Campbell conference: Justin Hughes keynote

Posted on April 18, 2015 by rtushnet
Closing Keynote Address: Justin Hughes
 
In a world of complex laws, like tax regulation, everyone likes the idea of a rule that’s both general and exculpatory—fun and safe because when you’re applying a multifactor test it’s very difficult to be clearly wrong. But fair use is also notorious because it’s a principal arena in the struggle between proponents and opponents of IP. The doctrine has an unstated and perhaps unconscious idea: the open ended possibility of the negation of copyright protection.  This is the source of fair use’s popularity among digerati and the source of the fear copyright owners have of fair use.
Don’t you mean an open-ended regulator of copyright protection where protection doesn’t advance the underlying purposes of ©?  No.  It’s a kill switch.  It’s not a device to withdraw © protection in all circumstances, at least not in a way we could make a policy decision about. It’s an iterative process, endless rollercoaster of expensive litigation. That’s what makes it a little bit scary but fun.
 
Many of us are concerned about how transformativeness has become so malleable, so dependent on what judge had for breakfast, that the twists and turns are getting quite wild. He thinks the doctrine will eventually sort this out, but wants to give a cautionary tale.
 
Where he doesn’t disagree necessarily w/result, but w/use of transformativeness: use of expert’s CV in legal case.  Consider SOFA Entertainment v. Dodger Productions: 7-second clip of the Ed Sullivan show introducing Four Seasons used in the musical Jersey Boys, projected onto the screen before the actors began performing. Court found transformation: used as biographical anchor and its biographical significance gave it new meaning, not just used for entertainment value. Clearly both works are works created and distributed/performed for their entertainment value.  Clip conveys mainly factual information about the group about to perform.  He doesn’t see any way you can say there’s a tremendous transformation: it was biographical/informational when it was originally broadcast.
 
Monge v. Maya district court is a poster child for transformativeness wandering the desert: four federal judges reached three different conclusions in a relatively simple case.  Monge, a Latina star, got discreetly married; a story ran about the marriage with photos. DCt granted sj on fair use; 9th Circuit reversed over a vigorous dissent.  The dct found it transformative: photos were used not in original context, documentation of wedding night, but rather at confirmation of the accompanying text challenging repeated denials of the marriage.  Ct of appeals found only marginally transformative.  There’s mere wordplay to say that photos are transformed from documentation of wedding to confirmation of text saying people are married.
Then there’s White v. West, which seemed to conclude that putting something in a comprehensive database is grounds for a transformative use.  WW Norton would never have to pay for a royalty again in its anthologies!  Thus he is concerned that recent jurisprudence on transformativeness is becoming unwieldy. Not saying that the decisions are wrong, just that they were achieved the wrong way.
 
Low protectionists may see this as a good thing and even call for further expansion of transformativeness. Lea Shaver: translation should be recognized as transformativeness. But that would conflict with Berne Art. 8. 
 
Berne 9(2)/Trips Art. 13 is the three step test.  WTO dispute resolution panels say we apply it as it reads, with three steps: (1) certain special cases, (2) no conflict w/ normal exploitation, (3) no unreasonable prejudice to legitimate interests of right holder.  Lunney’s unitary analysis is popular with academics in Europe who think current version is too restrictive. Interpreted this way, defenders of copyright see three-step test as lynchpin of copyright/critics see it as Darth Vader.
 
Is the American fair use doctrine as embodied in §107 compliant?  I have always thought the answer is yes. I still think the answer is yes, though I was initially too simplistic.  Back in 1988, on accession to Berne, there was a lively debate about compatibility of American copyright with Berne; we gave up formalities.  Then there was fair use.  In 1988, then general director of WIPO, identified formalities as the only real incompatibility with Berne, suggesting that fair use was no problem. Six years later, the WTO was created and TRIPS extended the three step test to all exceptions and limitations in ©.  Absolutely no diplomatic fuss over whether US law would be compliant.  In early days, a few countries questioned the US about fair use.  Standard US response: while §107 may appear indeterminate, carefully developed 150 years of case law assures that §107 meets the requirements of the three-step test. 
 
More countries have adopted provisions at least inspired by §107: Sri Lanka, Singapore, Israel, South Korea and the Philippines; arguably Uganda, and Canada is moving in that direction. Not sure whether it’s a good thing for developing countries.  Their local judicial institutions may not be developed enough to exercise a balanced application of the doctrine. Makes WTO challenge to §107 more difficult, politically and probably juridically. Vienna Convention on Treaties: a treaty shall be interpreted in good faith in accordance with ordinary meaning and in light of subsequent practice.
 
But Ginsburg and Besek raise legitimate issues.  §107 passes the test because it is not an exception to be judged under the three step test. It is a mechanism to establish exceptions.  When significant courts rule the same way, or when the SCt weighs in, the result is a pretty clear rule. A little exception: e.g., parody.  At least as clear as the codified parody exceptions that exist in other countries.  Sega v. Accolade/Sony v. Connectix: an exception has clearly been established for intermediary copying to produce a new work.  With fair use we entrust judges to craft new exceptions to our copyright law, just as the Chinese court can issue sweeping interpretations of IP laws if the People’s Congress doesn’t act. TRIPS doesn’t require national legislatures to write the rules (though Berne does). WPPT and Beijing treaties likewise just say it’s for the members to do; WCT has a weird straddle. 
 
But Ginsburg and Besek have a point.  A whopper of a fair use decision could trigger a challenge, and the case would be about that decision/that new exception in American copyright law. As-applied challenges are possible. A broad fair use application to foreign works could trigger that showdown. Many in Geneva think only a SCt decision could be subject to dispute, but others think that the court of appeals should also possibly allow WTO proceeding.  Could be brought by someone we’re always dragging to the WTO as retaliation (China).
 
At the domestic level, our judges should be cognizant of our treaty obligations, properly interpreted: Charming Betsy doctrine.  An act of Congress ought never to be construed to violate the law of nations if any other possible construction remains. Congress regards IP treaties as non-self-executing—adamant about that w/Berne, TRIPS, and 1996 internet treaties. But many reasons related to separation of powers still exist to give effect to Charming Betsy: if a court believes that one interpretation “could” violate the three-step test, it should go with a different interpretation. 
 
Campbell: March 1994; TRIPS signed April 1994, effective Jan. 1995. We haven’t had a SCt fair use case since. Interface of foreign/domestic obligations will get more interesting over time.
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Campbell conference: Justin Hughes keynote

Posted on April 17, 2015 by rtushnet
Closing Keynote Address: Justin Hughes
 
In a world of complex laws, like tax regulation, everyone likes the idea of a rule that’s both general and exculpatory—fun and safe because when you’re applying a multifactor test it’s very difficult to be clearly wrong. But fair use is also notorious because it’s a principal arena in the struggle between proponents and opponents of IP. The doctrine has an unstated and perhaps unconscious idea: the open ended possibility of the negation of copyright protection.  This is the source of fair use’s popularity among digerati and the source of the fear copyright owners have of fair use.
Don’t you mean an open-ended regulator of copyright protection where protection doesn’t advance the underlying purposes of ©?  No.  It’s a kill switch.  It’s not a device to withdraw © protection in all circumstances, at least not in a way we could make a policy decision about. It’s an iterative process, endless rollercoaster of expensive litigation. That’s what makes it a little bit scary but fun.
 
Many of us are concerned about how transformativeness has become so malleable, so dependent on what judge had for breakfast, that the twists and turns are getting quite wild. He thinks the doctrine will eventually sort this out, but wants to give a cautionary tale.
 
Where he doesn’t disagree necessarily w/result, but w/use of transformativeness: use of expert’s CV in legal case.  Consider SOFA Entertainment v. Dodger Productions: 7-second clip of the Ed Sullivan show introducing Four Seasons used in the musical Jersey Boys, projected onto the screen before the actors began performing. Court found transformation: used as biographical anchor and its biographical significance gave it new meaning, not just used for entertainment value. Clearly both works are works created and distributed/performed for their entertainment value.  Clip conveys mainly factual information about the group about to perform.  He doesn’t see any way you can say there’s a tremendous transformation: it was biographical/informational when it was originally broadcast.
 
Monge v. Maya district court is a poster child for transformativeness wandering the desert: four federal judges reached three different conclusions in a relatively simple case.  Monge, a Latina star, got discreetly married; a story ran about the marriage with photos. DCt granted sj on fair use; 9th Circuit reversed over a vigorous dissent.  The dct found it transformative: photos were used not in original context, documentation of wedding night, but rather at confirmation of the accompanying text challenging repeated denials of the marriage.  Ct of appeals found only marginally transformative.  There’s mere wordplay to say that photos are transformed from documentation of wedding to confirmation of text saying people are married.
Then there’s White v. West, which seemed to conclude that putting something in a comprehensive database is grounds for a transformative use.  WW Norton would never have to pay for a royalty again in its anthologies!  Thus he is concerned that recent jurisprudence on transformativeness is becoming unwieldy. Not saying that the decisions are wrong, just that they were achieved the wrong way.
 
Low protectionists may see this as a good thing and even call for further expansion of transformativeness. Lea Shaver: translation should be recognized as transformativeness. But that would conflict with Berne Art. 8. 
 
Berne 9(2)/Trips Art. 13 is the three step test.  WTO dispute resolution panels say we apply it as it reads, with three steps: (1) certain special cases, (2) no conflict w/ normal exploitation, (3) no unreasonable prejudice to legitimate interests of right holder.  Lunney’s unitary analysis is popular with academics in Europe who think current version is too restrictive. Interpreted this way, defenders of copyright see three-step test as lynchpin of copyright/critics see it as Darth Vader.
 
Is the American fair use doctrine as embodied in §107 compliant?  I have always thought the answer is yes. I still think the answer is yes, though I was initially too simplistic.  Back in 1988, on accession to Berne, there was a lively debate about compatibility of American copyright with Berne; we gave up formalities.  Then there was fair use.  In 1988, then general director of WIPO, identified formalities as the only real incompatibility with Berne, suggesting that fair use was no problem. Six years later, the WTO was created and TRIPS extended the three step test to all exceptions and limitations in ©.  Absolutely no diplomatic fuss over whether US law would be compliant.  In early days, a few countries questioned the US about fair use.  Standard US response: while §107 may appear indeterminate, carefully developed 150 years of case law assures that §107 meets the requirements of the three-step test. 
 
More countries have adopted provisions at least inspired by §107: Sri Lanka, Singapore, Israel, South Korea and the Philippines; arguably Uganda, and Canada is moving in that direction. Not sure whether it’s a good thing for developing countries.  Their local judicial institutions may not be developed enough to exercise a balanced application of the doctrine. Makes WTO challenge to §107 more difficult, politically and probably juridically. Vienna Convention on Treaties: a treaty shall be interpreted in good faith in accordance with ordinary meaning and in light of subsequent practice.
 
But Ginsburg and Besek raise legitimate issues.  §107 passes the test because it is not an exception to be judged under the three step test. It is a mechanism to establish exceptions.  When significant courts rule the same way, or when the SCt weighs in, the result is a pretty clear rule. A little exception: e.g., parody.  At least as clear as the codified parody exceptions that exist in other countries.  Sega v. Accolade/Sony v. Connectix: an exception has clearly been established for intermediary copying to produce a new work.  With fair use we entrust judges to craft new exceptions to our copyright law, just as the Chinese court can issue sweeping interpretations of IP laws if the People’s Congress doesn’t act. TRIPS doesn’t require national legislatures to write the rules (though Berne does). WPPT and Beijing treaties likewise just say it’s for the members to do; WCT has a weird straddle. 
 
But Ginsburg and Besek have a point.  A whopper of a fair use decision could trigger a challenge, and the case would be about that decision/that new exception in American copyright law. As-applied challenges are possible. A broad fair use application to foreign works could trigger that showdown. Many in Geneva think only a SCt decision could be subject to dispute, but others think that the court of appeals should also possibly allow WTO proceeding.  Could be brought by someone we’re always dragging to the WTO as retaliation (China).
 
At the domestic level, our judges should be cognizant of our treaty obligations, properly interpreted: Charming Betsy doctrine.  An act of Congress ought never to be construed to violate the law of nations if any other possible construction remains. Congress regards IP treaties as non-self-executing—adamant about that w/Berne, TRIPS, and 1996 internet treaties. But many reasons related to separation of powers still exist to give effect to Charming Betsy: if a court believes that one interpretation “could” violate the three-step test, it should go with a different interpretation. 
 
Campbell: March 1994; TRIPS signed April 1994, effective Jan. 1995. We haven’t had a SCt fair use case since. Interface of foreign/domestic obligations will get more interesting over time.
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Campbell conference: future of digital tech

Posted on April 17, 2015 by rtushnet
Panel IV. Campbell and the Future of Digital Technologies (Moderator, Dean O’Connor)
 
O’Connor: output of one creative person becomes input for the next. Consider how copyright and fair use work in that system.
 
Robert Brauneis, George Washington University: How have new technologies influenced fair use jurisprudence?  (1) Personal copying and distribution and the personal/commercial distinction. Before Sony, there had never been a single published opinion on fair use in private noncommercial copying.  Non-networked tech brought personal copying to the attention of copyright owners, leading to fair use for some forms of personal copying.  Few decades later, networked computers challenged personal/commercial distinction. 
 
(2) Computer programming/functional works. Pre-Feist, there was a big branch of fair use jurisprudence devoted to ok uses of factual works; that faded as noncreative facts were excluded. But a new branch arose, dealing w/largely functional works and reverse engineering. 
 
(3) Nontraditional uses. Accessibility to the blind.
 
(4) Dissolution of the concept of the copy. New tech significantly eroded the role of the copy as the intuitive unit of consumption. Fair use will likely step in to mediate between the intuitive sense of exploitation versus formal reproduction.  In non-networked world, users typically acquired only one copy. Now many of us don’t know whether we own a copy of a work or not, since Spotify commingles local and streamed; we don’t know how many copies we own or where they’re stored or when another copy is being made—the cloud obscures, faithful to its name.  Correlatively, it doesn’t make sense to treat cloud syncing as we do printing another hardcover book. Reframe from copying to access/exploitation? But it’s more than a little difficult to create a new conceptual scheme and harder to get Congress to act; courts will mediate slippage between rights and practices that seem widespread and harmless, and they can call on fair use to do so.
 
Sandra Aistars, Copyright Alliance: Worth distinguishing b/t creating new copyrighted work and facilitating new tech.  Campbellworked very well for the former, but not so with new distribution models/purposes. The beauty of fair use is that it’s both flexible and case-specific; allows courts to consider all the nuance; guard against new set of reflexively applied presumptions w/negative effects on creativity.  (Ideological drift …)
 
Authors aren’t threatened by the concept of fair use, nor do they want to see it limited. Authors of all types need to facilitate the use of existing works, and celebrate contributions tech has brought to their lives. Tech innovators face similar challenges trying to get product/service launched and authors are sympathetic.  Seems to her odd, as June Besek noted, that partial copying by an individual artist is scrutinized more than massive full-on copying of entire works by commercial entities, which is presumed to be transformative b/c different purpose.
 
Intermediate copies are all lumped together. They can be used in ways not linked to traditional sources of income for copyright owners, or simply to design around existing law to avoid licensing.  Aereois a good example of design-around.  Intermediate copies used to facilitate new products/services can have different impacts on different market sectors. Search engine that exposes artists to users is beneficial, but taken too far or applied specifically it might undermine the market or supplant the market for visual images entirely.  Should distinguish and not say all intermediate copies are created equal.
 
Do we need different approaches when a new work is created versus new purpose?  No. The four factors serve us well, allowing each use to be considered on its merits.  Interesting to hear Beebe’s empirical research indicating that it’s easier to predict outcome than some might have expected. She worries that it’s easier to make a decision based on nuanced analysis of four factors than it will be if we allow the trend to compress everything down into one test, bringing a tendency to be guided by perceptions of morality or social utility, which are far harder to predict. 
 
Yoko Miyashita, Getty Images: over 200,000 photographers, 100 million online and 85 million more in storage. When we talk about copyright, we mean creative, technical, highly skilled works that our photographers may put themselves in harm’s way to get.  We moved through technologies than now make anyone a photographer and a publisher. The universal language is imagery.  Part of that language is “like” and “share.”  For younger generations, using images is essential to speech and personality, not just a “nice to have.”  Genie’s out of the bottle.  We don’t want to be regarded as the ones who want to break the internet and not taken seriously.  Trying to take expression away from the public is a losing game.
 
We tried the enforcement route and we learned the hard way.  (Turns out they sent a letter to Corbis, despite cross-distribution agreement.) Unwinnable whack-a-mole, plus potential long term brand harm.  So we needed to evolve instead of becoming irrelevant. Getty Images Embed: 99% of content is available for free, for noncommercial purposes. Social sharing has been added to our images. Facebook, Twitter, Tumblr, Pinterest: adds watermark, link back to images, and information on license. We want user traffic, eyeballs, data: the currency of our marketplace.
 
Our biggest competitor is Google.  Among buyers who regularly license content.  9 out of 10 unauthorized users we speak to point to Google as their source of imagery.  Kelly v. Arribasoft & Perfect 10: what’s happened in search over 12 years.  We went from thumbnails, which used to have little links to the source site; now shows nothing but images like Getty Image search results. Then it goes to a beautiful large view with functions that have had a huge impact on us. The addition of larger images, and arrow features that allow you to toggle from one image to the next, has had a devastating impact on traffic for us.  Not going to get into the framing issue (by which she means whether framing implicates any §106 right). Easy to right click and save on a computer; they are the same size on a mobile device. They significantly reduce clickthrough rates for source sites.
 
This substitutes for eyeballs for all our paying customers who are licensing these images. We are bearing the cost of hosting those framed images when viewed that way.  Is it transformative or substitutional?  Look at the market harm.  Is this search or a wolf in search’s clothing?  (I’m gonna go with search.)  All we want is eyeballs, data—it’s negotiable currency.  Are these intermediate copies designed around existing law to avoid licensing? That’s a key question for us.  (And a weakness of the Aereo reasoning: should we say that Google search behaves as if it is making a copy, so we’ll consider §106 implicated?)
 
Matt Sag, Loyola University Chicago: The dissolution of the traditional concept of copying. Exchange of value b/t author and consumer was made easier/clean by first sale: money for copy.  Then public performance entered the field; broadcast as another source of value, so we get broadcast/cable retransmission rights, crowding around reproduction right but not really changing its significance. Then we get tech led by photocopier, disintermediating copying for businesses and consumers.  Then goes digital and networked.  Now it’s possible to look at when people stopped saying “the United States are” and said “the United States is” by copying the contents of an entire library: a nonexpressive use. The machine is the only one that sees it all. We’ve never had to think about copying not for expressive use before, but courts have handled it rather well.  There’s an interesting question about whether nonexpressive use should be considered transformative, or recognize it as a different form of fair use—latter would be cleaner, but Campbell is still important because it tells us that it’s not the loss of despotic dominion that’s a problem, but rather expressive substitution.
 
Jule Sigall, Microsoft: He’s not really worried about any of the stuff his family does, like using image search for personal communication/creating new meanings within the family. Think of all the things we use: Outlook, Powerpoint, image search, telephone lines, Photoshop, Skype. Tech becomes part of the speech.  These are our users. Where should we go to help answer questions about whether tech should permit these uses, how we should market the tech?  As the person who represented Kelly in Kelly v. Arribasoft, I got a painful lesson in trying to answer those questions using the basic structure of the Copyright Act—a set of broad rights designed to cover lots of stuff, with narrow exceptions (w/exception of fair use).  Presenting it that way left the court with a lot of disturbing questions, and thus justified the use of fair use.  You proceed at your peril as a copyright owner if you present a copyright infringement case w/out considering the kinds of things fair use considers—it’s just not effective advocacy.
 
It’s good for fair use to answer these questions, b/c it provides the most robust set of factors to answer the question of whether an activity is ok.  They can be misinterpreted, but they’re better than the other portions of the Act (compared to Netcom, which invented a volitional conduct requirement, or Cablevisionon breadth of performance right). Not obviously complete or clear, but good set of precedents.  Fair use is right in the norm of predictability for laws that in-house counsel are asked to opine about.  When you look how my kids use the tech, there’s no going back to the old ways of “paraphrase or get a license.”  Not for them, not for the courts.  That doesn’t mean all fair use claims will succeed.  But fair use has plenty of applications now.
 
O’Connor: New tech always popping up, like livestreaming Periscope. Does it matter any more whether there are multiple copies, or just uses?
 
Sigall: Software has had the longest history with digital copying.  Industry is moving to offer products away from counting copies in the offering to the consumer.  Office 365 in the cloud. As a business matter, the ability for the user/customer to not think about copies is now the expectation—counting would be distraction/inconvenience.
 
Sag: it’s not the case that Google Book search àNapster.  But my computer backs up to the cloud. I have no idea how many copies of my authorized purchase I have floating around, and neither should the copyright owner. More ambiguity about where the copy resides = need to be less doctrinaire about “every copy is controlled/has independent value.”
 
Aistars: doesn’t matter unless you’re in a litigation posture where you have no other way to advance the argument other than claiming that there are multiple copies. It’s a distributional argument: how to divvy the pie up.  Consumer electronics were innovating in the 80s and 90s, in symbiotic relationship with the “content” industry to sell expensive devices.  The business model is now more about giving the content away and relying on the data to sell stuff.  Leads to more interaction for the user, but the creative work is subsidizing the ability to make those uses.  Not the same as 80s and 90s where nobody was capturing that value; tech innovators are capturing that value by showing ads/using that data.  (I think “nobody” here means “consumer surplus,” if I understand her properly.)
 
Brauneis: space and time shifting are quality enhancement technologies. Fox v. Dish: automatic ad skipping. Suppose all those technologies are fair use. One way of thinking: it doesn’t matter whether the © owner sells you a high balcony seat if through the use of tech you can make it a front row seat without having to pay more.  It’s not obvious that the answer is that there should be no differentiation between qualities or levels of access to work to improve social welfare.
 
O’Connor: we used to think of vinyl as lasting forever, and then it doesn’t.  Now we can, in the cloud. But am I buying a forever copy?  Or do I lose access if I don’t pay?
 
Sag: Peter DiCola has a good paper on this, the option value of music. Cassette: really a one or two year license.  (How badly does he treat those?)
 
Aistars: buying a new device to listen costs you something, whether it’s having to watch ads or lost data. If you are buying one, why not pay for the rest?
 
O’Connor: I don’t want to buy new devices.
 
Sag: consider logic: if a blind person has glasses that capture an image of a book and translate it into an audio version I can hear. Do I really need to pay for the book twice? The tech has enabled more increased value, but why should some of that value go to the book’s copyright owner for those digital images?
 
Aistars: would depend on what the manufacturer is doing in terms of gathering info about what the person’s reading, developing additional lines of business that depends on the interest of the underlying work to the consumer. In that case some share should go to the person who’s creating the work that the individual wants to read or hear.  (Wouldn’t that share be “the cost of the copy she bought”?)  Many people do want to upgrade over time. If you complain about having to buy in a new format, you should be equally upset about having to buy the new device to play it on, and she doesn’t see that happening in this new space. (That’s because of the classic excludability problem. The device is excludable without law; the sound recording is only excludable if the law forces tech makers to design that way. That’s why they feel and are different.)
 
Sigall: dual purpose tech raises issues (infringing and noninfringing). But since more and more stuff is more like an app on different platforms, it’s less about design of particular app or device or purpose. Challenge in this space is to say: everyone will use this for everything; that’s the world. Trying to segregate what you should/shouldn’t do is extremely difficult. Fair use is relatively good at this.  Subset of copyright owners tends to object; what about the rest of the copyright owners whose works flow through the tech? We have really bad info about the preferences of those owners. How do you as a tech provider segregate these, especially without a formalities system?  Some © owners don’t speak with all but the tech is all for everything.
 
Naeve: some © Act provisions are extremely reactive to tech—cf. §110.  Fair use is more open ended. Which is a better promoter of © policy?
 
Miyashita: you have to be flexible. We can’t anticipate 18 months ahead in new tech.
 
Aistars: both are promoters. You need flexible fair use to account for unanticipated events or one-off situations. There are situations where it’s been beneficial to have a more specific permitted use and in some cases have that use compensated. Would prefer not to have industry-specific terms in legislation, but in some other place.  (Presumably a reformulated Copyright Office.)
 
Sigall: interesting to see whether a plaintiff owner argues at a high level of abstraction where the tech doesn’t matter versus arguing about which server makes which copy. His sense is that it goes both ways all the time.
 
Brauneis: the longer a delay there is in legislative action, the more we will use the courts to make new law.
 
RT: public statistics on uptake of Getty Images?  Is Getty sending C&D or non-C&D letters to people who aren’t using it to switch people over?
 
Miyashita: we are sending letters.  Encouraging/highlighting the availability.  (But no answer on statistics on uptake, sigh.)
 
Heald: thought that Kelly is defensible but appalled by current Google image search. Is anyone litigating it?  Second, Hargreaves (UK) report—no changes in the absence of empirical data (RT: though note that the initial law was not adopted with the same rigorous standards). Is that a good idea?
 
Sigall: It’s hard to argue against policy based on empirical evidence, but the question is how you get it in timely and effective fashion. Can be very difficult.
 
Q: did Getty have photographers object to the Getty embed feature?
 
Miyashita: no.  We have to acknowledge practical reality of the types of uses for which embed and social sharing are ideal. Attribution, traffic, eyeballs, data, linkbacks start to make sense as overarching strategy.
 
Loren: also have questions about new image search.  Are you doing anything?  You have market power. You could choose the robot exclusion header.  Setting the law aside, there’s a business reality.
 
Miyashita: we could use robots.txt, but the 100s or 1000s of other licensees—there’s no means for them to exclude; publishers would have to implement robots.txt, and then the stolen sites would be the prominent results.  (That’s … not exactly true in that the publishers could implement robots.txt just for images, and allow text to be indexed.  And then there is the DMCA.)
 
Aistars: many people we work with are individual authors. To the extent there are ways to aggregate and get value from works, whether monetary or data/interaction, those are positive things.
 
Sigall: has seen interesting things happen around accommodating multiplicity of uses, fair and unfair.  Videogames.  Valve’s Steam platform: starts from ground-up understanding of what customers and users and creators all understand about what you can and can’t do. They accept fair limits because the platform has been built that way.  Create norms around usage that are more meaningful, enforceable, and practical than if you looked to the Copyright Act to mediate the transaction.
 
Samuelson: the role of TPMs and anticircumvention. When I read §1201 submissions from GM and the Auto Alliance, they have concerns about battery life and warranties, not about infringement. In the internet of things, TPMs may become a new set of issues; fair use circumventions already happen every day. How will TPMs and anticircumvention evolve?
 
Sag: most TPMs don’t work. When they’re circumvented, often won’t give rise to liability, for courts following Chamberlain and Lexmark. Attempts to use TPMs to control aftermarket could be an antitrust violation if you buy a single-brand lock-in theory. Lots of moving parts, and then there’s whether the Copyright Office should be writing regulations.  (Um, the answer is clearly no: what business of the Office is it how long the battery of your car lasts?)
 
Sigall: there’s a role for TPMs to preserve the rights of copyright owners. Valve uses TPMs in a pretty significant way, but they’ve built it to be flexible.  Tech is deployed in a social and communal setting that determines whether or not the tech works; the legal architecture sits in the broader community.  If you do it right you diminsh the need for circumvention.  You will have abuse of tech, abuse of legal protection. Safety valves: the © Office rulemaking, which gives us information about what’s working and what’s not. Chamberlain and Skylinkalso showed courts willing to create exemptions that didn’t exist in the statute. Don’t paint too broad a brush: TPMs aren’t going to save copyright owners or destroy users.  (Just uses.)
 
Brauneis: in a networked world, when you can keep important parts of the works on a remote server, the use of TPMs is less important. 
 
Aistars: TPMs can reassure authors into supporting new formats. Problematic when used for printer cartridges and garage door openers; courts have been able to get it right.
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Campbell conference: future of digital tech

Posted on April 17, 2015 by rtushnet
Panel IV. Campbell and the Future of Digital Technologies (Moderator, Dean O’Connor)
 
O’Connor: output of one creative person becomes input for the next. Consider how copyright and fair use work in that system.
 
Robert Brauneis, George Washington University: How have new technologies influenced fair use jurisprudence?  (1) Personal copying and distribution and the personal/commercial distinction. Before Sony, there had never been a single published opinion on fair use in private noncommercial copying.  Non-networked tech brought personal copying to the attention of copyright owners, leading to fair use for some forms of personal copying.  Few decades later, networked computers challenged personal/commercial distinction. 
 
(2) Computer programming/functional works. Pre-Feist, there was a big branch of fair use jurisprudence devoted to ok uses of factual works; that faded as noncreative facts were excluded. But a new branch arose, dealing w/largely functional works and reverse engineering. 
 
(3) Nontraditional uses. Accessibility to the blind.
 
(4) Dissolution of the concept of the copy. New tech significantly eroded the role of the copy as the intuitive unit of consumption. Fair use will likely step in to mediate between the intuitive sense of exploitation versus formal reproduction.  In non-networked world, users typically acquired only one copy. Now many of us don’t know whether we own a copy of a work or not, since Spotify commingles local and streamed; we don’t know how many copies we own or where they’re stored or when another copy is being made—the cloud obscures, faithful to its name.  Correlatively, it doesn’t make sense to treat cloud syncing as we do printing another hardcover book. Reframe from copying to access/exploitation? But it’s more than a little difficult to create a new conceptual scheme and harder to get Congress to act; courts will mediate slippage between rights and practices that seem widespread and harmless, and they can call on fair use to do so.
 
Sandra Aistars, Copyright Alliance: Worth distinguishing b/t creating new copyrighted work and facilitating new tech.  Campbellworked very well for the former, but not so with new distribution models/purposes. The beauty of fair use is that it’s both flexible and case-specific; allows courts to consider all the nuance; guard against new set of reflexively applied presumptions w/negative effects on creativity.  (Ideological drift …)
 
Authors aren’t threatened by the concept of fair use, nor do they want to see it limited. Authors of all types need to facilitate the use of existing works, and celebrate contributions tech has brought to their lives. Tech innovators face similar challenges trying to get product/service launched and authors are sympathetic.  Seems to her odd, as June Besek noted, that partial copying by an individual artist is scrutinized more than massive full-on copying of entire works by commercial entities, which is presumed to be transformative b/c different purpose.
 
Intermediate copies are all lumped together. They can be used in ways not linked to traditional sources of income for copyright owners, or simply to design around existing law to avoid licensing.  Aereois a good example of design-around.  Intermediate copies used to facilitate new products/services can have different impacts on different market sectors. Search engine that exposes artists to users is beneficial, but taken too far or applied specifically it might undermine the market or supplant the market for visual images entirely.  Should distinguish and not say all intermediate copies are created equal.
 
Do we need different approaches when a new work is created versus new purpose?  No. The four factors serve us well, allowing each use to be considered on its merits.  Interesting to hear Beebe’s empirical research indicating that it’s easier to predict outcome than some might have expected. She worries that it’s easier to make a decision based on nuanced analysis of four factors than it will be if we allow the trend to compress everything down into one test, bringing a tendency to be guided by perceptions of morality or social utility, which are far harder to predict. 
 
Yoko Miyashita, Getty Images: over 200,000 photographers, 100 million online and 85 million more in storage. When we talk about copyright, we mean creative, technical, highly skilled works that our photographers may put themselves in harm’s way to get.  We moved through technologies than now make anyone a photographer and a publisher. The universal language is imagery.  Part of that language is “like” and “share.”  For younger generations, using images is essential to speech and personality, not just a “nice to have.”  Genie’s out of the bottle.  We don’t want to be regarded as the ones who want to break the internet and not taken seriously.  Trying to take expression away from the public is a losing game.
 
We tried the enforcement route and we learned the hard way.  (Turns out they sent a letter to Corbis, despite cross-distribution agreement.) Unwinnable whack-a-mole, plus potential long term brand harm.  So we needed to evolve instead of becoming irrelevant. Getty Images Embed: 99% of content is available for free, for noncommercial purposes. Social sharing has been added to our images. Facebook, Twitter, Tumblr, Pinterest: adds watermark, link back to images, and information on license. We want user traffic, eyeballs, data: the currency of our marketplace.
 
Our biggest competitor is Google.  Among buyers who regularly license content.  9 out of 10 unauthorized users we speak to point to Google as their source of imagery.  Kelly v. Arribasoft & Perfect 10: what’s happened in search over 12 years.  We went from thumbnails, which used to have little links to the source site; now shows nothing but images like Getty Image search results. Then it goes to a beautiful large view with functions that have had a huge impact on us. The addition of larger images, and arrow features that allow you to toggle from one image to the next, has had a devastating impact on traffic for us.  Not going to get into the framing issue (by which she means whether framing implicates any §106 right). Easy to right click and save on a computer; they are the same size on a mobile device. They significantly reduce clickthrough rates for source sites.
 
This substitutes for eyeballs for all our paying customers who are licensing these images. We are bearing the cost of hosting those framed images when viewed that way.  Is it transformative or substitutional?  Look at the market harm.  Is this search or a wolf in search’s clothing?  (I’m gonna go with search.)  All we want is eyeballs, data—it’s negotiable currency.  Are these intermediate copies designed around existing law to avoid licensing? That’s a key question for us.  (And a weakness of the Aereo reasoning: should we say that Google search behaves as if it is making a copy, so we’ll consider §106 implicated?)
 
Matt Sag, Loyola University Chicago: The dissolution of the traditional concept of copying. Exchange of value b/t author and consumer was made easier/clean by first sale: money for copy.  Then public performance entered the field; broadcast as another source of value, so we get broadcast/cable retransmission rights, crowding around reproduction right but not really changing its significance. Then we get tech led by photocopier, disintermediating copying for businesses and consumers.  Then goes digital and networked.  Now it’s possible to look at when people stopped saying “the United States are” and said “the United States is” by copying the contents of an entire library: a nonexpressive use. The machine is the only one that sees it all. We’ve never had to think about copying not for expressive use before, but courts have handled it rather well.  There’s an interesting question about whether nonexpressive use should be considered transformative, or recognize it as a different form of fair use—latter would be cleaner, but Campbell is still important because it tells us that it’s not the loss of despotic dominion that’s a problem, but rather expressive substitution.
 
Jule Sigall, Microsoft: He’s not really worried about any of the stuff his family does, like using image search for personal communication/creating new meanings within the family. Think of all the things we use: Outlook, Powerpoint, image search, telephone lines, Photoshop, Skype. Tech becomes part of the speech.  These are our users. Where should we go to help answer questions about whether tech should permit these uses, how we should market the tech?  As the person who represented Kelly in Kelly v. Arribasoft, I got a painful lesson in trying to answer those questions using the basic structure of the Copyright Act—a set of broad rights designed to cover lots of stuff, with narrow exceptions (w/exception of fair use).  Presenting it that way left the court with a lot of disturbing questions, and thus justified the use of fair use.  You proceed at your peril as a copyright owner if you present a copyright infringement case w/out considering the kinds of things fair use considers—it’s just not effective advocacy.
 
It’s good for fair use to answer these questions, b/c it provides the most robust set of factors to answer the question of whether an activity is ok.  They can be misinterpreted, but they’re better than the other portions of the Act (compared to Netcom, which invented a volitional conduct requirement, or Cablevisionon breadth of performance right). Not obviously complete or clear, but good set of precedents.  Fair use is right in the norm of predictability for laws that in-house counsel are asked to opine about.  When you look how my kids use the tech, there’s no going back to the old ways of “paraphrase or get a license.”  Not for them, not for the courts.  That doesn’t mean all fair use claims will succeed.  But fair use has plenty of applications now.
 
O’Connor: New tech always popping up, like livestreaming Periscope. Does it matter any more whether there are multiple copies, or just uses?
 
Sigall: Software has had the longest history with digital copying.  Industry is moving to offer products away from counting copies in the offering to the consumer.  Office 365 in the cloud. As a business matter, the ability for the user/customer to not think about copies is now the expectation—counting would be distraction/inconvenience.
 
Sag: it’s not the case that Google Book search àNapster.  But my computer backs up to the cloud. I have no idea how many copies of my authorized purchase I have floating around, and neither should the copyright owner. More ambiguity about where the copy resides = need to be less doctrinaire about “every copy is controlled/has independent value.”
 
Aistars: doesn’t matter unless you’re in a litigation posture where you have no other way to advance the argument other than claiming that there are multiple copies. It’s a distributional argument: how to divvy the pie up.  Consumer electronics were innovating in the 80s and 90s, in symbiotic relationship with the “content” industry to sell expensive devices.  The business model is now more about giving the content away and relying on the data to sell stuff.  Leads to more interaction for the user, but the creative work is subsidizing the ability to make those uses.  Not the same as 80s and 90s where nobody was capturing that value; tech innovators are capturing that value by showing ads/using that data.  (I think “nobody” here means “consumer surplus,” if I understand her properly.)
 
Brauneis: space and time shifting are quality enhancement technologies. Fox v. Dish: automatic ad skipping. Suppose all those technologies are fair use. One way of thinking: it doesn’t matter whether the © owner sells you a high balcony seat if through the use of tech you can make it a front row seat without having to pay more.  It’s not obvious that the answer is that there should be no differentiation between qualities or levels of access to work to improve social welfare.
 
O’Connor: we used to think of vinyl as lasting forever, and then it doesn’t.  Now we can, in the cloud. But am I buying a forever copy?  Or do I lose access if I don’t pay?
 
Sag: Peter DiCola has a good paper on this, the option value of music. Cassette: really a one or two year license.  (How badly does he treat those?)
 
Aistars: buying a new device to listen costs you something, whether it’s having to watch ads or lost data. If you are buying one, why not pay for the rest?
 
O’Connor: I don’t want to buy new devices.
 
Sag: consider logic: if a blind person has glasses that capture an image of a book and translate it into an audio version I can hear. Do I really need to pay for the book twice? The tech has enabled more increased value, but why should some of that value go to the book’s copyright owner for those digital images?
 
Aistars: would depend on what the manufacturer is doing in terms of gathering info about what the person’s reading, developing additional lines of business that depends on the interest of the underlying work to the consumer. In that case some share should go to the person who’s creating the work that the individual wants to read or hear.  (Wouldn’t that share be “the cost of the copy she bought”?)  Many people do want to upgrade over time. If you complain about having to buy in a new format, you should be equally upset about having to buy the new device to play it on, and she doesn’t see that happening in this new space. (That’s because of the classic excludability problem. The device is excludable without law; the sound recording is only excludable if the law forces tech makers to design that way. That’s why they feel and are different.)
 
Sigall: dual purpose tech raises issues (infringing and noninfringing). But since more and more stuff is more like an app on different platforms, it’s less about design of particular app or device or purpose. Challenge in this space is to say: everyone will use this for everything; that’s the world. Trying to segregate what you should/shouldn’t do is extremely difficult. Fair use is relatively good at this.  Subset of copyright owners tends to object; what about the rest of the copyright owners whose works flow through the tech? We have really bad info about the preferences of those owners. How do you as a tech provider segregate these, especially without a formalities system?  Some © owners don’t speak with all but the tech is all for everything.
 
Naeve: some © Act provisions are extremely reactive to tech—cf. §110.  Fair use is more open ended. Which is a better promoter of © policy?
 
Miyashita: you have to be flexible. We can’t anticipate 18 months ahead in new tech.
 
Aistars: both are promoters. You need flexible fair use to account for unanticipated events or one-off situations. There are situations where it’s been beneficial to have a more specific permitted use and in some cases have that use compensated. Would prefer not to have industry-specific terms in legislation, but in some other place.  (Presumably a reformulated Copyright Office.)
 
Sigall: interesting to see whether a plaintiff owner argues at a high level of abstraction where the tech doesn’t matter versus arguing about which server makes which copy. His sense is that it goes both ways all the time.
 
Brauneis: the longer a delay there is in legislative action, the more we will use the courts to make new law.
 
RT: public statistics on uptake of Getty Images?  Is Getty sending C&D or non-C&D letters to people who aren’t using it to switch people over?
 
Miyashita: we are sending letters.  Encouraging/highlighting the availability.  (But no answer on statistics on uptake, sigh.)
 
Heald: thought that Kelly is defensible but appalled by current Google image search. Is anyone litigating it?  Second, Hargreaves (UK) report—no changes in the absence of empirical data (RT: though note that the initial law was not adopted with the same rigorous standards). Is that a good idea?
 
Sigall: It’s hard to argue against policy based on empirical evidence, but the question is how you get it in timely and effective fashion. Can be very difficult.
 
Q: did Getty have photographers object to the Getty embed feature?
 
Miyashita: no.  We have to acknowledge practical reality of the types of uses for which embed and social sharing are ideal. Attribution, traffic, eyeballs, data, linkbacks start to make sense as overarching strategy.
 
Loren: also have questions about new image search.  Are you doing anything?  You have market power. You could choose the robot exclusion header.  Setting the law aside, there’s a business reality.
 
Miyashita: we could use robots.txt, but the 100s or 1000s of other licensees—there’s no means for them to exclude; publishers would have to implement robots.txt, and then the stolen sites would be the prominent results.  (That’s … not exactly true in that the publishers could implement robots.txt just for images, and allow text to be indexed.  And then there is the DMCA.)
 
Aistars: many people we work with are individual authors. To the extent there are ways to aggregate and get value from works, whether monetary or data/interaction, those are positive things.
 
Sigall: has seen interesting things happen around accommodating multiplicity of uses, fair and unfair.  Videogames.  Valve’s Steam platform: starts from ground-up understanding of what customers and users and creators all understand about what you can and can’t do. They accept fair limits because the platform has been built that way.  Create norms around usage that are more meaningful, enforceable, and practical than if you looked to the Copyright Act to mediate the transaction.
 
Samuelson: the role of TPMs and anticircumvention. When I read §1201 submissions from GM and the Auto Alliance, they have concerns about battery life and warranties, not about infringement. In the internet of things, TPMs may become a new set of issues; fair use circumventions already happen every day. How will TPMs and anticircumvention evolve?
 
Sag: most TPMs don’t work. When they’re circumvented, often won’t give rise to liability, for courts following Chamberlain and Lexmark. Attempts to use TPMs to control aftermarket could be an antitrust violation if you buy a single-brand lock-in theory. Lots of moving parts, and then there’s whether the Copyright Office should be writing regulations.  (Um, the answer is clearly no: what business of the Office is it how long the battery of your car lasts?)
 
Sigall: there’s a role for TPMs to preserve the rights of copyright owners. Valve uses TPMs in a pretty significant way, but they’ve built it to be flexible.  Tech is deployed in a social and communal setting that determines whether or not the tech works; the legal architecture sits in the broader community.  If you do it right you diminsh the need for circumvention.  You will have abuse of tech, abuse of legal protection. Safety valves: the © Office rulemaking, which gives us information about what’s working and what’s not. Chamberlain and Skylinkalso showed courts willing to create exemptions that didn’t exist in the statute. Don’t paint too broad a brush: TPMs aren’t going to save copyright owners or destroy users.  (Just uses.)
 
Brauneis: in a networked world, when you can keep important parts of the works on a remote server, the use of TPMs is less important. 
 
Aistars: TPMs can reassure authors into supporting new formats. Problematic when used for printer cartridges and garage door openers; courts have been able to get it right.
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Campbell conference: Judge Leval keynote

Posted on April 17, 2015 by rtushnet
Keynote Address: The Honorable Pierre Leval
 
Earned a reversal rate of 67% in his significant fair use cases; at the cutting edge of law in the role of the salami.  Campbell: good framework for authors, without manacles on science.
 
The law before Campbell: with the exception of Story’s spare but well targeted caution in 1841 that fair use must not supersede the objects of the original, courts had failed to distinguish between infringement and fair use; decisions made largely from the gut. The notion that commercial uses were presumptively unfair plagued fair use analysis until blunted by Campbell.  He is also dubious whether Sony’s fair use analysis was correct at all—seems like an outlier.
 
Harper & Rowemitted numerous distracting aphorisms. Repeated Sony’s pernicious declaration of hostility to commercial uses; asserted that quotation from unpublished works tends to negate fair use. If correct where there was a scoop of imminent publication, couldn’t be correct when it reveals facts the rightsholder tries to conceal—e.g., hypothetical correspondence between Nixon and Ford promising a pardon in return for agreement to resign.
 
There is need to test accuracy of factual works, allowing quotation. But that doesn’t mean you can copy wholesale from an earlier treatment of same subject just because it’s a factual topic—again contrary to Harper & Row. And finally, the Court erred in saying “fair use presupposes good faith and fair dealing,” in reference to the Nation’s scoop/unauthorized access.
 
Campbell brought an end to this bad piloting and aimless drift.  Undertook at last to explain fair use in terms of the goals of copyright: protection of author’s exclusive right to publish for profit while allowing for the enrichment of public understanding to advance new objectives or achieve new understandings so long as there isn’t too much interference with the author’s market. Most important: Campbelltaught us not to look too hard for answers in the words of the statute, because Congress clearly did not intend to tell us what fair use was but rather to acknowledge the doctrine’s existence, leaving further development to the courts. Judges often feel insecure w/copyright cases and the doctrine is quite complex. Would have been better for Congress to say “fair use is not an infringement.”
 
Campbell reinforced Story’s insistence on superseding the object of the original, and rejected anti-commercial law. Negated/cast doubt on continuing validity of Nation’s good faith requirement. Cautioned courts in cases raising nonfrivolous fair use defenses to be hesitant to enjoin.
 
Asking: whether the copying pursues a different objective, and does it compete significantly with the original by offering itself as substitute in a market the law reserves to the copyright owner? These are intertwined questions. More divergence in objectives, less likely competition in original’s exclusive markets.  Substitution needs to be more than trivial.
 
Campbell’s touchstone is copyright’s touchstone. A © law without fair use would fail to satisfy copyright’s objectives. Coming just before the dawn of the internet, Campbell was prescient or just lucky in formulating a mode of analysis that could answer new questions arising in droves in the digital age.
 
How is Campbelldoing? The view that complete unchanged copies can’t be fair use is arbitrary/incompatible with objectives of copyright. Would be disastrously limiting. Innumerable valuable functions are served by complete copies that don’t harm copyright owner’s market.  Only way to explain how bad L. Ron Hubbard was is to quote big chunks of his letters.
 
Internet: innumerable copies of the entirety; numerous well-reasoned decisions allow complete copies if the copying expands knowledge about the copied items—e.g., Kelly v. Arribasoft, where low resolution protects against substitutions  iParadigms: detecting plagiarism.  HathiTrust: tool for identifying and locating books that use a particular word/subject.
 
Another objection is that under Campbell, transformativeness may override the fourth factor. Courts need to determine whether the secondary work competes with a derivative work of the original.  These aren’t criticisms of Campbell but of misinterpretations thereof. Public benefit is important, but not at the expense of the fourth factor.  Campbell said so and remanded for factfinding on that point.  Lower courts may be speaking incautiously, or in the absence of a plausible argument based on derivative rights, when they discuss only the market for the original.
 
Vagueness and unpredictability: Predictability is a good thing, but bright line rules are likely to produce bad results in complicated situations.  Ultimate loser is the public, the primary intended beneficiary of copyright.  Injury occurs regardless of whether fair use is construed too broadly, deterring creation, or too narrowly. Any bright line test he’s seen suggestion would either place unreasonable restraints on creativity or diminish the rights of copyright owners. Hard to imagine a better test with more acceptable results.
 
Also doesn’t agree with unpredictability claim. Courts of appeals cases seem to have produced reasonable/predictable results.
 
Posner argues that instead we should look to complement/replacement relationship.  Complement: hammer & nails. Is the D’s work a complement?  Posner says book reviews are complements to books. If reviews depended on permission of publisher, public would distrust reviews. Thus, both sides benefit from the right to quote without permission, and consent to quote can be inferred from overall benefit of quotation rights to publishers.  Respectfully, nope. This may work fine for the book review example, but not other heartland examples.  (RT: I think it doesn’t work for book reviews—it assumes that book review readers know the law and take it into account in their credibility determinations, and that this is why publishers generally refrain from trying to license book reviews. That is implausible.)  Consider when secondary author is investigative reporter who quotes from unpublished works to reveal crimes, bigotry, corruption, etc.  There would not be general permission.  So too with parody.  Few authors are eager for ridicule.  Complementary formula would kill off many forms of fair use.
 
A futher problem: the word complementary perfectly describes classic derivative works. Novel to film or cartoon character to plush toy or translation of poem into another language. 
 
Overlap with derivative works right: it doesn’t follow from ambiguous language that transformativeness is inappropriate to signify the crux of the factor one inquiry.  Hasn’t heard a better word for that question: Is there a productive change?  The word derivative suffers from the same ambiguity.  “Transformative” was never intended as a full definition of fair use.
 
Congress wasn’t defining derivative works, but legislating in an older mode, using courts as partners by using a list of examples conveying the types of transformations Congress had in mind as derivative works, leaving courts to formulate a standard that would accomplish Congress’s goal. Campbell didn’t say much on this: only those markets that creators would in general develop.  That’s a limitation, not a scope: makes sense as a limitation preventing authors from enlarging the scope of their rights by making offers to license parody. But Campbelldidn’t explore the territory covered by derivative right. 
 
Focus on nature and purpose of copyright can provide a helpful approach. © protects author’s manner of expression. Examples in statutory list are works that seek to re-communicate expression of original converted into different form or medium. The more the aim of the secondary copying is to communicate the original author’s manner of expression in changed form without commentary on it or providing information about it, the stronger the argument for classification as a derivative work. The more the new work undertakes to communicate attitudes or information about the work, the more it goes to fair. If you love it for the same reason—it re-presents original creation in a new form—then it’s derivative.
 
Few pronouncements more harmful to fair use than that fair use presupposes good faith and fair dealing.  Good faith requirement would undermine ©’s primary goal of enriching public knowledge, and have bad consequences for all. © is a commercial right given to stimulate creativity to benefit society at large.  Any right to suppress facts, ideas, fair use would be harmful.  User’s good or bad faith has no bearing on the copyright law’s goal. Shouldn’t matter if secondary author obtained copy by armed robbery: there are other remedies for that.  Good faith would also impose huge inefficiencies/uncertainties on everyone concerned. Fair use should generally be resolvable on the pleadings or at most on sj.  If moralistic evaluation of conduct is important, courts will frequently be unable to decide a case pretrial. SCt should finish the job and expressly disavow the Nation’s terrible statement.
 
Copyright and freedom of the press are uncomfortable bedfellows. © might have trouble being constitutional without express authorization; if too broad, still intolerable clash w/free press. Fair use is 1A’s agent within the framework of copyright, converting conflict into synergy.
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Campbell conference: Judge Leval keynote

Posted on April 17, 2015 by rtushnet
Keynote Address: The Honorable Pierre Leval
 
Earned a reversal rate of 67% in his significant fair use cases; at the cutting edge of law in the role of the salami.  Campbell: good framework for authors, without manacles on science.
 
The law before Campbell: with the exception of Story’s spare but well targeted caution in 1841 that fair use must not supersede the objects of the original, courts had failed to distinguish between infringement and fair use; decisions made largely from the gut. The notion that commercial uses were presumptively unfair plagued fair use analysis until blunted by Campbell.  He is also dubious whether Sony’s fair use analysis was correct at all—seems like an outlier.
 
Harper & Rowemitted numerous distracting aphorisms. Repeated Sony’s pernicious declaration of hostility to commercial uses; asserted that quotation from unpublished works tends to negate fair use. If correct where there was a scoop of imminent publication, couldn’t be correct when it reveals facts the rightsholder tries to conceal—e.g., hypothetical correspondence between Nixon and Ford promising a pardon in return for agreement to resign.
 
There is need to test accuracy of factual works, allowing quotation. But that doesn’t mean you can copy wholesale from an earlier treatment of same subject just because it’s a factual topic—again contrary to Harper & Row. And finally, the Court erred in saying “fair use presupposes good faith and fair dealing,” in reference to the Nation’s scoop/unauthorized access.
 
Campbell brought an end to this bad piloting and aimless drift.  Undertook at last to explain fair use in terms of the goals of copyright: protection of author’s exclusive right to publish for profit while allowing for the enrichment of public understanding to advance new objectives or achieve new understandings so long as there isn’t too much interference with the author’s market. Most important: Campbelltaught us not to look too hard for answers in the words of the statute, because Congress clearly did not intend to tell us what fair use was but rather to acknowledge the doctrine’s existence, leaving further development to the courts. Judges often feel insecure w/copyright cases and the doctrine is quite complex. Would have been better for Congress to say “fair use is not an infringement.”
 
Campbell reinforced Story’s insistence on superseding the object of the original, and rejected anti-commercial law. Negated/cast doubt on continuing validity of Nation’s good faith requirement. Cautioned courts in cases raising nonfrivolous fair use defenses to be hesitant to enjoin.
 
Asking: whether the copying pursues a different objective, and does it compete significantly with the original by offering itself as substitute in a market the law reserves to the copyright owner? These are intertwined questions. More divergence in objectives, less likely competition in original’s exclusive markets.  Substitution needs to be more than trivial.
 
Campbell’s touchstone is copyright’s touchstone. A © law without fair use would fail to satisfy copyright’s objectives. Coming just before the dawn of the internet, Campbell was prescient or just lucky in formulating a mode of analysis that could answer new questions arising in droves in the digital age.
 
How is Campbelldoing? The view that complete unchanged copies can’t be fair use is arbitrary/incompatible with objectives of copyright. Would be disastrously limiting. Innumerable valuable functions are served by complete copies that don’t harm copyright owner’s market.  Only way to explain how bad L. Ron Hubbard was is to quote big chunks of his letters.
 
Internet: innumerable copies of the entirety; numerous well-reasoned decisions allow complete copies if the copying expands knowledge about the copied items—e.g., Kelly v. Arribasoft, where low resolution protects against substitutions  iParadigms: detecting plagiarism.  HathiTrust: tool for identifying and locating books that use a particular word/subject.
 
Another objection is that under Campbell, transformativeness may override the fourth factor. Courts need to determine whether the secondary work competes with a derivative work of the original.  These aren’t criticisms of Campbell but of misinterpretations thereof. Public benefit is important, but not at the expense of the fourth factor.  Campbell said so and remanded for factfinding on that point.  Lower courts may be speaking incautiously, or in the absence of a plausible argument based on derivative rights, when they discuss only the market for the original.
 
Vagueness and unpredictability: Predictability is a good thing, but bright line rules are likely to produce bad results in complicated situations.  Ultimate loser is the public, the primary intended beneficiary of copyright.  Injury occurs regardless of whether fair use is construed too broadly, deterring creation, or too narrowly. Any bright line test he’s seen suggestion would either place unreasonable restraints on creativity or diminish the rights of copyright owners. Hard to imagine a better test with more acceptable results.
 
Also doesn’t agree with unpredictability claim. Courts of appeals cases seem to have produced reasonable/predictable results.
 
Posner argues that instead we should look to complement/replacement relationship.  Complement: hammer & nails. Is the D’s work a complement?  Posner says book reviews are complements to books. If reviews depended on permission of publisher, public would distrust reviews. Thus, both sides benefit from the right to quote without permission, and consent to quote can be inferred from overall benefit of quotation rights to publishers.  Respectfully, nope. This may work fine for the book review example, but not other heartland examples.  (RT: I think it doesn’t work for book reviews—it assumes that book review readers know the law and take it into account in their credibility determinations, and that this is why publishers generally refrain from trying to license book reviews. That is implausible.)  Consider when secondary author is investigative reporter who quotes from unpublished works to reveal crimes, bigotry, corruption, etc.  There would not be general permission.  So too with parody.  Few authors are eager for ridicule.  Complementary formula would kill off many forms of fair use.
 
A futher problem: the word complementary perfectly describes classic derivative works. Novel to film or cartoon character to plush toy or translation of poem into another language. 
 
Overlap with derivative works right: it doesn’t follow from ambiguous language that transformativeness is inappropriate to signify the crux of the factor one inquiry.  Hasn’t heard a better word for that question: Is there a productive change?  The word derivative suffers from the same ambiguity.  “Transformative” was never intended as a full definition of fair use.
 
Congress wasn’t defining derivative works, but legislating in an older mode, using courts as partners by using a list of examples conveying the types of transformations Congress had in mind as derivative works, leaving courts to formulate a standard that would accomplish Congress’s goal. Campbell didn’t say much on this: only those markets that creators would in general develop.  That’s a limitation, not a scope: makes sense as a limitation preventing authors from enlarging the scope of their rights by making offers to license parody. But Campbelldidn’t explore the territory covered by derivative right. 
 
Focus on nature and purpose of copyright can provide a helpful approach. © protects author’s manner of expression. Examples in statutory list are works that seek to re-communicate expression of original converted into different form or medium. The more the aim of the secondary copying is to communicate the original author’s manner of expression in changed form without commentary on it or providing information about it, the stronger the argument for classification as a derivative work. The more the new work undertakes to communicate attitudes or information about the work, the more it goes to fair. If you love it for the same reason—it re-presents original creation in a new form—then it’s derivative.
 
Few pronouncements more harmful to fair use than that fair use presupposes good faith and fair dealing.  Good faith requirement would undermine ©’s primary goal of enriching public knowledge, and have bad consequences for all. © is a commercial right given to stimulate creativity to benefit society at large.  Any right to suppress facts, ideas, fair use would be harmful.  User’s good or bad faith has no bearing on the copyright law’s goal. Shouldn’t matter if secondary author obtained copy by armed robbery: there are other remedies for that.  Good faith would also impose huge inefficiencies/uncertainties on everyone concerned. Fair use should generally be resolvable on the pleadings or at most on sj.  If moralistic evaluation of conduct is important, courts will frequently be unable to decide a case pretrial. SCt should finish the job and expressly disavow the Nation’s terrible statement.
 
Copyright and freedom of the press are uncomfortable bedfellows. © might have trouble being constitutional without express authorization; if too broad, still intolerable clash w/free press. Fair use is 1A’s agent within the framework of copyright, converting conflict into synergy.
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Campbell conference: ethical and strategic issues in fair use litigation

Posted on April 17, 2015 by rtushnet
Panel III. Ethical and Strategic Issues in Fair Use Litigation (Moderator, Professor Naeve)
 
Naeve: discuss ethics of parody, disparagement, use in pornographic work. Should you ask permission?
 
Lydia Loren, Lewis & Clark: for all its positive effects, she dislike Campbell’s characterization of fair use as an affirmative defense.  A defense is any reason D might prevail: work is in public domain; P isn’t the owner; I didn’t copy.  These may be pled as defenses, but an affirmative defense is a “yes but.” I infringed, but it’s ok. That really solidified in Campbell: only address fair use after the prima facie case has been met, putting burden on D.  But why?
 
D counsel conceded it was an affirmative defense at oral argument in Campbell.  Campbellcites Harper & Row, which calls it a defense many times but an affirmative defense only once. We teach it as affirmative defense, but it falls apart as such.  The statutory language does not support the characterization: §107 says fair use is “not an infringement.” §106 says the rights are subject to §§107-110; §501 says violations in the statute as provided §§106-122. Legislative history (cited by Harper & Row) speaks of fair use as part and parcel of the definition of the copyright owner’s right. And indeed the genesis of the doctrine is in Justice Story’s determination of whether there was infringement, not a separate fair use inquiry.
 
Courts should therefore stop putting lack of evidence as a reason why sj shouldn’t be granted. Instead it’s part of the scope of copyright owner’s rights.
 
Chris Buccafusco, Chicago-Kent: Why do people object to uses of their works? Fair use is supposed to provide a safety valve when those objections are not related to legally cognizable interests. Copyright is consequentialist, reserving some rights to authors and others to users/downstream creators.  But people create for lots of reasons, not just (or often) © incentives.
 
Dave Fagundes and I have started to look at why people object to copying.  Moral foundations: Harm rationales; unfairness/lack of reciprocity; purity; loyalty; authority.  Authors who object to “murdering their babies”: authority rationale; Scientologists; Christian sculptor upset by appearance of his sculpture in The Devil’s Advocatein a pagan/heathen context.  Can we learn by systematizing these reasons?
 
How well does fair use respond to diverse and heterogeneous moral concerns authors and owners have about use of their work? Which factors do the work of excluding noneconomic objections?  Is fair use doing a better job of constraining certain kinds of nonmarket objections than others?  Gotten pretty good at dealing with objections that are really just about control, like Scientology. Not as good with objections dealing w/ purity or fairness.
 
To what extent should fair use become even more psychologically realist? Fair use is a story of market harm, but creation has less to do with markets than copyright claims. If we start recognizing true creative motivations, do we need to recognize certain moral objections if they turn out to affect creative production?
 
Duncan Macfarlane, Macfarlane Law: Sync licenses versus cover rights.  Sync licenses are in practice moral rights: artists have turned down sync licenses simply because they didn’t want their music used in a particular way. Sync licenses are also often exclusive, so an artist must pick which project to go with.  Freeplay v. Maker litigation: using AV works without sync licenses.
 
Must copyright owner consider fair use before sending a takedown?  Lenz v. Universal: so obviously fair use that Universal shouldn’t have issued a takedown?  He doesn’t think so.  In his mind, she’s using the music as originally intended; her children are interacting w/ the music.  Not incidental and background, and anyway incidental and background doesn’t make it fair use.  Third factor doesn’t weigh one way or another (in 29 second film).  Regarding market effect: SCt said it wasn’t the single use, but whether unrestricted and widespread similar uses would negatively impact the market. YouTube has dramatically impacted the market; some of his client left the creative industries because they feel their work is too easily used.  He understands that YouTube is here to stay and fair use is here to stay.
 
Paul Heald, Illinois (w/Buccafusco): Study on parody, testing theories of tarnishment.  Test theory: in copyright, the existence of Madeline Does Dallas might lead to awkward questions during bedtime stories: used to justify term extension as well as the result in Air Pirates: strong sexual connections w/ a work harm it.  Testimony: we can’t have Mickey Mouse porn or Superman porn.  (Oh, do I have some news for those people.  Also, see the IMDB entry for this movie.)  TM: similar claims—brand associated with incompatible values or unpleasant images = less likely to buy.  Photos of the allegedly tarnishing uses themselves are “potent witnesses” even w/out other evidence of harm.
 
Summary of consumer psych research on sex in ads: sex generally increases brand recall; may have negative effect on brand perceptiondepending on context; marginally positively influences purchasing decisions.  Baseline survey: late-night movies, eliciting opinions on pairs of movies, e.g., You’ve Got Mail/Sleepless in Seattle.  Then try to tarnish one movie and see whether you get different results.  (If you pair w/some other film before asking about the two, it doesn’t affect results so it’s not a reminder effect.)
 
Then tested You’ve Got She-Male and Bi-Tanic, then ten pairs later You’ve Got Mail and Sleepless in Seattle.  The claim is that mere knowledge of the tarnishing use is enough to lessen the value of the underlying mark.  We also asked would you like a T-shirt from movie A or B. Haven’t found a whole lot. Significant negative difference in whether they want a T-shirt with one movie, but exposure to tarnishing movie doesn’t move consumer preference between movies.
 
Next iteration: test movie title recall and desire to watch a sequel.  We do ask age, gender, religion, porn tolerance, movie watching frequency, politics (Amazon Turk folks are more likely porn tolerant and liberal). So far no demographic data has proved significant either.
 
Mark McKenna, presenting for William McGeveran, Minnesota: How do courts treat parody in TM? Parody is less relevant in TM than copyright.  Relevant doctrinal category isn’t parody, resulting in diminished importance of defining what a parody is. His takeaway: courts overwhelmingly protect the parody and declare it noninfringing, with overwhelmingly old exceptions, most predating Campbell.  TM law was in expansionist mode, but doctrine has settled back into a parody-protective stance. There’s a reason it’s been easier in TM: don’t present a direct conflict w/ the right—TM is not a right against mere use, but against use w/certain effects; © does protect against mere use.  Developing consensus around expressive uses/use of marks in expressive works, a set of doctrines prominently associated with Rogers v. Grimaldi.  (Older: nominative fair use or even using descriptive fair use.)
 
Problem is not w/decided cases and we should stop saying that it is. Please.  There are a few outliers, but as compared to any other doctrine, courts get it right. Real problem is at the C&D stage. Old cases have incredibly long legs, asserted in letters even now—Enjoy Cocaine, Balducci, Mutant of Omaha—8thCircuit is especially to blame. But even the 8th Circuit seems to be moving.  C&D are effective in part b/c of these older cases, but also trades on a narrative that McGeveran wants to help us avoid: lawyers too often repeat that there’s uncertainty about what will happen, making people reluctant to fight back. Courts get the right results, but often through unpredictable doctrinal categories/doctrines that require fact development and thus aren’t used early in the case.
 
Thus, we should focus on reforming procedural dimensions to fast-track certain dismissals. Embrace of Rogersis helping, since artistic relevance and explicit misleadingness can often be answered early in the case. Give confidence to people to tell TM owner to pound sand.
 
Mark Wittow, K & L Gates: What happens to people who can’t hire a lawyer but approach free legal clinics, like Washington Lawyers for the Arts and ArtistsTrust, Wayfind.  Sony v. Faulkner estate—people can sue for anything, even a single sentence, even though he’d previously have thought no one in their right mind would’ve sued over that. You always have to advise in the context of risk.  After Campbell: There’s no benefit/detriment to asking permission/skipping a request.  If what you’re doing is likely to stay under the radar/not make much money, don’t ask permission.
 
What about the non-brought cases such as Girl Talk?  Nobody’s willing to take him on for fear of making bad law; also he doesn’t make any money from his samples.
 
Attribution: people often want to know whether it’s helpful to attribute: he says it doesn’t help for © but is the right thing to do.
 
Loren: you need to plead a plausible claim of similarity.  If you stay pristine, can’t be 12(b)(6), which happens in the Brownmark case where the court of appeals says, do it on the pleadings under 12(c).  Has seen Iqbal interpreted to dismiss a fair use affirmative defense because there weren’t enough facts pled to make fair use plausible: ugh.  How do you prove lack of harm?  Innovative approaches, like HathiTrust, where they asked the Ps in interrogatories: state any harm.  Court points to the answer—we don’t have any—as evidence of no harm. If burden were on plaintiffs, we’d have to have a full harm debate. 
 
Preliminary injunction stage: shifts the burden to Ps. We see that in Perfect 10 v. Amazon: court excised a portion of the opinion saying that likely success inquiry should consider likelihood of overcoming fair use defense.  So this concept does have impact, especially in procedural aspects of the case.
 
Naeve: after Lenz and Brownmark, is there an affirmative obligation to do a fair use analysis?
 
Macfarlane: Lenzis undecided; the argument is that the burden should be on the copyright owner.  Google receives 10 million+ takedown notices/month.  Fair use would be a sword rather than a shield.  Unworkable.  (NB: attorneys’ fees eligibility already makes fair use a sword in some circumstances.)  DMCA contemplated that counternotification would be used to get a work back up promptly.  Proven to work. (RT: actually, counternotification requires the work to stay down for a number of days.)
 
Naeve: with Tiffany v. eBay, burden is on the TM owner.  Sometimes, is fair use so obvious that there should be an obligation?
 
Wittow: technical management problem. Sampling tech detects things automatically. Not really possibility of fair use analysis. But once there’s a fair use response, the action needs to shift and the veracity of initial notice is beside the point; there should be real proof it’s not fair use.
 
Loren: does the ISP have an obligation to consider fair use?  The © owner will never sue unless the ISP refused to take down.  The user won’t be able to sue, as long as ISP behaves according to DCMA.  That’s the point of §512; also user agreements make it hard to sue. Hard to construct a theory of liability for failure of ISP to consider fair use.
 
Naeve: how do you counsel clients on parody/satire?
 
McKenna: not even a strong distinction in Campbell; parody was just a paradigmatic example of transformativeness.  Maps well onto some uses and not others.  Transformative use means more than parody, and that’s a good thing as the dilution of this always unstable parody/satire distinction became more apparent.
 
Heald: Court was thinking about an old case in which Jack Benny skit was held liable for taking too much.
 
Buccafusco: some of our porn versions explicitly say “parody” or “a porn parody” on them and we don’t see any differences in results; some appear to poke fun at the original and others don’t, and again there doesn’t seem to be a difference.  Maybe viewing would make a difference, but the harm claim doesn’t depend on people viewing, just knowing about the parodic version.
 
Is/ought distinction: law need not adopt moral outrage.  Can stay committed to a brand of consequentialism that promotes creativity and preserves opportunities for sequential innovation.  First Amendment externalities.
 
Naeve: how do you counsel v. defamation?
 
Wittow: people have brought me defamation problems, mixed in w/copyright issues. Defamation is so much easier b/c the rules are pretty straightforward; it’s not that you can’t get a bad verdict, especially outside the US, but it’s easier—comparison highlights how much harder it is to advise someone on fair use.  Fact is a defense, opinion is a defense, and public figure changes the standard entirely.  It will be the unusual parody that isn’t opinion and isn’t about a public figure. Most people worry about defamation for no reason.
 
Buccafusco: speculates that for a lot of people, unauthorized uses that we think of as parodies feel like defamation to the authors—not opportunities for cultural exchange but individually felt harms—emotional, or other kinds of moral interests.
 
Heald: argues that we have moral rights functionally in US law, at least for music; fair use may be used to fight against that.
 
Said: falsity is a requirement for defamation.  When defamation is pled in such a way to object to something that isn’t squarely provable as false, it’s operating the same way as moral rights in copyright. (See why I’ve written that this makes dilution unconstitutional.)  But there’s a strong privilege protecting against abuse of right: fair use, and burden of showing falsity/actual malice for public figure.
 
Naeve: we do overlap with defamation, rights of publicity, TM.  You might have one creative work that intersects w/all these areas.
 
Hughes: What about the existing fame of You’ve Got Mail—what if it’s so powerful that the effect of You’ve Got She-Male doesn’t come through? 
 
Heald: in the next iteration we will be doing recall—ten titles you remember from the survey.  They won’t have any images in front of them.
 
Buccafusco: some of them have variation in the sample—but so far there don’t seem to be differences across comedies, children’s films, etc.
 
McKenna: the Q is whether there’s any effect on demand.  We seem to be mashing up a dilution effect on demand for the work v. demand for the mark.  There is some work on marks alone, which finds pretty much the same thing.
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Campbell conference: ethical and strategic issues in fair use litigation

Posted on April 17, 2015 by rtushnet
Panel III. Ethical and Strategic Issues in Fair Use Litigation (Moderator, Professor Naeve)
 
Naeve: discuss ethics of parody, disparagement, use in pornographic work. Should you ask permission?
 
Lydia Loren, Lewis & Clark: for all its positive effects, she dislike Campbell’s characterization of fair use as an affirmative defense.  A defense is any reason D might prevail: work is in public domain; P isn’t the owner; I didn’t copy.  These may be pled as defenses, but an affirmative defense is a “yes but.” I infringed, but it’s ok. That really solidified in Campbell: only address fair use after the prima facie case has been met, putting burden on D.  But why?
 
D counsel conceded it was an affirmative defense at oral argument in Campbell.  Campbellcites Harper & Row, which calls it a defense many times but an affirmative defense only once. We teach it as affirmative defense, but it falls apart as such.  The statutory language does not support the characterization: §107 says fair use is “not an infringement.” §106 says the rights are subject to §§107-110; §501 says violations in the statute as provided §§106-122. Legislative history (cited by Harper & Row) speaks of fair use as part and parcel of the definition of the copyright owner’s right. And indeed the genesis of the doctrine is in Justice Story’s determination of whether there was infringement, not a separate fair use inquiry.
 
Courts should therefore stop putting lack of evidence as a reason why sj shouldn’t be granted. Instead it’s part of the scope of copyright owner’s rights.
 
Chris Buccafusco, Chicago-Kent: Why do people object to uses of their works? Fair use is supposed to provide a safety valve when those objections are not related to legally cognizable interests. Copyright is consequentialist, reserving some rights to authors and others to users/downstream creators.  But people create for lots of reasons, not just (or often) © incentives.
 
Dave Fagundes and I have started to look at why people object to copying.  Moral foundations: Harm rationales; unfairness/lack of reciprocity; purity; loyalty; authority.  Authors who object to “murdering their babies”: authority rationale; Scientologists; Christian sculptor upset by appearance of his sculpture in The Devil’s Advocatein a pagan/heathen context.  Can we learn by systematizing these reasons?
 
How well does fair use respond to diverse and heterogeneous moral concerns authors and owners have about use of their work? Which factors do the work of excluding noneconomic objections?  Is fair use doing a better job of constraining certain kinds of nonmarket objections than others?  Gotten pretty good at dealing with objections that are really just about control, like Scientology. Not as good with objections dealing w/ purity or fairness.
 
To what extent should fair use become even more psychologically realist? Fair use is a story of market harm, but creation has less to do with markets than copyright claims. If we start recognizing true creative motivations, do we need to recognize certain moral objections if they turn out to affect creative production?
 
Duncan Macfarlane, Macfarlane Law: Sync licenses versus cover rights.  Sync licenses are in practice moral rights: artists have turned down sync licenses simply because they didn’t want their music used in a particular way. Sync licenses are also often exclusive, so an artist must pick which project to go with.  Freeplay v. Maker litigation: using AV works without sync licenses.
 
Must copyright owner consider fair use before sending a takedown?  Lenz v. Universal: so obviously fair use that Universal shouldn’t have issued a takedown?  He doesn’t think so.  In his mind, she’s using the music as originally intended; her children are interacting w/ the music.  Not incidental and background, and anyway incidental and background doesn’t make it fair use.  Third factor doesn’t weigh one way or another (in 29 second film).  Regarding market effect: SCt said it wasn’t the single use, but whether unrestricted and widespread similar uses would negatively impact the market. YouTube has dramatically impacted the market; some of his client left the creative industries because they feel their work is too easily used.  He understands that YouTube is here to stay and fair use is here to stay.
 
Paul Heald, Illinois (w/Buccafusco): Study on parody, testing theories of tarnishment.  Test theory: in copyright, the existence of Madeline Does Dallas might lead to awkward questions during bedtime stories: used to justify term extension as well as the result in Air Pirates: strong sexual connections w/ a work harm it.  Testimony: we can’t have Mickey Mouse porn or Superman porn.  (Oh, do I have some news for those people.  Also, see the IMDB entry for this movie.)  TM: similar claims—brand associated with incompatible values or unpleasant images = less likely to buy.  Photos of the allegedly tarnishing uses themselves are “potent witnesses” even w/out other evidence of harm.
 
Summary of consumer psych research on sex in ads: sex generally increases brand recall; may have negative effect on brand perceptiondepending on context; marginally positively influences purchasing decisions.  Baseline survey: late-night movies, eliciting opinions on pairs of movies, e.g., You’ve Got Mail/Sleepless in Seattle.  Then try to tarnish one movie and see whether you get different results.  (If you pair w/some other film before asking about the two, it doesn’t affect results so it’s not a reminder effect.)
 
Then tested You’ve Got She-Male and Bi-Tanic, then ten pairs later You’ve Got Mail and Sleepless in Seattle.  The claim is that mere knowledge of the tarnishing use is enough to lessen the value of the underlying mark.  We also asked would you like a T-shirt from movie A or B. Haven’t found a whole lot. Significant negative difference in whether they want a T-shirt with one movie, but exposure to tarnishing movie doesn’t move consumer preference between movies.
 
Next iteration: test movie title recall and desire to watch a sequel.  We do ask age, gender, religion, porn tolerance, movie watching frequency, politics (Amazon Turk folks are more likely porn tolerant and liberal). So far no demographic data has proved significant either.
 
Mark McKenna, presenting for William McGeveran, Minnesota: How do courts treat parody in TM? Parody is less relevant in TM than copyright.  Relevant doctrinal category isn’t parody, resulting in diminished importance of defining what a parody is. His takeaway: courts overwhelmingly protect the parody and declare it noninfringing, with overwhelmingly old exceptions, most predating Campbell.  TM law was in expansionist mode, but doctrine has settled back into a parody-protective stance. There’s a reason it’s been easier in TM: don’t present a direct conflict w/ the right—TM is not a right against mere use, but against use w/certain effects; © does protect against mere use.  Developing consensus around expressive uses/use of marks in expressive works, a set of doctrines prominently associated with Rogers v. Grimaldi.  (Older: nominative fair use or even using descriptive fair use.)
 
Problem is not w/decided cases and we should stop saying that it is. Please.  There are a few outliers, but as compared to any other doctrine, courts get it right. Real problem is at the C&D stage. Old cases have incredibly long legs, asserted in letters even now—Enjoy Cocaine, Balducci, Mutant of Omaha—8thCircuit is especially to blame. But even the 8th Circuit seems to be moving.  C&D are effective in part b/c of these older cases, but also trades on a narrative that McGeveran wants to help us avoid: lawyers too often repeat that there’s uncertainty about what will happen, making people reluctant to fight back. Courts get the right results, but often through unpredictable doctrinal categories/doctrines that require fact development and thus aren’t used early in the case.
 
Thus, we should focus on reforming procedural dimensions to fast-track certain dismissals. Embrace of Rogersis helping, since artistic relevance and explicit misleadingness can often be answered early in the case. Give confidence to people to tell TM owner to pound sand.
 
Mark Wittow, K & L Gates: What happens to people who can’t hire a lawyer but approach free legal clinics, like Washington Lawyers for the Arts and ArtistsTrust, Wayfind.  Sony v. Faulkner estate—people can sue for anything, even a single sentence, even though he’d previously have thought no one in their right mind would’ve sued over that. You always have to advise in the context of risk.  After Campbell: There’s no benefit/detriment to asking permission/skipping a request.  If what you’re doing is likely to stay under the radar/not make much money, don’t ask permission.
 
What about the non-brought cases such as Girl Talk?  Nobody’s willing to take him on for fear of making bad law; also he doesn’t make any money from his samples.
 
Attribution: people often want to know whether it’s helpful to attribute: he says it doesn’t help for © but is the right thing to do.
 
Loren: you need to plead a plausible claim of similarity.  If you stay pristine, can’t be 12(b)(6), which happens in the Brownmark case where the court of appeals says, do it on the pleadings under 12(c).  Has seen Iqbal interpreted to dismiss a fair use affirmative defense because there weren’t enough facts pled to make fair use plausible: ugh.  How do you prove lack of harm?  Innovative approaches, like HathiTrust, where they asked the Ps in interrogatories: state any harm.  Court points to the answer—we don’t have any—as evidence of no harm. If burden were on plaintiffs, we’d have to have a full harm debate. 
 
Preliminary injunction stage: shifts the burden to Ps. We see that in Perfect 10 v. Amazon: court excised a portion of the opinion saying that likely success inquiry should consider likelihood of overcoming fair use defense.  So this concept does have impact, especially in procedural aspects of the case.
 
Naeve: after Lenz and Brownmark, is there an affirmative obligation to do a fair use analysis?
 
Macfarlane: Lenzis undecided; the argument is that the burden should be on the copyright owner.  Google receives 10 million+ takedown notices/month.  Fair use would be a sword rather than a shield.  Unworkable.  (NB: attorneys’ fees eligibility already makes fair use a sword in some circumstances.)  DMCA contemplated that counternotification would be used to get a work back up promptly.  Proven to work. (RT: actually, counternotification requires the work to stay down for a number of days.)
 
Naeve: with Tiffany v. eBay, burden is on the TM owner.  Sometimes, is fair use so obvious that there should be an obligation?
 
Wittow: technical management problem. Sampling tech detects things automatically. Not really possibility of fair use analysis. But once there’s a fair use response, the action needs to shift and the veracity of initial notice is beside the point; there should be real proof it’s not fair use.
 
Loren: does the ISP have an obligation to consider fair use?  The © owner will never sue unless the ISP refused to take down.  The user won’t be able to sue, as long as ISP behaves according to DCMA.  That’s the point of §512; also user agreements make it hard to sue. Hard to construct a theory of liability for failure of ISP to consider fair use.
 
Naeve: how do you counsel clients on parody/satire?
 
McKenna: not even a strong distinction in Campbell; parody was just a paradigmatic example of transformativeness.  Maps well onto some uses and not others.  Transformative use means more than parody, and that’s a good thing as the dilution of this always unstable parody/satire distinction became more apparent.
 
Heald: Court was thinking about an old case in which Jack Benny skit was held liable for taking too much.
 
Buccafusco: some of our porn versions explicitly say “parody” or “a porn parody” on them and we don’t see any differences in results; some appear to poke fun at the original and others don’t, and again there doesn’t seem to be a difference.  Maybe viewing would make a difference, but the harm claim doesn’t depend on people viewing, just knowing about the parodic version.
 
Is/ought distinction: law need not adopt moral outrage.  Can stay committed to a brand of consequentialism that promotes creativity and preserves opportunities for sequential innovation.  First Amendment externalities.
 
Naeve: how do you counsel v. defamation?
 
Wittow: people have brought me defamation problems, mixed in w/copyright issues. Defamation is so much easier b/c the rules are pretty straightforward; it’s not that you can’t get a bad verdict, especially outside the US, but it’s easier—comparison highlights how much harder it is to advise someone on fair use.  Fact is a defense, opinion is a defense, and public figure changes the standard entirely.  It will be the unusual parody that isn’t opinion and isn’t about a public figure. Most people worry about defamation for no reason.
 
Buccafusco: speculates that for a lot of people, unauthorized uses that we think of as parodies feel like defamation to the authors—not opportunities for cultural exchange but individually felt harms—emotional, or other kinds of moral interests.
 
Heald: argues that we have moral rights functionally in US law, at least for music; fair use may be used to fight against that.
 
Said: falsity is a requirement for defamation.  When defamation is pled in such a way to object to something that isn’t squarely provable as false, it’s operating the same way as moral rights in copyright. (See why I’ve written that this makes dilution unconstitutional.)  But there’s a strong privilege protecting against abuse of right: fair use, and burden of showing falsity/actual malice for public figure.
 
Naeve: we do overlap with defamation, rights of publicity, TM.  You might have one creative work that intersects w/all these areas.
 
Hughes: What about the existing fame of You’ve Got Mail—what if it’s so powerful that the effect of You’ve Got She-Male doesn’t come through? 
 
Heald: in the next iteration we will be doing recall—ten titles you remember from the survey.  They won’t have any images in front of them.
 
Buccafusco: some of them have variation in the sample—but so far there don’t seem to be differences across comedies, children’s films, etc.
 
McKenna: the Q is whether there’s any effect on demand.  We seem to be mashing up a dilution effect on demand for the work v. demand for the mark.  There is some work on marks alone, which finds pretty much the same thing.
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Campbell conference: transformative use across the arts

Posted on April 17, 2015 by rtushnet
Panel II. Transformative Use Across The Arts (Moderator, Professor Said)
 
Annemarie Bridy, Idaho: Role of aesthetic judgments in fair use cases. Bleistein principle of aesthetic neutrality/nondiscrimination.  Campbell said it wouldn’t judge whether the parody was good, just whether it was a parody. Literary critics don’t make the parody/satire distinction as the case did. Courts should own up to the fact that they’re being called on to make an aesthetic judgment.
 
But with parody as © concept and not literary concept (literary elements aren’t very good), you can make it work. But then you have to treat Campbell’s discussion of satire as noise, and most courts have done so.  Kennedy left satire out of his analysis altogether; parody must target original, not just genre to which it belongs or society as a whole. (This is silly, BTW, because criticizing a genre can work by criticizing an example, so too society.)
 
We still don’t want judges to arbitrate good or bad taste in art. But we do need them to be informed about/apply aesthetic principles: Cariou v. Prince, where court said outright that the works had different “aesthetics.” 
 
Daniel Gervais, Vanderbilt: Did the derivative work rights need to exist? He thinks so. Can’t be coextensive with reproduction via substantial similarity. Also, transformativeness can’t moot the derivative works right—fair use can’t subsume the entire right. And finally, derivative work must be a work.  It must be original.
 
Using a quote: doesn’t involve a derivative work because it’s using the quote for support.  Wall tile cases: not a reproduction but has been called derivative work. Perils of failing to distinguish are shown by cases that refuse to distinguish, and discuss only market impact. If market impact is used to define the scope of the right, gets too close to fourth fair use factor and creates a paradox in definition of the right. Unstable and normatively undesirable.
 
What would be better: derivative right should be understood by looking at what’s taken from original work and what makes the first work original.  Has the second author taken elements that made the first work original?  Fair use inquiry is then separate.  Licensing is a very bad proxy here.
 
Jessica Silbey, Suffolk: creators tend to underprotect their works in economic terms in order to preserve other objectives.  Doesn’t systematically analyze borrowing in book; is looking now at “fairer uses” in this light.  Data show a wide range of creators, individuals and firms being much more tolerant of borrowing and copying, often expecting it as a matter of practice.  Singer/songwriter comments about drift of imagery/lines that happen by accident and that are tolerated as long as there’s acknowledgement within the community.  Inevitable influence: you’re influenced by Austen; you get to say “this book is like that famous book”—use others as models and give you confidence that you can do it too—use others’ work as scaffolding.
 
People expected copying and said being an artist depends on it.  Are they just describing genre? They went on to distinguish expected/accepted copying v. offensive copying.  One journalist: stealing quotes from other people is wrong: pretending that you spoke to someone when you didn’t, stealing the other reporter’s blessing. Another: it’s ok to profit for a good humane cause. Equitable dealings: nonprofit uses/small payment/credit. Much less tolerant of critical uses, feeling that they are degrading the work (including possible fair uses).
 
Steve Tapia, Seattle University: Judge’s statement: it all comes down to whether you took too damn much.  In copyright, too often we are trying to put into words/abstract concepts something that the artist never did.  Clients want gut level advice in a moment of need: can we run the Reginald Denny footage?  Yes, while it’s big news; don’t run it again.  Does transformativeness change the judgment we all made? A number of cases grew out of those spur of the moment decisions.  There is a qualitative difference b/t the moment of creation and the moment of analysis, especially now in light of remix culture.  Transformativeness might focus on wrong thing.  Fair use suggests focused on use/technique rather than on end product.  Gestalt view of moment of creation would be better.  The fan films: offered to a community as contribution rather than information sharing technique; the artistry is in the creation rather than the output.  There is a value in curation of existing works.
 
Fred Yen, Boston College: Terminal ambiguity about legality: that is problematic for free speech; is there anything that can be done? When some authors consult me, I can’t tell them for sure whether it’s ok, and Campbell didn’t change that.  Campbellwas a remand and settled; Suntrustwas a remand; Salinger v. Coltingrequires dicey aesthetic determinations to distinguish (and also ended up settling on remand).
 
Said: people do not stop and think about idea/expression before writing a novel. Is this mismatch a problem? Ought © to reflect actual practices more clearly?  Does the law have the power/duty to have an impact on existing artistic practices.
 
Tapia: Harold Bloom talks about how creation starts with copying everything gone before, and then there’s a moment of cleavage where you embrace and break away from what’s gone before and starts your own artistic creation. When you want a compensation system for that end product, you’ll find that if you look at process there’s a lot of copying.  Creation depends on ability to copy what grand masters did before.  So you need to balance the past and the future.
 
Silbey: w/large enough misalignment, we have a rule of law/legitimacy problem. How much of a misalignment does it take to make the legitimacy problem real?
 
Gervais: art can only be born from the way we see art.  Harder question arises from linedrawing and we have to rely on courts (not Congress), which have been pretty good (other than 6th Circuit).
 
Yen: law does have the ability to affect production, yes and no. When you’re consulted, you stop some of what clients do; but much is created w/out any consideration. As for duty to account for artistic practices, a qualified yes.  Qualification: even the move to say that authors should control how © controls what they do is an authorial supremacy move that we might not desire for society. That should inform what we do, but doesn’t require us to agree w/them.
 
Bridy: ignorance may be feature and not bug.  There is a real danger given ambiguities that there’d be a chilling effect.
 
Yu: technology changes things because it leaves a record. Mahler may have taken from lots of places, but if he did it digitally we might have known.
 
Gervais: cuts both ways in making it easier to find and to take.  In every case, we’re asking how much you’ve taken (vice) and how much you’ve done with it (virtue). Shift in quantity allows lots more people to do more.  Inducing quantity and making copyright law more relevant to ordinary people, which is more than quantity.
 
Silbey: interviewees mostly say thank God for the internet. Even the folks whose stuff is being copied w/o permission recognize that the balance is much better for their everyday practice—less true for graphic artists/photographers than musicians/writers.
 
Buccafusco: creators making law into inputs into their creations, and how © makes judgments about aesthetics in art—what’s going on there? Is this a new thing?
 
Rosenblatt: creators are thinking about their moral intuitions as they create, though not law; law may affect their moral intuitions and vice versa.  Fair use as a community resource—how much is that dependent on particular communities v. universal?
 
Silbey: won’t generalize, but fair use is like an ethic for most people. They assume it’s there as part of a practice, and may not have known its name until it got into the air.  Certain communities collide in sharing the ethic and others branch off. Visual artists of all kinds tend to share similar ideas.
 
Samuelson: Amy Adler’s new work on transformativeness talks about ways in which some appropriation artists are changing production practices, and not in ways that Adler thinks are a good idea; Campbell didn’t defer enough to artistic community on what was fair/appropriation rather than looking at artist’s perspective or at “reasonably perceived” perspective. Great paper.
 
Silbey: market effect factor: how does that relate to tolerance for borrowing?  In terms of code of best practices, the folks I talk to have a much narrower view of what their market is and therefore what harm they suffer from copying. What fair use/codes should do is figure out what kind of borrowing won’t thwart ongoing practices, and not what will maximally exploit. People didn’t worry about copying or competition, but did worry about reputational/ego harms, and we’ve decided in the US that’s not what © protects.
 
Yen: we come across variations of this problem elsewhere, e.g. in torts—reasonability among football players may differ from reasonability among football fans. External/internal perspectives are always hard to identify/choose between. Downside of consistency is consistent winners and losers, and for artistic practice that may not be the best thing because inconsistency may help art advance.
 
Said: cultural and racial context in which Campbell was decided.  Not judging the “vulgarity” of the rap was remarkable.  In 1994, there was huge cultural tension: 2 Live Crew had been in court on obscenity charges.  Consider Andrew Gilden’s analysis in his raw materials piece about distributional/race/gender effects.
 
Lunney: one size fits all copyright/fair use is probably not optimal.  Are there ways to introduce differences into the law?
 
Gervais: there are various types of authors, and the statute doesn’t seem to recognize that very well. Differ in not just what fair use means to them but what © means.  He suggests structuring © around different types of authors.
 
Silbey: worries about everyday authors v. Taylor Swift authors. © works for some groups and not others, but she’s not sure about how to build that into the statute.
 
Tapia: easier for us to perceive transformation in visual art than aural, because so much of our senses are devoted to the visual.
 
Silbey: some disagreement. Artists and writers talk about conversational practice.  The way they describe how the work gets made productively is through conversation with previous work. That’s how works get made and transformed, which are almost the same thing.  We may see montage; with aural/textual, remix may look more like something new/uncopied on the outside to us but from the inside they can see the fragments/montage/conversation. Hard to figure out whether the conversation is happening from outside the practice/discipline.
 
Gervais: one difference between types of art is use of tech in different fields. Computer doesn’t know idea from expression—all bits (is that true? Is idea any bits at all?).  When computer starts creating, how will we know fair use?
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Campbell conference: transformative use across the arts

Posted on April 17, 2015 by rtushnet
Panel II. Transformative Use Across The Arts (Moderator, Professor Said)
 
Annemarie Bridy, Idaho: Role of aesthetic judgments in fair use cases. Bleistein principle of aesthetic neutrality/nondiscrimination.  Campbell said it wouldn’t judge whether the parody was good, just whether it was a parody. Literary critics don’t make the parody/satire distinction as the case did. Courts should own up to the fact that they’re being called on to make an aesthetic judgment.
 
But with parody as © concept and not literary concept (literary elements aren’t very good), you can make it work. But then you have to treat Campbell’s discussion of satire as noise, and most courts have done so.  Kennedy left satire out of his analysis altogether; parody must target original, not just genre to which it belongs or society as a whole. (This is silly, BTW, because criticizing a genre can work by criticizing an example, so too society.)
 
We still don’t want judges to arbitrate good or bad taste in art. But we do need them to be informed about/apply aesthetic principles: Cariou v. Prince, where court said outright that the works had different “aesthetics.” 
 
Daniel Gervais, Vanderbilt: Did the derivative work rights need to exist? He thinks so. Can’t be coextensive with reproduction via substantial similarity. Also, transformativeness can’t moot the derivative works right—fair use can’t subsume the entire right. And finally, derivative work must be a work.  It must be original.
 
Using a quote: doesn’t involve a derivative work because it’s using the quote for support.  Wall tile cases: not a reproduction but has been called derivative work. Perils of failing to distinguish are shown by cases that refuse to distinguish, and discuss only market impact. If market impact is used to define the scope of the right, gets too close to fourth fair use factor and creates a paradox in definition of the right. Unstable and normatively undesirable.
 
What would be better: derivative right should be understood by looking at what’s taken from original work and what makes the first work original.  Has the second author taken elements that made the first work original?  Fair use inquiry is then separate.  Licensing is a very bad proxy here.
 
Jessica Silbey, Suffolk: creators tend to underprotect their works in economic terms in order to preserve other objectives.  Doesn’t systematically analyze borrowing in book; is looking now at “fairer uses” in this light.  Data show a wide range of creators, individuals and firms being much more tolerant of borrowing and copying, often expecting it as a matter of practice.  Singer/songwriter comments about drift of imagery/lines that happen by accident and that are tolerated as long as there’s acknowledgement within the community.  Inevitable influence: you’re influenced by Austen; you get to say “this book is like that famous book”—use others as models and give you confidence that you can do it too—use others’ work as scaffolding.
 
People expected copying and said being an artist depends on it.  Are they just describing genre? They went on to distinguish expected/accepted copying v. offensive copying.  One journalist: stealing quotes from other people is wrong: pretending that you spoke to someone when you didn’t, stealing the other reporter’s blessing. Another: it’s ok to profit for a good humane cause. Equitable dealings: nonprofit uses/small payment/credit. Much less tolerant of critical uses, feeling that they are degrading the work (including possible fair uses).
 
Steve Tapia, Seattle University: Judge’s statement: it all comes down to whether you took too damn much.  In copyright, too often we are trying to put into words/abstract concepts something that the artist never did.  Clients want gut level advice in a moment of need: can we run the Reginald Denny footage?  Yes, while it’s big news; don’t run it again.  Does transformativeness change the judgment we all made? A number of cases grew out of those spur of the moment decisions.  There is a qualitative difference b/t the moment of creation and the moment of analysis, especially now in light of remix culture.  Transformativeness might focus on wrong thing.  Fair use suggests focused on use/technique rather than on end product.  Gestalt view of moment of creation would be better.  The fan films: offered to a community as contribution rather than information sharing technique; the artistry is in the creation rather than the output.  There is a value in curation of existing works.
 
Fred Yen, Boston College: Terminal ambiguity about legality: that is problematic for free speech; is there anything that can be done? When some authors consult me, I can’t tell them for sure whether it’s ok, and Campbell didn’t change that.  Campbellwas a remand and settled; Suntrustwas a remand; Salinger v. Coltingrequires dicey aesthetic determinations to distinguish (and also ended up settling on remand).
 
Said: people do not stop and think about idea/expression before writing a novel. Is this mismatch a problem? Ought © to reflect actual practices more clearly?  Does the law have the power/duty to have an impact on existing artistic practices.
 
Tapia: Harold Bloom talks about how creation starts with copying everything gone before, and then there’s a moment of cleavage where you embrace and break away from what’s gone before and starts your own artistic creation. When you want a compensation system for that end product, you’ll find that if you look at process there’s a lot of copying.  Creation depends on ability to copy what grand masters did before.  So you need to balance the past and the future.
 
Silbey: w/large enough misalignment, we have a rule of law/legitimacy problem. How much of a misalignment does it take to make the legitimacy problem real?
 
Gervais: art can only be born from the way we see art.  Harder question arises from linedrawing and we have to rely on courts (not Congress), which have been pretty good (other than 6th Circuit).
 
Yen: law does have the ability to affect production, yes and no. When you’re consulted, you stop some of what clients do; but much is created w/out any consideration. As for duty to account for artistic practices, a qualified yes.  Qualification: even the move to say that authors should control how © controls what they do is an authorial supremacy move that we might not desire for society. That should inform what we do, but doesn’t require us to agree w/them.
 
Bridy: ignorance may be feature and not bug.  There is a real danger given ambiguities that there’d be a chilling effect.
 
Yu: technology changes things because it leaves a record. Mahler may have taken from lots of places, but if he did it digitally we might have known.
 
Gervais: cuts both ways in making it easier to find and to take.  In every case, we’re asking how much you’ve taken (vice) and how much you’ve done with it (virtue). Shift in quantity allows lots more people to do more.  Inducing quantity and making copyright law more relevant to ordinary people, which is more than quantity.
 
Silbey: interviewees mostly say thank God for the internet. Even the folks whose stuff is being copied w/o permission recognize that the balance is much better for their everyday practice—less true for graphic artists/photographers than musicians/writers.
 
Buccafusco: creators making law into inputs into their creations, and how © makes judgments about aesthetics in art—what’s going on there? Is this a new thing?
 
Rosenblatt: creators are thinking about their moral intuitions as they create, though not law; law may affect their moral intuitions and vice versa.  Fair use as a community resource—how much is that dependent on particular communities v. universal?
 
Silbey: won’t generalize, but fair use is like an ethic for most people. They assume it’s there as part of a practice, and may not have known its name until it got into the air.  Certain communities collide in sharing the ethic and others branch off. Visual artists of all kinds tend to share similar ideas.
 
Samuelson: Amy Adler’s new work on transformativeness talks about ways in which some appropriation artists are changing production practices, and not in ways that Adler thinks are a good idea; Campbell didn’t defer enough to artistic community on what was fair/appropriation rather than looking at artist’s perspective or at “reasonably perceived” perspective. Great paper.
 
Silbey: market effect factor: how does that relate to tolerance for borrowing?  In terms of code of best practices, the folks I talk to have a much narrower view of what their market is and therefore what harm they suffer from copying. What fair use/codes should do is figure out what kind of borrowing won’t thwart ongoing practices, and not what will maximally exploit. People didn’t worry about copying or competition, but did worry about reputational/ego harms, and we’ve decided in the US that’s not what © protects.
 
Yen: we come across variations of this problem elsewhere, e.g. in torts—reasonability among football players may differ from reasonability among football fans. External/internal perspectives are always hard to identify/choose between. Downside of consistency is consistent winners and losers, and for artistic practice that may not be the best thing because inconsistency may help art advance.
 
Said: cultural and racial context in which Campbell was decided.  Not judging the “vulgarity” of the rap was remarkable.  In 1994, there was huge cultural tension: 2 Live Crew had been in court on obscenity charges.  Consider Andrew Gilden’s analysis in his raw materials piece about distributional/race/gender effects.
 
Lunney: one size fits all copyright/fair use is probably not optimal.  Are there ways to introduce differences into the law?
 
Gervais: there are various types of authors, and the statute doesn’t seem to recognize that very well. Differ in not just what fair use means to them but what © means.  He suggests structuring © around different types of authors.
 
Silbey: worries about everyday authors v. Taylor Swift authors. © works for some groups and not others, but she’s not sure about how to build that into the statute.
 
Tapia: easier for us to perceive transformation in visual art than aural, because so much of our senses are devoted to the visual.
 
Silbey: some disagreement. Artists and writers talk about conversational practice.  The way they describe how the work gets made productively is through conversation with previous work. That’s how works get made and transformed, which are almost the same thing.  We may see montage; with aural/textual, remix may look more like something new/uncopied on the outside to us but from the inside they can see the fragments/montage/conversation. Hard to figure out whether the conversation is happening from outside the practice/discipline.
 
Gervais: one difference between types of art is use of tech in different fields. Computer doesn’t know idea from expression—all bits (is that true? Is idea any bits at all?).  When computer starts creating, how will we know fair use?
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