Wednesday, June 15, 2011

Justifications for Intellectual Property Part 1: Utilitarianism

There is no way this tutorial series would be complete without some discussion of justifications for intellectual property. While not necessarily a matter of law, some knowledge of the philosophical foundations will provide a better sense of the values at stake in intellectual property debates. Notice, for instance, that the tutorials on fair use were punctuated with appeals to values, social goods, and individual rights. Without an understanding of the moral and political framework against which the law stands, one can very easily find oneself in a stalemate, with one value pitted against another and no way of deciding which should prevail. To understand the jurisprudence around intellectual property rights, one has to have some idea of the justifying theories to which attorneys and judges appeal in their arguments and decisions. So, without further ado, let's get to the tutorial.

There are three main ways of justifying intellectual property rights: the Utilitarian theory, the Labor-Desert theory, and the Self-Expression theory. I'll discuss each in turn.

Utilitarian Justifications
The Utilitarian justification is unique among the three in that it is actually enshrined in the US Constitution. In this case, the relevant clause actually presents a simple argument, and is worth quoting in full: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (Article 1, Section 8, Clause 8). I don't normally employ extensive close reading, but it is merited here. The sentence opens with a clear statement of purpose: the stated goal is to encourage the technological and intellectual progress. The main clause of the sentence outlines the strategy: limited term monopolies over the products of intellectual labor. In many ways, this is a paradigm Utilitarian argument. There is a public benefit or social good that can be gained through an institution that will benefit some individuals (creators) in the short term, but everyone else in the long term.

If you're unfamiliar with Utilitarian thought, here's the basics. Utilitarianism, first articulated by Jeremy Bentham and developed significantly by John Stuart Mill, is the view that the pursuit of happiness and the avoidance of pain are foundational goods. One can then understand morality and social justice in terms of delivering, in Bentham's famous phrase, “the greatest good for the greatest number.” Utilitarian philosophers disagree about exactly how to understand “good” and how to evaluate whether it is really distributed to the greatest number, but the basic idea involves what has been called “hedonic calculus.” In other words, to determine a course of action, one evaluates how much good will arise from the action, and offset that good against the negative consequences (unhappiness, pain, etc) that it might cause. The most correct course of action is the one that produces the most net benefit.

If the notion of a hedonic calculus seems unrefined and overly simple to you, you are not alone. John Stuart Mill and other Utilitarians have spilled much ink refining Bentham's very rough, and sometime bizarre, ideas. Nevertheless, some common strains persist throughout Utilitarian thought. One of the most persistent memes is the emphasis on consequences. Bentham, and Mill after him, were very concerned with empirical evidence and the notion that one had to look to the results of an action to determine its rightness or good. This view is in contrast to thinkers like Immanuel Kant who hold that the intentions or motivations behind an action determine whether or not the action is moral. For the Utilitarian, consequences matter, and therefore, it matters whether an action actually produces the expected consequence. There is a sense that a Utilitarian may make errors in judgment based on incomplete information or inaccuracy of predictions, but there is an accompanying sense that morality and ethics are subject to empirical proof. In other words, the error in judgment is not a fatal thing; it is something one must learn from so as to avoid future mistakes.

How does this apply to intellectual property? Well, the US Constitution appears to argue that intellectual property rights are a means to a social good. We want more creative works and innovative inventions and discoveries. To get them, we offer a carrot, monopoly rights on the writing or discovery. While these monopoly rights mean that the public cannot use protected works as freely as unprotected (public domain) works, creators will be motivated to release their works, to publish books and findings, to license inventions for mass manufacture or sale, etc. Since the term of the monopoly is limited, all works will eventually make their way into the public domain, at which time they can be used, copied, distributed, etc freely, by anyone. A short term sacrifice is endured for the sake of a long term benefit.

In addition, what this should mean is that the public benefit establishes limiting conditions for intellectual property rights. If an intellectual property right would diminish public benefit too severely, it should be rejected. Under a pure Utilitarian framework, intellectual property rights are part of a balancing act, an attempt to get something by giving up something else. A move too far in either direction risks losing out on the main benefit. In this context, fair use can be understood as a compromise. Some uses are held as non-infringing because if those uses were under the exclusive control of the creator, some public benefit would be lost. If authors could suppress critical reviews of their books, some freedom of expression would be lost, and the ability to discuss the works freely would be lost. Since discussion and expression are part of the benefits expected to follow from a proliferation of creative works, such loses are untenable. To speculate on whether our current intellectual property system preserves these benefits, take a look here:

I'll leave you to chew on these issues for a while. In the next installment, I'll take up Labor-Desert justifications.

Wednesday, June 8, 2011

Fair Use Part 3: Parody and Scholarship

I alluded to this problem in the initial fair use post, but it deserves a bit more attention. While Weird Al has indeed made a fortune on parody, not all aspiring satirists are so lucky. The Air Pirates certainly did not get away with their parodies of Disney characters. While the courts have been reluctant to hear fair use cases, the cost of litigation makes the possibility of losing any challenge risky. As a result, parody, and other instances of what would appear to be fair use, is not as protected as you might think. If a copyright-holder takes exception to the material and decides to sue for infringement, the defendant must weigh his or her own resources against those of the plaintiff. For the most part, settlement often looks like a rational decision. James Boyle's The Public Domain contains an excellent example of such calculations. I won't reproduce the story in full (Boyle has released the book under a Creative Commons license, so feel free to look it up yourself), but suffice it to say that no matter how large a settlement figure may sound, in many cases the figure is still a small fraction of potential damages, legal fees, and court costs. One might well argue that those costs are unjustifiably high (and I might do so in a future post), but that's not a matter for the current tutorial.

So, given the risk of a suit, and the weak nature of fair use (an affirmative defense just isn't a right, no matter how you slice it), how does a guy like Weird Al make a career out of fair use? The not-so-secret secret is that he doesn't. Weird Al asks for permission. Before any of those much-loved parodies finds its way onto an album, Yankovic clears it with the original artist. Now, seeking permission in this way smacks of a certain amount of professional courtesy, so I don't want to criticize the practice itself. Instead, I want to call attention to the fact that the request for permission is not merely an act of professional courtesy, but also an attempt to block off any possible law suits resulting from an unhappy artist. Weird Al might win, but he also might lose any profits from the album to do so; the risk is just too great. Of course, for the most part, the original artists have been happy to allow the parodies, but occasionally, Weird Al gets a refusal (the most recent instance of such conflicts is documented here: ), but it is typically not a problem.

The key thing to note here is that even for something seemingly clearly protected by fair use, seeking permission is important. Without that shelter, a parodist may rapidly find herself at the mercy of an expensive judicial system. Again, fair use is not a right, merely a defense. While those uses specifically picked out as fair by 17 U.S.C. § 107: “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” all fall in line with preserving some public interest in creative works, those interests are not really served by the weak version of fair use codified in law. If commenting, criticizing, or research involves any reproduction, one might run afoul of an irate copyright-holder.

Notice that academic research also makes that list. Within academia, there is a culture of openness and discourse that encourages citation and quotation, so the risks are not really all that great. Nevertheless, in Infringement Nation John Tehranian documents a problem with James Joyce scholarship. It seems that Finnegans Wake is not public domain, and the Joyce estate is especially protective in restricting quotation or analysis of Joyce's work. (for a good summary, see this: ). One would think that academic scholarship would be a paradigm case for fair use. A proliferation of creative works is far less valuable if the community of scholars is unable to incorporate the work into the cultural and intellectual discourse. Certainly, to take John Stuart Mill's view that free expression is valuable because it helps us get at truth in some meaningful way, reading a text unlocks only part of its value. To read a novel, one enters into a kind of conversation with the author. Reading a novel along with some secondary literature broadens the conversation. Producing one's own secondary literature, and submitting it for the discussion of the community at large just adds more, more engagement, more conversation. Secondary literature also serves a didactic function; it teaches one how to read texts more deeply, giving the reader access to more layers of meaning and thereby deepening engagement with the text. Nevertheless, a protective attitude on the part of a copyright-holder brings the whole process to a halt.

I just can't help thinking there's something unfair about that...

Monday, June 6, 2011

Fair Use Part 2: Subtleties

Now that you've had the time to digest the basics of fair use, it's time to talk about some common misunderstandings and problems that arise with regard to this aspect of copyright law. As you might have noticed from last time, fair use a complex issue, one in which various concerns must be weighed with no guiding standard as to how much impact each factor should have. Even more problematically, US courts have stayed away from fair use cases for the most part. Very few actually reach a judge, and only four fair use cases have been heard by the Supreme Court. As such, there is very little jurisprudence to clarify the law. As such, fair use is a ripe subject for confusion and debate. Let's begin with the most crucial clarification.

Fair Use is not a right
While one might hear talk about “fair use rights,” there really is no such thing. The National Information Infrastructure White Paper on Intellectual Property (released Sept 1995; for more information see: ) was quite keen to point out exactly that fact. Instead, fair use must be understood as an affirmative defense. So, what's the difference? Well, the real difference is a matter of presumption. If fair use spelled out a series of rights, then the audience presumably has the right to use copyrighted material under the specified conditions. In such cases, infringement suits must show that the use somehow falls outside the scope of the guidelines. As an affirmative defense, fair use is a way of excusing an infringement on legally recognized grounds. In other words, any unauthorized use is presumed an infringement, but the infringement can be excused on certain legally recognized guidelines.

If that difference is still too subtle, think about it as a difference in the burden of proof. If fair use were a right (or a collection of rights), then the copyright-holder would have to proof that the use fell outside of the scope of those rights. As an affirmative defense, any use of copyrighted material is presumed to be infringing, and the defendant would has to show that, as a matter of fact, the use falls within the guidelines. In the former case, the burden of proof is really on the plaintiff; in the latter case, the defendant must show that the use was in fact fair, and failure to do so automatically results in a finding of infringement.

While fair use is often discussed as check on copyright, something to preserve the public good against copyright monopolies, it is actually much weaker than that. As an affirmative defense, fair use has too little force to really protect any public good. While educational use is supposed to be fair, Georgia State is involved in a suit over course reserve texts (full story here: ). If anything counts as an educational use, I would expect course reserves would, but some major academic publishers disagree. Furthermore, the guidelines the publishers would like to impose (available from this story: ) are draconian, to say the least. Speaking of draconian, it's is likely high time we move on to another clarification.

Wednesday, June 1, 2011

Fair Use - Part 1: The Basics

If you read Monday's introductory tutorial on types of intellectual property, you probably noticed the conspicuous absence of several issues, fair use and first sale among them. I've discussed first sale in the context of digital media fairly extensively, so I will likely let those posts stand as a primer on first sale, unless it becomes important for another tutorial. Fair use, on the other hand, demands its own tutorial, largely because many of the most visible intellectual property conflicts involve fair use at some level. Rather than explain that assertion just now, let's begin the tutorial and return to that point once the basics have been explained.

Fair use is a part of copyright law. As explained in the previous tutorial, copyright gives the creator exclusive control over making and selling copies of the work, and authorizing the creation of derivative works (translations, adaptations, etc). These rights are often understood to be limited by fair use. In other words, a fair use is a use of copyrighted material (for instance, making and distributing copies) that would infringe on copyright were that use not defined by law as “fair.” There are four main factors that are weighed to evaluate a fair use:
  • purpose of the use – noncommercial and educational uses weigh toward fair, for example
  • the nature of the copyrighted work – if the work presents its content as fact, the copyright-holder cannot assert copyright in the facts themselves
  • the amount or substance of the copied material – in general, smaller excerpts are more likely to be considered fair
  • the potential for the use to harm the commercial market for the original – designed to protect the ability of the creator to profit from his work, while allowing some non-authorized use
The first thing to notice is that subjective evaluation plays a fairly hefty part in determining whether a use is fair or infringement. Take the first factor for example. Whether a use is educational is fairly objective. If I photocopy a poem for my class to read, that's an educational use. The same factor is invoked for excerpting a novel for the purposes of review, another objectively determinable use. The problems begin with another type of use usually evaluated under the umbrella of that first factor: parody. Use of a work or a portion of a work for the purpose of parody is supposed to weigh in favor of fair use, and Weird Al Yankovic has made quite the career on that factor. Nevertheless, parody is not a carte blanche for making use of copyrighted material. Consider the case of Walt Disney Productions vs Air Pirates in which Disney sued the producers of an underground comic strip for depicting Mickey and Minnie Mouse using drugs and having sex. While one might think that such use would clearly constitute parody of Disney's antiseptic family-friendly image, the Air Pirates ultimately lost the suit. The lesson, as it were, is that a cartoonist's parody and a lawyer's infringement can indeed be one and the same.

Likewise, the third factor poses problems for subjective evaluation. Exactly how much is too much might vary depending on the nature of the work. Excerpting a single page from a novel just does not constitute a substantial copy, but copying the entirety of a single poem certainly looks like a substantial copy. Trying to set standards, such as the percentage of the work, invites incoherence. Consider setting the limit at 1% of the work. That percentage might constitute half a page of a short novel, but a few words of a short poem. Even setting standards by medium is problematic in this regard. While 1% of Fight Club by Chuck Palahnuik might be about a page and half, the same percent of Infinite Jest by David Foster Wallace would allow one to copy ten pages. The inevitable conclusion from such a standard is that the length of the work determines the fairness of the use, posing the question as to why the length of the original should determine whether or not a use is infringing.

The nature of the original seems more straightforward. The author of a textbook cannot assert copyright in the facts described, but can assert copyright in the format of the book, the way those facts are presented. If any readers have followed the recent Dan Brown craze, you might have run across a copyright infringement lawsuit regarding The DaVinci Code. Some of the bizarre conspiracies utilized in the novel made appearances in a 1982 book Holy Blood, Holy Grail by Michael Baignet, Richard Leigh, and Henry Lincoln. When The DaVinci Code became successful, the authors of Holy Blood, Holy Grail sued Dan Brown for copyright infringement. Baignet, Leigh, and Lincoln lost the suit because their book presented those conspiracies, specifically the marriage and progeny of Jesus and Mary Magdalene, as fact. Facts cannot be controlled under copyright due to the so-called idea-expression dichotomy, but that will be the subject of its own tutorial. For now, suffice it to say that if you don't want your conspiracy theory co-opted by a bestselling novel, don't present it as fact.

The final factor concerns protecting the market for copyrighted works against derivative works or copies. Making a backup copy of a CD does not significantly harm the market for original copies. Distributing that backup, the making another and doing the same, does. In general, this aspect of fair use is designed to protect personal copies. For instance, Sony Corp of America v Universal City Studios concerned the right of individuals to record television programs. When Sony released the first home video cassette recording devices, some major studies, Universal included, were concerned at the potential for copyright infringement inherent in the devices. Using the newly created Betamax, an individual can record a broadcast, make a copy of the broadcast, using another Betamax machine, then sell the copies. The Supreme Court ultimately ruled that consumers did not purchase VCR's for the purpose of infringement, but primarily for the purpose of “time-shifting,” recording broadcasts so that they can be watched at a more convenient time. Time-shifting, as a personal and not commercial use, does not harm the market for commercial copies sold by the major studios, so such use is fair.

Now that the major factors are covered, I've realized that there is a great deal to say about the history of fair use, as well as myths and conflicts, likely enough for its own tutorial. As such, the next installment will address further issues regarding far use, not that the basics have been explained.