Princeton computer science professor Edward Felten has posted on his Web site a summary of a study he and Princeton student Sauhard Sahi conducted involving BitTorrent, the peer-to-peer network protocol. Felten and Sahi summarize their study as an investigation into what types of files are available on the system:

BitTorrent is popular because it lets anyone distribute large files at low cost. Which kinds of files are available on BitTorrent? Sauhard Sahi, a Princeton senior, decided to find out. Sauhard’s independent work last semester, under my supervision, set out to measure what was available on BitTorrent. This post, summarizing his results, was co-written by Sauhard and me.

Sahi and Felten chose a random sample of files available “via the trackerless variant of BitTorrent, using the Mainline DHT. The sample comprised 1021 files. He classified the files in the sample by file type, language, and apparent copyright status.” The summary does not clearly identify the time frame (either in length of time, or the time of year) in which Sahi and Felten performed the study.

Summary of the Study Summary

In summary, Sahi and Felten concluded that nearly half the files (46 percent) in the study comprised of non-adult movies and “shows.” (We presume the scholars mean shows — either dramatic serials or game shows — that appear on television.) These category of content would include what the Copyright Act of 1976 defines in Section 101 as “motion pictures” (”Motion pictures are audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.”) Adult films and computer games and software each accounted for 14 percent of the total files; music accounted for another 10 percent of the files.

The part of the Sahi-Felten study summary that seemed to garner the most attention was the section entitled “Apparent Copyright Infringement.” Wrote the scholars:

Our final assessment involved determining whether or not each file seemed likely to be copyright-infringing. We classified a file as likely non-infringing if it appeared to be (1) in the public domain, (2) freely available through legitimate channels, or (3) user-generated content. These were judgment calls on our part, based on the contents of the files, together with some external research.

…

Overall, we classified ten of the 1021 files, or approximately 1%, as likely non-infringing, This result should be interpreted with caution, as we may have missed some non-infringing files, and our sample is of files available, not files actually downloaded. Still, the result suggests strongly that copyright infringement is widespread among BitTorrent users.

In other words, the pair have drawn a preliminary conclusion that 99 percent of the files in this BitTorrent study infringed U.S. copyright law.

It is virtually impossible to discuss this study or its conclusion without reviewing the final paper, the data, and the data analysis that lead to the conclusions about “Apparent Copyright Infringement.” We and another reader have requested to review that information. We also specifically asked to see the coding sheets, the variables, and a closer look at the variable operationalizations; upon a second glance at the summary, we also would like to review the study design, particularly its sampling design.

(By the way, none of these requests are abnormal for social science studies. It is possible a reviewer may not request coding sheets, for example, but if coding schema are integral to variable operationalizations, then requesting the coding schema is not abnormal either.)

Our Questions

Still, we present some preliminary comments about the summary, and ask some questions about it. (We presume a forthcoming paper will presents the study, its data, and findings in more detail).

First, we would like to know both the time frame and the time span that the study captured. The time frame would determine time of day and time zone; the time frame would identify whether the study spanned the entire summer, a month, a week, or a day. Both are important in terms of measurement and potential data skew, especially if there is only a single temporal element captured and that temporal element is not compared to a second, third, or fourth temporal element.

Also, we would be interested in knowing whether this study was a longitudinal study, or a snapshot of activity; if it is the latter, both the time frame and time span become much more important.

Second, we hope the final paper identifies why the scholars chose “the trackerless variant of BitTorrent, using the Mainline DHT” as the data source, and what were the reasons for excluding other BitTorrent data sources.

Third, we find the scholars’ operationalization of copyright infringement to be interesting. On this issue, the scholars wrote the following:

Our final assessment involved determining whether or not each file seemed likely to be copyright-infringing. We classified a file as likely non-infringing if it appeared to be (1) in the public domain, (2) freely available through legitimate channels, or (3) user-generated content. These were judgment calls on our part, based on the contents of the files, together with some external research.

Based upon the information in the summary, this operationalization of copyright infringement could be problematic for practical and theoretical reasons because it could skew the findings, or fail to provide proper context. In order to determine why we find this problematic, consider our rationale.

The actual definition of copyright infringement in the Copyright Act of 1976 (Section 501(a)) states the following

Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a) … is an infringer of the copyright or right of the author, as the case may be.

Effectively, this means that any time any person other than the copyright owner or its authorized agent invokes or uses any of the exclusive rights of reproduction, derivative work/adaptation, distribution, public performance or public display, that person is infringing per Section 501(a). As we have outlined in our sister publication Core Copyright, this use or invocation occurs every minute, of every hour of every day under the current legal regime.

This finding of infringement, of course, is subject to a raft of limitations or compulsory licenses in Sections 107 through 122. These limitations and licenses may mean that a de facto finding of infringement — which, too, is common and virtually automatic under the current legal regime — ultimately falls away, leaving the alleged infringer without legal liability, for reasons of public or economic policy.

The Importance of Operationalizing Infringement

But let’s return to the finding of infringement using the definition in Section 501(a) using the movies as an example. Since copyright infringement is a strict liability issue (i.e roughly meaning liability without fault), this essentially means that anytime anyone posts a file on a BitTorrent system — even a digital movie or music file ripped from their own collections — there is, arguably, an infringement because

(a) the person who owns the source disc from which the movie or music file was ripped is likely not the person that owns any of the Section 106 exclusive rights in the disc (per Section 202); and
(b) therefore has no authority to distribute that file on a digital network.

(The first sale limitation in Section 109 may or may not apply. We will presume for the sake of this argument that it is inapplicable. We also forestall any discussion of reproducing the movies into a digital format in order to get the digital file onto the BitTorrent network in the first place; that activity — which almost certainly occurs by circumventing a digital copy protection technology — likely would violate the Digital Millennium Copyright Act.)

This means that from a legal standpoint, it is possible that any file on such a distributed peer-to-peer network is an infringement under Section 501(a), regardless of whether or not the person who uploads the file owns the source disc. (Again, an ultimate and determinative finding of liability would be subject to the limitations and compulsory licenses in Sections 107 through 122 of the current Act.)

How does the legal definition of infringement affect the scholars’ operationalization of infringement in their study?

First, it could affect the study in a significant way if it does not take into account a variable for actual ownership of the source material from which the traded digital file was ripped. This matters, in turn, because the first sale doctrine may be an applicable limitation. (Again, more analysis would need to be done, but it’s worth an investigation.)

Second, if you can determine, operationalize, and make a variable for source ownership, then the study can probe deeper into what type of infringement is really at issue. Again, the issue is not whether or not there is infringing activity occurring on the network; by virtue of the way Congress wrote the infringement statute, infringement is occurring. (See our reasoning above.) Any normative arguments about the realism of applying that statute in that way in a digital networked economy are worthwhile, but will not be addressed in this specific article.

Context, Evidence-Based Findings & Scientific Method

But what we do not yet know is what type of infringement is occurring in this study. And here we distinguish between technical infringements (i.e. people who post stuff they own in disc form, but are trading, lending, or making available in digital form, without knowing what they are doing is, technically, a violation of Section 501(a)) or rogue, behavioral infringement (i.e. people who post stuff they never have rightfully purchased or possessed, and who never intend to buy the source material and merely wants to get stuff for free).

This distinction is critical for several reasons. First, identifying this factor through an operationalized variable and applicable statistical analysis would help begin to classify what type of behavior is behind the infringing activity. In turn, this is important because it begins to strike at the fit between normal behavior and legal standards. It is the common “speed limit” theory of law: if all people are traveling safely at 65 in a 55 m.p.h. zone, why write a speeding ticket? In contrast, if some are traveling at 95 in a 55 m.p.h., is there any good reason not to write a speeding ticket, regardless of the level of traffic?

Second, this distinction is critical because of a phenomenon that already has begun to occur. For example, there are some who may will point to this study as evidence that BitTorrent especially — and peer-to-peer networking, more broadly — is rife with illegal (”piratical”) activity that threatens the livelihood of creators and the companies that help manufacture, distribute, and own the discs that hold the source content (and own the content as well).

Indeed, one commentator already has issued a reflexive and impetuous claim that attempts to link the summary’s findings to a broader policy issue about net neutrality. “Valuable information to keep in mind while debating net neutrality rules and ISPs’ right to manage their networks and fight piracy,” wrote Ben Sheffner of Copyrights and Campaigns last week. In this quote and subsequent responses to reader comments, Sheffner suggested that Internet service providers have a duty restrict infringing traffic on their network, and that this duty should manifest itself in a three-strikes/graduated response policy that has been adopted nationwide in France and is beginning to be adopted in other European Union countries.

(There is plenty of background available on three strikes/graduated response. This article by Canadian attorney Barry Sookman outlines an argument in favor of three-strikes/graduated response. Last year, Sheffner gave his take on what he views as the distinction between “graduated response” from “three-strikes.” EFF posted in November about the Anti-Counterfeiting Trade Agreement (ACTA), which has been negotiated in secret, and allegedly includes a three-strikes provision that would affect U.S. law. Michael Geist did a five-part series (1, 2, 3, 4, 5) about ACTA in January, and wrote a separate column about three strikes.)

It is all the more convenient and useful for an advocacy-driven argument in favor of graduated response that “evidence” of BitTorrent’s transmissions would come from someone like Edward Felten because of his credentials and history. As a tenured computer science professor at Princeton, Felten’s work receives a default presumption of validity and prestige. Additionally, Felten had a high-profile experience with U.S. copyright law in 2000, when the recording industry lobby used the DMCA to squelch a scientific paper Felten and fellow scholars wanted to present about circumventing digital encryption on music files. Contextualizing all this information, an advocate could presume that Felten is hostile to copyright law because of this experience, and that publication of this type of result, on this type of paper, with this type of subject matter helps prove beyond a reasonable doubt — along with this Ivy League credentials — that BitTorrent (and by extension, peer-to-peer networks) are dens of copyright iniquity.

But drawing such correlations at this point — with respect to the summary, the resulting paper (which has not yet been vetted, reviewed or published), or Felten’s perceived or actual personal or professional biases — is premature and careless. At this point, no one can state definitively that the Sahi-Felten study provides any correlation between the level of infringing files and the BitTorrent network because no one has nearly enough information based exclusively upon the summary they presented. We cannot say whether Sahi and Felten considered the issues we have raised, or intentionally chose not to address them because they were deemed to be outside the scope of their study. On the basis of the summary alone, we cannot draw even an indirect correlation between this study summary and any need (or even a lack of need) for a three-strikes approach in the United States.

This is why it is important to read — and understand — the design, the variables, the operationalizations, the data collection methods, the statistical analyses in a final, peer-reviewed paper before rendering impulsive opinions about potential applicability to a major policy issue. Further, one needs to know enough about statistical analysis and research design to determine whether there is a skew, whether that skew may have been intentional, and if that skew negatively influences the study’s results. Finally, we need to hear what Sahi and Felten say about the study’s scope, and directions for further research. No matter how well-designed and presented, every study has some limitation, if only because scientific research is not static. Scientists typically live with, and explain, such limitations.

Jumping past this investigation and analysis may be considered acceptable within the context of litigation advocacy, where the objective is to win a specific objective for one’s client. But it is intellectually sloppy from a scientific and empirical perspective. As law professor Justin Hughes once wrote, “[T]he historian or the scientist is trained to research, to explain, and, we hope, to get to the bottom of things. The lawyer — hence, most legal academics— prepares just enough precedent to convince.”

Empiricism and science are the standards from which Sahi and Felten presented their research summary, and those are the standards any resulting final paper must meet. Our questions above are presented from the perspective of social science. Further, research and empirical support — not blind, unilateral advocacy — should be the bases upon which any information policy (especially three-strikes) should be proposed and promulgated.

We can say with a strong level of confidence, however, that the way the current statutes are written, it would have been shocking if anything significantly less than 100% of the files on BitTorrent were technical infringements of copyright law. That reality — and the gap between it and societal norms — is worth continued study.

© Copyright 2010, Copycense. Twitter: @copycense

Technorati Tags: Barry Sookman, Ben Sheffner, BitTorrent, Copyrights & Campaigns, Edward Felten, K. Matthew Dames, Michael Geist, Sauhard Sahi

Editor’s Note: Copycense executive editor K. Matthew Dames interviews William Patry a second time. (The first interview occurred in late 2006, and was published in 2007, the same year West Publishing released the multi-volume treatise Patry on Copyright.) This second interview, completed in late August 2009, deals exclusively with Patry’s new book, Moral Panics & The Copyright Wars (2009, Oxford University Press) [Amazon.com; Barnes & Noble; author’s book blog]

–

K. Matthew Dames: After writing several scholarly works and treatises (including the current Patry on Copyright and the revised Patry on Fair Use), Moral Panics and the Copyright Wars is your first general market book. Why this book at this time?

William Patry: I have been concerned for awhile about the type of discourse used in the debates about copyright. I thought and still think it is generally unhealthy, and in some cases, deliberately unhealthy. George Orwell once wrote that words can corrupt thought, and I believe this has happened in the copyright debates. I set out to find out why this was going on, and how to change the discourse by making it healthy again.

Dames: Moral Panics … opens with a discussion of business models, and your general argument that copyright law has been used too often to control what consumers do with products, rather than encouraging platforms that give (paying) consumers what they want. This book also was researched and written during a time when, for the first time, you have been in-house counsel to a technology company. To what extent did your work as a business lawyer spur your research into business models?

Patry: I have been privileged to work in lots of difference environments: private practice, government service, academia, and now in-house. You learn a lot from each experience. Certainly the greatest benefit to being in-house is learning business stuff, so being in-house has definintely sensitized me to business issues in a way I wasn’t before. I hope that is helpful too for readers.

Dames: In Moral Panics …, you spend a lot of time discussing language and rhetoric. How did you become interested in this area?

Patry: I became interested because language and rhetoric is so prevalent in the copyright debates and has driven policy decisions, something I think is regrettable.

Dames: Moral Panics … also includes several extended discussions about how language is used to shape the parameters of debates and political issues. In your former work with the House of Representatives, you must have heard several interesting arguments or statements. In your view, which person or organization has been the best at using language to best articulate their point of view and why was that person or organization so effective?

Patry: George Lakoff, a very liberal Democrat and a cognitive linguistic, has written extensively about how conservatives are masters of framing political debates, and I would be surprised if many disagreed. As the opposition now, of course, they don’t have responsibility for actually accomplishing anything, which gives them a lot more room to maneuver.

Dames: On page 29 of Moral Panics .., you write

The response of the heads of these companies to the youthful rebellion of democratizing content on the Internet has been that of may parents worldwide: to fight against the present, to try to ban the future, and to punish those audacious enough to challenge the status quo. The Copyright Wars are a fight against our own children, and it is a fight that says everything about adults and very little about the children.

As a father who purchases lots of books, films, and music for your children — and as a scholar who has objected to “educational” initiatives geared toward children like “Kopyright Kids” and “Captain Copyright” — what conversations do you have with your children about copyright and what their relationship is, or should be, with protected works?

Patry: I think parents have a great deal of responsibility, really the primary responsibility, which should be exercised both by example and by ensuring their kids act responsibly.

Dames: If you had one resource to recommend to your children to teach them about copyright, what would it be?

Patry: Creating something themselves and figuring out how they wanted it used by others online.

Dames: In Moral Panics …, you talk a lot about the consumer, the purchaser, and the end user and their relationship (or lack of relationship) with copyright law. Historically, copyright law and policy in the United States have been debated and discussed in a way that presumes the sole affected audience is large, corporate copyright owners, and you and University of Michigan law profession Jessica Litman have written about the legislative process that goes into making copyright legislation. Further, you have written about the current national copyright reform conversation occurring in Canada. What elements or conditions do you believe would need to exist in the United States so that a similar conversation or reform effort may occur?

Patry: I think that Michael Geist in Canada has shown the short of grassroots movement that is effective, and I think technology companies need to educate policymakers about what they do, in detail.

Dames: What issues are not addressed in the book that you wish you had addressed?

Patry: There are two: Marissa Mayer’s theory of the atomic unit of consumption [.pdf], and the discsussion by Gwenyth Jackaway in her 1995 book called Media at War: Radio’s Challenge to the Newspapers, 1924-1939. (See Slate article.) Her book is a great example of what I am talking about in a different era.

Copycense on Twitter: @copycense

Technorati Tags: Copycense, George Lakoff, Gwenyth Jackson, K. Matthew Dames, Marissa Mayer, Michael Geist, piracy, Jessica Litman, William Patry

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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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.

Copycense’s News Feed on Twitter: http://twitter.com/copycense

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

Here at Copycense, we have been investigating our editorial and business models in light of several changes in the way we provide information about copyright, content, media, and information policy to our audience, as well as several changes in the way copyright information is made available online. The purpose of this short piece is to apprise our audience of some of the changes we will implement throughout the rest of 2009.

Editorial Changes

Copycense has been in continuous publication since 2004, but we really began reconsidering our approach to analyzing and writing on copyright and information policy issues about a year ago. During the past year, three things have become clear to us. First, we have realized we do not want to fill Copycense with content that has only ephemeral value. Instead, we want the content here to have lasting value.

Second, we have realized there several outlets are much more capable of, and efficient at, publishing daily reports about copyright, intellectual property, and information policy matters.

Third, it has become clear to us that continuing to focus on the daily news events has hampered our ability to view and analyze such events in a global fashion. It also has made it more difficult for us to connect the dots between law, business, technology, creativity, and society, which is what we believe we do best.

In light of these observations, we announce today that Copycense is managing its coverage of news events about copyright and information policy exclusively through our Twitter account at http://twitter.com/copycense and our FriendFeed account at http://friendfeed.com/copycense. Together, the content on these accounts replaces the Copycense Clippings and Site Check features on this site.

Our Twitter feed has been up and running for about 45 days. We have found it works perfectly for managing daily news updates, but we withheld a formal announcement about its presence and purpose until now in order to work out a publication system with which we felt comfortable.

Our FriendFeed feed provides similar information to what we post on Twitter. At first glance, the accounts seem like they are providing duplicate information. There is, however, one important difference between the information on each site: the FriendFeed site lets us explain and contextualize our Twitter posts (or the stories we point to in our Twitter posts) where we feel context is necessary, or we just want to editorialize, while our Twitter site provides mostly pointers to news stories we feel are important, and witty quips about those stories.

One example of how we use FriendFeed is illustrated by our comments about federal injunctions within the context of civil copyright litigation. In a recent Tweet, we linked to a story about a federal judge’s temporary injunction that blocked the publication and continued distribution of an adaptation J.D. Salinger’s Catcher in the Rye. On our FriendFeed site, we expounded on federal judges’ willingness to routinely issue injunctive relief in copyright cases even though injunctive relief is supposed to be an extraordinary (and, by extension, relatively infrequently granted) remedy given the standard that is set forth under the Federal Rules.

We also like FriendFeed because it allows to connect to (and post from) other services like Facebook, where we soon will have a full presence.

How does our work on Twitter, FriendFeed, and Facebook affect what we do here here, the main Copycense site? Our work on these external social networking sites means that the work we post here from this point forward will be less frequent, but more expansive and technical. In essence, our social networking sites will provide daily coverage of copyright and information policy issues, while this site will publish some of the scholarly and empirical work our executive editor, K. Matthew Dames, has been conducting recently. This site also will provide a forum for some of the policy work we have been proposing, and connect more tightly with pre-publication papers we post on the Social Science Research Network (SSRN).

With these changes, we anticipate Copycense will serve our existing audience and new readers by continuing to be a reasonable and respected participant in the broader online debate about what copyright is — and what it should be — in a 21st century networked information economy. And it seems that having reasonable voices in the online debate is more important than ever in light of recent changes in the debate’s constituency.

Changes in the Copyright Debate

While we have been mulling these editorial changes, important changes have occurred in the online copyright debate. While copyright has become a citizen’s issue in the United States like never before, the broader debate about copyright has lost some of its most valuable and well-known online contributors. William Patry? Gone. (In truth, Patry occasionally drops tidbits on The Patry Copyright Blog (TPCB), and he graciously restored his archives for all after he had removed the entire blog last fall. But TPCB is effectively shuttered for business.) Patry left the blogosphere in part because he became concerned that journalists (and perhaps even citizens) of all stripes conflated his work on TPCB with official copyright policy positions from Google, for whom works as Senior Copyright Counsel.

Lawrence Lessig? See ya. He has left copyright to focus his attention on “corruption.”

Siva Vaidhyanathan? Adios. He is focusing his attention on Google, and whether Google will, in fact, avoid evil.

We note these three not because we always agreed with their writings, opinions or conclusions. But each of them did write, regularly, and did so in ways that helped remove the layers of mystery that long have shrouded copyright and information policy — layers we believe no longer can exist now that these issue affect John and Jane Doe as much as they do Multinational Conglomerate Inc. Certainly, there are other strong voices that continue to write well and evenly on information policy issues, but many of those other strong voices are lobbyists for rabidly pro-copyright owner organizations (or more specifically, corporate copyright portfolio owners) whose work and “educational” initiatives are presented to preserve business models instead of fostering copyright balance or equality.

Other strong voices call for copyright abolition, or propose licensing alternatives as a way of getting around U.S. copyright law’s current imbalance. In our view, copyright abolition simply is not an option we ever could support, and we never have supported the absence of a copyright system. Despite its flaws, we actually believe rather strongly in the U.S. copyright system; we just don’t believe in an overly strong U.S. copyright system, which is what we have now.

As for licensing initiatives like those proposed by Creative Commons, we believe they provide worthy alternative approaches, but ultimately do little to calibrate our copyright system back to its historical and Constitutionally-mandated balance. In short, if our copyright system was in balance, would we really need Creative Commons? We believe the ultimate goal should be to restore balance to our copyright system so that an initiative like Creative Commons ultimately is unnecessary.

Then there are a handful of strong voices who have “legitimate” platforms who simply do not know what they are talking about because they have failed to get their hands dirty with the theory, history, grist, and marrow of copyright. We count Mark Helprin as a member of this group. Members of this group are dangerous because they have platforms that our society considers legitimate, and because their opinions may carry weight because of their access to such platforms — even though their knowledge of copyright law, theory, and history is embarrassingly scant.

Copycense 3.0

While we are not nearly as prolific or “credentialed” as some of the others who write about copyright and information policy, we are still here. Therefore, we announce now (albeit with some trepidation) that Copycense will step in and try filling the gap left by Patry, Lessig, and others who used to contribute their work, scholarship, and thoughts to the broader online debate about balanced copyright.

We are, however, going to do things a bit differently. We will not try to do what Patry, Lessig, Vaidhyanathan did. Eaach of them are enormous scholars, and we are unsure we could match them. On the other hand, we do not think they could do what we are attempting to do from this point forward: to make copyright, information policy and related issues clear and understandable to the average citizen creator, be it a 7-year-old making a collage, or a 70-year-old creating needlepoint — all while maintaining high standards of academic and journalistic rigor.

In other words, to paraphrase Public Enemy’s Chuck D, we’ll be breaking things down so that those on the boulevard and in the bourgeoisie can understand copyright equally, with our social networking presences serving the citizenry, and Copycense.com serving the academy and political class. Audacious, we know, but we only live once, so why not do it to death while we’re here?

Education is one of the keys to successfully implementing our plans, therefore Copycense will introduce a number of educational initiatives that will help citizens understand copyright and and how it applies to their creative work, professional work, academic work, and daily lives. Copyright once was something that only concerned specialists, entertainment corporations, and lobbyists. Now — with the lower barriers of creative production and distribution wrought by computer power, software packages, and the World Wide Web — copyright arguably is as much a citizen’s issue as a corporate issue. Citizens now have as equal a claim as corporate owners to being copyright stakeholders, yet few citizens truly understand the doctrine, the issues, or what is at stake. We aim to change this situation.

We have been publishing in this space for more than 5 years, and we thank each of you for taking the time to read and consider our work. We look forward to exchanging useful dialogue and learning about copyright, information policy and related matters so that all may “promote the Progress of Science and useful Arts” and “secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Copycense on Twitter: http://twitter.com/copycense

Copycense on FriendFeed: http://friendfeed.com/copycense

Copycense on Facebook: http://www.facebook.com/pages/Copycense/102610694832

Technorati Tags: Copycense, K. Matthew Dames, Lawrence Lessig, Mark Helprin, Siva Vaidhyanathan, William Patry

“Since the U.S. Navy rescued Capt. Richard Phillips in April, many news outlets have been writing about piracy. Interestingly, some news outlets have raised an important question about “piracy” as a term: In light of the ongoing (and newly newsworthy) threat of violence on the high seas, should “piracy” continue to be used to mean theft of works that are protected by copyright or other forms of intellectual property (IP)?

“Stephen J. Dubner, a co-author of The New York Times’ Freakonomics blog, was one of the first to pose the question openly. In his April 13 post, Dubner even asked his audience to suggest substitute names. When he followed up with another post on April 17, he elected the term “downlifting” as the linguistic successor to “piracy.” Dubner’s article followed a pithy analysis by blogger Jenny Kakasuleff of the Indianapolis Liberal Examiner. Kakasuleff’s post was the first I saw this year that questioned the wisdom of using “piracy” within the context of IP, and the timeline on her post suggests she addressed this issue 10 hours before Dubner. Better yet, her lede was flat-out entertaining:

When I heard that “piracy” was the latest buzz word to light up the world wide web, I thought for sure Lars Ulrich had summoned Congress to bellyache about how fans like Metallica’s music so much that they—gasp—download it for their listening pleasure. But alas, all the hype was nothing more than a U.S. Navy showdown with three rogue pirates on a lifeboat, armed with AK-47’s and a hostage. Limewire [sic] lives to see another day.

“Then what does piracy really mean? The term’s definition and history are important along with the reasons why its continued misrepresentation matters to the country’s copyright policy.”

(more …)

K. Matthew Dames. Why the Frame of “Piracy” Matters. Information Today. June 2009.

Copycense on Twitter: http://twitter.com/copycense

Technorati Tags: “piracy”, Copycense, framing & rhetoric, Freakonomics blog, Joe Biden, K. Matthew Dames, The New York Times