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: Moral Panics and the Copyright Wars

The Maccabees and Copyright

By William Patry, Esq

Ben started his last post (?Greeks and Ginsburg) with this: ?I think we all veer between cynicism and naïvité when reading Supreme Court opinions. I think your reading of Justice Ginsburg's opinion in Eldred suffers from more cynicism than warranted ?. .? I readily confess to falling into the cynical side of things. Whether Justice Ginsburg thought term extension good policy or not, I have no idea, but my point is that if the Court thinks something is really bad policy, I believe it unlikely they will hold their collective noses and uphold the statute in question.  The sovereign immunity line of cases are one example, the jurisdiction cases are another, and now we have campaign finance reform. These are all quintessential political decision-making, to say nothing of Raich and Bush v. Gore.

Now to my question to Ben?s question about term extension. I think Ben?s answer that life plus 200 years is not unconstitutional indicates a willingness to go to the extreme of Jack Valenti?s belief that ?limited times? means eternity minus one day. Life plus 1,000 years is effectively no different than life plus 200 years in this context. Hence, it seems to me we have two choices: (1) accept that thanks to the gutting of the grant of the Article I, section 8, clause 8 power in Eldred there are no limitations on what Congress can do (at with respect to term extension); (2) accept that there are limitations, and find a principled way to formulate such limitations. I argue in favor of the approach taken in the economists? brief in Eldred because it is empirical. I think however that the first approach (Congress can do what it wants) is far more likely, which is precisely why I am so cynical about Eldred since the Court has not shown deference to Congress in areas where it clearly disagrees with Congress's policy preferences.

My answer to Ben?s revised Studio A/B hypo is still the same, but I would also have precluded George Lucas from later doing the prequels on moral rights for consumers? grounds: I think Revenge of the Sith is the worst movie ever made, and the prior two prequels are very nearly as awful. Plus, I cannot for the life of me explain to my 8 year old twins how it is that Star Wars IV,V, and VI are really Star Wars I, II, and III in release times. I have tried a few times and am met with stares of incredulity over my supposed inability to count to VI.

The Shepherd Fairey case is the real interesting point for me because it causes conflict within Ben?s psyche along the lines of ?I want the use to be non-infringing, but I can?t get past my ideology of, if copyright owners can make money off of something, then the use is infringing.? Ben, I expect will take strong exception to such a boorish, crude characterization of his views, but what else to make of this statement by him:

I'm not terribly sympathetic with a fair use argument here. Yes, he added to the political discourse. But that's not an unlimited license to infringe. There's a vibrant market for licensing AP photos, and (though I may have missed it), I haven't read anything suggesting that the AP (or Garcia) wouldn't have granted Fairey a license at a reasonable price. This is not an example of criticism or parody, where the copyright owner wouldn't grant a license for mockery of his work at any price. Why not let the market work?

Ben then notes that in his own experience, news organizations would never have licensed political uses, and fair use is hardly an "unlimited license to infringe" even as applied to the facts in Fairey's case. For me, fair use does not hinge on a copyright owners? willingness to license a use; in Ben?s scenario, fair use applies, if at all, if either (1) the license fee is too high; or possibly if (2) the copyright owner won?t license at all. I think Ben takes this approach because to him fair use turns on acts of the copyright owner; ordinarily, for him, copyright owners should have full control over their works, unless, in Ben?s words ?the market isn?t working.? I approach fair use differently. To me, fair use is an integral part of the system and serves systemic purposes. This is what Judge Leval meant in his Harvard article when he said:

Fair use should be perceived not as a disorderly basket of exceptions to the rules of copyright, nor as a departure from the principles governing that body of law, but rather as a rational, integral part of copyright, whose observance is necessary to achieve the objectives of that law.

Pierre Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1107 (1990).

Some copyright owners might agree with Judge Leval's statement at the abstract level, but actually following through on it in a real case causes them tsuris because it conflicts with an underlying ideology of copyright as property. To me Fairey?s alleged hypocrisy is disturbing personally, but it doesn?t affect my fair use analysis because to me to the question is what is the public benefit from the use. And because the benefit of fair use is systemic, it doesn?t turn on the acts of the copyright owner, and it certainly doesn't turn on letting the copyright owner's approach to marketing determine whether there is fair use or not. I think the different approaches Ben and I take to this issue fall out along the classic divide of fair use as either an exception or fair use as a right, with "right" here not being an exclusive right as in 17 USC 106, but rather an important part of the system rather than an occasional derogation from it. 

Full post as published by Moral Panics and the Copyright Wars on September 14, 2009 (boomark / email).