Do you think the courts generally “get it right” in dealing with copyright and the new technologies?
JB: It really depends on the case and the judge. I sometimes think the courts are overly susceptible to arguments by service providers that something will “kill” the Internet or is contrary to the goals of the DMCA. The DMCA had multiple goals that it tried to balance.
DC: Courts work very hard to get it right and are usually very interested in copyright cases. Sometimes the law is so subtle it can be unpredictable, and nuances may change or be seen differently. It is common to see very well-reasoned opinions at the district court and appellate levels that might have different outcomes, but it doesn’t mean someone didn’t get it right.
MR: In some cases, the courts get it right, but in many they do not. Courts, especially the Second and Ninth Circuits, which hear the lion’s share of copyright cases, have allowed Internet platforms to prosper at the expense of journalism, music, publishing, and other creative industries. In many cases involving new technologies, the courts focused on the public benefit of the uses, forgetting that copyright itself is a public benefit. In those cases, uses that were paid, licensed uses in the analog world suddenly became fair uses just because they involve digital technologies. It feels a little like courts are sometimes blinded by the dazzle of the technology.
The Second Circuit’s fair use decision in Authors Guild v. Google2 permits any entity to make digital scans of books for internal use and public display of excerpts without paying licensing fees. As a practical matter, despite the court’s efforts to narrowly decide the issues on the facts, the decision creates a rule of law that says anyone can scan millions of books and show excerpts. Many entities are already taking advantage of this ruling, and pushing the boundaries further. Since licensing for online use has supplanted other sources of income for authors, the practical effect of Google Books could be devastating. For instance, based in large part on that decision, Internet Archive’s Open Library has started “lending” recently published, in-copyright books that it scanned without permission. Any person in the world can check out a book if no one else has it, and once checked out can download the book. Even if you can convince yourself, as the Second Circuit did, that Google Books does little harm to authors, no one can say with a straight face that this Open Library program won’t significantly impact authors’ ability to monetize their books.
Cambridge University Press v. Patton3 is before the Eleventh Circuit for the second time, and it will undoubtedly reassert its earlier opinion that digitally copying book chapters for classroom use was fair use in most of the cases at issue, eliminating an important source of authors’ income. Authors used to receive licensing fees for hard copy course packs, but as a result of this case and others, they are not paid for the equivalent uses in electronic course packs, resulting in a direct transfer of money from authors and publishers to universities.
KS: Courts that get it right are those that take the time to learn how both copyright law and the particulars of the new technologies contribute mightily to what we understand about how to reward creativity and to reward investment. We are in a transitional time as two very different paradigms find coexistence. One paradigm is that of analog and scarcity. The second is that of digital and hyper-copying without limit. These are not necessarily in opposition to each other, but represent different choices.
FW: Well, I believe the courts give too much leeway to technologists. Fair use has been expanded to the extent that copyright ownership and the right to monetize one’s works has little or no value.
NW: Getting it “right” always depends on whom you are representing. With respect to individual creators, many courts have favored technology over the rights of individual creators, particularly when it comes to removing infringing content from websites under the DMCA, and when analyzing fair use cases. With respect to the DMCA, which was intended to be a compromise between Internet service providers (ISPs) and content owners, courts have strictly construed what constitutes statutorily compliant notice so that the burden of policing the Internet is almost solely on the individual creator whose work is infringed, without requiring the ISPs to take any active role in preventing further infringements, using filters or other available technologies to recognize protected works.
In addition, certain courts, and in particular the Ninth Circuit, which includes Silicon Valley, have also favored technology companies over copyright owners, in the area of image search. When the court addressed the issue, the image search results displayed low-resolution images to drive traffic back to the original site. Now, visual search results display much larger high-resolution images that are “framed” and displayed out of context of the hosting site, without directing you back to the site unless the viewer affirmatively clicks a link to visit the site. The options also include a choice to view similar images outside of the hosting site. The primary function is now closer to an aesthetic function, which would in most circumstances require a license, and the search engine is receiving the benefit of the displayed image, without any incentive to enter into a license with the copyright owner. The incentive does not exist because the Ninth Circuit only considers the exclusive right to authorize a display of an image to be violated if a copy of the image resides on the server of the infringer. This server test has created a technology end run around licensing. As a result, the creator of the content receives no benefit from this high-resolution display, and legitimate licensing of content is being sacrificed for convenience. It may be necessary to develop broader licensing schemes to compensate the creators who are losing out in the digital age.