LIKELIHOOD OF CONFUSION®

Arctic Pear by Ochre

Most of my writing here about copyright law concerns the misuse and abuse of its heavily pro-plaintiff provisions such that there is little or no incentive against the filing of meritless claims of infringement.  In particular I have focused on scams such as Righthaven, the now-defunct copyright trolling operation, and the use or threatened use of attorneys’ fees and statutory damages as part of such claims.  Often these components are wildly out of proportion to the loss suffered, though anyone familiar with the pre-digital copyright regime understands that this is meant as a feature, not a bug.  If it were otherwise, casual infringement of typically non-wealthy creators would be a completely rational, if unethical, business practice, and the cost of the odd successful attempt at compliance would easily be absorbed as a cost of doing business.  And that odd attempt would be odd indeed, because without providing an incentive to attorneys to represent creators in such situations, they would have very little leverage over infringers.

My concern has always been when we move from “leverage” to arbitrage, which was what we had with Righthaven.  On the other hand, as a former journalist and author, and a person who often represents creators, I have, as regular readers know, never been sympathetic to the “information wants to be free” non-sequitur.  Creative works are not merely “information”; even “information” can be proprietary under many circumstances; and neither information nor art, in any case, has any desire for freedom or for anything else, even chocolate.

So, what is the geometry here?  There are creators of works subject to protection by copyright — authors, producers of visual works, songwriters, musicians and others.  There are distributors of content, who usually pay creators a pittance for their work but have the capital, technology and market access to exploit its value well.  There are consumers of content, who may or may not pay the legitimate price for their consumption.

And then there are the others:  The purported fair users, the search engines, the homage-payers, the derivative-workers.  They are not quite consumers, but unquestionably many of them profit from creative works.  Does copyright contemplate that they should be able to do so, or not?

With some of these preliminary thoughts in mind, consider, now, this blog post from David Newhoff:

Yesterday, the House Judiciary Committee held a hearing meant to lay some of the groundwork for overhauling copyright law in the United States.  The title of the hearing is “A Case Study in Consensus Building: The Copyright Principles Project,” suggesting that the “project” is about establishing premises and ground rules for how the debate might be framed going forward.  I suppose because the word consensus is also part of the title, several lawmakers and the witnesses called to testify repeated the rhetorical question as to why debate about copyright has become so contentious.  For authors and creators who actually use copyrights to forge professional careers and build businesses, this feint at decorum will elicit a justifiable sneer because it’s kinda like saying, “All someone did was spit in your eye, and I don’t know why we can’t now have a civil discussion about the principles of expectoration.”  Of course, there weren’t any authors or creators present at this hearing, and that in itself has been cause for concern.

For the lawmakers who asked the question in earnest as to why the debate on this issue can be so vituperative, they need only have paid close attention to one subtle but significant choice of words in the testimony of Professor Pamela Samuelson when she was asked about the matter of online piracy.  Samuelson, the lead author of The Copyright Principles Project, stated that individual artists are at “some disadvantage” in protecting their rights on the internet.  Some disadvantage?  Like a lone Boy Scout would be at some disadvantage fending off a mechanized armored division.  The thing about consensus is that you can’t ask for it if you’re going to propose a foundation of “principles” predicated on lies and half truths.  The correct answer to the question asked of Professor Samuels is “Individual artists don’t stand a chance of protecting their rights on the internet; they might as well shout their grievances into the next passing hurricane for all the remedies and resources at their disposal.”

He links to this piece by David Lowery:

Chairman Bob Goodlatte (R-Va.) plans a hearing on Thursday before the House Intellectual Property subcommittee to pursue his worthy goal of copyright reform.

The hearing is called “A Case Study for Consensus Building: The Copyright Principles Project” and focuses on a group called the “Copyright Principles Project” that produced a white paper called “The Copyright Principles Project: Directions For Reform.”

There are no creators involved in the Copyright Principles Project at all!  None.  As in not one.

The Internet has democratized creativity, but this group of Big Tech and Big Media companies and the lawyers and academics who love them is about as undemocratic a “consensus” as any artist could imagine.

Creators are the most affected by the “Project’s” many proposed changes to copyright law. But creators were apparently not even considered as eligible to participate in discussions with these elites.

Let me give you one small example from the many proposals — copyright registration and orphan works. Had they been included, photographers could have explained that they typically take hundreds of photographs in a single photo session. The registration recommendation in this report would require photographers to register each and every photograph with a government registry to protect against “orphaning”— the use of a copy of their works by someone who can’t seem to find them.

This registration idea has been around for quite a while. The pitch to artists is never from other artists — it’s usually pitched as a good thing because the Internet would unleash a torrent of untold riches if people could just find you. This must be someone’s idea of a joke, because if the Internet has unleashed anything on artists, it is not a torrent of people trying to pay us. It’s another kind of torrent — a Bit Torrent.

This registration issue is tricky — they can’t condition the right to copyright itself on registration because I’m told that would probably violate international law and land the U.S. in yet another arbitration (remember the Fairness in Music Licensing Act?). So a registration just allows your work to be exploited if the people who want to use the work can’t find you — even if they look really, really, really hard. That idea is something that any artist could have told the “Principles” elites was … well, incorrect. Had we been asked.

There are plenty of ways to find musicians, songwriters and recording artists right now. The problem isn’t that we can’t be found. The problem is that only the honest people want to look for us.

The market has already produced a solution to this. Artists who want to be found have registered with Getty Images, ASCAP, Flickr, BMI, SESAC, SoundExchange or Deviant Art and can continue to do so. Who benefits, then, from this registration requirement?

Big Tech. A Google lawyer told the Copyright Office that Google was interested in millions of orphans. In these recommendations, the person doing the looking has no incentive to actually find the artist because they benefit economically by failing to find artists.

I wonder.  
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