Category Archives: conference

Biotech and IP Workshop at Loyola Law Chicago Today

Loyola University Chicago School of Law is hosting a Faculty Workshop on Biotech and IP  today, organized by Prof. Cynthia Ho.

Topics include:

The Intellectual Property of Ebola and Zika: Lessons for Future

The Unpatentable Microbiome

Prophetic Patents

Speakers and discussants  include:

  • Ana Santos Rutschman (DePaul)
  • John Blum (Loyola)
  • Jordan Paradise (Loyola)
  • Nadia Sawicki (Loyola)
  • Candice Player (Northwestern)
  • Rachel Sachs (Wash U)
  • Alex Krasinov (Loyola)
  • Kevin Outterson (BU)
  • Jay Kesan (U. Illinois)
  • Laura Pedraza-Farina (Northwestern)
  • Janet Freilich (Fordham)
  •  Damon Gupta (Green, Griffith & Borg-Breen)
  • Yaniv Heled (Georgia State)
  • Dave Schwartz (Northwestern)
  • Greg Reilly (Chicago-Kent)

 

Loyola is hosting the Society for Economic Research on Copyright Issues Annual Meeting Today

The SERCI Annual Congress 2016 is being held at Loyola University Chicago School of Law, Chicago, 7-8th July and is co-hosted by University of Illinois College of Law.

The Society for Economic Research on Copyright Issues or SERCI was established in 2001 to provide a solid academic platform for the application of economic theory to copyright policy.

The complete program is posted online at http://www.serci.org/congress.htm.

My slides for my presentation on empirical studies of copyright litigation are available here.

Some thoughts on Fair use, Transformative Use and Non-Expressive Use

Fair use, Transformative Use and Non-Expressive Use

Or,

Campbell v. Acuff-Rose and the Future of Digital Technologies, notes on a short presentation at the Fair Use In The Digital Age: The Ongoing Influence of Campbell v. Acuff-Rose’s “Transformative Use Test” Conference, April 17 & 18, 2015, University of Washington School of Law.

Copyright and disintermediation technologies

Copyright policy was hit by an analog wave of disintermediation technology in the post-war era and a digital wave of disintermediation technologies beginning in the 1990s. These successive waves of technology have forced us to reevaluate the foundational assumption of copyright law; that assumption being that any reproduction of the work should be seen as an exchange of value passing from the author (or copyright owner) to the consumer.

Technologies such as the photocopier and the videocassette recorder and then later the personal computer significantly destabilized copyright policy because these inventions, for the first time, placed commercially significant copying technology directly in the hands of large numbers of consumers. This challenge has only been accelerated by digitalization and the Internet. Digitalization allows for perfect reproduction such that the millionth copy of an MP3 file sounds just as good as the first copy.

The implications of the copying that these devices enabled were not clear-cut. In some cases, the new copying technology simply enabled greater flexibility in consumption, in others they generated new copies to be released into the stream of commerce as competitors with the author’s original authorized versions. The Internet has connected billions of people together leading to an outpouring of creativity and user-generativity, but from the perspective of the entertainment industry is also brought people together to undertake a massive scale piracy.

The significant of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)

The Supreme Court in Sony v. Universal[1] had already shown that it was willing to apply fair use in a flexible manner in situations where the use was personal and immaterial to the copyright owner. The significance of the Court’s decision in Campbell[2] was that, by reorienting the fair use doctrine around the concept of transformative use, the Court prepared the way for a flexible consideration of technical acts of reproduction that do not have the usual copyright significance.

Internet search engines, plagiarism detection software, text mining software and other copy-reliant technologies do not read, understand, or enjoy copyrighted works, nor do they deliver these works directly to the public.  They do, however, necessarily copy them in order to process them as grist for the mill, raw materials that feed various algorithms and indices. Campbell arrived just in time to provide a legal framework far more hospitable to copy-reliant technology than had previously existed. Even in its broadest sense, transformative use is not the be all and end all of fair use. At the risk of over-simplification, Sony v. Universal safeguarded the future of the mp3 player, whereas Campbell secured the future of the Internet and reading machines.

Copy-reliant technology and non-expressive use

Some of the most important recent technological fair use cases can be summarized as follows: Copying that occurs as an intermediate technical step in the production of a non-infringing end product is a ‘non-expressive’ use and thus ordinarily constitutes fair use.[3] The main examples of non-expressive use I have in mind are the construction of search engine indices,[4] the operation of plagiarism detection software[5] and, most recently, library digitization to make paper books text-searchable.[6]

To have a coherent concept of fair use, or any particular category of fair use, one needs a coherent concept of copyright. As expressed in the U.S. Constitution, copyright’s motivating purpose is “to promote the Progress of Science and useful Arts.”[7] Ever since the Statute of Anne in 1710, the purpose of Copyright law has been to encourage the creativity of authors and to promote the creation and dissemination of works of authorship. Copyright is not a guarantee of total control; in general, the copyright owner’s rights are limited and defined in reference to the communication of the expressive aspects of the work to the public. This is evident in the idea-expression distinction, the way courts determine whether two works are substantial similar and the focus of fair use cases on expressive substitution. Thus, subsequent authors may not compete with the copyright owner by offering her original expression to the public as a substitute for the copyright owner’s work, but they are free to compete with their own expression of the same facts, concepts and ideas. They are also free to expose, criticize and even vilify the original work. Genuine parodies, critiques and illustrative uses are fair use so long as the copying they partake in is reasonable in light of those purposes.

If public communication and expressive substitution are rightly understood as copyright’s basic organizing principles, then it follows that non-expressive uses — i.e., uses that involve copying, but don’t communicate the expressive aspects of the work to be read or otherwise enjoyed — must be fair use. In fact, they are arguably the purest essence of fair use. Groking the concept of non-expressive use simply involves taking the well understood distinction between expressive and nonexpressive works and making the same distinction in relation to potential acts of infringement.

The legal status of actual copying for nonexpressive uses was not a burning issue before digital technology. Outside the context of reading machines like search engines, plagiarism software and the like, courts have quite reasonably presumed that every copy of an expressive work is for an expressive purpose. But this assumption no longer holds. At a minimum, preserving the functional force of the idea-expression distinction in the digital context requires that copying for purely non-expressive purposes, such as the automated extraction of data, should not be infringing.

Some limits to the non-expressive use framework

Non-expressive use is a sufficient but not necessary condition of fair use. For example, parody is an expressive use, but it is fair use because it does not tend to threaten expressive substation. Even within the realm of recent technology cases, non-expressive use is not the right framework for addressing important man-machine interaction questions such as disability access, also a key issue in the HathiTrust litigation, but it does tie together a number of disparate threads.

The cases which hold that software reverse engineering is fair use are grounded firmly in the idea-expression distinction,[8] but they are not exactly non-expressive use cases for the reasons that follow.[9] The non-expressive use framework is also not the right tool in cases where software is copied in order to access its functionality: after-all, software is primarily functional and its primary (perhaps exclusive) value comes from the function it performs. Software piracy can’t be justified as a non-expressive use, because to do so would defeat the statutory scheme wherein Congress chose to graft computer software protection onto copyright. However, the reverse engineering cases still follow the logic of non-expressive use. In those cases copying to access certain API’s and other unprotectable elements enabled the copyists to either independently recreate that functionality (akin to conveying the same ideas with different expression) or to develop programs or machines that would complement the original software.

Non-expressive use versus transformative use?

The main issue left to resolve in terms of the copy-reliant technology and non-expressive use seems to be one of nomenclature. Is non-expressive use simply a subset of transformative use? Or is it a separate species of fair use with similar implications to that of transformative use.

Non-expressive use, as I have defined and elucidated in a series of law review articles and amicus briefs, is a clear coherent concept that ties a broad set of fair use cases directly to one of copyright’s core principles, the idea-expression distinction. Transformative use, as explained by Pierre Leval and adopted by the Supreme Court is rooted in the constitutional imperative for copyright protection – the creation of new works and the promotion of progress in culture, learning, science and knowledge. But for all that, if transformative use is invoked as an umbrella term, it is often hard to see what holds the category together.

The Campbell Court did not posit transformative use as a unified, exhaustive theory, but it did say that “[a]lthough such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright, …”[10] No doubt, when the Supreme Court spoke of transformative use, it had various communicative and expressive uses, such as parody, the right of reply, public comment and criticism in mind. But since Campbell, lower courts have applied the same purposive interpretation of copyright to a broader set of challenges. Campbell was decided in a different technological context and it is true that many of today’s technological fair use issues were entirely unimaginable before the birth of the World Wide Web and our modern era of big data, cloud computing, social media, mobile connectivity and the “Internet of Things”.

Non-expressive use is a useful concept because it provides a way for courts to recognize the legitimacy of copying that is inconsequential in terms of expressive substitution, but does not necessarily lead to the creation of the type of new expression that the Supreme Court had in mind in Campbell. The use of reading machines in digital humanities research is easy to justify, both in terms of the lack of expressive substitution and in the obvious production of meaning, new insights and potentially new and utterly transformative works of authorship. But what of less generative non-expressive uses? For example, in the future a robot might ‘read’ a copyrighted poster on a subway wall advertising a rock concert in Central Park. The robot might then ‘decide’ to change its travel plans in light of the predictable disruption. The acts of ‘reading’ and ‘deciding’ are both simply computational. Even if reading involves making a copy of the work inside the brain of a machine, it seems nonsensical to conclude that the robot was used to infringe copyright. In the age of the printing press, copying a work had clear and obvious implications. Copying was invariably for expressive ends and it was almost always the point of exchange of value between author and reader. The copyright implications of copying are much more contingent in the digital age.

There is much clarity to be gained by talking directly in terms of non-expressive use rather than relying on transformative as broad umbrella for a range of expressive and non-expressive fair uses. Such clear thinking would hopefully ease the anxieties of the entertainment industry that still fears that fair use is simply a stalking horse for dismantling copyright. Nonetheless, it would not be surprising if courts were more comfortable sticking with the language of transformativeness that Judge Pierre Leval gave us in “Toward a Fair Use Standard“,[11] and the Supreme Court adopted in Campbell.

This is a sketch of some ideas, no doubt revisions will follow after this exciting conference.

Related Publications:

Matthew Sag, Copyright and Copy-Reliant Technology 103 Northwestern University Law Review 1607–1682 (2009)

Matthew Sag, Orphan Works as Grist for the Data Mill, 27 Berkeley Technology Law Journal 1503–1550 (2012)

Matthew Jockers, Matthew Sag & Jason Schultz, Digital Archives: Don’t Let Copyright Block Data Mining, 490 Nature 29-30 (October 4, 2012)

Somewhat Related Publications:

Peter DiCola & Matthew Sag, An Information-Gathering Approach to Copyright Policy, 34 Cardozo Law Review 173–247 (2012)

Matthew Sag, Predicting Fair Use 73 Ohio State Law Journal 47–91 (2012)

Matthew Sag, The Pre-History of Fair Use 76 Brooklyn Law Review 1371–1412 (2011)

 

[1] Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).

[2] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

[3] See generally, Matthew Sag, Copyright and Copy-Reliant Technology 103 Northwestern University Law Review 1607–1682 (2009)

[4] There is no case addressing the legality of the process of making a text-based search index (as opposed to caching or display of search results), but the proposition naturally flows from Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003) and Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) and is a necessary implication of Authors Guild, Inc. v. Hathitrust, Court of Appeals, 2nd Circuit 2014 and Authors Guild, Inc. v. Google Inc., 954 F. Supp. 2d 282 (S.D.N.Y. 2013)

[5] A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630 (4th Cir. 2009).

[6] Authors Guild, Inc. v. Hathitrust, Court of Appeals, 2nd Circuit 2014; Authors Guild, Inc. v. Google Inc., 954 F. Supp. 2d 282 (S.D.N.Y. 2013). See also Matthew Sag, Orphan Works as Grist for the Data Mill, 27 Berkeley Technology Law Journal 1503–1550 (2012); Matthew Jockers, Matthew Sag & Jason Schultz, Digital Archives: Don’t Let Copyright Block Data Mining, 490 Nature 29-30 (October 4, 2012).

[7] U.S. Const. art. I, § 8, cl. 8.

[8] Sega Enter. Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992); Sony Computer Entm’t, Inc. v. Connectix Corp., 203 F.3d 596, 606 (9th Cir. 2000).

[9] These reasons are more fully elaborated in Matthew Sag, Copyright and Copy-Reliant Technology 103 Northwestern University Law Review 1607–1682 (2009).

[10] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)(citation omitted).

[11] 103 Harv. L. Rev. 1105 (1990)

Comments on Joseph Fishman, “Creating Around Copyright” Harvard Law Review, Vol. 128, Forthcoming.

Joseph Fishman presented his forthcoming paper, Creating Around Copyright at the UCLA Entertainment, Media, and Intellectual Property Colloquium Workshop this weekend. The paper argues that rather than seeing copyright as a system of access costs that create incentives, we should recognize that copyright may actually spur additional creativity by virtue of the very constraints it establishes.

I like this paper a lot, but the treatment of copyright as a singular constraint that just varies by questions of degree seemed a bit reductionist to me. The constraints copyright imposes are in fact quite uneven. For example, the fair use doctrine privileges transformative uses, however it is much easier to be confident that a reuse that criticizes the original is transformative compared to one that is simply a new work. Thus, at the margins, copyright encourages criticism, not necessarily creativity. Furthermore, the idea-expression distinction encourages differentiation at the level of superficial characteristics, but allows the uncreative recirculation of ideas. Thus Westside Story is less likely to infringe Shakespeare’s (non-existent) copyright than is the far more creative Rosencrantz and Guildenstern Are Dead.

This is undoubtably a clever and well-written article although some of its claims to significance may be inflated. If some all-knowing accountant were to tally up the costs and benefits of copyright, it seems quite unlikely that the generativity of constraint would count for very much in the grand scheme of things.

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.

 

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.

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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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Aereo, Copyright, Technological neutrality, function v. effect

American Broadcasting Companies, Inc. v. Aereo, Inc., is a case scheduled for oral argument before the Supreme Court next month. The case gives us an interesting opportunity to reassess the oft-stated aim that copyright law should be technologically neutral.

Aereo offers consumers the ability to watch live free-to-air broadcast television via the Internet with the ability to pause, rewind and fast-forward programming. Aereo provides this service by receiving free-to-air broadcast television on a vast array of micro-antennae, each antenna being dedicated to an individual subscriber. The signals so received are reduced to individual copies of individual programs. These copies are then transmitted to individual subscribers, either virtually live or at some later time. See WNET, THIRTEEN v. Aereo, Inc., 712 F. 3d 676, 680-683 (2d Cir. 2013).

If technological neutrality is a question of the effect of a given technology, then Aereo is, in effect, the same as retransmission system and thus a public performance. But if technologically neutrality is a question of function, then Aereo is a remote DVR + one-to-one performances. It is thus a copying system and not the originator of public performances.

Judge Chin’s dissenting opinion takes an effect-based perspective and argues that regardless of how the Aereo system actually works:

Aereo’s “technology platform” is, however, a sham. The system … is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.

The Copyright Act aims for neutrality in that the public performance right in 17 U.S.C. § 106(4) is defined to include the right “to transmit or otherwise communicate a performance… to the public, by means of any device or process.” Id. § 101. But the problem with Chin’s dissent is that the “by means of any device or process” language does not mean that non-public transmissions are rendered into public transmissions simply because they have the same effect as technology we recognize as implicating the public performance right.

An effect-based vision of technological neutrality flatly contradicts the basic structure of rights under the Copyright Act. The Copyright Act defines the rights of copyright owners with respect to six particular acts–thus, for example, reproducing a copyrighted novel without permission or justification is infringement, reading a copyrighted novel is not. 17 U.S.C. §106(1)-(6).

There are many reasons why we should not disregard the technical details of a system like Aereo’s, but perhaps the most important one is simply that transforming effects into functions is not necessary. Aereo has indeed designed its system to avoid making public performances, but it has done this by adding thousands of individual copies. We should not feel the need to label every performance from a copy as a public performance given that the copyright owner also has an exclusive right to reproduce the work in copies.

This post is a reaction to Brad Greenberg’s presentation on the issue of technological neutrality in copyright at the Fourth Internet Law Scholars Work-in-Progress Symposium.

Archives & Copyright: Developing An Agenda For Reform starts tomorrow #dh #archivescopyright

Archives & Copyright: Developing An Agenda For Reform

This is a one day symposium, co-organised by CREATe and the Wellcome Library. The symposium considers forthcoming changes to the copyright regime in the UK as it impacts the work of archives, as well as the role that risk-management plays in copyright compliance for archival digitization projects.

I will be speaking on a panel along with Professors Peter Jaszi and Peter Hirtle. We will discuss how cultural heritage institutions in the US work with copyright law, and in particular the ongoing Authors Guild v. HathiTrust case (currently on appeal).

I plan to talk about my experience bringing together (along with Jason Schultz and Matthew Jockers) the digital humanities amicus briefs for Authors Guild v. Hathi Trust I and II and Authors Guild v. Google. My slides are available right here.

The #hashtag for the symposium is #archivescopyright

Embracing the Digital Economy – the 2013 Australian Digital Alliance Copyright Forum

The Australian Digital Alliance will hold its 2013 annual copyright forum, ‘Embracing the Digital Economy: creative copyright for a creative nation’. The forum will considers how Australia’s copyright framework fits in with the ‘digital world’. A timely contribution given that the Australian Law Reform Commission is in the middle of an Inquiry into Australia’s copyright framework, to determine whether existing exceptions are adequate and appropriate in the digital environment.

Australia’s copyright framework has not kept pace with technology or society. The digital age has profoundly changed to the nature of creation and distribution. The divide between ‘producers’ and ‘consumers’ has been blurred in some cases and eliminated all together in others. The production and distribution of creative works is more democratic and more chaotic than ever before.

The ADA forum explores a variety of new technologies, business models and education and cultural services being provided online, and how they fit into our existing copyright framework.

I am honored to be presenting one of the keynote addresses at this important event. The other keynote will be New Zealand internet law expert and District Court Judge David Harvey. I plan to discuss the results of my empirical study of fair use litigation, Predicting Fair Use.

This year’s forum takes place at the National Portrait Gallery in Canberra on Friday 1 March 2013 from 8:30am – 4:30pm, with pre-forum drinks on the evening of Thursday 28 February at the National Library of Australia.

More info is available at http://digital.org.au/content/2013-australian-digital-alliance-copyright-forum