Kirtsaeng decided by Supreme Court

Today, the Supreme Court decided the Kirtsaeng case. The Court held that the first sale doctrine limits a copyright holder’s ability to control distribution of copies lawfully purchased by the defendant, even when the defendant lawfully obtained the copies outside the United States. In so ruling, the Court clarified questions left behind by cases such as Quality King v. L’Anza, which many thought stood for the proposition that the first sale limited the right of distribution only for copies originating within the United States.

The 6-3 majority opinion, written by Justice Breyer, relies primarily on a textual analysis. The Court also noted that the plaintiff’s interpretation of the Copyright Act would, if accepted, lead to a number of unacceptable results such as libraries needing to get permission to circulate copies of books purchased overseas. The Court acknowledged that its ruling would make it hard for copyright holders to engage in price discrimination, stating that it could find nothing in the statute of the Constitution amounting to a preference in favor of “market division.”

As an academic, I’m particularly curious about effects of this latter statement in the future interpretation of para-copyright provisions. To the extent that the Copyright Act has been interpreted in ways that support the use of Digital Rights Management to limit free use of copyrighted works for the purpose facilitating price discrimination, it’s possible that the Supreme Court has sent a signal that these interpretations stand on shaky ground. Of course, we can’t know that until the proper case makes its way to the Court, but Breyer’s opinion at least opens the door to the possibility that the Court is making its opinion about these issues known.

Copyright and the Mantei T’eo Case

By now, every sports fan has heard about the hoax apparently perpetrated against Notre Dame linebacker Mantei T’eo. And though most of the discussion has revolved around whether T’eo can credibly claim to be a victim, a few people have begun discussing whether the perpetrator of the hoax bears legal liability for what he’s done. Most of these discussions talk about the difficulty of holding the perpetrator liable.

Now, I realize that for a man with a hammer, everything looks like a nail. Nevertheless, what about a copyright action against the perpetrator for taking the photos from someone else? Granted, it’s not the most traditional use of copyright, but it doesn’t seem so far-fetched to me. Maybe there wouldn’t be a lot of provable damages, but willful statutory damages (up to $150,000 per infringement – and I believe the perpetrator used multiple photos) could get large enough to really hurt, especially since the perpetrator isn’t a wealthy man.

Megaupload Founder Starts New Venture

The AP reports that the founder of Megaupload has started a new file sharing venture. Apparently, the new venture allows users to upload large files for downloading by others. The new service also apparently includes encryption that prevents the service from knowing what has been uploaded. This is supposed to shield the new venture from liability. However, given the possibility of applying Grokster-type inducement, I’m not sure it will work out as the service hopes.

Perhaps the most interesting thing about this story is the apparent inability of criminal prosecution to deter services from facilitating copyright infringement. Throughout the “war” on Internet copyright infringement, the assumption has been that powerful penalties will deter people from infringing. In this case, however, Megaupload’s founder is facing extradition to the U.S. to face prosecution, yet he has pretty much come right back for another go. Makes me think that now, more than ever, security for digital works will always be evanescent, at best.

Sony Releases Dylan’s “The Copyright Extension Collection”

As the New York Times reported, the title of the album says it all. Apparently Sony has released for limited sale a number of old Bob Dylan recordings strictly for the purpose of retaining copyright. If Sony had not done so, the recordings would have fallen into the public domain.

The story makes me wonder about how we could better tailor our (in my opinion) overly long copyright term of life + 70 into something more workable. I’m not naive enough to think that we’re likely to shorten the term of copyright. But what about requiring publication of a work as a prerequisite to bringing suit (or perhaps monetary damages or injunctive relief) at any time after the death of the author? Or what about requiring publication within the last 5 years before suit for any work that is more than (for example) 35 years old?

The Dylan story suggests that Sony would not have released these recordings unless it was faced with loss of copyright. Presumably this was the case because a sufficient market for the works does not presently exist. Sony’s willingness to publish implies either that they think the chance of profit in upcoming years is reasonable or that there is intrinsic value in holding copyright to unprofitable recordings. Either way, I think it’s smart to consider how we might use the threat of a diminished copyright right to get better public access to presently unpublished works.

Some thoughts on Julie Cohen’s new book Configuring the Networked Self: Law, Code, and the Play of Everyday Practice

Cross-posted at Concurring Opinions for a symposium on Julie Cohen’s important new book, Configuring the Networked Self: Law, Code, and the Play of Everyday Practice (Yale University Press 2012).

Julie Cohen’s book is fantastic. Unfortunately, I am late to join the symposium, but it has been a pleasure playing catch up with the previous posts. Reading over the exchanges thus far has been a treat and a learning experience. Like Ian Kerr, I felt myself reflecting on my own commitments and scholarship. This is really one of the great virtues of the book. To prepare to write something for the blog symposium, I reread portions of the book a second time; maybe a third time, since I have read many of the law review articles upon which the book is based. And frankly, each time I read Julie’s scholarship I am forced to think deeply about my own methodology, commitments, theoretical orientation, and myopias. Julie’s critical analysis of legal and policy scholarship, debate, and rhetoric is unyielding as it cuts to the core commitments and often unstated assumptions that I (we) take for granted.

I share many of the same concerns as Julie about information law and policy (and I reach similar prescriptions too), and yet I approach them from a very different perspective, one that is heavily influenced by economics. Reading her book challenged me to confront my own perspective critically. Do I share the commitments and methodological infirmities of the neoliberal economists she lambasts? Upon reflection, I don’t think so. The reason is that not all of economics boils down to reductionist models that aim to tally up quantifiable costs and benefits. I agree wholeheartedly with Julie that economic models of copyright (or creativity, innovation, or privacy) that purport to accurately sum up relevant benefits and costs and fully capture the complexity of cultural practices are inevitably, fundamentally flawed and that uncritical reliance on such models to formulate policy is distorting and biased toward seemless micromanagement and control. As she argues in her book, reliance on such models “focuses on what is known (or assumed) about benefits and costs, [and] tends to crowd out the unknown and unpredictable, with the result that play remains a peripheral consideration, when it should be central.” Interestingly, I make nearly the same argument in my book, although my argument is grounded in economic theory and my focus is on user activities that generate public and social goods. I need to think more about the connections between her concept of play and the user activities I examine. But a key shared concept is that indeterminacy in the environment and the structure of rights and affordances sustains user capabilities and this is (might be) normatively attractive whether or not users choose to exercise the capabilities. That is, there is social (option) value is sustaining flexibility and uncertainty.

Like Julie, I have been drawn to the Capabilities Approach (CA). It provides a normatively appealing framework for thinking about what matters in information policy — that is, for articulating ends. But it seems to pay insufficient attention to the means. I have done some limited work on the CA and information policy and hope to do more in the future. Julie has provided an incredible roadmap. In chapter 9, The Structural Conditions of Human Flourishing, she goes beyond the identification of capabilities to prioritize and examines the means for enabling capabilities. In my view, this is a major contribution. Specifically, she discusses three structural conditions for human flourishing: (1) access to knowledge, (2) operational transparency, and (3) semantic discontinuity to be a major contribution. I don’t have much to say about the access to knowledge and operational transparency discussions, other than “yep.” The semantic discontinuity discussion left me wanting more, more explanation of the concept and more explanation of how to operationalize it. I wanted more because I think it is spot on. Paul and others have already discussed this, so I will not repeat what they’ve said. But, riffing off of Paul’s post, I wonder whether it is a mistake to conceptualize semantic discontinuity as “gaps” and ask privacy, copyright, and other laws to widen the gaps. I wonder whether the “space” of semantic discontinuities is better conceptualized as the default or background environment rather than the exceptional “gap.” Maybe this depends on the context or legal structure, but I think the relevant semantic discontinuities where play flourishes, our everyday social and cultural experiences, are and should be the norm. (Is the public domain merely a gap in copyright law? Or is copyright law a gap in the public domain?) Baselines matter. If the gap metaphor is still appealing, perhaps it would be better to describe them as gulfs.