©ollectanea

Most of the time, working on copyright issues means working in the trenches -- dealing with the day-to-day questions that come up, such as "I want to do this" or "I want to do that, and is it ok?" These can be small questions about a single action or they can be big questions about a project or a business plan. But they keep us very busy, because copyright increasingly affects so much of what our clients do.

When I first started practicing copyright law, these questions were all there was. It took me a long time, actually, it took years for me to begin to sense what was deep beneath the surface of our copyright law that actually accounted for most of the bewildering aspects of what we see and experience on the surface. It's not that they are a secret, these undercurrents. No, most written explanations of copyright start right off with the normal recitation of their existence, but then they go on pretty quickly to deal with the nitty-gritty because that's what really affects us, that's where we have to function. "Is this a fair use?" "Can we digitize this map?" "Is this work in the public domain?" "Can I use this quote at the beginning of chapter 7?" Rarely did anyone ask, "Isn't a law that protects grocery lists and instructions for how to get to Suzie's house for upwards of 100 years, with the full power of the federal government, it's court systems, its law enforcement (federal marshals), now a copyright czar, and if some could have their way, the federal attorney general's office, and the federal prison system, isn't that a little bit extreme? Well isn't it absolutely absurd, if we want to be honest about it?" Do I really need all that "incentive" to make a grocery list? Is that the only way our society can get me to make a grocery list? Why does the government care about how many grocery lists there are in the first place, that it would go through all the expense and trouble it takes to legislate, to pass a massive law like the Copyright Act, to protect them? What on earth is wrong with this picture?

But that's the type of question that surfaces more and more today, because those undercurrents are finally so near the surface that they no longer can be glossed over in the introduction to copyright law. They explain too much. You simply can't understand what has happened to our law -- and what is going to happen to it over the next 10 years -- unless you understand these undercurrents.

Still reading? I'll get to the point.

The presidential race focused its illuminating attention on this conflict last week. Now with all the trouble in the world, it might seem odd that copyright law even makes the cut. After all we didn't hear about it in the debates. No one asks about it in the polls. But it was there: McCain Fights for the Right to Remix on YouTube. Even Larry Lessig, who gave up on all this 18 months ago and went off to deal with the even bigger undercurrent of corporate influence in Congressional legislating, shined a light on it in commentary: Copyright and Politics Don't MIx. It seems that McCain campaign workers, like millions and millions of other American citizens, got to experience firsthand how the law works, the law that McCain himself helped to pass in 1998, and how little sense it makes from a common point of view: the point of view of someone who believes the law should be about things that really matter and not about things that don't.

Fighting for the right to remix? What? Is that like fighting for more efficient and effective health care or fighting to slow down global warming? Or fighting human rights abuse? Hardly. But there it is anyway, this conflict in our law, this conflict between a vision of the law as instrumental, a means to an end, and a vision of our law as natural, an inherent right welling up out of the act of creation, breaking the surface, this time in a presidential race. I never would have believed it could happen.

The problem McCain encountered is that the law is designed to protect property regardless of whether it needs protecting. McCain didn't hurt anyone's or any company's financial bottom line by using his, her or its clip in a video. The owner of the clip doesn't need to keep McCain from using it in order to make a living. The owner may have needed to know that the federal marshals and the federal court system would come to his aid to protect the clip from some things (like copying and distributing his entire work for a profit without having to pay him anything) in order to make the clip in the first place. But that's a far cry from protecting a 10 second clip from being "quoted" in a political advertisement. Why does the DMCA, this law that McCain passed in 1998, protect a 10 second clip from being quoted in a political ad?

The law assumes a "shoot first, ask questions later" stance against anyone who uses any part of another's work. This idea does not arise from the utilitarian, instrumental underpinning of copyright law. Fair use should generously prevent such a silly claim -- that 10 seconds, un-permissioned, should be a compensated financial loss to the owner. No, shoot first, ask questions later comes from the natural law side of things: that every penny that might be made from exploiting a work ought to find its way into the pocket of the copyright owner and the law (the federal government, etc.) ought to do whatever it can to direct that penny to his pocket.

Long terms (forever minus a day); narrow scope of fair use; lack of formalities to indicate a need for and desire to claim protection -- these shape our law around natural rights traditions, bending it away from its Constitutional purpose so clearly and unambiguously described as instrumental: for the purpose of increasing knowledge.

Well, enough of copyright basics 101. Back to the real meat and potatoes of Presidential politics, with only 9 days left...

You may remember that back in July, Judge Deborah Batts of the Manhattan federal district court issued a preliminary injunction barring U.S. publication of 60 Years Later: Coming Through the Rye, a Swedish author's updated take on J.D. Salinger's Catcher in the Rye - an action filed before the author's death and carried on afterwards by his estate. Among other things, Judge Batts concluded that (notwithstanding some impressive expert affidavits to the contrary), it wasn't likely that the defense would succeed in demonstrating that the reinterpretation was a "fair use" - because it didn't amount to a critique of or commentary on the original. That crabbed reading of the substantive fair use standard (which seemed to overlook a good deal of the recent "transformativeness" jurisprudence) cried out for review - especially in light of the Eleventh Circuit's very different treatment of The Wind Done Gone, Alice Randall's unauthorized Gone with the Wind sequel, in 2001, with its strong emphasis on the copyright/First Amendment connection.. But a funny thing happened on the way to an appeal of the decision on the merits in this newest Salinger-induced copyright controversy. In its first bout with the case, the Second Circuit Court of Appeals focused on what may at first blush appear to be a fine point of procedure, but could ultimately be more significant to the future of copyright - and the fair use doctrine - than any ruling on the rights and wrongs of the infringement claim.

A bit of background may in order. For years, most federal courts in copyright cases have assumed that a plaintiff who demonstrates infringement was presumptively entitled to a permanent injunction barring further circulation of the offending work. The same had long been true in patent litigation as well. And, in a parallel line of decisions, courts in both types of IP cases had held that a plaintiff who demonstrates a statistical "likelihood of success" on the merits (that is a more than 50 percent chance) is entitled to a preliminary injunction in most ordinary circumstances. Then came the unanimous 2006 Supreme Court decision in eBay v. MercExchange, a patent dispute over the eponymous plaintiff's "Buy it Now" feature, which held that "the traditional four-factor test applied by courts of equity when considering whether to award permanent injunctive relief to a prevailing plaintiff applies to disputes arising under the Patent Act. That traditional test requires a plaintiff to demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law are inadequate to compensate for that injury; (3) that considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction." In other words, there will be cases in which an award of damages - amounting to what might be considered a judicial "compulsory license" - will be enough to make the copyright owner whole while preserving the public interest and it is up to that owner to demonstrate that this isn't one of them!

Ebay left two important questions unresolved - whether the rule applied to preliminary as well as permanent injunctions, and whether it governed in copyright as well as patent cases. In Salinger, the Second Circuit gave its unequivocal answer to both: "We hold today that eBay applies with equal force to (a) preliminary injunctions (b) that are issued for alleged copyright infringement." And with that - and a hint that (after all) the district court's fair use analysis may have been insufficiently generous to the defendant - the Second Circuit sent the case back for a reconsideration of the appropriateness of preliminary injunctive relief according to the eBay standard.

And you may fairly ask, what's so important about that? To appreciate the answer, it helps remember that in recent years most copyright cases that found their way to court never progressed beyond the preliminary injunction stage. As a result, they never produced definitive rulings on the points of law and fact involved - and, especially, on the merit of the defenses interposed (including, but not limited to, fair use). For ordinary (and even some extraordinary) copyright defendant, there's no real percentage in continuing to fight your case when you can't sell your toy or screen you movie or publish your book. Of course, the cases that settle out after an adverse preliminary injunction decision are officially scored as plaintiffs' victories - and publicized as such. And the result has been a sort of intensifier effect, through which even somewhat dubious copyright claims get validated and creative users' arguments are systematically disappeared. Or, to put it another way, it guarantees a permanent dearth of meaningful cases through which the limits of copyright protection can be tested.

It is difficult - to say the least - to imagine that the Supreme Court would see this "extension" of eBay any differently. In 1994, the Court dealt with another seemingly "technical" copyright issue - deciding 9-0 that attorney's fees could be awarded to successful copyright defendants, rather than being reserved for plaintiffs only. The language of Chief Justice Rhenquist's opinion in Forgerty v. Fantasy bears quotation at length here:

[I]n Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975), we discussed the policies underlying the 1909 Copyright Act as follows:

"The limited scope of the copyright holder's statutory monopoly . . . reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an `author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good." (Footnotes omitted.)

We reiterated this theme in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 349-350 (1991), where we said:

"The primary objective of copyright is not to reward the labor of authors, but `[t]o promote the Progress of Science and useful Arts.' To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work." (Citations omitted.)

Because copyright law ultimately serves the purpose of enriching the general public through access to creative works, it is peculiarly important that the boundaries of copyright law be demarcated as clearly as possible. To that end, defendants who seek to advance a variety of meritorious copyright defenses should be encouraged to litigate them to the same extent that plaintiffs are encouraged to litigate meritorious claims of infringement. In the case before us, the successful defense of "The Old Man Down the Road" increased public exposure to a musical work that could, as a result, lead to further creative pieces. Thus a successful defense of a copyright infringement action may further the policies of the Copyright Act every bit as much as a successful prosecution of an infringement claim by the holder of a copyright.

Almost every word of this prescient opinion could apply, with equal force, to the issue in Salinger. Without some meaningful constraint on preliminary injunctions in copyright cases, the "boundaries" of copyright law will never be clearly "demarcated." With such constraint, many things become possible!