Tag: Featured

Let’s Stop “Fixing Copyright” for the Sake of our Digital Future

As 2021 winds down, and this blog approaches the mid-point of its tenth year, I ask the following question: Can certain folks stop trying to “fix copyright” in deference to the digital age now that the internet experiment has failed?

For over twenty years, the principal argument underlying the “copyright is broken” narrative has been that the legal framework limits the democratizing power of digital technology to improve the world through unfettered access to everything. That premise was always flawed, but it seems especially absurd today, against the backdrop of evidence that the worst consequences of the digital revolution thus far are attributable to blind faith in that utopian ideal. We can see clearly now that there is no “home of Mind,” as Barlow predicted. There is no global public square where a more enlightened civility transcends the anachronistic laws of “weary nations” through the power of information and an ethics requiring nothing more than the Golden Rule.

Like all utopian visions, tech-utopianism did not account for human nature and human folly—for instance, that emotion is stronger than evidence as a motive for action and that no amount of free access to information is going to alter that principle. It is barely controversial at this point to say that social media has been toxic for certain individuals and for whole democratic societies, specifically because of its power to commend ignorance and for that ignorance to form the nuclei of social subgroups who take harmful action.

Yet, despite the dismaying evidence that science and civility are in retreat in the U.S. and other democratic nations, various organizations and individuals still insist that more access to more content is the antidote and that it is copyright law which stands in the way of salvation. Efforts to weaken the copyright statute, as well as efforts to dilute the efficacy of the law as it is, continue unabated, even while standing in the sticky goo of the failed experiment, which subverted so many principles to that alleged virtue of “openness.”

As discussed in an earlier post, a group of academic librarians met in late March with Brewster Kahle of the Internet Archive and Senator Wyden, and with straight faces, they opined that copyright law needs to change in order to provide better eBook access as an antidote to the disinformation that results in conspiracy theory and violence like the insurrection of January 6. The lack of evidence-based thinking revealed in that conversation alone is an irony that should speak for itself. To imply that making eBook lending cheaper for libraries is any kind of solution to our disinformation problem is magical thinking indistinguishable from the conspiracy theories themselves. And that’s before we address the specific policy flaws in their proposals.

Related to that discussion are the library association-backed eBook licensing bills in New York, Maryland, and Rhode Island, which amount to state compulsory licenses (therefore, likely preempted by federal law); and again, the argument presented for these short-sighted provisions is that communities are “shut out of the marketplace of ideas.” This is rhetoric straight out of the tech-utopian bible—exaggerating the role of the library—valuable as it is—to rescue society from its current perils through more voluminous eBook lending. But as I have previously noted on this topic, the majority of people engaged in some of the most dangerous, idea-free conduct do not suffer from lack of access, and what they do suffer from, librarians surely cannot solve.

Meanwhile, the ALI Restatement of Copyright project presses onward, ignoring criticism from the some of the most respected minds in IP academia, and is another example of an effort to weaken copyright law to serve that chimeric, cultural progress enabled by digital technologies. The 2014 memo articulating the rationale for the Restatement project states, “…it falls to the federal courts to attempt to improve the fit between a mid-20th century copyright law and 21st century digital technologies.” Yes. It falls to the courts. Or to Congress to rewrite the law. But impatient with these core functions of the Republic, a small group of ideologues took it upon themselves to write an alternative copyright law. And in the service of what?

Many of these same ideologues and associated organizations inveighed against passing the CASE Act to provide a small-claim copyright remedy for independent creators. Ironically, this is an amendment to copyright law in response to the digital age—namely, a response to rampant infringement enabled by digital technologies. But the “fixers” of copyright do not support proposals for independent authors to enforce their rights. They will likely continue their opposition as the small claims board begins operating next year, and their attacks will surely reiterate those virtues of digital life which have yet to manifest.

Looking solely at the U.S., it is tough to make the case that the open floodgates on content have, on balance, had a salubrious effect on the quality of discourse. The level of rancor and vitriol, from Capitol Hill to Main Street, has already boiled over in some of the worst spectacles in our history, and it shows no sign of abating. If experiments in copyright “fixing” were a drug trial, and “information” the main ingredient used to fight virulent idiocy, we would have to conclude that the treatment has little or no mitigating effect on the disease. Yet the copyright “fixers” continue to insist that the problem is dosage—that all we need is more.

It is only in the last few years that the American public, Congress, and the press have generally soured on the tech-utopian vision. While complaints vary across the political spectrum about, for instance, the conduct of social media companies, it does seem clear that the policy of laissez-faire for all things internet is about to expire. And a major reason for this change in direction is a broad recognition that the original theory—leading to the experiment in letting everything flow and expecting the good to outweigh the bad—has proven to be deeply flawed. So, in light of the fact that the “fix copyright” agenda was largely founded on the presumed success of that experiment, maybe it’s time to put down the toolbox and take a pause.

Taking a Cue from Aaron Moss, Further Thoughts about Miramax v. Tarantino

The blog Copyright Lately by attorney Aaron Moss is a must-follow for copyright nerds. His posts are always lively and filled with historic details or other arcana that will appeal to the true enthusiast, and in that spirit, Moss’s latest post got me thinking. It’s about the Battaille Royale between Quentin Tarantino and Miramax Pictures over Tarantino’s intent to sell seven exclusive NFTs based on high-resolution digital scans of selected handwritten pages from the original Pulp Fiction screenplay. “But while Miramax v. Tarantino is being billed as the first major legal dispute involving copyrights and NFTs, it really isn’t a dispute about NFTs. Frankly, it’s barely a dispute about copyrights,” Moss writes.

Describing the NFT aspect of the lawsuit as a distracting “shiny object,” Moss explains, “… this is primarily a contract dispute—a fight about whether the publication rights Quentin Tarantino reserved in his agreement with Miramax include the right to sell digital screenplay scans. While Tarantino happens to be selling the scans as NFTs, the principal legal issue in the case will be whether he has the right to create and sell them at all. This will hinge on the meaning of Tarantino’s reserved ‘screenplay publication’ rights.”

Tarantino reserves the right to publish the screenplay, and if the manuscript pages to be scanned are considered “published” segments of the script, Tarantino likely wins. If, on the other hand, the scanned pages (with bonus features) are considered merchandise, then Miramax likely wins because those rights are reserved by the studio. So, of course, Moss is right that this is barely a copyright case and that the NFT aspect is largely irrelevant, except, of course, that copyright law can tell us something about the nature of the works in dispute, and this may include how they will be made available.

Particularly because we do not have the proposed NFTs to examine, the questions are a bit murky as to what kind of works are ultimately in dispute. But let’s keep in mind that Tarantino reserves the right to publish the expression originally fixed as a screenplay, and what Miramax reserves is the right to prepare derivative works based on the expressions originally fixed in the motion picture, which would include merchandise. Miramax also owns the trademarks on Pulp Fiction, which it accuses Tarantino of infringing in the promotion of the NFTs.

“A Connecticut Yankee in King Arthur’s Court, page 1.” Chad Kleitsch, 2005. Used by permission.

This case made me think immediately of my friend Chad Kleitsch’s work in scanography (a term he might have coined) in which he uses a scanner rather than a camera to capture latent images, turning various objects into works of visual art. Using backlight in the scanning process and applying often painstaking work in post, Kleitsch generally prints his images in large scale, and in these prints, ordinary objects—from flowers to baby dresses—become artworks which are ineffably distinct from the artifacts themselves.

Among the objects Kleitsch has made into artworks are various culturally significant, handwritten documents, for instance, the first page of Chapter 1 of the manuscript for A Connecticut Yankee in King Arthur’s Court. Mark Twain’s writing is, of course, in the public domain, but even where the expression may be free to use, the right to reproduce objects like manuscript pages is vested in the owners of those objects, and this scan was made with permission of the New York Public Library, where the document resides. (In this regard, Tarantino is presumably the owner of the physical manuscript pages he intends to scan.)

Of course, Kleitsch’s scanographed works fit a classic paradigm when he meticulously prints the images and displays these prints in galleries where they are offered for sale. This familiar fine-art mode is arguably the opposite tradition of the NFT craze, and some might even call it outdated, though we shall see. Regardless, my point is that scanned manuscript documents can be unique works of visual art in which the expressive and cultural value of the handwriting on the paper is fixed anew in a manner that changes the context of the original object, often altering, transcending, or commenting upon the expression in the words themselves.

If Kleitsch were to come into possession (legally) of one of Tarantino’s manuscript pages, turn it into a singular work and sell that work at a gallery for a million dollars, not only would I expect him to buy lunch next time we meet, but I think copyright law would likely find that either the resulting visual work amounts to de minimis reproduction of the protected expression (the words on the page), or that the amount of copying of the protected expression is defended under the fair use doctrine for the purpose of making an entirely new work of visual art.

My point in highlighting Kleitsch’s work is to emphasize that a page of writing is simultaneously a fixation of protected expression and an object, which can be made into a new work of visual art, and in Miramax v. Tarantino, a relevant question may be whether the proposed NFTs are considered artified objects or solely reproductions of the expression in the original screenplay. To an extent, the handwriting element ads some weight to the former conclusion, but much depends, I think, on what is ultimately produced and how it is made available. In fact, what Tarantino proposes to create may be more akin to derivative works within the ambit of the motion picture franchise and reeking of merchandising. The Miramax complaint states the following:

The Press Release … described the Pulp Fiction NFTs as containing “one-of-a-kind” content that had “never been seen or heard before, . . . includ[ing]: the uncut first handwritten scripts of ‘Pulp Fiction’ and exclusive custom commentary from Tarantino, revealing secrets about the film and its creator.”

With that kind of promotion, one can at least see where Miramax might have reason for concern. Custom commentary and behind-the-scenes type material in a gimmicky package (and especially using the Pulp Fiction trademark in promotion) is reminiscent of merchandising derivative works based on the motion picture, which falls under Miramax’s reserved rights.

The NFT promos and the complaint imply that Tarantino will not be scanning seven non-consecutive single pages into unique works of visual art (a la Kleitsch) but that he will be scanning seven iconic scenes from the movie, each of which will comprise several pages totaling, perhaps, twenty-five or more, or nearly one-fifth of the screenplay. Arguably, the more pages Tarantino reproduces, even with commentary, the more the NFT would appear to fall within his publication rights. Further the handwritten pages are personal property, which he has the right to make into visual works. On the other hand, would Tarantino have the right to produce a gold-embossed, leather-bound, one-of-a-kind copy of the screenplay to sell at auction? Is that an edition of the screenplay or a unique piece of merchandise? Or is it both? In that sense, how are the proposed NFTs different?

So, although I would expect that the handwritten pages element combined with the publication rights tilt in Tarantino’s favor, a lot may depend on the overall package embodied in the NFT, how it is presented, and (perhaps) whether it is made available to anyone other than the individual buyers. Especially if the material winds up distributed to Pulp Fiction fans everywhere, the manner in which the proposed elements are arranged and presented may look a lot more like merchandise derived from the motion picture, than like publication of the expression embodied in the dramatic work called the screenplay.

So, what is Tarantino ultimately creating? A limited publication of a screenplay, a gimmicky piece of merchandise, or a new work of visual art? Without the works to analyze, it’s very hard to say. But based on the available evidence to date, the proposed NFTs may be all of the above. As such, perhaps this whole venture was best pursued as a collaboration. We shall see.

SAS v. WPL Litigation is of Great Importance to the Smallest Creators

Software companies SAS Institute of the U.S. and World Programming, Ltd. (WPL) of the UK have been litigants for more than a decade. By all accounts, WPL presents as a bad actor which lazily cloned SAS’s world-class analytics software. But before weighing the facts necessary to consider claims of IP infringement, the Federal Circuit Court of Appeals must first overturn the errors of copyright law applied by a Texas District Court, lest those holdings further weaken the already tentative position of independent rightsholders.

Presumption of Validity

I’ve spent a lot of time recently talking about formalities in U.S. copyright law (particularly with regard to the Unicolors and Valancourt cases), and it is recognized by those who care about indie creators that certain mechanisms in our copyright system already disadvantage entrepreneurial rightsholders. The individual or small-business creator can hardly be blamed for smirking at the fact that copyright attaches automatically to a work upon fixation, when that statutory provision barely vests her with any real power to enforce her rights. Enter the inducement to register.

The primary incentive to timely registration of works with the Copyright Office is that it allows the copyright owner to obtain statutory damages and legal fees upon successful litigation of an infringement claim. But another essential inducement to registration is the “presumption of validity,” meaning that a court will presume at the outset that the work at issue is properly a subject of copyright protection based solely on its having been issued a valid registration by the Copyright Office.

The reason the presumption of validity is critical, and decades-long precedent, is that it correctly places the burden on the defendant to prove a lack of copyright in the work(s) used, if non-copyrightability is to be presented as a defense. The district court in SAS reversed this principle, placing the burden on the plaintiff to prove copyrightability of register works at trial, and then aggravated this error by engaging in an extraordinary copyrightability analysis of its own design it named a “Copyrightability Hearing.”

Not only was the hearing itself an attempt to plough new ground by this court, but its analysis was improper, citing certain features of the work (e.g. open source), which do not inherently raise copyrightability questions, and then arrived at the untenable logic that the protection of a whole work may be undermined simply because it contains unprotectable elements.

Undermining Copyrightability Itself

As noted in my first post about this case, arguably all works contain unprotectable and protectable elements, and I cited the motion picture as a highly complex combination of such elements which are assembled to compose the finished movie. Among the copyright registrations made for the project will be the motion picture as a single unit, comprising its many parts—protectable original, protectable sublicensed, and unprotectable common elements—under a single title.

Imagine the cost and time if the owner of the motion picture were required to re-prove at trial the copyrightability of the entire film through analysis of the various components and then prove that the arrangement and use of those components is sufficiently original for copyright to attach in the first place. And that’s before proceeding to trial of an infringement claim.

Now, imagine that burden is borne by the independent illustrator, photographer, writer, or music composer, if this district court’s abrogation of the “presumption of validity” were allowed to stand. “The plaintiff would face the insurmountable task of proving a negative—that all of his work is not in the public domain or not an idea,” states the amicus brief filed by Copyright Alliance.

The opportunities for independent creators to enforce their copyrights are already hamstrung by the authors’ limited resources and our overly bureaucratic system. As a result, the overwhelming majority of American creators of works do not participate in the U.S. copyright system. And that is presumably what the copyright detractors want to see.

It is no surprise that those who scorn the existence of copyrights—either because weak protection is in their financial interest or because they are disciples of the Tao of Lessig—have endorsed the district court’s findings in SAS. Because if one hopes to further erode the rights of individual creators, or, perhaps, even industrial creators, enshrining this court’s rulings as precedent would be a very effective means to achieve that end.

Courts outside the Second and Ninth Circuits can be unpredictable when it comes to copyright law; but here, the Texas district court’s novel approach might fairly be described as eccentric, if not downright misguided. For the sake of creators much smaller and more vulnerable than SAS, the Federal Circuit must reverse that court’s multi-faceted errors of law before this case can proceed to the merits of the actual claim.