Netanel’s Paradox

Perhaps later in the book Netanel’s position will become clear, but at this point I have to admit some confusion because he seems to take polar opposite positions on the question of how strong copyright protection should be.

Pro-Speech: My Downloadable Music Collection is Speech

Throughout most of the first three chapters Netanel claims that copyright protections have grown too strong, inappropriately cast as property rights, so that creative appropriations of copyrighted works are curtailed, which compromises free speech values. Netanel takes the position that whatever added incentive this strengthened copyright protection offers to the original author has at this point been outweighed by the inhibition of new versions of the original, whether the original is subverted, sampled, mashed up, mocked, modified or whatever. This is all well and good and indeed familiar. What goes beyond positions I dimly recall from first year Property are Netanel’s ideas on file sharing, which strike me as both novel and extreme.

In defining speech for First Amendment purposes, Netanel’s test is for activity that is meant and understood to be communicative—not just any voluntary action (like riding a motorcycle). What prevents file sharing from being speech in Netanel’s view is the fact that the sharer “does not make public the list of works residing on his computer and hence conveys nothing of his interests and cultural taste.” (46) This suggests that were file-sharing networks configured differently, so that the downloader was privy to a complete list of his source’s shared music collection, then that downloadable catalogue might be protected as speech. It seems to me that there should be a more rigorous test for protected speech than the difference between saying effectively, “Here’s my song X available from me to you for downloading,” and saying “Here’s my song X, among my other songs W, Y and Z, available from me to you for downloading.”

Putting aside the question of how much activity should be protected as “speech,” I think this example illustrates that Netanel wants to push pretty hard in the direction of free speech, at the expense of copyright protection.  (He also goes on to say that even if file sharing isn’t speech, it promotes First Amendment values of access to speech and freeing content distribution from the dominance of commercial media (47).)

Anti-Speech: The Moral Right to Black and White

Against this pro-speech, anti-copyright background, I was surprised by Netanel’s endorsement of Europe’s moral rights, which he defines as an “inalienable personal right to claim authorship credit and prevent gross distortions of their work, even at the hands of persons who hold the economic rights.”  (53) I’m baffled as to how giving authors a veto on “gross distortions” of their work can be reconciled with Netanel’s celebration of mash-up culture during all the preceding pages. I know very little about moral rights law, so maybe the key is as simple as a prohibition on a version of a work that is close enough to the original that it might easily be confused with it. This would make sense as a way of avoiding false attribution to the author. On the other hand, I’m not clear on how a “gross distortion” would be confusable with the original. (Would The Wind Done Gone qualify as an infringing “gross distortion?”)

My intuition is that Netanel is making a sharp but mostly unarticulated distinction between mass media communications and what he at one point describes as “nonmarket expression,” user-generated communicative acts, which are not aimed at creating a marketable product, but at participating in an ongoing conversation (41).  Thus, he applauds the French Supreme Court when it bars the broadcast of a colorized version of Asphalt Jungle as infringing John Huston’s moral rights (53). But it’s hard to imagine that he would be pleased if the U.S. Supreme Court enjoined YouTube from making a user-generated version available that “subverted” the original’s drab noir palette with pastel colors.

Evil Money-Grubbers v. Virtuous Creative Spirits

If I’m right, Netanel really wants a two-tiered system: 1) weak copyright protection for everyone (though only people who seek to make money from expression would care) and 2) strong authorship protection wielded selectively against people trying to make money from expression, but not against “nonmarket” appropriators (i.e. against Turner Broadcasting, but not against a YouTube colorizer). This latter point—the effort to enforce a moral rights regime against market-oriented speech—is reinforced by Netanel’s support for the Writers Guild’s call to end product placement in television and film scripts, which he feels would somehow be solved by a moral rights regime, as though authors somehow had moral rights in the as-yet-unwritten scripts (untainted by the inclusion of products).  

Netanel’s perspective appears to be premised on a perhaps naïve conception of authors’ prelapsarian state of creative bliss, followed by publishers’ and studios’ “market driven infidelities” (52), as though many authors weren’t very much driven by the market in the first instance (which is, after all, a founding assumption of copyright law). In any case, attempting to distinguish between disfavored market speech—to be selectively punished with a moral rights regime—and favored nonmarket speech—which would be free of moral rights restraints, seems to me to be completely unadministrable. Would we base it on the author’s intention to make money? A bright line test based on, say, $10,000 of profit—or maybe zero dollars, after which the expression hits the market speech limit and gets pulled because it violates another author’s moral rights as a “gross distortion” of the original?

It’s true that First Amendment law does have fewer protections for commercial speech which is basically advertising—speech that does nothing more than propose a commercial transaction—but I’m not aware of any precedent for distinguishing between speech that is itself intended to make money and speech that isn’t. As a policy matter, I don’t see the logic of rewarding dilettantes, who don’t need to make money from their expression, with more lenient moral rights rules, while punishing professionals who care enough about art, novels, news, political discourse, etc. to attempt to make a living from it.

Maybe I’m wrong to ascribe to Netanel an implicit distinction between market and non-market oriented speech, but without this distinction I don’t see how he can support both moral rights and mash-ups.

 

Comments

[Frank_B]

The moral rights sympathies are puzzling, but I read him differently. I think he supposes moral rights might be a good way to protect artists whereas he thinks property rights are totally worthless at promoting anything other than publishers. He expresses such in another essay, but stops short of actually endorsing moral rights. See "Why has copyright expanded?" http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1066241

To me he seems to be saying: "If we really cared about the artists, we would use moral rights, and that would be my second choice--but I believe in free speech over all else, so no--Pete Townsend doesn't have the right to control his song any more than Hitler has the right to control his book."

[Max Schleusener]

I'll take Frank at his word on the other essay and assume Netanel's valuation goes free speech first, moral rights of artists second, and market-driven [fill in the blank] a distant third.

One funny thing I'd like to call attention to that Derek touched on briefly is how market forces motivate artists and copyright law. Specifically, market forces are at the heart of so much pop art since, say, the late 1950s that any attempt to extricate the artistic from the money-grubbing sounds impossible to me. For example, Andy Warhol's first major gallery work were over-sized boxes of Brillo pads. The boxes were empty, but they were exact replicas of Brillo boxes at three times the size. (Sidenote: the gallery tried to sell them at $900 a pop and had almost no takers.) Netanel would likely lump this in the free speech/artist commentary categories and not in the market-minded, evil money-making category.

This latter category of people and acts (and market-driven money-makers) are in their existence expressive and, arguably, artistic. That is, protected First Amendment expressive conduct and artistry are often built into market-driven thinking and vis-versa.

One major artist today calling attention to this issue of mixed-motivation is Damien Hirst. He recently sold a diamond encrusted human skull at auction for $100,000,000. Many people in the art world hate him because his work makes a mockery of taking art seriously and is meant to generate income purely as an example of art being able to make money for no good reason (other than the artist's name and notoriety). Some people say he is doing a large-scale, market-minded version of "The Emperor's New Clothes."

It seems to me that money-making conduct (through product placement or a variety of other means) is UNintentionally expressive and UNintentionally creative in the ways that Netanel would look to protect were it only known to the money-grubbing people acting so greedily. That is, if they meant their actions to satirize themselves, it would be cool by Netanel, but because they have only the bottom line in mind, it's not.