Copyright's Paradox highlights the important interaction of copyright and free speech, but it unfortunately engages in overheated rhetoric about copyright oppression. It isn’t enough to quote the oft-demonized Jack Velenti; Netanel recruits Hitler (ok, fine, Hitler’s publisher) to represent the supposedly tyrannical copyright regime. Like most critics, Netanel opposes the charged rhetoric of copyright lobbyists (“piracy,” “theft”), while engaging in his own (“censorious,” “sharing”). 

I’ve never been fond of this sort of copyright criticism.

I find it hard to mourn the purported death of fair use when we live in an age of fan fiction. Most borrowing—even artless and substantial borrowing—is not worth suing about. I always considered this a virtue of copyright law; rational profit-seekers would let most of the small stuff slide. Fans can post user-created online quizzes about Seinfeld, but when the Seinfeld Aptitude Test sells a million copies, Castle Rock Entertainment might want their cut. This strikes me as a reasonable balance. It lets creators capture some of the externalities of their creations, while allowing millions of potential users appropriate their work in peace.

I agree that there is some tension between copyright and the First Amendment. Whatever it is, First Amendment is more than an economic value, so there should logically be a constitutional dimension to fair use analysis. Insofar that courts have formally deprecated or ignored free speech in fair use analysis, Netanel is right to criticize them.  I think it's only a semantic problem though; although the Supreme Court didn't emphasize First Amendment rights in Harper Row, something was animating their belabored analysis.  Economically, it was an easy case: someone stole a manuscript, robbing the publisher of an inked deal, but it was a harder case for the court.  I believe judicial fair use analysis is cognizant of the First Amendment, even though it's seldom acknowledged. The idea-expression dichotomy is supposed to carve out constitutionally-protected speech. Ideas should travel freely, but there’s no constitutional right to use another’s words or images to express these ideas. When the lobbyists argue that fair use is confined to cases of zero potential economic value, they’re just flat wrong (as they should be).

I think the courts have almost always resolved the tension sensibly. We can have our high art Barbie photos, and Roy Orbison rap songs. I’m not alarmed that we live in a world without profitably pornographic depictions of Mickey Mouse.  But this is uncharitable: the fair use defense requires a court battle. If copyright makes legitimate commentators continually defend against purported infringement that turns out to be free speech, I agree that some speech might be unconstitutionally chilled.

The constitutional issue is content-based discrimination. I think this is a Chicago highway speed limit problem.  I don't know anyone who travels along our southern segment of Lake Shore Drive at the posted limit of 35 MPH, and no one seems to mind very much.  Nobody cares if you post YouTube videos of your children playing with Barbies, even if Homer Simpson is in the background (as long as you don't ask about it first, apparently).  You could probably even screen your home videos as a documentary, and in most cases I suspect you'd slide by, just like the cars zipping along LSD.

Criticism is different though.  People don't always rationally react to criticism. Even rational actors dislike critique for how it can devalue their own work—even when it's a net positive for society. Attacking a copyrighted work with a derivative makes it more likely that you'll be the guy pulled over, and nobody likes to be that guy—even if the judge lets you off the hook months later.

I don’t have much hope that this paradox will be resolved in this book. Owners (or should I say “monopoly privilege-holders”?) will still try to shut down criticism, even if fair use were strengthened. It would be challenging to expand fair use without also allowing things like unauthorized sequels. It’s even more challenging when one doesn’t commit to a view of free speech, as Netanel does not.  It seems that whatever standards are used, copyright will always be enforced unevenly by private parties. If this is a constitutional problem now, it seems only slightly helped by replacing injunctions with statutory damages.

"Bart, with $10,000 we'd be millionaires!" or: why the clearance problem might soon solve itself

Fear of lawsuits and murky fair use defenses bred the cautious clearance culture, but we're making progress.  For one thing, most people seem to agree that clearance culture has gone to far.  And by "most people" I mean many of the big copyright interests themselves.  It's all fun and games when media conglomerates demand royalties for incidental cartoon characters, but when broadcaster/studios become paranoid about every snippet the broadcast or host online, their party needs to end.  I suspect that it will, and that self-help will play a large role.

Documentarians, for example, have written "best practices" for fair use, which applies fair use doctrine to the needs of documentary films. Whereas insurers and distributors used to reject documentaries unless every last scrap was cleared, they're now willing to screen movies that rely on best practices-compliant fair use. Netanel's Homer Simpson example would not occur today because PBS now screens best practices-compliant documentaries, and several E&O insurers will cover documentaries that adhere to these guidelines.

Should media-specific guidelines hold up in court, many of the discriminatory enforcement problems will solve themselves.  Don't want to be sued for you unflattering parody?  Just follow the guidelines.

Least troubling industry capture

Netanel must be right that content owners have taken control of copyright legislation.  I think no sane reading of copyright law can yield any other conclusion.

Industry capture is a familiar and easy story to tell, but it doesn’t alarm me in this case.  Copyright is a legal mechanism to collect externalities from those who find value in a work.

There are distributional effects to expanding rights. Copyright owners collectively extract more money from copyright consumers, but I think the market distortions are benign.  Supposedly draconian laws against circumvention might incrementally cost us somehow, but these laws also encourage studios to sink marginally more money into ridiculous $180 million movies like Iron Man.  Basically, copyright laws allow studios to make money from abstract entitlements like the right to exclude others from 90 minute collections of pictures in sound.  They do this by simply capturing externalities, not by feeding from an involuntary public.  They capture larger slices of externalities with strong copyrights, encouraging them to put more money into works that are socially valuable.

These works seem to provide consumers a lot of surplus value (judging from the reactions of my Iron Man audience, anyway).  Copyright doesn't really give rise to troubling monopoly dead weight loss problems either. Somewhere in the world there is a college student who would pay no more than one dollar to see Iron Man.  We could talk about how tragic it is that he has been "locked out" from seeing it since he would gladly pay the nearly-zero incremental cost, but we won't shed any tears. Now more than ever, there are plenty of alternatives.

If we contrast paracopyright laws with, say, corn subsidies, we're in pretty good shape.  Whereas one industry-dictated regime encourages environmentally disastrous waste on the public dole, the other conveys money from consumers into the production of more stupid and expensive movies.  No contest: I'll take Hollywood over ADM any day.

As far as I'm concerned, if the First Amendment / fair use problem is solved, the industry can keep on owning copyright law.

Orphan works remain a problem, but this problem should be tractable.  By definition, the parents of orphans can't buy lobbyists.

Comments

[Sarah Cottrell]

I agree with you that Netanel frequently resorts to rhetoric in a way that tends to detract from the points he is trying to make. His book is attempting to advance a thesis, of course, so we know he is not entirely neutral on the topic of copyright, but his characterization of copyright-holders and the copyright regime tends towards a sort of "good versus evil" description that fails to deliver much nuance. I expect many people would probably have been more receptive to his work if not for this rhetorical issue.

You note that he provides the "Hitler example", among others, in support of his thesis of encroaching copyright. One question I had while reading this section was: how representative are these experiences? I get the impression that you do not think that the situations that he describes are particularly representative, and in some cases (like the Air Pirates), are not all that problematic. While we might find several or all of the examples he offers problematic, I wonder whether they represent a large proportion of all potential copyright cases, or if situations of the sort Netanel describes is relatively rare. I suspect it may be the latter and I question whether we should think about altering the whole regime in the face of relatively few abuses.

[Ruben Rodrigues]

"Nobody cares if you post YouTube videos of your children playing with Barbies"

Apparently, Prince does: http://www.news.com/8301-10784_3-9929922-7.html

Though to be clear, the mother did eventually come out on top and her video's on YouTube now.