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