Matthew Sag – Page 11

September 24, 2013September 25, 2013

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.

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].

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.

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.

September 11, 2013

Australian schools make the case for fair use

September 11, 2013September 11, 2013

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.

September 5, 2013September 5, 2013

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).

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.

August 30, 2013August 30, 2013

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.

August 29, 2013August 30, 2013

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.

August 21, 2013August 21, 2013

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).

August 9, 2013

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

July 26, 2013July 27, 2013

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

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

Available for download here.

July 12, 2013July 12, 2013

No one prints email anymore. Use shorter email signatures.

No one prints email anymore! Or, if they do it isn’t because they need ten additional lines of clutter giving them the same information over and over again.

I realized the other day that my email signature was taking up about ten lines of text. This is ugly and stupidly inefficient. I solved this problem by creating hyperlinks that tell people everything they need to know or point them where to find it out.

There is no reason why the link to my ssrn working papers has to say “http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=461043” it just needs to point there.
An easy way to do this is by creating the links in a draft email.

Then cut and paste that into your email signature and format according to taste.