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.

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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.

Ivan Sag 1949 – 2013

Ivan was a large and brilliant man, the world feels like a smaller place without him. Ivan loved to drink, he loved to eat, he loved ideas, he loved his wife and he loved his friends. We loved him right back.

Ivan made significant contributions to the fields of syntax, semantics, pragmatics, and language processing. He wrote at least 10 books and over 100 articles. Ivan was the Sadie Dernham Patek Professor in Humanities, Professor of Linguistics, and Director of the Symbolic Systems Program at Stanford University. A fellow of the American Academy of Arts and Sciences and the Linguistic Society of America, in 2005 he received the LSA’s Fromkin Prize for distinguished contributions to the field of linguistics. All of which is to say that he was a brilliant wonderful man who I proudly call my uncle (even though he is in fact my first cousin, once removed). He will be missed.

A true scientist, Ivan was proud to live and die as an atheist.

DSC_0268

Who owns the copyright in my Marathon playlist?

I will be running my very first marathon in October this year in Chicago. In connection with the marathon, I am raising money for the American Cancer Society. Almost all of us know someone who has suffered from cancer. There are many fine charities to support. I choose to support the American Cancer Society because they fund a range of research, patient services, early detection, treatment and education programs and because they seem like good people.

Please think about donating to the ACS and helping me reach exceed my fundraising goal of $1500.00. To donate, click on this link (http://main.acsevents.org/site/TR/DetermiNation/DNFY11National?px=33850795&pg=personal&fr_id=54854).
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If you donate $10 or more, I will add any song of your choosing to my Marathon playlist. So far the selected songs are:

  • Jingle Bells;
  • The Night Chicago Died by Paper Lace;
  • Shout to the Top’ by Style Council;
  • Dies Irae from Mozart’s Requiem;
  • Waltzing Matilda;
  • We Built This City” by Starship;
  • “Born to Run” by Bruce Springsteen;
  • “We are Never Getting Back Together” by Taylor Swift
  • Give Up The Funk by Parliament

The recent lawsuit in the UK where Ministry of Sound is suing Spotify for allowing users to recreate MOS compilations using spotify playlists makes me wonder whether I have any copyright in the playlist that results from my fundraising.

Actually, that was just a pretense to (a) blog about the fact that I am running the Marathon and (b) suggest that if you made it this far into the post, you should donate some money to help fight cancer.

No adjournment in Authors Guild v. Google. Oral argument is set for Sept. 23, 2013

In an order dated yesterday, the court denied a request for adjournment of the oral argument, saying:

The date of September 23, 2013 was set on July 8, 2013, more than five weeks ago. The Court will not adjourn oral argument because new counsel in this eight-year old litigation is unavailable on September 23rd because he will be attending a conference on copyright law.

I don’t know who the new counsel for the Authors Guild is or what conference she or he was going to be attending.

Lessig v. Liberation Music is almost too good to be true

Fair use and DMCA takedowns

Lawrence Lessig has written many fine books and articles, played a key role in founding the Creative Commons and worked tirelessly to promote the interests of the public in copyright law. And now he has also given us a DMCA takedown case that perfectly illustrates the tension between fair use and the takedown procedure.

Lessig v. Liberation Music Pty Ltd 1:13-cv-12028 (D. Mass. Aug 22, 2013)

Complaint in Lessig_v_Liberation_Music

On June 4, 2010,  Lessig delivered the keynote address at a Creative Commons conference in Seoul, South Korea. In the course of his 49-minute lecture Lessig discussed the present and future of cultural and technological innovation.

The lecture included several clips of amateur music videos in order to illustrate cultural developments in the age of the Internet.

Lisztomania

One set of clips depicts groups of people dancing to the same song, “Lisztomania,” by the band Phoenix. The “Lisztomania” craze began when a YouTube user, called “avoidant consumer,” posted on YouTube a video combining scenes from several movies, with the song “Lisztomania” serving as the soundtrack to the video. Inspired by avoidant consumer’s work, other YouTube users from around the world created their own versions of the video, with real people “performing” the roles of the actors in the original movies, and again with “Lisztomania” as the soundtrack. Lessig’s evident purpose in including these clips in his lecture was to illustrate how young people are using videos and other tools to create and communicate via the Internet.

Lessig taken down

Liberation Music sent a takedown notice to Youtube and then threatened to sue Lessig when he made a counter-notifaction. Rather than risk statutory damages and banishment from Youtube, Lessig withdrew his counter-notice and filed this complaint instead.

Fair Use and the DMCA notice and takedown process

Is this fair use?

Yes. If the facts as set out in the complaint are true, and I have no reason to doubt them, this is quite obviously fair use.

Lessig’s use His use was self-evidently highly “transformative” as that term is used in the fair use case law.

 The original work exists to

entertain music fans, Lessig’s use of small slices of the work was intended to inform and illustrate a broader cultural phenomenon.

Lessig’s use would not have effected the market for or value of the Lisztomania composition or sound recording (a) because of it was transformative (see above) and (b) because the

five clips used in the lecture were fairly short compared to the original track — they ranged from

10 seconds to 47 seconds.

Is it wrong to file a takedown notice in the face of a compelling fair use defense?

The DMCA provisions that set up the notice and takedown regime (§ 512 of the Copyright Act) do not make any explicit reference to the fair use doctrine. However, for a copyright owner to proceed with “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,” the copyright owner must determine whether the material makes fair use of the copyright. (See Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 (N.D. Cal. 2008))

I have no doubt that Lessig will his declaratory judgment action. But prevailing on the misrepresentation claim under § 512(f) might be harder. He will have to show that the copyright owner acted in bad faith by issuing a takedown notice without “proper consideration” of the fair use doctrine. Case law suggests that this is a subjective, rather than objective standard.

Assuming that there is no admission by the defendant, the court will have to determine whether this particular claim to fair use was so obviously valid that it merited further consideration before filing the DMCA notice. The assertion by Liberation Music seems so reckless to me that this requirement may well have been met.

 

Code of Best Practices in Fair Use for Academic and Research Libraries

Code of Best Practices in Fair Use for Academic and Research Libraries

The Association of Research Libraries (ARL) has just released the Code of Best Practices in Fair Use for Academic and Research Libraries. The Code of Best Practices is intended to work as a clear and easy-to-use statement of fair and reasonable approaches to fair use developed by and for librarians who support academic inquiry and higher education.

What are these Best Practices codes about?

Best Practice statements such as this have been developed over the past decade in relation to classroom teaching, documentary filmmaking, online video, open courseware, media and communications studies, librarianship, poetry, and more. In general, Best Practices statements seek to identify points of strong and general agreement within user  communities  about what circumstances exist in which the unauthorized use of copyrighted material is crucial to the fulfillment of that community’s shared artistic or informational mission.

What does a Code of Best Practice Achieve? 

Best Practices are not a form of legal guarantee, but they are an important way for various  communities to educate themselves, bring together disparate sources of information, and state a common position. They also enable these communities to educate important third party stakeholders.

For example, following the development of the Documentary Filmmakers Statement of Best Practices in Fair Use in November 2005, every U.S. insurer that provides coverage against “errors and omissions” was willing to offer coverage for films that followed the Best Practices, which in turn, meant that films that had not been able to obtain copyright clearance but relied on fair use were able to be picked up for theatrical showing, DVD distribution, and television broadcasting – something that was not possible before the Best Practices.  There is ample evidence that filmmakers rely both extensively and successfully on own Statement of Best Practices, and the same is true of other creative communities that have created such documents for their own collective use.

What does the Code of Best Practices in Fair Use for Academic and Research Libraries do?

I have not read it yet, but taking its authors at their word, the Code deals with such common questions in higher education as:

  • When and how much copyrighted material can be digitized for student use? And should video be treated the same way as print?
  • How can libraries’ special collections be made available online?
  • Can libraries archive websites for the use of future students and scholars?

The Code identifies the relevance of fair use in eight recurrent situations for librarians:

Supporting teaching and learning with access to library materials via digital technologies
Using selections from collection materials to publicize a library’s activities, or to create physical and virtual exhibitions

  • Digitizing to preserve at-risk items
  • Creating digital collections of archival and special collections materials
  • Reproducing material for use by disabled students, faculty, staff, and other appropriate users
  • Maintaining the integrity of works deposited in institutional repositories
  • Creating databases to facilitate non-consumptive research uses (including search)
  • Collecting material posted on the web and making it available
  • In the Code, librarians affirm that fair use is available in each of these contexts, providing helpful guidance about the scope of best practice in each.

The development of the Code of Best Practices in Fair Use for Academic and Research Libraries is supported by a grant from The Andrew W. Mellon Foundation. The Code was developed in partnership with the Center for Social Media and the Washington College of Law at American University.

Post Script: 

The wonderful Peter Jaszi has been the driving force behind many of these Best practices projects. You can read all about it in Patricia Aufderheide and Peter Jaszi, Reclaiming Fair Use (University of Chicago Press, 2011).

I am dyslexic

I am dyslexic

This post has nothing to do with law, copyright or technology, but it has everything to do with my career as a lawyer and a legal academic. I don’t usually write about personal things on this blog but I have spent most of my life trying to hide the fact that I am dyslexic and this seems as good a forum as any to come out of the shadows.

I used treat my ability to hide my dyslexia as a measure of how well I had overcome it. But I also used to hide out of fear of exposure. Experience taught me that if you have a learning disability, many people think you are stupid. Some of those who don’t think you are stupid think that you are a liar instead.

Even though I knew early in my teaching career that I would have no trouble meeting the tenure standard at my school, I still worried that if my colleagues realized that I was dyslexic they would hold it against me when it came to tenure and promotion. In retrospect these fears seem uncharitable to my colleagues, but I feared their ignorance more than their malice. Now that I am a tenured full professor I don’t have to worry about what people think. More importantly, I hope that by sharing my experiences I might offer encouragement to younger people coping with learning disabilities and help change attitudes towards dyslexia.

Reading with dyslexia

Dyslexia is characterized by difficulty with learning to read fluently and with accurate comprehension despite normal intelligence. American Academy of Pediatrics “Joint Statement—Learning Disabilities, Dyslexia, and Vision” 124 Pediatrics 837 (2009)

Dyslexia can mean a lot of different things. The term is used as an umbrella term for a combination of auditory, visual and attentional disorders that manifest as learning disabilities.  I can’t say what it means in general to be dyslexic, I can only say what it means to me.

My type of dyslexia is visual/attentional, but mostly visual. When you look at worlds on a page, chances are that you see words on a page. For most of my life I have had 20/20 vision, so I see the words too – but I don’t really see them. For some reason I just don’t process combinations of letters very well. The word reversals and word skipping associated with dyslexia seem to be the result of a software failure in the brain, rather than a hardware failure in the eyes.

Some common illustrations on the Internet can give you some idea of what a dyslexic might see, but they are not exactly right either. (These two are from the Irlen website)

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The best way I can explain it is that when I read a word, I can only process two or three letters at a time. A word like “detection” becomes

de – et – te – ct – ti -io – n

But I compensate by sort of flitting over the words so “detection” might actually be more like

det – [bla] [bla] [some kind of tall letter] [bla] – ion

Defection! That sounds like an interesting book, … why is it all about detective stories?

It took me a long time to learn to read. When I was in grade one I would chose my books for quiet reading time on the basis of which ones had the most pictures. I would figure out one or two words per page and then just make up the rest of the story. Even when I supposed to read out loud I found that making things up was pretty good substitute for actually reading.

All through primary school, my reading age lagged my actual age by two or three years. This confused my teachers because I seemed to have “normal intelligence” and my vocabulary was quite strong. I did the usual range of remedial exercises and vision therapy (this mostly involved crossing my eyes and making red and green circles come together). These things helped a bit but I still read poorly, and only when forced.

In year seven, thanks to the loving tyranny of the diminutive Mrs. Johnson, I realized that I had to start reading. The first book I read was Battlestar Galactica, not a literary masterpiece but easy to follow since I had already seen all the TV episodes more than once. I spent weeks reading Battlestar Galactica at the glacial pace of 10 pages an hour. After that I very slowly worked my way through my older brother’s sci-fi collection. I loved the escapism, but reading gave me a kind of dull headache and left me exhausted.

Reading in color

In year eight (the first year of high school in Australia) my English teacher told me that my written work showed that I was either stupid or lazy. He then explained that he could see (I am not exactly sure how) that I was not lazy and that he knew from my standardized testing (I was always good at multiple choice tests) that I was not stupid. My new school’s special education teacher referred my on to a psychologist who tested me for “scotopic sensitivity syndrome” also known as Irlen syndrome. The psychologist ran me through a battery of tests and then we spent about two hours trying different colored lenses while doing yet more tests to see which color worked best for me.

Reading with colored lenses was, and remains, a totally different experience. I began to read much more quickly and without headaches. By year 11 I had transformed from a C student in everything but math to an A student. Colored lenses have not cured my dyslexia, but they make it manageable. I still have a shorter than average span of visual focus and words still tend to swim around on the page, but now it is more like

det -ect-ion

vs.

de – et – te – ct – ti -io – n

My grade seven teacher asked me once, how do you expect to get a job if you can’t spell? I had just read Isaac Asimov’s Foundation where one of the characters  dictated into her screen and the words appeared in her own handwriting, so I pronounced that by the time I entered the workforce computers would spell for us. It actually only took until I was in year 12. I love words and I love language, but if not for spell check I probably would have become an accountant.

I am still a terrible speller, especially when writing by hand. Spell-check has made my life possible, but even without it, there is something about the muscle memory of typing that works better than the fine-motor skills required for handwriting. My spelling embarrasses me. Even today, I will do almost anything to avoid letting other people see my handwriting. If I have to write a card I usually type it on my computer and then carefully check each word.

How do colored lenses help? Do they really help at all?

This is very difficult to explain. Irlen syndrome and the associate Irlen colored lenses are controversial. According to the American Academy of Pediatrics, “Joint Statement—Learning Disabilities, Dyslexia, and Vision”

“Most experts agree that dyslexia is a language based disorder. Scientific evidence does not support the efficacy of eye exercises, behavioral vision therapy, or tinted lenses.”

There are studies showing the effectiveness of colored lenses, but the American Academy of Pediatrics does not think that much of them. I wear non-tinted lenses for social activities that don’t involve reading. When I forget to change back to my tinted lenses all my old symptoms come back. This is as close to proof as you can get that colored lenses work for me and that this is not just a placebo effect. On the other hand, it also seems clear that these lenses don’t work for everyone.

What is it like to be dyslexic?

People who know me now think of me as confident, probably even a little brash. I did well at university and as a lawyer, but have only really excelled as an academic. I have published in Nature and some of the top U.S. law reviews (California, Northwestern, Georgetown, Ohio State, …) and I receive great teaching evaluations. So, yes, I am fairly self-confident — though not confident enough to leave these achievements unstated.

I have not always been so self-assured. For most of the time I was in school I my greatest intellectual aspiration was to be ‘normal’ or ‘average’. I told myself that I was average and that it was just my dyslexia that held me back. For a long time this anchored my self perception, to the extent that when I started excelling in high school I wondered why 95% of my class was below average. When my sister told me that I would never get the grades to get into law school I resented her because even though I was determined to prove her wrong, I also thought deep down that she was right.

Being dyslexic means being misunderstood, dismissed and underestimated. I was almost held back at the end of third grade. I failed the recorder in year 8. I always did poorly in English when it was graded on in class exams and then I was accused of cheating when I handed in high quality short stories and essays that my mother typed for me. [Thanks mum!]

Proud to be dyslexic

Not all differences are defects. I grew up thinking of dyslexia as a problem to be overcome, a disability that was holding me back. It took me a while to realize that dyslexia is also a gift. I am a bad speller and my attention to detail is inconsistent.  On the other hand, I am a great problem solver and and excellent generalizer. I can grasp general patterns based on what seems like insufficient data to most people. I am usually the first person in a movie theatre to get the joke. I also have great listening skills. When I was 26 I moved to the U.S. and studied for the California bar exam purely by listening to audio tapes from a cramming course. Life with dyslexia is an obstacle course — it is frustrating at times, but if you can learn when to avoid and when to overcome it makes you resourceful and tenacious. Dyslexia has made me creative and resourceful; it has also pushed me into a career path where these faculties are valued more than penmanship and spelling.

There are lists of famous people with dyslexia on the Internet, I suspect that most of these are total rubbish. The biographies of Winston Churchill of Albert Einstein that I have read provide no basis for the common assertion that they were dyslexic. On the other hand, claims about Richard Branson, Charles Schwab, John Chambers, and David Boies seem to check out. I am not famous, and I have no plans to become so. But I am reasonably well known and respected in the small world of U.S. intellectual property law academics. If anyone compiles a list of non-famous-but-reasonably-accomplished dyslexics, I would be proud to be on it.

Are dyslexia jokes funny?

Yes. Absolutely.

My personal favorites involve the dyslexic devil worshipper who sold his soul to Santa and the dyslexic agnostic who wonders if there really is a dog.

Coping with dyslexia

I have some suggestions for individuals and parents dealing with dyslexia.

  • See a range of vision, educational and psychological experts. Anyone who tells you they have all the answers is probably a quack or a charlatan.
  • Most of the advice in books like “driven to distraction” about ADHD actually works really well for dyslexia.
  • Don’t just treat dyslexia, think about ways to treat the inevitable frustration that goes along with it.
  • Don’t be afraid to seek reasonable accommodations at school, but also think about which ones will and won’t be available in the ‘real world’.
  • Spell check. I used to carry a pocket dictionary with me at all times but this is much easier now in the digital age.
  • Dictation software. Dictation software can be useful but I find it hard  to use because I don’t always see the mistakes.
  • Audiobooks.

 

My #IPSC slides – Copyright & Compulsory Licenses

IPSC 2013 (Matthew Sag)

Recent proposals to address library digitization through variations of compulsory licensing raise some important questions about the justification for compulsory licenses, the institutional design considerations that should go into any compulsory license regime and the relationship between fair use and compulsory licensing. For the most part, compulsory licenses are no substitute for fair use. Although fair use can be explained in terms of ‘market failure’ in the most abstract sense, in practice most fair uses are not simply the result of high cost of transacting, or if they are, these are not the kinds of transaction costs that can be resolved by a one-size-fits-all compulsory license. Compulsory licenses can be socially beneficial in theory, but they can be extremely problematic to administer in practice. A good compulsory license system may be an effective complement to fair use, but the case for crowding out fair use with compulsory licenses is weak.

In this presentation I explain six important institutional design considerations that must be addressed before anyone can seriously advocate establishing a copyright collective by legislative fiat.

Institutional Design Issues

  • Rate-Setting {who decides? what decision standard? how does the decision-maker get reliable information?}
  • Monopoly Pricing
  • Principal-Agent Problems
  • Mission Creep
  • Stifling Innovation
  • Overshadowing other policy imperatives

 

Setting the record straight on fair use in the U.S.

The Fair Use Doctrine in the United States — A Response to the Kernochan Report, by Gwen Hinze, Peter Jaszi &  Matthew Sag, July 26, 2013.

Our submission provides a brief overview of the U.S. experience of the fair use doctrine since its partial codification in the Copyright Act of 1976 and responds to some specific issues raised in an earlier submission to the Australian Law Reform Commission by the Kernochan Center for Law, Media and the Arts. Gwen, Peter and I were concerned that the Kernochan Report’s representation of American experience of fair use was incomplete and potentially misleading. We wrote this submission to provide the ALRC with a different perspective.

Our submission addresses nine questions about the fair use doctrine in the United States

  1. Does the american experience of fair use show that it is unpredictable?
  2. Do recent cases demonstrate that fair use is uncertain in application?
  3. What is the role of fair use guidelines in the United States?
  4. What is the role of various “best practices” guidelines in the United States?
  5. What does fair use mean to the education sector in the United States?
  6. Would australian fair use rulings diverge from United States’ precedent over time?
  7. Would adopting a fair use doctrine lead to more litigation? Would fair use be useful without substantial litigation?
  8. How does educational fair use relate to the anti-circumvention provisions under United States law?
  9. Is the fair use doctrine compatible with the international obligations of the United States?

Available for download here.