Tyler Ochoa on Flo & Eddie v. Sirius XM Radio

Professor Tyler Ochoa has written a great post explaining the implications of Flo & Eddie v. Sirius XM Radio. 

Follow this link to Eric Goldman’s blog: A Seismic Ruling On Pre-1972 Sound Recordings and State Copyright Law.

“A federal court in California has held that a California statute, Civil Code §980(a)(2), protects sound recordings fixed before February 15, 1972 against unauthorized public performance.  The ruling is a … huge victory for sound recording copyright owners and a big defeat for broadcasters, one that threatens to undo a 75-year-old consensus that state law does not provide a public performance right for sound recordings. …”

Authors Guild v. Google will be argued in the Second Circuit on December 3rd

This means we could get a decision before the case’s 10 year anniversary!

Docket Number: 13-04829 in United States Court of Appeals for the Second Circuit
Title: The Authors Guild v. Google, Inc.
Date Filed: 12/23/2013
Docket Proceedings
Docket Filed # Docket Text
143 09/30/2014 CASE CALENDARING, for argument on 12/03/2014 at 2:00pm, SET.[1332695] [13-4829]

Chicago Kent Roundtable on Empirical Methods in Intellectual Property

I am presenting some new research at the Chicago Kent Roundtable on Empirical Methods in Intellectual Property tomorrow morning.

I will present some initial data from my work in progress, IP Litigation Trends in United States District Courts: 1994—2014, which undertakes a broad-based empirical review of Intellectual Property (IP) litigation in United States federal district courts from 1994 to 2014. Unlike the prior literature, this study analyzes federal copyright, patent and trademark litigation trends as a unified whole. It undertakes a systematic analysis of more than 180,000 individual case filings and examines the subject matter, geographical and temporal variation within federal IP litigation over the last two decades.

Here is an example of the kind of thing I will be talking about:

District Rank in terms of Patent versus Copyright and Trademark Combined (2004-2014)

Fig4 (Patent vs copyright&trademark)

The figure highlights the difference between patent litigation rankings and the composite copyright/trademark ranking of each federal district and thus provides a measure of forum shopping in patent litigation.

 

 Kienitz v. Sconnie Nation — transformative uses and derivative works. #Fairuse

Some additional thoughts on the 7th Circuit’s decision in Kienitz v. Sconnie Nation LLC, No. 13-3004 (7th Cir. Sept. 15, 2014).

Judge Easterbrook expressed some skepticism today over the Second Circuit’s decision in Cariou v. Prince, 714 F. 3d 694 (2d Cir. 2013) because …

asking exclusively whether something is “transformative” not only replaces the list in §107 but also could override 17 U.S.C. §106(2), which protects derivative works. To say that a new use transforms the work is precisely to say that it is derivative and thus, one might suppose, protected under §106(2).

Easterbrook complains that

Cariou and its predecessors in the Second Circuit do not explain how every “transformative use” can be “fair use” without extinguishing the author’s rights under §106(2).”

Ok, so let me explain.

First, Cariou and its predecessors don’t say that every transformative use is fair use. Second, more importantly, transformative use and derivative work are both important terms of art in copyright law. They are not the same thing. Nobody thinks they are.

Section 106(2) of the Copyright Act gives copyright owners an exclusive right to prepare derivative works based on the copyright owner’s original work. As defined in the statute, a derivative work takes a preexisting work and “recasts, transforms, or adapts” that work. The kind of transformations referred to here are not necessarily ‘transformative’ as that term was intended by the Supreme Court in the context of fair use. And yes, obviously, using a word that is not a stem of ‘transform’ would have helped. 

A transformative work, in the fair use sense, is one which imbues the original “with a further purpose or different character, altering the first with new expression, meaning, or message.” [Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (internal citations omitted).] Thus, the assessment of transformativeness is not merely a question of the degree of difference between two works; rather it requires a judgment of the motivation and meaning of those differences.

The difference between a non-infringing transformative use and an infringing derivative work can be illustrated as follows: if Pride and Prejudice were still subject to copyright protection, the novel Pride and Prejudice and Zombies, which combines Austen’s original work with scenes involving zombies, cannibalism, and ninjas, would be considered a transformative parody of the original, and thus fair use rather than infringement. In contrast, a more traditional sequel would merely be an infringing derivative work.

The term transformative use has been applied to cases of literal transformation where it overlaps with the kinds of manipulations that might also create a derivative work. Thus in Suntrust Bank v. Houghton Mifflin Co, substantial copying of a novel in the service of criticism was regarded as transformative.

The term transformative use has been applied to cases of copying without modification, but for a good reason. For example in  Savage v. Council on American-Islamic Relations, Inc., the Islamic organization copied and distributed anti-Islamic statements made by Michael Savage as part of a fund-raising exercise. Recontextualization without modification from one expressive context to another was seen as transformative Bill Graham Archives v. Dorling Kindersley Ltd.

In addition to these cases, courts have also found a number of non-expressive uses to be transformative. In particular, several cases have held that automated processing and display of copyrighted photos as part of a visual search engine is a transformative and thus a fair use. In A.V. v. iParadigms, LLC, the Fourth Circuit found that the automated processing of the plaintiff students’ work in defendant’s plagiarism detection software was fair use). More recently, Authors Guild v. HathiTrust (SDNY), Authors Guild v. HathiTrust (2d Cir) and Authors Guild v. Google (SDNY) held that library digitization to create a search engine was transformative use and fair use.

Maybe we would be better off with different words for all these situations. David Nimmer suggests that in the hands of some judges, transformative use has no content at all and that it is simply synonymous with a finding of fair use. According to Pamela Samuelson, a better approach would be to distinguish transformative critiques, such as parodies, from productive uses for critical commentary. Samuelson also suggests that courts should not label orthogonal uses—uses wholly unrelated to the use made or envisaged by the original author—as transformative uses. But she does think that these are good candidates for fair use.

My personal preference would be for the term transformative use to be confined to expressive uses of copyrighted works and that non-expressive use (as exemplified by search engines, plagiarism detection software, text mining, etc) should be recognized as a distinct category of preferred use. Nonetheless, transformative use is the term of art most courts use and we should probably learn to live with it.

Further Reading

  • David Nimmer, Nimmer on Copyright § 13.05[A][1]
  • Matthew Sag, Copyright and Copy-Reliant Technology, 103 Nw. U. L. Rev. 1607 (2009)
  • Pamela Samuelson, Unbundling Fair Uses, 77 Fordham L. Rev. 2537 (2009).
sconnie

Even when Judge Easterbrook is right, he is wrong. #fairuse #copyright #blaaah

I have been wanting to blog about the 7th Circuit’s appalling decision in Kienitz v. Sconnie Nation LLC, No. 13-3004 (7th Cir. Sept. 15, 2014) since I read it — exactly seven twenty minutes ago. However, two fifteen minutes ago I discovered that Prof. Rebecca Tushnet (Georgetown Law) has already said most of what I wanted to say.

The case is about the transformative use of a photo. The case for transformation is pretty easy here because there is both substantive transformation (see below) and an obvious shift in purpose in that the original photo is a PR shot of politician opposed to a street party and the new use is a caricature of the same politician on tee-shirts and tank tops.

sconnie

The court of appeals took this easy case as an opportunity to try to unsettle the law of fair use by casting stones at the concept of transformativeness. The court notes that  transformativeness doesn’t appear in the statute, and says it was “mentioned” it in Campbell.  What the Supreme Court actually said in Campbell was  “The central purpose of this investigation is to see  whether the new work merely supersedes the objects of the original creation,  or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is ‘transformative.'”  Campbell v. Acuff-Rose Music, Inc., 510 US 569 (1994). (internal citations and quotations omitted)

This is a bit more than a mention.

Now I’ll just quote Rebecca:

…Having not quoted either the Supreme Court or the Second Circuit’s definition of transformativeness (which might allow one to assess whether there is too great an overlap with the derivative works right, or for that matter with the reproduction right since that’s what the majority of Second Circuit transformativeness findings deal with), the Seventh Circuit tells us to stick to the statute.  But it doesn’t tell us what the first factor does attempt to privilege and deprivilege. Instead, the court goes to its own economic lingo-driven test: “whether the contested use is a complement to the protected work (allowed) rather than a substitute for it (prohibited).”  Where this appears in the statute is left as an exercise for the reader, though by placement in the opinion we might possibly infer that it is the appropriate rephrasing of factor one, as opposed to inappropriate transformativeness (though the court later says that factor one isn’t relevant at all).  However, complement/substitute requires some baseline for understanding the appropriate scope of the copyright right—the markets to which copyright owners are entitled—just like transformativeness does.

The Seventh Circuit reached the right result, but its reasoning shallow, its disagreement with the Second Circuit is captious, and its wanton disregard of the jurisprudence of the last twenty years (beginning with the Supreme Court’s decision in Campbell v. Acuff-Rose Music, Inc) is profoundly unfortunate. These are smart judges who could have helped further develop and clarify the law, but chose not to.

 

 

Less Cancer, More Birthdays. A call for donations.

There are many amazing charities worthy of your support — the American Cancer Society is one of them. I am raising money for the ACS again this year because I believe in their mission and I think they do a great job.
Cancer research is saving lives and making lives better every single day. My Chicago Marathon race will help save lives and I’m hoping you’ll support me in my efforts.More than 11 million Americans who have a history of cancer will celebrate another birthday this year. My uncle Ivan Sag died of cancer last year. Ivan was a powerful intellect, a leader in his academic field, a music lover and a party animal. We miss him.Please support me with a donation so that together, with the ACS, we can help save lives and create a world with less cancer and more birthdays.

Last year I ran the Chicago Marathon in 3:44:48 and raised over $2,000 — please help me run even faster and do even more to support this great cause this year.

Every donation of $13.1 (50 cents per mile) or more entitles you to nominate one song* for my Marathon playlist. Try to think of something awesome, that I might not have considered. I will be listening and think of you during the race and during my many many miles of training runs.

You can donate by following this DONATIONS link.

Thanks for your support!

* Songs longer than 7 minutes and 30 seconds, songs featuring Katie Perry, country music, opera or that are otherwise unbearable will be included solely at the runner’s discretion. 

UPDATES:

The Marathon Playlist so far:

  • Eye of the Tiger – Surviver
  • In The Air Tonight – Phil Collins

Copyright and Pornography — Is now the time to panic?

There were 2004 copyright lawsuits filed in federal district courts in the United States in the period from January 1st to June 30th 2014. Just under 48% of these suits were filed by copyright owners against anonymous IP addresses accused of copyright infringement online. This is not surprising given the extent of online piracy, but what is more than a little surprising is that almost all of these lawsuits relate to pornographic films. Lawsuits alleging illegal file sharing of pornography were virtually non-existent before 2010, they now (Jan-Jun 2014) account for than 41% of all copyright suits filed.

Slide03

In my talk tomorrow at the 14th Annual Intellectual Property Scholars Conference at Berkeley Law School I will address this phenomenon and answer three fundamental questions: (1) When did this happen? (2) How did it happen? and (3) Is now the time to panic?

Here are some of the slides from my talk (below), the full paper is available here (download    Copyright Trolling, An Empirical Study)

 

 

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Why digital humanities researchers support google’s fair use defense

I posted a guest-blog over at the Authors Alliance explaining why digital humanities researchers support google’s fair use defense in Authors Guild v. Google.  The  Authors Alliance supports Google’s fair use defense because it helps authors reach readers. In my post, I explained another reason why this case is important to the advancement of knowledge and scholarship.

Earlier this month a group of more than 150 researchers, scholars and educators with an interest in the ‘Digital Humanities’ joined an amicus brief urging the Second Circuit Court of Appeals to side with Google in this dispute. Why would so many teachers and academics from fields ranging from Computer Science, English Literature, History, Law, to Linguistics care about this lawsuit? It’s not because they are worried about Google—Google surely has the resources to look after itself—but because they are concerned about the future of academic inquiry in a world of ‘big data’ and ubiquitous copyright.

For decades now, physicists, biologists and economists have used massive quantities of data to explore the world around them. With increases in computing power, advances in computational linguistics and natural language processing, and the mass digitization of texts, researchers in the humanities can apply these techniques to the study of history, literature, language and so much more.

Conventional literary scholars, for example, rely on the close reading of selected canonical works. Researchers in the ‘Digital Humanities’ are able to enrich that tradition with a broader analysis of patterns emergent in thousands, hundreds of thousands, or even millions of texts. Digital Humanities scholars fervently believe that text mining and the computational analysis of text are vital to the progress of human knowledge in the current Information Age. Digitization enhances our ability to process, mine, and ultimately better understand individual texts, the connections between texts, and the evolution of literature and language.

A Simple Example of the Power of the Digital Humanities

The figure below, is an Ngram-generated chart that compares the frequency with which authors of texts in the Google Book Search database refer to the United States as a single entity (“is”) as opposed to a collection of individual states (“are”). As the chart illustrates, it was only in the latter half of the Nineteenth Century that the conception of the United States as a single, indivisible entity was reflected in the way a majority of writers referred to the nation. This is a trend with obvious political and historical significance, of interest to a wide range of scholars and even to the public at large. But this type of comparison is meaningful only to the extent that it uses as raw data a digitized archive of significant size and scope.

The United States is/are

There are two very important things to note here. First, the data used to produce this visualization can only be collected by digitizing the entire contents of the relevant books–no one knows in advance which books to look in for this kind of search. Second, not a single sentence of the underlying books has been reproduced in the finished product. The original authors expression was an input to the process, but it was not a recognizable part of the output. This is the fundamental distinction that the Digital Humanities Amici are asking the court to preserve–the distinction between ideas and expression.

Will Copyright Law Prevent the Computational Analysis of Text?

The computational analysis of text has opened the door to new fields of inquiry in the humanities–it allows researchers to ask questions that were simply inconceivable in the analog era. However, the lawsuit by the Authors Guild threatens to slam that door shut.

For over 300 years Copyright has balanced the author’s right to control the copying of her expression with the public’s freedom to access the facts and ideas contained within that expression. Authors get the chance to sell their books to the public, but they don’t get to say how those books are read, how people react to them, whether they choose to praise them or pan them, how they talk to their friends about them. Copyright protects the author’s expression (for a limited time and subject to a number of exceptions and limitations not relevant here) but it leaves the information within that expression and information about that expression “free as the air to common use.” The protection of expression and the freedom of non-expression are both fundamental pillars of American Copyright law. However, the Author Guild’s long running campaign against library digitization threatens to erase that distinction in the digital age and fundamentally alter the balance of copyright law.

In the pre-digital era, the only reason to copy a book was to read it, or at least preserve the option of reading it. But this is no longer true. There are a host of modern technologies that literally copy text as an input into some larger data-processing application that has nothing to do with reading. For want of a better term, we call these ‘non-expressive uses’ because they don’t necessarily involve any human being reading the authors original expression at the end of the day. 

Most authors, if asked, support making their works searchable because they want them to be discovered by new generations of readers. But this is not our central point. Our point is that if it is permissible for a human to pick up a book and count the number of occurrences of the word “whale” (1119 times in Moby Dick) or the ratio of male to female pronouns (about 2:1 in A Game of Thrones Book 1—A Song of Ice and Fire), etc., then there is no reason the law should prevent researchers doing this on a larger and more systematic basis.

Game of Thrones Pronouns Etc

Digitizing a library collection to make it searchable or to allow researchers to analyze create and analyze metadata does not interfere with the interests that copyright owners have in the underlying expression in their books.

Who knows what the next generation of humanities researchers will uncover about literature, language, and history if we let them?

You can download the Brief of Digital Humanities and Law Scholars as Amici Curiae here.

Digital Humanities and Legal Scholars in Authors Guild v. Google filed

On Thursday this week, we filed a brief on behalf over 150 researchers, scholars and educators in Authors Guild v. Google, currently on appeal to the Second Circuit Court of Appeals.
The Brief of Digital Humanities and Legal Scholars argues that Copyright law is not, and should not be, an obstacle to the computational analysis of text. Copyright law has long recognized the distinction between protecting an author’s original expression and the public’s right to access the facts and ideas contained within that expression.
We are confident that the Second Circuit will vote to maintain that distinction in the digital age so that library digitization, internet search and related non-expressive uses of written works remain legal.
The final version of the brief is available on the free online repository ssrn.com at this link address: http://ssrn.com/abstract=2465413.
We are grateful for the support of so many wonderful scholars in this important case and we are even more grateful for all the fascinating research that these computer scientists, english professors, historians, linguists, and all those working in the digital humanities do to enrich our lives.
We would also like to thank The Association for Computers and the Humanities and the Canadian Society of Digital Humanities/Société canadienne des humanités numériques for their support as institutions.
Matthew Jockers
Matthew Sag
Jason Schultz

Copyright Trolling Data, Updated to June 30 2014

Copyright Trolls, Pornography, Statutory Damages…

[Revised at 5:43pm to account for an idiotic mistake in Excel - Just going to show that you should not use excel for even the most simple things]

The gifts that keep on giving.

I have updated my data on copyright trolling to include cases filed up to June 30, 2014. The  data is now available to anyone interested in replication. I have also revised my paper  Copyright Trolling, An Empirical Study (download the full paper from ssrn) with the following table that shows the phenomenal influence of Malibu Media.

Bottom line: Malibu Media accounted for 10% of all copyright suits filed in 2012, 27% in 2013 and 40% in the first half of 2014.

Copyright Suits Filed in U.S. District Courts – 2001 to June 30 2014

Screen Shot 2014-07-03 at 5.42.39 PM

 

The top section of the table shows how many cases were filed under the 820 code for Copyright in U.S. Federal District Courts in the years 2003 to 2014. The bottom section of the table translates the same information into percentages. The “Copyright – All” category includes all copyright cases. “Copyright –John Doe” includes all copyright cases where the defendant was a John Doe, without differentiating as to the underlying subject matter of the compliant. “Copyright – John Doe (Porn)” is a subset of the previous category and includes all cases identified as relating to pornography. The final category, “Malibu Media v. Doe(s)” includes every case filed by Malibu Media against one or more John Does.