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]

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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.

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

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

Normally, this post would be something best left to someone like William Patry, whose credentials on copyright are above reproach. Lawrence Lessig has responded to Helprin in a contemporary and ingenious way, but Lessig’s main focus now has moved from intellectual property matters to what he has called “corruption” (and what Harvard Law School, his new employer calls “a major five-year project examining what happens when public institutions depend on money from sources that may be affected by the work of those institutions”).

We are nowhere near the orbit of either Patry or Lessig when it comes to issues of copyright theory and history. We do think, however, we have some reasonable ideas and knowledge about the American copyright system and its increasing imbalance. And consistent with the the expectations the public should have of scholars and journalists, we don’t just spew: we back up our assertions with the best information we have available at the time.

Therefore, since Patry and Lessig are doing other things, we feel obliged to address Mark Helprin’s of editorials on the U.S. copyright system, the most recent of which was published in the May 11 edition of the Wall Street Journal.

Deconstructing the Myth of Romantic Authorship

Helprin’s views on copyright have been getting a lot of publicity lately. Conveniently, his views on copyright coincide with the release of a new book he has to promote, one that purportedly is about American copyright. The book, entitled Digital Barbarism: A Writer’s Manifesto, has been described by The Wall Street Journal in a review as an argument for copyright’s perpetuity. Interestingly, the WSJ review (written by the executive vice president of News Corp., the Journal’s publisher) is entitled “Hands Off, It’s Mine.” This title is important, and we’ll return to it in a moment.

Helprin first introduced his view of the American copyright system two years ago, in a New York Times editorial. Entitled (at least in the Times‘ online edition) “A Great Idea Lives Forever. Shouldn’t Its Copyright?”, Helprin argues in favor of endless copyright (or as the late MPAA president Jack Valenti would have put it, at least “forever less a day”):

The genius of the framers in making [the Constitution’s limiting clause “for limited Times”] is that it allows for infinite adjustment. Congress is free to extend at will the term of copyright. It last did so in 1998, and should do so again, as far as it can throw. Would it not be just and fair for those who try to extract a living from the uncertain arts of writing and composing to be freed from a form of confiscation not visited upon anyone else? The answer is obvious, and transcends even justice. No good case exists for the inequality of real and intellectual property, because no good case can exist for treating with special disfavor the work of the spirit and the mind.

The argument Helprin makes is consistent with a construct copyright scholars refer to as the “Romantic author,” which itself is related to theories of authorship. Authorship is central to copyright law: the U.S. Constitution grants “to Authors and Inventors the exclusive Right to their respective writings and discoveries.” Authorship also is relevant in contemporary, statutory copyright law: while the current Act fails to define what an author is, other parts of the Act refer to the author as the initial copyright owner. (As a practical matter, ownership of one or more rights in a copyright usually ends up with a person or entity other than the author.)

The Romantic Author theory essentially claims that authorial rights exist in law because authors naturally have a right in their work the moment it is created, that an Author is worthy of such rights, and it is righteous, ethical and just for the Author to have such a connection (creatively and legally) between him and his work. Additionally, the theory claims an author should be allowed a wide (and perhaps even endless) term to earn money from his protected work to the extent that he can claim sole credit for the work’s creation.

The Romantic Author theory focuses intently on the individual for two reasons: first, the Author is considered to be a privileged individual; second, the creative activity of Authorship is considered to be separate, discrete, and solitary instead of collaborative, cumulative, or derivative. To this end, the Author is considered to develop his creations in nearly complete isolation, without any external influences or inspiration. Within his creative cocoon, he is able to (perhaps even entitled to) be known as the ultimate source of text.

Even though a related thread of this narrative involves viewing authors as craftsmen – a characterization that seems to dampen the emphasis on creative and intellectual genius – that thread still allows for a set of circumstances where by hard work melds with tradition and divine inspiration. Even this slightly less glamorous thread of the Romantic Author narrative continues to allow for a direct connection between divine inspiration and the resulting words on the page.

While appealing, however, the construct of the Romantic Author is false. For example, Texas law professor Oren Bracha argues persuasively in a 2008 journal article that ascribing the entirety of the U.S. copyright regime exclusively to a Romantic Authorship narrative not only is too simple, but it is historically inaccurate. Peter Jaszi, both on his own and in collaboration with Martha Woodmansee, has shown that the Romantic Authorship trope – while false – still has become an active and destabilizing force in copyright doctrine and policy.

Northwestern law professor Olufunmilayo Arewa has written extensively about the ethos of collaboration and borrowing in the creative process (including in classical music), and Georgetown law professor Julie Cohen has discussed the dynamic interactions (.pdf) between individual creators and social and cultural patterns as the root of authorship.

Even French philosophers such as Michel Foucault (.pdf) and Roland Barthes (.pdf) essentially have questioned the premise of the author as solitary genius — no insignificant question given that both men come from a country that takes authorship genius (as manifested through the concept of droit moral) to a far greater degree than exists under U.S. law. In the end, the “mine” that Helprin wants to champion really is more like an “ours,” since virtually every creation will be derived from something else. (In fact, one could make a reasonable argument that the default nature of authorship in a digitally networked society is not the mix, but instead the remix.)

There is also an irony in the authorship construct that Helprin promotes. If one assumes that an individual’s creativity is king, then it would play a larger role in contemporary copyright law than it actually does. A person’s work qualifies to receive copyright protection once he creates something original, then fixes it in some recording that can be perceived by another person. The level of original creativity that U.S. law requires, however, is relatively slight. Helprin suggests every piece of writing is a War and Peace in the making, and thus the law should go to the extreme to protect such creative epics. But the fact is that American law does not require the proverbial opus: according to the U.S. Supreme Court’s opinion in Feist v. Rural, 499 U.S. 340 (1991), “the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, ‘no matter how crude, humble or obvious’ it might be.”

Influencing Copyright Law & Policy

Helprin’s views about a certain class of copyright lobbyists are more easily dismissed. In the May 11 WSJ editorial, Helprin sharply attacks organizations he considers to be anti-copyright (and by extension, perhaps also against creativity):

But copyright, the rampart of the mythical city, is besieged by a widespread movement antagonistic to authorial right and the legitimacy of intellectual property. So-called public interest groups serve the new information super powers, the Standard Oils of our age, whose interests would be advanced if they did not have to bother with permissions and payments for what they call “content.” The Creative Commons organization, for example, is richly financed by Google, Microsoft, Yahoo, Mozilla, Sun, the Hewlett Foundation, and others of type.

The opponents of copyright are no more disinterested than its defenders, although they do a good job of pretending, and their theories have become the window dressing for the piracy of software, music, movies — and soon the written word. They may claim that they are not against copyright per se. But if, as they repeatedly assert, copyright is an unjustifiable tax, a monopoly, and a bar to creativity, why wouldn’t they or anyone else be against it, as in fact they are?

Specifically as to Creative Commons, we have said before that our problem with the entire CC concept is that it moves copyright issues into the realm of contract law instead repairing their federal statutory and political bases. The flip side is that if the current copyright system was in its proper, Constitutionally-mandated balance, it is possible there would be no need for organizations like Creative Commons, or Electronic Frontier Foundation, or Public Knowledge.

To this end, Helprin’s argument sounds suspiciously like Republicans who now whine they have no political organizations to represent their views like the Democratic-oriented Center for American Progress, all the while forgetting they spent years building and funding organizations like the Heritage Foundation.

Since Helprin apparently is new to the copyright game, perhaps we can forgive his ignorance for not realizing that RIAA, MPAA, BSA, IIPA and lobbyists for various other corporate copyright portfolio owners not only are well-funded and organized, but long have been the exclusive arbiters of U.S. and international copyright law and policy, as both Jessica Litman and William Patry have noted. Interestingly, none of those lobbying organizations have authors’ or creators’ best interests in mind. Sure, their marketing and political rhetoric is quick to mention the author (in all her Romantic glory) and their protection of her art. In actuality, however, those lobbyists mention the author or creator merely to humanize their true clients: multinational corporations whose revenues, profits, expense account sizes, and share prices all depend on licensing one or more of the six rights a copyright owner receives under the 1976 Act.

Of course, the only way the corporations can do this is to actually own the rights in the first place, thereby divesting that same author or creator of the legal or economic power that arises from her creation. In reality, copyright ownership in the U.S. is often a zero-sum game: the authors get zero, and corporate owners get the sum. Helprin cannot reasonably refute this.

Again, we can excuse Helprin’s ignorance of the industrial and legal realities: copyright, unfortunately and after all, is complicated. There is no excuse, however, for patently misrepresenting the policy positions or the missions of the organizations he has chosen to attack. Some of us at Copycense have been involved in copyright matters going back more than a decade from the legal and political standpoint, and for more than 30 years from the creative standpoint. At no point have we heard or read anything from EFF, Public Knowledge, Creative Commons, or a similarly situated organization that serves as “the window dressing for ‘piracy.’”

Do we agree with everything these organizations promote? Certainly not, and regular readers know we have said so. But even a cursory glance at their positions would reveal all are in favor of balanced copyright legislation. None of these organizations, however, give any credence to Helprin’s tight embrace of the Romantic Authorship construct. Unfortunately for him, neither does the history of copyright law, either in the U.S. or in England.

We have no problem with accepting new voices into the copyright debate. Indeed, it is the absence of new voices and new ideas that has led us to the imbalance that exists. But all new voices should be required to perform some basic research and due diligence before opining so publicly about the state of the copyright world. At least based upon his editorials, Helprin clearly has not.

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Technorati Tags: authorship, Copycense, Lawrence Lessig, Mark Helprin, William Patry

Copycense and its executive editor, K. Matthew Dames, have been noted by The New York Times’ Freakonomics blog for our two-year coverage of the misuse of the term “piracy” in connection with intellectual property. The Freakonomics blog also cites Dames’ working paper of the history of the term piracy, both in the English language and in American legal usage.

Related:

- Freakonomics blog (The New York Times). Pirates Steal Ships, Not Songs. April 23, 2009.

- K. Matthew Dames. The Etymology of Piracy (working paper). SSRN. April 21, 2009.

- Copycense. Dismantling the Frame of Piracy. April 18, 2007.

- K. Matthew Dames. Framing the Copyright Debate. Information Today. September 2006.

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

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

In light of the U.S. Navy’s rescue of Capt. Richard Phillips on Easter, many news outlets understandably are interested in writing about piracy. Interestingly, some news outlets have raised an important question about “piracy” as a term: in light of the ongoing (and newly news-worthy) threat of violence at high sea, should “piracy” continue to be used to mean theft of works that are protected by copyright or other forms of intellectual property?

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 substitutes. Dubner followed with a second post on April 17 to anoint “downlifting” as the linguistic successor to “piracy.” In the meantime, the Washington Post and The Guardian (UK) followed with their own takes on “piracy” language.

It seems each of these publications, however, may have been beaten to the punch by Jenny Kakasuleff and the Indianapolis Liberal Examiner. Kakasuleff’s post was the first we saw this year to question using “piracy” within the context of intellectual property, and the timeline on her post suggests she addressed this before Dubner by about 10 hours. Better yet, her lede is 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 lives to see another day.”

Source: http://tinyurl.com/c3f3oc

Of course, regular Copycense readers have known for quite some time that we never use “piracy” as a proxy for IP theft. We wrote about this in these virtual pages in an April 2007 post entitled Dismantling the “Piracy” Frame. Today, we re-post some of that that writing:

“Since at least late 2005, Copycense assiduously has avoided using the word “piracy” as a synonym for allegedly illegal uses of protected intellectual property. Since then, whenever the term has appeared in this publication, it usually appears in quotes (i.e. “piracy”). There are several reasons for our care. First, since Copycense reports on the intersection of business, law, and technology, it is unusual that we would report on anything remotely related to “acts of robbery and depredation upon the high seas.”

“Second, as we have shown here, the term “piracy” has nothing to do with copyright or any other form of intellectual property, much less the allegedly illegal taking of such material. Any use of the term piracy that relates to intellectual property is wrong or an overt linguistic manipulation for political or economic advantage. We’ll concede the entertainment industry’s “piracy” frame has been artful and successful. We also know that it is wrong.

“Third, perpetuating the “piracy” frame pigeonholes intellectual property dialogue into a narrow box that considers only an owners’ rights. All intellectual property law is a delicate balance between the rights of the owner author, or inventor, and the public interest. In copyright law, for example, an owner’s exclusive rights generally are outlined in Sections 106 and 106A, while the public policy-oriented limitations (or exceptions) to those exclusive rights generally are codified in Sections 107 through 122.

…

“[Several publications and organizations … reinforce] the “piracy” frame through [their] reporting. The New York Times, The Wall Street Journal, The Washington Post are among them, and they continue to do so even though their coverage over the last 18 months increasingly has been critical of the entertainment industry, their lobbyists, and the overtly protectionist copyright laws those groups are responsible for proposing and ramming through a Congress that has been ignorant about the frame, too weak to stop it, or complicit in accepting it without the mildest investigation.

“But at some point the “piracy” frame must be uncovered for what it is: public relations blather. It is sexy, simple, and concededly well-designed blather, but blather nevertheless. We have committed to avoid using “piracy” except where such use is consistent with its definition (which means we will not have much need to use it at all). Instead of “piracy,” we call on journalists, editors, and bloggers to use the phrase “alleged infringement.” Unlike “piracy,” the phrase “alleged infringement” is legally accurate, simple, and suggests that accusations of unsanctioned use of copyrighted materials are subject to exceptions and a legal process by which a judge or jury may or may not hold the accused liable for infringement or damages.”

Source: http://www.copycense.com/2007/04/dismantling_the.html

As it turns out, Copycense executive editor K. Matthew Dames has been studying the intersection of framing, law, and policy extensively for more than two years. In addition to the aforementioned Copycense post, Dames first addressed framing in a September 2006 article published in Information Today magazine, and presented a paper about the meanings of piracy in September 2008 at Syracuse University. He has updated the 2008 paper, which is part of a broader study he is conducting on framing, rhetoric, and U.S. copyright policy, and it is now available on SSRN.

Finally, to answer Dubner’s question, instead of “piracy,” why don’t we call these things what they are: allegations of copyright infringement?

Related:

• K. Matthew Dames. The Framing of “Piracy”: Etymology, Lobbying & Policy. SSRN. April 21, 2009.
• Copycense. Dismantling the “Piracy” Frame. April 18, 2007.
• K. Matthew Dames. Framing the Copyright Debate. Information Today. September 2006.

Copycense: Incisive IP.

Technorati Tags: piracy, Copycense, framing & rhetoric, K. Matthew Dames, language, definitions, tag

We presume Twitter is devoid of any seriousness, but we realized we unintentionally opened a can of thorny theoretical and doctrinal questions last week when we posted the following rhetorical question (or, rather, something quite similar) to our account:

Is copyright an exception to the public domain, or is the public domain is an exception to copyright?

Granted, we’re currently engaged in a project that has us pondering this sort of question in the first place. But we think your answer to this question says a lot about your normative view of the copyright regime. While we have some thoughts about how we may approach answering this question, we do not have an opinion as to which answer (or underlying rationale) is “correct,” if any answer is “correct” at all.

Ultimately, though, since copyright officially touches so many aspects of contemporary, everyday life (for example, see John Tehranian’s interesting analysis of this issue), we think this is a question that people affected by copyright should consider and answer.

Copycense™: Incisive IP.™