Proposes a fundamental shift in thinking about copyright uses, away from free speech as an outer limit on copyright. This dominant approach has been a virtual failure in facial and as-applied challenges. Why do we keep beating the First Amendment drum when it’s not working? (Comment: Fred Schauer has something to say about this.)
Lawrence v. Texas has a lot to say for a small subset of uses: identity-based uses unrelated to political or cultural dialogues.
Why did the 1A fail? Copyright as a free speech exception; copyright as already incorporating speech protections; copyright as the engine of free expression. Even if it worked, it would be highly constrained in defending identity-based uses. The vast majority of 1A scholarship on copyright has focused on the democratic civil society, valuing the political over the personal, ideas and facts over expression, and transformative over non-transformative uses.
What does she mean about identity? Our understanding of ourselves; important life-altering experiences; our beliefs and values. These all become intertwined with copyrighted works. Religious works: one’s entire belief/value system could be entwined with copyrighted works. Or a particular song could have been playing during a vital life event, as for example a woman who was raped while a particular song was playing. Or a photographer could have taken a picture of Lindsey Lohan kissing Samantha Ronson, and Ronson could put the picture up on her personal website. This is a heartland identity use because it documents something that happened to her and it doesn’t matter that she wasn’t the one who took the photo.
Why liberty is better at this: Substantive due process connects up better with our understanding of the freedom at issue than First Amendment concepts. This is more a feel argument than a doctrinal argument. Lawrence: “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” Copyrighted works are important to self-definition. So we should focus less on freedom of speech and more on freedom of a person.
If we try users’ rights as speech rights, copyright owner will likely prevail—copyright is supposed to generate more speech overall. Or, if copyright is property, there’s no right to “make someone else’s speeches.” If a user’s interest is a liberty interest, liberty can trump property—the Civil Rights Acts weren’t viewed as takings (comment: note that this was a legislative enactment; the courts didn’t find a liberty right). If you call the copyright owner’s interest a speech one, speech has to be balanced with user’s liberty (and there’s no issue of compelled speech); likewise if you call the copyright owner’s interest.
Implications: no permission should be required; no payment should be required; entire works may be copied. The liberty based approach asks for the reason for a use, not whether copying the entire thing was necessary. (Comment: I don’t see how this is consistent with interest balancing. Can’t the user who was raped while a certain song was playing express that by playing thirty seconds of the song, in recognition of the copyright owner’s competing interests?)
Likewise, the private/public nature and the commercial/noncommercial divides would not be important. And it wouldn’t be necessary for the use to have a role in political dialogue or public debate. A lot of the work would be done through as-applied challenges.
Comments: This seems to me essentially a variant of fair use, with a constitutional candy coating. I’m happy with anything that gets us to think that there are a bunch of different possible fair use configurations, including self-expressive use. Amour-propre also compels me to note here that I’ve written on these issues, both standard First Amendment doctrine and an extended defense of nontransformative copying done in the service of personal commitments or meanings.
Q: A rule providing that no payment is required disturbs me where the loss is unambiguous. If you took someone else’s personal property without permission just because it was iconic for you (your foreclosed house, your repossessed car), we wouldn’t allow that. Imagine if I license my work for $10, but you refuse to pay. Why can’t I get my $10?
A: This is a concern about line-drawing. It would be a limited defense—the work has to be integrated into your life. The court would have to look at motivation.
My question: Where is “the right to communicate yourself to others” in liberty? See, e.g., Boy Scouts v. Dale, don’t ask don’t tell—you have no interesting right to communicate core aspects of your identity, at least not if that core is your gayness. As applied here: Why should you be able to play a song that’s important to you to other people online who don’t know you? If you should be able to play it, should you be required to take reasonable measures to prevent downloading?
A: One could argue that the 1A and free speech is really contained in liberty. This has an interaction with the autonomy-based, self-expressive features of the First Amendment; this is just a way to hook up liberty principles. W/r/t downloading, your identity interest doesn’t extend to others’ downloads, so you’d have to find a way to limit access. (I guess I have trouble seeing why your liberty interest extends just far enough to let them hear it while they’re visiting your page, but no farther. What interest do you have in their hearing it? How is it a liberty and not an expression interest?)
Wendy Gordon: Why do you think liberty will be any more successful? What cases are your models?
A: Lawrence is a fundamental broadening of our contemporary understanding of substantive due process, from privacy to autonomy.
Samuelson: This seems like fair use.
A: She is not trying to revitalize fair use. Her perception is that the 1A has failed as an outer limit, and she’s trying to find something else. She wants to remind courts that there are real people involved in using these works, and if that affected fair use that would be great.
Justin Hughes: A right of private performance would be the type of thing barred by your framework.
A: Even on a facial challenge. (Really? Because while Integral is a song vital to my self-concept, Boy with a Coin isn’t; if we really require investigation of motive, then a private performance right would generally be okay except where there was a specific reason to reject control over a particular person’s use of a particular work.)
The trend has been to harmonize the bodies of law by folding antitrust into patent, but it hasn’t worked well. The divide is deeper than courts/commentators realized—it’s not just that one encourages monopoly and the other restricts it, but that the fields use the same terms to mean different things, and that makes reconciling them very hard.
Two examples: The concept of exclusivity and the definition of product. Antitrust: exclusivity means one party can do something to the exclusion of all others. Using that language, people analyze patent rights as if there was a right to exclude everyone from the sphere defined by the patent, but that’s not always true. A patent doesn’t grant the right to make, use and sell the invention. She’s not talking about the availability of competing substitutes, but something more fundamental. Suppose a patent holder has a patent on use of a substance as an industrial cleaner, and the patent says “all uses.” If someone else discovers that the same substance treats breast cancer; she can patent that use. Anyone who wants to use that substance to treat breast cancer will have to negotiate with both of them, as with an improvement patent. That’s far less powerful than complete control.
The misperception that the patent holder is like a monolithic power in a particular space overestimates the power of the patent grant, encouraging courts to make improper assumptions about patent markets and be overly lax in defining patent markets.
Second example: what’s a product? The patent shouldn’t be looked at as a product in itself, because patent power often comes from interaction with other patents. E.g., defensive patenting. Biotech firms may engage in selective suppression, holding patents on multiple paths and only working on one at a time. This might be ok or not, but if you look only at the single patent you won’t be able to analyze it properly. Likewise, pharmaceuticals can have interactions that antitrust doesn’t quite notice, like the difference between a chewable and a nonchewable form of the same medication. Or selling two medications together could be tying, but putting them in the same pill has the same anticompetitive effect but is only one product. Or look at Roundup and Roundup Ready grain—is that one product or two?
Antitrust law’s conception of a monopolist has an explicit conception that some consumers enjoy the product or at least some substitute. Patent doesn’t assume that consumers get anything during the term, allowing perfect suppression. So treating the patentee like a monopolist underestimates the amount of competitive damage accepted under patent law.
This is in part a descriptive model of academic discourse about IP, and in part a normative model, with an acknowledgement of limitations. Arthur Leff’s classic Some Realism about Nominalism: we like to talk about things, but the critique of knowledge has been so powerful that we have few tools left. The economic analysis of law was a way to keep talking without saying anything. Conversation requires common vocabulary, and Posner’s law and econ has drained the appearance of conflict out of our definitions. We’ve stripped out the things motivating us and speak of costs and benefits.
Deirdre McCloskely pointed out that much of what passes for economic analysis is actually the product of introspection; we rarely have data, even crude data. So we introspect about what a rational actor would do, according to us, and then we call that consequentialist/utilitarian analysis. And we never measure or net it out; our graphs don’t even have numbers.
How people argue about IP: his introspection suggests that we retreat from extreme reflexive positions until we find safe ground within the range of plausible consequential arguments. Law profs are practical and like to talk about consequentialism, but all arguments within the space are structurally/logically sound, and choice between them is a matter of psychology. McGowan would like to shrink the area of “plausible consequential arguments” in order to make it less likely that we will be talking past one another.
Facts shrink the area. So our copyright policy should adduce facts, rather than suppress their production. We tend in copyright to opt for the suppression of facts. We substitute moralism for utilitarianism—Grokster. This calls into question the extent to which copyright is utilitarian.
Examples: (1) Parody/satire. Walking Mountain case: Mattel had a mall intercept survey about what people perceived when looking at photos of Cactus Barbie and the like. He doesn’t believe surveys are probative in the slightest, but he still thinks that the survey should have been considered in the copyright half of the case (hunh?). People were asked, along with sponsorship, about the message/meaning. 97% of people didn’t mention parody. OTOH, 25% of people surveyed in a mall intercept thought that Joan of Arc was Noah’s wife.
The 9th Circuit refused to consider the survey on the copyright side. That doesn’t mean that there will be no parody/satire analysis. It means that the panel will be the one to do it. Given our socioeconomic status and our verbal agility in this room, we’re all going to want the hoi polloi to be kept out of it—they might miss the point and suppress speech. A utilitarian has to reject that, because if people miss the point, than the utility of the parody is not what we introspect it to be.
One of the things the free speech argument in copyright does is make facts irrelevant: that’s the point of a right. It doesn’t matter if porn leads to rape: you have a right.
Second example: Perfect 10 v. Visa: Perfect 10 argued that the ability of credit card payment increased the availability of porn/infringing porn. One could measure the incremental effect of access to credit on consumption of porn, but the 9th Circuit said that inducement was not a matter of actually causing incremental infringement. Likewise, Sony is a fact-suppressing doctrine because it doesn’t examine how much infringement actually goes on; if there are potentially significant noninfringing uses the case is over.
His proposition: get facts. Inquiry is costly, and his proposal is costly. Limitations: Perfect 10 v. Amazon. The court says that proof of market harm is required. And yet there’s a standard Texaco circularity problem: how do you know there’s harm before knowing there’s a right? Demanding harm is unrealistic because you need to know the scope of the right first. That is a limit on his thesis—you can’t reduce all uncertainty with facts.
Second, is tailored pricing working? He likes tailored pricing, pay per use. But there are positive externalities from use and pricing is costly. The question whether the pricing mechanism is worth it drives a lot of copyright discourse, and it’s very difficult to get a handle on. We should focus less on questions of law—this is a contrast to Rothman’s paper—liberty, freedom, and speech are too diffuse and cut off inquiry.
Lemley: You’d add property to the list of those concepts, right?
Lemley: The level of generality at which facts are valuable to us. How many people find this to be a parody? Or something else might be relevant—not this particular work, but the broader effects that having a category of parody has on innovation and creativity. How do you think about that?
A: As a function of a cost of inquiry/uncertainty. It’s rule/act utilitarianism.
Gordon: Yes, we all love facts, but we can’t jump to the position that there are no rights arguments or principled arguments worth making. Just because we’re a practical bunch doesn’t mean we’ll all follow you on this—we look at particular facts because they plug into particular values.
A: He doesn’t mean to deny framing based on priors, or the relevance of moral debate. But where is it going?