Welcome to Professor Lemley’s Home for Wayward Works. Formerly known as the Asylum for Orphan Works, but we really prefer not to use the O-word as this connotes a state of abandonment and a feeling of being unwanted. Although we are certainly happy that the term Bastard Works was retired after 1912.
At PLHWW, we believe that every work deserves someone’s love, even if its parents no longer care to acknowledge it. Take a look around, and you will see a cheerful confederacy of the once forgotten and forlorn and, perhaps, you will recognize their true potential. It may be Season 1, Episode 12 of Mork & Mindy, “Mork’s First Christmas.” Or perhaps you will embrace Season 2, Episode 17 of What’s Happening!!, when The Doobie Brothers teach Rerun an important lesson about bootlegging music. Because our motto at Professor Lemley’s is Leave No Work Behind.
What was all that about?
Well, it seems Professor Mark A. Lemley (notable copyright skeptic) has advanced a new theory under which copyright law—specifically, the fair use doctrine—should be reimagined in order to rescue creative works that will otherwise go missing. “An unanticipated consequence of the move to streaming,” Lemley writes, “is that more and more content will effectively disappear from the public eye, at least legally.”
Despite being an avowed empiricist with regard to the nature of intellectual property, Lemley offers no solid evidence that works are “disappearing,” as he puts it, or quite demonstrates how we are “moving backward for the first time in 40 years.” Yet, undeterred by the lack of data to show us the vanishing works phenomenon, Lemley offers a solution to a problem that even he seems not quite sure truly exists. Despite some sweeping generalizations in his paper, Lemley appends several of his potentially more compelling examples with acknowledgements that they are likely rare circumstances. So, this reader struggles to understand whether he hopes to remedy a major trend or is responding to intermittent anomalies in the market.
For instance, one might assume that absent hard data, the anecdotal evidence would be compelling and on point. But Lemley’s lead-off example is the presently unavailable Spanish TV series El Ministerio del Tiempo. Previously licensed by Netflix, Lemley complains that “It’s not on television anymore, even in Spain. And it’s no longer available on Netflix, one of the many shows that is pulled off Netflix every month to make room for content with higher demand. Nor can you find it on Amazon, or Hulu, or any of the growing number of TV streaming sites.”
Now, if you’re tempted to say, So what? TV shows come and go all the time, you’re right. And Lemley does acknowledge that this is just business, that when an insufficient number of viewers watches a program, Netflix, or whoever, will probably not renew its license for that show. But with this example, Lemley hopes to tee up the problem, namely, the unavailability of El Ministerio based on an assumption that the rightsholder lacks either the opportunity or the desire to make it available under a legal licensing regime.
This circumstance, leaving interested viewers empty handed, Lemley proposes to remedy by having the owner forfeit its right of control under the fair use doctrine. He posits a reading of “transformativeness” under factor one to encompass just about any use that “benefits society” (as if that doctrine were not oozy enough in the courts). And under the fourth factor, Lemley asserts that if the copyright owner is no longer in the market, then of course market harm cannot occur. Okay, but what he is really proposing is that works simply fall out of copyright due to apparent disuse, which moots the fair use conversation altogether. Moreover, a number of problems leap to mind given Lemley’s focus on streaming, which largely means TV shows, movies, and music.
The thorniest issue is that filmed entertainment makes a poor example for Lemley’s hypothesis because most films and TV shows entail multiple subcontracts and licenses for limited uses of various creative works for a given project. The most obvious would be music synched with a film. Absent a new licensing agreement with a proper distributor, the owner of the film or TV series is not at liberty to simply make the material available, even if he wants to. The producer would be liable for distributing all the other contracted elements without consideration for its contractors. Lemley seems to overlook these subcontractors’ interests in pursuit of his “right” as a viewer to access the program.
Moreover, just because a work like a TV series is unavailable for a period, this does not mean the rightsholder will not make it available again in some form, if they believe it has an audience. For all Lemley knows, Onza Productions is preparing to make U.S. DVDs or seeking some other distribution channel. Or, perhaps, the market that is closed to this series in 2020 will change in two years, and there will be a new opportunity. Nevertheless, Lemley seems to argue that there should be a new standard by which we deprive the owners of their copyrights during this interlude of unavailability. But as Stephen Carlisle reminds readers in his response to this same paper, copyright is not a use-it-or-lose-it right.
A Public Domain Argument In Fair Use Clothing
Lemley rests considerable weight on broadening the factor four analysis, arguing that if the rightsholder, either by choice or circumstance, abandons the market, then the rightsholder cannot claim market harm when the work is used by someone else. But this is a fourth factor argument in name only.
Fair use is a one-use-at-a-time exception to copyright protection, whereas what Lemley is really proposing is that works should untimely fall into the public domain. He asserts that once the copyright owner halts, or even temporarily suspends, market exploitation of a work (for almost any reason) this should allow even a commercial enterprise to use the work. That is the public domain, where fair use has no meaning.
Under Lemley’s theory, it would be very difficult to determine which works have fallen out of licensed use that, according to some novel standard, deserve to be appropriated more quickly into the public domain. And this is made pellucidly clear when he proposes that even planned, temporary unavailability (e.g. a film studio windowing releases of its catalog) should be proscribed under his new doctrine. Although Lemley alludes to niche circumstances (e.g. an owner removing works to cleanse an author’s public record), he spends considerably more time citing Big Media examples that are both fatal to his legal theory and culturally un-compelling.
I know copyright critics can’t go too long without invoking the Evil Mouse, but it is anathema to Lemley’s theory when he cites Disney as an iconic copyright owner with a long tradition of offering limited releases of its classics. This “windowing” model is not unique to Disney, and it blows up Lemley’s proposal to expand the fourth fair use factor to his stated purpose. Why?
Because Disney’s business model proves rather dramatically that works retain market value for years, or even decades. Thus, the rightsholder would absolutely suffer market harm if, by virtue of intentionally and temporarily shelving a work, the right to use that work were to devolve to any other party. Again, this is just an argument for early termination of copyright protection. And if the making available rights were thus restricted, such that works would so rapidly fall out of copyright, this would have a negative effect on the production of new works—especially the motion pictures and TV shows that hope to capitalize on a long tail distribution strategy. As David Lowery states in this Twitter thread, “Why can’t I let a work of mine go out of print for a while to build demand, so that when I release it I can better recoup my fixed costs? What’s wrong with choice and freedom?”
Under Lemley’s proposal, Disney’s decision to hold back The Little Mermaid for a year or two would mean that Google or Amazon would be free to stream the film without license. Good luck! But the irony is that Google and Amazon probably wouldn’t bother because, according to Lemley, anybody would be free to distribute the film. Did he really mean to run smack into this wall by taking his theory quite this far? Perhaps.
It seems that Professor Lemley begins from a commonly-held, though false, premise—that there is an unlimited right to access works once they have been published. And in order to support this position, he intermittently conflates information with creative works. “Information,” he asserts, is “getting harder to access.” And whether there is any evidence for this claim, he dodges the question by vacillating between the public’s right to obtain information and its desire to access entertainment works via the “celestial jukebox.”
Even where there may arguably be some interesting crossover between those principles (e.g. if there were nothing but sanitized versions of Tarantino movies being made available), he declines to explore these nuanced possibilities in favor of citing mega-franchises like Star Wars. The updated version of A New Hope (no matter how much it bugs the purists) is simply not comparable to his reference to the 1930s American publication of Mein Kampf with the anti-Semitism watered down. These examples do not belong in the same conversation, unless George Lucas was a putative dictator and the original A New Hope contains his ulterior plan for committing genocide.
Even if every fan hates the updated version of the first Star Wars film, copyright owners retain the right to amend their works under §106(2) of the copyright act. That the original A New Hope should be accessible in some form, as a matter of preservationist principles, is a valid consideration, which is one reason copyright law has carveouts for libraries and archives. But for Lemley to make so broad an assertion, let alone under fair use, that would allow even commercial exploitation of the original version of a work is a theory that will find little purchase.
As mentioned, Lemley alludes generally to the hypothetical use of copyright to bury the record, and I would agree with him in principle, but for the scarcity of evidence supporting this complaint. For instance, he describes a circumstance in which a rightsholder may want to remove a work from the market because the work may now be considered offensive, but this begs two questions: 1) how often does this happen such that the original truly disappears?; and 2) is it often enough to recommend a rethinking of copyright doctrine? I suspect the answers are rarely and no. And Lemley even seems to acknowledge the rarely part, so why all the fuss? More likely, a work that is no longer in vogue, but which may have some cultural relevance as an artifact, will be legally available to the researcher, who may be the only person with any interest in finding it.
Mesmerized by the Celestial Jukebox
Finally, all of this comes under the heading that Professor Lemley subscribes to the school of thought that, copyright makes works disappear in an era when technology enables everything ever created to be accessible by anyone from anywhere at any moment and forever. This ambition is a fantasy, both as a matter of practice and purpose. For instance, one need only glance at the tattered state of American political discourse to see that “information” is a woefully subjective concept and that more access to more of it does not seem to help one little bit.
As for entertainment works, neither Lemley nor anyone else can account for the multitude of reasons why various works ebb and flow through public consciousness at any particular time. I mentioned in an older post about the public domain that none of my kid’s friends seemed to know Charlie Chaplin, whose Little Tramp was the most recognizable figure in the world for most of the 20th century. But it is not a lack of access to the films (let alone copyright) that explains the disappearance of Chaplin from the Zoomer zeitgeist. It’s other things.
Even great cultural works will fail to capture contemporary interest for myriad reasons, including the simple observation that today’s market offers an overwhelming volume of new and old works competing for our attention. And this abundance is something the copyright critics usually applaud. I am sorry that Professor Lemley does not get to watch El Ministerio del Tiempo right now, but for the reasons stated (and quite a few unstated), that is an unremarkable starting place for a proposal to so dramatically amend copyright law.