Massive Attack: Analyzing mass copyright infringement campaigns

I am about to give my presentation on a panel at the annual meeting of the Copyright Society of the USA at the Sagamore resort in lovely Bolton’s Landing, New York bearing this title.

Here is the outline of my presentation.  Who knows where it’s really going to go.

• Let us not be motivated to criticism by lawyer resentment over those who know how to make real money
  • Especially when it is other lawyers
• Bloggers understand or are charged to understand that copyright infringement is still copyright infringement even if (a) one is a blogger and (b) one is publishing on the Internet
• Overreaching in both the trademark and copyright areas has created a situation that was only waiting for a judicial and public backlash
  • Judicial – trademark – slower in coming but increased skepticism regarding the fallacious doctrine of IIC and use of trademarks in anticompetitive, anti-consumer claims
  • Cultural – copyright – well known.  There is little or no respect or effect on behavior among the broader population for legal rules concerning downloading of copyright-protected content
  • Judicial – copyright
    • new rulings expanding or at least going to the furthest known bounds of fair use – Righthaven v. Jama (“CIO Case”)
    • increased judicial focus, including in cases discussed in the last panel on recent developments in copyright, on the market-loss prong of fair use analysis
    • arguably a change in what had been a fairly warm reception in the courts to copyright claims
  • This brings us to the issue of mass enforcement a la RIAA and MPAA
    • Mass enforcement sweeps
      • Complete de-linking from any concept of blameworthiness, much less intent
    • Disproportionate penalties and fees
    • Results of mass enforcement:
      • Consensus is that it is ineffectual
        • Continual calls for enhancement of procedural and penal “tools”
        • Effects some unknown quantum of in terrorem deterrent
        • Crystallizes an anti-copyright, anti-establishment sensibility among militant downloaders
        • By targeting non-militants who act out of either ignorance or as casual scofflaws, makes anti-copyright, anti-enforcement
        • RIAA supposedly paid its lawyers more than $16,000,000 in 2008 to recover only $391,000*
          • Reminder about motivation for our criticisms here 😉
  • Predictable emergence of “trolling” or, more kindly, infringement-litigation arbitrage operations such as Righthaven
    • Built to maximize extraction of rent based on – as in all arbitrage situations – optimizing opportunity by exploiting otherwise marginal aspects of a regime designed for other purposes
    • Optimization achieved in part by decoupling creativity and bona fide ownership and outsourcing “enforcement” to firms designed solely for that purpose
• Reform in trademark requires congressional intervention, the prospects of which are fairly hopeless
  • As  Eric Goldman pointed out in a panel last month at INTA’s annual meeting, Congress’s interest in IP now, or at least trademark, is in selling its services to the highest bidder in an ongoing rent-seeking process (not exactly his words!)
• In copyright, the statute is, on this point, more sound
  • Simpler to demonstrate liability
  • Generally clearer jurisprudence on fair use
  • Nonetheless there is  a need for improvement
    • Unlinking the unlimited statutory authorization for attorneys’ fees merely upon a finding of infringement, regardless of how minimal or how little actual damage has been incurred
    • Due respect to the policy behind fee shifting here which is to protect small creators from being unable to enforce the rights in their works due to the daunting cost of representation
    • Revisiting statutory damages

There are plenty of issues merely alluded to in all that, of course.   Wish you were here!

* At the conference, a person in the position to know stated in the question-and-answer session that this figure was utterly innaccurate.  I am looking forward to receiving more accurate information.

Originally posted 2011-06-07 11:23:44. Republished by Blog Post Promoter