COPYCENSE

“Concern for those who elected you is representative democracy, not corruption; moreover, as noted above, in the case of copyright, until just this year, the copyright committees have been chaired by individuals who had no constituent interests and therefore tried to make policy as they saw fit. That we disagree with their view of policy doesn’t make their view corrupt. The Copyright Office, for example, has testified in favor of term extension and the other bills people find objectionable, and it is immune from the sort of “corruption” at issue. Tarring those who don’t see things the way we do as ‘corrupt’ is incorrect and a poor way to convince them to see things the way we would like.

“At the same time, campaign finance reform has long been a pressing need, and if Professor Lessig can provide constructive assistance in that effort, we will all be grateful.”

The Patry Copyright Blog. Copyright, Corruption and “Corruption.” June 21, 2007.

Of all the people out there that call themselves copyright experts, there are several reasons why we think Bill Patry is one of the few that deserves that title and stands at the top of the heap. One of the most important reasons, in our view, is his ability to see and explain copyright clearly through several different perspectives.

Despite its beginning, Patry’s post is not about Lawrence Lessig’s decision to “retire” from copyright advocacy. It is about the legislative process, specifically as that process applies (or is applied) to copyright laws and regulations. Patry challenges Lessig’s suggestion that “corruption” was at the root of Congress’ decision to pass the Copyright Term Extension Act (.pdf) in 1998, and in doing so summarizes four decades of Congressional committee history to support his ultimate contention: elected officials serve the interests of their constituents, and except in rare instances, corruption (or “corruption”) has nothing to do with their political positions.

We have seen parts of the copyright legislative process as it applies to libraries and often have lamented how often libraries and library patrons get shortchanged. We’ve often thought (and have written in this space) that “corruption,” as defined by Lessig, may have been part of the reason library representative organizations (LROs) have not received all they have wanted.

But we also have thought (and have written in this space) that LROs have not been as effective in playing the political game as they could be. Returning to the term extension issue, we opined in our Lessig piece last week that the term extension issue lacked a clear focus on ultimate harm to a wide range of people. LROs spent much time and money doing all the official things that needed to be done: including lobbying Congressmen, writing amici briefs, and distributing alerts to their membership.

Still, LROs — as did Lessig — failed to engage the regular Joe and Jane Doe on the term extension issue in a way that would have fueled the public outrage necessary for elected officials and federal judges to look beyond the law and consider public policy. That has nothing to do with corruption (or “corruption”), but is simply a decision to execute a strategy that ultimately did not bring the desired result.

And who’s to say that what LROs want is good for libraries or is good public policy? Further, many could reasonably argue that Section 108 is proof positive that libraries have not gotten shortchanged in the legislative process.

This leads us to a conclusion that Patry’s post suggests: instead of complaining about being the victims of “corruption,” maybe parties involved in lobbying for a balanced copyright law would be more effective in their legislative and judicial interventions if they become more effective advocates for the public at large, instead of for the institutions they represent. In particular, LROs have been staunch advocates for open access to information. Restrictive copyright inhibits open access to information, which affects the public in a variety of ways. But are libraries and librarians making this clear to the public in a way people can understand?

For example, how could have LROs better engaged the public to demonstrate that term extension is not some issue reserved for nine judges and two advocates who choose to argue legal and constitutional abstractions on October 9, 2002, but instead an issue that may keep a 10-year-old girl in Iowa from creating the next great animated character because a large corporation wants to shackle culture to stuff its wallets?

In other words, how can LROs and others concerned with balanced copyright make it plain? As much as we rant in this space about the “piracy” frame, we concede it is brilliant and effective because it is plain. Those concerned with balanced copyright must find a way to make their issues as plain to the public and Congress as copyright holders have made “piracy” plain to the public and Congress.

Copycense™: Creativity & Code.™ A venture of Seso Group LLC.

“Concern for those who elected you is representative democracy, not corruption; moreover, as noted above, in the case of copyright, until just this year, the copyright committees have been chaired by individuals who had no constituent interests and therefore tried to make policy as they saw fit. That we disagree with their view of policy doesn’t make their view corrupt. The Copyright Office, for example, has testified in favor of term extension and the other bills people find objectionable, and it is immune from the sort of “corruption” at issue. Tarring those who don’t see things the way we do as ‘corrupt’ is incorrect and a poor way to convince them to see things the way we would like.

“At the same time, campaign finance reform has long been a pressing need, and if Professor Lessig can provide constructive assistance in that effort, we will all be grateful.”

The Patry Copyright Blog. Copyright, Corruption and “Corruption.” June 21, 2007.

Of all the people out there that call themselves copyright experts, there are several reasons why we think Bill Patry is one of the few that deserves that title and stands at the top of the heap. One of the most important reasons, in our view, is his ability to see and explain copyright clearly through several different perspectives.

Despite its beginning, Patry’s post is not about Lawrence Lessig’s decision to “retire” from copyright advocacy. It is about the legislative process, specifically as that process applies (or is applied) to copyright laws and regulations. Patry challenges Lessig’s suggestion that “corruption” was at the root of Congress’ decision to pass the Copyright Term Extension Act (.pdf) in 1998, and in doing so summarizes four decades of Congressional committee history to support his ultimate contention: elected officials serve the interests of their constituents, and except in rare instances, corruption (or “corruption”) has nothing to do with their political positions.

We have seen parts of the copyright legislative process as it applies to libraries and often have lamented how often libraries and library patrons get shortchanged. We’ve often thought (and have written in this space) that “corruption,” as defined by Lessig, may have been part of the reason library representative organizations (LROs) have not received all they have wanted.

But we also have thought (and have written in this space) that LROs have not been as effective in playing the political game as they could be. Returning to the term extension issue, we opined in our Lessig piece last week that the term extension issue lacked a clear focus on ultimate harm to a wide range of people. LROs spent much time and money doing all the official things that needed to be done: including lobbying Congressmen, writing amici briefs, and distributing alerts to their membership.

Still, LROs — as did Lessig — failed to engage the regular Joe and Jane Doe on the term extension issue in a way that would have fueled the public outrage necessary for elected officials and federal judges to look beyond the law and consider public policy. That has nothing to do with corruption (or “corruption”), but is simply a decision to execute a strategy that ultimately did not bring the desired result.

And who’s to say that what LROs want is good for libraries or is good public policy? Further, many could reasonably argue that Section 108 is proof positive that libraries have not gotten shortchanged in the legislative process.

This leads us to a conclusion that Patry’s post suggests: instead of complaining about being the victims of “corruption,” maybe parties involved in lobbying for a balanced copyright law would be more effective in their legislative and judicial interventions if they become more effective advocates for the public at large, instead of for the institutions they represent. In particular, LROs have been staunch advocates for open access to information. Restrictive copyright inhibits open access to information, which affects the public in a variety of ways. But are libraries and librarians making this clear to the public in a way people can understand?

For example, how could have LROs better engaged the public to demonstrate that term extension is not some issue reserved for nine judges and two advocates who choose to argue legal and constitutional abstractions on October 9, 2002, but instead an issue that may keep a 10-year-old girl in Iowa from creating the next great animated character because a large corporation wants to shackle culture to stuff its wallets?

In other words, how can LROs and others concerned with balanced copyright make it plain? As much as we rant in this space about the “piracy” frame, we concede it is brilliant and effective because it is plain. Those concerned with balanced copyright must find a way to make their issues as plain to the public and Congress as copyright holders have made “piracy” plain to the public and Congress.

Copycense™: Creativity & Code.™ A venture of Seso Group LLC.

“I am not … ‘leaving the movement.’ ‘The movement’ has my loyalty as much today as ever. But I have come to believe that until a more fundamental problem is fixed, ‘the movement’ can’t succeed either.” — Lawrence Lessig.

Lessig Blog. Required Reading: The Next 10 Years. June 19, 2007.

Stanford law professor Lawrence Lessig announces his retirement from the intellectual property debate, and his focus on “corruption” as his new academic and activist core interest. Lessig has proclaimed before that he was retiring from focusing on intellectual property, and like the rapper Jay-Z and too many boxers, he did not walk away. His latest series of writings on his blog, however, suggest he is, in fact, ready to step out the door.

If he Lessig does step away, his work in and on behalf of fair intellectual property has been valuable and admirable. We’ve not always agreed with some of the initiatives for which he has advocated. For example, we’re a bit skeptical of the Creative Commons initiative because it moves copyright issues into the realm of contract law. (This is an issue we’ve discussed recently.) Instead, we think copyright should remain firmly a federal public policy debate.

We also think the litigation team Lessig lead in the Eldred v. Ashcroft case seriously depersonalized the case into a strictly legal argument that was hard to win. We have opined often that the only way federal courts are going to change their holdings in copyright cases is if the debate is less about economics and law, and more about the simple fact that people — individuals — are getting screwed. This position has a chance to build a social revolt against protectionist intellectual property legislation, and with such a revolt may come legislative and judicial change.

For example, if one examines some of the civil rights cases from a strictly legal perspective, one could argue that some decisions were inconsistent with prevailing statutory and case law at that time. Law does not occur in a societal vacuum, however, and with regards to civil rights legislation, society decided it was time to eliminate legally sanctioned discrimination that was grounded in historically inaccurate and damaging opinions on race and ethnicity. Federal courts and legislators had to change the laws or risk anarchy.

We were privileged to witness the Eldred oral arguments, and the level of constitutional argument in that room on that October day was brilliant. It also was cold, lifeless, and meaningless to the average Joe or Jane that merely wants to remix public domain works into something fun, useful, and culturally valuable. There was no outrage or risk of anarchy on the copyright term extension issue (even though a well-formulated grass roots campaign may have stoked such outrage).

And inside the courtroom, Lessig’s argument generally failed to make apparent what we’ve heard him make apparent in other venues: Disney’s manipulation of the term extension issue means that a 10-year-old girl in Iowa can’t come up with the next great animated character because Disney wants to shackle culture to stuff its wallets.

(To be fair, Lessig has conceded he made strategic errors in the Eldred litigation.)

But these issues are minor compared with the good Lessig has done and the enormous effort he has spent in trying to get it right and make things equitable. Lessig has put his energy and his money where his mouth has been, and right or wrong, we respect and thank him for that.

Copycense™: Creativity & Code.™ A venture of Seso Group LLC.

Technorati Tags: CommuniK., Copycense, K. Matthew Dames

A recent thread on the listserv Liblicense prompted some observations about the utility of fair use in an environment where contracts increasingly govern the legal relationships between creators, copyright owners, and customers.

Since the issues are so important in today’s information environment, and since Copycense readers may not subscribe to the Liblicense listserv, I have decided to repost my comments.

Last week, I posted the first part of my listserv response; this week I post the second part. This post examines — and hopefully resolves — a common fallacy that fair use is a right. The title of the thread is “Fair use / fair dealing – a fantasy?” A complete listing of all the comments in the thread is available from the Liblicense archives.

“2. Fair use

“As for the sole issue of fair use, all the commentators I’ve read or spoken to — David Nimmer, Bill Patry, and Jessica Litman among them — conclude that fair use under Section 107 is an affirmative defense to copyright infringement. Fair use is not a right.

“In a typical copyright infringement lawsuit, a copyright owner needs to prove (and plead) the following:

– The owner owns the copyright;

– Defendant violated one or more of the copyright owner’s exclusive rights (Sections 106, 106A); and

– Defendant has no defense or excuse (limitation of exclusive rights) in Sections 107-122.

“In order to clarify this issue for myself, I posed the following hypothetical to Patry earlier this month because I wanted to make sure I had taught my class correctly (especially pursuant to Federal Rules of Civil Procedure 8 and 11). (Please forgive misspellings from both of us.)

Let’s say that Party A (copyright owner) files an infringement lawsuit against Party B, and A sues B to stop B’s acts of reproducing and publicly displaying A’s content. B is going to claim fair use as a defense. For procedural purposes, does B have to claim the fair use defense against both of A’s claims the reproduction and public display claim, or does the fair use defense serves as a defense to both of A’s exclusive right claims?

In other words, is it procedurally possible that B could claim a fair use defense on the reproduction claim and win, but claim a fair use defense on the public display claim and lose?

Does the answer change depending upon how A pleads its complaint?

Any clarification (or source referral) is appreciated.

“Patry’s response follows:

… Most complaints that I have seen have different counts for violation of the reproduction and display right, but as an affirmative defense, fair use is pled generally — that is not on a count by count basis. Depending on the facts, it is possible for fair uise to apply on one but not the other …

“In a 2005 blog post, Patry cites Harper Row v. Nation, 471 U.S. 539 (1985), as authority for the premise that fair use is an affirmative defense, and not a right.

“So here’s the practical problem with fair use being an affirmative defense. Since fair use is an affirmative defense, any party seeking to use fair use as an affirmative defense has to plead that pursuant to FRCP 8(c) in response to a plaintiff’s complaint. This necessarily means that if you are that party, you are under the jurisdiction of federal court as party to an infringement lawsuit.

“I presume that most of us … would rather not be a defendant in a copyright infringement lawsuit, even for the purpose of pleading a fair use defense pursuant to FRCP 8(c). To close the loop, this gets us back to the initial question posed by this thread: is fair use a fantasy?

“If fair use is rendered irrelevant by contract, and can be used only as a pled defense within the scope of a copyright infringement lawsuit (and we don’t want to be in a lawsuit to begin with), then what utility does it have?

“I teach my class to use fair use (and the other information professional exceptions codified in Sections 110, 109, and 108) as a form of business risk analysis to decide the extent to which they may use, access, or invoke one or more of the owner’s Section 106 rights without paying a fee and without asking permission.

“But as a statute applied within a digital information environment governed by contracts, I’d conclude that fair use provides little legal protection for readers, users, or information professionals. I believe the explicit preservation of fair use rights within the digital/contractual environment is is an issue worth lobbying for.

Copycense™: Creativity & Code.™ A venture of Seso Group LLC.

A recent thread on the listserv Liblicense prompted some observations about the utility of fair use in an environment where contracts increasingly govern the legal relationships between creators, copyright owners, and customers. Additionally, these are issues I consistently address in my annual copyright seminar at Syracuse University’s School of Information Studies.

Since the issues are so important in today’s information environment, and since Copycense readers may not subscribe to the Liblicense listserv, I have decided to repost my comments over the next two posts.

The title of the thread is “Fair use / fair dealing – a fantasy?” A complete listing of all the comments in the thread is available from the Liblicense archives. The first issue I addressed in the post concerned the preemption doctrine, particularly the effect of contracts on copyright law provisions. My post follows:

“1. Preemption

I’ve researched and written about the contract vs. copyright issue quite a bit, particularly as it applies to the limitations that most often apply to information professionals (Sections 110, 109, 108, and 107). The issue concerns state vs. federal law preemption, an issue that simultaneously cuts across the Supremacy Clause in Article VI of the U.S. Constitution, Section 301 of the Copyright Act of 1976, and a raft of cases beginning with Judge Easterbrook’s 1996 opinion in ProCD v. Zeidenberg, 86 F.3d 1447.

“The preemption issue arises when authors’ or users’ copyright rights appear to be either enlarged or reduced by contract (such as in the instant example of a publisher’s contract to publish a journal article). To the general question whether contracts may deal with copyrighted material, the answer is obviously yes. The preemption challenges are more likely to relate to the attempted contractual extension of copyright rights beyond those granted by the Copyright Act, or the reduction of the rights that users have traditionally enjoyed apart from contract. Most cases conclude that as long as the terms of the contract (written under state law) do not occupy the same area as that reserved to copyright law (federal law), then the terms of the contract under state law will be valid and binding.

“Therefore, my understanding of the issue echoes that made by a prior contributor to this thread: the general rule is that once a contract is in place, the terms and conditions of the contract prevail over federal copyright law because a contract is considered to be a private bargain between private actors (whom are presumed to have equal bargaining power to negotiate the terms and conditions of the contract). I am assuming, of course, that the contract is valid under applicable state law.

“The ProCD case (7th Circuit) is cited to often as the prevailing doctrine in this area, but my notes indicate that the Third and Fifth Circuits hold differently. Typically, this is the sort of split that begs for a Supreme Court ruling. I suppose that case is coming soon to a theater near you.

“If we use ProCD as the prevailing doctrine, then one could question whether *any* copyright exceptions (Sections 110, 109, 108, and 107) are preserved in an information landscape awash with digital information. I think we all can reasonably agree that the contract is the dominant legal construct that governs access to and use of digital information. If the ProCD doctrine is the prevailing doctrine, then it seems to me that the only way to preserve any copyright exceptions — including fair use under Section 107 — is to negotiate those exceptions back into the terms and conditions of the contract.

“As that applies to the publishing example mentioned in this thread, this means that an author would have to negotiate each and every exception (or parts thereof) back into a final journal publication contract. Otherwise, there is no guarantee that the author will be able to make use of any of those exceptions; unless specifically negotiated into the publishing contract, we must presume that all of the exceptions under the Copyright Act — including fair use — are off the table.

“This points to the critical importance of contracts in an environment governed by digital information. This also points to the importance of knowing copyright law even within the realm of license or contract negotiation, since you cannot negotiate back into a contract what you do not realize is available under federal copyright law. So, to the extent that one must negotiate a fair use exception back into a state law contract even though it exists as a federal law exception, once could say that fair use (as are most other exceptions) is a fantasy today.

“But even if you know how the game is played, having the leverage to get a publisher to change its contract terms and conditions is a different story altogether.”

Copycense™: Creativity & Code.™ A venture of Seso Group LLC.

Technorati Tags: Copycense, copyright, K. Matthew Dames, licensing

The Washington Post reported that HBO, a division of Time Warner, cut off its feed Sunday night to many in the Washington, DC area when it learned Saturday that a Georgetown restaurant tied a dinner promotion to the final episode of The Sopranos.

“Sopranos nights” had been a regular occurrence throughout Washington, DC bars and restaurants for years, as had been theme nights tied to other HBO series such as “Sex In the City.”

“This particular action has nothing to do with ‘The Sopranos,’ and the entire feed of HBO is just not allowed to be outside of residential areas,” HBO spokesman Jeff Cusson said Sunday night.

Philip Rucker. Die-Hard ‘Sopranos’ Fans Take In Finale: Was It a Hit? WashingtonPost.com. June 11, 2007.

Copycense™: Creativity & Code.™ A venture of Seso Group LLC.