May 22, 2013
Mark Fischer on Copyright in the Digital Age
Posted on Jan 30, 2009
But isn’t the war about who controls content over? The record industry’s campaign of suing allegedly infringing consumers, even if legally correct, was never an entirely happy one. The Recording Industry Association of America recently announced that it is largely abandoning the tactic of litigating against individuals accused of infringing copyrights by their uploading of music files on peer-to-peer networks and otherwise. Instead, the RIAA says it will focus on cooperative agreements with Internet service providers (ISPs). The RIAA is encouraging the ISPs to terminate the accounts of recidivist users. It’s likely that this voluntary effort will lead to a push for federal legislation requiring ISPs to take some action regarding the unauthorized distribution of copyrighted content. (The ISPs have benefited from Internet usage involving uploading and downloading content; it makes sense for them to share some responsibility.)
Even copyright law’s fans have to wonder about the extent of enforcement efforts. This is part of what Lessig calls his “fight against copyright’s extremism.” The criminal action against the man who uploaded the new Guns N’ Roses “Chinese Democracy” album before its official release date—and the possibility of up to five years in prison for the uploader—got much attention, much of it unfavorable.
In Lessig’s desire to make it more difficult for copyright law to protect works, he unfortunately advocates a restoration of the archaic requirement that one register a copyright in order to maintain ownership of it. Currently, an author owns a copyright upon creation of the work in a tangible medium (for example, on a disc or paper). Registration of an author’s copyright gives the author certain advantages (among them the ability of a U.S. author to sue in a federal court on a claim of copyright infringement, and to obtain attorneys’ fees if successful in the case). Even if one believes that copyrights are not a kind of natural, inherent right of authors and are instead designed to incentivize and reward creativity, this change would require that the United States withdraw from the International Berne Convention—and separate itself from the world’s view that copyrights are inherent upon creation of a creative work. It’s neither a practical nor a forward-looking suggestion to abrogate the nation’s treaty obligations and go back to fussy formalities. More compatibility among national copyright laws is better for the Internet. Pushing the United States back from the prevailing laws of other countries would not be a positive step for creators or remixers. If everyone is a creator, it simply doesn’t follow that we should make it harder and more bureaucratic for both old-style creators and the new class of remixers to protect their creativity. Adding to the burdens of creators who want copyright protection also isn’t consistent with Lessig’s concerns about copyright’s “massively complex system of federal regulation.”
Lessig is right to focus on ideas for dealing with the changes in technology and the behavioral dynamics of remixers. Copyright in practice has to some degree already moved forward and adapted. The Free Software Foundation GNU and GPL licenses, followed by the Creative Commons licenses (which the author played so crucial a role in creating and espousing), are better routes to permit creators to choose which works may be remixed and which may not. American copyright law has long offered the copyright-infringement defense of “fair use.” One problem with fair use is that it is a defense against infringement, not a right. Therefore, a would-be fair user (a parodist, for example, or the YouTube contributor who uploaded the video of her baby dancing to “Let’s Go Crazy” by Prince—and got sued for it) can’t know for sure whether the use is “fair” or not. The virtue of fair use is also its failing: It’s a flexible set of factors rather than a rigid set of rules. Because a determination of a fair-use defense is set forth as an analysis of a set of factors (for example, how much of the underlying work is used, will the fair user’s handiwork hurt the potential market for the work being used, et cetera), ambiguity is an unfortunate way of life in the world of fair use. Lessig rightly points out the doctrine’s limitations.
Fair use—the best existing legal principle to protect remixers—is in the zeitgeist. Some recent cases have expanded the application of the fair-use doctrine. For example, in 2008 two courts upheld the right of Ben Stein to use a portion of John Lennon’s song “Imagine” in the film “Expelled: No Intelligence Allowed.” Most copyright lawyers probably would have cautioned the filmmakers to get licenses to copy Lennon’s composition and recording. That’s because the subject of the documentary—the theory of intelligent design—didn’t seem to come within traditional fair-use principles of research, comment, parody and the like regarding the underlying Lennon work. In other words, traditional notions of more or less absolute control of copyright works by the works’ creators and owners are clearly diminishing.
The remixers, in one way or another, will grow in power (there are a lot of us and a lot of works out there ripe for remixing). Lessig is right to try to move away from dwelling on the word copy in copyright. He is right to want to decriminalize copyright misbehavior by individuals. Yet Lessig hasn’t figured out how to make remixers legal without bruising the original creators. Of course, creators who wish to throw their original creations into the mosh pit of the remixers are already free to do so.
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