Thursday, December 13, 2007

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, 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, 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 onvolved 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 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.


Anonymous said...

William -- I haven't done as you suggest yet and gone to see the whole article, so maybe he addresses my soon-to-be-made point. But, I would think that blaming the clearly interested party for simply doing what interested parties are supposed to do -- protecting one's own interest -- is not really all that interesting to me.

For me, the frustration is in observing the behavior of those who ARE supposed to be protecting the common weal, namely Congress and the Court. I'm particularly disappointed in the Court, which has avoided its function either by treating the problem as purely a technical interpretation of the existing paradigm (as in Grokster) or as one that cannot be solved by the Court (without acknowledging that the Congress has utterly failed in its own job) (as in Eldred). "We are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be." Well, damn't -- Yes you are at such liberty Court, and you missed your chance to do your job.

William Patry said...

Thanks, Anonymous. It is probably my write up that is at fault. Neil isn't criticizing people for acting in their own self-interest, and he says he isn't. Nor am I to that extent. I do criticize content owners for pretending they are acting for any other reason: just be honest and say, "We have a duty to our shareholders and our own salaries and bonuses to make as much money as we can, and that money is going to come from the public's purse." That's capitalism.

Neil also goes through and identifies how legislation that should be protecting the public interest doesn't, and I think that is a very good read. I apologize for not focusing more on that part of his paper.

I share your frustration with the Supreme Court. My prayer is they never take another IP case.

Anonymous said...

"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."

Where can I read more about this? Specifically that the extra 20 years go to the publishers.

Thank you, I greatly enjoy your blog.

William Patry said...

Thanks, Anonymous. The remark about music publishers comes from a few sources; first, comments made to me, and second the published hearings. In one of those, the bill as drafted would have denied to composers a right to terminate if the time to terminate had passed under existing law, and the rights would have gone directly to the publisher. I complained and a new window for terminating the extra 20 years was added.

Unknown said...

About federal courts generally, would copyright jurisprudence be served better if a separate court adjudicated the decisions?

I ask because I think many judges have a good handle on law, procedure and constitutional law, but they have little knowledge about the technology underlying many of these issues. And the technology -- and the changes it brings in uses, distributions, sharing, etc. -- really can shape the facts of a given case.

Further, many judges seem loathe to appoint special masters to explain the technology in a neutral way. (I just re-read the Napster decision's definition of .mp3 and was shocked the definition was so slanted and pro-plaintiff.)

I don't know if a "copyright court" is a solution, or even tenable. But do you think the jurisprudence be better served by special judges with a unique background?

Anonymous said...

What tired tripe.

"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."

Have you ever heard of the DVD? Explain to me how Valenti opposed that. In fact, movie companies invested enormous resources and effort to create the first digital movie format, DVD, and were delayed while CE companies fought over whose proprietary technology would get the patent licensing fees.

Valenti opposed the Internet? Come on - give me a cite. He may have opposed YOUR conception of how movie businesses should offer their works through the Internet, but that is a far cry from "opposing the Internet."

Give the hyperbole a rest, and focus on reasoned arguments and facts. There's enough room for real criticism of all sides without resorting to such tripe.

William Patry said...

Dear Fan of Creativity, as a vegetarian I don't eat tripe. My post said nothing about DVDs. On cable, VCRs, and the Internet,here are quotes from his testimony. They are not my restatement of his remarks, but his words.

1. In 1973 he testified: "[Cable will become] a huge parasite in the marketplace, feeding and fattening itself off of local television stations and copyright owners of copyrighted material."

He made good on this opposition through obtaining FCC restrictions on cable until the 1976 Act was passed.

2. In 1983, he testified before Congress about video cassette recorders:

"We are facing a very new and a very troubling assault ... and we are facing it from a thing called the video cassette recorder and its necessary companion called the blank tape.

We are going to bleed and bleed and hemorrhage, unless this Congress at least protects one industry ... whose total future depends on its protection from the savagery and the ravages of this machine.

[Some say] that the VCR is the greatest friend that the American film producer ever had. I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone."

You fail to mention the Betamax litigation, which the industry took to the Supreme Court, and then to Congress with various bills, including bills restricting rental of videocassettes.

3. Internet. There is an extensive hearing record on the DMCA, from 1995 to 1997, all of which I have read, but you apparently haven't. Here he terstified among things that

"Like Emerson’s doctrine that “for every gain there is a loss and for every loss there is a gain, within the glittering potential of the Internet lies the darker forms of thieves, who armed with magical new technology, are capable of breaking-and-entering conventional barriers to steal copyrighted material borne by the Internet by just about anybody with a working computer."

In 1995, Congressman Boucher warned him to stop stonewalling efforts to come to an accommodation with other interests and to at least negotiate in good faith. He warned Valenti if he didn't the bill would be held up for years. Valenti ignored Boucher and tried to stiff him. As a result, the bill took three years instead of a few months to pass.

There are also years of subsequent hearing on a host of other bills, dealing with Internet issues, where Internet uses are tied to child pornography and terrorism. Its all in the hearing transcripts to read if you take the time, as I do and you don't.The purpose of that testimony was to gain control over what happens on the Internet, and digital uses, hence TPMs. That is what I meant by "opposing the Internet." A better choice of
language would have been controlling how it is used.

I point out in the post as does Neil that neither of us are accusing either Mr. Valenti or content owners of acting out of bad motives; to the contrary, Mr. Valenti served his industry honorably and from my direct experience with him, he was always honorable and was the best lobbyist I saw. The corporations he represented and others act out of self-interest and there is nothing in the least wrong with that. Corporate content owners are trying to maximize their profits at every turn; that's why they exist. when they succeed, that fact is trumpeted to shareholders and Wall Street, as it should be. I am an avid consumer of their products, buying well over a hundred books a year, dozens of CDs and DVDs. I have never used file sharing networks. Ever copyrighted work I have is a legitimate copy. I support protection for such works, richly and for life of the author plus 50 years. I don't support the extraordinary level of statutory damages being sought under current law ($25,000 per work in the case was absurd for example), and there is zero reason to loosen up the law to allow for more.

The real hyperbole is that such efforts have an connection with promoting the progress of science, are tied to incentives, or benefit the public interest; they aren't. I will continue to criticize such efforts, whether you like it or not.

Anonymous said...

This is truly well researched and written. I have a problem with something you say though. You're a Google lawyer, and Google is supposed to "Do no evil."

Why then, is promoting self interest at the expense of public good something to be praised. I would think that when you believe in "Do no evil," you believe that the public interest is your own best interest in the long term.

William Patry said...

Thanks Darrint. You misunderstood my comment; I wasn't praising the efforts of content owners to get more and more. I was pointing out that they did so out of self-interest as most companies do. The issue for me is not whether someone acts in their own self-interest, but whether in this (or any other instance) that self-interest coincides with the public's interest. Sometimes it will, but in these cases I think it has been contrary to the public interest. In the case of copyright, the public interest is particularly important since under the Constitution that is the sole purpose for the grant of rights.

Anonymous said...

the artists would do well to switch the sound bites from "IP" to some catchy phrase that re-inforces the fact that the artist has only granted a license to sell their property. Big content media should be redefined from "owners" to "licensers"

Karl Fogel said...

Beautifully said, especially your blunt (but fair) summary of copyright's history and the owners' strategy of categorizing copyrights as "property".

It's true that corporations will act in their own interests whether or not those interests match the public's... But let's remember that the legislators follow the public, in the end (or at least, legislators cannot directly oppose public sentiment for very long).

Copyright-owning interests may have pushed the laws to where they are today, but this is only because of the public's usually unquestioning belief — a kind of moral belief, actually, if you talk to people about it — that the right to control distribution and derivation should be a form of property.

If the public ever has reason to start believing differently, then the legislators will, slowly but surely, change their tune.

One possible route for this to happen is for more and more of the public to experience works as free participants — in a sense, to experience books and songs the way open-source programmers experience software. Only a small percentage of people have the skills required to work on software, but a much greater percentage of people can participate in (say) writing.

It only takes a certain number of people to feel that this kind of participation is their right before their attitude starts to affect legislation. (By "right", I mean the feeling that, as long as proper attribution and derivation conventions are satisfied, even the original author should not be able to prevent others from working with their materials.)

Too optimistic? Here's a concrete example:

A year or so ago, I released a book under a liberal Creative Commons license (one that requires only attribution: derivative works and commercial redistribution are allowed). Because the book is under a free license and is available online, people quickly started translating it. Most of those volunteers contacted me, and I was able to help coordinate their work, give them recognition on the book's web site, etc. But, interestingly, some people just started translating it without even bothering to tell me — only by accident did we discover one French translation already under way! It was being done publicly, on the web, of course. Now some of these translations are nearing completion.

My book was very much a niche book. If thirty people will show up to translate that, imagine what people will do when given the freedom to manipulate copies of much more popular and substantive works. See, for example, Ethan Zuckerman's recent blog entry about fan fiction, or consider the legal history of a famously unauthorized derivative work, The Wind Done Gone.

The problem is not, ultimately, with legislators or the corporations. It is with the constituents, who, having been mostly locked out of hands-on participation since roughly the invention of the printing press, now have the opportunity to rediscover what any medieval scribe knew: that the power to copy is actually a creative power. The legislators will eventually follow the people in this.

So, a question: what can we do to bring open-source principles (including the right to fork) to works besides software, in such a way that once people experience it, they'll never want to go back?

William Patry said...

Thanks Karl for your extremely thoughtful comments and insightful example, and I will keep my fingers crossed. I thionk wikipedia and other communal works are amazing and the wave of the future. I am constantly trying to figure out how to apply it to my own stuff.

Marilyn said...

Interesting blog. Keep up the good work.

Anonymous said...

Netanel writes:

"When it has the opposite effect – when authors cannot freely build upon their predecessors’ works in creating new expression. . . something has gone awry."

I'm always curious about this argument, which I've seen most often attributed to Posner but no doubt has roots that extend before his writing.

Is this true? Are authors inordinately limited by copyright from using preexisting works to the point where it affects (at all) their ability to create new works? It's a intuitive idea in theory, but I'm not certain I'm convinced.

I'd love to hear some perspectives on this.

Anonymous said...

Neil Netanel’s article is good scholarship and a very well done survey of the mechanisms that have led to expansion of the “interests” of copyright owners. But his analysis, though complex and multi-faceted, is essentially about a single note - - the thought that greater rights, expanded rights, represent the actual interest of the copyright industries in opposition to public uses and fair uses of works.
In fact, within each of the major copyright industries such as music, books, film and software lay interest groups with inherent needs for a more open architecture of rights permitting greater access to the works of others in the production and creation of new material. These needs are, in contrast to the push for expansion, quite subtle and particular.
In music, an entire art form with very high commercial value, hip hop, relies intensely on the use of samples from pre-existing works. Virtually every artist in this field knows of works that have not been released through traditional retail channels only because the rights clearances were unaffordable or simply impossible to arrange. The artists do not stand alone in the losses represented by the failure of their works to gain release. Their record companies loose; segments of the audience suffer; and the preexisting works suffer from a lack of participation, both artistically and economically, in the new work.
Baz Luhrmann’s brilliant film Moulin Rouge and it’s score made up of composite works was possible only through the power of 20th Century Fox’s money, access to professional services and leverage with other right’s holders. Even with those impressive resources, Mr. Luhrmann in many instances had to circumvent rejections by the rights holders by pleading his case directly to the equitable owners of the works ; that is, the actual writers and composers.
Digital media’s democratization of production tools and its facilitation of re-use and re-purposing of pre-existing works will further challenge on the artistic level the notion of originality and the substantive requirements of authorship that underlie copyright. While the content owners and copyright industries lobby away for expansion of copyright and spin stickier webs of restrictions in an effort to contain digital distribution through the Internet, other parts of their corporate organizations actually suffer. The “creative” executives at music, film and publishing companies chafe at the increasingly restrictive and expensive approaches to licensing. The distribution executives are frustrated at the inability to open new markets with “open” platforms - - and make money at it. The copyright dependent industries of consumer electronics and commercial Internet users now integrated into the same organizations that aggregate rights are unable to find common ground with their own related divisions. The artists and authors are beginning to disconnect from the traditional definitions of their work. And the owners of the copyright aggregators are just beginning to understand that the expansion of rights to their catalogs of holdings may be counterproductive to the expansion of revenue streams. This last may sound too Zen-like, but it is accurate.
While the “K Street” crowd plays its one note theme to Congress and to the USTR, they aren’t listening to their own constituents back at the factories and in the towns where the goods are made that pay their bills. This dynamic comes from the difficulty of organizing businesses to collective action. Because they do in fact compete with and against each other, they can work together only on the simplest and most basic levels in terms of goals. Any subtlety to the task, any parochial complexity, wreaks the coalition. If the coalition falls, it cannot fund its bureaucracy. Without that in infrastructure, there is no political power. So while both Bill Patry and Neil Netanel are right in suggesting that the copyright industries are just following their respective self-interests, that is true only skin deep.

William Patry said...

Thanks, Josh for you extremely valuable comments. When I said self-interest, I should have been more nuanced and said "perceived" self-interest. Thanks again for taking the time to post. As always I learn a great deal from you.

Anonymous said...

If I may chime in, I also very much appreciate Josh's perceptive comment about the burdens that an expanded copyright imposes on creative industries, particularly the creatives within those industries, as well as the public at large. Yet, as I discuss further in my forthcoming book, for those who make the business decisions in the major studios, record labels, and publishers, those burdens are perceived more as a cost of doing business -- something that can be taken care of by licensing, cross-licensing, or simply moving on to the next project -- than a bar to creative expression. So, as Bill Patry cogently highlights, the industry lobbyists and exec's consistently take the position that more -- and more property-like -- copyright is better. The exception is legislation that would specifically raise costs for a given content industry. Hence, record labels oppose abolition of the Section 115 compuslory license for cover recordings of musical works.

Anonymous said...

Interesting comment Joshua. If you are looking for a another sitatuion where major industry players have argued against strengthing intellectual property rights, check out the amicus breifs on behalf of Microsoft, Cisco, and Hallmark in KSR International v. Teleflex.

I'm not sure if your comment was also an indirect response to my question about copyright stifling the creation of new works, but I thought I'd respond anyways.

You bring up the concrete example of hip hop as a genre where copyright has limited authorship. I'm not sure Bridgeport has done all that much to limit the use of sampling. People underestimate how powerful sequencing tools are today. I remember one of my composition major roommates in college (and this was, gulp, a long time ago) composed an entire drum and bass song by manipulating a .1 second sample from his favorite chord in a Beethoven symphony. Is it considered infringement now to use digital samples? I guess so. But given the ease with which you can manipulate sound, it's child's play to create a new work that is transformative to the extent that there is almost zero risk of liability.

I guess, at the end of the day, when I sit down at the piano to compose, I don't feel like my creativity is limited by copyright law. I wonder if this is the reason for the precipitous growth in intellectual proeprty rights: copyright is so thin that you can extend it indefinitely in many directions and still not substantively impede new authorship.

Christian T said...

I just wanted to thank you for alerting me to Netanel's really insightful piece. It seems that in the complexity of the issues, what is often lost is a thoughtful explanation of how we've gotten where we are. It seems to me that the conception of property as a natural right is more intuitive to the lay public. The idea that a property right can be a function of its public utility seems lost on most people. However, I think that as copyright continues to deviate so severely from public norms, and content owners such as the RIAA continue to seek excessive damages from what used to be their "customers," the tide will eventually turn. John Tehranian's "Infrignement Nation: Copyright Reform and the Law/Norm Gap" (available here: provides an excellent description of this phenomenon.

In the mean time, it is important that the "natural right"/neo-classicist rhetoric not go unchallenged. Unfortunately, this rhetoric is not only being advanced by content owners, and it seems to emanate more and more frequently from the bench. Bridgeport v. Dimension is the decision that comes most immediately to mind. In addition to creating a category of per se copyright infringement for sampling, the Sixth Circuit opinion is steeped in language that recasts copyright as a natural right: "Get a license, or do not sample."

In a somewhat unrelated note, I just wanted to note how pleased I was to stumble across a article in one of Netanel's footnotes that presents a great argument rejecting the notion that a natural rights theory is irreconcilable with the concept of the public domain. I urge anyone interested in the natural rights vs. instrumentalist view of copyright to read Abraham Drassinower's "A Rights-Based View of the Idea/Expression Dichotomy in Copyright Law" - 16 Can. J.L. & Juris. 3 (2003).

Christian T said...

"But given the ease with which you can manipulate sound, it's child's play to create a new work that is transformative to the extent that there is almost zero risk of liability."

Unfortunately this just isn't the case. I think that most people are familiar with the holding in Bridgeport, but I think few have actually taken the time to actually listen to both the original Parliament song ("Get Off Your Ass and Jam" and NWA's sample in "100 Miles and Runnin'." The court characterizes NWA's use as a three second sample of the introductory guitar section. However, that really does no justice to just how manipulated the sample is. It is unrecognizable for all intents and purposes, and is used so subtly and in such a different context that it is almost shocking that Bridgeport even discovered its use. As in all other areas of copyright, the technology for tracking the use/infringement of copyrighted works is growing as fast as the technology that enable these recontextualized/transformative uses.

The real question though, is if we want artists to be exposed to potential liability for these sorts of uses. Regardless of whether technology enables them to "mask" their use, the threat of liability looms large.

William Patry said...

What I particularly liked about Josh's comment and the follow-up ones to his, is that it pays put to the flatulent rants of commenters like the anonymous and misnamed Fan of Creativity. It pays put to such rants by pointing out the issue of the proper scope of protection is not between owners and users, but more fundamentally between different groups of creators. One very unfortunate consequence of the copyright wars as waged by content owners has been the successful effort to cast the issue of the scope of rights as one involve the creative interests and pirates, and of course the misnamed Fan of Creativity is exhibit 1 in this trope.

It is also not accurate to cast the debate as individuals versus corporations, since as Josh points out, from I think 30 years of experience in the entertainment industry, within entertainment companies there are numerous creative people who are being frustrated by the approach taken by some corporate lawyers and their lobbyists in DC. The A&R people at the labels, the business people, and thousand of others at these companies are pro-IP in the best sense: as a spur to innovation, recognizing that innovation involves shared use of copyrighted material for transformative purposes. It is a tragedy for them and us that the suits prevent them from doing what comes naturally to all innovators. They are the true Fans of Creativity. The commenter here is not.

Anonymous said...

Neil wrote: "...the industry lobbyists and exec's consistently take the position that more -- and more property-like -- copyright is better. The exception is legislation that would specifically raise costs for a given content industry." While true, its Pavlovian behavior. Articles like Neil's might bring some of the content aggregators to the understanding that "more" is at this point irrelevant as a benefit to their sector of the copyright industry, to their companies and to them personally. Other articles might convince them that tools designed to fight real piracy and that control unauthorized commercial exploitation do not need to be applied to all of the exclusive rights under Section 106 and against all people. This dialog, and this blog, are ways to nudge forward on the process of a reconsideration of copyright within the realities of a changed, digital and interconnected world.

There is no hope for the lobbyists, of course, as long as someone is paying.

And thanks to Bill and Neil for their very generous responses to my comment.

William Patry said...

The thanks is to you Josh for sharing your vast experience. One issue I would love for you to comment on is how is that so many media companies have come to be run by lawyers? The effects are obvious and negative, including the push for ever greater rights, a classic lawyers approach.

But that push has other dynamics too I think. Lobbyists are the easiest to identify: they exist only by creating Stanley Cohen-like moral panics; the measure of their success in the legislative arena on the content side is creating new rights. Without new rights to create for their clients, of what use are they? And how to create new rights other than posing false existential threats to those clients? That part of it is simple, although depressing.

But there may be another part too, and that is also a classic technique: when execs have failed miserably at their job of responding to what the market wants, what better way to shift the blame where it belongs -- on them -- than to blame others: consumers, counterfeiters, P2P, the Internet, all the folk devils Stanley Cohen sketched out.

Josh, I would be interested in your thoughts about how much of that is going on? Are execs' own failure leading to a push for ever stronger rights as a way to scapegoat others?

Anonymous said...

Thanks for your insightful comments Christian.

Two quick notes: I think you have to distinguish the holding in Bridgeport from the policy that it creates. In the case itself, there was never any question whether NWA sampled. It wasn't a case about catching sampling, but whether once detected the sampling constituted infringement.

I haven't heard of the successful use of technology to catch sampling; this is something I have to look into. But I remain skeptical about the success of any such program, given the ease with witch you can manipulate a sample into something that in no way resembles its predecessor.

I think you're dead on in when you write the following:

"The real question though, is if we want artists to be exposed to potential liability for these sorts of uses."

This is something I remain uncomfortable with. I hope you don't think my post was written in support of the holding in Bridgeport. I only question whether it has had the impact that it is widely regarded as having. And indeed, more generally, whether copyright has substantively limited authors from creating new works.

Anonymous said...

The big players in the entertainment industries have influential lawyers in their corporate control groups and at times a lawyer ends up "in charge." But with the exception now of News Corp and Viacom and only at the highest policy levels (for completely different reasons between the two), these companies are not run by any one person. In the film business, for example, there is a famous urban legend that some one or another executive has the power to "greenlight" a film - - usually a legend spun out by the executive - - but there is rarely any one person with the authority to say a movie will be made in fact. For example, the "head" of a studio could approve a film project for production, but if the marketing head says he can't sell it or if the distribution chieftain says she can't put it in as many theaters as required by the pro-forma or if the finance person says that no outside capital can be found for it or if the lawyer says that the producer didn't really have the rights, the project falls as quickly as if the lead actor for which it was written got arrested for being in the wrong theater at the wrong time doing the wrong things. Since no one person is in charge, lawyers aren't running these companies.

It is also the case that a very small group of people, largely lawyers, set policy for the entertainment industries with respect to lobbying, lawmaking and anti-piracy. Most entertainment industry executives (even those who were lawyers) think of themselves as having more interesting, engaging and immediately productive pursuits than to trouble themselves over these issues. There was a time when one man, Lew Wasserman, dictated lobbying and lawmaking activities for the entire motion picture industry and did so while he alone was completely in charge of MCA/Universal. Wasserman was a lawyer, too. But there is no Wasserman now. Those who remember him and the power he accumulated can only stand in awe and wonder (or in terror) before his accomplishments.

As you probably know, Bill, I did "run" an entertainment business and I am lawyer. That company did very well because I found non-lawyers to make the kind of risky decisions lawyers are trained to avoid, mitigate or simply pretend aren't there at all.

Lawyers are just people. If I thought there was a large proportion of successful lawyers being recruited to run entertainment companies (or tech companies, for that matter) I would be concerned. But most lawyers I know who run entertainment companies had to convince people they had given up the law to get the gig. Sumner Redstone, who taught antitrust law at Boston University, is a an exception. But he didn't exactly get hired to do his job (and he didn't get to be Lew Wasserman, either).

I don't think it is just the lawyer-executives who use the tactic of scapegoating to cover for poor corporate performance. Bad news needs good excuses. When you are casting about for good excuses, lawyers are well-trained to provide them. As one very prominent trial lawyer said to me recently and paraphrasing a bit: "If you can tell me honestly and without shame what the real problem is, I can get you out of it and no one will remember what the truth was."

William Patry said...

Thanks, Josh, I was asking more about this part of your answer:

"It is also the case that a very small group of people, largely lawyers, set policy for the entertainment industries with respect to lobbying, lawmaking and anti-piracy."

And that makes sense so long as those activities don't interfere with the business side of things. But as you pointed out in an earlier comment, it has. I have been involved in a number of cases where the business people have surreptitiously sent their works to the defendant in a case in contravention of the lawyers' instruction not to do so.

There was also an interesting article in the Saturday NY Times Fine Arts section about the arrest earlier this year of DJ Drama and the impact the crackdown of mixtape CDs has had on the subequent release of the labels' album: a drop of 20% from the previous year.

Anonymous said...

Absolutely true that there is a general dis-connect between the lawyers doing the legal wrangling on legislation and the line executives at entertainment companies. But its only partial and it does depend on the company. One music company has a more draconian non-lawyer top dog spouting more protectionist knee-jerk slogans than even its ultra conservative anti-tech lawyer in charge. At one film company, the "boss" revels in attacking new distribution platforms while his line division with digital distribution responsibilities is among the most willing to make deals - - even bad ones - - for the company. At another, the public face of the company pushes digital distribution as the salvation road while the line executives block every deal on anti-piracy grounds.

We are still in a state of anarchy or revolution. There are no predictable standards at the moment for the behavior of anyone.

Julianna said...

Just a note to anyone looking for Netanel's book on

I had to search for it by the ISBN number, because it's called "Copyright and a Democratic Civil Society" instead of "Copyright's Paradox".

William Patry said...

Thanks, Julianna. Now that the Canadian dollar is worth more than the U.S. dollar, you can feel free to rename all our books.

Anonymous said...

I come a bit late to the party, but this discussion of Netanel's wonderful article is perhaps an appropriate forum for a question he does not take up: why has the duration of copyright protection expanded so much more than the duration of patent protection? They both started out with comparably short terms, but the patent term has stayed relatively constant. True, patent scope has expanded--but then, so has the scope of copyright.

I don't bring this up as a criticism of Netanel's article, but simply out of curiosity.