The Indomitable Spirit of Artists
Heroes are everywhere. We all give thanks for the selfless efforts of medical professionals, first responders, delivery drivers, gig economy workers, grocery and pharmacy staff, and the many other individuals who daily place themselves at the center of the coronavirus pandemic in order to make our quarantined lives safe and manageable. Now with working-from-home days blurring into nights and weeks rolling by in an undifferentiated haze, artists, scholars, and the industries that work with them are taking unprecedented steps to bring color, life, and knowledge to our circumscribed lives. Theatrical release movies are streaming to homes, operas and Broadway productions are available on the websites of shuttered arts venues to enjoy for free, bands are playing online gigs, authors have devised ways to make their works available for online enjoyment and distance learning in a myriad of settings, and scholarly publishers and newspapers are making relevant news reporting and research about the coronavirus free to users.
This should not be terribly surprising. Authors and artists of all varieties have always nurtured deep community roots. They are the very types of entrepreneurs and independent businesses who–alongside shop owners and local services–undergird our towns and cities and contribute to our well-being not only through their creativity, but also through their generosity when neighbors seek support. Writing in the New York Times, author David Sax said about the importance of small local businesses:
These are the entrepreneurs who matter now, more than ever. Not the ones on the covers of magazines, not the billionaires and recipients of venture capital checks, whose products we may use, but whose lives are distant and entirely removed from the day-to-day of our communities. If Casper, WeWork or some celebrity’s makeup company doesn’t survive this crisis, the impact on our lives will be negligible. Elon Musk will be fine. But if we lose our barber, the fruit store on the corner or the plumber who saved us in a flood, we will have lost a piece of ourselves.
This is the mindset with which I am approaching copyright in the time of COVID-19.
The National Emergency Library
Sadly, unprecedented moves by artists to share their work with the world on lockdown have not dissuaded opportunistic behavior online. Capitalizing on the shutdown, multi-millionaire Brewster Kahle of the Internet Archive, who has long argued for expanding rights to copy and make copyrighted works digitally available without the permission of authors, announced an “emergency” free library of copyrighted works, available to readers without a waiting list. While Kahle’s Internet Archive has been controversial since its inception, this new iteration apparently removes all limits on the number of users who can check out a work simultaneously – essentially turning it into an all-you-can-read free e-book service. This goes beyond even the limitations applicable to brick-and-mortar libraries that offer electronic lending.
Kahle’s opportunistic move did not pass unnoticed, however. Senator Thom Tillis, who as head of the Senate Subcommittee on Intellectual Property is deeply engaged in reviewing and updating U.S. intellectual property policy, promptly penned a letter to Kahle noting:
I am not aware of any measure under copyright law that permits a user of copyrighted works to unilaterally create an emergency copyright act.
Tillis is right – making the 1.4 million books Kahle has scanned into his database freely available to an unlimited number of users is inconsistent with current copyright law. Moreover, it is a step towards “losing a part of ourselves,” as Sax so aptly puts it. According to the Authors Guild, the mean income for a professional author is $20,300 annually. Authors are the epitome of the types of breadwinners various government programs should currently be trying to prop up, rather than barons of industry who should be taxed for the welfare of others.
While the Internet Archive has reportedly reached an agreement with the University of North Carolina Press and Duke University Press in the past weeks, this agreement is too little, too late, and it represents a pernicious trend among internet industry advocates to infringe first, seek agreement later. Terms like “efficient infringement” have emerged to describe such behavior.
Internet Archive’s behavior threatens to upend the promise of copyright protection as an invitation to a business negotiation between authors and larger, better resourced associates who wish to acquire rights in their works. Practitioners of so-called “efficient infringement” or “permissionless innovation” blatantly challenge individual authors to sue infringers if they dare, or otherwise to take whatever the infringer is willing to offer. The music industry has called this negotiating-with-a-gun-to-one’s-head approach the reason for the “value gap,” which is seen when comparing license terms among internet services that rely on protections like the Digital Millennium Copyright Act (DMCA) safe harbors to avoid liability for infringement and those services that negotiate for rights in the free marketplace. It is not surprising that lopsided business terms result in cases where infringers are empowered by circumstances or the law to adopt a “sue me” approach instead of negotiating in good faith.
Google v. Oracle
Another example of the “efficient infringement” approach to acquiring intellectual property is seen in Google v. Oracle. This long-litigated case will bring a Supreme Court holding on whether companies can slavishly copy the software code of others in order to save R&D and marketing costs. While this is a battle between industry behemoths, the outcome is important to anyone who relies on copyright protection because Google adopted the “sue me if you dare” approach and is effectively arguing that the bounds of fair use should incorporate instances of intellectual property appropriation to avoid business inconvenience.
This case has cost countless millions of dollars to litigate through two jury trials and two federal appeals and is now before the Supreme Court. If this is the path to enforcing one’s rights, it is clear that individuals and small businesses effectively own rights with no remedies should an infringer with deeper pockets emerge. The case likewise demonstrates how litigation can be inefficient and ill-suited to establishing business norms.
Despite the lengthy record, the case is quite straightforward. As Oracle so plainly put it in its brief:
Google has a problem. It committed an egregious act of plagiarism and now needs to rewrite copyright law to justify it. It cannot.
Java SE was one of the most creative and intricately designed works of software ever written. Its elegance attracted a wide audience of developers. Manufacturers of all sorts of devices and competing platform makers clamored to license the Java SE platform. Innovation flourished, just as the Framers imagined, and just as the rest of the American software industry thrived under those same constitutional incentives.
Google wanted its own platform. Given its vast resources, it could certainly have written one. But with a looming existential crisis, there was no time to innovate. Google could have taken any of the several Java SE licenses Oracle offered, but Google rejected Oracle’s compatibility imperative as inconsistent with its commercial objectives.
So Google opted to plagiarize and take the risk. Google copied 11,330 lines of computer code from Java SE, as well as the intricate organization and relationships among the lines of code. Google put the code in its competing product, Android, and successfully pitched it to Oracle’s customers, generating billions of dollars in revenue.
As I (together with other copyright scholars) argued in an amicus brief to the Court:
Congress has addressed the protection of computer software through the Copyright Act, including the code at issue in this appeal. In its 1980 amendments to the Copyright Act, Congress adopted the recommendations of the National Commission on New Technological Uses of Copyrighted Works (CONTU) and recognized computer programs as “literary works” enjoying the full extent of protection under the statute. Even at that relatively early stage in the development of the computer software industry, Congress considered versions of many of the arguments and issues present in this litigation, including whether computer code should be protected as a literary work, the degree to which computer programs can be considered “functional” or necessary “machine-controlled elements” (as opposed to expressive works protectable under the Copyright Act), and the interests of protecting and incentivizing innovation. After careful analysis and debate, CONTU recommended to Congress, and Congress legislated, that computer programs are protected under the Copyright Act with no qualifications that would differentiate software from any other type of literary work under the statute.
Since 1980, software development has grown exponentially, and its application continues to expand into new industries. Congress has amended the Copyright Act to address issues raised by technological advances in particular industries, by enacting, for example, the Computer Software Rental Amendments Act in 1990, the Digital Millennium Copyright Act in 1998, and the Music Modernization Act in 2018. Congress has not, however, amended the Copyright Act to decrease the scope of protection for computer programs or altered the statutory standard for fair use. Because the statutory protections for computer software remain the same as for all other creative works, adopting Google’s position would amount to a judicially created, software-specific amendment. It would also result in singling-out the protections afforded to computer programs, which contradicts the plain text of the Copyright Act.
Google and its amici try to characterize this as “efficient infringement,” or “permission-less innovation.” Yet its conduct is entirely contrary to the goals of copyright law as expressed in the Copyright Act or the Constitution. As a result, there is no reason to incorporate these considerations into fair use. It is clear that purposeful copying to avoid business inconvenience is not fair use, either in the statute as enacted or as interpreted by courts. Although Google casts its theory as “software-specific,” there is no reason why infringing parties could not regularly use it to justify copying any kind of protectable expression. Thus, to expand the fair use doctrine in the way Google advocates would set a dangerous precedent not limited to the software industry.
The Court has announced that it will begin hearing certain oral arguments by phone during the pandemic shutdown, but Google v. Oracle is not (yet) among those cases. As of April 13, 2020, the case was postponed to the October term.
One final (but somewhat different because it involves a state) recent example of an entity acting on the principle of “efficient infringement” occurs in the case of Allen v. Cooper. This case raises state sovereign immunity as a defense, but the underlying fact pattern is hauntingly similar.
Allen v. Cooper
The Supreme Court ruled in Allen v. Cooper that it violates state sovereign immunity to expose state entities to liability for alleged copyright infringement, absent the state’s consent.
As covered by Devlin Hartline here on the CPIP blog, the case involved “both actual and metaphorical pirates.” The actual pirate was Blackbeard, whose ship went down near the North Carolina coast in the 1700s. The metaphorical pirates are the government of the state of North Carolina, which allegedly infringed, then settled, then allegedly infringed again, the copyrighted photos and videos of the wreck shot by underwater photographer Rick Allen. Not content to repeatedly infringe Allen’s work, the state Legislature additionally passed a law deeming all photographs and videos made of North Carolina shipwrecks to be a matter of public record, and thus free for public use. Although Allen claimed that the state had committed willful infringement, the Supreme Court ultimately sided with North Carolina in ruling the Copyright Remedies Clarification Act of 1990 unconstitutional and holding that the Eleventh Amendment prohibits private actions against the state without the state’s consent.
As it stands, this case bodes ill for anyone who makes their living in the knowledge economy. If you create, research, code, write, document, interpret, or otherwise create intellectual work product that a state or state employee deems of value, the state apparently can take your work without permission. Although this is a more definitive statement of the lay of the land than was previously clear (since earlier case law had considered patent infringement, which differs in some relevant ways from copyrights), it is not altogether unexpected. Nevertheless, state infringements of copyright have been a growing problem. In the twenty years since the Fifth Circuit opined in Chavez v Arte Publico Press that there was no significant problem of copyright infringement by the states enabled by the Eleventh Amendment, more than 150 copyright infringement cases have been filed against states.
Unfortunately, the Court ruled that the CRCA was unconstitutional in its abrogation of state sovereign immunity because it did not properly link the CRCA to the prevention of unconstitutional injuries like the deprivation of property under Section 5 of the Fourteenth Amendment of the U.S. Constitution. Although Allen lost his appeal, the Supreme Court all but invited new legislation by Congress:
Congress likely did not appreciate the importance of linking the scope of its abrogation [of state sovereign immunity rights when it passed the CRCA] to the redress or prevention of unconstitutional injuries—and of creating a legislative record to back up that connection. But going forward, Congress will know those rules. And under them, if it detects violations of due process, then it may enact a proportionate response. That kind of tailored statute can effectively stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice.
Until Congress returns to normal business and can take this matter up, there are a few issues any potential drafters of new legislation should bear in mind.
First, as the Court explained, it will be important to link any new statute abrogating state sovereign immunity to the redress or prevention of unconstitutional deprivations under Section 5 of the Fourteenth Amendment. This means limiting any new legislation to violations of the Due Process Clauses of the Constitution. Next, it will be important to create a legislative record noting the scope of the problem justifying the proposal, given the Fifth Circuit’s comments in Chavez, which failed to recognize the volume of lawsuits being filed against states for copyright infringement.
It is also wise to articulate some of the numerous reasons why state remedies are inadequate to deal with the infringements of copyright by states or their instrumentalities. Because federal copyright law preempts state law, and copyright matters are tried only in federal courts, there are no plausible avenues for states to create novel, recognizable causes of action for infringement under their own laws. Moreover, in addition to the federal doctrine of state sovereign immunity, states are typically also immune from suit in their own jurisdictions; thus, there are not likely to be any state common law-created remedies. Because states are in the best position to articulate and demonstrate the adequacy of state remedies, if any, the burden of doing so should rest with the state.
Finally, it is worth considering that only federal law can provide the uniform protection against state infringements that authors require in order to publish their works. Thus, Congress should not delay acting to take up the Court’s invitation to bring state digital Blackbeards to justice.
Reflecting on the above cases and controversies as I cozy up to my laptop or sign into a virtual meeting, I am at once thankful for the technology that allows me to connect to others and to keep working, and fearful for my friends and clinic clients who are facing existential challenges to their livelihoods. These cases, similar to many before them, illustrate how intertwined we all are as users and creators of works. It is my hope that we all will use this quieter time to contemplate how interconnected we truly are, and that we will emerge from quarantine to embrace the spirit of the oft-heard virus slogan “we are all in this together.”
CPIP has published a new policy brief by CPIP Senior Fellow for Innovation Policy Jonathan Barnett entitled The Long Shadow of the Blackberry Shutdown That Wasn’t. The policy brief looks at how the Blackberry litigation and the “patent troll” narrative ultimately contributed to the Supreme Court’s 2006 decision in eBay v. MercExchange that limited the availability of injunctive relief for successful patentees.
In a recent New York Times 
Over the past ten years, the United States patent system has been transformed by new legislation, regulatory actions, and numerous decisions by the Supreme Court addressing nearly every area of patent doctrine. The many disruptive legal changes have affected infringement remedies, licensing activities, and what types of inventions and discoveries are eligible for patent protection, resulting in a profound sense of uncertainty for most stakeholders. This current state of doubt about the American patent system is pushing investors to look outside of the US for less risky ventures. And because investors are shifting their focus overseas, foreign countries are for the first time poised to bypass the US as the forerunners of innovation.