August 2008 Archives

Last spring, Bill Carney of the OCLC joined us as a panelist at the Center for Intellectual Property's Annual Symposium to talk about an endeavor that was, at the time, still in development. Well, his Copyright Evidence Registry [OCLC] launched last week! The effort promises a big step forward for those struggling to come up with ways to identify works for whom owners cannot be identified or located -- orphan works. The effort also enables those with information about the owner of a work to contribute that as well. OCLC is taking a "crowd-sourcing" approach, or a distributed contribution approach to a problem that is of such large proportions that it seems nearly insoluble any other way. How does one motivate people who know something about a work to come forward and identify themselves, the basis for their knowledge, and what they know?

One of the persistent problems with the (so far) failed legislative attempts to address the issue of how to transition works for which there is no one to "ask permission" to digitize them and bring them into the networked digital environment, has been the interpretation by so many copyright owners, especially image copyright owners, that the proposed laws' safe harbors constitute a threat to their quiet enjoyment of their property. Even though the proposals tried to address their concerns with what I thought were really far too solicitous safeguards in many cases, they still fell short of what owners wanted (which was, IMHO, just to kill the bills).

The difference between legislative solutions and OCLC's approach is pretty dramatic. There is no safe harbor. Nothing about the law changes at all. All the OCLC effort does is help people to compile information in one location on which individual judgments about the status of a work can be based. Anyone and everyone can contribute, though credibility is clearly enhanced if the contributor is associated with an institution like a research or other library, or an artists', writers' or photographers' collective, but the bottom line is that the evidence will be compiled and it will be up to users of the works described to decide at what point they feel the risk of infringement has been reduced sufficiently for them to make the use they propose.

The credibility of the information (and the provider of the information), the quantity of evidence, as well as the character of the proposed use combine to make a sort of sliding scale of risk assessment. For example, someone proposing to merely post a work for public access for nonprofit educational, personal or scholarly use probably perceives a lower comfort threshold than someone proposing a commercial use or reuse of the work. In fact, for some uses, nothing short of a legislatively prescribed process for conducting a search for the owner, and a remedy safe harbor, will satisfy. But at least this will get the ball rolling, especially for nonprofit educational and scholarly uses.

We are considering now whether UT Austin's Libraries will participate in the beta phase of OCLC's roll-out. I consider it a wonderful opportunity to begin in a very concrete way to work on a solution to the complex problem of enabling the transition of abandoned works to the Web where they will not be lost to future generations, without imperiling the rights of those who own some of those older works that could mistakenly be identified as orphan to control and seek compensation for their use in the digital environment. What a challenge.

Last year I kept being amazed at all the progress I saw in the adoption of more realistic business models by the music as well as other industries. I thought it was a watershed year for loosening up the DRM stranglehold and making more content freely available to consumers. But there were also a number of court decisions confirming the importance of fair use -- mainly the search engine cases, though there was that wonderful Grateful Dead case out of the 2nd Circuit. Thus, it was also a watershed year for the expansion of transformational, or creative fair use.

Well, the trend is continuing. I just read a note in Wired about another fair use decision, this one relating to the "take-down notice" procedure mandated by the DMCA's limitation on liability for Internet Service Providers (Section 512): Judge: Copyright Owners Must Consider 'Fair Use' Before Sending Takedown Notice | Threat Level from Wired.com. This is the process that has prompted the "chilling effects" website that chronicles the threat to free speech these "shoot first and ask questions later" notices pose. The judge in the case has found that copyright owners have to take fair use claims into account *before* they send these notices. That is a major, major victory for those who make creative uses of others' works, who build upon them, or incorporate only small parts of them into new works, where the strongest claims to fair use lie.

This holding is only one step along the way for the plaintiff in this case. The case isn't over and EFF, who is representing her, still has a long way to go to show that Universal Music acted in bad faith in not considering fair use. But at least we have this initial holding that one must at least consider it!

There is very encouraging language in the court's opinion regarding the question of whether fair use qualifies as use "authorized by law." The relevant part of Section 512 requires copyright owners to include in their take-down notices, among other things,

(v) A statement that the complaining party 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. (emphasis added)

The court finessed the tricky question of whether fair use is simply a defense to an allegation of infringement (or a right), by focusing simply on whether it is authorized lawful use. The court unequivocally holds that fair use is authorized use. Thus, the copyright owner can not say that a use is "not authorized by law" unless it has considered and rejected the viability of a fair use claim.

The good faith/bad faith issue is the next one to be considered by the court. It will be interesting to watch as the case continues its way through the legal process.

The Bridgeport decision -- the one that famously proclaimed that there was no such thing as a de minimus use of music recordings (ie, no matter *how small* your use, it needs to be licensed) got some comeuppance yesterday: New York Supreme Court Rejects EMI's Bid to Enjoin Expelled | Stanford Center for Internet and Society. The context was Yoko Ono's and EMI Records' claims against the showing of "Expelled: No Intelligence Allowed," a film that uses some clips from John Lennon's "Imagine," without permission. I blogged about this when it first came to light. Ono quickly lost her bid for an injunction based on ownership of the composition, and now EMI has lost its similar bid based on its ownership of the recording copyright. These holdings are excellent news for creative fair use, of course, but the rejection in the NY Supreme Court's analysis of the Bridgeport case reasoning is icing on the cake! Maybe we will begin to see some relief from ridiculous cases holding that 3 notes from or a few seconds of someone's song is an infringement.

Such a reversal of the trend for which, hopefully, Bridgeport represents the high water mark, would be welcomed by the creators of new works who increasingly base their works on or incorporate snippets from others' works. From what I've read, Lessig's last book on copyright (Remix -- coming out in October) deals with this kind of creativity and the important role that fair use must play if we are to have a law that makes any sense at all in the digital networked environment we live in today.

My favorite copyright blogger, copyright guru, articulate, real, "from another planet" brilliant, Bill Patry crushed my spirits this morning: The Patry Copyright Blog: End of the Blog. I understand completely his reasoning for abandoning his blog, and even identify strongly with his second reason, for I feel the same way most of the time. But still, I am so, so sorry to know that this way of learning, this way of understanding, and seeing, will be closed to all of us now. I will miss his point of view and his incisive analysis. Such a keen observer.

Of course it makes me think of Lessig's departure. Granted he departed copyright altogether, not only blogging about it. But he too expressed (or so it seems to me) a sense of conviction that nothing could be done to change the wrong-headed push for more and more, and stronger and stronger, and longer and longer copyright (so he went off to fight the source of the problem, moneyed interests control in Congress). Yes, it is depressing.

It is still possible for those of us who interpret the law for others to actually help people deal with the realities of copyright, in their day-to-day lives. That has always been the part of being a copyright attorney that makes me happy. But having to face the absurdities, listen to the arguments, read each new and awful legislative proposal knowing that once again, we'll have to fight like crazy to keep things from getting worse, and on and on, this is depressing and makes me want to turn away too.

I really don't know where it will all go, when it will end. On the one hand, I wonder if it still has to get much worse before it will begin to get better ("give them enough rope..."). Or maybe, as I have suggested before, things are changing in the business world in ways that may take the pressure off the law to "protect" works (recognition that digital copies simply can't be controlled and metered, so find other ways to monetize the flow of digital content). And then there are the positive developments like the ones I discussed in my last post (fair use best practices) that seek to normalize healthy use and reuse of others' works for creative purposes), and cases that interpret fair use to have a broader scope in creative and transformative contexts (recent search engine cases, Grateful Dead case). But as Bill Patry observes, the positives are far outweighed by the negatives and it is hard to keep optimism alive in that kind of environment.

But Patry will still be facing all of this. He has his 7 volume treatise to keep up to date. He has his law practice. He is bombarded, I'm sure, with requests to participate in symposia and conferences. He may not be talking about all these depressing things on his blog every few days, but he will, I have to assume, still be depressed so long as he practices copyright law. Like the rest of us. Maybe we all should be supporting Lessig more and worrying about copyright less. He was probably right, that it's hopeless so long as we have the kind of legislative process we have now. The idea of a real, defensible public interest seems more absurd than anything.