Tag: fair use

Decision in Seuss/Trek Mashup Case is One for the Books

Last week, the Ninth Circuit Court of Appeals issued a fair use decision in Dr. Seuss Enterprises (DSE) v. ComicMix. After oral arguments were presented in April, I wrote about this case as an example from which creators could learn what not to do when they propose to make substantial use of protected works—especially very famous works. The lawsuit involves an unpublished book called Oh, the Places You’ll Boldly Go (Boldly), a Dr. Seuss/Star Trek mashup that principally uses material from Seuss’s Oh, the Places You’ll Go! (Go!).

The appellate panel held unequivocally that ComicMix’s fair use defense failed on all four factors, and I imagine this opinion will be cited for years to come because the court so clearly inked fresh lines around several fair use principles that many avid copyright critics have endeavored to blur or erase through litigation, academic writing, or public editorial. To summarize, the Ninth Circuit opinion written by Judge McKeown held that Boldly was not a parody under factor one; that because the works copied are expressive, fair use did not favor ComicMix under factor two; that ComicMix’s use of the original works was both quantitatively and qualitatively substantial under factor three; and that Boldly represented significant potential harm to DSE’s market under factor four.

Understanding Parody

In that April post, I suggested a guideline for creators that if one truly intends to parody a work, especially a work that is instantly recognizable, that one need not engage in extensive, verbatim copying to achieve that result. In the case of Boldly, I maintain that the amount of detailed copying, which is weighed under fair use factor three, militates against ComicMix’s claim that the book is a parody at all, which is considered under factor one. As the opinion reminds us, the four factors of the fair use test are interdependent:

[The first] factor has taken on a heightened significance because it influences the lens through which we consider two other fair use factors. The third factor—the amount and substantiality of use—‘will harken back’ to the first factor. And the fourth factor, relating to market harm, is influenced by whether the commercial use was transformative.

Considering the factors in order, the court first held that:

Boldly is not a parody. ComicMix does not seriously contend that Boldly critiques or comments on Go!. Rather it claims Boldly is a parody because it situated the ‘violent, sexual, sophisticated adult entertainment’ of Star Trek ‘in the context of [Dr. Seuss]’ to create a ‘funny’ book. We considered and rejected this very claim in an appeal involving another well-known book by Dr. Seuss—The Cat in the Hat (Cat).

For discussion of that prior Cat case, see Stephen Carlisle’s post, but this clarification by the court in ComicMix cannot be overstated:  copying existing works into novel contexts is not necessarily parody just because it is meant to be funny. And mashup, merely because it changes context, is not inherently parody. Moreover, when one is copying famous works, the user will more likely be seen as attempting to ride the coattails of the prior author’s notoriety, unless a clear element of commentary on the original work, like parody, is present in the new work. But citing the gold standard case on transformative use for the purpose parody, Campbell v. Acuff-Rose, the McKeown opinion reiterates, “Lacking ‘critical bearing on the substance or style of’ Go!, Boldly cannot be characterized as a parody.”

It is reasonable to assume that, if the court had found Boldly to be parodic, its third factor analysis would likely be more liberal regarding the amount of the original works used; but I would argue that the amount used is a fundamental reason why no parody can be said to exist in this particular case. After all, what was actually taken? Not ideas, which are not protectable, and certainly not Seuss’s meter or rhyming schemes, which are also not protectable. The primary expressions that were copied—and stylistically copied in minute detail—were a number of visual works belonging to DSE.

So, even if we were to strip away the verses, ignored intended literary expressions in either book, and exclude any knowledge of Star Trek, an ordinary observer, comparing ComicMix’s illustrations to Seuss’s originals, would not necessarily know that Image B is a parody of Image A.

To the contrary, the observer could very easily assume that Image B is a derivative work prepared by DSE because it painstakingly matches so many elements in Dr. Seuss’s original drawings. And according to the opinion, it was apparently ComicMix’s intention to prepare an unlicensed derivative work that they hoped DSE might acquire, hence at least one reason illustrator Ty Templeton spent so many hours copying Seuss’s drawings in such intricate detail.

Keeping our focus on the fact that what was copied was a collection of visual works, note this response from the opinion: “We also reject as ‘completely unconvincing’ ComicMix’s ‘post-hoc characterization of the work’ as criticizing the theme of banal narcissism in Go!.” It is not uncommon for defendants to concoct a “parody” narrative in response to an infringement claim, and/or to misconstrue, at the time of use, the meaning of “parody” as expression that intends to be funny through the language of a prior work (e.g. none of Randy Rainbow’s anti-Trump songs is a parody of the songs themselves*).

It is the work that has been copied that must be the target of the parody, or other commentary. So, how can a visual work that is meticulously faithful to the original hope to convey parody through the act of too much replication? Something about the subsequent work must cue the observer that a lampoon of the prior work is present. Otherwise, the new work will be considered a derivative work, which only the copyright owner has the right to prepare.

As an example, imagine a drawing of Cindy Lou Who that has borrowed just enough Seussian elements that we recognize her, but she is depicted sneering and giving the Grinch the finger in response to his bullshitting her about the Christmas tree. That image by itself would plausibly be a comment on the original work in the same spirit that “Pretty Woman” was held to parody “Oh, Pretty Woman.” And the parodist would not have to mimic Seuss in every scribble and hue to achieve this result.

The third factor asks whether “the amount and substantiality of the portion used in relation to the copyrighted work as a whole” favors a finding of fair use. And a component of this analysis is whether the defendant used only as much of the original work as was necessary to achieve the desired result. In this case, because the desired result (an alleged parody) was held do disfavor fair use, then, logically, it should not matter very much whether ComicMix quantitatively copied one page of Go! or, as the opinion notes, 60% of the book along with “significant illustrations from Grinch and two stories in Sneeches.”

While that is a substantial quantitative taking, I would maintain that it was the qualitative copying whereby the defendant “replicated, as much and as closely as possible from Go!, the exact composition, the particular arrangements of visual components, and the swatches of well-known illustrations” that should have doomed ComicMix under the third factor test. Again, it is not necessary to mimic the originals so precisely in order to achieve the desired result of parody—if that purpose had been achieved in any sense.

Importantly, this opinion also reminds us that the third prong does not ask how much work was copied relative to the complete works produced by the original author. I’ve seen this one before, often in music infringements, where a defendant argues that he only copied a song or two owned by an artist with a large catalog. Here, the court rejected as a legal fallacy ComicMix’s argument that it only copied portions of five books out of the sixty produced by Dr. Seuss. Reiterating the law for users everywhere, the opinion responds that, “Under ComicMix’s theory, the more prolific the creator, the greater license a copyist would have to copy and imitate the original works. Nothing supports that argument.”

Potential Market Harm

The court’s discussion of the fourth factor also contains several important reiterations of fair use doctrine from which any creator can learn a great deal and reminds us that “potential” is the most important word in this part of the statute. This is because “potential” implies three underlying considerations:

1) what would be the effect of the specific use at issue on the market or value of the original work?

2) what would be the effect if the same kind of use were widespread among multiple parties?

3) although the copyright owner has not exploited the work in the manner at issue, does the new use constitute a derivative work, which the author is not obligated to produce or license?

In consideration of all the above, the court found that Boldly was not a fair use under factor four. As I have tried to emphasize, the amount of verbatim copying done by ComicMix produced an unlicensed derivative work, and the court noted that this placed Boldly in direct conflict with other derivatives of Go!, which DSE has licensed for the market. But perhaps the most important statement by the court regarding factor four is that it soundly rejected ComicMix’s assertion that the plaintiff bears the burden to prove potential market harm.

Not much about fair use doctrine lends itself to absolute statements, but the Supreme Court and our circuit have unequivocally placed the burden of proof on the proponent of the affirmative defense of fair use. ComicMix tries to plow new ground in contending that fair use is not an affirmative defense and that the burden shifts to Seuss to prove potential market harm.

Not only is that a judicial smackdown of a largely academic theory that fair use is a “right” rather than an affirmative defense, but the court further stings ComicMix’s erroneous citation of the very case that so many copyright skeptics consider a standard bearer of this invalid doctrine. The boondoggle litigation colloquially known as the “Dancing Baby” case, in which the EFF, on behalf of Stephanie Lenz, sued Universal Music Group for wrongful takedown of her YouTube video, is about as close as litigation has come to upending the affirmative defense principle of fair use. But here, the Ninth Circuit, which ruled in Lenz, states:

In an effort to distinguish controlling precedent, ComicMix argues that in Lenz v. Universal Music Corp., we deviated from our precedent construing fair use as an affirmative defense. This view misreads Lenz, which involved fair use in a different corner of copyright law, the safe harbor for Internet service providers under the Digital Millennium Copyright Act (DMCA)….In no way did we deviate from our characterization of fair use as an affirmative defense under §107. To the contrary, in addition to clarifying that, unlike copyright misuse and laches, fair use is not an excuse to copyright infringement, we reiterated that ‘the burden of proving fair use is always on the putative infringer.’

Oh, The Places We Don’t Need to Go

As I say, I predict ComicMix will prove to be an important and instructive case going forward. It should not be misread as “the big guy defeating the little guy” because, in fact, if ComicMix’s legal arguments were supportable, such a ruling would make independent creators of fresh material more vulnerable to substantial takings by large entities. It also should not be understood as a referendum on mashups in general, as the court explicitly stated that mashups can be fair use, just not this one.

In the end, I personally have sympathy for the ComicMix guys, recognizing that they put a lot of work into a project based on some very dubious copyright theory. But especially because the trio of creators who decided create Boldly are all professionals with skills and talent, the underlying lesson remains that it is almost always better to invent than to copy—let alone to copy legendary works as extensively and precisely as was done in this case.

*I cite Randy Rainbow as an example typically misunderstood as parody, and make no comment on the legality of his videos re. copyright.

Google v. Oracle XII : SCOTUS Should Not Remand on Fair Use Review

As mentioned in my last Google v. Oracle post, the Supreme Court devoted considerable attention during oral argument to addressing the standard applied by the Federal Circuit when it determined as a matter of law that Google’s copying of Oracle’s code was not fair use. Google maintains that the Federal Circuit failed to show proper deference to a jury decision, and I discussed the constitutional and historical aspects of this argument in an earlier post. Oracle’s response argues that the Federal Circuit performed essentially the same function on appeal that courts perform all the time at summary judgment, where the vast majority of fair use cases are decided.

The reason why so much fair use jurisprudence occurs at summary judgment is simply a practical reality of litigation. When a party moves for summary judgment—for instance, a defendant who presents a fair use defense to an infringement claim—the court must assume that the facts favor the non-moving party and then consider whether there is any genuine dispute as to a material fact and whether the moving party is entitled to judgment as a matter of law. Once a court rules as to whether (or not) a fair use defense will survive, that decision is so important to the legal positions of the two sides it is often the end of the case.

Google asserts that the Federal Circuit erred when it decided the fair use question. Indeed, several amici in support of Google argued that overturning the jury in this instance was a misstep under the rules of civil procedure and a violation of the Seventh Amendment. Counsel for Oracle, Joshua Rosenkranz, noted at oral argument that Google went so far as to assert that “only a jury can balance the [fair use] factors.” Assuming Oracle’s characterization of Google’s argument is accurate, Google is simply incorrect. Obviously, fair use is a matter that may be considered exclusively by the courts, since most of the time, it is. As the Federal Circuit opinion in this case states:

“The fair use question entails … a primarily legal exercise. It requires a court to assess the inferences to be drawn from the historical facts found in light of the legal standards outlined in the statute and relevant case law and to determine what conclusion those inferences dictate….the exercise of assessing whether a use is fair in one case will help guide resolution in all future cases.”

The Supreme Court may consider whether remanding to the Federal Circuit for review “under a more deferential standard [of review],” as Justice Gorsuch put it, would have a deleterious effect on future summary judgment proceedings. And I may be over-speculating here, but remand seems unlikely. If the Court finds that the Federal Circuit correctly applied its fair use analysis and solely weighed questions of law, then any lingering matters regarding deference—if they are found to exist at all—do not seem compelling enough to delay the Court from ruling on both the review standard and the fair use finding. After all, this case is already more than ten years old.

No Reasonable Jury…

According to Oracle, the Federal Circuit correctly applied the “no reasonable jury” standard in deciding fair use as a matter of law. Does this mean the jury was unreasonable? No. It means fair use, to put it in technical terms, is a pain in the butt. Professional creators struggle with it; attorneys struggle with it; and courts struggle with it. And the trickiest aspect of fair use is acquiring a sensitivity to the interdependence of the four factors, which, unsurprisingly, a jury is unlikely to possess.  

What the Federal Circuit determined was that the jury resolved disputes of historical fact in favor of the verdict (and this was reviewed with deference), but that the jury arrived at incorrect legal inferences drawn from those facts (and this was reviewed de novo). Thus, the appellate court found that, even deferring to the fact finding, Google’s copying was not fair use.

I suspect the Supreme Court will not find that the Federal Circuit applied the wrong standard, unless there is some arcane bit of civ pro flaw in the mix that eludes me and the litigants. The appellate court followed Ninth Circuit precedent (because that is where the parties would have filed had there not originally been a patent claim in the suit), and it seems to have very clearly articulated how it separated questions of fact from questions of law before proceeding with an in-depth fair use analysis. And the review considered the same questions of law judges consider on summary judgment, where fair use is so often decided. For these reasons, I imagine the Supreme Court will not remand but will instead rule on the fair use analysis itself and either agree or disagree with the Federal Circuit’s findings.  

Separating the Factual from the Legal in Fair Use

Under factor one (the purpose and character of the use), the Federal Circuit correctly separates the factual question of a use with a commercial purpose from the legal implication of a use with a commercial purpose. The opinion notes that Google’s commercial intent here is undisputed (how could it be when Android is worth billions?) and that the jury was instructed that commerciality generally weighs against fair use as a matter of law. The court then correctly identifies transformativeness as a legal question and spends nearly six pages explaining why Google’s use of the Java code superseded the purpose of Oracle’s original work and was, therefore, “not transformative as a matter of law.”

Under factor two (the nature of the work), the analysis is generally dominated by separating factual works, which are more often subject to fair use, from expressive works, which are less often subject to fair use. Acknowledging that computer code can be complicated because it is an expressive work of a highly functional nature, the Federal Circuit sensibly held that the jury could have decided that the functionality favored fair use under factor two, but that the factor itself did not weigh heavily overall. This opinion should be little surprise to Google and several of its amici, as they have made precisely the same argument in cases involving the use of expressive books and photographs.

The more that a single factor teeters on the centerline, the more determinative the other factors become. But to reiterate the broader point, there appears to be nothing novel about the Federal Circuit’s approach to separating the factual from the legal and opining solely on the legal under factor two.

Factor three (the amount and substantiality of the portion used) tricks a lot of people. A user might copy a fraction of a work and be justly found guilty of infringement because the third factor is a qualitative analysis that asks whether a user has copied the “heart” of the work. Alternatively, a user might copy a whole work and have the use fall within the fair use exception.  This is not to say that the fair use analysis is capricious—rather, this is one case where we really see the interdependence of the four factors.

Google argued that it only copied the bare minimum of what it needed to achieve its purpose, and it further adds that it used only a fraction of all Java code. But this ignores the Federal Circuit’s finding that the parties did not dispute that only 170 lines of code were necessary to “write in the Java language.” Thus, the appeals court found it significant that Google copied 11,330 more lines of code than it needed. Further, the Federal Circuit opined that “no reasonable jury could conclude what was copied was qualitatively insignificant, particularly when the material copied was important to the creation of the Android platform.”

Related to this consideration, note that although the word “purpose” is not stated in the third factor, Google’s defense and the Federal Circuit’s reference to how much code Google “needed to” copy demonstrates how the third prong consideration is influenced by the first factor finding. Purpose is highly determinative of fair use.  For example, in Campbell v. Acuff-Rose, the Supreme Court made clear that 2 Live Crew’s intent to parody “Oh, Pretty Woman” allowed a very liberal taking of the “heart” of the original material.

Every user has a purpose, and juries can be tripped up when that purpose results in something new and significant like a mobile operating system that attains Android’s market share. But it is important not to be distracted by the fact that Android is a big deal because this market reality does not tell us whether Google made a transformative use of Oracle’s code as a matter of law. And if transformativeness does not exist under factor one, then copying what may seem like a small portion of a work is more likely to tilt away from a finding of fair use under factor three. Ultimately, the Federal Circuit found that the third factor was either a tie or weighed against fair use.

Under the fourth factor (effect on the actual or potential market for the original work), if factor one weighs against fair use—especially with a commercial use—then odds are that the effect upon the potential market for the original author will be considered harmful. Further, under the fourth prong, the courts assume that upon a finding of fair use that the use in question will be repeated by other users. Thus, courts take an expansive view of “potential” market harm in the factor four analysis.

Here, the Federal Circuit held that the jury drew incorrect inferences about potential market harm and held that no reasonable jury could have imagined that no actual or potential market harm would fall upon Oracle’s protected work. It rejected Google’s arguments that Oracle 1) is not a device maker; and 2) had not yet built its own smartphone platform. To the untrained juror, these two points seek to emphasize Google as innovator using a work to exploit a market the original author never intended to enter, but the appellate court rightly observes that these facts are irrelevant as a matter of law under factor four.  

The problem with Google’s arguments here is that they both clearly ignore that a copyright owner has a right to the potential market for lawful derivative works. One does not say to an illustrator that because she has never been a comic book producer, she is denied the exclusive right to license her imagery for a graphic novel. One also does not say to the sculptor that if another party makes tea cozies out of her designs, she’s out of luck because she did not think of doing so first. These would be errors of law, both with regard to fair use factor four and Section 106(2) of the Copyright Act, which provides the exclusive right to prepare derivative works.

So, based on my rereading of the Federal Circuit fair use opinion, it appears to have properly and extensively separated the factual and legal considerations in Google v. Oracle, considered the legal questions de novo, and correctly found as a matter of law that under the historical facts, no reasonable jury could have found fair use. I will be very surprised if the Supreme Court does not agree with the appellate court’s analysis and, therefore, even more surprised if they find any complaint about the standard of review compelling enough to remand.

Lemley Proposes Copyright Term Limit Disguised as Fair Use

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.