Fordham IPLJ Symposium: Ringing or Reeling in of Copyright
On September 30th, Fordham’s Intellectual Property, Media and Entertainment Law Journal held an informative Symposium at the Fordham Law School. A particular panel of interest was CopyRight vs. CopyLeft, which featured rather outspoken and opinionated professionals currently immersed in the fields of copyright and trademark: Lauren Emerson, the Senior Associate at Baker Botts, whose practice focuses on trademark, copyright, advertising and unfair competition. Ms. Emerson has represented an array of clients disputing over trademark, copyright, unfair competition, and related business torts. She received her JD at Fordham Law School. Joseph Farco, an Associate at Locke Lord and Co-Chair of New York Intellectual Property Law Association’s Copyright Law and Practice Committee, with experience in trademark, copyright and trade secrets. In addition to litigating issues involving intellectual property law he also advises clients in protecting their intellectual property including what types of intellectual property is suited to the subject matter in question. Mary Rasenberger, the Executive Director of the Authors Guild Foundation, who prior to joining the Guild, practiced law for over twenty-five years and is a recognized expert in copyright and media law along with James Vasile, a partner in Open Tech Strategies with fifteen years of experience as a user, developer, advocate and advisor in the free and open source software world. He has vast experience in software licensing and community building as well as non-profit and small business start-ups. His work often takes him far beyond the world of software.
The Moderator, N. Cameron Russell, Adjunct Profess at Fordham Law School, jump started the conversation with the following potent question as to the fluctuating state of fair use today: “Are there any particular areas of fair use that seem out of balance currently?” Mary Rasenberger opened with the following statement: “Fair use has been out of balance since the Supreme Court turned down an appeal by prominent authors who blamed Google for creating a project which incorporated snippets of copyrighted works, earlier this year.” In developing its Google Book Search database, the Authors Guild accused Google of engaging in full-throttle infringement on a mass scale. Mary proceeded, in monologue, to state: “Since Acuff-Rose Music, Inc. sued 2 Live Crew and their record company, claiming that 2 Live Crew’s song “Pretty Woman” infringed Acuff-Rose’s copyright in Roy Orbison’s “Oh, Pretty Woman” and when the District Court granted summary judgment for 2 Live Crew, holding that its song was a parody that made fair use of the original song, there was this introduction of a new term to the fair use lexicon of transformative. The courts since then have taken it in extreme directions. They have turned fair use into a one-factor test instead of the four factor test, namely all that is important is whether the work is used in a transformative manner. It doesn’t matter if it’s commercial, it doesn’t matter what the nature of the work is, nor does it matter how much of the work is taken from an original source.
The Courts currently apply a new functionality to works based on previous content and new types of use standards that are not creating novel works but new ways of using existing works. I think it takes us on a slippery slope where we are cutting into fair use, into copyright in a very extreme way.” In other words, in fair use there exists an important rule: when you make a fair use decision, you are creating a rule of law. This signifies that anybody can essentially create a new rule. Google may claim that its project represented a fair use since it’s seemingly the digital age’s equivalent of a library’s card catalogue, but at heart, the panelists feel that the State of Transformative Use Doctrine is now applied too broadly, as exemplary in Google Books, and this is where law treads on dangerous ground. Joseph Farco commented: “There’s a fine line that’s being walked here. While it seems that the courts are running haywire, there’s still some limit on the Transformative Use Doctrine to date, but certainly these factors that were annunciated by the court in the ACuff Rose Case remain illustrative.” Lauren expressed a personal frustration on the contemporary twist in fair use, lamenting: “While Fair Use is supposed to undergo a multifactor practical test in the courts, the results are not predictable. Courts across the country treat these cases differently. There has been a muddying of the waters quite a bit with the buzz term of Transformative Use Doctrine.” She posed the apropos question as to how we go about determining the precise line crossed when considering an un-authorized derivative work in juxtaposition to a work based on a former work but bearing a different cross and tone in expression.
James Vasile, who outwardly opposes the complex, intricate drowning cosmos of copyright laws in general, relayed this thoughts: “We are applying copyright law which was never meant to be applied in the first place. Human beings are interacting with the world around them, which is what humans do. In the digital age, people can’t be savvy about fair use because we never knew, decades ago, that this is the way in which we would be interacting. We are seeing the rules change as the terrain change. People need bright line rules since it’s difficult for lay folks who are not attorneys. There are rules about how much is allowed to be copied off a google search before it’s no longer deemed fair use. The developers, the non-lawyers, need a way to make a clear decision before hitting “paste” but we lack clarity, we lack real rules. We need to retreat from applying copyright to individuals who are forced to make these calculations but haven’t the training to do so!”
A heated discourse ensued between Mary and James pertaining to Copyright. Mary retorted by firmly standing her ground in defending Copyright and its existence: “No, I would not throw out copyright. Copyright has worked well and we are spoiled by taking it for granted.” Mary feels strongly that in a civilized democracy we need a professional class of creators who feel secure in the craft and art of creating. Since art is the engine of free expression, artists must take comfort behind the united front of copyright laws as a solid means to protect their work. Lauren elaborated on her view: “We don’t have to throw the baby out with the bathwater. A word that keeps jumping out at me is: Content agnostic. Could we have a framework for content neutral work which would be presumptively fair use as long as it extrapolated what it required to fulfill that purpose and didn’t harm the original work of the author?” Cameron commented that creators might not create if there was an absence of a copyright culture. He stated that “Old wine in new bottles is a slippery slope when you use it.” James ended the discussion thus: “It’s difficult to enact a bright line rule. The Creative Commons Licenses which allow for a certain amount of sharing media, books and music grant copying as long as it’s not for commercial purposes. But where is that clear line? If I make a copy of that book and sell it, am I engaged in commercial activity? What if I use the music in my webpage and this page has ads? Am I generating a profit?” According to James, the only workable solution, since the government will never reform any rule or law that quickly, is a head-on full retreat of implementing copyright laws. “Destroy all copyright laws then we can go home.”
Then Cameron posed the question to the panel in regards to the state of Notice and Take-Down Systems. Lauren presented her views: “I get defensive about 17 U.S. Code § 512 because having this system in place stimulates internet business. It’s a fantastically reliable quick relief when you have no idea who is posting the damaging content or how to take it down.” Joseph agreed: “The automated tools are a good idea. The copyright holder needs to consider the fair use before the content is taken down. When the take down is a trademark and not a copyright take down, the copyright holder may invoke the 512 Take-Down Notice.” After all, if one is utilizing automated tools, one could be subjected to liability and so the take down rule is implemented by courts to provide grounding. It’s a tool to police rights properly. Mary commented: “Notice and Take Down is highly controversial but 512 is an important tool that has allowed the growth of the internet.” It’s apparent that stamping out copyright infringement is serious business. James reiterated his thoughts on extinguishing copyright laws: “People are engaged in all of this expressive activity and now we have automated tools to find things. We shift the burden of dealing with it all to the Youtubes of the world. Turns out we are wasting our time deciding whether our kids can lip sync to Katy Perry. The Youtubes of the world begin doing their own work, carving out spaces where fair use ceases to exist. Notice and Take Down has that effect. The whole word is a copyright owner by the sweat of its brow. It’s pejorative to get a copyright.” Therefore, he feels there might actually be no legal solution. “Most software programs never considered the use of copyrights. These days, you can create and disseminate content at a whim, anyone can do it.”
Cameron posed the final question as to which side is winning, those who vouch for the preservation of the Copyright Laws or those who are against the application of said laws. Mary responded frankly: I think that there are people who are on CopyLeft and CopyRight and no one is hearing each other. It’s true that Copyright has been too heavy-handed in the past and there has been a reset in interpreting 512 and fair use. It’s going to take some time to sort these things out. In the end we’ll reach a balance, if we listen to each other.” Lauren responded: “There is tech on side and content on the other, in competition. Pirating’s incredibly lucrative and perhaps the pirates are winning.” Joseph concluded: “Copyright will win. The way in which you can create content today far exceeds the way it was envisioned. People will pirate and it’s lucrative but if someone steals your work, copyright laws will protect you. I am uncertain as to which form the laws will take in the future but the underpinnings are well vested in any creator who has the right of retribution if there’s any criminal activity and fair use infringement.”
In summation, copying appears to have been elevated to a highly transformative state via the Transformative Use Doctrine, which has the potential to undermine the protection of original work while inadvertently excusing the pirate who takes liberties by improvisation. Will the Transformative Use Doctrine adequately protect aspects of the original work or will hardline copyright laws return to shelter the original vulnerable creator from shameless copyright infringement?