Copyright Overclaiming

The law on the books and the law in action (with an on copyright overclaiming) (originally posted on August 27, 2008)

It's pretty obvious law and behavior often diverge. In some cases, that divergence arises from ambiguity and the realities of human relationships. How do you respond when a valued customer arguably breaches his contract with your client? Quite possibly, if not likely, your client will be better served by ignoring the breach of the written obligation and keeping the customer satised. As Charles L. Knapp, Nathan M. Crystal, and Harry G. Prince write in the preface to the casebook I use in my Contracts course:

[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.

Some lawyers and clients, however, abuse this gap between law and behavior. I am not referring to the everyday, harmless disregard of the "rules." How often do you obey the speed limit? But, as Judge Richard Posner writes, this "dichotomy long noted by legal thinkers between the law on the books and the law in action" is a particular problem in copyright law. Often the mere threat of an infringement action can extract money from someone using copyrighted material in a legitimate way. The problem, of course is exacerbated considerably because the copyrights to so much of our media are owned by corporate conglomerates. Who is going to fight Disney, even if he's right? Another problem is the widespread ignorance in the media about copyright. As Posner writes:

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 lm 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 condent about the outcome of the suit. The would-be fair user is likely to be an author, movie director, etc. and he will nd 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.

Universal Music recently was, at least for the moment, slapped down in a particularly absurd instance of copyright overclaiming. Universal sought to remove Stephanie Lenz's 29 second video of her son dancing to Prince's "Let's Go Crazy" from YouTube via a takedown notice under the Digital Millennium Copyright Act (the "DMCA"). Lenz in turn sued Universal on the grounds that in sending the takedown notice Universal knowingly misrepresented that Lenz's video was infringing. Remarkably, Universal argued that a copyright holder need not consider whether the use of copyrighted material is legitimate fair use before sending a takedown notice. The DMCA provides, however, that a copyright owner can send a takedown notice only if he has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. If use of copyrighted material constitutes fair use, it is "authorized by the law." And there is no question that determining fair use can be a difficult and complicated determination. But not in not in Stephanie Lenz's case. Here's the "offending" video:

It should be no surprise that U.S. Federal District Court Judge Jeremy Fogel rejected Universal's argument that, before sending a takedown notice to YouTube, it did not need to even consider whether the presence of Prince's "Let's Go Crazy" in the video was a fair use . Accordingly, the judge refused to grant Universal's motion to dismiss Lenz's case. In his decision, Judge Fogel wrote:

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.

Not everyone has the guts of Stephanie Lenz. That's a problem. The Universals of this world have all the money. Recently, the Electronic Frontier Foundation noted that another "federal judge denied copyright infringement allegations from Universal . . . arming an eBay seller's right to resell promotional CDs that he buys from secondhand stores."

[Editor's update: for a complete set of the documents filed in the litigation between Lenz and Universal still ongoing in 2014, see the Electronic Frontier Foundation's page dedicated to the case.}

Why might Google be a former "white knight"? (originally posted on December 2, 2008)

Some people have expressed fear Google's decision to settle the lawsuit over the Google library project heralds a new era, one in which Google will not be the rich uncle fighting for the rights over copyright that others, who cannot afford to engage in lawsuits, will be unable to fight. The point deserves some further consideration.

First, those who represent wealthy corporate interests typically decry the fact that in the U.S. the party who brings the lawsuit (the plaintiff) and the party who is sued (the defendant) each bears its own litigation costs, win or lose. This rule (the American Rule) is in contrast to the English Rule. In the U.K., the party who loses a lawsuit pays the costs of the winner's lawyers. As a result, there are fewer cases brought in the U.K. by plaintiffs without considerable resources. Corporate interests that advocate for "tort reform" don't want individuals suing corporations as often as they currently do for things like personal injury and employment discrimination. If plaintiffs had to pay the costs of the defendants' attorneys in those lawsuits when the plaintiffs lost, far fewer plaintiffs would in fact sue.

But in the copyright arena in these internet days, it generally is wealthy corporate interests that are threatening to sue or actually are suing individual defendants. Because many of these defendants cannot afford to pay for lawyers to fight these threats, they back down. As a result, there is what is called "copyright overclaiming" - that is, copyright holders claim rights they don't have, threaten legal action (or send DMCA takedown notices), and get what they want even though they are not entitled to it. 

Sometimes copyright holders can get help (from, for example, the Electronic Frontier Foundation), but in 999 cases out of 1000 they're left to their own devices, and it usually makes far more sense to back down then to fight. 

That's why, if Google is no longer going to fight copyright battles it thinks should be fought on the merits (and not only for short term business advantage), it would be a real loss; it is, in short, Google would no longer be the "white knight" it has been until now in the copyright arena.

Editor's update, February 27, 2014: The litigation over the Google Library Project remains unresolved to this day, though it is very good news that the only court decision on the merits to date has found that the endeavor does indeed constitute fair use.

Artists don't protect their "purity" through copyright overclaiming. (Originally posted on June 24, 2011)

Readers of this blog know I feel pretty strongly about the subject raised in this post, particularly in connection with genres often disparagingly referred to as "appropriation art." Well, my friend Andrew Dubber pointed me to this very cool "8 bit, chiptune" reworking of Miles Davis' Kind of Blue, dubbed Kind of Bloop. Andy Baio, Kind of Bloop's creator, unfortunately ran into the type of problem with which I am all too familiar. As he writes,

Before the project launched, I knew exactly what I wanted for the cover a pixel art  recreation of the original album cover, the only thing that made sense for an 8-bit tribute to Kind of Blue. I tried to draw it myself, but if you've ever attempted pixel art, you know how demanding it is. After several failed attempts, I asked a talented friend to do it.

Unfortunately, Jay Maisel, the photographer who shot the original photo of Miles Davis used for the cover of Kind of Blue. threatened a lawsuit for copyright infringement seeking hundreds of thousands of dollars in damages. Baio settled, agreeing to pay Maisel $32,500 and not to use the artwork again. And he writes,

But this is important: the fact that I settled is not an admission of guilt. My lawyers and I firmly believe that the pixel art is "fair use" and Maisel and his counsel rmly disagree. I settled for one reason: this was the least expensive option available. At the heart of this settlement is a debate that's been going on for decades, playing out between artists and copyright holders in and out of the courts. In particular, I think this settlement raises some interesting issues about the state of copyright for anyone involved in digital reinterpretations of copyrighted works.

One thing both Baio and I find particularly troubling is a statement Maisel's lawyer made in a letter to Baio in explaining that Maisel never even would have licensed the use of the image:

He is a purist when it comes to his photography," his lawyer wrote. "With this in mind, I am certain you can understand that he felt violated to nd his image of Miles Davis, one of his most well-known and highly-regarded images, had been pixellated, without his permission, and used in a number of forms including on several websites accessible around the world.

I am no cynic, and I have respect for people's work and spiritual purity, but this is nonsense. Copyright does not give an artist the power to control the way his work is used to the point that he can forbid transformative uses of it. Or, rather, it does, but only if he is willing to use his nancial weight and the ways our legal system allows that nancial weight to coerce those without the same resources. And that is hardly the behavior of a "purist." But it is copyright overclaiming. Art builds on art. Maybe Maisel should read The Gift, by Lewis Hyde. The introduction is available here (pdf).