Legal decisions based on what the law is not — the “permission culture” and copyright overclaiming

One thing law students don’t get at all is the ways lawyers negotiate a world in which legal decisions are based on what the law is not.

Mike Masnick over at techdirt, , writing about the “Permission Culture” (that is, the culture that insists that sampling and quoting should only be done with permission), puts his finger directly on one of the biggest problems — the fear of even frivolous lawsuits, even by big publishing concerns, prevents writers, musicians, and artists from quoting, sampling, and appropriating parts of copyrighted works they don’t need permission to take:

The unfortunate reality these days is that publishers won’t touch such quotes without permission being granted. It’s almost impossible to find a publisher these days that would sign off on even that snippet of eight words, claiming that they don’t want the liability of a lawsuit. I’ve had this discussion a few times with authors and publishers, and they all say the same thing: due to the potential liability of a lawsuit, even if it clearly does appear to be fair use, it’s just not worth using the quote. In fact, we discussed this point here last year, where we wrote about an author who had to drop an entire section of a book, because of a few short quotes. Clear fair use… but his publisher wouldn’t touch it.

I would suggest too that one reason publishers won’t publish books without permission for the use of quotations is that they perceive it to be in their interests not to do so. That way, other publishers will ask and pay for permission to use quotations from their own books. That is why, I am convinced, the music industry never has seriously challenged lower court decisions requiring permission (and, presumably, payment) for the use of any recorded sample — the practice makes each company’s record vault’s sources of income.

The problem, of course is exacerbated considerably because the wealth and of the corporate conglomerates that own so much of our intellectual property. Who is going to fight Disney, even if he’s right? Another problem is the widespread ignorance in the media about copyright. As Richard Posner has written, the fear of litigating against rich copyright holders who place a premium on their fear of losing something of value leads to behavior based on law that isn’t at all what the law is supposed to be:

Look at the copyright page in virtually any book, or the copyright notice at the beginning of a DVD or VHS film recording. The notice will almost always state that no part of the work can be reproduced without the publisher’s (or movie studio’s) permission. This is a flat denial of fair use. The reader or viewer who thumbs his nose at the copyright notice risks receiving a threatening letter from the copyright owner. He doesn’t know whether he will be sued, and because the fair use doctrine is vague, he may not be altogether confident about the outcome of the suit. The would-be fair user is likely to be an author, movie director, etc. and he will find that his publisher or studio is a strict copyright policeman. That is, since a publisher worries about expansive fair uses of the books he publishes, he doesn’t want to encourage such uses by permitting his own authors to copy from other publishers’ works. So you have a whole “law in action” law invented by publishers, including ridiculous rules such as that any quotation of more than two lines of a poem requires a copyright license.

Challenging automated YouTube takedowns (and don’t forget to think through the ramifications)

Chris Walters at The Consumerist provides an excellent account of the whys and wherefores of takedowns of YouTube videos.  In addition to explaining why YouTube’s automated Content ID tracking system results in the kind of baseless deletions I referred to the other day, Walters also explains that “[Y]ou can dispute any Content ID claim. If you have a clip that’s been targeted, you’ll see a notice about it on your YouTube account page. From there you can access a dispute page where you can affirm that you believe your clip falls under fair use, and the clip will immediately become public again. The copyright holder will receive notice that you’ve disputed the clip, and must then decide to leave you alone, send a DMCA takedown notice, or sue.”

Importantly, too, he explains that you want to give some thought to the ramifications of disputing an automated takedown: “There are legal ramifications to this, which YouTube hints at and the EFF explains very clearly. If you decide to fight copyright abuse by a large company, you should make sure that you’re on the right side of the fight, that you have a sensible chance of winning a possible lawsuit, and that you’re willing to assume the financial risk. All three of those determinations probably require some serious meetings with a lawyer.”

On the other hand, any copyright owner sending a takedown notice ought to consider the legal ramifications of doing so, since a baseless one relying on the power to outspend an individual fair use claimant might have its own legal downside.

The EFF fights copyright overclaiming by means of public shaming

One of the problems of our legal system I’ve written about is the way its expense has conferred inordinate weight on sheer wealth. In copyright, this problem plays out in what is termed “copyright overclaiming” — the assertion of rights over content that is utterly misbegotten but not worth the expense of fighting. One means of fighting this abuse, I suppose, is public shaming, which is exactly what the Electronic Frontier Foundation is now doing with its “Takedown Hall of Shame,” a compilation of “[b]ogus copyright and trademark complaints have threatened all kinds of creative expression.”

People have always remixed their cultural artifacts; the internet has made them publishers.

Rene Kita has a terrific post on copyright law and “remix culture.” His point is that we’ve always engaged in remixing existing copyrighted works circulating in our culture, but the internet has transformed these perfectly typical activities into “published” works:

There’s the problem. People have grown up in a fair use zone where you could do anything with culture and they expect this to extend to their Internet living rooms, in which they typically converse with a few dozen friends. Funny Photoshop transformations of Brad Pitt’s face? Lawyers at your door. Insert ‘poops’ into that Britney Spears song? Lawyers again. Lose your house paying your defence lawyer.

You see, lawyers have this fictional creature known as The Consumer. That’s all of us, but stripped of any urge or ability to get creative. And then there is that other mythical monster called The Artist, who creates works from scratch – or gets hauled into courts for theft. Neither of these phantasms has anything to do with how human culture actually works.

Kita concludes that it is this misfit between the law and normal human activity that underlies the anger people feel at the tyrannical assertion of copyright:

This is why people are angry. Their normal modes of expression have been turned into a crime. They know they are only safe from prosecution because they are small fry – unless someone decides to make an example of you. Thus, any time you post some photoshoppery or a musical mash-up you risk having it summarily deleted and your account cancelled for criminal cultural activities.

Perhaps I do accept that there should be a way for creative artists to make a living with their craft, but if it comes at the cost of turning the rest of humanity into passive consumers, I say it is not worth it. We need a completely different way of showing our appreciation to artists.

The Question: existing copyright laws do more harm than good.

The Economist this week is sponsoring online a good old-fashioned debate, with the two sides lined up on either side of the question: existing copyright laws do more harm than good.

The fight is on: AP sues Shepard Fairey.

Brian Ledbetter has the news and a comprehensive set of links to various views on a dispute I’d love to see resolved in a court (even the Supreme Court): AP has sued Shepard Fairey, claiming that his Obama poster infringes AP’s copyright in the photo Fairey stenciled before altering its colors, its background, and Obama’s suit jacket and tie to create the poster that became an iconic symbol of the presidential campaign.  I hope Fairey sticks to his guns and fights this out without settling.  I think his poster so profoundly transforms the impact of the image from the photograph that his poster is not an infringement. And AP has been known to assert blatantly silly infringement claims.  Of course, not everybody feels the way I do.  So I’d very much like to see the matter decided, and I suspect Fairey, unlike many of the victims of copyright overclaiming, has the resources to take the case to trial and through appeal.

ADDENDUM: I am not alone in my conviction regarding the tranformative way Fairey’s poster alters the AP photograph.  Submitted to a Candid World Writes:

Part of the law that’s grown up around these simple factors is the doctrine of “transformative” use, whereby a copyrighted work appropriated but utterly transformed in meaning and substance provides the original “artist” with no valid copyright claim. Oddly, to satisfy this doctrine, artistic transformation of an artistic work may not be enough, even if the effect of the transformation is to invert the work’s meaning.  The law requires more than a different perspective and a little hand-coloring. See Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).¹ But Fairey’s case is a significantly greater reinvention: here, Fairey took an image intended for neutral description in the news media and transformed it into an inspirational image associated worldwide with Barack Obama’s historic candidacy and unique promise. In the process of creatively altering the image from the purely representational to the artistically abstracted, he added meaning and value, and he crossed expressive genres in the process, depriving the AP of any legitimate claim of lost revenue. This may just be over the border of “fair use,” but fair use it is. The AP should back off.

Why did I call Google a (former?) “white knight”?

I wrote yesterday that some fear Google’s decision to settle the lawsuit over the Google library project heralds a new era, one in which Google will not be the rich uncle fighting the fights over copyright that others, who cannot afford being engaged in protracted lawsuits, will be unable to fight. The point deserves some further observations.

First, those who represent wealthy corporate interests typically decry the fact that in the U.S. both the party who brings the lawsuit (the plaintiff) and the party who is sued (the defendant) bears its own litigation costs, win or lose. This rule (the American Rule) is in contrast to the English Rule. In the U.K., the party who loses a lawsuit pays the costs of the winner’s lawyers. As a result, there are fewer cases brought by plaintiffs without resources. Corporate interests that advocate for “tort reform” don’t want individuals suing corporations as often as they currently do for things like personal injury and employment discrimination. If plaintiffs had to pay the costs of the defendants’ attorneys in those lawsuits when the plaintiffs lost, far fewer plaintiffs would in fact sue.

But in the copyright arena in these internet days, it generally is wealthy corporate interests that are threatening to sue or suing individual defendants. Because many of these defendants cannot afford to pay for lawyers to fight these threats, they back down. As a result, there is what is called “copyright overclaiming” – that is, copyright holders claim rights they don’t have, threaten legal action (or send DMCA takedown notices), and get what they want even though they are not entitled to it. Sometimes copyright holders can get help (from, for example, the Electronic Frontier Foundation), but in 999 cases out of 1000 they’re left to their own devices, and it usually makes far more sense to back down then to fight. Why pay for a lawyer to fight an expensive lawsuit when, if you lose, you’ll have to pay the far more expensive legal costs incurred by your adversary too?

That’s why, if Fred von Lohman is right and Google is no longer going to fight copyright battles it thinks should be fought on the merits (and not only for short term business advantage), it would be a real loss; it is, in short, why I called Google a “white knight” in the title of yesterday’s post.

Do we really want to treat artists like shoplifters?

Effective lawyering, like any effective practice, requires choosing the right objective.  There are less charitable ways to think of this strategy.  I could just as easily write that effective lawyering requires choosing the right victim.  You don’t sue someone who will beat you, no matter how righteous your cause.  Sun Tzu made this strategy plain: “If your enemy if superior in strength, evade him.” The Art of War (ch.1, v.21),  That’s why, for example, I don’t think Metallica will sue Girl Talk even though Girl Talk makes music by sampling the recordings of a myriad of artiststs that include litigants as aggressive as Metallica.  Girl Talk’s work may consist entirely of sampled copyrighted works, but it is work constructed so creatively that it constitutes something genuinely new and creative, something, in the words of the law, that is “transformative” of its copyrighted materials.

Girl Talk is like Jeff Koons.  In Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007), the United States Court of Appeals for the Second Circuit ruled that Jeff Koons’ appropriation of a copyrighted photograph in a painting did not infringe the photographer’s copyright because Koons’s use of the photograph was “transformative”:

Koons is, by his own undisputed description, using [the copyrighted photograph] as fodder for his commentary on the social and aesthetic consequences of mass media. . . . When, as here, the copyrighted work is used as “raw material,” . . . in the furtherance of distinct creative or communicative objectives, the use is transformative. . . . His stated objective is thus not to repackage Blanch’s “Silk Sandals,” but to employ it “in the creation of new information, new aesthetics, new insights and understandings.”

Instead of going after the artists like Girl Talk and Jeff Koons, copyright holdlers (typically large media conglomerates) go after victims they think they can beat into submission.  Thus, for example, Prince’s music company, Universal Music Group, sought to remove the 29 second video of a mom’s son dancing to Prince’s “Let’s Go Crazy” from YouTube via a takedown notice under the Digital Millennium Copyright Act (the “DMCA”).  Other people think suing college students for illegally downloading music is the right strategy for resolving the inevitable conflicts posed by the clash between our new technologies and our old copyright laws.  College students don’t have the money to defend lawsuits brought by media companies.  And, the thinking goes, if a bunch of defenseless law students are deterred, everyone else will fall into line:

In a lot of ways, downloading is more like shoplifting than it is like “piracy,” the term often used for it. Pirates embrace a life of crime; shoplifters often see their activity (wrongly) as an exciting and slightly risky diversion – a relatively petty vice in an otherwise law-abiding life.

The recording industry will have to use similar tactics, and like retail stores, they will have to live with a small loss from undetected stealing. But that loss can be minimized, through warnings, monitoring, and enforcement. And word of enforcement spreads. . . . Few students will keep downloading once their classmates have famously gotten in deep trouble for doing just that. That is good for them, but even better for us. . . .

The more seriously society takes shoplifting, the more shoplifters will be deterred. The same is true, I believe, for illegal downloaders. Every law-breaking student has a diploma at stake, and only a scintilla of students are hardened criminals. Like the thrill of shoplifting, the thrill of illegal downloading may fade quickly in the face of serious penalties, and a real risk of getting caught.

There is a big problem with this reasoning.  The use of copyrighted materials without permission is not like shoplifting.  Intellectual property is not tangible property, and the law does not equate the two.  As I wrote just yesterday,

We are not a society oriented only toward property ownership. Free expression, based primarily in the First Amendment of the Bill of Rights, is also foundational to our society. It is exposure to ideas, and not to their particular expression, that is vital if self-governing people are to make informed decisions. There is, however, an inherent tension here. While the First Amendment disallows laws that abridge the freedom of speech, the Copyright Clause calls specifically for such a law. The First Amendment gets government off speakers’ backs, while the Copyright Act enables speakers to make money from speaking and thus encourages them to enter the public marketplace of ideas. Balancing this conflict is precisely the purpose of the fair use doctrine,

The problem is a real one.  I have a new friend, Cathy Vogan, who has created Futurisms, a film that uses the song Que Sera Sera as a jumping off point to comment on the song’s naivete in the face of Reality.  I think Futurisms is a genuinely creative work.

But Facebook has removed Futurisms from its site, and while the company gives my new friend an opportunity to file a “counter-notification” contending that she has a right to have her film posted, when she looks at what she must declare to file the counter-notification, she sees, in her words, “a scary legal word: ‘perjury,’ and wonder[s] what will happen to me if I proceed.”

Who can blame her?  Should she take on Facebook?  She is a struggling, but fairly well-known video artist with 8 international awards who has never sought to make money from her creative work.”Futurisms” was completed a few months ago, and has never been shown anywhere, besides her website and Facebook.

Stephanie Lenz took on Universal Music Group and won. Thankfully, she had the help of the Electronic Frontier Foundation.  What should Cathy do?  I think she should file her counter-notification.  “Perjury” requires lying, and as long as she doesn’t lie, there’s no harm in filing the notification.  The worst that can happen is that Facebook will refuse to alter its position.

But do we really want to treat artists like shoplifters?

ADDENDUM: Cathy filed her counter-notification, and Facebook has restored FUTURISMS.  Here it is too:

The uses and abuses of the differences between the law on the books and the law in action (with a particular emphasis on copyright overclaiming)

It’s pretty obvious law and behavior often diverge. In some cases, that divergence arises from ambiguity and the realities of human relationships. How do you respond when a valued customer arguably breaches his contract with your client? Quite possibly, if not likely, your client will be better served by ignoring the breach of the written obligation and keeping the customer satisfied. As Charles L. Knapp, Nathan M. Crystal, and Harry G. Prince write in the preface (pdf) to the casebook I use in my Contracts course:

[I]n real life there is likely to be not just one answer to a client’s problem but a whole range of possible answers, some of which are clearly wrong, but many of which are at least plausibly right, in varying degrees. Living with ambivalence and uncertainty is not always pleasant, but the ability to do so is surely a more necessary lawyering skill than mastering the niceties of citation form.

Some lawyers and clients, however, abuse this gap between law and behavior. I am not referring to the everyday, harmless disregard of the “rules.” How often do you obey the speed limit? But, as Judge Richard Posner writes, this “dichotomy long noted by legal thinkers between the law on the books and the law in action” is a particular problem in copyright law. Often the mere threat of an infringement action can extract money from someone using copyrighted material in a legitimate way. The problem, of course is exacerbated considerably because the copyrights to so much of our media are owned by corporate conglomerates. Who is going to fight Disney, even if he’s right? Another problem is the widespread ignorance in the media about copyright. As Posner writes:

The result is a systematic overclaiming of copyright, resulting in a misunderstanding of copyright’s breadth. Look at the copyright page in virtually any book, or the copyright notice at the beginning of a DVD or VHS film recording. The notice will almost always state that no part of the work can be reproduced without the publisher’s (or movie studio’s) permission. This is a flat denial of fair use. The reader or viewer who thumbs his nose at the copyright notice risks receiving a threatening letter from the copyright owner. He doesn’t know whether he will be sued, and because the fair use doctrine is vague, he may not be altogether confident about the outcome of the suit. The would-be fair user is likely to be an author, movie director, etc. and he will find that his publisher or studio is a strict copyright policeman. That is, since a publisher worries about expansive fair uses of the books he publishes, he doesn’t want to encourage such uses by permitting his own authors to copy from other publishers’ works. So you have a whole “law in action” law invented by publishers, including ridiculous rules such as that any quotation of more than two lines of a poem requires a copyright license.

Universal Music recently was, at least for the moment, slapped down in a particularly absurd instance of copyright overclaiming. Universal sought to remove Stephanie Lenz’s 29 second video of her son dancing to Prince’s “Let’s Go Crazy” from YouTube via a takedown notice under the Digital Millennium Copyright Act (the “DMCA”). Lenz in turn sued Universal on the grounds that in sending the takedown notice Universal knowingly misrepresented that Lenz’s video was infringing. Remarkably, Universal argued that a copyright holder need not consider whether the use of copyrighted material is legitimate fair use before sending a takedown notice. The DMCA provides, however, that a copyright owner can send a takedown notice only if he has “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” If use of copyrighted material constitutes fair use, it is “authorized by the law.” And there is no question that determining fair use can be a difficult and complicated determination. But not in not in Stephanie Lenz’s case — here’s the “offending” video:

Thus, it should be no surprise that U.S. Federal District Court Judge Jeremy Fogel rejected Universal’s argument that, before sending a takedown notice to YouTube, it did not need to even consider whether the presence of Prince’s “Let’s Go Crazy” in the video was a fair use . Accordingly, the judge refused to grant Universal’s motion to dismiss Lenz’s case. In his decision (pdf), Judge Fogel wrote:

An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to . . . the DMCA. Such an interpretation of the DMCA furthers both the purposes of the DMCA itself and copyright law in general. In enacting the DMCA, Congress noted that the “provisions in the bill balance the need for rapid response to potential infringement with the end-users [sic] legitimate interests in not having material removed without recourse.”

Not everyone has the guts of Stephanie Lenz. That’s a problem. The Universals of this world have all the money. Recently, the Electronic Frontier Foundation noted that another “federal judge denied copyright infringement allegations from Universal . . . affirming an eBay seller’s right to resell promotional CDs that he buys from secondhand stores.”