BUS303: Strategic Information Technology

So now that you know some of the basics about intellectual property, let's go a bit further.

But first, it's time to narrow our focus. Patent law occasionally reaches individuals out in the world, but really, patents are mostly issues between corporations and inventors, not the general public. It's not common for patent law to interfere with people's daily lives. If you have a patent law issue  –  and especially if you're an inventor or patent holder of some sort  –  talk to a patent lawyer, but unless you go looking, it's not likely you'll have one.

Taking it one step further, a lot of concepts in copyright law have mirrors in trademark law, and copyright tends to be more of a hot-button issue. Trademark is incredibly important, don't get me wrong. And a lot of people use "copyright" when they really mean "trademark", and that bugs me when I hear it. But if I'm being honest with myself, copyright is where the action is, especially as it applies to the Internet. So I'll mention trademark a few times, but really, it's Copyrights Ahoy! from here on out.

Doesn't This Violate Free Speech?

Well…

As you probably know, the First Amendment of the Constitution of the United States holds that "Congress shall make no law…abridging the freedom of speech". (This has since been applied to other governments, like state and local governments, through the Fourteenth Amendment, but I digress. Again.) But that's a government matter: your right to free speech gives you protection from governments or their agents – like cops  –  shutting you down because the government doesn't like what you're saying, not other people who claim ownership in what you said or did.

So, technically speaking, there is no violation of "free speech" in IP, because you're not being governmentally anything-ed. But even I think that's being disingenuous. So let's look at censorship in general, not just First Amendment-invoking government censorship.

Fairly often, people use copyrighted or trademarked works as part of political commentary or criticism, either of the works themselves or society at large. Think Banksy and his use of big companies' well known symbols (like, say, "Dismaland") to comment on those companies or society (or both). If the owners of those copyrighted or trademarked works don't like what they see, and/or don't understand that complaining about it will just bring them even worse bad publicity (that's called the "Streisand Effect"), the owners sometimes try to use copyright or trademark as a club against those people, to force them to stop by accusing them of infringement.

Here's the catch: when the courts see someone trying to use IP law as censorship, the courts are Not Amused. If someone sues for a copyright or trademark infringement that's really an attempt to censor, the courts almost universally find against the owner. A good example happened not long ago: a Florida blogger wrote some blog posts criticizing a local businessman, using an unflattering picture of him. The businessman bought the copyright to the picture in order to shut the blogger down. Several years and rounds of lawsuits later, the businessman was told to sit down, shut up, go away, and pay the blogger's legal fees, because he should have known better than to try to use copyright law to censor the blogger. (See this report for the story.)

This was the picture.

I won't deny that too many times, owners do successfully use IP to censor, because not everybody can afford the legal fees or time or energy to fight it. That's awful, a perversion of both justice and law. But that's a problem with how IP law is implemented and the complexity of the justice system, not the concept of IP.

What's "Fair Use"?

I simply cannot believe this image actually exists, but…here it is. This is the source.

Like I said, the courts will usually smack around IP owners who overreach. Believe it or not, even judges can't do whatever they want without a basis for it. (Though it certainly feels like it sometimes.) The actual legal basis for that smacking-around is frequently the fair use exception, which states that the "fair use" of content is not an infringement of an owner's rights to that content.

The idea is that there are some times when using part of a protected work is something that we as a society want to encourage, but no owner would ever agree to let people do it. Negative reviews of books or movies, for example, that quote some lines of dialogue to describe how bad they are, are the sort of thing we as a society want, but no copyright holder would allow if they could stop it. And again, the use of trademarks to criticize the actions of the big companies that own the trademarks, a la Banksy, is the sort of thing that our society wants to support, but that the trademark holders would never authorize.

(Like I said, this is a concept in both copyright and trademark law, and while I'll mostly use copyright law in my description, know that a lot of what I say has an analogue in trademark contexts.)

In analyzing whether you're "fairly' using something, the law looks at why you're using it and how you're using it.

The purpose, the "why", has to be for something bigger than just your profit margin. The law gives an incomplete list of examples: "Purposes such as criticism, comment, news reporting, teaching, scholarship, or research". That's the kind of use where the law is willing to entertain the idea that the use is somehow an exception to IP law. (Which is why this works as an anti-censorship argument: when people try to use IP law to censor something, the thing they're trying to censor is almost always criticism, commentary, and/or news reporting.) This includes asking whether, and how, you're going to make money from what you're doing.

Ronan the Fair-User?

The use itself, the "how", looks at what sort of work you're using, how much of it you're using, in what manner you're using it, and how it's going to affect the market for the original thing. Remember, like I said earlier, the US cares about the economic benefit of IP only; the argument of "it's my baby and nobody is allowed to use it no matter what!" does not fly. So if you can show that you didn't take a lot, you aren't making money from it, you did something very different from the original, and what you did won't serve as a replacement for the original (as in, "why would I buy this book when there's a pirated version", that's an obvious market effect that will hurt a fair use case), you can improve your chances of winning a fair use argument.

Keep in mind that none of these things is itself a deal-breaker; this is a test of all the factors put together. Just because you might actually be making money, or you used a lot of the original, or it actually will affect the market for the original (like a bad review), doesn't mean your use automatically isn't fair. It's really all up to the judge.

So, if you can show that your use was for a fair purpose, and the use was done in a fair manner, you get to say that even though you took a copyrighted work, or a trademarked name or logo, you didn't actually infringe the copyright or trademark.

What's the Problem with Fair Use?

Most importantly, fair use only comes up in court. As a function of what I was saying earlier about this being a complicated, multi-factor analysis, you can't really say a use is fair until a judge says so. This has obvious consequences in the "not everybody has the time, money, or energy" point I mentioned earlier.

Relatedly, up until very recently, fair use was often interpreted, especially by big companies and far too many courts, to be a defense to copyright infringement  –  that is, when someone was accused of infringement, that person could say "I wasn't infringing, I was fairly using!" But the accused person had to say it, requiring that person to have a lawyer and get involved in the lawsuit and all that.

This mostly comes up in the context of DMCA takedown notices. Under the Digital Millennium Copyright Act (the DMCA), which was an attempt to update IP law for new technology around the year 2000, a site like YouTube, which hosts content, isn't responsible for any copyright-infringing videos that its users put up…as long as it has a place for content owners to send notices of infringement and procedures for taking down infringing videos. And the big media companies have argued for a long time that they didn't have to consider fair use before sending those "takedown" notices…because it's not possible to know if a use is fair until a judge says so.

Now, there has been some positive shift in a new direction  –  in a very recent and highly-watched case, Lenz v. Universal Music Corp., an appeals court recently ruled that fair use is a right authorized by the law, not an excuse or defense that the law allows, and content owners have to consider that question before issuing takedowns  –  but a shift like that is going to take time to work through, and a lot of media companies are going to be pushing back very hard the whole time.

What Other Issues Exist?

The other big issue you'll hear about is copyright term. Simply put, a lot of people think that the life of the author plus 70 years is way too long to keep a copyright going. Especially if you consider the whole "economic rationales only" thing. Are we really saying that creators will be more incentivized to make content by the fact that their copyrights will survive 70 years after their death?

Case in point: "Happy Birthday". Up until 2015  –  this year!  –  that song was claimed as a copyrighted work owned by Warner Brothers. Yes, really. Any time you heard the song being sung in a movie or TV show, there would be a copyright notice in the credits and a royalty paid to Warner, and smaller entities  –  like chain restaurants  –  had to use different songs so they didn't have to worry about being sued.

Let's be clear: everybody (pretty much) agreed that Mildred and Patty Hill wrote the music for "Happy Birthday" in 1893. And yet, Warner claimed that by some legal sleight of hand, the copyright would last until 2030. It wasn't until now that a judge has concluded the copyright has expired…and now that decision is getting appealed to higher courts!

Yay.

It doesn't help that for the past few decades, the major force behind setting the copyright term in the United States has been Hollywood and its ilk: movie, TV, and music companies. Chief among those, the single greatest driving force in pushing for longer copyrights, has been the Walt Disney Company. In 1998 Disney was the primary force in encouraging the "Sonny Bono Copyright Term Extension Act" (or, as detractors call it, the "Mickey Mouse Protection Act"), which upped the copyright term by at least 20 years across the board. Why? Well, see, "Steamboat Willie" came out in 1928. Under the old term, Mickey Mouse was set to enter the public domain in 2003. Now, it's set for 2023.

A remix of an old Mickey Mouse cartoon, commenting on the Sonny Bono Act. Remix by Andy Baio.

Would anyone care to place a bet whether there will be another copyright term extension act in the next few years?

That's about it for the big issues of IP, especially copyright. Next (and finally), we'll talk briefly about fanworks (like fanart, fanfiction, and fanvids), terms of service, and where to go for more.