The Establishment Press Takes on the RIAA

Today's NY Times and the Sunday Washington Post both had prominent pieces on the RIAA. Here is the link to the Times article, in Adam Liptak's popular sidebar column. Here is a link to the Post's opinion.

The Liptak column details a brief filed by the Attorney General of Oregon to quash a subpoena directed to the University of Oregon to reveal the identity of students engaged in filesharing. The AG is reported to have accused the RIAA "of misleading the judge, violating student privacy laws and engaging in questionable investigative practices." The AG specifically targeted "the tactics of MediaSentry, an investigative company hired by the recording industry. He said the company seemed to use data mining techniques to obtain 'private, confidential information unrelated to copyright infringement.' He added that it may have violated an Oregon criminal law requiring investigators to be licensed." Cary Sherman, President of RIAA, is quoted as saying the industry had seen “a lot of crazy stuff” filed in response to its lawsuits and subpoenas. “But coming from the office of an attorney general of a state?” Mr. Sherman asked, incredulous. “We found it really surprising and disappointing.”

Mr. Liptak is taking the university's side: "No one should shed tears for people who steal music and have to face the consequences. But it is nonetheless heartening to see a university decline to become the industry’s police officer and instead to defend the privacy of its students."

The Washington Post article is about the Howell case in Arizona, well-covered litigation that raises directly whether there is a making available right (or "deemed distribution") as an adjunct of the distribution right. I think not: I think that all copyright owners have the burden of making out a prima facie case that infringement has occurred, and in the case of the distribution right, this means that a copy was actually distributed, not just made available for distribution. The Post however raises a different issue, what it perceives to be a shift in the RIAA's stance in the case. Here's how the article (by staff writer Marc Fisher) begins:

Despite more than 20,000 lawsuits filed against music fans in the years since they started finding free tunes online rather than buying CDs from record companies, the recording industry has utterly failed to halt the decline of the record album or the rise of digital music sharing. Still, hardly a month goes by without a news release from the industry's lobby, the Recording Industry Association of America, touting a new wave of letters to college students and others demanding a settlement payment and threatening a legal battle. Now, in an unusual case in which an Arizona recipient of an RIAA letter has fought back in court rather than write a check to avoid hefty legal fees, the industry is taking its argument against music sharing one step further: In legal documents in its federal case against Jeffrey Howell, a Scottsdale, Ariz., man who kept a collection of about 2,000 music recordings on his personal computer, the industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer.
...
The RIAA's legal crusade against its customers is a classic example of an old media company clinging to a business model that has collapsed.

The article also ties this in to the Thomas case in Minnesota:

The Howell case was not the first time the industry has argued that making a personal copy from a legally purchased CD is illegal. At the Thomas trial in Minnesota, Sony BMG's chief of litigation, Jennifer Pariser, testified that "when an individual makes a copy of a song for himself, I suppose we can say he stole a song." Copying a song you bought is "a nice way of saying 'steals just one copy,' " she said.

These last quotes if accurate (see later posting here) are emblematic of how the rhetoric of theft and counterfeiting are being dangerously used to cover all unlicensed activity, whether it is fair use (in the case of copying for personal use), or any other use content owners don't like. Everyone else's use of a copyrighted work is now deemed by some content owners to be infringing unless they OK it.

One sees this calculated rhetorical shift in many forms, such as industry legislative proposals and comments made by industry executives about them at press conferences, as well as in actual bills, such as the misnamed Pro-IP bill, which is alleged to address counterfeiting, but which contains a grab bag of goodies for RIAA for things like enhanced statutory damages and registration challenges. This new rhetoric of "everything anyone does without our permission is stealing" is well worth noting at every occasion and well worth challenging. It is the rhetoric of copyright as an ancient property right, permitting copyright owners to control all uses as a natural right; the converse is that everyone else is an immoral thief.

But despite Ms. Pariser's comments in the Thomas case (again if accurately reported), in the Howell case, the RIAA is being unfairly maligned. I have read the brief (and you can too here). On page 15 of the brief, we find the flashpoint: "Once Defendant converted Plaintiffs' recordings into the compressed .mp3 format AND they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs."

I have capitalized the word "and" because it is here that the RIAA is making the point that placing the mp3 files into the share folder is what makes the copy unauthorized. The RIAA is not saying that the mere format copying of a CD to an mp3 file that resides only on one's hard drive and is never shared is infringement. This is a huge distinction and is surprising the Post didn't understand it. The brief also goes on to allege in great detail that the copies placed in the shared folder were actually disseminated from Howell's computer, thereby stating a traditional violation of the distribution right, even aside from the making available/deemed distribution theory.

A Former Talking Head Talks and Talks

David Byrne has a must read, lengthy piece in Wired for all interested in the music business. Here is the link. The article builds on Byrne's considerable experience in all angles of the business, along with good data and embedded links to interviews about a variety of subjects and groups. Byrne is not a bomb-thrower or an ideologue: he is someone who loves music and has spent his whole adult career forging innovative songs and ways of bringing innovative music to the public. The article is just as innovative, as it explores the traditional roles of labels, and how the business is evolving.

Burden of Proof in Profits Claims

The Fourth Circuit has issued an interesting opinion on the burden shifting involved in claims to recover defendant’s profits attributable to the infringement, but unfortunately, it marked the opinion as nonprecedentail, indicating the lower courts continue to thumb their noses at Congress and the public, and the spirit of new FRAP 32.1, which requires courts of appeals to permit citation to unpublished opinions, but which does not restrict courts have stating they don't have precedential value: of what use is it to cite to something that has no precedential value? Not much.

It is one thing when the opinion is a one-page toss-off prepared by circuit staff counsel; it is quite another when, as here, the opinion is an extended one that contains significant statements of law about an important issue. The only solution to such intransigence seems to be legislation barring the courts from marking any opinion unpublished: all opinion should have the same potential value, with the only determinant being the quality of their reasoning.


The case is Phoenix Renovation Corporation v. Rodriguez, 2007 WL 4443328 (4th Cir. Dec. 17, 2007)(available here). The district court had granted plaintiff’s motion for summary judgment on liability, and denied defendant’s motion for partial summary judgment on the issue of damages for the copyright infringement, reserving the question for trial. After a three-day bench trial, the trial court found defendants were not liable for any damages. Defendant did not appeal the liability finding, but plaintiff appealed the lack of an award for defendant’s profits.


Section 504(b) reads in relevant part: “In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work." In Bonner v. Dawson, 404 F.3d 290, 294 (4th Cir. 2005), the Fourth Circuit had held that §504(b) “creates an initial presumption that the infringer's profits attributable to the infringement are equal to its gross revenue,” and in Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 520 (4th Cir.2003), the court of appeals had held that once the copyright holder establishes the infringer's gross revenue, "the burden shifts to the infringer to prove either that part or all of those revenues are 'deductible expenses' ( i.e., are not profits), or that they are attributable to factors other than the copyrighted work."

The Phoenix court summarized the issue as follows:

In Bouchat, we established that because the phrase "gross revenue" in § 504(b) refers only to revenue reasonably related to the infringement, "a copyright holder must show more than the infringer's total gross revenue from all of its revenue streams" in order to meet its initial burden under the statute. Bonner, 404 F.3d at 294. Accordingly, before the burden-shifting provision of § 504(b) is triggered, the copyright owner must "demonstrat [e] some causal link between the infringement and the particular profit stream." Id.

As applied to the case at bar, the court wrote:

Here, in denying Appellees' Partial Motion for Summary Judgment as to damages for the copyright infringement, the district court found that Phoenix had met its initial burden of proof. First, the district court noted that Phoenix did not indiscriminately seek the totality of Appellees' profits without regard to the source, but rather "anticipate[d] presenting evidence at trial that [Appellees'] use of Phoenix's Interior Repipe Agreement enabled [them] to enter into 626 transactions in which they received approximately $2.6 million in revenue." Next, the district court identified three factors demonstrating a causal connection between the use of the Infringing Contract and the claimed revenue …. Finally, the district court stated that Phoenix had provided non-speculative evidence of a causal connection and determined that "[b]ecause the claimed revenue ha [d] a reasonable relation to the infringement, ... summary judgment for [Appellees] would be inappropriate."


So what was the rub? The rub came in a different approach taken by the district court at trial. As the 4th Circuit put the matter:

Following the bench trial, however, the district court changed course, finding Appellees not liable for damages. The court found that Phoenix failed to provide evidence supporting each of its three purported causal links. With regard to Phoenix's theory that the contract assisted Atlantic in marketing itself to customers, the district court concluded that Appellees had presented credible evidence establishing that customers hired Atlantic for reasons such as its experience and price, not the appearance of its contract, while "Phoenix ha[d] not presented any evidence that supports this particular causation theory." It therefore deemed the "purported causal link ... mere speculation." The district court further concluded that although use of the Infringing Contract allowed Atlantic to comply with Virginia's requirement that residential contractors make use of written contracts for a time without incurring the expense necessary to do so, any cost avoidance was temporary and did not permanently contribute to Atlantic's revenues because Atlantic later paid an attorney to draft a new contract. Finally, the district court found that none of Atlantic's revenue was attributable to its use of the Infringing Contract in collecting balances owed because Atlantic only collected more money than it cost to enforce the terms of the contract on one occasion, and the proceeds from that collection effort were more than offset by the $7,000 Atlantic spent to collect $3,618 owed on another occasion. Moreover, Atlantic had proven unsuccessful in other collection attempts. The district court therefore concluded that "Phoenix ha[d] not proven the existence of a causal link between [Appellee's] infringement of the Re-Pipe Agreement and their gross revenue from polybutylene replacement jobs where the Infringing Contract was used." Accordingly, it determined that "the burden-shifting provisions of § 504(b) [were] inapplicable to this case" and Phoenix was not entitled to damages.


Plaintiff claimed foul:


Phoenix argues that the district court's about face improperly denied it the benefit of § 504(b)'s burden shifting provision, depriving it of damages to which it is entitled. Phoenix claims to have met its minimal initial burden of demonstrating some causal link between the infringement and the revenue stream by showing that (1) customers' obligation to pay Atlantic arose out of the Infringing Contract, and (2) Atlantic benefitted from the use of the contract, which allowed it to appear more professional, conduct its business in accordance with Virginia law, and collect payment from reluctant customers.

Defendant not surprisingly disagreed:

Appellees counter that the district court correctly applied our holding in Bouchat that a defendant should prevail if either (1) there exists no conceivable casual connection between the infringement and a particular revenue stream, or (2) despite the existence of a conceivable connection, the copyright holder offers only speculation as to the existence of a causal link between the infringement and the claimed revenues. Bouchat, 346 F.3d at 522-23.


The court of appeals agreed with Plaintiff:

As an initial matter, we agree with Phoenix that the district court erred in failing to shift the burden of proof to Appellees pursuant to § 504(b). Although Bouchat held that copyright plaintiffs may not meet their initial burden under the statute simply by submitting evidence of an infringer's gross profits from all of its revenue streams, in requiring proof of a causal link between the infringement and a particular profit stream or streams, we did not purport to saddle plaintiffs with an onerous evidentiary burden.

The court then entered into a sustained review of Bouchat and Bonner:

Bouchat involved a suit for "infringer's profits" by the author of an original drawing that became the basis for the Baltimore Ravens football team's logo. The Ravens obtained revenue from a variety of sources, including a subset of merchandise sales, "minimum guarantee" shortfalls and "free merchandise" requirements established by the Ravens's licensing agent (National Football League Properties, Inc.), that could not fluctuate in response to consumer behavior. We held that Bouchat had not met his initial burden of proof under § 504(b) only with regard to those sources because Bouchat could not establish a conceivable connection between the revenue from the "minimum guarantee" shortfalls and "free merchandise" requirement and the copyright infringement. Bouchat, 346 F.3d at 524.

Our subsequent decision in Bonner clarified the extent of the causal connection required under Bouchat. There, we distinguished Bouchat on the ground that Bonner was not seeking all gross revenues from a defendant with multiple streams of income, but rather only the revenue derived from the leasing arrangements of an infringing building. We concluded that because "[t]he building generating the funds was designed based upon Bonner's copyright ," Bonner had satisfied Bouchat's requirement of a causal connection between the infringement and the revenue stream. Bonner, 404 F.3d at 294. We reversed the district court's conclusion to the contrary, holding that the district court had "misinterpreted the level of connection between infringement and profits that is required under Bouchat " when it determined that Bonner had not met his initial burden because it was not clear that the building's design formed the basis of the profits from the lease. Id.; see also Konor Enter. Inc. v. Eagle Publ'ns Inc., 878 F.2d 138, 140 (4th Cir.1989) (holding that where a defendant's only product was a military telephone directory that infringed on a plaintiff's copyright, the burden of proof shifted to the defendant pursuant to § 504(b), because "[i]t [wa]s plausible, absent proof to the contrary, that all profits were a direct result of [the] infringement of [the] copyright").

The court then applied its approach to the issue to the district court’s ruling:

In this case, the district court's summary judgment order correctly followed Bouchat and Bonner to conclude that Phoenix had met its initial burden under § 504(b) of demonstrating a conceivable connection between the copyright infringement and the revenue obtained from jobs on which Appellees used the Infringing Contract. Such a connection exists because customers' obligation to pay arose out of their contract with Atlantic and because it is conceivable that the Infringing Contract generated revenue by: (1) enabling Atlantic to attract customers by looking like a less expensive version of Phoenix; (2) comply with state law governing its business; and (3) collect past due balances. The district court erred in concluding to the contrary in the opinion and order entering the final judgment.

Nevertheless, we agree with Appellees that this flaw in the district court's analysis did not affect the outcome of the case. A review of the record compels the conclusion that the district court's finding that Phoenix was not entitled to damages ultimately was based on its finding that the evidence was entirely one-sided, not on its allocation of the burden of proof. The court credited Appellees' evidence that none of Atlantic's revenue was attributable to the Infringing Contract and found that Phoenix had offered only speculation to the contrary. Thus, the district court's finding that Phoenix failed to supply any non-speculative evidence to counter Appellees' showing that Atlantic's revenue stemmed from sources other than the copyright infringement, if correct, compels the conclusion that Phoenix was not entitled to damages.

As long as all this is, it represents merely a snapshot of a far longer discussion of prior case law and statutory interpretation, all of which brings me repeat the point raised at the beginning of the post: why an unpublished opinion? The court obviously took a great deal of care with the case and its opinion; the opinion contains important glosses on the statute and prior case law. It should be published and able to be relied on by litigants in line with the purposes of new FRAP 32.1

You Can Walk Like King Tut, But Don't Copy Him

In the late 1980s, when I was a Policy Planning Advisor to the Register of Copyrights, I went on a few U.S. Government delegations to Egypt in an effort to convince the Egyptian government to “improve” its copyright law. I went with good friends Joe Papovich of USTR (now at RIAA) and Richard Owens of the PTO (now at WIPO), as well as a chap from the State Department whose name I forget and wanted to forget even then. Somewhere, there are pictures of us riding camels at the Pyramids. On the taxi trip to the Pyramids, we drove by tens of thousands shantytowns where the children barely had clothes on, where there was no sewage disposal, no running water, no electricity, and likely little food. In the city, walking to the Cairo Museum, I saw a man, weighing less than 100 pounds, pulling himself along on the ground on his stomach, as thousands of other very poor people trudged along.

Our mission was to get the Egyptian government to clamp down on unauthorized videocassettes and music tapes, which were alleged to pose a serious threat to U.S. corporate interests. I also visited Egyptian universities that used unauthorized books in their courses, a threat to U.S. book publishers. The Egyptians officials we met with were wonderful: gentle, extremely hospitable, and quite willing to help to the limited extent they could, and those limits were severe. To begin with, there was no way the Egyptian public could afford to pay Western prices, and until the pricing was fitted to the public’s ability to pay, there would be unauthorized copying; this was also true of the universities: no one I met advocated taking without paying, but everyone wanted to educate the public.

The Egyptian government officials helpfully suggested that the U.S. companies enter into distribution deals with Egyptians; that way, when a dispute arose, the dispute would be perceived more as one between two Egyptian commercial interests. They also requested financial assistance and training for customs officials. Egypt turned the table too, by requesting assistance with stamping out authorized copying of Egyptian films in the U.S.: Egypt has long had the Middle East’s most vibrant film industry and its movies were widely watched, especially by Arabic speakers in the U.S.

Back home again, we reported our meetings to industry, and none of the Egyptian advice was taken, and as far as I know, nothing was done to help Egyptian filmmakers here, although I suggested using a back-door to the UCC through first publication in Lebanon for older films.

Yesterday, there were stories about proposed legislation by the Egyptian government to stop the copying in the West of famous Egyptian landmarks., like the Pyramids, the Sphinx, and Luxor. Zahi Hawass, the head of Egypt's Supreme Council of Antiquities, is quoted as saying:
"The new law will completely prohibit the duplication of historic Egyptian monuments which the Supreme Council of Antiquities considers 100-percent copies … .If the law is passed then it will be applied in all countries of the world so that we can protect our interests… It is Egypt's right to be the only copyright owner for these monuments in order to benefit financially so we can restore, preserve and protect Egyptian monuments."

The proposal is said to not "forbid local or international artists from profiting from drawings and other reproductions of pharaonic and Egyptian monuments from all eras - as long as they don't make exact copies. ... Artists have the right to be inspired by everything that surrounds them, including monuments," he is reported to have said. Mr. Hawass is also quoted as opining that the Luxor Hotel in Las Vegas (currently the real Luxor is a love nest for French President Nicolas Sarkozy and Italian model Carla Bruni) is "not an exact copy of pharaonic monuments despite the fact it's in the shape of a pyramid. Others are reported to feel differently: the opposition newspaper Al-Wafd published an article Sunday calling for the hotel to pay a portion of it’s lodging and gambling profits to the city of Luxor. The newspaper wrote: "Thirty-five million tourists visit Las Vegas to see the reproduction of Luxor city while only six million visit the real Egyptian city of Luxor." Yet, Samir Farag, chair of Luxor town council acknowledged :"We can't forbid people from using the name of Luxor and copying monuments from (Luxor) city, which is the world's richest city for monuments," adding refreshingly, "tourists going to Las Vegas doesn't affect our city's business."

I don’t know how the distinctions thought of would be made, but if made, Egypt could lay claim to the longest copyright term in the world, by millennia. But to what end? How is that Mr. Hawass thinks that the law would be enforced in other countries for acts that occur in other countries? And what about Steve Martin’s famous King Tut dance and song routine, available here.

A delicious irony in using IP as a trade weapon

Back in the early 1980s, when the Reagan Administration initiated the use of trade leverage as a weapon to force Caribbean nations to revise their laws to fit U.S. content owners' bidding , no one dreamed a Caribbean nation would later turn the tables. Hats off to Antigua for doing so. A story in Saturday's NY Times (here) explains Antigua brought a WTO complaint over the U.S.'s refusal to permit online gambling originating from the island nation to be placed within the U.S., while permitting online betting on horses. The WTO ruled in Antigua's favor, awarding it the equivalent of $21 million in set-offs. Antigua has chosen to engage in unauthorized copying of U.S. films and music in that amount. One wonders whose figures Antigua will use to come to that amount: the IIPA's ludicrously inflated figures, where every estimated unauthorized copy represents a 1:1 displacement of a sale at U.S. prices, or something else of Antigua's own concoction? I am betting on the latter.

Courtesy of IPKat, here is the relevant section of the WTO award:

B. ANALYSIS BY THE ARBITRATOR

5.6 In its request for authorization to suspend concessions or other obligations, Antigua identified certain obligations under the TRIPS Agreement, that it proposed to suspend. Specifically, Antigua indicated that it intends to take countermeasures in the form of suspension of concessions and obligations under the following sections of Part II of the TRIPS:

Section 1: Copyright and related rights
Section 2: Trademarks
Section 4: Industrial designs
Section 5: Patents
Section 7: Protection of undisclosed information.

5.7 As we have determined above, Antigua may seek to suspend obligations under the TRIPS Agreement. In order for such suspension to be equivalent to the level of nullification or impairment of benefits accruing to Antigua, it must not exceed US$21 million.

5.8 It is incumbent on Antigua to ensure that, in applying such suspension, it does not exceed this level. Antigua has declined to provide any explanation on how it proposes to apply such suspension and how it will ensure that the level of the proposed suspension does not exceed the level to be authorized by the DSB. We regret that Antigua did not find it useful to provide such explanations.

5.9 We note that our mandate does not allow us, in reviewing the equivalence of the proposed suspension with the level of nullification or impairment, to consider the "nature" of the obligations to be suspended. We understand this to mean that we may not question the complaining party's choice of specific obligations to be suspended (other than in the context of considering a claim that the principles and procedures of Article 22.3 have not been followed) and that we must assess the level of the proposed suspension, rather than its form, against the level of nullification or impairment.

5.10 At the same time, it is important that the form that is chosen in order to enact the suspension is such as to ensure that equivalence can and will be respected in the application of the suspension, once authorized. The form should also be transparent, so as to allow an assessment of whether the level of suspension does not exceed the level of nullification. We also note that the suspension of obligations under the TRIPS Agreement may involve more complex means of implementation than, for example, the imposition of higher import duties on goods, and that the exact assessment of the value of the rights affected by the suspension is also likely to be more complex.

5.11 In the light of these considerations, we note the remarks made by the arbitrators in EC – Bananas III (Ecuador), on the suspension of TRIPS obligations in that case. We consider these remarks to also be relevant to this case, in that the same considerations will be pertinent to the manner in which Antigua might implement a suspension of its obligations under the TRIPS Agreement.

5.12 Like the arbitrators in EC – Hormones (US) (Article 22.6 – EC) , US – 1916 Act (EC) (Article 22.6 – US) , and US - Byrd Amendment (Article 22.6 - EC) , we also note that the United States may have recourse to the appropriate dispute settlement procedures in the event that it considers that the level of concessions or other obligations suspended by Antigua exceeds the level of nullification or impairment we have determined for purposes of the award.

5.13 Finally, we note that Article 22.8 of the DSU provides that:
"The suspension of concessions or other obligations shall be temporary and shall only be applied until such time as the measure found to be inconsistent with a covered agreement has been removed, or the Member that must implement recommendations or ruling provides a solution to the nullification or impairment of benefits, or a mutually satisfactory solution is reached. ..."

VI. AWARD

6.1 For the reasons set out above, the Arbitrator determines that the annual level of nullification or impairment of benefits accruing to Antigua in this case is US$21 million and that Antigua has followed the principles and procedures of Article 22.3 of the DSU in determining that it is not practicable or effective to suspend concessions or other obligations under the GATS and that the circumstances were serious enough. Accordingly, the Arbitrator determines that Antigua may request authorization from the DSB, to suspend the obligations under the TRIPS Agreement mentioned in paragraph 5.6 above, at a level not exceeding US$21 million annually.

The Fifth Circuit's Sense of Humor

OK, so other than well-known hipsters like Chief Judge Kozinski, court of appeals judges are not know for their slyness, much less a panel of them. But the Fifth Circuit has issued, per curiam, an opinion, that evidences a refined sense of the silly. The opinion in Armour v. Defendants (love the caption too!), 2007 WL 4465192 (5th Cir. Dec. 21, 2007).

Here is the beginning:


PER CURIAM:

1. Armour's hook repeats twice and accompanies the following lyrics:

Let me know what you wan-na do, ba-by it's your call

Got-ta l'il bit a love for you, I can stop it or make it grow

Let me know what you wan-na do, ba-by it's your call

Got-ta l'il bit a love for you, I can stop it or make it grow

Beyonc's hook repeats four times and accompanies the following lyrics:

Ba-by boy you stay on my mind, ful-fill my fan-ta-sies

I think a-bout you all the time, I see you in my dreams

Ba-by boy not a day goes by, with-out my fan-ta-sies

I think a-bout you all the time, I see you in my dreams

The lyrics differ in word and substance: Armour's evince somewhat less love for her “ba-by”-“a l'il bit”-and somewhat more control over such love, which she can “stop” or “make grow;” Beyonc's suggest a deeper and more stubborn love, which pervades her thoughts, dreams, and “fan-ta-sies.” Yet, though the nature and depth of their loves may differ, Armour claims they find expression by way of the same musical melody.

The opinion then digresses into boring law-talk, albeit with the unusual paragraph form, with each paragraph consisting of about two sentences, or merely a cite. The case is a typical one of an unknown suing a well-known over similarities and access that doesn’t exist. There is one worthwhile passage on the attempted close relationship form of inferred access:

16. Although other circuits have presumed access on the basis of a “close relationship” between the third-party intermediary and the alleged infringer, Armour has not offered reasonably probative evidence to establish that Beyonce and T-Bone had a close relationship. See Towler, 76 F.3d at 583 (reasoning that a court may infer access if intermediary has a “close relationship” with infringer); Moore v. Columbia Pictures Indus., Inc., 972 F.2d 939, 944 (8th Cir.1992) (finding access where intermediary was “in a position to provide suggestions” to infringer). McKinney's affidavit proves only that McKinney personally believes Beyonc and T-Bone to be good friends and does not indicate any basis for that belief. Although credibility determinations at summary judgment are resolved in favor of the non-moving party, the full weight of McKinney's affidavit establishes at most that he honestly believes them to be good friends.

17. In her deposition, Beyonce admits that she knows of T-Bone but maintains that they are not friends and do not communicate with one another “at all.” Armour has presented no evidence to refute Beyonce’s claim.

But what I loved about the opinion was its dashing beginning.

What Do People Actually Think Copyright Is?

In all the debates about file sharing it is sometimes assumed that people have a defined sense of what copyright is and are acting in violation of that definition; or, at least in violation of the שבע מצוות בני נח, the seven Noahide laws. To test these assumptions, in the summer of 2006, Karl Fogel of Chicago took a camera around and asked people a series of questions about copyright. The resulting (edited) 10 minute video may be seen here. It starts out a bit slow with the opening question, but then it picks up.

Mr. Fogel details his findings on his website:

In order to document the public perception of copyright today, we went around Chicago with a video camera over two days in the summer of 2006, asking strangers what they think copyright is for, how it got started, how they feel about filesharing, and for any other thoughts they have on copyright. We didn't tell the interviewees about this website or the nature of our project until after each interview was over.

The points that show up consistently are:

Most people felt that copyright is mainly about credit, that is, about preventing plagiarism.
Everyone was on the artist's side — everyone wants to feel that they're treating the artists right. Over and over again, we heard the sentiment that when someone goes to a concert they'll buy the CD "to support the band", even if they already have all those songs on their computer already.

Many people felt that copyright was about giving creators the means to make a living, but that in recent times it's been abused and corrupted by corporate interests.
No one — not even the interviewee who had just read a book on copyright — knew where copyright comes from. Most people had the feeling it had been around for a while, though estimates varied widely on how long. One interviewee knew of the Constitutional clause that is the legal basis for copyright in the United States, but wasn't familiar with the history leading up to that clause.

People were ambivalent about filesharing. They don't feel like it hurts anyone, except perhaps the music distributors, but they still feel some residual guilt about it anyway.

One senses strong internal conflict here supporting the labels' assumption about filesharing: interviewees expressed a desire to be on artists' side, but rationalized file sharing because it is believed to only hurt the labels: hence the residual guilt. Whether file sharing in fact does result in systemic harm is, of course, contested as seen in the recent Canadian reports finding it doesn't, versus the labels' studies finding it does.

Guitar Hero Rocks On

A district judge in Michigan denied the Romantic’s motion for a preliminary injunction against Activision, the makers of the popular game. I did a blog on the suit earlier (here). There is no written opinion yet, and apparently won’t be until next month, but here is a boiling down of what went down from “a source close to the case.”

The defendants argued that a band's sound is not protected under the "right of publicity" doctrine, and following the argument I made in my prior blog, that such a claim would, in any event, be preempted by 17 USC 114(b). This view is greatly strengthened by a statement from a band member that the band was complaining about copying of their sound from a particular recording. Defendants also argued that videogames are worthy of First Amendment protection (an argument the judge is reported to have been sympathetic to), and on the trademark count that the reference to the Romantics name was a non-infringing nominative use, adding that plaintiffs had not introduced evidence of any consumer confusion about sponsorship or endorsement, but rather argument that the recording in the game is of the band or a sound-alike.

It didn’t help matter that plaintiff’s counsel is reported by this source to have stated publicly that this was essentially "all about money." The Judge' is said to have been of the opinion that enjoining sales of Guitar Hero on the eve of the holiday would potentially be ruinous to the defendants. Interestingly, the judge precluded plaintiff’s efforts to introduce live testimony from at least 8 witnesses, ruling that the issues were legal, not factual. Here is a link to an article from the Detroit Free Press about the judge's ruling.

The Global Garrotting of the Public Domain

The World-wide Tragedy of Life Plus 70

It all started in the bowels of Brussels, a vision of bureaucrats who wished to create an EU-wide IP law. This involved selecting areas in which to “harmonize” the IP laws of member states. First it was software, later term of protection, where disparities in term presented a ripe subject for harmonization. The disparities were exaggerated, however, since under non-discrimination principles, EU countries with a longer term had to grant authors from other EU countries that longer term.

The EU could have stuck with the Berne standard of life of the author plus 50 years; even if it was worried about countries with a longer term, it could have mandated a life plus 50 term for all future works, and grandfathered in terms above life plus 50 for existing works. But it didn’t. Then, in a departure from national treatment (but consistent with the rule of the shorter term), the extension of term for non-EU works was reciprocally granted only to works from countries which granted EU authors life plus 70.

The U.S. content industries eagerly pounced on the reciprocal nature of the EU directive as a way to increase the term. But the U.S. also could have avoided the vast majority of the ill-effects of term extension if the U.S. had merely two-tiered term here; that is, granted life plus 70 only to works from the EU (and under the most favored nation requirements of Article 4 of the TRIPS agreement, to all other TRIPS members), leaving in place life plus 50 for all other works, especially U.S. works. This is what happened with section 411(a) when we joined Berne in 1988: we left in place the requirement of registering before an infringement suit for U.S. works, but abolished it for Berne works.

But for U.S. content owners, the EU reciprocity provision for term extension was merely a stalking horse for the greater prize: extending the term 20 years for U.S. works., and not just any U.S. works, but pre-existing ones, whose term would go from 75 to 95 years from publication, after already having been increased from 56 years to 75 years in 1978. It is these old act works that content industries were concerned about, not new act ones governed by life plus 50: after all, who in 1998, when term extension was passed, was worried about works whose term of protection were scheduled to expire in 2073? Who knew in 1998 what works would be worth anything in 2073? No one. But people in 1998 did have a fair idea about works created 75 years before are still be valuable. So to be clear about the purpose of term extension, it has always been about the past, not the future; it has always been about keeping pre-existing works out of the public domain and not about any alleged incentive to create new ones.

After the U.S. extended its term, the Office of the United States Trade Representative (USTR) went about vigorously imposing term extension on other countries as part of Free Trade Agreements. The latest is with Korea. An article yesterday in Korea Times, by staff reporter Kim Yon-se (link here) points out the troubles this has caused Koreans and how the Korean government has attempted to work around these troubles:


Under the revision book publishers and entertainment-related businesses will be required to pay royalties 20 years longer than is currently required.

Local publishers complain that companies may be not be able to publish as many translated books as they do now, not only because of costs but also due to more complicated and tightened requirements for copyright protection.

As a solution, the government has pledged to allocate 160 billion won for the publishing industry by 2011. It also plans to establish a publishing information center to offer necessary data to the public as well as the industry.

What I find depressing about this is that in order to placate USTR, which in turn is placating large U.S. content owners, fewer translated books will be available to Korean citizens; plus, the Korean government is being forced, effectively, to subsidize payments to U.S. content owners through an attempt to keep its own publishing industry afloat. Moreover, none of this addresses the effect on those who are not part of the Korean publishing houses, such as ordinary citizens, scholars, and others who wish to use works that otherwise would be in the public domain, and none of it addresses non-literary works, such as film and music.

The tragedy of life plus 70 has now been spread far from its roots; it is a tragedy that can never be reversed, and worse, whose ill effects are continuing to be spread. We are witnessing the global garroting of the public domain.

Arising Under Jurisdiction, Copyright, and Community Property

On August 30th, I did a posting about the potential joint liability of spouses in community property states, and noted that my very first published article on copyright (1981) was on the intersection of copyright and community property. On December 10, 2007, a federal court in Washington state issued an opinion in a community property dispute over copyright between spouses, Westmorland v. Westmorland, 2007 WL 4358309, that raises the question of when a case or controversy "arises under" the Copyright Act within the meaning of 28 USC 1338(a).

The posture of the case is unusual. Mr. Westmorland, a photographer, filed for divorce in the Washington State King County Superior Court. Both before and during the marriage, he had worked as a commercial photographer. In the course of the divorce proceeding, he asserted that (the still) Mrs. W. was seeking a distribution of the copyrights obtained by him before the marriage. My understanding of community property law is that property obtained before the marriage as well as monies received post-nuptial bliss from that property remain individual assets. In order to prevent the state court from actually awarding these non-community assets, Mr. W. filed suit in federal court seeking to enjoin Mrs. W. from seeking them in state court. The court granted the Mrs.’s motion to dismiss for lack of subject matter jurisdiction. According to the court, Mr. W.’s dispute did not arise under the Copyright Act.

Certainly, the state court could and should deny Mrs. W.’s request as a matter of state law, and in this regard, the fact that the pre-nuptial property is ownership of copyrights is no different than ownership of anything else. In dismissing Mr. W.’s case, the federal court engaged in a fairly standard plugging in of the facts to Judge Friendly’s T.B. Harms opinion, T.B. Harms Co. v. Eliscu, 339 F.2d 828 (2d Cir.1964). Judge Friendly, despite his massive intellect and specialized knowledge of federal jurisdiction, recognized that the Supreme Court had yet to settle on an intelligible approach to when a dispute may be said to arise under federal law. “Mindful of the hazards of formulation in this treacherous area,” he held for the court that an action “arises under” the Copyright Act:

if and only if the complaint is for a remedy expressly granted by the Act, e.g., a suit for infringement or for the statutory royalties for record reproduction …, or asserts a claim requiring construction of the Act, as in De Sylva v. Ballentine, 351 U.S. 570, 76 S. Ct. 974, 100 L. Ed. 1415 (1956)], or, at the very least and perhaps more doubtfully, presents a case where a distinctive policy of the Act requires that federal principles control the disposition of the claim. The general interest that copyrights, like all other forms of property, should be enjoyed by their true owner is not enough to meet this last test.

It cannot be said, regrettably, that Judge Friendly was any more successful than the Supreme Court in this “treacherous area.” For example, by using “remedy,” T.B. Harms invites attention away from whether the claim is one for a right created by the Copyright Act and toward nondispositive issues such as remedial measures for violation of the right. Is a claim that requests an injunction a copyright claim merely because an injunction is sought? The answer is no. Injunctive relief may be, and often is demanded with declaratory relief under state law. Is a claim that seeks an accounting of the defendants' profits a copyright claim? The answer here, too, is no, since disgorgement of ill-gotten gains is common in many state law actions, such as unfair competition. Is a claim that seeks statutory damages under § 504(c) a copyright claim merely because, in the prayer for relief, that measure of damages is sought? Here, statutory damages are an uncommon remedy, and certainly when asked for in the amounts provided by § 504(c), unique to that section, but a state cause of action is not transformed into a federal cause of action merely by requesting statutory damages.


Either the cause of action on the merits is one arising under the Copyright Act or it is not. If it is not, asking for monetary damages found uniquely under the Act does not change the elements of the cause of action. The correct approach is to determine whether the plaintiff's complaint actually pleads the elements required for an infringement action—if so, one would expect the prayer for relief to request infringement, rather than contract remedies, but it is the cause of action that determines whether jurisdiction exists. However, one reads numerous opinions in copyright cases, citing T.B. Harms, finding subject-matter jurisdiction based on the damages sought.

In the Westmorland case, the court noted that Mr. W did not seek a remedy provided under the Copyright Act, or interpretation of a provision of the Act, but he did argue that the preemption of such a state award was an important federal policy. The court answered this in a manner it thought clear, but I don’t: “preemption is not a policy promoted by the Copyright Act. Although Congress invoked that principle in order to implement the policies behind the Copyright Act, … preemption itself is not the policy.” Huh? I thought the argument was that the award of copyrights that had no basis in state law conflicted with federal law, or at least, that is the argument I would have made.

In the end, there seems another basis for dismissing the case, justiciability: the state court had not awarded anything yet, and might well get the issue correct. Moreover, the issue did not appear to raise any issues unique to federal law: the state court could award at least half of the proceeds from copyrighted works created and exploited during the marriage; and may be able to award co-ownership of them (although not co-authorship). The fact that it cannot do so for works created before the marriage has nothing to do with their status as copyrighted works, but rather with principles of community property law applicable to all forms of property.

Statute of Limitations for Actions between Co-Owners

The First Circuit has struggled for years with a case involving the well-known Hummel figurines, drawings of which were created by Sister Berta Hummel in Germany in 1931. The most recent decision hopefully will put an end to what in my opinion has been meritless litigation pursued in one form or another for 40 years by a lawyer who went from representing one party to becoming a party himself, Cambridge Literary Properties, Ltd. v.W. Goebel Porzellanfabrik G.m.b.H & Co., KG, 2007 WL 4340860 (1s Cir. Dec. 13, 2007). The most recent decision raises important questions about the intersection of federal /state jurisdiction, state law actions for an accounting between co-authors, and the Copyright Act’s statute of limitations. The existence of a 10 page impassioned dissent describing the majority’s approach as “unprecedented and potentially pernicious” gives some flavor to the case.

The history and facts are complicated, so I have tried to distill them to their essence for our purposes. Sister Hummel and her convent conveyed rights to publish her drawings in a book (“Das Hummel-Buch”). The book had a preface and poems by a Margarete Seeman. The book was registered in the U.S. Copyright Office as a work for hire. Defendant Goebel through an assignment from the book publisher came to own rights in the book. Goebel also obtained rights directly from Sister Hummel and the convent for the right to make figurines of the drawings. Goebel assigned the right to distribute the figurines in the U.S. to Schmid Brothers. Goebel and Schmid had a fractious relationship, which led to litigation in which Schmid was represented by attorney Henry Hermann. The parties eventually settled by splitting 50-50 the renewal interest. Schmid went bankrupt, and Goebel bought the 50% it didn’t own.

One would think that would be the end of the matter, but Hermann had other ideas, even though he got $3,750,000 as a creditor in the Schmid bankruptcy for his fees. Hermann decided he could concoct a claim based on Seeman’s contribution to the book and formed plaintiff company to pursue his theory. He tracked down her heirs in Europe and got and assignment According to the court, he is the only employee of the company. Plaintiff sued Goebel not for copyright infringement, but for an accounting for profits, asserting diversity jurisdiction. The district court granted defendant’s motion for summary judgment; the summary judgment motion asserted that the Copyright Act’s three-year statute of limitations barred the state law action.

At this point, some readers may say, huh? How can a statute of limitations for copyright infringement bar a state law claim for an accounting of profits between co-authors brought under diversity jurisdiction? The answer according to the majority is that the accounting cause of action was predicated on there being co-authorship status; if there can be no such co-authorship claim because the statute of limitations bars even a facial assertion of co-authorship status, there can be no possible accounting cause of action. The majority found the copyright limitations indeed barred the co-authorship claim, and hence affirmed dismissal of the claim.

The dissent cried foul, accusing the majority of using federal law to trample on state law. That’s a little hard to accept under the facts of the case and with jurisdiction being based on diversity jurisdiction: the court of appeals was merely attempting to apply the law as it thought a state court would, and it thought a state court judge would also reach the predicate of whether there could be a facial claim to co-authorship. At this point, the dissent launched into a dissertation on whether the presence of a substantial federal question is sufficient to convey federal jurisdiction when plaintiff itself carefully avoids the invocation of a federal question in its well-pleaded complaint. The question to me is not one of preemption or even federal-state jurisdiction, but instead whether under the facts of this case, a plaintiff who had been involved for 40 years in attempting to seek a piece of the piece should be permitted to proceed with a state claim whose very viability was predicated on a federal right that it did not possess. I think the majority came to the right conclusion, although the issue is messy to the say the least.

Simultaneous Publication

Publication used to be a critical concept in copyright. Until the 1976 Act, it served as the dividing line between state law protection (for unpublished works) and federal protection (limited to published works generally; cf. Section 12 of the 1909 Act, permitting registration for unpublished works copies of which weren’t sold). The courts, ever inventive, developed rules for this rubicon, in particular “investitive publication,” meaning a publication with a proper notice that resulted in the obtaining of federal rights, and “divestitive publication,” meaning a publication without a proper notice and which resulted in the loss of state law protection but without being able to ever get federal protection; in other words, the work was in the public domain. One might think that the two concepts would be applied identically, but that would be asking for legal consistency, something Learned Hand warned against: in order to avoid tossing works into the public domain for minor straying off the path of formality adherence, the courts usually required that the publication be a bit more of a publication to lose protection than to get it. Much like the equal protection clause protection created by the Supreme Court in Bush v. Gore, publication was very much in the eye of the beholder and for that case alone.

If publication itself was hard to figure out, how about “simultaneous” publication? Simultaneous publication was a device originally used by U.S. publishers as a “Back door to Berne;” a few copies were “published” in Canada or the UK shortly after or on the same day as the real publication took place in the U.S. Then, the publisher would claim the work was subject to Berne protection long before the U.S. adhered to Berne. Canadians in particular thought this not sporting and attempted to put an end to it. Berne itself deals with the issue of publication and simultaneous publication in Article (3)-(4):


(3) The expression "published works" means works published with the consent of their authors, whatever may be the means of manufacture of the copies, provided that the availability of such copies has been such as to satisfy the reasonable requirements of the public, having regard to the nature of the work. The performance of a dramatic, dramatico-musical, cinematographic or musical work, the public recitation of a literary work, the communication by wire or the broadcasting of literary or artistic works, the exhibition of a work of art and the construction of a work of architecture shall not constitute publication.

(4) A work shall be considered as having been published simultaneously in several countries if it has been published in two or more countries within thirty days of its first publication.


After we joined Berne, we “two-tiered” the Section 411(a) requirement of registration as a prerequisite to bringing an infringement action, meaning we left the requirement in for U.S. works, but abandoned it for works of Berne origin (a category later expanded to almost all foreign works). This necessitated defining what is a foreign work, a task that also involved the tricky question of simultaneous publication. The answer is found in the definition of “United States work” in Section 101:

For purposes of section 411, a work is a “United States work” only if —

(1) in the case of a published work, the work is first published —

(A) in the United States;

(B) simultaneously in the United States and another treaty party or parties, whose law grants a term of copyright protection that is the same as or longer than the term provided in the United States;

(C) simultaneously in the United States and a foreign nation that is not a treaty party.



That wasn’t the end of simultaneous publication, though. The U.S. turned the tables on efforts by Canada and the UK to close the Backdoor to Berne in the 1994 GATT restoration act, by excluding from restoration works from those countries (although not by name) if they were simultaneously published in the U.S., using the 30 day period as the period for simultaneous publication, referred to in Article 3(4) of the Berne convention, quoted above. Thus in the definition of restored work in Section 104A(h)(6)(D) we find:


(6) The term “restored work” means an original work of authorship that — ;
…
(D) has at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country, and if published, was first published in an eligible country and not published in the United States during the 30-day period following publication in such eligible country ….

The Ninth Circuit has issued a decision on this issue. Here is the opinion, editing out extraneous stuff:

2007 WL 4246149 (9th Cir. Dec. 3, 2007)

ESTATE OF Gunter S. ELKAN
v.
HASBRO, INC., and its wholly owned subsidiary Milton Bradley Company

MEMORANDUM
…

Plaintiff Estate of Gunter S. Elkan sued Defendants Hasbro, Inc., and its wholly owned subsidiary Milton Bradley Company for copyright infringement of Plaintiff's board game "Strategy," allegedly caused by Defendants' board game "Stratego." The district court granted Defendants' motion for summary judgment, ruling that Defendants lacked access to Plaintiff's work. Defendants moved for the award of attorney fees, which the district court denied. Plaintiff appeals the grant of summary judgment, and Defendants cross-appeal the denial of attorney fees.
…

1. Under the Copyright Act, "[t]he legal ... owner of an exclusive right under a copyright is entitled ... to institute an action for any infringement of that particular right committed while he or she is the owner of it." 17 U.S.C. § 501(b). Plaintiff does not dispute that its United States copyright for Strategy expired in 1976, at which time Strategy passed into the public domain. See Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 33-34 (2003). Plaintiff argues that its Canadian copyright for Strategy provides independent protection under the Copyright Act and restores the United States copyright under 17 U.S.C. § 104A. We disagree.

Although "[b]oth the Universal Copyright Convention ... and the Berne Convention for the Protection of Literary and Artistic Works ... mandate a policy of national treatment in which copyright holders are afforded the same protection in foreign nations that those nations provide their own authors," Creative Tech., Ltd. v. Aztech Sys. PTE, Ltd., 61 F.3d 696, 700 (9th Cir.1995), "[a]ny rights in a work eligible for protection under [the Copyright Act] ... shall not be expanded or reduced by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto," 17 U.S.C. § 104(c) (emphasis added). The rights to Strategy not only were eligible for protection under the Copyright Act, they were protected when Plaintiff obtained a United States copyright. Consequently, the Canadian copyright cannot expand the rights to Strategy here in the United States beyond those provided by the United States copyright , which Plaintiff admits expired but alleges has been restored.

In order for a foreign copyright to restore an expired United States copyright, a published work must have been published first in the foreign country and "not published in the United States during the 30-day period following publication in such eligible country. " Id. § 104A(h)(6)(D) (emphasis added). The Canadian copyright and United States copyright each lists the initial publication date for Strategy in its respective country as May 25, 1948. Those publication dates preclude restoration of the United States copyright under § 104A(h)(6). Plaintiff does not have a valid, enforceable copyright under the Copyright Act.

Neil Netanel’s “Why Has Copyright Expanded?”

On the day when the House IP subcommittee is holding a hearing on H.R. 4279, a bill that may be the most outrageously gluttonous IP bill ever introduced in the U.S., it is fitting to pay tribute to an incisive look at how we have come to the point where such an initiative could be dreamed up even in the porcine corridors of K Street. Greed of course is the short and complete answer, but those of a more historical and analytical turn of mind will want to study carefully Professor Neil Netanel’s 33-page “Why Has Copyright Expanded? Analysis and Critique.” The article is to be published in 6 Directions in Copyright Law (Fiona Macmillan ed., Edward Elgar pub. 2008), but it is available for free here via ssrn. The article was planned as part of a longer, forthcoming book, solely authored by Professor Netanel, “Copyright’s Paradox” due out in March/April 2008, but was spun off. I have pre-ordered my copy of “Copyright’s Paradox” on amazon.com, and I strongly urge everyone else to as well: here’s the link.

In “Why Has Copyright Expanded?” Professor Netanel has answered the question posed by some who commented on my posting on H.R. 4279: how is it that the scope of copyright has become so obviously and seriously in conflict with the public interest, and that the problem is getting worse, not better? A foundational answer is that corporate content owners are very effectively at lobbying and that their interests are in maximizing profits, not serving the public interest. Professor Netanel states:

[M]y point is not that the motion picture and recording studios are evil actors.
it is simply that their interest is not necessarily the public interest. The copyright
industries naturally wish to obtain all-encompassing a copyright protection as
as possible for their extensive inventories of content. And they naturally wish to
use that protection to ward off competition from new media entrepreneurs that
threaten their traditional ways of doing business. But the public interest – as reflected in some 300 years of copyright precedent – is for a narrowly tailored
incentive for authors to contribute to the store of knowledge and enrich the public
domain. Copyright is meant to spur creativity and expressive diversity. When it
has the opposite effect – when authors cannot freely build upon their predecessors’ works in creating new expression and when copyright serves as a
tool for enriching media conglomerates – something has gone awry.

And things have gone very awry. Maximizing profits and eliminating all threats to existing business models are, however, not appealing public positions to take, although one does on occasion hear pure expressions of it, as when CEOs talk about their a duty being to shareholders, and when the hired help is treated like hired help, as witnessed in the current writers’ strikes; the short-lived effort to have sound recordings statutorily enumerated as a category of work for hire; and in the 1998 term extension, when composers were told that if they didn’t agree to have the extra 20 years go to music publishers directly rather than to those who actually created the works, there would be no extension at all: some crumbs are better than none.

It is and has long been an open secret that the paeans to authors paid by those who buy rights are phony; this has been the case since 1709, when book publishers, rebuffed in their efforts to extend monopolistic licensing laws benefiting solely themselves, put authors out in front as lobbying puppets.; and this was in a period of time when authors received a one-time, small payment for all rights: royalties payments were in the future.

Current rhetorical strategies are hardly any different. Jack Valenti’s clothes may have been more colorful than his 17th century Grub Street predecessors, but his language and rhetorical purpose were not. Sometimes the language is uncannily the same, as when Mr. Valenti testified in 2002 that “We don’t want to shut down innovation. We just want to protect private property from being pillaged.” But of course he and other content owners very much want to shut down innovation; it is the creative destructive force of innovation articulated most famously by Joseph Schumpeter that shakes content owners’ in their boots and that Mr. Valenti has so famously opposed every step of the way, from cable television in the 1970s, to the VCR in the early 1980s, and to the Internet. Digital tape, Mp3.com and the iPod were the record industries analogs. But such raw efforts to control business models (like shoving whole CDs down our throats) dare not publicly speak their name, so it is necessary to use a beard, and no beard is more effective than property.

The importance of metaphorically characterizing copyright as a property right has been known for well over a century and was pointed out in 1898 by that wonderful Victorian man of letters and member of Parliament, Augustine Birrell, in a series of lectures he gave as Quain Professor of Law at University College, London. Mr. Birrell wrote:

[T]he Western World has throughout its long history shown an ever increasing disposition to recognise the right of individuals to the exclusive possession of certain things, and these rights it has clustered together, recognised, venerated, worshipped, under the word property.

To be allowed to enter this sacrosanct circle is a great thing. None but the oldest families need apply … Once inside this circle your rights were supposed in some romantic way to be outside the chill region of positive law—they were based upon natural rights, existing previously to the social contract, and without which Society was deemed impossible.


Neither were these romantic conceptions mere jeux d'esprit. Consequences flowed from them. If your right to turn your neighbor off your premises, to keep your things to yourself—was property, and therefore ex hypothesi founded on natural justice, he who sought to interfere with your complete dominion was a thief or a trespasser… .

Professor Netanel reviews some of these invocations of property in the maximalist campaigns, but I go further. The description of someone as a thief or trespasser is, I assert the flip side of the initial classification of copyright as property. The appellation thief or trespasser is meaningless without an owner of property: in Mr. Defoe’s famous novel, did the cannibals care a hoot about Robinson Crusoe’s fenced-in habitation and cave? Hardly, to them he was food and if they had eaten him they would not have taken over his abode; nor would it prevented Crusoe from becoming an entrée if he had proclaimed a fee simple absolute over his living quarters and refused entry to the cannibals as trespassers. What good is it, after all, to say you own property if there are no thieves or trespassers to do battle with? This is where moral panics and folk devils are pressed into service as the vehicle for obtaining ever-greater rights.

The concept of Moral Panics got its name from British sociologist Stanley Cohen’s 1972 book “Folk Devils and Moral Panics.” Professor Cohen studied the reaction to the Mods and Rockers phenomenon of the 1960s. Moral panics are essential to the theory of copyright-as- property for the most pragmatic of reasons: it is hard to enact indefensible legislation granting powerful rights unless you can convince legislators that folk devils pose an existential threat. In the United States, the most colorful expositor of moral panics and folk devils was the late Jack Valenti. (Lest one mistakenly think I am attacking Mr. Valenti personally, please see my praise of him here).

Throughout his career as the MPAA’s chief lobbyist, Mr. Valenti skillfully and successfully employed moral panics and folk devils before Congress in an effort to gain increased copyright protection. As metaphors, Mr. Valenti’s moral panics provided the means by which busy and sympathetic members of Congress could appear to be engaged in sober reasoning. Moral panics in copyright are the result of a carefully constructed political strategy for obtaining political benefits. They are not hyperbole; they are the core of a careful strategic plan to alter the copyright landscape, and they have worked extremely well.

The other element of this plan, which Professor Netanel very carefully lays out is how copyright became a trade issue, a jobs issues. This plan has involved a complicated dance involving the copyright industries, the Executive Branch/USTR, WIPO, and Congress. Copyright industries were allegedly a powerful engine of the economy and as such need ever greater rights to wield against the folk devils pirates and thieves; all the better of course that these folk devils can be located overseas since foreigners are much easier demonized.

It is not possible to do justice to the beauty of Professor Natenel’s work even in as bloated a blog as this. The only answer is to read the article yourself, and as soon as possible.

The Canadians Again Show us how to do things

Twenty years ago, in San Francisco, I was on a panel with John Perry Barlow at an annual meeting of a software geek group. In those days the cause celebre was the extensive scope of protection being given to software. I wasn’t impressed with Mr. Barlow’s attempts to play to the crowd about the evils of copyright and how copyright was allegedly on its deathbed. I rejoined that speeches like his and meetings like that where everyone preaches to the converted and the converted congratulate themselves for being true believers are not only a waste of time, but dangerous: everyone congratulates themselves on how smart and hip they are, while those they are reviling keep giving it to them in the shorts, year and after year. I added that if they ever wanted to change things, they needed to organize and participate in the political process.

I still feel that way. While in the last 20 years, the attention paid to copyright by the U.S. public has increased dramatically, it cannot be said that the attention had had any effect in the federal legislative arena.

Not so in Canada, where Professor Michael Geist, Canada Research Chair in Internet and E-commerce Law at the University of Ottawa (along with other Canadians, such as
Corey Doctorow , Howard Knopf , and Kempton Lam) has shown those of us in the U.S. how things should be done. The government in Canada has announced plans to introduce copyright legislation dealing with issues such as technological protection measures and safe harbor provisions. Canada signed the 1996 WIPO treaties, but has not ratified them or passed implementing legislation. It has been under a great deal of pressure from the U.S. gov