copy wrong

15/10/14 1:55 pmCopywrong

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A Critic at Large OCTOBER 20, 2014 ISSUE

Crooner in RightsSpatAre copyright laws too strict?

BY LOUIS MENAND

TABLEOF

CONTENTS

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RCopyright lawshave never beenmore protective,but, thanks to theInternet, theyhave never beeneasier to ignore.ILLUSTRATION BYTHOMAS BURDEN

od

Stewart isbeing suedover therights to animage of hisown head.

In 1981, aprofessionalphotographer namedBonnie Schiffman tooka picture of the back ofStewart’s head, whichwas used, eight yearslater, on the cover ofthe album “Storyteller.”Now a different pictureof Stewart’s head, alsofrom the back, hasbeen used to promote

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his Las Vegas act andworld tour. Schiffmanclaims that theresemblance betweenher photograph andthe new image is tooclose—the legal term is“substantialsimilarity”—and she issuing for copyrightinfringement. She isasking for two and ahalf million dollars.

A copyright is, firstand foremost, the rightto make a copy. Thefirst products to beprotected by copyright—the statutory historybegins in Britain, in1710, with the passageof a law known as theStatute of Anne—werebooks. Once you buy abook, you can legallydo almost anything toit. You can sell it tosomeone else, you cantear the pages out, youcan throw it on abonfire. God knows

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you can print terriblethings about it. Butyou cannot makecopies of it. The rightto do that belongs tothe author of the bookand his or her heirsand assigns.

As with any right, theright to make a copy isa lot lessstraightforward than itsounds. As the personwho wrote this article,I own the right tomake copies of it.Since 1976, in theUnited States, thatright has been bornwith the article, andthere are fewformalities stillrequired for me toassert it. The beliefthat you haveirrecoverably forfeitedyour copyright if youhave not sent a copy ofyour book to the



Library of Congress, orput a © on itsomewhere, is obsolete.

I have granted TheNew Yorker anexclusive license to thearticle for a limitedperiod, after which themagazine retainscertain privileges(including printing itin a collection of NewYorker writings andkeeping it on its Website). If, a year fromnow, someone else,without mypermission, reprints myarticle in a book called“The Most Thoughtfuland Penetrating Essaysof 2014, ” I cancomplain that my rightto make copies is beingviolated and, if thecourt agrees with me,legally suppress thebook. Theoretically, thecourt could compel thepublisher to pulp allthe unsold copies.



Although not theauthor of this piece,you, too, would likelyfeel that the publisherof “Most ThoughtfulEssays” was a bandit,and you would sharemy sense of righteousindignation.

But suppose that aWeb site,awesomestuff.com, ranan item that saidsomething like “Thispiece on copyright is agreat read!” with ahyperlink on the word“piece” to my article’spage on The NewYorker’s Web site. Youwouldn’t think this wasbanditry at all. Youwould find itunexceptionable.

This is partly becauseof what might becalled the spatialimaginary of the Web.When you click on alink, you have thesensation that you no



longer are at a placecalledawesomestuff.com buthave been virtuallytransported to anentirely different place,called newyorker.com.A visual change isexperienced as aphysical change. Thelink is treated as afootnote; it’s as thoughyou were takinganother book off theshelf. The Webreinforces this illusionof movement byadopting a real-estatevocabulary, with termslike “site” (on whichnothing can be built),“address” (which youcan’t G.P.S.), and“domain” (which is alegal concept, not aduchy).

Some courts havequestioned the use oflinks that importcontent from anotherWeb site without



changing the URL, apractice known as“framing.” But it’s hardto see much difference.Either way, whenyou’re reading a linkedpage, you may still be“at” awesomestuff.com,as clicking the backbutton on your browsercan instantly confirm.Effectively,awesomestuff.com hasstolen content fromnewyorker.com, just asthe compiler of “MostThoughtful Essays”stole content from me.The folks atawesomestuff.com andtheir V. C. backers areattracting traffic totheir Web site, with itsmany banner ads forawesome stuff, usingmaterial created byother people.

An enormous amountof Web business isconducted in thismanner. Most Web



users don’t feelindignant about it. Onthe contrary, most Webusers would feel thattheir rights had beenviolated if links likethis were prohibited.Something that isalmost universallycondemned when ithappens in themedium of print isconsidered to be justhow digital mediawork.Awesomestuff.commight even argue thatno one is harmed bythe link—that it isdoing me and The NewYorker a favor byincreasing our article’sreadership at no cost tous. But the publisher of“Most ThoughtfulEssays” could say thesame thing, and thecourt would beunmoved.



This almostinstinctivedistinction

between what is properin the analog realmand what is proper inthe digital realm is atthe center of a globaldebate about the stateof copyright law.Statutes protectingcopyright have neverbeen stricter; at thesame time, everyminute of every day,millions of people aremaking or using copiesof material—texts,sounds, and images—that they didn’t create.According to anorganization called TruOptik, as many as tenbillion files, includingmovies, televisionshows, and games,were downloaded inthe second quarter ofthis year. Tru Optikestimates thatapproximately ninety-



four per cent of thosedownloads were illegal.The law seems to becompletely out ofwhack with thetechnology.

The point of PeterBaldwin’s fascinatingand learned (and alsorepetitive anddisorganized) “TheCopyright Wars”(Princeton) is that thedispute betweenanalog-era and digital-era notions ofcopyright is simply thelatest installment of anargument that goes allthe way back to theStatute of Anne. Theargument is not reallyabout technology,although majortechnological changestend to bring it back tolife. It’s about thereason for creating aright to make copies inthe first place.

In the United States,



In the United States,the reason is stated inthe Constitution.Article I givesCongress power “topromote the Progressof Science and usefulArts, by securing forlimited Times toAuthors and Inventorsthe exclusive Right totheir respectiveWritings andDiscoveries.” TheCopyright Act of 1790set the length ofcopyright at fourteenyears, renewable foranother fourteen, afterwhich the work fallsinto the publicdomain.

A right is just the flipside of a prohibition.The thinking behindArticle I is thatprohibiting peoplefrom copying andselling someone else’soriginal work is a wayof encouraging the



writing of useful orentertaining books, justas awarding a patent isa way of encouragingthe invention of usefulor enjoyable things.The prohibitionoperates as anincentive for theprotected party. For alimited period—fourteen or twenty-eight years—authorsget to enjoy the profitsfrom sales of theirbooks, and thisprospect of rewardinduces people towrite.

But Article I makes itclear that the ultimatebeneficiary of booksand inventions is thepublic. Copyrights aregranted and patents areissued in order “topromote the Progressof Science and usefulArts.” This is why theConstitution dictates alimit on the right to



make copies. After theterm of protectionexpires, a work cannotbe copyrighted again.It becomes a publicgood. It is thrown intothe open market,which allows it to becheaply reproduced,and this speeds thedistribution ofknowledge.“Intellectual propertyis a frail gondola thatferries innovation fromthe private to thepublic sphere, from thegenius to thecommons,” as Paul K.Saint-Amour, one ofthe leading literaryscholars of copyright,elegantly describes it.

Drugs make a goodanalogy (as they sooften do). Apharmaceuticalcompany that developsa new medication isrewarded for itsinvestment in R. & D.



by the right to marketthe medicationexclusively for alimited period of time.When that periodexpires, otherpharmaceuticalcompanies canmanufacture and sellknockoff versions.These generic meds areusually far cheaperthan the original,brand-name drug, andthe result is animprovement in thepublic’s health.

The United States alsofound another, andeven better, way tospeed the distributionof knowledge, and thatwas not to extendcopyright to foreignworks. This was notuncommon in thenineteenth century, butthe United States wasparticularly slow toreform the practice.Until 1891, a book



published elsewherecould be legally copiedand sold here withoutpayment to the authoror to the originalpublisher. “It seems tobe their opinion that afree and independentAmerican citizenought not to be robbedof his right of robbingsomebody else,” ArthurSullivan, of Gilbertand Sullivan,complained. CharlesDickens campaignedaggressively against theevils of piracy, to noavail. The loss toBritish authors was notsmall. The UnitedStates is the world’slargest consumer ofbooks. Baldwin saysthat by the latenineteenth century theAmerican book marketwas twice the size ofBritain’s.

The term of copyright



The term of copyrighthas been expanded inthe United Statesperiodically since 1790.In 1831, copyright wasmade renewable for upto forty-two years fromthe time ofpublication; in 1909,for up to fifty-six years.In 1976, the law wasrewritten to protectcopyright for fifty yearsafter the death of theauthor, and formalities,like requiring authorsto register theircopyright, were relaxed.This means thatanything andeverything is nowcopyrighted. If youmade it, no matter howtrivial, you own it, andif someone else copiesit you can sue.

Finally, in 1998,protection wasincreased to life plusseventy years, thanks tothe passage of what is



known as the SonnyBono Copyright TermExtension Act, namedfor the late, greatsongster turnedCaliforniacongressman. (Workswith corporateauthorship areprotected for ahundred and twentyyears after creation orninety-five years afterpublication, whicheveris first.) This meansthat copies—and, ifBonnie Schiffmanprevails in her lawsuit,imitations—ofSchiffman’s picture ofRod Stewart’s head,which is already thirty-three years old, may beillegal until some timein the twenty-secondcentury.

The Bono Act alsoaltered the term forworks still in copyrightthat were publishedbetween 1923 and



1978, increasing it toninety-five years fromthe date of publication.(In 1993, the EuropeanUnion had gone evenfarther, reviving lapsedcopyrights of works byauthors who diedbetween 1925 and1944, as a way ofcompensating rightsholders for sales lostduring the SecondWorld War.) In 2003,the Supreme Court, inEldred v. Ashcroft,rejected a challenge tothe constitutionality ofthis additional awardto works already undercopyright. TheConstitution wasexplicit in grantingCongress the power toset the term ofcopyright, Justice RuthBader Ginsburg wrote,provided that term wasa limited one. TheConstitution did notdefine what “limited”meant, and it was not



the Supreme Court’sbusiness to decidewhether Congress hadexercised its powerwisely.

As a result of the BonoAct, you can publishnew Englishtranslations of the firstfour volumes ofProust’s “In Search ofLost Time,” all ofwhich appeared beforeProust’s death, in 1922,but the copyright forEnglish translations ofthe last three willcontinue to be ownedby Random Houseuntil 2019. AlthoughJames Joyce’s“Finnegans Wake” hasbeen in the publicdomain in Europesince the end of 2011(seventy years afterJoyce died), it willremain undercopyright in thiscountry until the end



O

of 2034 (ninety-fiveyears after it waspublished).

n anotherstratum of

economic value,Mickey Mouse, whomade his début in1928, in an animatedpicture called“Steamboat Willie,”won’t come out ofcopyright until 2024.The Disney Company,which owns rights to anumber of valuablebut, by the standards ofthe entertainmentindustry, ancientcartoon characters,lobbied hard to get theBono Act passed.

As it happens, MickeyMouse owes his veryexistence to acopyright issue. In1927, Walt Disneycreated a charactercalled Oswald theLucky Rabbit and was



engaged to create aseries of animatedshorts featuring thecharacter for UniversalStudios. During adispute overcompensation, hediscovered thatUniversal owned therights to Oswald, andthat the studio couldfire him and makeOswald movieswithout him. Hevowed never to give uphis rights again, andcreated MickeyMouse.

Courts have beenreceptive, as well, toclaims of “subconsciousinfringement.” Evenpeople who are notpirates can be made tocease and desist, or topay damages. In 1976,an American courtfound that GeorgeHarrison’s “My SweetLord” had infringedthe copyright on “He’s



So Fine, ” by theChiffons, which was ahit in 1963. One criticwent so far as toobserve that the refrain“Hare Krishna”essentially copied therefrain “Doo-lang,” in“He’s So Fine.”Harrison ended uppaying five hundredand eighty-seventhousand dollars.

Baldwin joins Saint-Amour, the lawprofessors LawrenceLessig, Jeanne Fromer,and Robert Spoo, andthe copyright lawyerWilliam Patry inbelieving that, Internetor no Internet, thepresent level ofcopyright protection isexcessive. By the timemost works fall intothe public domain,they have lost virtuallyall their use value. Ifthe public domain isfilled with items like



“Is thisfrom the

communitygarden? It

tastessanctimonious.”

BUY OR LICENSE

hundred-year-oldimages of the back ofRod Stewart’s head,the public good willsuffer. The commonswill become yourgreat-grandparents’attic.

As itis,few

creations outlive theircreators. Of the187,280 bookspublished between1927 and 1946, only2.3 per cent were stillin print in 2002. But,since there is no “use itor lose it” provision incopyright law, they areall still under copyrighttoday. Patry, in hisrecent book, “How toFix Copyright,” notesthat ninety-five percent of Motownrecordings are no

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longer available.Nevertheless, you can’tcover or imitate oreven sample themwithout paying alicensing fee—despitethe fact that your workis not competing in themarketplace with theoriginal, since theoriginal is no longerfor sale. (U.S. law doesnot protect recordedmusic made before1972, but state lawscan apply—as thenineteen-sixties groupthe Turtles areclaiming in a lawsuit,for more than ahundred milliondollars, against SiriusXM.)

In the case of Motown,at least you knowwhom to call. In thecase of many booksand photographs, therights holders areunknown; in othercases, it’s expensive to



track down the heirs orthe legatees or thefirms, possibly nolonger in existence, towhom the copyrightbelongs. And so, forfear of being sued andhaving their workpulped or otherwiseerased from theuniverse, people avoidthe risk. Patry says thatthe BBC has a millionhours of broadcasts inits archives that cannotbe used, because noone knows who holdsthe rights.

Before the Internet,the social cost of thisobstacle was minimal.Only a few people hadthe time and theinclination to travel towhere they could see orlisten to archivedbroadcasts. But today,when everything canbe made available tothe entire world atminimal expense, it



W

seems absurd to holdenormous amounts ofcontent hostage to thethreat of legal actionfrom the odddescendant. “That avast existing culturalpatrimony, already paidfor and amortized, sitslocked behind legalwalls, hostage tooutmoded notions ofproperty, when at theflick of a switch itcould belong to allhumanity—that islittle short ofgrotesque, ” Baldwinconcludes. Yet the odddescendant has the lawon her side. She hasthe power to pulp.

hat’s therationalefor

maximizingprotection? The idea ofa public domainbelongs to the theorythat individual rightsare intended to



promote public goods.The First Amendmentprotects individualexpression, forexample, because it’s insociety’s best interestto have a robust debate—not because eachperson has a right tosay what he or shethinks simply by virtueof being human. So theright to make copieswas imagined by theFramers as a way toencourage the writingof books by individualsfor the good of aneducated citizenry. But,if you are a natural-rights person and youthink that individualrights are inalienable,then you don’trecognize the priorityof the public domain.You think that societyhas no claim on workscreated by individuals.The right to controlone’s own expressions,to sell them or not, to



alter them or not, isnot a political right. It’sa moral right, and itcannot be legislatedaway.

Moral rights giveauthors control overnot just thereproducibility but theintegrity of theircreations. This controlcan extend beyond thelimits of copyrightprotection—as in caseswhere the author hasassigned the copyrightto someone else, like apublisher, or when theterm of copyright haselapsed. Moral right isa recognized legalconcept in Europe.Courts there have held,for example, thatalthough the buyer of awork of art maydestroy it, he or shecannot deface orotherwise alter it. Thatright belongs to theartist in perpetuity.



Samuel Beckett’srestrictions on thestaging of his plays is awell-known example ofthe exercise ofcopyright as a moralright. Beckett and hisestate consistentlyrefused permission tomount productions ofhis work—“Endgame”in an abandonedsubway station is theclassic case, but thereare many others—unless Beckett’s stagedirections werecomplied with literally.The refusal was notbased on any economicconsideration; theseperformances were notcopies competing withthe originals. It wasbased on the right ofthe playwright toprotect the integrity ofhis plays.

A natural-rightsperson would ask whythe law shouldn’t treat



a book the same way ittreats any form of realproperty. If you own ahouse or a piece ofland, the state sets notime limit on yourright to use it. A familycan live off the incomefrom real estate orfrom a trust fund inperpetuity. Why can’tErnest Hemingway’sheirs live off theincome from hisbooks? Is it fair forpeople who had norelation to ErnestHemingway tosomeday make moneyselling those books?Should they be able toabridge them, orchange the endings,with impunity?

These are the twophilosophicalrationales for copyrightprotection. Baldwincalls the limited-term,public-domainconception the Anglo-



American conceptionand the much stricterreal-property, moral-rights conception theEuropean conception.The differences beganemerging toward theend of the nineteenthcentury, with thefounding of the BerneUnion, which wascreated to regularizeinternational copyrightlaws. Baldwinattributes theContinentalconception ofcopyright as a moralright to the desire ofcountries like Franceand Germany to asserttheir culturalsuperiority. Protectingthe rights of artists wasimagined as a way ofrejecting thecommercialization andcommodification ofculture that Europeancountries thought lessrestrictive copyrightlaws were designed to



facilitate. Europeansthought, in effect, thatAmericans wantedgreat literature to fallinto the public domainso they could makecheesy movies from it.

Britain joined theBerne Union when itwas founded, although,Baldwin says,grudgingly. TheUnited States did notjoin until 1989.Baldwin thinks thatthis, along with theadoption, in thenineteen-nineties, of anumber of additionalregulations stiffeningcopyright protection,including the BonoAct, marked thetriumph of theEuropean model.“Copyright’s evolutionis often told as a storyof American culturalhegemony,” he says. “Infact, the opposite ismore plausible.”



A t bottom, theargumentabout

copyright is not really aphilosophicalargument. It’s a battlebetween interestgroups. Baldwin pointsthis out—although,like everyone whotakes a position oncopyright, he alsothinks that his is thephilosophicallydefensible one. In thecopyright wars, thereare many sets ofopposing stakeholders.Much litigationinvolves corporateentities, which havethe financial resourcesto pursue casesthrough the courts. Inthese copyright battles,the main antagonistsare the businesses thatown copyrighted goodsand the businesses thatdon’t.

Let’s call the first type



Let’s call the first typeof business Hollywoodand the second typeSilicon Valley.Hollywood, along withthe music industry andthe publishingindustry, which are theother major analog-eracorporate interests,makes money byproducing anddistributing content.Silicon Valley makesmoney by aggregatingother people’s content.Hollywood fearspirates; Silicon Valleyfears paywalls. SiliconValley accusesHollywood of“monopoly” and“artificial scarcity,” andtalks about thedemocracy of theInternet. Hollywoodaccuses Silicon Valleyof “free riding” and“contributoryinfringement, ” andtalks about protectingthe dignity of the



artist. But each side isonly trying to defendits business model.

Freelancers versussalaried contentcreators is anotherinterest-groupantagonism. Most ofthe people who arecritical of the length ofcopyright protectiontoday are academics.(Patry is an exception,but he’s the seniorcopyright counsel atGoogle.) This isprobably not unrelatedto the fact thatacademics have almostno financial stake incopyright. Theresearch and writingthey do is part of theirjob as employees ofuniversities, or as therecipients of external,usually taxpayersupported grants. Theydon’t depend on salesto survive.

Freelancers, on the



Freelancers, on theother hand, areunhappy with whatthey regard as theerosion of their right tocontrol copying, whichthey see, for example,in the legallysanctioned practice ofposting “snippets” onsites like Amazon,iTunes, and GoogleBooks. Musicians andother artists tend toregard the Internet as aplace where anythinggoes, an ungovernableBarbary Coast. On theWeb, the general rule—known as a “take-down notice”—is thatyou can post almostanything as long as youtake it down when therights holdercomplains. No harm,no foul. There aresome technicalpreconditions that theposter has to meet toearn the protection,but this does not seem



to freelancers to be avery effective way todiscourage copying.

Academics opposecopyright protectionfor another reason aswell. They want accessto the research in theirfields. In the case ofscientific research,much of that access iscontrolled by giantmedia companies likeSpringer, Elsevier, andWiley. Thesecompanies publishacademic journals andthen charge hugesubscription fees to thelibraries of theuniversities thatsupported the verywork they are sellingback to them. Baldwincalls it “a notoriousrentseekingboondoggle,” and manyacademics haveorganized to find waysto circumvent it—bystarting new journals,



or by putting theirwork online indisregard for thecopyright claims ofSpringer and the rest.It was for trying toopen access to thedigital compiler ofacademic journalsJSTOR that AaronSwartz was arrested atM.I.T.

As the Constitutionstates, the ultimatepurpose of copyrightprotection is the spreadof knowledge. A lot ofthe debate overcopyright is carried onusing the examples offamous novels andpopular songs (as inthis article). But peoplearen’t going to stopwriting and readingnovels, or making andlistening to music. Theanalog-era industrieswill find—they arealready in the processof finding—a sounder



C

business model. Forthe rest of us, less is atrisk. The species cansurvive withoutcheaper copies ofMickey Mousecartoons and“Finnegans Wake.” Itis hard to write thesewords, but the speciescan probably survivewithout Motown.

opyright lawdoes notcompletely

shut down thecirculation of culturalgoods. It protects onlyexpression. Facts, ideas,systems, procedures,methods of operation,and many compilationsof data are deniedprotection. The 1976copyright act madestatutorily explicitsomething that hasalways been part of thecommon law ofcopyright: the doctrineof fair use. Most



copyright litigationsare essentially disputesover the properdefinition of thisconcept. In the UnitedStates, the meaning offair use is vague, whichis good, because courtscan judge each case inits own context, butalso bad, becauseguessing wrong can bevery expensive.

Contrary to popularbelief, fair use does notdictate a maximumnumber of copyrightedwords that you canquote or lines that youcan reprint. Parody isprotected under fairuse, and so are manyeducational uses ofcopyrighted material.The key concept is“transformativecopying.” You can usesomeone else’s creationif the purpose is tomake something newwith it.



The problem is thatthe judicial record isinconsistent. The lawon musical sampling isdraconian, butrestrictions on theright to quote fromunpublished works(like J. D. Salinger’sletters) have beenrelaxed. Judicialunpredictability makesfor legal anxiety.Professors who copymaterial for use in classare frequentlyuncertain whether ornot they need to seekpermission, whichalmost always entailspaying a fee. If they asktheir college’s generalcounsel, they will betold to pay the fee. Anylawyer would give thesame answer. Paying asmall fee (which, in thecase of educationalmaterials, can usuallybe passed along to thestudents) is a lot



cheaper than facing alawsuit, even one thatyou should win.

Lawyers rememberthat ASCAP oncedemanded that theGirl Scouts payroyalties forcopyrighted songs sungaround the campfire,and that Warner Bros.,the producer of“Casablanca,” wentinto action when itlearned that the MarxBrothers were makinga movie called “ANight in Casablanca.”(Groucho, in turn,wondered whetherWarner Bros. had therights to the word“brothers.”) You thinkthese laws don’t affectyou? Warner/ChappellMusic claims to ownthe copyright to“Happy Birthday toYou.” So far, in caseslike Eldred, theSupreme Court has



leaned to the side ofcopyright owners. Butthe Court always takesa while to catch upwith the times, so itseems likely that thelaw will eventuallychange.

The most fundamentalopposition in thecopyright wars isbetween creators andconsumers. Inparliamentary debatesin the nineteenthcentury, ThomasMacaulay calledcopyright “a tax onreaders for the purposeof giving a bounty towriters.” Creators wantto sell high, andconsumers want to buylow. Almost theminute a popular bookfalls into the publicdomain, cheap editionsflood the market. Avirtual minute afterthat, a digital editionbecomes available



online for nothing.This is what Congresshad in mind when, in1790, it restrictedcopyright to fourteenyears with a singleterm of renewal. Itwanted to speed theavailability ofinexpensive copies.

Freelance culturalproducers are onlyweakly organized, ingroups like theAuthors Guild and theAmerican Federationof Musicians. That’sone reason they arebetter off assigningcopyright to acorporate entity, whichhas the muscle toprotect it. Culturalconsumers are notorganized at all. Theycan speak only throughtheir electedrepresentatives, butmost of those peoplewill be listening to themoney—to the



Louis Menand has contributedto The New Yorker since 1991,and has been a staff writer since2001.

lobbyists for thecontent industries, newand old, as thoseindustries search formore reliable ways tosqueeze profits fromthe awesome stuff thathuman beings havecreated. �

http://www.newyorker.com/contributors/louis-menand

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