Tech Policy Seminar

Copyright's "Constitutional Moment"?

Netanel's anecdotes and analysis point out problems that arise from conflicts between copyright and free speech. The two easiest responses to these problems would be to either recommend solutions or criticize Netanel for overstating (or understating?) the problem. Netanel will do the first later in his book, so it makes little sense to do so here. Other posters have ably done the second.

So instead of taking either approach, I will do something different in this post, looking instead how solutions might be found, rather than what they might exactly be.

I want to suggest, boldly and broadly, that whatever one thinks about what copyright law should look like, we will soon face a "constitutional moment" in copyright.

As Netanel points out, a collection of unsettled or questionably settled issues at the intersection of free speech and copyright law cloud and obstruct debate about solutions. Copyright is increasingly viewed as a property right, rather than a malleable and optional element of policy. "Free speech" itself is poorly defined, with the line between expressive acts and true speech unclear. Fair use, intended to provide an escape valve at the copyright/speech intersection, is so complex and inscrutable that even legal experts have trouble defining its contours, with the result that much legal speech might be chilled.

Even before the explosion in computer technology over the past 10 years, copyright law was unclear.  Parody was not included in the definition of fair use until Campbell v. Acuff-Rose in 1994. The Alice Randall/Margaret Mitchell controversy Netanel repeatedly discusses illustrates how little Campbell resolved.

Lots of areas of law lack clarity, however, and if this were as far as the problems extended, copyright could probably have muddled on indefinitely, evolving in traditional common law fashion, supplemented occasionally by Congressional intervention. I have serious doubts about whether this is possible in 2008. Technology has changed content creation and distribution so much that courts will likely be completely unable to keep up. Efforts to use the courts, illustrated by Netanel's examples and, most notably, by RIAA Doe suits, descend rapidly into a farce that discredits the courts and copyright law itself.

As others have pointed out, these technological developments take two forms - those that make copying cheaper, and those that make new content creation, including remixing (broadly defined) cheaper. The former technology raises real enforcement and respect-for-law problems for copyright, but Netanel seems to believe (and I agree) that the latter technology is even more dangerous for the unsteady truce between copyright and free speech.

In a world where everyone has access to cell-phone video cameras, GarageBand,  and iMovie (Mac bias exposed); and in which everyone has access to YouTube or other means of internet distribution, can copyright law hold? If, as Carr suggests, we are moving towards a cloudsourced world, is copyright law structured such that it is possible (or wise) to police the cloud for violations? Vikas talks favorably about best practices codes, but are these workable in a world where everyone is a creator? Maybe. But even if they are, could courts possibly handle the load of copyright litigation, and if they could, do we want them to? These are difficult questions, and I am highly skeptical of whether the steady legal evolution we have seen in copyright to date can manage to answer them.

We may therefore be nearing the breaking point for copyright law as currently conceived. Technology will continue to spread and reduce copying, creation, and distribution costs. But technology is not the source of the problem - it has just exposed the sclerotic heart of a broken system. The only solution, I believe, is a complete, ground-up reconsideration of copyright. The time for incremental change is over. In a sense, we are nearing a constitutional moment for copyright.

What does this mean? To put it simply, I believe we (in public debate and through the lawmakers we elect) should scrap current copyright law entirely, and start from a clean slate. Settled expectations about property rights in copyright, about what "speech" is, and about the boundaries of fair use would all be up for discussion and renegotiation. Instead of these specific questions, we should ask the more general one - what is the minimum level of legal protection for creative work that we as a society think is necessary to encourage creation at a level we are comfortable with? The answer to this question depends fundamentally on the costs of creation itself, which are continually changed by technology.

In fact, it might be best to take the John Lennon position - Imagine: no copyright. What would the world look like? What would be wrong with it, and how might law fix it? The answer would surely be copyright in some form, but that might be very different in both form and extent from either what copyright law looks like today, or even what current law could reasonably be changed to look like. It is only by starting wholly anew that we can even really ask these questions.

While it is beyond the scope of this post to suggest what the "new copyright" that develops from such a clean state would look like (I would think Netanel will have something to say about it in the remainder of the book), I can at least suggest sources. First of all, we should look a behavioral economics. How much do people discount the future - how much of the prospective future value of a created work do people need to retain to encourage creation? Further, we should look at other societies, both historically and internationally. Other countries have greater or lesser copyright protections. Would we be comfortable with the balance they have struck?

One problem that might arise with a copyright "reset" is what to do with existing works. From one point of view, it makes sense to simply put them all into the public domain - there is after all no need to encourage their creation. Of course, this creates a disincentive for future creation since it is hard to credibly commit to never doing the same thing again. Another option might be a general tax used to fund a one-time payoff to copyright owners. This is probably unworkable since copyrights vary so dramatically in value - and it is impossible to predict what will be popular in the future. Another option would be to compromise by retaining existing copyrights but reducing their length. This seems reasonable, but given that copyright terms have been repeatedly extended, may be politically impossible. I confess that I have no easy solution to this problem, but it is at least possible that it doesn't matter. If all we want to do is set the incentives for creation correctly going forward, a purely prospective reset of copyright would be sufficient.

In sum, the system is broken and is being repeatedly exposed by technology. Copyright is losing its relevance and respect. Evolution of doctrine can't fix it. We similarly can't afford to just get rid of it entirely, but we should scrap it - and all of our expectations and preconceptions with it - and start anew. Sometimes the world changes so much that existing law no longer fits reality. When this happens to an entire society, the result is a constitutional moment, in which law and legal philosophy fundamentally change to match a new ordering of society. I suggest that just such a real-world change has occurred in the past 10 years - not a general societal change, but one in creation of content. It has been suggested that the democratization of content creation and distribution resulting from the Internet is the greatest such change since the printing press. It would seem foolish to attempt to govern a post-Gutenberg world with copyright law designed for the era of illuminated manuscripts. It seems similarly foolish to use 18th-20th century copyright law to govern a networked world. The solution, in both cases, is to start again from first principles and forge a new speech/copyright compromise from scratch.

The time for half-steps and incremental measures is over. We have nothing to lose but our intellectual chains.

Property rights "gone with the wind"

Initially, I don’t understand how Netanel can pose this “paradox” between copyright and the First Amendment as being in any sense novel.  Article I, Section 8 of the Constitution itself says Congress shall fix copyright for a limited time.  Presumably, the framers understood that copyright abrogates others’ abilities to express freely and build upon previous works, thus ensuring that at some point these works would be freely available to all—to copy, build on, criticize, etc.  Essentially, they also wanted to ensure some balance between copyright and free expression.  Maybe Netanel is right in that we have moved away from this balance and in the wrong direction, but he cannot suppose that this “balance” he identifies is in any way novel.  I suppose the next question is whether Netanel got this balance right.  This is a normative and an empirical question, neither of which I can address here, but there some incentive effects to consider. 

Incentives to create

I agree with Chris that Netanel’s main concern seems to be the reduction in the rights of original copyright holders in their title to derivative works.  And he wants to bring in this expansion of derivative rights of the general public through the fair use doctrine.  (He also probably just likes the term “fair use” since it automatically invokes the notion of “fairness” in the reader’s mind.) Regardless of how he wishes to accomplish this change in copyright law to create more rights for the second user, some incentive effects need to be discussed.  In essence, any expansion in the rights of the second user, through fair use or derivative works, is similar to more piracy in that both reduce the rights, the economic benefits, and thus the incentive effects of creating in the first place.  He may address these points later in the book, so I only tenuously mention them.

As Netanel mentions several times, copyright is the “engine of free expression” because it creates an economic incentive structure to incentivize people to produce creative works.  We as a society value such production, because it adds to our repository of expression.  That right needs to be limited so these second users Netanel is worried about, e.g. Alice Randall, can also express themselves freely by building upon previous works.  Inevitably, though, reducing the rights of the original copyright holder will in many instances reduce incentives for the holder to create in the first place.  One of the clearest examples of this is the Ed Felten anecdote Netanel gives us on p.7.  Netanel seems to be arguing that Felten as a second user should have been able to undertake creation of derivative works—specifically criticism of digital music encryption—in order for society to not abrogate his First Amendment free speech rights.  Assuming that Felten’s speech would fall under First Amendment protection, it is still unclear that Netanel has found the correct balance.

Felten’s abrogation of the music industry’s copyrights on such encryption schemes may reduce their incentives to create such schemes in the first place.  If he is basically expressing how to undo these encryption schemes, then that intellectual property becomes useless to the copyright holder.  There are a few counterarguments here.  First, because the music industry has to create digital music and has to protect them, business pressure will require them to implement encryption schemes, thus mitigating any disincentives Felten’s criticisms could impose.  In essence, market pressures will alleviate any reduction pressures on creativity.  Second, and consequently, such criticism by those like Felten freely expressing their ideas can only serve to compel the industry to improve its encryption schemes.  The problem is that no matter what, such expression increases the cost of creation for the creator, i.e. the music industry.  Whether they are compelled to introduce better encryption technologies, which presumably would be costlier to create, or are compelled to live with a criticized encryption scheme and the attendant piracy, these are increased costs of business. 

Presumably, increased costs for the creator mean less innovation, or at least lowered incentives to innovate.  That is the case for most second use—piracy, fair use, or derivative use.  They reduce the rights of the creator and lower his incentives to create in the first place. The entire purpose of the copyright scheme is to provide a bundle of rights that will create incentives to innovate.  As we begin to reduce those rights, the consequent effect generally will be a reduction in these incentives.  The corollary effect is that second use will also be reduced.  The derivative free expression that Netanel is concerned with, namely this criticism of original works or of building new expression from them, cannot exist without the creation of the original, copyrighted work.  Alice Randall could not criticize Gone with the Wind unless it existed.  Similarly, Felten could not criticize the encryption had it not existed.  That’s the tough balancing act here.  As Chris notes, it is hardly debatable that there should be more free speech, more derivative works, and more (and clearer) fair use.  The difficulty is that it is not so simple to just say: let’s have more free speech!  This method of reducing copyright holders’ rights may also reduce free speech.  Eyes on the Prize could not have used those famous Civil Rights era songs, with or without a license, if the songs simply had not existed.  One could argue that this would compel the makers of the documentary to create their own songs, which would add to the repository of creative expression.  However, the perennial concern is that by increasing the costs of creation, we may decrease said creation.  The documentary may not have been created if the makers would have had to produce their own songs.  And allowing them full access to second use of songs may have created disincentives to create these songs in the first place.

Information Asymmetries, Licensing, and Property Rights

Therefore, licensing seems to be generally the best method by which to create a balance between creation and second use (free expression).  Netanel at several points notes the property rights argument about copyright.  He seems to abhor the analogy, but I think it is an appropriate one in many cases.  Theorists have begun to think of property as a bundle of rights (pp. 6-7) instead of as this dominion over which one has complete control against the rest of the world for eternity (e.g. Blackstone).  Takings and regulations seem to align with this bundle notion.  Similarly, copyright is a right against the world but comes with more explicit delineation of this bundle of rights.  Section 106, I believe, provides for all the rights a copyright holder has to his work.  Now, we can conceptualize First Amendment / free speech rights similarly as property rights that each American has inherently (just as one could say we have an inherent property right in our labor, as under the 13th Amendment).  When property rights to physical property, such as land, clash, what should we do?  Well, we can look at deeds and titles, but essentially we want to place property in the hands of those who value it most but still create stability for that right.  If we always placed property in the rights of those who value it most, we would destroy property rights.  The holders would have little incentive to develop their properties, since they could be taken away at any time.  Secondly, we may not have information about who would actually make the best use of such property.

Similarly, as I have argued above, abrogating copyright may reduce incentives to develop such property.  Furthermore, Netanel seems to argue that these second users with First Amendment property rights are the more valuable users to which we should award property.  He makes a normative claim through a variety of anecdotes mostly about the little guy getting screwed.  For example, on p.47, he discusses new artists being unable to compete with the goliath music industry machine.  Maybe we care about the expression of the new artist over that of the music industry.  I don’t know (and I am unwilling to make any assumptions as Netanel does), and that’s the problem.  We can’t know, and simply abrogating rights seems like a dangerous path to go down on.

Copyright already provides a balancing scheme through licensing.  A landowner can sell his land to a purchaser.  That will inevitably place it in the hands of the user who values it most (or more) because the bargaining range for the price of the land will be somewhere between what the owner values it at and what the purchaser values it at.  There can only be a sale if the latter is higher than the former.  If we conceptualize free expression as property rights, then a second user who wants to make use of the copyright can get a license for it if she values it more.  The insight of the Coasean bargain is that initial entitlements (property rights) are irrelevant in a world of no transaction costs because parties can bargain and trade property rights to achieve maximum social value.  All second users can always license a copyright if the original owner is willing to do so.  Alice Randall, as a second user wishing to take advantage of a property right in First Amendment free expression, could have asked the copyright owners for a license to the original if she wished to critique it.  Of course, there are several concerns I am ignoring here.  First is the basic assumption about no transaction costs.  These costs are highly situation dependent and few generalizations can be made, except that in many instances relating to copyright infringement they are unlikely to be that high.

Second is the concern about income distribution.  Absent transaction costs, the minimum price of a license would be the value to the copyright holder of his property.  Even if a second user could make better use of the property or copyright and thus value it more, he may not have the income to undertake such a venture.  I don’t have a great response to this except to say that we (generally) have a functioning capital market that allows developers to borrow again future expected gains.  The second user could tap such markets.

Lastly, Netanel notes that creators often have more than economic gain at stake.  They care about reputation and about moral rights.  It may be that the copyright holders of Gone with the Wind would not license to Randall for any price (or only for an extremely high price).  They would incorporate into the license price not only the economic value of the work but also some attachment to it, its well-being, and the reputation that the work reflects on the author / copyright holder.  I doubt that we should be dismissive of such desires.  They are as much a property right, especially given our recent discussions about the right one has to her own privacy, as economic gain.  If copyright holders price them at X dollars, I would want Netanel to provide a good argument for why he thinks they are over-priced.  He notes that Randall’s criticism does not really affect the work itself as it is in a way complementary (not complimentary) to it, but I don’t buy this argument.  The reputation of the work does suffer from the criticisms levied by Randall.

Conclusion

Netanel argues on p.50 that he mostly wishes to advance second use that is “non-rivalrous.”  Therefore, he would probably exclude second use that economically infringes on the creator’s copyright and creates these economic disincentives.  I think he would generally exclude those that directly harm the moral rights of creators as well.  I question what second use is left over then.

The Struggle for Balance

                An important point worth underlining in the copyright’s paradox debate is how the internet, in giving access to potentially infinite amount of information, can belie the true impact of stronger property rights in copyrighted works. The analysis presented by Netanel does demonstrate a significant decrease in the realm where society may use copyrighted content without the explicit consent of copyright owners.  But the most interesting aspect of Netanel’s argument (that in the modern era the law is inappropriately casting copyright protection as a property right) is that the transformation has hardly been felt by society. Relatively to the potentially infinite amount of copyrighted/creative content we can now access via internet age, the trend towards treating copyrights more like a property right seems to have imposed a very small quantifiable burden (if any) on society. In other words, whereas in a world without internet stronger property rights in copyrighted works would impose higher costs, such costs are less noticeable, if at all, when the individual has access to exponentially growing amount of content online.

The Danger of the Distortion     

This distortion is dangerous in that in the process there is a risk of failing to perceive an imbalance between society’s interest and private rights. The constitution gives congress the authority to enact legislation that provides authors exclusive rights to their works in order to promote progress in the arts and sciences. Therefore, the monopoly rights granted in copyrights should be looked at in the context of what promotes progress that is most beneficial to society. Although some may believe in economic or efficiency justifications for giving authors stronger rights to their works, the founders had society’s interest at heart when giving congress the power to grant intellectual property rights. Private rights are an essential component to incentivize optimal progress in the arts, but the balance between private rights and society’s interests, it seems, needs to at or close to equilibrium in order to obtain the optimal progress level.

The Essential Question

Needless to say, defining a precise optimal balance is a daunting if not impossible task. But we want to be close. The main concern with the increased power granted to authors in last couple of decades seems to lie with the question of whether property rights in copyrighted works substantially favor private rights at the expense of society’s interests. As mentioned above, an overall balance between private rights and society’s interest is required to achieve optimal progress, and it is the struggle to ensure balance that seems to be at the center of Netanel’s narrative.

Potentially Untenable Assumptions

Unfortunately, Netanel he has not been clear or provided sufficient evidence to convince the reader that this balance has been threatened by the stronger property right protection in copyrighted works. Through anecdotes and analysis in the first chapters, it is obvious that Netanels would answer that, yes, the current balance favors private rights at the expense of society. But hand picking a few examples does not prove this point. The credibility of Netanel’s book will hinge on whether or not he can convince the reader that the evolutions of copyrights into rights that resemble property rights rather than traditional copyrights does in fact favor private rights at the expense of society’s interest. 

At first glance this seems to be the case. On closer analysis, however, the answer is less clear. One could argue, for example, that the internet has made copyrights less valuable/profitable to authors by increasing society’s access to both copyrighted works at minimal or no cost and by increasing access to non-copyrighted works. If this is empirically true (and I would be interested to find out if people think it is) then the expansion into stronger exclusionary power for copyrighted works is merely restoring the balance between private rights and society’s interest to the traditional level. Regardless of whether or not this is empirically true, it would be disappointing for Netanel to assume that there is now an imbalance between rights of authors and society’s interest without analyzing the effects of technological development such as the internet on that traditional balance. Perhaps it was technological changes that created the imbalance which led to stronger property right protection of copyrights and not the other way around.

Navigating the Matrix of Speech Entitlements

Netanel urges the reader to interpret copyright in light of First Amendment principles (10). He takes the goal of copyright—to “promote the progress of science”—seriously. In Copyright’s Paradox, Netanel paints a picture of copyright as a limited federal grant, which he contrasts with the view that copyright constitutes a property right. In this light, copyright is a way to create positive financial incentives for creating original work without the concurrent burden of direct government funding (6). Direct government support interposes government officials in the creative process. Therefore, in Netanel’s view, copyright is a useful tool to underwrite creative work while avoiding any speech-stifling direct government participation (5). Nevertheless, in characterizing copyright this way, Netanel fails to acknowledge a few main issues. First, he gives short shrift to the idea of expression as integrity and the problems with shifting the burdens of enforcement. Second, he doesn’t address the ways that technology has changed the nature of the referents that make up expressive diversity. Finally, he downplays the economic harms that come from infringement.

Expression as Integrity
Netanel quotes scholar Justin Hughes, who argues “Freedom of expression is meaningless without assurances that the expression will remain unadulterated. Free speech requires that speech be guaranteed some integrity (49).” Netanel gives some credence to this argument, but counsels against injunction-induced enforced silence.

Frank makes a good point that this approach does little to address the reality of the strong, perhaps even idiosyncratic, preferences of some authors to keep their work unadulterated. Frank brings up the problem of uneven enforcement. Netanel addresses this point obliquely by discussing the Google opt-out solution. In this light, the copyright owners who do not wish to be included in the Book Search Project can request to be excluded. An opt-out solution would mitigate the problem of uneven ex post enforcement by allowing owners to ex ante establish their preferences. This would effectively reduce the chilling effect of uneven, and very severe, enforcement. The objection of the Authors Guild to the Google Project is telling. They argue that this approach turns “every principle of copyright on its ear” by shifting “responsibility for preventing infringement to the copyright owner rather than the user (26).” Netanel’s characterization of copyright seems to support this switch. In his view, unlike a strong property right, copyright is a limited federal grant. It is consistent with this approach to oblige the grantee to enforce his/her rights.

If we take this approach, however, we might find that placing the enforcement burden on authors has its own chilling effect. A default rule that requires authors to value their own copyright might disadvantage smaller authors who have less bargaining power and crave access to audiences. We might see that we reduce the financial incentives for the very parties who need the most encouragement to contribute their creativity. Furthermore, the opt-out regime also does not allow authors to carve out and define their preferences as finely as a licensing system.

Expressive Diversity in the Internet Age
Precise copying is essential to expression in many circumstances, in Netanel’s view of the world. Such copying allows for “expressive diversity” by presenting an effective way to counter and reshape existing expression. In Netanel’s words: “Like Alice Randall, oppositional speakers recast or appropriate seminal works of popular culture in order to subvert prevailing understandings, make an unpopular political statement or present an iconoclastic artistic conception (40).”

Copyrighted material therefore provides an easy shorthand for expression. Netanel writes that “those who express themselves through widely understood cultural referents often have little choice but to invoke mass-media images, symbols, characters, stories, and icons (43).” This view certainly has legs in traditional literature, music, and painting. Netanel points out that authors from Shakespeare to Kafka have used existing materials extensively. Modern art also privileges this form of recycling and reconceiving familiar cultural referents. Gerhard Richter’s reimagination of Duchamp’s Nude Descending a Staircase is one example of this trend. Yasumasa Morimura has made a career out of placing herself in iconic paintings and images. She has placed herself in Manet’s Olympia, Frida Kahlo’s self-portraiture, and Goya’s Duchess of Alba.

Netanel’s characterization seems in line with the analysis in a recent review of the Michel Gondry movie “Be Kind Rewind”:

“It goes without saying that this is a naïve, utopian point of view. The travestied films in ‘Be Kind Rewind’ are the intellectual property of large corporations (as is Mr. Gondry’s movie), and you can be sure that teams of lawyers were consulted and paid before the Sweding [the movie’s term for recreating copyrighted movies] went very far. But ‘Be Kind’ hardly pretends otherwise. Instead it treats movies as found objects, as material to be messed around with, explored and reimagined. It connects the do-it-yourself aesthetic of YouTube and other digital diversions with the older, predigital impulse to put on a show in the backyard or play your favorite band’s hits with your buddies in the garage.”

In this light, the practice of sampling and using art pieces as “found objects” mirrors the expressive impulse to perform existing plays and cover hit songs with your garage band. This description, however, does not fully capture the Internet-spawned culture of sampling.

The Internet has widened the understanding of what is a cultural referent. No longer do we see referents limited to major films and iconic pieces of art. Today, when a news story breaks about the video resume of an egotistical college student, we see YouTube parodies and invariably someone will set the video to music. We may not worry about the ability of the major movie company or the iconic artist to continue to capitalize on intellectual property. The struggling artist or new entrepreneur might be a different story.

Economic Harms
Just as Netanel surely overrates the aesthetic value of MySpace pages, which I think the seminar members have already agreed are an audio-visual abomination, Netanel also surely underrates the economic value of certain digital content. He writes, “Undoubtedly, only a small percentage of a typical teenager’s 10,000-song collection, downloaded through unlicensed peer-to-peer networks, actually displaces music that the teenager could or would otherwise have bought” (47).

As a threshold matter we can materially distinguish the displacement effect of downloading whole songs from sampling copyrighted sounds or images. A sample does not provide a ready substitute—television shows do not likely worry about the market effects of a fleeting glimpse of a character in a documentary. By contrast, the recording industry has been seriously affected by unlicensed peer-to-peer sharing and piracy.

We also might predict that sampling (as opposed to wholesale copying) would more readily lead to private solutions. Frank is right to point out that the clearance problem may be finding player-mediated solutions. He describes how the players in the documentary world have created a set of best practices by way of guidance. Netanel also alludes to other extra-judicial solutions that are emerging to the licensing and clearance problems. He discusses how the industry attitudes have changed over time. He writes, “Warner Music, for instance, broke ranks with other major labels to license YouTube to show both Warner Music videos and user-created clips that incorporate Warner music. And after threatening to sue YouTube for ‘tens of millions of dollars,’ Universal Music followed in Warner’s footsteps…” It could be that we simply are seeing the beginning of a turning point in terms of industry attitudes.

The problem of the digital exchange of material that does displace purchases is one that we still must grapple with. This distinction matters and is one that Netanel should deal with if he is seriously committed to properly incentivizing creative output.

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.

 

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.

I Want to Believe

Reading the first three chapters of Netanel’s Copyright’s Paradox, I felt sort of like I was cheering for my favorite basketball team, the Washington Wizards, in the NBA playoffs last week. The Wizards are my hometown team, and so I naturally feel an allegiance to them and a desire for their ultimate success. I like the team’s players for the most part, and their style of play. During their playoff loss to the Cleveland Cavaliers, however, I was bothered by the way a few of the players went about their business, busy slinging trash talk at their opponents and making unjustifiable expressions of triumph in a series they never led.

While reading chapters one through three of the book, I felt a natural empathy with Netanel’s general goal of reconciling the fundamental tension between the First Amendment and Intellectual Property Clause of the Constitution, and his basic sense that copyright enforcement has disrupted the original balance that the regime intends to strike. While Netanel didn't hurl trash talk or taunt those who disagree, I was put off by his less than convincing establishment of crucial points. With these bases of argument somewhat undeveloped, I fear his likelihood of persuasion later in the book is as strong as it was that my Wizards would rally for a series victory. (They lost in six games, and deserved it.)

To evaluate Netanel in this first portion of the book, I think it’s necessary to assess what I perceived as his two main points: an uneven balance and the failures of derivative works and fair use.

Point One: An Uneven Balance

Netanel’s first point is that the current state of things tips the balance of power or advantage far too far in the direction of the copyright holder. This, he argues, “too often . . . stifles criticism, encumbers individual self-expression, and ossifies highly skewed distributions of expressive power” (p.5). Fair enough. This is not a bold or outlandish claim, and he’s not alone in his sentiment. I’m prone to agree with him. What matters more, though, is Netanel’s ability to establish this point as verifiably true to the reader—and in that regard, I found him wanting.

Netanel argues that the source of this problem is that “copyright is increasingly treated more akin to conventional property than a finely honed instrument of expressive diversity” (p. 7), which I think, given the current length of copyright rights in light of the Sony Bono Copyright Term Extension Act, is a valid position. The scope—particularly temporally—of current copyright rights is so extensive as to significantly cut against the notion that rights are granted only to the point necessary to induce creation. I have no problem with this general assertion. The problem, I think, comes in how he goes about proving it to the reader. Yes, you guessed it—more anecdotes.

By trotting out a series of examples, Netanel seeks to in part have his point made for him. Now, I have no general aversion to anecdotes as used to illustrate an explicit and well-crafted point. They’re an invaluable underscore to theory and rhetoric. But when those examples don’t fully illustrate the point, and are thrown out to do the convincing in place of robust explanation, I think the author’s persuasive force is significantly limited. In reading through the anecdotes, I found it hard not to wonder two things. First, was he cherry-picking? There will be, after all, examples in a crude and imperfect regime such as copyright’s, instances in which we feel the balance wasn't struck precisely where we would’ve hoped. Second, I felt that some of his examples were both unhelpful to his cause and betrayed a partiality that damages his credibility as an unbiased analyst and problem solver.

Take his Google Book Search example.  Throughout his discussion of the topic, Netanel bemoans the fate of a potential lost “dream of creating and making available on the Internet a value-added virtual ‘card catalog’ for the complete collections of the world’s greatest research libraries” (emphasis added). His entire tone is one of idyllic anticipation at the notion of such a resource, dripping with justification for Google’s flipping around of the opt-in use paradigm, and demonizing of the opposition.  This clearly partial prose takes an obvious side, but more importantly, fails to explain how the balance of rights and use at play here is clearly inappropriate. All Netanel does is wring his hands at a lost “dream”, failing to substantively address the fundamental flaws in the system that make the controversial status of Google Book Search undesirable from an actual legal perspective. Just because copyright limits Google's ability to produce a complete library of the world's books doesn't make it per se problematic; what matters is the balance it strikes, and whether it unduly and unnecessarily limits creations, such as Google Book Search, that we could and would get with a regime finely-tuned to incentivize creation while providing the most welcoming climate for subsequent use, re-use, and creation.

Finally, in summing up his chapter of anecdotes, Netanel decries the fact that in our current regime, rights holders hold at least some of the cards. He laments that “[s]ome credibility, some understanding, some communicative force is lost when a speaker is deprived of the use of particular words, images, or sounds” (p.29). While this is clearly the case, it’s also the balance as struck from the beginning of the regime—not evidence of some overzealous creep of rights holders and courts in the direction of property-esque, absolutist copyright control.

Point Two: Derivative Works and Fair Use

Without coming out and saying so explicitly, Netanel seems most concerned with current restrictions on derivative works, the production of which are the exclusive right of the rights holder, per Section 106(2) of the Copyright Act. Repeatedly throughout the first three chapters, Netanel stresses that building upon the works of others is at the core of creation, and that such second comers are every bit as creative as those upon whose work they build. This is the realm of derivative works.

As with his general (if unproven) contention above, I tend to agree with Netanel’s aim here, generally speaking. I’m concerned, however, that these sentiments are sprinkled throughout his prose and not organized into one single explanation of this concern. Perhaps such an explanation will come later on in the book, at a point where he addresses particular statutory problems and potential solutions, but I would have liked to see it more explicitly discussed early on as a jumping off point for his arguments.

It’s not hard to piece together Netanel’s view that the exclusive rights to derivative works are perhaps the single-most troubling aspect of the current regime. His selection of anecdotes helps make this point, as the Free Republic Web Site, Hip-Hop Music, Air Pirates, and Mien Kampf examples help illustrate. Later, concluding his chapter of anecdotes, he states: “Lost . . . is any recognition that speakers who use existing copyrighted works in conveying their message are often no less deserving and, indeed, no less creative than the author of the prior work.” Again, I agree with this sentiment, but I feel that Netanel loses force by not organizing this scattershot disapproval of derivative works restrictions into a cohesive, free-standing argument.

Netanel also seems concerned with the failures of fair use. This, again, is not a controversial position. Crucial to the dissemination of ideas in a regime of exclusive copyright grants is the ability of subsequent creators to mix, match, and avail themselves of portions and pieces of prior copyrighted works. In his Homer Simpson example, Netanel tells us a story about a rights owner’s refusal to allow a small and innocuous use, and that the deep pockets of the rights holder ruled the day, given the high costs of litigation and its status as the only forum for resolution. And, in his hip-hop music example, Netanel points out that the cost of all licensing fees necessary to create some hip-hop tracks would outweigh potential profits, thus destroying any creation incentive. What Netanel doesn’t do, though, is explain how this state of things is a manifestation of a regime which now treats copyrights as akin to a property right. While this is undesirable, it’s unclear to me how—as problematic as this scenario is—it is the result of a distorted and inappropriate application of current law. I think we all wish that fair use were a more predictable standard, that Section 107 were better written, and that it afforded subsequent creators the ability to confidently incorporate portions of other works into their own without fear of attack by overzealous rights holders. I don’t, however, see how Netanel’s mere pointing out of the problem’s existence does the job of underscoring his thesis that things have really worsened in recent years; this problem was born with fair use itself.

Much Confusion About Copyright

Introduction

After reading the first third of Neil Netanel's Copyright's Paradox (and then some), I am starting to believe that the book will treat me to a handful of good anecdotes, a buffet-style presentation of a number of theories of speech and property rights, and some talking points in support of favoring each over the other, but not much more. That is, I am not sure Netanel really has - or at least presents - a unified theory of how a society based on the United States Constitution ought to weigh the competing aims of guaranteeing free expression and encouraging that expression by offering speakers a bundle of rights in their works.

I think that the weakness of Netanel's book is in its failure to articulate clearly what understanding of "free speech" Netanel believes is most accurate. Rather, Netanel attempts to leave that an open question (p. 31), but this produces incoherent arguments, at times - some of the examples he gives of when speech should or should not be protected depend upon one or another view of what constitutes speech. By poking at some of these weaknesses, I am hoping to offer (to myself, at least) more structure for understanding where Netanel is going than he himself provides.

Great Expectations

I confess that I started reading Copyright's Paradox with some fairly definite expectations. I expected it to focus on the tension between copyright protections and free expression, of course. I also expected him to try to resolve that tension in a way that tilts the current legal balance one way or the other. This necessarily meant Netanel would have to define both copyright and "free speech." He also would need to explain the core values at stake in each and either pick a pair of theories which could explain each or provide some heuristics for doing so.

Startling Commentary

I have been a little disappointed in a few of these expectations. I was reading this book on an airplane, and it seemed the text was cruising along more smoothly than the aircraft, until I hit page 11. I thought I must have misread the following excerpt, due to turbulence:

[C]opyright's fundamental ends, like those of the First Amendment, are to "Promote the Progress of Science" by spurring the creation and widespread dissemination of diverse expression."

I hope that Netanel is simply saying that the First Amendment is meant to "spu[r] the creation and widespread dissemination of diverse expression," not that it is primarily about promoting the progress of science qua science. If he means the latter, then he is adopting a view of the First Amendment that has little support in either caselaw or academic circles. Also, I was more than a little bothered by the omission of the phrase "and useful arts" as one of copyright's focal points.

My suspicion that something was amiss grew deeper when Netanel said he did "not intend to present a normative argument in favor of one theory [of free speech] or another." (page 31.) I did not and do not understand how, exactly, Netanel is going to make a compelling argument about what types of speech rights should trump copyright concerns without a clearly articulated theory of what speech is. For reasons I explain below, this conceptual void undermines the rest of Netanel's argument.

The Hunt For a Compelling Anecdote

Both in the first third of the book and throughout the remainder, Netanel repeatedly cites a handful of examples, with the idea that they will gradually convince the reader that modern copyright protections intrude upon First Amendment guarantees. These examples - most notably the Air Pirates' Disney spoofing, Jon Else's documentary on Wagner's Ring Cycle, Biz Markie's musical sampling, and Alan Cranston's translation of Mein Kampf - simply do not hold the force Netanel might like them to have. I did not spend extensive amounts of time researching the stories behind these anecdotes, but none of them seemed persuasive to me.

In the Air Pirates case, the Ninth Circuit held that the defendants copied Disney characters exactly, making the copying more than was necessary for the purposes of parody under any of several tests. Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978). In other words, the Air Pirates had not produced a pure parody, evoking but distorting certain features of the Disney characters, but rather had simply appropriated those characters and put them in incongruous situations. While the opinion has flaws, it is not unreasonable to argue that this is beyond the limits of free speech - evocation is acceptable, while outright theft might not be.

The Else case is unfortunate, though Fox should not be compelled to license at rates affordable by producers of documentaries. The logic behind compelled licensing to academics, critics, and all other comers, whatever their purposes, undermines the value of copyright protection to a great degree. For example, a poor student might want to post Simpsons videos on YouTube, under the guise of providing textual commentary at the bottom of the screen. If the copyright holders are forced to license this use at price the poor student can afford (likely a very tiny amount), not to mention to many others like him, the commercial value of the Simpsons show may be undermined to a very great degree. This is the antithesis of what copyright aims to achieve, namely encouragement of production through protection of one's creations.

Biz Markie's case is, at least to my mind, a simple one. While the argument that Else's documentary had greater commercial appeal because of the Simpson's background footage is absurd, it is obvious that sampling O'Sullivan in a hip hop song will impact the commercial value of the new work. Imagine instead that Biz Markie had sampled only the one word "unforgettable" from Nat King Cole's classic of the same name, playing that excerpt every 12 seconds. Can there be any mistake that Biz Markie's track would be strongly identified with Cole's work by the average listener? Netanel seems to believe that artists should be able to appropriate sounds in this way as part of a social commentary. Indeed, he even appears to the extend the concept of speech to "publishing" a list of one's favorite music in the form of a downloadable collection of tracks. This definition of speech is not one that is widely shared, however. We might be annoyed by a copyright holder's decision not to license a song for certain uses, but I think very few of us agree with Netanel that publishing a "list" of tracks via sharing MP3 files or using snippets of a classic song without permission really constitutes protected speech.

Perhaps I am wrong here; I look forward to finding out in class.

Cranston's case, at least on the surface, compels more sympathy and real concern. When I read the story as told in Copyright's Paradox I went on the defensive, thinking of all the things that Cranston could argue in court: he infringed a German copyright, not an American one, for which an American court was forum non conveniens; the American publisher lacked standing; perhaps Hitler had not conveyed rights to bring suit; etc. Apparently, however, Cranston's chief defense was that the invasion of Austria forfeited Hitler's copyright, at least according to Cranston himself. Indeed, the opinion in the case indicates that the only defenses raised were a challenge to the validity of the copyright - an issue already decided by the Second Circuit - and the assertion that the two translations were not in competition, which is, of course, ridiculous. Houghton Mifflin Co v. Noram Pub. Co., Inc., 28 F.Supp. 676 (S.D.N.Y. 1939). That said, the court did not even address standing issues, the assignment of rights from Hitler to the plaintiffs, or the traditional requirements for issuing an injunction. In other words, this case - which stopped at the issuance of a temporary injunction - probably cannot be read to stand for very much. The defenses raised were not the best available and the court's opinion overlooked some important questions it could have raised sua sponte. So, before we feel too bad for Senator Cranston, we might remember that even the best cases can be lost by simple failure to see them through competently.

Non-Copyright Non-Paradoxes

I absolutely agree with Netanel's later points that there are free speech problems in legislation like the DMCA. The fact that the only fair use allowances in that legislation fail to allow for legal methods of access to an encrypted work, for example, should bother us. But this is not entirely a copyright question - the DMCA is, in many ways, its own animal - and it is not exactly a paradox. The DMCA is mostly a topic for the next two weeks, but I bring it up because it is where Netanel is going.

Yet any arguments about what does and does not infringe unconstitutionally on protected speech must stand or fall on what one thinks protected speech is. Whether it is the Air Pirates, Cranston's translation, or an encrypted PDF file, the question, "What is speech?", must be answered before we attempt to decide what is a permissible restriction and what is not.

Final Thoughts

Netanel's book is interesting if for no other reason than that it grapples with an often-overlooked tension in both constitutional and statutory law. It suffers, however, from a timidity in its argument. In his efforts to make a generalized argument that cannot be undermined by a collateral attack on his definitions, Netanel chooses not to endorse any particular theory of what speech is or of what limits can be placed on it in the name of copyright. Rather than a collateral attack, then, his book is open to a full frontal assault, not for overreaching, but for lack of courage.

I think we are still going to have great discussions on this work, but I hope we, as a class, will hammer out more clearly what we think the First Amendment stands for before attempting to argue for or against particular limits on speech.

Looking at it another way…

     This first portion of Netanel’s text describes in brief some of the collisions between the copyright law and the First Amendment. In offering peppered examples of potential tensions without adopting solid theory of the First Amendment’s bounds, and by holding the normative discussion to later chapters he renders his first three chapters largely immune to strong criticism, simply because we aren’t sure what his arguments are yet. That being said, I’ll take a moment to discuss some of my own thoughts on copyright and free speech in the context of Netanel’s text.

Maybe Not the Most Popular of Views

     I’ll premise this by stating that I don’t have a First Amendment background, so the suggestions I offer here are very likely very wide from the mark of current First Amendment jurisprudence. I write this section because after reading Netanel’s text, I wasn’t terribly compelled by the anecdotes he offers to win us over to this side. Its not that I think he’s wrong necessarily, but the following describes why I was not particularly moved.

     That being said, it might be useful to divide the issues of one example: the Mickey Mouse Air Pirates. How we frame the First Amendment Question seems critical in the analysis of how far it ought to reach into copyright’s domain. Netanel might conflate the two a bit overmuch, but again it’s hard to tell since he hasn’t adopted a particular theory of the First Amendment. I suggest looking at the First Amendment implications as containing at least two separate levels of concern.

     Borrowing a bit from Copyright to interpret the First Amendment, I think we should focus on the difference between ideas and expression. In the case of the Air Pirates we have at the idea level a parodic critique of American values, a form of political speech or perhaps a matter of individual autonomy with strong First Amendment implications. On the other hand is what we can call perhaps pure copyright value- expression and fostering of the creativity for its own sake or more broadly the cultural benefit of society (this may have some first amendment concerns, but as pure expression I feel is distinctly weaker than protection of the ideas behind the expression).

     In this instance, forcing the authors of the comic to express their opinions by other means, or perhaps in a format more easily protected as a legitimate parody (although I’m not sure what the state of parody fair use was in the 70’s or the actual extent of copying engaged in by these authors) wouldn’t in an absolute sense necessarily do significant harm to the pure First Amendment concern if we conceive of it as protecting the content of ideas in their speech- content, which could still be communicated with less obvious references to Disney copyrights.

     The stronger issue implicated feels like the creative expressive side- creation for the sake of creation, which although arguably does have some strong First Amendment concerns insofar as we conceive of it as protecting individual autonomy or expression, rather than political discourse, these concerns don’t loom as large in my mind and are probably overshadowed by whatever we might have to say about moral rights of the first author. In instances where our expression threatens to step on the toes of an original author (or successor in interest), I think the First Amendment should not be too heavily concerned with how we are permitted to express our ideas, so long as we are able to communicate them.

     Actual instances where the idea and the expression are so intertwined that the idea is lost without the vehicle of expression borrowed from the first author, I think, would be a more compelling case, but also fewer in number. I make this assumption based on the lack of what I would call compelling examples provided by Netanel. Perhaps the translation of Mein Kampf by Cranston falls into this category, but that case is so unique in its historical context and of course he wasn’t prevented from printing his own anti-Nazi propaganda with less infringing material. Certainly, Else didn’t lose much of the creative or expressive value of his work by digitally removing 4.5 seconds of Homer Simpson.

     The reach and affect of the second author’s work may be diminished, but its essential core, its worth measured by the ideas in its content should largely remain unchanged. Essentially the loss seems more of a cultural loss in the form of a different (or even left unmade) creative work, rather than the loss of the value behind the ideas in their speech. It’s not clear to me why the law should organize itself around maximizing the efficacy of a given point of view, at the expense of value to the original author.

     Netanel may be suggesting that this would be a legitimate end of the First Amendment in his discussion of “Expressive Diversity” on pg. 40.  “A public discourse comprising multitudinous genres and formats but that, because of copyright, lacks sufficient opportunities for effective, oppositional expression would fail to meet the goal of expressive diversity”. [emphasis added]. 

     While I agree that a vibrant and diverse body of critical literature/film/etc. is preferable for a First Amendment concerned with fostering public discourse, but it seems like a step apart to go further and say that such preferences override the concerns at operation in the Copyright Act. His references to subsidized mail rates for newspapers (pg. 36) are interesting, but I’m not sure that those policy choices are necessarily rooted in the First Amendment as I am unfamiliar with the legislative history.  Furthermore, postal benefits were conferred by cross-subsidizing from the postage rates charged to everyone using the mail, rather than by forcing a small class of content producers to bear the burden, while only sharing in part of the benefit.  That situation is true with all government spending on some level, but in the case of copyright, the scale or ratio of disproportion is much higher.

     His point certainly isn’t invalid, I’m just not convinced we want to take the step of invoking the First Amendment as the vehicle to achieve the end, rather than a general policy preference.  However, since we don’t know yet how far he’s going to take his First Amendment argument, its hard to know what to say.
    

    Lastly to this point, I won’t assert, and hazard a guess that the position might be untenable under close scrutiny, that as an empirical matter most authors do need the powerful economic incentive to create provided by the Copyright Act’s long-running property right in original work. But I do offer up the suggestion (while leaving the duration of the right aside) that having strong property rights in copyrighted work does comport with our sense of entitlement to the fruits of one’s labor, possibly so much that we aren’t as concerned with the marginal instances of preventing some expressions from reaching the marketplace in a given form. If anywhere, I think the current system is most vulnerable to attack on grounds of duration.

Litigation

     The point on which I agree with Netanel most strongly is the problem of getting legitimate uses to market, that is to say the actual navigation of cease and desist or takedown orders by the legitimate user. A limited solution that made clearer the bounds of fair use does seem preferable to prevent the kind of chilling of speech powerful publishers can force on smaller content producers. My skepticism is limited to any broadening of the right- say to include Google’s, Cranston or Republic’s uses.

Give and Take

     Insofar as Netanel’s position is correct that copyright is stepping on the toes of the First Amendment, I think one interesting solution would be to move to a broader regime of compulsory licensing. Such a system is already in place for such things as cable television provider access to broadcast programming and a limited system is in place for musical compositions. It would seem a fair trade off in some circumstances, as it would dramatically reduce the shoe leather transaction costs of authors like Jon Else, and if tailored properly could reduce the actual cost of the license too.

     There certainly are a number of problems with such a scheme, but it seems to be effectively what he is advocating in referencing Else, Free Republic, Cranston and possibly Google (if indeed we were meant to sympathize with their position)- this or perhaps fair use as a matter of law, without a payment to the first copyright holder. I can agree that 4.5 seconds in the background of a documentary would warrant a finding of fair use, or should fit within a compulsory license regime, but I wonder about drawing of the boundaries for that system. I’m not sure how any rule could sweep up enough of the conduct he describes to fix the problem, without rendering itself susceptible at the margins to costly litigation over the boundaries, leaving us back where we started with fair use- letting powerful publishers threaten authors into not creating. At that point it almost seems a problem with our court system and financial inequities between potential parties. I’d love to see a solution though.

Free Speech and Long-running Copyright Control

     Largely ignored so far are the economic underpinnings of the Copyright Act. Whether or not FOX needs $10,000 as a minimum license fee from every minor user as an incentive to continue producing “The Simpsons” is probably answered in the negative. But it seems a legal fiction that we’re stuck with because we hesitate to say “you’ve made enough money already”.

     On that note, I think an area to attack the copyright law on speech oriented grounds, is against its duration- life plus seventy years is a rather long time. I won’t go into much detail since I don’t actually understand the economics behind it (I know Prof. Picker will have something to say on this note), but my sense is that in its current length, the actual economic incentive value of a copyright has nearly the same economic incentive as a perpetual copyright- even were we do dramatically reduce the term of years offered, the same statement would hold true. This is besides the point that it seems very few copyrights are relevant for that long. Apart from a few cartoons created in the early half of the 20th Century, it’s not clear that many copyrights need that much protection and the duration is chilling speech for the benefit of a few super-winners.

     This is what made The Wind Done Gone such a compelling example in my mind. It would be interesting to see in the discussion a proposal of rights that decay over time to reconcile the economic realities with the First Amendment concerns, rather than a uniform property right that simply expires in a form unchanged from its conception. I hope Netanel picks up on this point a bit later.

In sum

     Overall I think the text thus far is pretty good and doesn’t have much to say that is terribly controversial. I’m not sure that I agree with the particulars of what he is suggesting, but then given that we’re still uncertain as to his position, I don’t think I could be certain.