Category Archives: Scholarship

Internet Safe Harbors and the Transformation of Copyright Law will be published in the Notre Dame Law Review

My article, Internet Safe Harbors and the Transformation of Copyright Law, will be published in the Notre Dame Law Review, Vol. 93, 2017, later this year.

This Article shows how the substantive balance of copyright law has been overshadowed online by the system of intermediary safe harbors enacted as part of the Digital Millennium Copyright Act (“DMCA”) in 1998. The Internet safe harbors and the system of notice-and-takedown fundamentally changed the incentives of platforms, users, and rightsholders in relation to claims of copyright infringement. These different incentives interact to yield a functional balance of copyright online that diverges markedly from the experience of copyright law in traditional media environments. This article also explores a second divergence: the DMCA’s safe harbor system is being superseded by private agreements between rightsholders and large commercial Internet platforms made in the shadow of those safe harbors. These agreements relate to automatic copyright filtering systems, such as YouTube’s Content ID, that not only return platforms to their gatekeeping role, but encode that role in algorithms and software.

The normative implications of these developments are contestable. Fair use and other axioms of copyright law still nominally apply online; but in practice, the safe harbors and private agreements made in the shadow of those safe harbors are now far more important determinants of online behavior than whether that conduct is, or is not, substantively in compliance with copyright law. The diminished relevance of substantive copyright law to online expression has benefits and costs that appear fundamentally incommensurable. Compared to the offline world, online platforms are typically more permissive of infringement, and more open to new and unexpected speech and new forms of cultural participation. However, speech on these platforms is also more vulnerable to over-reaching claims by rightsholders. There is no easy metric for comparing the value of non-infringing expression enabled by the safe harbors to that which has been unjustifiably suppressed by misuse of the notice-and-takedown system. Likewise, the harm that copyright infringement does to rightsholders is not easy to calculate, nor is it easy to weigh against the many benefits of the safe harbors.

DMCA-plus agreements raise additional considerations. Automatic copyright enforcement systems have obvious advantages for both platforms and rightsholders; they may also allow platforms to be more hospitable to certain types of user content. However, automated enforcement systems may also place an undue burden on fair use and other forms of non-infringing speech. The design of copyright enforcement robots encodes a series of policy choices made by platforms and rightsholders and, as a result, subjects online speech and cultural participation to a new layer of private ordering and private control. In the future, private interests, not public policy will determine the conditions under which users get to participate in online platforms that adopt these systems. In a world where communication and expression is policed by copyright robots, the substantive content of copyright law matters only to the extent that those with power decide that it should matter.

New empirical study of IP litigation in US District Courts

IP Litigation in United States District Courts: 1994 to 2014

I have just posted a new empirical study of IP litigation in US District Courts to SSRN. At the moment it has a very boring title: “IP Litigation in United States District Courts: 1994 to 2014”, but I am open to suggestions. [download it here]

What is this article about?

The article undertakes a broad-based empirical review of Intellectual Property (IP) litigation in United States federal district courts from 1994 to 2014.

Why would anyone want to read it?

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 190,000 individual case filings and examines the subject matter, geographical and temporal variation within federal IP litigation over the last two decades.

What is the payoff?

Well, for a start, it is full of cool graphs, figures and tables!

But if you interested in substance, I think that the article makes a number of significant contributions to our understanding of IP litigation.

  • It analyzes time trends in copyright, patent and trademark litigation filings at the national level, but it does much more than simply count the number of cases; it explores the meaning behind those numbers and shows how in some cases the observable headline data can be positively misleading.
  • Exploring the changes in the distribution of IP litigation over time and their regional distribution leads to a number of significant insights (see below).
  • Just as importantly, the article  frames the context for more fine-grained empirical studies in the future. The results demonstrate the dangers of basing empirical conclusions on narrow slices of data from selected regions or selected time periods.

Notable findings

  • The rise of Internet filesharing has transformed copyright litigation in the United States.

More specifically, to the extent that the rate of copyright litigation has increased over the last two decades, that increase appears to be entirely attributable to lawsuits against anonymous Internet file sharers. These lawsuits largely took place in two distinct phases: the first phase largely consisted of lawsuits seeking to discourage illegal downloading; the second phase largely consists lawsuits seeking to monetize online infringement.

  • In relation to patent litigation, the apparent patent litigation explosion between 2010 and 2012 is something of a mirage

However there has been a sustained patent litigation inflation over the last two decades the extent of which has not been fully recognized until now. The reason why this steady inflation was mistaken for a sudden explosion was that the true extent of patent litigation was disguised by permissive joinder.

  • The data and analysis presented in this study provides a new way of looking at the astonishing ascendancy of this district and the problem of form shopping in patent law more generally.

 In relation to the geography of IP litigation, it appears that filings in copyright, patent and trademark litigation are generally highly correlated. The major exceptions to that correlation are driven by short term idiosyncratic events in copyright and trademark litigation—these are discussed in detail—and by the dumbfounding willingness of the Eastern district Texas to engage in forum selling to attract patent litigation. The popularity of the Eastern District of Texas as a forum for patent litigation is a well-known phenomenon.

 

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.

 

Empirical Studies of Copyright Litigation: Can we rely on PACER’s Nature of Suit coding

I have just posted a new paper titled, Empirical Studies of Copyright Litigation: Nature of Suit Coding (http://ssrn.com/abstract=2330256). The paper investigates reliance on the Nature of Suit coding in the PACER records for empirical studies of copyright litigation. It concludes that although the PACER Nature of Suit for copyright does not in fact capture all copyright cases, it is a good enough sample for most purposes.

In spite of the increasing popularity of empirical legal studies more generally, there are relatively few empirical studies of copyright law, and even fewer of copyright litigation. This state of affairs cannot continue. The creation and distribution of copyrighted works is an important economic driver of the U.S. economy and copyright law’s interactions with freedom of expression and cultural participation have made it an area of significant public policy focus.  If we truly want to understand copyright litigation we need to examine then we need to look at LITIGATION and not just at cases. But before we go too far down the rabbit hole of docket analysis, someone needs to ask whether we are studying the right dockets.

As part of a broader ongoing study of copyright litigation I selected every case in the Lexis database published (by lexis, not necessarily designated as such by the court) between 2000 and 2012 that included the word “copyright”. The search was designed to be over-inclusive. From this broad sample, I randomly selected one fifth of the district court opinions and all of the court of appeals opinions.

A team of Loyola Law School students reviewed each opinion following a detailed coding form and determined, among other things, whether the case was truly a copyright case. Of the 472 cases coded, 102 were not copyright cases. More specifically, of the 137 court of appeals cases and 275 district court cases selected, 42 appeals cases and 60 district court cases only mentioned copyright in passing or in the course of discussing copyright case law but did not relate to a claim of copyright infringement.

Screen Shot 2013-09-24 at 6.59.33 AM

Determining the NOS coding for these true copyright cases was a simple, but laborious matter of cross-referencing the docket number with the PACER records. As set forth in Table 3, below, the almost 80% of district court cases and 85% court of appeals true copyright cases were filed as NOS=Copyright [820]. 

Screen Shot 2013-09-24 at 6.59.44 AM

The “other” category included: Contract, Cable/Sat TV, Other Statutory Actions, Insurance, Assault, Libel, & Slander, Other Personal Property Damage, Civil Rights, Fraud, Personal Injury and even some criminal filings. What is does this imply for empirical research? Most obviously, it implies that docket analysis of copyright disputes relying solely on the nature of suit coding misses one in five of the kind of copyright case that is likely to end up as a written opinion at the district court level.

Is 80% good enough? It’s not bad. If we assume that most attorneys are competent enough to know what the major focus of their case is, then the copyright cases that are overlooked by focusing solely on the 820 cohort are likely to be only partially about copyright. However, researchers should also be aware that some dockets that grow up to be copyright cases, even some that make it into text books, will be missed by reliance on the 820 coding. They should this understand that selection is probably not random and may not be inconsequential. Consider, for example the difference in duration between district level true copyright cases coded as NOS=820 and those that were not.

The average duration of terminated district court true copyright cases was 752 days (488 median) if the case was filed as NOS=820. For the corresponding set filed as something other than NOS=820, the average duration was 506 days (479 median). The average duration of unterminated district court true copyright cases as of January 1, 2013 was 1232 days (1074 median) if the case was filed as NOS=820. For the corresponding set filed as something other than NOS=820, the average duration was 1099 days (942 median). Figures 1 and 2, below, present the same information in the form of histograms indicating the distribution of duration for all four categories.

Screen Shot 2013-09-24 at 7.00.23 AM

Screen Shot 2013-09-24 at 7.04.01 AM

In simple terms, district court true copyright cases tended to be longer in average duration if filed as NOS=820, although it is noteworthy that they are not that different at the median.

What does all this mean for empirical studies of copyright litigation?
My conclusion is that, for copyright, at least, although the PACER Nature of Suit for copyright does not in fact capture all copyright cases, as long as researchers are clear about their methods and what data they are excluding, it is a good enough enough sample for most purposes.

The Lost Tradition of Fair Use in English and Colonial Copyright Law, Comments on Ariel Katz, Fair Use 2.0

Ariel Katz, Fair Use 2.0: The Rebirth Of Fair Dealing In Canada (Draft, Jan. 24, 2013)

In previous work I have highlighted the English origins of the modern fair use doctrine in abridgement cases from 1710 to 1841 (“The Pre-History of Fair Use” (2011) 76:4 Brooklyn Law Review 1371). The question that I failed to address is, if fair use was part of the English copyright law tradition, why do England and her former colonies now adhere to a much narrower concept of fair dealing? Ariel Katz’s new paper gives us some answers this question.

Conventional wisdom holds that in Commonwealth jurisdictions like England, Australia, New Zealand and Canada fair dealing cannot apply beyond the explicitly enumerated purposes. In the U.S. by contrast, the statutory purposes are just illustrations. Thus we are left with (in Katz’s words) an “omnipresent flexible fair use regime in the United States, and a seemingly rigid and restrictive fair dealing tradition in the Commonwealth countries.”

Katz’s bold claim is that the conventional wisdom is wrong!

“…the history of fair use and fair dealing and shows that … the enactment of the Imperial Copyright Act of 1911 [was] not designed to cause any major alteration in the common law of fair dealing, and the explicit recognition of five enumerated purposes in the (then) newly-enacted fair dealing provision was not intended to limit the principle of fair dealing exclusively to those five purposes.” (page 3)

Katz makes a strong argument that University of London Press, Ltd. v. University Tutorial Press, Ltd. (1916), 2 1916 Ch 601, the first reported case on the newly enacted English “fair dealing” provision of the 1911 Copyright Act may have been misread over the years. But I think that the strongest parts of the paper are his treatment of the legislative history of the 1911 Act and its contemporary reception.

The legislative history of the Imperial Copyright Act of 1911

The 1911 Act provided that: “Any fair dealing with any work for the purposes of private study, research, criticism, review, or newspaper summary” shall not constitute an infringement of copyright. Arguing that there was indication in the legislative history that the 1911 Act was meant to curtail fair use or freeze it in time. Katz has studied the introduction of the bill in Parliament and the House of Lords, he notes (at page 26) that

“If the Bill contemplated major reform with respect to fair dealing, it would have been expected that such change would be mentioned, but it was not. Nor did Viscount Haldane, who introduced the Bill to the Lords, mention any contemplated change with respect to fair dealing.”

Quite the contrary, Viscount Haldane in the House of Lords stated:

“All we propose to do is to declare that for the future the principle of fair dealing which the Courts have established is to be the law of the Code. … The principle of fair dealing is a principle which the Courts have applied with the greatest care. … All that is done here is to make a plain declaration of what the law is and to put all copyright works under the same wording.”

Why codify fair dealing if no change to fair use was intended?

Katz notes (page 25) that

“a simple explanation [for the codification of fair dealing] might be that since the 1911 Act was mainly a project of consolidation of different acts and codification of different common law rules, it seemed prudent not to leave fair use without any statutory basis. … Another explanation … if the Act only recognized the expansion of the copyright but remained silent about limitations to those expanded rights, court might have interpreted that as a signal that Parliament had decided to abolish fair use.”

Katz argues that it is even possible that the fair dealing provisions in the 1911 Act may even have been an attempt to expand fair use.

“… it is possible that the purpose of specifying the five categories was not only to remove any doubts that fair dealing applied to those already recognized in the case law, but also to ensure that it applied to those who lacked solid grounding in the case law. In particular, the addition of ‘newspaper summary’ and ‘private study’, categories that had no direct precedent in the case law, can support this explanation.” (pages 25-26).

Reaction of Treatise Writers

Katz also does a wonderful job of surveying the contemporary reaction of copyright treatise authors to the 1911 Act. He summarizes (at page 30)

“… if by enacting the fair dealing provision Parliament had intended to modify the existing doctrine of fair use by confining it to five enumerated categories exclusively, most of the contemporaneous commentators failed to notice that intention.”

Some examples lifted from Katz’s paper:

J.M. Easton, Copinger on Copyright, 5th edition.

“[a]ny fair dealing, with, any work for the purposes of private study, research, criticism, review, or newspaper summary is also expressly permitted by the Act.”

“fair dealing for other purposes has always been … permitted and, presumably, it was not intended to cut down the rights of fair user previously enjoyed under the old law.”

JB Richardson, The Law of Copyright (London: Jordan & Son, 1913)

“The passing of The Copyright Act, 1911, has completely recast the Law of Copyright, at any rate those parts which depend primarily on Statute Law, such as the term of protection and ownership of copyright. Only those parts of the law which are practically judge-made—such as the questions as to infringement by a new work other than an exact copy—have remained to any great extent unaltered, and even they are not untouched.”

LCF Oldfield, The Law of Copyright (London: Butterworth & Co., 1912)

“[w]hat is fair dealing with a work depends upon the circumstances of each particular case”

How did the restrictive view of the 1911 Act come to dominate?

In terms of copyright law treatises, Katz’s research indicates that “[t]he view that Parliament had intended to restrict fair dealing to the five enumerated purposes began appearing later. … In 1927, the sixth edition of Copinger was published. This edition was no longer authored by Easton, but penned by F. E. Skone James and published by a different publisher.” (page 30)

Katz argues that University of London case of 1916 which is treated as confirming the narrow scope of fair dealing has long been misunderstood. If he is correct, what deserves further exploration is why such a misunderstanding should have taken such firm hold of copyright law in England, Australia, New Zealand … and until recently, Canada.

 

Journalists and Fair Use

A new study by Patricia Aufderheide, Peter Jaszi, Katie Bieze and Jan Lauren Boyles, explores the problems that journalists face engaging with copyright and employing the doctrine of fair use. The study was based on open-ended interviews with 80 journalists across a range of media platforms.

The good news is that in situations that journalists have been dealing with for years, their collective intuitions about good practice map pretty closely onto the fair use case law. This is striking because the journalists appear to know very little about copyright law of the ins and outs of fair use. Sometimes the journalists quoted in the study were comically wrong:

“When somebody dies, … it’s in the public domain” … “If you can find it on the Web, then anybody can use it, and anybody can take it.”

So how do journalists get it right? The journalists mission to report the news, space constraints, norms of attribution and originality all lead journalists to seek to use their source material transformatively and limit that use to what is necessary. As the authors note:

“They routinely asked themselves if they were merely appropriating information in order to avoid work, or whether they were repurposing that information in a way matched to their mission to inform the public.”

More troubling is finding that in new media situations journalists did not understand their fair use rights. In this context,

“interviewees were often unable to make a timely decision or justify it to a gatekeeper. They operated from risk analysis, without knowledge of actual risk or of their actual rights.”

The study finds when in doubt, journalists routinely self-censor, causing delays, increasing costs, and even failing their journalistic mission.