2009 IP Club Lecture

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  • 1. A 2009 presentation to the Rutgers Law IP Club
  • 2. User-Generated Content & Virtual Worlds, 10 Vanderbilt Journal of Entertainment & Technology Law 893 (2008).Digital Attribution, 87 Boston University Law Review 41 (2007).Amateur-to-Amateur (with Dan Hunter), 46 William & Mary Law Review 951 (2004). 2
  • 3. Be careful with social software. 3
  • 4.   Incentives theory  A brief history   Ancient copyright   The Stationers’ Company   The Statute of Anne   The United States Constitution   Steady expansions in 19th & 20th century   1976 Act   1998 revisions   International law 5
  • 5. (1)  literary works;(2)  musical works;(3)  dramatic works;(4)  pantomimes and choreographic works;(5)  pictorial, graphic, and sculptural works;(6)  motion pictures and other audiovisual works;(7)  sound recordings; and(8)  architectural works.Or, colloquially, books, music, plays, films, pictures, photographs, sculptures, building, computer software, etc. 6
  • 6. Thanks to Tom Bell
  • 7.   General Rights   102 – Base Requirements   106 – Exclusive Rights   106A – VARA   107 – Fair Use  Scope & Limitations   108 - Libraries   109 - First sale   110 – Non-profit Performance   111 - Television   112 - Television   113 – VARA   114 – Music: Sound Recordings   115 – Music: Cover versions   116 - Music: Jukeboxes   117 - Software   118 – Public Broadcasting   119 - Television   120 – Architectural Works   121 – Blind & Disabled   122 – Television
  • 8.   Authors create works due to the incentives offered by Creators copyright’s prospect of financial reward. product   Industry professionals payment purchase the content from authors, package it in copies, market it and distribute it. Industry Professionals They are the expert commercial intermediaries.   The public benefits fromproduct payment having access to a broad selection of high quality content. Consumers
  • 9. Creators product payment Industry Professionals Congress seems to regard the entertainment industry as the chief “client” ofproduct payment copyright legislation. Consumers
  • 10.   To what extent does the story of the Stationers’ Company explain the contemporary landscape of copyright?   Have we returned to a licensed monopoly right?  To what extent is copyright law’s historical expansion (in scope and duration) attributable Lockean, rather than utilitarian, intuitions?  1976 Act? 1998 Acts? Industry Professionals product payment 11
  • 11. “The VCR is to theAmerican film producerand the Americanpublic as the BostonStrangler is to thewoman alone.”-- Jack Valenti (MPAA) 12
  • 12. Framing the problem: New technologies, such as Creators cassette tapes and photocopiers, allow consumers to create and product payment exchange copies of works, depriving the copy licensing industry (and the creators Industry Professionals who rely on the industry for revenue) of their profits.Answers to piracy: product payment Expand rights Strengthen enforcement Consumers Criminalize infringement Regulate Technology (DRM) Piracy 13
  • 13. 14
  • 14. Principles1)  Copyright law creates private property rights in information patterns2)  This exclusive rights are normatively desirable and benefit society3)  Copying of information patterns should occur only when authorized by the proprietor 15
  • 15. Principles1)  Information patterns should be shared for purposes of collaboration2)  Copying of information patterns should be fast, simple & transparent3)  Central control is not desirable – the power in the system should be at the endpoints 16
  • 16.   Widespread copying threatens to destroy the business models of the [music / film / software] industry.  Major lawsuits against tools/platforms that facilitate copying: Napster, Grokster, YouTube   DMCA 512 provisions  Congress is generally sympathetic ($$$) 17
  • 17. 18
  • 18. What if networks facilitate “amateur” authorship? Creators Creators product payment Industry Professionals Industry Professionals product payment Consumers / Creators “Prosumers”? Consumers Piracy Sharing 19
  • 19. What if networks facilitate “amateur” authorship? Creators Industry Professionals Consumers / Creators “Prosumers”? Sharing 20
  • 20. What if networks facilitate “amateur” authorship? Creators Industry Professionals Consumers / Creators “Prosumers”? Sharing 21
  • 21.   Are there no implications?   Is non-commercial copyright production legally insignificant? Creators  What does this say about the authorial incentive theory?   Do the implications turn on issues of quality? Industry Professionals   Do the implications turn on issues of collective coordination?  What does this say about the complexity of copyright law?   Does it matter that amateurs do not seem to understand copyright law? Consumers / Creators “Prosumers”?  What about technology? Sharing 22
  • 22. Creators product payment Industry Professionalsproduct payment Consumers Piracy
  • 23. CreatorsIndustry ProfessionalsConsumers / Creators “Prosumers”? Sharing 24
  • 24.   A fan website with multiple authors collects encyclopedic details about the Harry Potter series.   The Harry Potter Lexicon http://www.hp-lexicon.org  Formerly praised by J.K. Rowling as a valuable resource  Lawsuit by Rowling claims copyright infringement  District court determines this is not fair use  Subsequently rewritten to conform to court’s standard Not Fair Use 25
  • 25.   Lenz uploads a video of her toddler dancing to a Prince song on the YouTube  UMG removes the video from YouTube via the DMCA notice & takedown provisions  Lenz countersues claiming that fair use clearly permits her to post the video, hence the Clearly Fair Use notice was in bad faith.  Following a motion to dismiss, the court allows the claim to proceed.  Who controls the shape of online tools? 26
  • 26.   Fairey presents himself as a rebel “street artist”  He often appropriates images for his work  Found and changed a photo of Obama via a Google search  Iconic poster distributed “virally” over the Web Fair Use?  Original photograph used by Fairey ascertained by bloggers (originally denied by Fairey) 27
  • 27. 28
  • 28. The Public Web•  Optimal for maximum distribution of information•  Vulnerable to commercialization•  Small players dependent on search•  Major commercial winner: GoogleThe Semi-Public Platform (Predominant)•  Often provides better tools (e.g. for blogs, photos)•  Technology is opaque to users•  Applications often push to become “sticky”•  Major commercial winner: Facebook*The Walled Garden•  Popular model during the 1980’s•  Subscription barrier to entry•  Must provide some additional value•  Major commercial winner: World of Warcraft 29
  • 29.   Google, Facebook, World of Warcraft, and Web 2.0 businesses see user copyright as a potential liability, not a source of revenue  Cf. radio broadcasters in 1941 – except that copyright is in the hands of the multitudes  If the logic of the Stationers’ Company controls, where does this point for the future evolution of copyright?
  • 30.   Answer: “solve” the copyright dilemma via contract  If users can be bound to surrender copyright interest in exchange for platform/tool access, user copyright interests will not threaten revenue models.  Ironically, this licensing “solution” is a close relative to FSF, Wikipedia, Creative Commons, etc.   But it deflates the scope of the authorial interest for business (not altruistic) reasons
  • 31. GregLastowk a: lastowk
  • 32. 33
  • 33. City of Heroes = Marvel = Toolmaker/ Copyright owner, Hosting potential Platform/ exploiter Proprietor Player = infringers 34
  • 34.   The users are charged with direct copyright infringement.  The users pay to access City of Heroes and have assigned their authorial interests by contract.  The lawsuit is brought against the toolmaker/ platform, using copyright to constrain the power of technological tools. 35
  • 35.   If users are authors, what does the UGC inflection offer?   A shift to loss of authorial rights via contract   Cf. status quo   A shift to bearing infringement risks   Cf. status quo   A shift to tools hobbled by concerns over ©   Cf. status quo  Plus   Pay for access   Loss of information privacy   Loss of information control 36
  • 36. In a world where authorship powers are now widely distributed, copyright law should look at:1.  Attribution rights2.  Notice requirements3.  Shorter terms4.  Clear, short, “bright line” rules5.  Funding the commons 37