Intellectual Property

Overview

Wednesday, 12:00-1:30pm
Format: Lecture, featuring guest respondents
Lead: William Fisher, featuring Charlie Nesson and Vivek Kundra TBC as a respondent

Led by William Fisher, this pillar will begin with a brief history of key theories and issues related copyright in the Internet space. By examining some of the hard problems and cases that have defined this field over the last decade, this session will explore some of the central questions that characterize current debates, including the wide spectrum of licensing options, the uncertainty about permissible uses associated with creative works, and the implications of cloud computing. Charlie Nesson will highlight questions regarding the public domain, free and fair use, and the need for digital copyright and public domain registries. This foundational pillar will lay the groundwork for two relevant use cases on User Innovation and Digital Libraries, Archives, and Rights Registries (which will take place on Thursday morning).

Driving Questions

• William Fisher: To what extent, if any, is legal protection for creative works necessary either to stimulate creativity or to ensure that creators are treated fairly?

Required Readings

Overview / Introduction

• Lawrence Lessig, Ch. 1, “Introduction,” Remix, (Bloombsbury Academic) 2008.
• “Copyright Criminals,” Independent Lens (PBS), watch PBS “Community Classroom” Video Module 1: “Hip-Hop and the Birth of Sampling.”
• Subject Matter of copyright: In general, 17 U.S.C. § 102
• Exclusive rights of copyrighted works, 17 U.S.C. § 106

Infringement and Damages

• Infringement of Copyright, 17 U.S.C. § 501
• Registration as prerequisite to certain remedies for infringement of works, 17 U.S.C. § 412
• Remedies for Infringement of Copyright, 17 U.S.C. § 504
• Pamela Samuelson and Ben Sheffner, Debate, “Unconstitutionally Excessive Statutory Damage Awards in Copyright Cases,” 158 U.PA. L. Rev. Pennumbra 53 (2009), read Samuelson opening statement (pp. 54-57) and Sheffner Rebuttal (pp. 58-61); skim remaining pages

Intermediary Liability

• 17 U.S.C. § 512, read §§ 512(c), (d), (f), and (g)
• Viacom International Inc. v. YouTube, Inc. , (S.D.N.Y.), Civil Nos. 07-CV-2103 (LLS), 07-CV-3582 (LLS) (S.D.N.Y. June 23, 2010), read excerpts

Circumvention and Anti-Circumvention Provisions of the Digital Millennium Copyright Act (DMCA)

• 17 U.S.C. § 1201, skim all
• "Photog Can Fight Use of Nude Shock Jock Pic," Courthouse News Service (June 20, 2011), read all

Fair Use

• Limitations on exclusive rights: Fair use, 17 U.S.C. § 107
• American University Center for Social Media, “Documentary Filmmakers’ Statement of Best Practices in Fair Use” (Issued November 18, 2005), read all
• Campbell v. Acuff Rose, 510 U.S. 569 (1994), read excerpts

Intellectual Property Theory

• Justin Hughes, "The Philosophy of Intellectual Property," 77 Georgetown L.J. 287 (1988), read Part II, read pages 296-314

Recommended Readings

• U.S. Copyright Office, Circular 1, “Copyright Basics,”.
• Peter B. Hirtle, “Copyright Term and Public Domain in the United States, 1 January 2011,” Cornell University Copyright Information Center (CC BY 3.0), skim all.
• Eldred v. Ashcroft, 537 U.S. 186 (2003), read excerpts.
• Steve Greenlee, "Cooks Source probably shutting down," Boston Globe CultureDesk, November 17, 2010.
• William Fisher, "Theories of Intellectual Property" in Stephen Munzer, ed., New Essays in the Legal and Political Theory of Property (Cambridge University Press, 2001), read Section III.A

Copyright Course Materials. Since Fall 2010, the syllabus and materials for Professor William Fisher’s Harvard Law School “Copyright” course have been made available to the public. In addition to online resources, the syllabus links to “maps” which contain Professor Fisher’s lecture notes for all of his courses on intellectual property law. The four maps and collateral slide presentations contain overviews of the principal fields of intellectual property law, including copyright, patent, and trademark law, and intellectual property theory; June Casey of the Harvard Law School Library staff was enormously helpful in annotating them.

• William Fisher's Copyright syllabus, Fall 2010
• William Fisher's Visual Maps of Intellectual Property, 2011

Related Case Examples

Digital Libraries, Archives, and Rights Registries
User Innovation
Cloud Computing

Related Videos

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• William Fisher discusses pre-digital copyright law and the Fair Use doctrine.
  

Student Reflections

Professor Fisher’s presentation on Intellectual Property began with a history of copyright law, followed by prevailing theories behind the regime and the law’s application in the real world.

History of Copyright Law: Copyright Law in the United State originated as a 1790s. Empowered by the Constitutional grant to protect innovations in the arts and sciences, the writers of that first statute developed a limited regime that covered books, maps, and charts. The Copyright Law expanded in the subsequent 200 years, and now, the copyright protection reaches to objects and software (see full list HERE ). While the original statutes provided for a finite duration for protection, the changed and updated Copyright statute now protects covered items indefinitely. Equally important, the Copyright statute expanded the protected rights to the right to reproduce, right to make derivative works, right to distribute, the right to perform and to display.

Theories of Copyright Law: There are three plausible theories underlying the development of Copyright Law: fairness, welfare, and personhood. Fairness is based on Locke’s idea in his Second Treatise Chapter 5 that when a person labors upon a resource held in common and create something, he acquires natural right to the crops and the field itself if he abides by some provisos. In contrast, the welfare theory centers on the idea any action should further the public good. Under the welfare copyright regime, the government is encouraged to intervene to avoid the hazards of underproduction. Finally, the personhood theory is based on Kant and Hegel’s proposition that intellectual products are extension of one’s personhood.

Application of Copyright Law: This part of the presentation focused mainly on the application of copyright law on appropriation art. Professor Fisher provided justifications, and the limitation of those justifications, of each theory when dealing with appropriation art, i.e. Warhol, Koons, Shepard Fairey, and Mr. Brainwash. Many of these examples provoked law suits, and many have settled. Further, there is no overwhelming trend when the suits go to judgment. These examples show that the law is too uncertain and therefore defective. While the US does protect appropriate artists through the Scenes-a-faire and fair use doctrine, these protections are not enough to reduce the uncertainty of the law.

Summary of Key Questions

1) What would it take to “fix” the copyright system? We had questions about whether focused modifications and expansions would suffice or if a complete overhaul was necessary. Some pointed out that the current focus is on compensation and profit in monetary terms, but that given the changing landscape of the internet perhaps this emphasis is misplaced. One person pointed out: “It seems that a key question is whether we're compensating for production of ideas or ownership of ideas; the latter leads to mere Rentier capitalism.” Prof. Fisher argues that focused reform is needed and comprehensive reform is unlikely to happen because of the impossibility of the various interest groups to reach consensus.

2) What is the source of authority to make copyright law? Prof. Nesson launched this by asking what power was granted to Congress to grant a right and the extent of the right they were permitted to give. While the basis Constitutional, the text does not give a lot of guidance. Nesson argued that the framers may have been imagining commercial publishers copying in a way that took away commercial benefit from the first publisher. Fisher argued that the framers wanted Congress to be able to enlarge rights to keep pace with evolution of technology and business (progress in the useful science and arts). Therefore, Fisher argues Congress is free to conclude that banning file-sharing is necessary to promote the music industry. This prompted an interesting interjection from Prof. Zittrain asking: at what point does the First Amendment kick in?

3) Does the Internet undermine the moral rights/personality rationale for strong copyright protection? This conversation took place mostly online and involved questions around how people express their personalities in the digital age. Do many people “express their personalities through their unique remixing of preexisting material”? Rocky said, “Depends whose moral rights they want to protect - the integrity of the original work or the ability of downstream creators to use it as source material for their own creative expression.” Another wrinkle on the discussion was about the distinction between production and consumption when art is being used to define and express oneself -- who is the artist and who is the user? Maybe all are collaborators.

4) What happens when strong versions of personhood theory are applied? It is possible that in France and Germany, the strong view might lead to a complete exclusive right preventing application art. But Prof. Fisher thinks this is myopic view: A more egalitarian spirit would recognize the need to afford both first and second generation artists to engage in useful art. For some participants this is like the difference between RT and MT on Twitter.

5) A meta-question from Prof. Nesson: have we left out the public domain from this discussion? In some ways this tied back to an earlier debate between Prof. Zittrain and Prof. Benkler about who should read the treatise. So, is there room for a debate here among “elites” or should we make sure the public is involved? Prof. Fisher argued that this debate is no longer relegated to the elite because 25% of digital natives engage in these types of behavior on a regular basis. It just only gets litigated by elites since they have money. There may be some connections here to Prof. von Hipel’s work showing the democratization of the phenomenon.

6) Finally there were some questions on definitions and boundaries to frame future thinking. How do we define and differentiate “new” vs. “modified” vs. “copied”? Who is an author and who is a user/the public? If everyone in the public is a potential author does it change our answer? What is the public/private boundary, if there is one, or is it a continuum?

Questions for the Future of Cyberlaw

To what extent is it helpful to use concepts like original constitutional meaning or first principles when evaluating current internet regulatory frameworks? Are those ideas still relevant in an internet (and international) context or should we start with something new? If an overhaul of the copyright system is needed, and if it is unlikely that a new framework will ever be implemented due to the difficulty of reaching consensus, then where does this leave us in terms of finding a solution today? How do these questions change as we move to the Cloud? Is there such a thing as IP in the cloud? What is the implication of copyright law in user created appropriation works on the internet (YouTube videos, mashup gifs, etc)? Is there a difference between public perception of “real” art and “user” art? Are they significant enough for discussion?

Helpful Links

Rentier Capitalism: http://en.wikipedia.org/wiki/Rentier_capitalism

Preliminary Thoughts on Copyright Reform, by Pamela Samuelson: http://people.ischool.berkeley.edu/~pam/papers/Preliminary%20Thoughts%20utah.pdf

Best documentation of legislative history for copyright clause in Constitution is Dotan Oliar: http://www.law.virginia.edu/lawweb/faculty.nsf/FHPbI/1196152

US constitution. Article 1, Section 8, Clause 8: http://en.wikipedia.org/wiki/Copyright_Clause