Thanks for the many fine comments on yesterday's blog. I will use this posting to reply to them (as some requested). I have, however, an unrelated question I would love some feedback on. I have a 4,000 page hard copy (double spaced text, single space footnotes) new treatise on copyright. BNA was going to publish it, but we parted ways over format after 13 chapters were in page proofs. BNA wanted it in two bound hard copy volumes, no looseleaf, bound annual updates, no commitment to ever putting it online, and CD ROM Appendix only (but no CD ROM for the text). I thought that was a bad idea. I have since pitched it to another publisher, and got a good reaction in February. Since then, however, radio silence. I am fed up. As time goes by, the need to update a work that isn't even out yet increases. I am seriously thinking of publishing it myself in a purely on-line format, leaving legal publishers to their dinosaur world. The work would be formatted like a hard copy book and have page numbers. It would be searchable, and you could cut and paste. I would sell it by a flat annual subscription so that a law firm would pay one price and everyone within the firm could use it; ditto a law school and its faculty and students. There would be free updates, probably once a week. Is this a good idea, a good idea but too difficult time-wise and technically? Or a terrible idea. Any comments would be most appreciated. I am particularly concerned with any unwillingness to cite the work in briefs or court opinions. (My idea on having it formatted like a hardcopy book would take care of how to cite it).
On to bootlegs. Aaron Perzanowski takes me to task for supposedly telling only half the story, the fixation part, and not telling the distribution part of the statute. (Martignon was accused of only the latter). I disagree: I carefully set out all three possible violations: fixation, transmission, and distribution; indeed since the transmission prong did not involve a fixation I asked whether that provision might be regarded differently by critics.
Aaron's substantive criticisms involve his statement that live musical performances are "original and expressive." On this ground, he sees no difference between performances fixed with permission and those fixed without permission. He adds a quote from a Supreme Court opinion that writings include any "physical renderings" of creativity. He concludes that because the statute bans selling bootlegs in a physical rendering it is within the Copyright Clause. And because it is perpetual it is unconstitutional.
In my opinion, Aaron confuses a number of important points. First, originality is irrelevant. The bootleg statute doesn't care if a performance is original or not, no more than the trademark statute (another perpetual federal intellectual property statute) cares if a logo or other mark is original or not. More importantly, he confuses the subject matter of the bootleg statute with its violation. The subject matter of the bootleg statute is not the illicit copy; it is the live musical performance. The Act is violated, in one prong, when there is an illicit copy made, but the fact that there is a violation doesn't mean that the violation is what is protected; its not. The subject matter of the Act is an unfixed live musical performance: that's what you have to measure up for constitutionality. And when you do, there is no conceivable way that it falls within the ambit of the Copyright Clause because that Clause is limited to "writings." "Writings" means "fixed" subject matter: unfixed live performances are not writings. The only way to make the subject matter of the bootleg statute a writing is to impermissibly shift the subject matter from what it truly is to what is a violation of the Act.
In my opinion, Aaron further confused this point by positing equivalence between "fixation" and "physical renderings" (as the Supreme Court used that final term.) The two concepts aren't the same. What the Supreme Court meant is that if there is a creative work we are not going to judge the merits of its creativity. Aaron wants the passage to mean that any time someone fixes something, even without permission, there is a "physical rendering," therefore a fixation therefore it falls within the Copyright Clause. That's not what the Supreme Court meant and it would be bad policy. It would mean that if a baseball player's image is photographed without permission and put on baseball cards, the Copyright Act applies and state right of publicity laws are preempted. That's why I said yesterday the professors' brief fails to distinguish between the subject matter and the copy. Aaron's argument is the same; he just adds the additional point that a live musical performance is original, to which I say, so what? The subject matter is not an original work of authorship, and no defendant can make it one by fixing it or distributing an unauthorized fixation.
Brian Carver and Aaron both pointed out an inconsistency in the drafting: since the statute is in title 17, and therefore uses the definition of "fixed" in Section 101, you have an "unauthorized authorized" embodiment. I think they're right and I wish now that we had left the statute in title 15 for that reason (and many others). Brian also says though that in making my fixation swinging door comment I didn't address contrary arguments. I think I did, but apparently not clearly or persuasively enough. Here's my argument: the dormant effect of the Copyright Clause only extends so far as encompassing "writings" since that is the reach of the Clause. It doesn't impact on things that aren't writings. Unfixed live musical performances aren't writings and therefore are unaffected by the Copyright Clause.
To me the dormant argument says, we're not going to let Congress wear the Commerce Clause hat and screw up the Copyright Clause, say by protecting unoriginal works. We do that because if we didn't we would be interfering with the purposes of the Copyright Clause. But since the Copyright Clause has no purpose with respect to unfixed works, nothing Congress does with respect to them can interfere with the Copyright Clause. That's my argument. I accept that others may disagree.
Brian also notes that I didn't talk about the First Amendment issue in the professors' brief. I didn't for two reasons. First, the issue is not particular to bootlegs and applies equally well to fixed copyrighted works. Second, I have never given it any credence with fixed works. I don't think the First Amendment gives others a right to use my speech, where speech is defined as the substantial taking of expression and without an available fair use defense. The courts agree. See furthermore Harper & Row, which expressly adopted my view that if the First Amendment is in play in copyright litigation, then there are important First Amendment values vesting in the author's right to remain silent.
Finally, Brian asks for some more citations to legislative history. I wish they existed. As a fast track bill controlled in the House by the Ways & Means Committee (and its equivalent in the Senate), there was no Judiciary Committee report. Indeed, as I noted in yesterday's post, the Clinton Administration's USTR wanted no hearing, no published bill, a complete blackout. I can't speak for Senators, but I do know that Senate Judiciary staff understood it was a Commerce Clause provision (I spoke with the Senate IP subcommitte's chief counsel almost every day then), and so too did my bosses in the House.
Aside from the constitutionality issue, Anonymous states that it was a mistake not to put a time limit on protection. In hindsight, I agree.
Finally Fred von Lohman (I am a huge fan of his; he has done sterling oral advocacy in the 9th Circuit), asks whether we considered amending the simultaneous fixation provision in the Copyright Act instead. We didn't because it would have required all live performances to be simultaneously transmitted. We knew some were (hence the second prong) but it seemed too much to actually require all of them to be. Plus, we also would have had to amend the definition of "fixed" to include unauthorized fixations . But then we might have avoided the inconsistencies noted above.