forming a contract that goes beyond what © might
require is a problem. [I kind of think the whole paper is about that from a
democratic perspective.]

A: one section of the paper is dedicated to artists’
objections. A leaked agreement between FB and one content holder—artists can
object to the use of their music in connection with anything for any reasons;
the label gets a certain number of such objections per month. But that could be
critical/fair use.

Jake Linford: YT is providing the service to noncommercial
users for free, in exchange for data mining. That’s just part of the ecosystem.
It may not be unique: well heeled central players get better treatment in tax
law; CVS gets a better deal from TM owners because it is big enough to
negotiate. Maybe this is a window into a bigger world where you get whatever
you can negotiate. Maybe individual user or even a collection of users lack
leverage. Is the goal then to read contracts in light of hypermuscular fair
use, and how would you sell that to courts? [Or the goal could be to change the
law of contracts to disallow some provisions.]

A: there was a version of © misuse that would have
prohibited provisions that went beyond ©, like prohibiting reverse engineering;
those cases have been neutered. We could revitalize the doctrine—Omega v.
Costco concurrence. It’s also useful to bring light to what these clauses say.

Matt Sag: Is it the privatization or the lack of democratic
input or the lack of transparency that really is the core? How do we evaluate
the extent of that problem versus the efficiency of the scale of Content ID?

A: Lack of public insight into new rules. Ability to take
down things for any reason. If those provisions wouldn’t be upheld in court,
they might not exist.

Glynn S. Lunney, Jr., Transforming Fair Use

From his perspective, © (and patent) is in a better place
now than in decades—vast increase in number of people who can be published
authors; memes have become popular ways of distributing points of view; and
there are cat videos. Key differences: initial investments to create and
distribute are now often trivial. Before, only the privileged few could share
writings or music with the public at large. Often, the value of these works
comes from the fact that they are copied—not unique objects. In the past, a
book was often published once and then not reprinted; no matter the duration of
©, access deteriorated.

When everyone can hire a lawyer, standards are probably
better than rules. In the new digital world, © should be weak, narrow, and
short. In the digital environment, a book from 50 years ago can still be
available online. Rules are better—for drivers’ license, we say 16 or older—because
we want everyone to paritcipate. So too with rules when everyone is an author.
Not perfectly just but more sensible in aggregate. Compulsory licensing is one
option, but noninfringement is simpler: compulsory licensing with rate set to

What then? Congress is hopelessly captured, which leaves the
courts—and fair use is the main safety valve they can use, so that’s where they’ve
turned. The earlier claim that analysis must generalize the effect on the
market if the use were universally repeated (even in Folsom v. Marsh) is
empirically false; if it were true, libraries would destroy the book market,
which they don’t. GvO is more careful empirically—new market, ease of transition
for programmers, size of what was copied. For the first time in a SCt decision,
court says you have to take public benefits of copying into account in market
harm analysis. But it is hard to separate the value generated by programmers
from the value generated by fan fiction authors—it can’t really confine the
rule to software on a factual basis. And we don’t live in a world where we can
actually do the full utility analysis of whether Progress is better served by
voting for Google or for Oracle. Looking for natural experiments: current
results suggest that incentives don’t matter—more $ for Oracle wouldn’t lead to
more and better future versions of Java. Music shows that throwing $ at the
music industry doesn’t work—the highest revenue period for the industry, the
90s, is the least popular.

Given that we aren’t going to get reform from Congress, we
have to focus on courts—300 out of 120,000 words was unfair; right now any
copying needs justification. His proposal: for non-full copying, any penalty
needs justification.

Yelderman: You briefly alluded to natural monopolies being
easier in real world—strikes him as counterintuitive.

A: in the ideal world we wouldn’t need intermediaries at
all. Platforms have developed into monopolies, but 1000s of people set up webcasting
in their own homes. [That still required an intermediary, at least the wires] In
the analog era, you needed a bro

[Display right seems to be heading in the wrong direction; unexplored
ground in plain meaning of the distribution right which on its plain meaning terms
no digital delivery can implicate directly to correspond w/your suggestions
that the reproduction right should really mean reproduction, not copying of a
tiny chunk]

Lisa Macklem, A Tale of Two Cases: A Fairer Approach for
Creativity and Innovation

Oracle + Canadian case holding that Access Copyright tariff
isn’t mandatory. What the decision says about collecting societies doesn’t
apply to every situation. Both decisions affect ability to research/access
materials to learn a craft and innovate. Pursuant to NAFTA replacement, Canada
is about to increase term to life+70 and change the rules about intermediaries,
which currently assume innocence/place burden on accuser. Also looking into AI.
Struggling to keep up with tech. Seems obvious to make fair dealing exceptions
illustrative instead of closed.

Canadian court said in essence that the real parties in
interest weren’t present—© owners. Lower courts had misinterpreted some things
about access/fair dealing. Focused on context, like GvO—what are the facts in
the case? What is going on with users? Helps balance legislation.

If the result had been otherwise, one instance of
infringement could have made a university liable for the full tariff, millions
of dollars. They were getting licenses and finding other ways of getting access
to students, but they weren’t getting licenses from Access Copyright—and the
ruling was that they didn’t need to do so.

Looking at the institutional perspective and institutional
nature of copying was an error in the lower courts in Access Copyright—failed to
look at individual students. Funds saved by not subscribing went to legitimate
educational uses, not to profit. Access Copyright argued that in theory a whole
book could have been copied in chunks each distributed to a different student,
but that was the wrong approach; generalizing would penalize larger schools
over smaller ones.

Pam Samuelson: Acknowledgement that reuse can benefit
creativity is really significant in the cases.

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