Tag: copyright

Libido for Dystopia:  A Response to “The Second Digital Disruption” – Part I

“It is as if some titanic aberrant genius, uncompromisingly inimical to man, had devoted all the ingenuity of Hell to the making of them.  They show grotesqueries of ugliness that, in retrospect, become almost diabolical.” – H.L. Mencken, Libido for the Ugly (1927)

A paper published in August by Kal Raustiala of UCLA Law and Christopher Jon Sprigman of NYU Law proposes a new, generalized rationale for limiting copyright protections:  “data-driven authorship.”  Titled The Second Digital Disruption:  Data, Algorithms and Authorship in the 21st Century, the central thesis hinges on the assumption that because authors of creative works will soon able to use Big Data to predict a greater likelihood of market success for a given work, this reduces the investment risk in producing that work, which in turn recommends limiting copyright protections.  From the paper …

“The next digital disruption is going to reach deeper. It will re-order how creative work is produced, and not simply how it is promoted and sold. It will transform our notions of authorship. It will raise fundamental questions about the nature and value of human creativity. And, perhaps less consequentially for the world at large — but of central importance to lawyers — it may shift how we think about the value and utility of, and even the moral justification for, intellectual property rules.”

Raustiala and Sprigman see the inevitable adoption of “data-driven authorship” as a predicate for a philosophical shift in the way society perceives the author and that this perceptual change ought to yield a revision of the underlying moral rationale for copyright.  Rather than viewing the author as “Promethean” (i.e. as an individual bestowing her works upon society), the paper proposes that “data-driven authorship” proposes a concept of the author as “Panoptian” (i.e. as a “watcher” who synthesizes creative expression in a collaborative process with her audience whose proclivities for various types of content can be understood and even predicted through data).* 

Betraying the Purposes of Creative Expression

If I had to pick just one flaw in this paper (and it’s hard to choose one for a fairly short rebuttal), it would be the naive bias, typical among copyright skeptics, that misrepresents the relationship between creators and their audiences by presuming that the goal of creative expression (art) is necessarily to give people what they want. While it is certainly true that most creators hope for market success and that big-money investors in works like blockbuster movies have always endeavored to predict, if possible, the likelihood of producing a hit, this business narrative does not fully represent the creative impulses, talents, or labors of individual authors, who must remain the central figures of copyright law, if copyright law is to mean anything at all.

If every creator were overly motivated to second-guess what his audience wants, then both creators and audiences would be left with the homogenous output that would eventually result from such a tedious feedback loop.  All works of note (i.e. the works we love) in every medium have generally earned their place in the anthology of “greatness” by virtue of being distinctive, experimental, or ground-breaking—works produced by artists who did not ask what we expected of them, but instead gave us works we did not know we wanted until we had them. And this does not even account for art that meaningfully provokes because it is controversial, unconventional, or uncomfortable.  

It is particularly odd that the authors of this paper so eagerly anticipate the prospect of creators seeking merely to satisfy audience taste, when it is precisely that endeavor, taken to an extreme, which produces safe, formulaic, repetitive fare that many viewers cite as pabulum that only deserves to be accessed via piracy. In other words, the authors’ predicate for proposing a shift in copyright theory is to embrace more corporatization of creative works; and this directly contradicts their fellow copyright skeptics, who claim that a central flaw with copyright’s status quo is that it overly favors corporate rightholders at the expense of individual authors.  

As is often seems true of these papers, the authors present “data-driven authorship” as yet another rationale to address a problem that nobody has actually proven to be a problem—namely the scope of copyright protection as it stands. In concert with many in academia, Raustiala and Sprigman proceed from a commonly-held (though not universally accepted) assumption that copyright can only be seen as a necessary evil—a devil’s bargain society makes with authors to extract work from them. While no one will deny that a key rationale for copyright is incentive, I maintain that the view espoused by this and other papers—stated as though it were axiomatic—is ahistorical, cynical, and a needlessly mercenary way to view the relationship between creators and their audiences.  

To support their thesis, Raustiala and Sprigman devote considerable attention to—indeed almost fawn over—the apparent adaptation to online piracy by the “porn industry,” asserting this narrative as one that ought to be instructive to mainstream (non-porn) authors of works.  They write …

“We use the adult entertainment industry as our primary lens to examine the second digital disruption, but as we will show, the techniques so effectively deployed there are increasingly apparent in the music, film, and television industries as well.”

To be sure, anybody who can cite the innovation called “dildonics” and the 1841 copyright skepticism of Thomas Macaulay in the same paper deserves an AttaBoy; but just as so many modern skeptics tend to ignore the broader context of Macaulay’s oft-quoted speech,** the authors of this paper gloss over significant differences between pornography and just about every other form of copyrightable expression. They further commit the fallacy of referring to the successful adaptation of the “porn industry” while minimizing the fact that said adaptation came at the cost of consolidation whereby one Big Data firm called MindGeek now controls nearly the entire online market.  So, if there really is a lesson non-porn creators can take from porn creators, it might be Don’t Let This Happen to You.  

The Porn Narrative is a Cautionary Tale to Creative Authors

Raustiala and Sprigman explain that pornography adapted to piracy—rather than attempt to litigate or effect policy changes—in part because of MindGeek’s ability to leverage massive amounts of data about viewer behaviors.  The paper then compares the MindGeek model to the ways in which Netflix currently uses its data about viewer habits and then implies that future non-porn motion pictures, episodic series, and all other media can learn the art of “data-driven authorship” from their porn-making cousins.

Of course, the MindGeek narrative in this paper simply expands on a familiar theme in which access to the content itself is understood to be a loss leader that can attract tens of millions of viewers, a percentage of which can be relied upon to spend money in other ways. For instance, while most visitors to porn sites will only ever view a handful of clips at a time for free, a valuable number of visitors will be amenable to spending money on things like “Camming” (private web-cam interactions),  “Customs”  (custom-made pornographic scenes), or sex-related merchandise (you get the idea).  

Although the paper’s authors acknowledge that pornography is fundamentally “utilitarian,” they do not seriously consider how this fact alone generally disqualifies the industry from having much to teach authors of non-pornographic works. Without wading into a discussion about the line separating erotic art from pornography, suffice to say, most porn—and particularly the porn to which the paper refers—has nothing in common with most creative expression, either for the creators or the audiences.  The paper states …

“MindGeek is at the forefront of this new approach.  The fine-grained data that MindGeek collects from its billions of views each month puts it in a position to analyze and then leverage consumers’ revealed preferences regarding a wide range of adult content.  We already see MindGeek using what it learns about viewing patterns to better categorize and organize content.  Most strikingly, MindGeek increasingly uses its data to shape the content that its production companies create.”  

Sprigman and Raustiala may find these observations “striking,” but it is hardly more than obvious to understand that MindGeek is able to learn through data collection that particular tastes in porn may be trending and that these data can then inform even the producers of scenes to make quick, responsive decisions about camera angles, casting, wardrobe, scenarios, etc. in order capitalize on those trends. It is equally unremarkable to recognize that relatively short, pornographic clips can be served up like free snacks in order to entice some viewers to spend money in ways ancillary to the pornographic videos themselves.  Sex sells.  Nobody needs academic research to support that premise.

But the MindGeek “lesson” is useless to many a non-porn filmmaker, who asks 90 minutes of our attention for a story he wants to tell in his own distinctive way.  His motives for producing (and ours for watching) are exactly the opposite of the MindGeek model.  As a creator, he is not interested in satisfying audience taste—let alone reenacting some fleeting, primordial fantasy. Instead, it is essential that, to a great extent, the author doesn’t give a damn what the audience wants to see.  And it is only when a creator surprises us the most, that we bestow upon him the compliment artist.  

On the other hand, as Raustiala and Sprigman correctly observe, major producers of non-pornographic works are not only leveraging Big Data in their business models, but they cite testimony from TimeWarner’s proposed merger with AT&T, which asserts that without access to data, the content producer will be at a disadvantage relative to companies like Netflix and Amazon.  The paper’s authors are not wrong to describe the use of data in the market, but I suspect they may be over-emphasizing the usefulness of that data and, more importantly, jumping the gun by presuming that the power of said data to inoculate against risk is a sound rationale for limiting the role of copyright.

In Part II of this post, I’ll respond to this proposed revision of copyright as a rational byproduct of the presumed value of “data-driven authorship.”

* “Panoptian” comes from the Greek myth of Argus of Panoptes. See Part II for further comment.

** For instance, Macaulay’s speech was in the context of a five-year debate that he ultimately lost; his dire predictions about copyright terms did not come to pass; and he was advocating the views of the publishing industry over those of authors. 

Photo by kentoh

Incoherent Copyright Ruling Should Anger Photographers

My colleague Stephen Carlisle at Nova Southeastern University already made short work of the aberration of copyright law and fair use analysis that occurred recently in the District Court for the Eastern District of Virginia. But I wanted to expand on a few elements that caught my attention. In the case Brammer v. Violent Hues Productions, LLC, the court’s deference to the defendant’s appeals to good faith and fair use resulted in an opinion that so dramatically flies in the face of legal doctrine that (as Carlisle notes) it would obliterate copyright in photography altogether.

At issue is a time-lapse photograph of Washington D.C.’s Adams Morgan neighborhood taken by Russell Brammer in 2011 and registered for copyright in 2016. Also in 2016, a cropped version of the image was used without license on a website suggesting “things to do” in Washington as ancillary promotion of the Northern Virginia Film Festival, which is organized by Violent Hues Productions.

Brammer sent a Cease & Desist letter in 2017, and Violent Hues immediately removed the image; but Brammer then sued for copyright infringement, and Violent Hues moved for summary judgment, arguing that it had made a fair use of the photograph. Before we get to that defense, though, we have to note this statement of facts from the opinion:

“Violent Hues’ owner, Fernando Mico, found the photo online. He alleges that he saw no indication that the photo was copyrighted and believed he was making use of a publicly available photograph.”

So, even prior to the court’s fair use analysis, it allows two substantial errors to be dispositive in this case. The first is overlooking the fact that an “indication” of copyright is not required. All works are automatically protected, if they were produced after January 1, 1978; and it’s hard to fathom how any judge would not know this. Hence, Mico’s assumption that a work is “publicly available” because it was found online is plainly invalid as a matter of black-letter law.

Second, even where a court might consider leniency for an unintended infringement made in good faith, then it seems this court did not consider it relevant that Fernando Mico is a professional filmmaker. Violent Hues is a production company offering “Script to Screen” services, and Mico even signed a distribution contract for his indie feature film in 2014. This is not some teenager who might be confused about the use of images in the digital age. This is a professional image-maker and copyright owner, who cannot reasonably claim to be so naive about images he “finds online.”

Transformativeness is Still a Doctrine Without Definition

The truly staggering aspects of this opinion are found in the court’s rationale for finding fair use. The fact that the interpretation of “transformativeness” here negates more than a century of copyright law related to photography should serve as compelling evidence that the doctrine remains incoherent and meddlesome at best. The opinion states:

“Here, Violent Hues’ use of the photograph was transformative in function and purpose. While Brammer’s purpose in capturing and publishing the photograph was promotional and expressive, Violent Hues’ purpose in using the photograph was informational: to provide festival attendees with information regarding the local area.” [Emphasis added]

This confluence of vagueness undermines copyright in photography at its core. By the logic of this opinion, if the makers of a pregnancy test want to make unlicensed use of Annie Leibovitz’s famous portrait of pregnant Demi Moore in a print ad, they’re free to do so because their “purpose” is different from Leibovitz’s original “purpose.”* And we could keep conjuring such examples ad infinitum. Based on this holding, any photograph may be used by any party as long as it can be argued that observers will interpret a meaning that is distinct from the photographer’s original intent.

That reasoning does not even square with the history of creative expression itself—let alone copyright law. It is widely understood in the world of art that the creator’s intent may vary considerably from the viewer’s interpretation, and neither understanding is necessarily “incorrect.” What are we to make, then, of photographs that are simultaneously expressive and informative—images that may be considered both journalism and fine art by one set of viewers, but perhaps scorned for various reasons by a different set of viewers? Unless a court is required to compare and contrast two expressive works (i.e. in a real fair use case), it has no basis for wandering into this semantic and subjective minefield.

Ordinarily, the courts are not expected to concern themselves with the metaphysics of art when straightforward, unlicensed copying of a work occurs, as it did in this case. The court contends that by placing an “expressive” work on an “informational” website, the use was “transformative,” thus tilting toward fair use. As Carlisle notes, however, the broadly-informational nature of the site itself has nothing to do with the fact that Mico selected Brammer’s photograph because it’s a “cool” image. In other words, it was chosen because of its expressive qualities, regardless of the context in which it was used.

This reasoning is supported by the fact that, as a professional image-maker, Mico can be presumed to have judged the difference between Brammer’s expressive work and a more pedestrian, informative, photo of the same neighborhood. In fact, the more expressive a work is, the less we can generally consider it to be informative, and a time-lapse photo of Adams Morgan is hardly a literal representation of the experience the visitor is likely to have (at least while sober). Then, because the photograph was chosen to promote tourism as a feature of attending the film festival, the court erred in finding the use to be non-commercial under the first factor.

Still, even if Brammer’s photo were less “cool,” (i.e. more informative), it should not matter; and the court has no legal grounds for even weighing the amount of expressiveness in this particular case. Exploitation of a copyrighted photograph — even a “pedestrian” image — without a license is an infringement. End of discussion.

Regardless of anyone’s opinion of the original work, the grounds for fair use analysis under the “transformativeness” test are a) if the user alters the original work in a way that creates a truly new expression; or b) if use of the work is essential to the functioning of a new technology or service that is itself transformative to society—and this includes the case (Vanderhye v. iParadigms) cited by the Court to support its application of “transformativeness.”

In Brammer, Violent Hues makes no claim of fair use to create a new expression, and there is nothing transformative—based on either case law or common sense—about using a photograph to boost tourist attractions while promoting an event. Since Violent Hues’s use meets neither standard, “transformativeness” should not have received much consideration, let alone a finding in the defendant’s favor.

Undermining Copyright in Photography

The real hazard in this ruling—the one that should make photographers apoplectic—is that the court contends that Brammer’s photograph is expressive but that Violent Hues made a fair use because Mico somehow used only the informative aspects of the image based on the factual nature of the subject matter. The opinion states…

“The photograph in question contained creative elements (such as lighting and shutter speed choices) but was also a factual depiction of a real-world location: the Adams Morgan neighborhood in Washington, D.C. Violent Hues’ [sic] used the photo purely for its factual content, to provide festival attendees a depiction of the Adams Morgan neighborhood.”

This metaphysical parsing of the expression from the information in Brammer’s photograph inverts 124 years of legal doctrine. Since the mid-19th century, it is well- established law that ideas and facts are not protectable while creative expressions are protectable; and this principle collided with photography near the end of the century because it was plainly understood that a camera always captures whatever “facts” are placed before the lens. Thus, the copyrightability of photographs was challenged in 1882 in Burrow-Giles v. Sarony, and affirmed by the Supreme Court in 1884.

Since then, both copyright law and our understanding of photography have evolved. And in both cases, it is sufficient that a human actor create the photograph, whether he painstakingly arranges every element in front of the lens or makes snap decisions to capture ephemeral chaos on a city street. In neither case do we apportion incremental authorship of a photo relative to the “amount of factual information” it contains. The whole work—expressive and informative together—is protected and the bundle of rights are vested in its creator. Such subtle distinctions are only made when a court must consider whether a subsequent work infringes a prior work, but that is not the circumstance in Brammer.

This may be confused with the doctrine of independent creation, which allows for the fact that two photographers are likely to capture nearly identical images of a given subject (e.g. of Niagara Falls). But this only means that Photographer A may not sue Photographer B for infringement since neither can copyright Niagara Falls itself. But apropos this particular case, both photographers would have copyrights in their individual images, and neither photo may be used to promote a Niagara Falls hotel without license.

To underscore how absurd this ruling is, if it is truly the Virginia Court’s opinion that Brammer’s “expressive” photograph is separately an “informative” photograph, then Brammer should not only appeal, but he should also sue for infringement of his right to prepare derivative works. This is preposterous, of course, because a copy of a work cannot be a “derivative” work; but somehow, by virtue of internet magic and the fog of the transformativeness doctrine, the court here sees a separate image fixed in an identical copy.  Expect this ruling to be appealed and overturned.
______

* I purposely cited the Moore photograph because Leibovitz lost an important fair use case when this image was parodied by Paramount studios in 1998 for the promotion of the film Naked Gun 33 1/3. The distinction is essential to illustrate how far the idea of “transformativeness” has strayed from finding fair use that supports new forms of expression.

Considering Jessica Litman’s Call to Rethink Copyright Doctrine

One of the more popular talking points among copyright critics is that copyright only works for corporations but not for individuals. Thus, debate about copyright’s purpose and legal contours is often an extension of the broader condemnation of corporate power in our democracy, or even capitalism itself. For this reason, when activist groups like EFF or Public Knowledge declare that “only corporations benefit from copyrights,” it’s a dog whistle that triggers a generalized, sympathetic response but which offers little serious thought about the premise itself.

In fact, the policies advocated by these organizations are so consistently and so broadly anti-copyright that they could never honestly claim to care how much or how little copyright does serve individual authors. For instance, recent assertions that the proposed CLASSICS Act is a “handout to labels” may be an easy pitch to sell in this climate, but it isn’t remotely true based on any sensible understanding of what the bill actually does.

Setting a New Tone?

A recent paper by law professor Jessica Litman, at the University of Michigan, recommends that copyright scholars take what she considers a fresh approach to understanding copyright’s benefit to individual authors by first extricating themselves—both personally and professionally—from the macro-debate being waged by very large corporations. She suggests that she and her fellow scholars are too caught up in the business fight between legacy intermediaries (publishers, labels, studios) and new intermediaries (online platforms). “Copyright scholars can safely leave them to work it out without our help,” she writes. “If the core question in that dispute is whether the law ought to favor publishers over platforms or vice versa, the answer is unlikely to significantly change the copyright ecosystem. Neither side has much of a claim to the moral high ground.”

Although this is her preface and not her thesis, it is necessary to interject that while I think the spirit of what she proposes has merit—that academics might look through the fog of big companies battling over turf—that she errs in a very significant way when she portrays traditional publishers and digital platforms as equals from the perspective of authors and their copyrights.

From the authors’ point of view, even the most predatory practices of legacy intermediaries still cannot compare to the outright theft of their rights—to say nothing of evangelizing that theft—by the internet platforms. This is why so many professional creators have offered variations on the theme that it’s their choice to negotiate licensing terms with traditional intermediaries, while the kind of piracy that enriches online platforms gives them no choice whatsoever. I’ll return to that topic, but Litman’s thesis is summed up thus:

“If a legal regime purportedly designed for the benefit of authors systematically short-changes them, why does that happen, and what options might we have to respond? The answer, I’ll suggest, lies in the ways that we, as lawyers, think about property rights.”

At the risk of being kicked out of the pro-copyright club, I think any scholarship that proposes to consider how copyright might better serve individual authors is worth analyzing at face value. Litman’s point deserves consideration inasmuch as she has not produced yet another paper, replete with overtones of collectivist whimsy, about the evils of copyright and the greed of artists. And to me, her paper does not read like thinly-veiled policy proposals designed to benefit Silicon Valley. Instead, she at least appears to ask a perfectly valid question as to why more authors don’t reap more benefit from the system.

The History of a Con Game?

The fulcrum of Litman’s thesis is that the first law to vest copyright in the author, the Statute of Anne ratified by England’s Parliament in 1710, was a maneuver by the publishers of the time to retain a monopoly they were about to lose. By royal charter between 1557 and 1709, the guild known as the Stationers Company, which comprised the trades necessary to book printing, had the exclusive right to publish all books throughout England and her domains. But, faced with the prospect that the charter would not be renewed, the Stationers were at least partly responsible for advocating the Statute of Anne, which, for the first time, vested copyright in authors.

Litman subscribes to the narrative that this was a tactic employed by the Stationers designed to temporarily grant a property-like right to authors, which could then be easily and cheaply acquired by publishers, thus restoring their effective monopoly. To emphasize her point, she compares the Statute of Anne to the U.S. Dawes Act of 1891, which granted tracts of land to native tribes so that they could be easily bought by speculators in transactions that look fair and legal but were really just a mass swindle. “If you are looking to get your hands on some arable land or to regain control of the printing texts, creating new property rights turns out to be an excellent strategy. Sometimes the original recipient of the property benefits, but not always,” Litman writes.

Thus, Litman asserts that the doctrinal practice of treating copyrights as property may be a root cause of the law’s failure to benefit authors relative to the way in which it benefits intermediaries. She writes, “The rest of the world followed that model. In almost every country, authors receive copyright protection as an initial matter, but those copyrights are transferred to and then owned and controlled by publishers and other intermediaries.”

Without writing a five-thousand-word post, it’s worth keeping in mind that the story of the Stationers Company is more complicated than Litman states; that copyrights are not exclusively transferred to intermediaries in ways that are disadvantageous to authors; and that American copyright practice, especially after 1909, diverges substantially from England in 1710.  So, while Litman presents an interesting historic parallel, I would caution against giving it too much weight if her purpose is indeed to examine 20th and 21st century copyright doctrine to the benefit of individual authors.

If Not Property What Then?

With that in mind, my first response to Litman’s proposal that copyright’s weakness lies in the legal doctrine binding copyright to property law, is that perhaps copyright shares more natural rights qualities than many of her colleagues may be willing to admit. If the problem, as she states, begins with the fact that property is alienable and, therefore, designed to be sold, then does this mean scholars are willing to entertain the possibility that copyright is also inalienable? That it functions like a labor right as well as a property right?

Property is alienable, can be sold, transferred, bequeathed, etc. But a labor right is inalienable and does not last beyond the life and physical being of the individual. When an author agrees to a licensing contract with an intermediary, she shares a kinship with any other worker signing a labor contract, but for the fact that the author has sometimes already performed the labor while other workers agree to terms for labor yet to be done. Or, conversely, a musician who signs a multi-album contract is negotiating both property and labor at the same time, and his bargaining position is founded on the copyrights in the creative works yet to be produced.

Individuals are vested with the natural right to negotiate terms for their labor throughout their lifetimes, and this right is never diminished, no matter how many works an author creates or how many jobs another kind of worker holds. Of course, possession of this right does not guarantee that the market will be fair or that intermediaries or employers will not be predatory. But this is comparable to the fact that non-discrimination laws do not eradicate discriminatory feelings or behaviors. In other words, human flaws like bigotry or greed do not mean the rights codified into law are doctrinally flawed, and I am concerned Litman may be straying into this logical fallacy.

At a very basic level, negotiating a licensing contract is not that different from any other contract for the exchange of labor. The more perceived value the laborer or rightholder possess, the better her bargaining position (e.g. an author with a money-making track record is like a job applicant with a great resume). To the extent that an author needs an intermediary—and Litman states that this is necessary—I don’t see how this fundamental rule of investment (i.e. that more perceived value equals greater negotiating power) is going to be altered whether attorneys are trained to think of copyright as property or not.

Economic Forces Are Independent of Copyright

As alluded to above, legacy intermediaries are just one sector within a worldwide consolidation of corporate power in liberal democracies. The forces that continue to fuel this trend—and presumably any potential remedies to these forces—are almost certainly independent from copyright doctrine. So, if a copyright scholar were to examine negotiations among authors and intermediaries across various decades, I would hypothesize that copyright is a universal constant relative to other factors that lead to either more predatory or more symbiotic contractual arrangements.

As a simple example, Hollywood in the late 1980s was marked by a climate of spec-script mania. Writers benefited from a commodities-exchange-like feeding frenzy, with studios paying huge prices for specs. It wasn’t necessarily rational, but this screenplay bazaar had little to do with copyright doctrine and everything to do with various market forces driving studios to behave in this manner. Today, a spec writer is in a much weaker bargaining position than that period, but is simultaneously bolstered by the fact that entities like Netflix are currently spending huge volumes of capital in order to bulk up their programming as quickly as possible. This trend will shift at some point, and, again, will have little to do with copyright doctrine.

Putting Their Own Theories to the Test

In the same way that academics should be mindful of non-copyright-related forces in this context, I think they should also consider some of the non-measurable benefits that authors—correctly or not—perceive when they enter into deals with intermediaries. I am currently writing a non-fiction book and have signed a publishing contract with a university press. As Litman and her colleagues know very well, such an arrangement is basically writing on spec under contract for nothing that anyone would consider real money.

Most academics who publish books do not make much money from the books themselves, yet I suspect the reasons they sign deals with publishers like university presses is that, like me, they recognize various benefits that transcend money. Among these benefits is that writing a book is hard enough without being entirely alone in the editing, production, and marketing of the book; and the imprimatur of a known press is not without value.

So, because many copyright scholars have full-time jobs with tenure, benefits, and PhD after their names (i.e. financial security most authors do not have), I would suggest that any academics who might heed Litman’s call and eventually propose alternative models to distribution should be among the first to test their theories with their own works. (Kinda like the mad scientist with the new drug who injects himself first to see if he’ll turn into Mr. Hyde.)

Many of these scholars can look to their own careers as authors and ask themselves why they enter into contracts with publishers when these deals are not expected to yield a substantial portion of their incomes. The answers to those questions may provide an opportunity to step out of the ivory towers and into the authors’ shoes; and if Litman and colleagues truly want to understand how copyright can better serve individual creators, thinking like creators might be a good place to start.