Why does the rhetoric of copyright policy diverge so far from the practices and lifestyles of actual artists? Artists copy constantly, and rarely rely on copyright’s economic incentive. One explanation is that copyright really isn’t directed at promoting the creation of art; rather, it’s true objective is protecting the business models of publishers and distributors of copyrighted works. Media companies, however, are not as sympathetic beneficiaries of copyright legislation as individual artists, and thus hide behind artists when promoting their agenda.

To be sure, copyright plays a significant role in promoting the creation of works that are expensive to produce, such as motion pictures. But nuanced policymaking should not confuse the needs of movie studios with those of individual artists.
​
Moreover, because digital networks have dramatically lowered the cost of publishing and distributing works, copyright now is less critical to promoting these activities. While overly broad copyright laws may help large media companies preserve their profitability, they aren’t necessary to ensure that the public has access to creative works.

Fortunately, however, courts have very recently begun to refuse to enforce mandatory arbitration clauses in consumer transaction because they are recognizing, as the Pennsylvania Law Encyclopedia quoted above states, there are “grounds in law or in equity” for doing so. Two years ago, in Douglas v. Talk America, (9th Cir. 2007), the plaintiff challenged, by means of a class action complaint, the validity of an amendment made to the contract governing his telephone service. The amendment to the contract, among other things, required arbitration of all disputes arising under the contract. Moreover, the amendment was made unilaterally and without any notice other than the posting of the revision on the defendant’s web site. The U.S. Court of Appeals for the 9th Circuit, applying California law, held that the amended contract, including the arbitration provision, was unenforceable and dismissed the defendant’s motion to compel arbitration. The court rejected the reasoning applied by the New York courts that the plaintiff had “meaningful alternative choices for telephone service.” Id. at 8. The court also made clear that, absent the inclusion of the arbitration clause in the defendant’s unilateral modification of the original contract, a relinquishment of the right to bring a class action also “may be” unenforceable under California law, though it would be enforceable under New York law. Id. at 8-9. Douglas, however, may be of limited use as precedent in challenging mandatory arbitration clauses even outside of New York because the arbitration clause was added by means of the defendant’s unilateral amendment to the contract, an amendment that was unenforceable merely by virtue of the fact that a party can’t unilaterally change the terms of a contract; it must obtain the other party’s consent before doing so.” Id. at 4 (citations omitted).

This 9th Circuit’s reasoning in Douglas was extended in Harris v. Blockbuster, Inc. (N.D. Tex. April 15, 2009). In Harris, the court, applying Texas law, refused to enforce a mandatory arbitration clause in an online transaction despite the fact the clause was in the original contract and the contract had not been amended. Nonetheless, the court reasoned that the contract was unenforceable merely because the defendant had reserved the right to unilaterally amend its all of its terms, including the arbitration clause. Thus, the court concluded, the original contract had been “illusory.” Harris represents an extension of Douglas in that the right to amend even in the absence of amendment voids the entire contract. Nonetheless, as a matter of contract doctrine the case is problematic, at least outside of Texas. Generally, courts will find consideration supporting a contract that has not been amended, even if the contract purports to grant a right of unilateral amendment. Given the presence of consideration, the unmodified original contract would not be “illusory.” Indeed, the court in Douglas seemed to be operating on the assumption that under California law the contract in that case would have been enforceable had it not been amended (though the unmodified original contract in Douglas did not require arbitration).

Even more recently, however, the New Mexico Supreme Court faced squarely the consumer protection concerns implicated by mandatory arbitration clauses and refused to enforce a mandatory arbitration clause in an online transaction without engaging in strained academic application of the doctrine of consideration. Fiser v. Dell Computer Corp., ___ P.3d ___ (N.M. June 27, 2008). Instead, the court in Fiser struck down the arbitration provision and class action waiver precisely because the agreed upon arbitration procedure would preclude class action arbitration or litigation and was therefore “contrary to fundamental New Mexico public policy.” Id. at 4. The plaintiff in Fiser had filed a class action complaint against Dell Computer alleging, among other things, violations of New Mexico’s laws governing unfair business practices and false advertising. The complaint alleged that Dell Computer had “systematically misrepresent[ed] the memory size of its computers.” Id. at 3. Importantly, the complaint also alleged that the monetary damage suffered by each class member was only $10-$20. Id. Dell moved to stay the class action and compel arbitration of the plaintiff’s individual claim based on the mandatory arbitration clause set forth in the online agreement pursuant to which the plaintiff had purchased his Dell computer. Id. at 3-4. The trial court granted the motion, the court of appeals affirmed, and the New Mexico Supreme Court granted the plaintiff’s petition for a writ of certiorari. Id.

The court made clear that “New Mexico strongly supports the resolution of consumer claims, regardless of the amount of damages alleged.” Id. at 4. Moreover, the court noted, for precisely the reasons discussed above, that the class action is a vital means of enforcing consumer rights:

The opportunity to seek class relief is of particular importance to the enforcement of consumer rights because it provides a mechanism for the spreading of costs. The class action device allows claimants with individually small claims the opportunity for relief that would otherwise be economically infeasible because they may collectively share the otherwise prohibitive costs of bringing and maintaining the claim. See, e.g., 1 Alba Conte & Herbeli B. Newberg, Newberg on Class Actions § 21 1.6, at 26 (4th ed. 2002). “In many cases, the availability of class action reIief is a sine qua non to permit the adequate vindication of consumer rights.” State ex reI. 2 Dunlap v. Berger, 567 S.E.2d 265, 278 (W. Va. 2002). “The class action is one of the few legal remedies the small claimant has against those who command the status quo.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 186 (1974) (Douglas, J., dissenting in part).

Id. at 5-6.

Given (a) the importance public policy objective, expressed through a number of different consumer protection statutes, to protect consumers against wrongdoing and (b) the necessity of the class action to remedy and deter such wrongdoing when the consumer has so little at stake the device is the only rational means at his disposal to do so, the court felt compelled to hold that the mandatory arbitration clause was void:

[B]eyond merely a procedural tool, the class action functions as a gatekeeper to relief when the cost of bringing a single claim is greater than the damages alleged. When viewed in this light, a contractual provision that purports to ban class actions for small claims implicates not just the opportunity for a class action but the more fundamental right to a meaningful remedy for one’s claims. This Court has recognized that the right of access to the courts is part of the right to petition for redress of grievances guaranteed by both the United States and New Mexico constitutions. Jiron v. Mahlab, 99 N.M. 425, 426, 659 P.2d 311, 312 (1983); see also U. S. Const. amends. I, XIV; N.M. const., art. II, § 18. While the class action ban may or may not rise to the level of a constitutional violation, a prohibition on class relief where there is no meaningful alternative for redress of injury certainly does not provide for effective vindication of rights. See Mitsubishi Motors Corp., v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 (1985) (“[S]o long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, [a] statute will continue to serve both its remedial and deterrent function.”).

Id. at 7-8. In short, “by attempting to prevent him from seeking class relief, [Dell Computer] has essentially foreclosed the possibility that Plaintiff may obtain any relief.” Id. at 8 (emphasis in original).

Five days after the decision in Fiser, on July 2, the Supreme Judicial Court of the Commonwealth of Massachusetts followed the New Mexico Supreme Court’s lead and struck down contact provision in a consumer contract requiring individual arbitration of disputes because the enforcing it would be “contrary to the fundamental public policy of the Commonwealth favoring consumer class actions.” Feeney v. Dell, Inc., ___ N.E.2d ___ (Mass. Jul. 2, 2009). The plaintiff in Feeney had filed a class action complaint alleging that Dell Computer (again) had “improperly collected Massachusetts sales tax on the purchase of optional service contracts sold in connection with the purchase of Dell computers when . . . no such tax was due, and that the collection of such tax violated the Massachusetts consumer protection act.”

First, the court in Feeney made clear that technical contract doctrine was not going to stand in the way of vindicating consumer rights, stating that “[i]t is ‘universally accepted’ that public policy sometimes outweighs the interest in freedom of contract, and in such cases the contract will not be enforced.” Public policy requires disregarding mandatory arbitration clauses because “the class action . . . ‘was designed to meet a pressing need for an effective private remedy’” and “’traditional technicalities are not to be read into the statute in such a way as to impede the accomplishment of substantial justice.’” In addition, the class action is a means of achieving substantial justice in consumer contracts because “[p]ermitting consumers to sue as a class cure[s] the defect inherent in the consumer protection statute that no matter how egregiously a consumer might have been wronged, ‘the economics of a litigation designed to seek redress precluded an effective attack.’” (citations omitted.) And, of course, “[t]he right to a class action in a consumer protection case is of particular importance where . . . aggregation of small claims is likely the only realistic option for pursuing a claim.”

An additional point the court emphasized in Feeney is the class action’s deterrent effect: “Permitting Dell to prohibit class actions against it through its contracts with its customers would . . . undermines the public interest in deterring wrongdoing. Finally, the court observed that “the loss of an individual consumer’s right to bring a class action negatively affects the rights of those unnamed class members on whose behalf the class action would proceed.” The court made clear that it was not averse to class arbitrations and made a point of the fact they are available:

[C]lass arbitrations do in fact occur. See In re Am. Express Merchants’ Litig., [554 F.3d 300, 310 n.7 (2d Cir. 2009)], quoting Clancy, An Uninvited Guest: Class Arbitration and the Federal Arbitration Act’s Legislative History, 63 Bus. Law. 55, 56 (2007) (“It is apparent that ‘[c]lass arbitration is a swiftly growing phenomenon'”); McKee v. AT&T Corp., 164 Wash. 2d 372, 395 (2008) (“Class actions are often arbitrated”). Moreover, a majority of the Justices of the United States Supreme Court has, at least implicitly, indorsed class arbitrations as consistent with the FAA. See Shroyer v. New Cingular Wireless Servs., Inc., 498 F.3d 976, 992 (9th Cir. 2007), citing Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 454 (2003).

Accordingly, the court left the door open to the approval of contract provisions requiring class arbitrations, limiting the force of its ruling to “small value” consumer transactions in which any “clause effectively prohibit[s] class proceedings in any forum.” (emphasis added.)

Contract law should not be a means of enforcing performance of actions whose legitimate purposes are being perverted in a particular deal. The purpose of arbitration is not to be a procedural snare to trap a party into a situation in which he can get no feasible remedy for a legal wrong; its purpose is to promote efficient dispute resolution. Courts finally, in the last month, are making this point explicit. No doubt these issues will continue to be litigated in the immediate future; already, at least one firm has announced that it will be filing a class action against Amazon for breach of the Kindle end user license agreement in connection with Amazon’s recall of 1984 and Animal Farm. More importantly, the U.S. Supreme Court, toward the end of its recent term, has agreed to hear Stolt-Nielsen S.A., et al. v. AnimalFeeds International Corp., in which the Court will decide “[w]hether imposing class arbitration on parties whose arbitration clauses are silent on that issue is consistent with the Federal Arbitration Act.”

Courts are acting in legitimate ways when they require disputes to be resolved in ways that provide relief for and deterrence of wrongdoing. Institutions that administer arbitrations are beginning to recognize the problems as well. This month, the National Arbitration Forum (“NAF”) has entered into a consent decree, settling a suit brought by the Minnesota Attorney General, pursuant to which the NAF has agreed to refrain from arbitrating consumer transactions altogether. And the American Arbitration Association (“AAA”) has voluntarily imposed a moratorium on the administration of debt collection arbitration programs in all consumer transaction cases. It is time for legislatures to step in as well.

For companies, the allure of arbitration grew after a 2011 Supreme Court ruling [that is, ATT v. Concepion] cleared the way for them to use the clauses to quash class-action lawsuits. Prevented from joining together as a group in arbitration, most plaintiffs gave up entirely, records show.

​A cease and desist letter has no force in and of itself: all it does is declare the copyright holder's belief that a work infringes a copyright and his threat to enforce that belief by means of a lawsuit if the alleged infringer doesn't stop what he is doing. The threat, however, is often an empty one. 

​​[T]here’s an argument to be made . . . that the ad should be considered fair use: it’s political speech, which traditionally receives the highest level of First Amendment protection; [and] it’s not taking a penny out of [the artist's] pockets, the most important element in the four-part fair-use balancing test . . . .

What are you thinking, Herb Mitgang? August 7, 2008

The knee-jerk reaction some writers and other artists have to any unauthorized use of their copyrighted works often baes me. Artists often react viscerally to any unauthorized use of their creations even when doing so fails to serve, as far as I can tell, any legitimate personal interest they might have. It's as if they simply think: it's my property, and no one can touch it unless I tell them they can! The Association of American University Presses provides a useful summary of the Google Book Search Program:

​Many university and scholarly presses have participated enthusiastically in the Publisher program, which allows their print publications to be indexed and displayed to an appropriate extent through Google's beta online index of print materials while protecting their own, their authors' and third parties' rights. The Library program has proven controversial, as Google plans to scan, digitize, and copy not only public domain works from ve world-class research libraries, but also the in-copyright collections of at least some of those libraries. The libraries are the Bodleian at Oxford University, Harvard University Library, the University of Michigan Library, the New York Public Library, and Stanford University Library. 

​It is important to understand that Google is not merely copying the libraries' collections in order to make them available electronically to the world. Instead, Google Book Search allows its users to search the entire database of what Google has thus far scanned. For works by authors who have granted Google permission, a user of the Book Search can scan read the entire text. But for those who have not expressly provided that permission, a search through Book Search will turn up only books containing the searched terms along with snippets of approximately 3 lines around the searched terms. In short, Google Book Search is a boon to researchers, allowing them to locate books relevant to their research in libraries they could not possibly ever have visited. They then can obtain the books, either through inter-library loans or through online purchases. Without Google Book Search, in other words, myriads of profoundly useful books scattered around the world would remain utterly invisible to the vast majority of people with interest in them.

Which brings me to Herbert Mitgang. Mitgang is one of the named plaintis in the Authors Guild lawsuit seeking to shut down the Google Library Project. Mitgang was born in 1920, and since the 1950s he has been a prolic writer in numerous genres, from journalism to ction to biography. Among his books are three on Abraham Lincoln. Mitgang, however, is hardly a household name. His books on Lincoln are still in print, but, despite my acquaintaince with several amateur Lincoln-obsessed readers, none of them have read any of Mit- gang's Lincoln books. Mitgang is 87 years old. It seems quite likely therefore that, within a decade or so, the only feasible way Lincoln researchers will be able to obtain his books will be from the collections being scanned by the Google Library project. In short, I cannot begin to imagine why Mitgang wants to shut down the Google Library Project. Without it, his books will likely fade into oblivion. On the other hand, if the Google Library Project is a success, there is every possibility that future Lincoln researchers might come across and use Mitgang's Lincoln books. I wish I could get in a room and ask him: Why are you doing this? Do you really want your life's work to disappear entirely from the sight of future researchers? 

​This is one of the quotes that opens Steal Like An Artist, and I go back to it occassionally to remember that Eliot had it all laid out almost 100 years ago. It’s actually quite different than the “good artists copy, great artists steal” quote that is usually (mis)attributed to Picasso. What Eliot is talking about is transformation — not just taking things out of context, but re-contextualizing them. (Godard put it, “It’s not where you take things from — it’s where you take them to.”) Actually, as Eliot points out, it does matter where you take things from — a good poet borrows from poems “remote in time, or alien in language, or diverse in interest.” So: steal from the past, steal from another language or culture, or steal from someone who’s writing about another subject. 

​[I]n real life there is likely to be not just one answer to a clients problem but a whole range of possible answers, some of which are clearly wrong, but many of which are at least plausibly right, in varying degrees. Living with ambivalence and uncertainty is not always pleasant, but the ability to do so is surely a more necessary lawyering skill than mastering the niceties of citation form.

​The result is a systematic overclaiming of copyright, resulting in a misunderstanding of copyright's breadth. Look at the copyright page in virtually any book, or the copyright notice at the beginning of a DVD or VHS recording. The notice will almost always state that no part of the work can be reproduced without the publisher's (or movie studio's) permission. This is a denial of fair use. The reader or viewer who thumbs his nose at the copyright notice risks receiving a threatening letter from the copyright owner. He doesn't know whether he will be sued, and because the fair use doctrine is vague, he may not be altogether confident about the outcome of the suit. The would-be fair user is likely to be an author, movie director, etc. and he will find that his publisher or studio is a strict copyright policeman. That is, since a publisher worries about expansive fair uses of the books he publishes, he doesn't want to encourage such uses by permitting his own authors to copy from other publishers' works. So you have a whole "law in action" law invented by publishers, including ridiculous rules such as that any quotation of more than two lines of a poem requires a copyright license.

An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sucient to state a misrepresentation claim pursuant to . . . the DMCA. Such an interpretation of the DMCA furthers both the purposes of the DMCA itself and copyright law in general. In enacting the DMCA, Congress noted that the provisions in the bill balance the need for rapid response to potential infringement with the end-users [sic] legitimate interests in not having material removed without recourse.

from "The Invention of Influence," by Peter Cole