One of the beauties and frustrations of dealing with issues online is the immediate feedback loop and the possibility that such a loop amounts to little more than people talking at each other, rather than with each other. We experienced this last week, when we posted the following thoughts to our Twitter account (@copycense):

Empirical question: how much is it worth in publicity, goodwill for creator to use Creative Commons license vs. copyright registration?

Empirical question: How many creators involved in the arts actually take the time to learn copyright basics? How do they do it?

Empirical question: If creators don’t understand basic copyright, how can they reasonably distinguish between copyright & Creative Commons?

Would energy behind CC be applied better to calibrating U.S. Copyright Act of 1976 to be more neutral to citizen creators? (See Canada)

This chain of thoughts began while we watched a talk by filmmaker and cartoonist Nina Paley, whose film Sita Sings the Blues has become a “copyleft” cause célèbre. Film critic Roger Ebert, for example, has gushed praise on the film. Techdirt’s Michael Masnick has followed and railed against Paley’s plight. Paley, too, has been active in talking about her copyright clearance plight on her blog. The confluence of events has created an environment wherein another creator is held captive by copyright considerations. In this way, Paley has become the film equivalent of Girl Talk’s Gregg Gillis: all they want to do as citizens is clear rights easily and create.

The subtext of all this, of course, is “Why is this copyright stuff interfering with what I want to do?” In this vein, we continue to find amusing and interesting the how selective concern about copyright clearance, remixing, and related issues can be. It’s as if there are certain artists and works for whom copyright issues are real and significant, but other artists and works for whom the same issues either are not real, or unworthy of discussion. But we’ve already addressed this issue.

Typically, we use Copycense’s Twitter account as a news feed: it is quick, concise, and serves that purpose well. Occasionally, we post questions or thoughts to the feed, but usually expand on such questions or thoughts by writing on Copycense’s FriendFeed account. Regretfully, we did not do so with any of the four questions mentioned above.

A number of interesting responses ensued. Robert Richards of the Legal Informatics Blog (@richards1000) questioned the preemption responses we gave, in which we attempted to explain our theory that license contracts — and not copyright — may be the dominant legal regime in a digital information ecosystem. Then, a representative from Free Government Information (@freegovinfo) questioned our assertion that a Creative Commons license is an alternative to copyright; he opined CC works “on top of copyright.”

Mind you, all this dialogue was occurring as each of us were posting separate items on wholly different issues on our respective Twitter accounts. Given the way Twitter works, it is difficult to reconstruct the exact timeline of the posts, which would help the contextual understanding.

Instead of continuing to debate relatively complex ideas within the vacuum of 140-character limited posts, we have decided to address several of these issues here in a more expansive manner. Thus, this article will discuss preemption in copyright law, and why we feel that concept establishes license contracts as the dominant legal regime in digital and online software and services. We also will respond to our own aforementioned questions about Creative Commons licenses, and their role within the legal sector of the digital information ecosystem.

Preemption, Contracts, Licenses & the Consumers’ Choice

We have written before on the preemption issue (here and here), particularly as it applies to the limitations that most often apply to librarians and information professionals (Sections 110, 109, 108, and 107 of the 1976 Act). [Editor’s Note: The link to the second part of this two-part post goes to our backup site on WordPress.com because the original posting on the main Copycense site is broken.]

Preemption is a funky but important concept that simultaneously cuts across the Constitution’s Supremacy Clause in Article VI; Section 301 of the 1976 Act; and a raft of cases beginning with Judge Easterbrook’s 1996 opinion in ProCD v. Zeidenberg, 86 F.3d 1447. The preemption issue arises when authors’ or users’ copyright rights appear to be either enlarged or reduced by contract (such as in the instant example of a publisher’s contract to publish a journal article).

As to the general question whether contracts may deal with copyrighted material, the answer is obviously yes: former New York Law School professor Edward Samuels says in his wonderful book The Illustrated Story of Copyright [site] that the purpose of copyright essentially is to license one or more of the exclusive rights for economic gain. The preemption challenges are more likely to relate to the attempted contractual extension of copyright rights beyond those granted by the Copyright Act, or the reduction of the rights or copyright exceptions that users have traditionally enjoyed apart from contract. Most of ProCD’s progeny (which extends to several federal circuits) conclude that as long as the terms of the contract (which are written under state law) do not occupy the same area as that reserved to copyright law (which is federal law), then the terms of the contract under state law will be valid and binding. This principle validates all manner of license contracts, including clickwrap licenses, terms of service, and even privacy policies.

Therefore, our understanding of this issue is that once a contract is in place, the terms and conditions of the contract prevail over federal copyright law because a contract is considered to be a private bargain between private actors, whom are presumed to have equal bargaining power to negotiate the terms and conditions of the contract. (We assume the contract is otherwise valid under applicable state law.)

ProCD, a 7th Circuit case, often is cited as the prevailing doctrine in this area, but our teaching notes (for our private and iSchool seminars) indicate that the Third and Fifth Circuits hold differently. Typically, this is the sort of split that begs for a Supreme Court ruling; we suppose that case is coming soon to a theater near you, although apparently not in the 2009-2010 term (American Bar Association, SCOTUSWiki). We are not alone in presuming the preeminence of the ProCD doctrine: some feel it may extend to the patent field as well. To be fair, though, others question whether the ProCD preemption doctrine has as much teeth as many give it, arguing that the nature of the enforcement makes a significant difference. This is a concept that should be explored further, just not in this article.

If we use ProCD as the prevailing doctrine, however, then one could question whether any copyright exceptions are preserved in an information landscape awash with contracts that governs access to digital information and services. Therefore, it is reasonable to conclude that the contract — and not copyright — is the dominant legal construct that governs access to and use of digital information. Additionally, it is reasonable to conclude that copyright’s preemption doctrine sets up an interesting choice for consumers of digital information: your transaction can be governed by federal copyright law, or by state contract law (per the license agreement), but not both.

(Copyright owners, of course, may not be in a situation where they would need to make this choice. On one hand, copyright owners initially have access to both sides of the equation because copyright ownership under of one or more of the exclusive rights under federal law is a prerequisite to licensing such rights for economic gain under state contract law. On the other hand, according to the ProCD doctrine, once the copyright owner creates and enforces the license, that bargain is managed exclusively between the contract parties, and under state law. The distinction is subtle, but significant.)

This choice affects consumers in a very real and tangible way: if a consumer’s bargain moves outside the realm of copyright and into state contract law, then it seems the only way to preserve any copyright exceptions — including fair use under Section 107 — is to negotiate such exceptions back into the terms and conditions of the contract. That, however, is virtually impossible given our current model of e-commerce and the nature of unilateral contracts.

(By the way, federal courts consistently have rejected the argument that such agreements are not contracts because they lack of formalities [such as mutual agreement] or are against public policy [such as the policy against adhesion contracts]. The most recent, high-profile judicial rejection of this argument came in the iParadigms/Turnitin case.)

Even if one does not want to consider the ProCD doctrine as one that elevates license contracts over copyright, these contracts still remain a critically important of our contemporary digital information ecosystem. This raises the specter of Creative Commons and its license contracts as a reasonable (rather than restrictive) way to manage a copyright owner’s exclusive rights.

Creative Commons Licenses As Contracts

We have found Creative Commons’ growth and acceptance an interesting case study. According to its Wikipedia entry, Creative Commons (CC) has “generat[ed] interest in the issue of intellectual property and contributing to the re-thinking of the role of the ‘commons’ in the ‘information age’” and “has provided ‘institutional, practical and legal support for individuals and groups wishing to experiment and communicate with culture more freely.’”

But if one gets down to brass tacks, what is Creative Commons? To the extent that Creative Commons creates contracts for creators of fixed works in a tangible medium of expression (i.e. copyright owners), we contend it is a copyright alternative, in the way that a state-based license contract serves as an alternative protective regime to federal copyright law per the preemption doctrine.

Interestingly, Creative Commons resists the “copyright alternative” label, claiming that its licenses “work alongside copyright, so you can modify your copyright terms to best suit your needs.” (At a minimum, this statement suggests that a basic understanding of copyright is a prerequisite to a basic understanding of Creative Commons licenses.) That may be true as it relates to one half of the copyright-licensing distinction, namely the prerequisite that only a copyright owner (or his authorized representative) may license one or more of the exclusive rights.

But what about the second, equally important half of that distinction, namely the ProCD theory that once the contractual licensing relationship is in place, it is that state-based, contractual association between the parties that governs the transaction instead of federal copyright law? Here, Creative Commons licenses are silent. If you look at the legal code for the CC licenses, they conspicuously omit a jurisdiction or venue clause. Whether or not the CC licenses would be valid under a specific state’s contract law as they are written seems to be an open question, one which CC itself tacitly acknowledges, since each license opens with the following language:

TO THE EXTENT THIS LICENSE MAY BE CONSIDERED TO BE A CONTRACT, THE LICENSOR GRANTS YOU THE RIGHTS CONTAINED HERE IN CONSIDERATION OF YOUR ACCEPTANCE OF SUCH TERMS AND CONDITIONS. (Emphasis added.)

Contrast, for example, Google’s Terms of Service, a license contract for that company’s services that fixes contract jurisdiction in California. Again, the ProCD theory seems to suggest that this second half of the equation moves the bargain into contract territory, leaving behind copyright. In other words, from the end user’s perspective, one can have a copyright relationship with the copyright owner or a contractual relationship with the copyright owner, but not both. Therefore, it stands to reason that if the choice of relationship is contract, the consumer has excluded the copyright relationship, thereby making the CC license a copyright alternative from the end user’s perspective.

To us, then, the natural next question is whether the move from copyright to contract ultimately is widely beneficial, even under a CC license scheme. We don’t think so.

Is Creative Commons Good for Copyright?

When CC founding board member Lawrence Lessig announced in 2007 he was retiring from the intellectual property debate to focus on ethics, we wrote the “issues [related to possible strategic errors in the Eldred v. Ashcroft case] are minor compared with the good Lessig has done and the enormous effort he has spent in trying to get it right and make things equitable. Lessig has put his energy and his money where his mouth has been, and right or wrong, we respect and thank him for that.”

But we also wrote in the same post “we’re a bit skeptical of the Creative Commons initiative because it moves copyright issues into the realm of contract law. … Instead, we think copyright should remain firmly a federal public policy debate.”

At the time, it would have been unconscionable to imagine copyright becoming a national policy issue in any country on the planet. Yet now, Canada is firmly entrenched in this debate, with Canadian citizens seeming to have as much voice in the process as lobbyists. Since organizing a citizens’ revolt in December 2007 on Facebook against new, restrictive Canadian copyright legislation, University of Ottawa law professor Michael Geist has helped actualize the virtually unthinkable: make copyright law a citizens’ issue. The connection between copyright and citizenship in a digital ecosystem has been our focus in this space for at least a year, and we applaud Geist and the Canadian citizenry for addressing these crucial issues.

But now that we have an example that citizen engagement in copyright issues is possible, it is appropriate to address again the issues about Creative Commons we first raised in 2007. Thus, our fourth and final aforementioned Twitter post becomes relevant: “Would [the] energy [put] behind CC be applied better to calibrating U.S. Copyright Act of 1976 to be more neutral to citizen creators? (See Canada)” This question is particularly relevant for U.S. citizens because of the ProCD doctrine, the doctrine’s implication that copyright owners are the sole arbiters of acceptable use of copyrighted works, and the doctrine’s suggestion that the parameters of such use are governed by the “four corners” of a contract that copyright owners alone have drafted.

We conclude now, as we did in 2007, that the continued use and prominence of Creative Commons licenses actually obscures the real copyright issues we face in this country, and keeps Americans from settling on the proper parameters of digital information use, access, retrieval and preservation in the 21st century. It is too easy for a creator to slap a CC license on a copyrighted work, promote one’s apparent knowledge of (and sensitivity to) copyright issues through a CC badge, and feel good about oneself, almost like the purchase of hybrid vehicle becomes one’s outward signal to society that its owner is dedicated to stopping global warming.

Indeed, there seems to be a whole aura attached to using a CC license — or perhaps more specifically, slapping that CC badge on a copyright-protected work — because it seems to signal that the person using the license is thinking progressively about intellectual property, information policy, and related issues. Although this, too, is an issue worthy of empirical examination (consistent with our first empirical question, above, about CC’s publicity value), we question whether Nina Paley’s Sita Sings … plight would have been elevated to cause célèbre status if she hadn’t adopted the CC license scheme and, by extension, the publicity machine that is attached to it.

But we believe the real question to be asked is how we can calibrate copyright law to make it equally usable by, and effective for, all Americans. To this end, we believe the use of CC licenses actually avoids the question of what U.S. copyright should be in the 21st century, and how the law should best serve its citizens, who now are as likely to be creators of copyrighted works as your average conglomerate record label. This avoidance is particularly problematic given the prominence and use of CC licenses; the organization’s position — real or perceived — as the antidote to a broken copyright system; and the very real possibility that few who use the licenses really know what they mean.

While we’re asking empirical questions, here’s another: what percentage of CC license users have read the “legal code” to CC’s licenses? If the typical CC user understands that language, then he or she can read and understand the Copyright Act of 1976. If the typical CC does not understand the legal code that supports CC’s licenses, however, then he is using a legal instrument with little understanding of what that instrument does and how it affects the balance of rights between the creator and the user. That user certainly will not be sensitive to the underlying policy ramifications of the ProCD theory, which (along with the lack of copyright registration) may be the issue that most diminishes the utility and effectiveness of copyright law to and for the average American citizen.

Arguably, the Copyright Act of 1976 fails to work for corporate owners of large copyright portfolios, but it cannot be reasonably debated that copyright law absolutely fails at serving the contemporary information use and creation requirements of the average American citizen. With copyright, what has been good for the conglomerate no longer is what serves the citizen, because the average American now has a clear vested stake in the nation’s information policy. As Canada is doing now, the U.S. needs to have deep, complicated, and perhaps even painful conversations about information policy; the history, purpose, uses and scope of copyright law and policy in our digital information ecosystem; and the reform that needs to happen in both areas.

We do not believe the Creative Commons license scheme fosters that conversation. Instead, we believe the scheme muzzles this conversation by promoting a contractual bargain in lieu of balanced and calibrated legislation and policy. We hope that in the future, Creative Commons will put more of its considerable intellectual and economic resources toward resolving the problems with copyright law instead of promoting contractual workarounds. In the best case scenario, with a balanced and effective law that serves citizens and corporate owners equally well, a Creative Commons license is unnecessary. This should be the goal.

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Technorati Tags: Copycense, copyleft, Creative Commons, Girl Talk, Gregg Gillis, K. Matthew Dames, Lawrence Lessig, Michael Geist, Michael Masnick, Nina Paley, Richard Richards, Roger Ebert, Sita Sings the Blues, Techdirt, The Illustrated Story of Copyright

Editor’s Note: William F. Patry has a new book out entitled Moral Panics & The Copyright Wars (2009, Oxford University Press) [Amazon.com; Barnes & Noble; author’s book blog]. Patry, one of this nation’s foremost authorities on copyright, also is the author of the eight-volume treatise Patry on Copyright and serves as the senior copyright counsel for Google, Inc.

Copycense executive editor K. Matthew Dames interviewed Patry in late 2006; the interview was published in June 2007, the same year West Publishing released Patry on Copyright. Since then, West has republished Patry’s book on fair use, Patry on Fair Use.

Here, we republish the interview between Dames and Patry in its entirety on Copycense for the first time, updating where appropriate and adding new, previously unpublished material from the original 2006 transcript. Links to entries in Patry’s now retired blog, The Patry Copyright Blog, are made where appropriate. Copycense has arranged to interview Patry again about Moral Panics; that interview will occur and be published soon.

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K. Matthew Dames: Why don’t you give us some background as to how Patry on Copyright came about?

William Patry: I wrote a treatise on fair use in 1985 [entitled The Fair Use Privilege in Copyright Law] and that had a second edition in 1995. After I finished the ‘85 edition of it, my mentor in copyright, Alan Latman, came down with pancreatic cancer. At the time, he was in the process of updating a one-volume treatise on copyright that he had authored. I offered to help him do research and sort of be his gopher, and he agreed. I prepared several extensive outlines for that, but unfortunately [Latman] died before any more work was done. I then took over his one-volume work [entitled Latman’s The Copyright Law] and did a second edition of that.

Eventually, I decided that work was too constraining, and that I wanted to do something more. I then took that book and expanded it tremendously, and made it a three-volume book that was published in 1995. That was Copyright Law & Practice, two volumes of text and one volume of appendix.

I did annual supplements to that for a number of years and disliked the format. I disliked it being totally hard copy; I disliked the manner in which updates were done, which was free-standing rather than looseleaf. And I decided “Forget it” – I’m just going to start from scratch and do it over again, do a much larger book and rethink things.

I had a falling out with my publisher about the direction and format the [new] book would take. They had a sort of 19th century view of what treatises should be: they should be hard copy, they shouldn’t be online, they shouldn’t be looseleaf, and I decided that really wasn’t the way to go. [I thought] things had to be on Westlaw or Lexis, or some sort of online form. Further, while there were an appreciable number of people who liked hardcopy, [I thought] for them you needed a looseleaf.

I hunted around, and finally came to a deal with West. But during the time I was in between publishers, I radically changed my opinion of the way I thought a treatise should be. I had always been a specialist; I had been practicing copyright law for 25 years. And that has a lot of benefits: certainly the level of experience at which I was able to practice, I saw things from a lot of different angles. [Ed.: Patry has been copyright counsel to the House of Representatives for more than a decade; a law professor at Yeshiva University’s Cardozo School of Law; and a lawyer in private practice.] But I was always seeing things through the lens of a specialist.

On the other hand, most people who read treatises are academics and judges. I decided I would retool the book to direct it toward judges, who are generalists, as well as take into account a lot of other things I was interested in: cognitive linguistics, logic, the way in which the Internet had transformed research. About midway through this process – probably around 2003 – I decided to change course dramatically and that took me another three years to do it. Ultimately, the book became much longer and took me in a different direction than when I started. This was one of the reasons it took me so long.

Dames: Anyone who has done work in the copyright field is familiar with the treatise Nimmer on Copyright, which long has been promoted as the most cited copyright treatise in the federal courts. Now for the first time, there are two multi-volume copyright treatises on the market. In your view, what is the distinction between Patry on Copyright and Nimmer on Copyright?

Patry: Well, we’re very different people. I didn’t inherit somebody else’s book; I did mine from scratch. And in doing it from scratch, I had a lot more freedom, I think. Clearly, there are benefits from inheriting the standard book in the field, but the downside is that in many ways you’re sort of stuck with what’s there. So I viewed the task of creating something myself from scratch as being liberating that way.

David Nimmer, before he took over his father’s treatise, was an assistant United States Attorney, and not doing copyright stuff. [Ed.: David Nimmer’s father was the late UCLA law professor Melville Nimmer, the original author of Nimmer on Copyright.] His treatise reflects his father’s learning in the field, and whatever he has learned since he took it over. My experience, I think, is unique. … My book contains stuff that reflects my background. So, I have a chapter on statutory interpretation – which certainly is in no other treatise that I know of – that describes not only how to interpret the Copyright Act, but how statutory interpretation works. And that comes from having written a lot of copyright provisions.

I like to approach things in what, I hope, is a ruthless, unsentimental way. To me, it doesn’t matter if what’s being critiqued is something I wrote, or somebody else wrote, or a judge wrote. I try to be transparent and try to figure out, to the best of my ability, what I think the correct answer is.

I’d be happy for there to five or six different treatises out there. The more learning we have, the more people doing research, the better it is for everyone. And it certainly keeps everyone else on their toes. And that’s why I do a separate blog for the treatise, and that’s why I allow anonymous postings to that blog. I’ll develop a thick skin, and if people take me to task, that’s great. A friend of mine said to me once that the best way to know you have a mind is to change it. I agree with that 100 percent. If someone comes along and says “Hey, you got this wrong,” to me, I’m not going to be defensive. To me, you did me a favor. I’ve learned something that day.

Dames: I found it interesting in looking at some of the [treatise’s] categories that you have [that] fair use is a large chunk of material, and I think people would expect that. Remedies is also a large chunk of material, and I think people would expect that. What surprised me was the number of pages devoted to jurisdiction. Could you talk about that?

Patry: If you look at the remedies chapter itself it would surprise you because, consistent with my earlier comments, what I tried to do there was is to place copyright inside the general jurisprudence on remedies. First of all, while there are certain peculiarities in copyright law – for example, statutory damages – the concept of actual damages or profits is no different in copyright than they are in any other form of the law. So one has to take that into account.

In terms of injunctions, there are special things in copyright law – for example, the presumption of irreparable harm once somebody has made a prima facie case of infringement. What I discovered through research and my own views is that the way in which copyright law has been treated specially – as if there is a niche, as if the general rules on preliminary injunctions somehow don’t apply to intellectual property – really are wrong. So I spend a lot of time on the general doctrines of preliminary injunctive relief. I have a circuit-by-circuit breakdown on just general law: how the circuits deal with preliminary injunctions. Then, I place that within how [the courts] deal with intellectual property, and trace the origins of this idea that there should be a presumption of irreparable harm once you make out a prima facie case of infringement; how it came about; how I think it went wrong; and how it may, for example, conflict with the Supreme Court’s more recent eBay case.

Another example of that is in the chapter on statute of limitations, which is a fairly long chapter for that discrete topic in what might be regarded as a specialty treatise. There has long been a supposition that the Seventh Circuit [Court of Appeals] is sort of off on its own … that somehow they treat statute of limitations differently. And you’ll see lots of many cases from other circuits, and lots of commentators say that. So I spent about three months just steeping myself in general statute of limitations law, learning as much as I could about it. I then discovered that, in fact, there is no such split in the circuits at all. While there may be some language that would make someone think that [there is a split], indeed it’s not true. And I actually confirmed that with some of the judges in the cases, and I sort of lay out how general limitations law works, and how it has been applied in copyright cases. You discover there’s no split in the circuit. That’s sort of another example of how my attempt to educate myself about general law, and then place copyright in general law, paid off. But it only paid off because I attempted to take the time to really steep myself in general limitations law.

The [jurisdiction chapter] arose out of the same instinct that led me to have fairly long chapters on remedies and statute of limitations. For jurisdiction, there are two elements. First, part of it deals with Copyright Office registration practices. I could have treated that as a separate chapter, but since [such issues] really are encountered as a jurisdictional question – “Do you have a registration or not?” is a subject matter jurisdiction question; “Is your registration valid or not?” “Is there fraud in the Copyright Office?” – those sort of issues arise within challenges that typically come at the jurisdictional phase. So within that admittedly long chapter, there is substantive discussion about Copyright Office practices on registration. So that accounts for some of it.

But the other part of that chapter is just general law: personal jurisdiction; subject matter jurisdiction, forum selection; venue selection clauses, and those things. The reason for that, again, is my desire to understand general law, but it also came from reading [nearly] 30,000 copyright cases. If you look at the volume of cases, the majority of cases are jurisdictional cases involving copyright. The ones that people tend to focus on are the substantive ones: “Is it infringement” “Is it fair use?” “What are the remedies?” Those [issues] are all important, but if you look at what is the actual meat-and-potatoes stuff that litigators and judges face in copyright cases, the majority of those [issues] are jurisdictional. So I felt that in a treatise on copyright, it would be irresponsible not to devote a substantial amount of time to the issues that are of the most obvious importance, as judged by the number of cases that are out there. There you find there is nothing truly spectacular about jurisdiction in copyright cases. Copyright really is determined by general jurisdictional issues; for example, because there is no national service of process in copyright cases, jurisdiction is determined by state law. Subject matter jurisdiction, of course, is federal.

So I had very long discussions because those are the issues copyright lawyers are going to be dealing with, and many copyright lawyers who are specialists don’t take the time to understand general jurisdictional law. And for that, they can get creamed by people who do, and certainly by judges, who handle jurisdictional issues every single day of the week. So I wanted to provide a resource by which copyright lawyers who may not spend too much time on jurisdictional issues as others do, could have at their hands really the most recent stuff on general jurisdiction. To me, it was a service to provide for specialists.

Dames: Consistent with that theme of jurisdiction, I want to move to a comment you made on the Patry Copyright Blog about the Sixth Circuit. Typically, when I have looked at copyright issues and copyright cases, a lot of the cases concentrate on the Ninth and Second Circuits. Recently, of course, the Sixth Circuit has been much more active in copyright cases. What do you see at work in the rise of the Sixth Circuit?

Patry: I did another blog today on the Sixth Circuit, in a case involving a very arcane topic: when does copyright renewal vest? It might vest when the renewal term might begin; it might vest at some other time. That’s a pretty arcane topic that involves the country singer Roger Miller, who died in 1992, which happened to be the very year in which [copyright] renewal became automatic. Congress passed – and I was there – a special provision that dealt with authors who die in the 28th year of their copyright, which was what happened to [Miller]. So even as we speak today, I did a posting on the Sixth Circuit.

Why the Sixth Circuit and not the Second Circuit? I’ve been on the phone today with a friend of mine who is a Second Circuit judge and he certainly had some of the great, sexy fair use cases. He hasn’t had a copyright case in a long time. I think there has been fewer cases going up to the Second Circuit, but the Ninth Circuit continues to have a lot. The Sixth Circuit, of course, has Tennessee, but there have also been a lot of architecture cases within the circuit. Perhaps there has been more activity in the housing market in the area covered by the Sixth Circuit, than the Second Circuit. That wouldn’t surprise me because we’re fairly built out here [in the states covered by the Second Circuit, which are New York, Connecticut, and Vermont].

Of the Sixth Circuit cases, they fall into two categories: architecture cases, and music cases coming from Nashville. The Nashville cases, I think, can be explained this way: Bridgeport Music filed 200 [to] 300 infringement cases over sampling in the Middle District of Tennessee. So I think many of the cases from the Sixth Circuit have involved just one plaintiff. I would expect over time we’ll see a sort of bell curve there, and as soon as the Bridgeport cases finally wind down, the Sixth Circuit probably won’t have as many [cases] as they do. Certainly, if you were to look at the list of Sixth Circuit cases, you’d find a disproportionate amount with that one plaintiff. [Ed.: Law professor Tim Wu profiled Bridgeport Music in 2006 for Slate.]

Dames: And speaking of the Bridgeport cases, do you think those cases have been fairly decided?

Patry: I don’t know what “fairly decided” means, because I wasn’t involved in them. In terms of factual outcomes, I wouldn’t know. The one case I and others have taken extreme exception to is the one in which the court announced there was no de minimis threshold for sampling of sound recordings. That, I thought – and still think – was one of the most wrongly decided cases in the history of copyright law. That [case], I just don’t get. [Ed.: The case is Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), in which the Sixth Circuit Court of Appeals reversed a lower court and held that a two-second, looped sample of a screeching guitar from the Funkadelic record “Get Off Your Ass and Jam” constituted copyright infringement.]

Dames: Do you think that case would cause a substantive enough split in the circuits that it might get addressed in the Supreme Court level?

Patry: Well, it didn’t. Whether it does in the future, I don’t know. If the case came up in any other circuit, I’d be surprised if any circuit went along with it. You could say that was sort of a lark or an anomaly. I certainly pray that it is an anomaly. But the difficulty at the commercial level is that it is the law in the Sixth Circuit, and it’s very easy to bring a case there. So the effect of it is that while it’s not the law in any other circuit, as a commercial matter, [the decision] has really a tremendous influence in providing leverage for people who claim that any sampled use – regardless of how de minimis it may be – requires a license.

Dames: How did your position as senior copyright counsel at Google come about?

Patry: I actually started in October 2006, right before the YouTube deal. I [had] been in private practice for 12 years, in government for eight years, and a law professor for five years. I had never been in-house. Google has tremendous issues; they attempt to think things through, I think, in a responsible, interesting way, and they’re at the cutting edge of a lot of stuff that’s going on. It’s a very exciting company; it’s a very young company, not just in terms of having been around for only a little more than eight years, but in terms of the median age of the people who work there.

For someone like me, I always want to be challenged. I don’t want to ride off into the sunset on an old, broken down pony. With five-and-a-half year-old twins, I’d rather be challenged every day. So the best place to be challenged every day is at a place that’s challenging. They have a New York office, and I wanted to stay in New York. That’s how it came about.

Dames: What is the chance that a portion or all of the treatise will be made available on Google Book Search?

Patry: It would be great to put it on Google Book Search. I’m hoping the whole thing will be on Google Book Search available for searching. What you can pull up [will be a] matter of contract between West and Google. But I’m certainly working on that, and I would like it to occur. I’m doing everything I can to make sure it does occur.

Searching online is not the way I would do things; I happen to have Acrobat files of the book, so I would probably search it that way. But I actually may use Google Book Search myself. For example, if I recall that I referred to somebody, it may be faster for me to do it on Google Book Search if the search covers the entire book in one swoop rather than the way some of the search engines are set up for the walled-off [subscription-based] legal services, where you’re searching by chapter or searching by section. That’s inefficient. So, if I’m able to search the entire book, then I may actually use it myself for those purposes, and others may too. In the end, what I want to do is provide the book in as many formats as I can so people who research things differently than I do, or [research] for different purposes, can do it too.

I’d like for it to be in as many media [as possible], and I’d like for it to be interactive; that’s why I have the separate blog for it. I’m not comfortable with the idea of a single authoritative figure who sort of lays out what the law is. I want it to be more cooperative and interactive because copyright law is enormous. There are people in the trenches everyday digging into issues in greater detail than I ever possibly could, and I’ll learn from them. But I won’t learn from them if I don’t set up a medium in which they can talk to me.

Dames: One of the challenges that Google is facing, of course, is the Google Book Search litigation. Where are we in the litigation process?

Patry: It’s still in the discovery phase; it’s not in the motion phase. There have been, of course, discussions about how to deal with this in a business way. Marissa Mayer [Google’s vice president for search products and user experience] … regard[s] it as a business matter that’s being addressed in a number of different fora. From the published accounts of things, people want to work things out.

Certainly, the other thing to keep in mind is that the publishers who have sued Google at the same time have deals going on with Google. It’s not like an ordinary litigation, where there are strangers trying to work things out in some way. We have ongoing deals with the very same people who, for this different service, are suing us.

And 95-plus percent of all litigation is resolved before trial. There’s that factor.

[Ed.: Google and the plaintiffs in the lawsuit have a proposed settlement pending. For authors whose books were published prior to January 1, 2009, the date to opt out of the settlement is Friday, September 4, 2009. A federal court judge will hold a Final Fairness Hearing on the proposed settlement on Wednesday, October 7, 2009. Details about the opt out date and Final Fairness Hearing are available at the Google Book Search administration site.]

Dames: I did want to ask you your opinion about a case that is a continuation of the term extension and public domain areas: the Kahle v. Gonzales case that was decided at the end of January [2007]. Do you think that case was correctly decided, and what is the continuing effect on the public domain based upon this litigation?

Patry: I heard the oral argument in the case, and I’ve read the opinion. The issue that the plaintiffs were advancing is “What is the correct standard of review?” That’s what the Ninth Circuit Court of Appeals was deciding, at least at plaintiff’s request.

[Ed.: Two archives asked federal courts to determine the Copyright Term Extension Act (CTEA) was unconstitutional under the Free Speech Clause of the First Amendment. The Ninth Circuit Court of Appeals rejected the argument. The Ninth Circuit filed an amended opinion in the case in May 2007 at 487 F.3d 697 (9th Cir. 2007).]

The plaintiffs wanted to go back to the trial court and have legislation reviewed under a particular First Amendment standard. And the Court of Appeals said, “Well, we’re not sure that’s not the right standard because this isn’t a First Amendment case. This is a copyright case. So, we’ll take you on the merits and say ‘The argument that you made is the same argument that was made in the Eldred [case],” and rejected it. The Ninth Circuit’s view was that the First Amendment argument wasn’t the appropriate standard of review, but even if it was, it was going to say that the Supreme Court has already addressed this [in Eldred v. Ashcroft, the 2003 Supreme Court decision that held the Sonny Bono Copyright Term Extension Act was a constitutional extension of term to life of the author plus 75 years]. So, it effectively said to the plaintiffs “You lose: you don’t get to make your arguments again at the lower, trial court.”

From a policy standpoint, I think the duration of copyright is way too long. Whether “life plus 50 [years]” was correct or not I think can only be answered by taking into account what we got internationally. [Ed.: Before Congress passed the Copyright Term Extension Act, P.L. 105-298, the basic copyright term in the Copyright Act of 1976 was life of the author plus 50 years. Currently, the core copyright term is life of the author plus 70 years.] There was never an argument that “life plus 50” was required to give adequate incentive; “life plus 50” had been the standard in the Berne Convention for some period of time, and the idea of shifting to that in the [Copyright Act of 1976] was … because it benefited us overseas. If I had the ability to write the copyright laws myself, I would probably make the term life of the author and that’s it. I think the [current] term is way too long from a policy standpoint.

Dames: In a post on The Patry Copyright Blog [in Fall 2006], you talked about the trade process, the U.S. Trade Representative, and what seems to be the increasing frequency through which copyright law is bartered. You came out very strongly against this trend. How did this trend get started and what’s the danger in continuing it?

Patry: I’m not alone in feeling strongly about this. I was down in Washington visiting with some friends who are Congressional staffers, and whom I used to work with. And they were telling me that there had been a big blowup over an immigration issue where the concern was that the [Bush] administration was committing the United States to obligations under treaties, and then coming back to Congress and saying, “Now you have to pass [this legislation], because if you don’t, then we’re going to be in violation of our treaty agreements.”

So the issue extends quite beyond copyright; it extends to other areas of law, too. Those who are upset about it, of course, are those who believe that Congress is a co-equal branch of government, and that where important policies are being made, they should be made deliberately – and deliberatively – and with the fullness of time and public vetting.

For example, if you were to try to decide whether or not the United States should enter into a broadcast treaty that gives broadcasters certain rights, there’s a number of ways that could come about. One way would be that the administration – and it could be any administration; I don’t want to single out the [Bush] administration, because the Clinton administration did the same thing at one point – could use its role as the exclusive arbiter of foreign relations and sign a treaty that obligated the United States to do certain things. It wouldn’t even have to be a treaty; it could be a trade agreement, or some sort of a diplomatic document which obligates us to do “X.”

If you don’t have to change domestic law to do “X,” then that’s fine. And those are great treaties for any country to sign. We could sign a treaty where our laws wouldn’t have to be changed, but other countries’ laws do. That would be a win for us, and maybe a loss for the other side. If you can do that, great: you’re a wonderful negotiator.

However, if the agreement you enter into as the executive branch of government obligates a change in domestic law, under our system of government – which is non-parliamentarian – that is the sole province of the legislative branch. And the legislative branch should be able to make that determination free of a situation where we’re already obligated to do it. That’s not the way to agree to things. In people’s personal relationships, it usually doesn’t work out that way: “Honey, I went out and bought a house.” Well, maybe you should have asked me first. The same thing happens with legislation.

So, that’s my objection: this practice is non-democratic. And certainly, when the administration is negotiating with other governments, those of us in the public who’ll be impacted by that [legislation] aren’t at the table. We haven’t had the chance to lobby Congress; we haven’t had a chance to have our voices heard. That’s my real concern: what this trend does as a corrosive factor in democracy.

And it’s not for nothing that these steps are usually taken for legislation that is fairly controversial. After all, if you could go the usual route, you would do it. It’s only when there are issues and problems that democracy is usually sidestepped. There are exceptions, of course: lack of time, for example. You can come up with other scenarios that would justify that taking these actions which aren’t some deep conspiracy against democracy. But I would say I haven’t come across that in the copyright field yet.

Dames: If you’ve been writing Patry on Copyright for seven years, then you started approximately in 1999 or 2000. You have been writing this treatise within the context of the growth of participatory networks and their tools, such as blogs, wikis and instant messaging. To what extent did this evolution inform the writing of the treatise, and how do you anticipate that it is going to inform future editions of the treatise?

Patry: I’d say it impacted on it substantially. Aside from what you want a copyright treatise to say, an important issue is what you want a treatise to be. And currently, I think we’re in flux because there are so many other forms in which people can exchange ideas and information that are quicker, that take into account more community-based thinking or discussions about things. Certainly, online, you can link to other materials and people who have writings you’re writing about with whom you agree or not agree. On the Westlaw and Lexis services, you can link to materials that are within that closed network, of course, but once you’re doing research on the Net as an open platform, the amount of material you can link to, and provide people with references to, is much larger.

Also, the type of research that you’re able to do is different. Most legal research by law professors still is of the traditional sort. There are law professors who blog, and there are a lot of law professors who put things up on SSRN. [Ed.: Social Science Research Network (SSRN) is a Web site devoted to making available scholarly research in the social sciences and humanities. According to a 2008 profile in The New York Times, SSRN’s collections and influence are strongest in economics and law.] Jack Balkin, who [writes] Balknization, did an interview with Yale Law [Report] about the effect of blogging on legal research. He says that the younger law professors are probably more willing to do this sort of stuff, although blogging clearly doesn’t count toward tenure, so I would probably [limit] his statement to the younger law professors with tenure. Those without tenure are still probably going to be going the traditional route. So the legal academy, I think, still views [blogging] as a form of journalism or as a form of informal networking.

But, it does change the type of resources that you can use. For example, in my book I use Wikipedia a lot. I have a lot of quotes from Wikipedia that have discussions of the people who were involved in cases. … One of the reasons I retooled the book, and it took me so long [to release], is take into account those sort of resources that are now available. I hope it makes the book a richer resource than it would have been, but it certainly makes it a different resource than traditional treatises are. So for me, it has had a dramatic impact on both the substance of the book and how I look at things.

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Technorati Tags: Copycense, K. Matthew Dames, William Patry

We have been extraordinarily busy lately, and therefore have yet to write on important issues like the Amazon Kindle situation. Yet, we felt compelled to write this entry after two occurrences over the past four days.

In the first situation, several of the participants thanked us for leading a recent copyright training session. While doing so, many participants commented they felt our education session was useful because it was the first session they ever had attended in which the session leader actually required them to read relevant portions of the Copyright Act of 1976. It is hard to fathom how one could teach copyright without reviewing the statute. In fact, we never write a post here on Copycense without having a browser tab open to the U.S. Copyright Office’s official version of the law.

In the second situation, we were reviewing our sources, first comments to a copyright-related Techdirt post; then a post from Ben Sheffner, the editor of the Copyrights & Campaigns blog. Sheffner, who has done a fine and professional job covering the Jammie Thomas-Rasset and Joel Tenenbaum copyright infringement trials, opened his post by writing the following:

On the Internet, (almost) everyone hates copyright. In fact that’s one of the reasons I started this blog. Every day, for years, I would read about how copyright is stupid, outmoded, destructive, and downright evil. But I knew that the ‘law’ I would read about bore scant resemblance to the actual law, and the way that businesses that earn revenue from production and exploitation of copyrighted works actually function. And I knew that not everyone harbored such vitriol and venom for the copyright owners, who routinely win major victories in the courts and the political arena.

After these two incidents, we thought that one reason so much misinformation (and even disinformation) exists about copyright is because too few ever have actually read the statute.

We’ve one simple suggestion for everyone with skin in the copyright game: read the law. Actually READ it. Do not rely on anyone else’s interpretation or take on what the statute says — even ours.

And make no mistake: the Copyright Act of 1976 is horribly written. It’s torturously complex. It is (in many places) nonsensical and even contradictory. Arguably, it reflects the wishes of only a certain set of actors. But is the law we have in the United States that governs “original works of authorship fixed in [a] tangible medium of expression …”

Reasonable people can reasonably disagree on interpretations, value systems, theories, even history. Ben Sheffner’s perspective on a given copyright issue in Copyrights & Campaigns likely is fundamentally different than the point of view we at Copycense would take on the same issue. (For one, we do not hate copyright. Quite the opposite, actually, and we’ve been writing about copyright online for five years; educating about it for 10; and involved with it for more three decades. It is our respect for, and love of, the copyright system that makes us wretch at the abuses of people like Joel Tenenbaum and Jammie Thomas-Rasset.)

Further, Sheffner likely subscribes to a property-based theory of copyright law and will point to evidence that supports his view. In contrast, we believe the property-based theory of copyright is incorrect and can point to scholarship that demonstrates property never has played a substantive or legal role in this country’s copyright history.

But you know what? It’s all good. It’s a free country.

Yet we believe we and Sheffner can agree on this narrow concept: there are entirely too many folks opining or writing about copyright issues who have not spent any significant time reading the statute. Some folks are what William Patry might call “the crazies,” who rail about copyright online without any shred of evidence, study, or proof. Still others are folks like Mark Helprin, a respectable writer of some fame in some literary quarters, whose book Digital Barbarism shows absolutely no evidence that the author has spent any time reading the statute or reading about the law itself.

And journalists from the most respected news publications can be the absolute worst, routinely getting wrong the most basic issues in coverage of critically important copyright issues, policy, or cases. (Again, Sheffner — thankfully — has distinguished himself as an exception to this unfortunate trend.)

So let us make it clear as Caribbean water: if you are affected by copyright, you absolutely MUST read the Copyright Act of 1976. And arguably every American citizen now is affected by copyright: YouTube takedowns, the Kindle controversy, and the mere inability to skip your DVD’s ominous FBI copyright warning are simple, common examples that illustrate that in the 21st century, copyright is as much a citizen’s issue as it is a corporate or trade issue.

You may not fully understand the Copyright Act, but if you can read at all, there is no excuse for you not to read the statute. It is part of your duty as a citizen to read the Copyright Act and to have some idea about what it says.

Our next few posts we be devoted to facilitating how best to read and make sense of this complex, but important statute.

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Technorati Tags: Amazon.com, Ben Sheffner, Copyrights & Campaigns, K. Matthew Dames, Mark Helprin, Techdirt, William Patry