On Friday the Federal Court for the Southern District of New York (SDNY) ruled in favor of Hachette and other major book publishers, and against Internet Archive (IA) in a lawsuit considering IA’s Controlled Digital Lending (CDL) program, under which IA scanned books and “loaned” digital copies of copyrighted works over the internet. The court found that the activities were clearly infringing (PP. 14-15) and also that
Each enumerated fair use factor favors the Publishers, and although these factors are not exclusive, IA has identified no additional relevant considerations. At bottom, IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book. But no case or legal principle supports that notion. Every authority points the other direction. (P. 45).
C-IP2’s Sr. Scholar & Senior Fellow for Copyright Research & Policy Prof. Sandra Aistars drafted and filed a successful amicus brief supporting the publishers in the case. She was joined by twelve other scholars. You can read the court’s Order here and the Copyright Scholars’ brief here.
Considering the fair use factors in turn, on factor one — focusing in this instance on transformative use — the court noted that the HathiTrust and Google Books decisions had foreshadowed the ruling. (P. 19). Those cases delineated the outside boundaries of the fair use/transformative use doctrine by allowing the scanning of entire databases of books in their entirety, but making them available only in limited ways and for limited purposes that added transformative purpose, meaning or message to the works. (PP. 19-20). The court explained:
Importantly, the database did not “allow users to view any portion of the books they [were] searching” and therefore, unlike IA’s Website, “d[id] not add into circulation any new, human-readable copies of any books” or “merely repackage or republish the originals.” [Authors Guild v. HathiTrust, 755 F. 3d, 87, 97 (2d Cir. 2014)].
Google Books similarly found transformative use in Google’s scanning of copyrighted books to create a database that included a “snippet view” search function that allowed readers to view a few lines of text containing searched-for terms. [Authors Guild v. Google, Inc., 804 F.3d, 202, 208 (2d Cir. 2015)]. The snippet view showed the searcher “just enough context surrounding the searched term” to help the searcher evaluate whether the book fell within the scope of the searcher’s interest “without revealing so much as to threaten the author’s copyright interests.” Id. at 208, 216. But the Court of Appeals cautioned that “[i]f Plaintiffs’ claim were based on Google’s converting their books into a digitized form and making that digitized version accessible to the public,” precisely what the Publishers allege in this case, the “claim [for copyright infringement] would be strong.” Id. at 225. If HathiTrust and Google Books demarcated the boundaries of fair use, this case shows what conduct remains squarely beyond fair use. (P. 20).
The court likewise rejected arguments under the first fair use factor that IA expands the utility of the Works in Suit in any way recognized in the Second Circuit: e.g., by using technology to “improv[e] the efficiency of delivering content” to “one entitled to receive the content” in a way that does not “unreasonably encroach[] on the commercial entitlements of the rights holder.” [Capitol Recs., LLC v. ReDigiInc., 910 F.3d 649, 661] (citing Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984)); see also [Fox News Network, LLC v. TVEyes, Inc., 883 F.3d 169, 177 (2d Cir. 2018)].” (P. 22). The court noted that to accept IA’s expanded utility argument would be to “ignore the teachings of the Court of Appeals for the Second Circuit in Google Books that there would be a ‘strong’ claim for copyright infringement if Google had distributed digitized copies of complete books.” (P. 24).
The court also found unpersuasive IA’s suggestion that it is a non-commercial user. (P. 26). It explained that the facts (including how “every single page of the Archive is monetized” (P. 27)) demonstrate how “IA stands to profit from its non-transformative exploitation of the Works in Suit. The commercial-noncommercial distinction, like the transformativeness inquiry, therefore counsels against a finding of fair use.“ (P. 28).
The SDNY was utterly unconvinced by IA’s attempts to bootstrap its faulty first sale arguments into its equally faulty fair use arguments, hopeful that two wrongs might together make an exception. (PP. 29-31). The court saw through this charade and rightly pointed out that [i]n ReDigi, the Court of Appeals plainly held that the first sale doctrine has now been codified in Section 109(a), that it does not include a right of reproduction, and that any broader scope of the first sale doctrine should be sought from Congress, not the courts. Id.” (P. 31). It is also worth noting that it did not escape the SDNY’s notice that the IA and its collaborators do not even follow the CDL lending rules they outline for themselves. (PP. 31-32).
The court found that since the works at issue were original works of authorship (including fiction and non-fiction works that were “far removed from the . . . factual or descriptive work more amenable to fair use” (Pg. 35)), the second factor favored the Publishers. (PP. 34-36). The third factor likewise favored the publishers because IA copied the works in their entirety without a transformative purpose and for a purpose that directly competed with licensed eBooks. (P. 37).
Regarding the fourth factor – marketplace harm – evidence that IA pitches its offerings to libraries to supplant licenses from publishers could not be denied. (P. 39). IA offered weak arguments the court did not find persuasive that Publisher profits had increased during the time of the COVID lockdown while IA was pursuing its Emergency Digital Library initiative, but the metrics suggested by IA were at best weakly correlative in nature in the court’s opinion. (P. 43).
Finally, the court considered whether any other public benefits could flow from IA’s services. (PP. 44-45). It rejected the suggestion that any alleged public benefit created by easier access to works outweighed market harm to publishers. (P. 44). While “any copyright infringer may claim to benefit the public by increasing public access to the copyrighted work,” the Works in Suit are already accessible by readers through libraries in a free library lending model supported by widespread legitimate commercial licensing models deploying a variety of lending/licensing options. (PP. 44-45).
While the court’s decision is a resounding indictment of IA’s business model and CDL programs, it should not be read in any way to tarnish the profile or work of libraries. Libraries performed especially important work during the COVID-19 pandemic, and remain bastions of democracy by promoting free thought and learning. It is important that libraries continue to disseminate works to communities that may otherwise lack easy access to them by using a variety of licensed tools and authorized exceptions under the Copyright Act. Should additional exceptions be needed they should be sought (as the court noted on page 31) from Congress, not the courts.
Thanks for C-IP2 Research Assistant Cala Coffman, a 2L at Scalia Law, for her editing assistance.
The following post comes from Cala Coffman, a 2L at Scalia Law and Research Assistant at C-IP2.
At the recent C-IP2 conference entitled IP on the Wane: IP on the Wane: Examining the Impacts as IP Rights Are Reduced, one panel discussed the current state of copyright law, the pressures it has come under in recent years, and their differing perspectives on how the digital world is shaping copyright. Topics of discussion included enforcement techniques, trends in fair use, and the impact of evolving technology on copyright.
Panelists were Clark Asay (Professor of Law at Brigham Young University J. Reuben Clark Law School), Orit Fischman-Afori (Professor of Law at The Haim Striks School of Law, College of Management Academic Studies (COLMAN)), Terry Hart (General Counsel, Association of American Publishers (AAP)), and Karyn A. Temple (Senior Executive Vice President & Global General Counsel, (Motion Picture Association)), and the session was moderated by Sandra Aistars (Clinical Professor, George Mason University, Antonin Scalia Law School; Senior Fellow for Copyright Research and Policy; and Senior Scholar at C-IP2).
Professor Fischman opened the panel by proposing a reconsideration of criminal enforcement for copyright claims. After reviewing current avenues for civil copyright enforcement, including the newly established Copyright Claims Board in the Copyright Office, Digital Millennium Copyright Act, and civil enforcement in federal court including the opportunity for statutory damages, Professor Fischman suggested that criminal copyright enforcement actions seem to be on the decline and should not be a focus of enforcement efforts. Rather, greater attention should be devoted to civil enforcement. Recently, the U.S. Sentencing Commission reported that criminal Copyright and Trademark cases have dropped from 475 cases in 2015 to 137 cases in 2021.
Over the past two decades, several enforcement mechanisms have been introduced to address the challenges authors face enforcing their copyrights in the digital world. These include the Digital Millennium Copyright Act in 1998, the Digital Theft Deterrence Act of 1999, and the Copyright Alternatives in Small-Claims Enforcement Act of 2020, which improved access to enforcement for small creators by creating a new administrative forum with simplified proceedings in the Copyright Office. Small copyright claims can be pursued there with or without the assistance of counsel. While these civil enforcement mechanisms are effective, they have not been without criticism.
Ultimately, Professor Fischman argued that the combination of civil and criminal enforcement frameworks creates a powerful enforcement mechanism for author’s rights. As we consider the current state of IP rights, criminal enforcement is becoming less meaningful overall, in her opinion.
Next, Professor Asay presented three recent empirical studies examining trends in copyright litigation.
The first study indexed fair use cases from 1991 to 2017. In this study, Professor Asay examines the scope of fair use analysis in copyright infringement cases and finds a “steady progression of both appellate and district courts adopting the transformative use paradigm, with modern courts relying on it nearly ninety percent of the time.” The study finds that at the Federal Circuit Court level, in cases where transformative use was asserted, 48% were found to be transformative, and 91% of transformative uses were found to be fair use. Professor Asay states that “fair use is copyright law’s most important defense to claims of copyright infringement,” but as courts increasingly apply transformative use doctrine, he finds that “it is, in fact, eating the world of fair use.”
The second study Professor Asay presented analyzed over 1000 court opinions from between 1978 and 2020 that used a substantial similarity analysis. In this study, Professor Asay finds first that courts rely on opinions from the Second and Ninth circuits “more than any other source in interpreting and applying the substantial similarity standard.” The study also breaks down trends within the two-step substantial similarity analysis. On the first step, Professor Asay finds that “courts mostly decide this first prong . . . as a matter of whether defendant’s had access to the plaintiff’s work, and they mostly favor plaintiffs.” On the second step, he finds “significant heterogeneity” in analyzing improper appropriation of a plaintiff’s work. He states that “no dominant means exist for resolving this question” and “the data also suggest that one of the keys to winning, for either defendants or plaintiffs, is the extent to which the court engages with and discusses copyright limitations.”
The third study, which is forthcoming, examines DMCA Section 1201 litigation. DMCA Section 1201 prohibits attempts to circumvent technological measures used to control access to a copyrighted work.17 U.S.C. § 1201. This study encompasses 205 cases and 209 opinions, and Professor Asay said during the panel that “the most interesting finding in this study is that there’s not much section 1201 litigation.” Although the DMCA has been in force for nearly twenty-five years, less than one appellate decision is made per year on average. The study also finds that “the most litigated subject matter” (over every other subject matter the study coded for) is software.
Ms. Temple discussed how new technologies, techniques, and distribution methods are constantly requiring courts to re-evaluate how authorship rights function in a digital landscape. She likewise commented on the challenges courts seem to face in appropriately drawing distinctions between derivative uses of copyrighted works that should require a license from the author, and transformative uses that are permissible under the affirmative defense of fair use.
Ms. Temple cited the numerous briefs in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (including the Motion Picture Association’s) that note that the transformative use test is becoming the sole criteria courts use to determine fair use. Indeed, the MPA’s brief cited to Professor Asay’s study on transformative use (Is Transformative Use Eating the World?) to support the petitioner’s assertion that “in practice, the transformativeness inquiry is virtually always dispositive of the fair use question.” In closing, Ms. Temple stated that although we may be “waning” in how courts see fair use, Warhol presents a chance to correct the fair use analysis and steer it away from infringing on the derivative work rights of authors.
Finally, Mr. Hart presented on potential threats to authorship rights and the concomitant harms to consumer interests in the e-book arena. Mr. Hart’s perspective was that as businesses, copyright industries legitimately have profit-motivated goals, but happily, their ability to meet these goals is directly tied to the “ultimate goal” of promoting science and the useful arts and thus is beneficial to society as a whole. Mr. Hart stated that “the good news, if we think copyright [protections are] waxing, is that . . . the legal framework both in the United States and internationally recognizes [the] principles” that allow copyright owners to take advantage of and divide their exclusive rights. However, digitization may pose a threat to the ability to license rights as the copyright owner desires, as digital copying and transmission greatly increases risk of infringement of e-books.
The e-book market is unique, according to Mr. Hart, in that authors may be particularly vulnerable to digital threats when “digital copies are completely indistinguishable from the originals, and so they would be competing directly with the copyright owner’s primary markets.” Furthermore, he stated that “threats to the ability of copyright owners . . . to pursue rational choices in how they market and distribute their works can be just as harmful as straight up piracy.”
Mr. Hart characterized the e-book market as a thriving, sustainable economy. E-books have been popular for over a decade now, and there are a “variety of licensing models [available] . . . that continue to evolve to meet both the needs of publishers and libraries.” Mr. Hart stated, “the evidence shows that this is a well-functioning market.” He said that “Overdrive, which is the largest e-book aggregator, reported that in 2021 there was over half a billion check-outs of library e-books worldwide, and the pricing is, in my view, fair and sustainable.” Additionally, Mr. Hart said, “Overdrive also reported . . . that the average cost per title for libraries declined in 2021, and libraries have been able to significantly grow their e-book collections . . . with collection budgets that, when you’ve adjusted for inflation, have essentially been flat the entire time.”
One of the major threats to authorship rights in the e-book market, in Mr. Hart’s view, is the rise of Controlled Digital Lending (CDL). While this theory is currently being litigated in Hachette Book Group v. Internet Archive, Mr. Hart posits that we are only a few steps from a full-blown digital first-sale doctrine, which could have widespread harms throughout copyright for many types of authors. Many amicus briefs in the Internet Archive case have identified this potential harm, as well. According to Hart, the Copyright Alliance brief, for example, stated that a ruling in favor of CDL would have extremely widespread economic harms for authors.
The second threat Mr. Hart identified comes from recent propositions at the state level that would introduce compulsory licenses for e-books. These proposed laws would outlaw limitations on e-book licenses offered to libraries and allow states to dictate what states believe are “reasonable” pricing for e-book licenses. A flaw in both the arguments for CDL and for compulsory e-book licensing, as Mr. Hart sees it, is that both approaches treat the mere exercise of a copyright owner’s exclusive right as unfair and, if accepted, would be dangerous encroachments on authorship rights.
Ultimately, while the panelists identified significant concerns in the existing copyright regime, they were hopeful about the future of authorship rights, reflecting that even if the protections for copyright law had “waned” in certain respects in recent years, and certain rights remain in peril, there are opportunities for education as courts confront the significant changes that accompany an increasingly digital landscape.
This post comes from Sandra Aistars, Clinical Professor and Director of the Arts & Entertainment Advocacy Clinic at George Mason University, Antonin Scalia Law School, and Senior Fellow for Copyright Research and Policy & Senior Scholar at C-IP2.
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On March 17, 2022, I had the pleasure to discuss Artificial Intelligence and Authorship with Dr. Ryan Abbott, the lawyer representing Dr. Stephen Thaler, inventor of the “Creativity Machine.” The Creativity Machine is the AI that generated the artwork A Recent Entrance to Paradise, which was denied copyright registration by the United States Copyright Office. Dr. Abbott, Dr. Thaler, and his AI have exhausted all mandatory administrative appeals to the Office and announced that they would soon sue the Office in order to obtain judicial review of the denial. You can listen to the conversation here.
Background:
Dr. Thaler filed an application for copyright registration of A Recent Entrance to Paradise (the Work) on November 3, 2018. For copyright purposes, the Work is categorized as a work of visual art, autonomously generated by the AI without any human direction or intervention. However, it stems from a larger project involving Dr. Thaler’s experiments to design neural networks simulating the creative activities of the human brain. A Recent Entrance to Paradise is one in a series of images generated and described in text by the Creativity Machine as part of a simulated near-death experience Dr. Thaler undertook in his overall research into and invention of artificial neural networks. Thaler’s work also raises parallel issues of patent law and policy which were beyond the scope of our discussion.
The registration application identified the author of the Work as the “Creativity Machine,” with Thaler listed as the claimant as a result of a transfer resulting from “ownership of the machine.” In his application, Thaler explained to the Office that the Work “was autonomously created by a computer algorithm running on a machine,” and he sought to “register this computer-generated work as a work-for-hire to the owner of the Creativity Machine.”[i]
The Copyright Office Registration Specialist reviewing the application refused to register the claim, finding that it “lacks the human authorship necessary to support a copyright claim.”[ii]
Thaler requested that the Office reconsider its initial refusal to register the Work, arguing that “the human authorship requirement is unconstitutional and unsupported by either statute or case law.”[iii]
The Office re-evaluated the claims and held its ground, concluding that the Work “lacked the required human authorship necessary to sustain a claim in copyright” because Thaler had “provided no evidence on sufficient creative input or intervention by a human author in the Work.”[iv]
37 CFR 202.5 establishes the Reconsideration Procedure for Refusals to Register by the Copyright Office. Pursuant to this procedure Thaler appealed the refusal to the Copyright Office Review Board comprised of The Register of Copyrights, The General Counsel of the Copyright Office and a third individual sitting by designation. The relevant CFR section requires that the applicant “include the reasons the applicant believes registration was improperly refused, including any legal arguments in support of those reasons and any supplementary information, and must address the reasons stated by the Registration Program for refusing registration upon first reconsideration. The Board will base its decision on the applicant’s written submissions.”
According to the Copyright Office, Thaler renewed arguments from his first two unsuccessful attempts before the Office that failure to register AI created works is unconstitutional, largely continued to advance policy arguments that registering copyrights in AI generated works would further the underlying goals of copyright law, including the constitutional rationale for protection, and failed to address the Office’s request to cite to case law supporting his assertions that the Office should depart from its reliance on existing jurisprudence requiring human authorship.
The Office largely dismissed Thaler’s second argument, that the work should be registered as a work made for hire as dependent on its resolution of the first—since the Creativity Machine was not a human being, it could not enter into a “work made for hire” agreement with Thaler. Here, the Office rejected the argument that, because corporations could be considered persons under the law, other non-humans such as AIs should likewise enjoy rights that humans do. The Office noted that corporations are composed of collections of human beings. The Office also explained that “work made for hire” doctrine speaks only to who the owner of a given work is.
Of course, both Dr. Abbott and the Copyright Office were bound in this administrative exercise by their respective roles: the Copyright Office must take the law as it finds it—although Dr. Abbott criticized the Office for applying caselaw from “the Gilded Age” as the Office noted in its rejection “[I]t is generally for Congress,” not the Board, “to decide how best to pursue the Copyright Clause’s objectives.” Eldred v. Ashcroft, 537 U.S. 186, 212 (2003). The Board must apply the statute enacted by Congress; it cannot second-guess whether a different statutory scheme would better promote the progress of science and useful arts.”[v] Likewise, Dr. Abbott, acting on behalf of Dr. Thaler was required to exhaust all administrative avenues of appeal before pursuing judicial review of the correctness of the Office’s interpretation of constitutional and statutory directives, and case law.
Our lively discussion begins with level setting to ensure that the listeners understand the goals of Dr. Thaler’s project, goals which encompass scientific innovation, artistic creation, and apparently—legal and policy clarification of the IP space.
Dr. Abbott and I additionally investigate the constitutional rationales for copyright and how registering or not registering a copyright to an AI-created work is or is not in line with those goals. In particular, we debated utilitarian/incentive-based justifications, property rights theories, and how the rights of artists whose works might be used to train an AI might (or might not) be accounted for in different scenarios.
Turning to Dr. Thaler’s second argument, that the work should be registered to him as a work made for hire, we discussed the difficulties of maintaining the argument separately from the copyrightability question. It seems to me that the Copyright Office is correct that the argument must rise or fall with the resolution of the baseline question of whether a copyrightable work can be authored by an AI to begin with. The other challenging question that Dr. Abbott will face is how to overcome the statutory “work made for hire” doctrine requirements in the context of an AI-created work without corrupting what is intended to be a very narrow exception to the normal operation of copyright law and authorship. This is already a controversial area, and one thought by many to be unfavorable to individual authors because it deems a corporation to be the author of the work, sometimes in circumstances where the human author is not in a bargaining position to adequately understand the copyright implications or to bargain for them differently. In the case of an AI, the ability to bargain for rights or later challenge the rights granted, particularly if they are granted on the basis of property ownership, seems to be dubious.
In closing the discussion, Dr. Abbott confirmed that his client intends to seek judicial review of the refusal to register.
[i] Opinion Letter of Review Board Refusing Registration to Ryan Abbot (Feb. 14, 2022).
[ii] Id. (Citing Initial Letter Refusing Registration from U.S. Copyright Office to Ryan Abbott (Aug. 12, 2019).)
[iii] Id. (Citing Letter from Ryan Abbott to U.S. Copyright Office at 1 (Sept. 23, 2019) (“First Request”).)
[iv] Id. (Citing Refusal of First Request for Reconsideration from U.S. Copyright Office to Ryan Abbott at 1 (March 30, 2020).)
In Opposition to Copyright Protection for AI Works
This response to Dr. Ryan Abbott comes from David Newhoff.
On February 14, the U.S. Copyright Office confirmed its rejection of an application for a claim of copyright in a 2D artwork called “A Recent Entrance to Paradise.” The image, created by an AI designed by Dr. Stephen Thaler, was rejected by the Office on the longstanding doctrine which holds that in order for copyright to attach, a work must be the product of human authorship. Among the examples cited in the Copyright Office Compendium as ineligible for copyright protection is “a piece of driftwood shaped by the ocean,” a potentially instructive analog as the debate about copyright and AI gets louder in the near future.
What follows assumes that we are talking about autonomous AI machines producing creative works that no human envisions at the start of the process, other than perhaps the medium. So, the human programmers might know they are building a machine to produce music or visual works, but they do not engage in co-authorship with the AI to produce the expressive elements of the works themselves. Code and data go in, and something unpredictable comes out, much like nature forming the aesthetic piece of driftwood.
As a cultural question, I have argued many times that AI art is a contradiction in terms—not because an AI cannot produce something humans might enjoy, but because the purpose of art, at least in the human experience so far, would be obliterated in a world of machine-made works. It seems that what the AI would produce would be literally and metaphorically bloodless, and after some initial astonishment with the engineering, we may quickly become uninterested in most AI works that attempt to produce more than purely decorative accidents.
In this regard, I would argue that the question presented is not addressed by the “creative destruction” principle, which demands that we not stand in the way of machines doing things better than humans. “Better” is a meaningful concept if the job is microsurgery but meaningless in the creation or appreciation of art. Regardless, the copyrightability question does not need to delve too deeply into the nature or purpose of art because the human element in copyright is not just a paragraph about registration in the USCO Compendium but, in fact, runs throughout application of the law.
Doctrinal Oppositions to Copyright in AI Works
In the United States and elsewhere, copyright attaches automatically to the “mental conception” of a work the moment the conception is fixed in a tangible medium such that it can be perceived by an observer. So, even at this fundamental stage, separate from the Copyright Office approving an application, the AI is ineligible because it does not engage in “mental conception” by any reasonable definition of that term. We do not protect works made by animals, who possess consciousness that far exceeds anything that can be said to exist in the most sophisticated AI. (And if an AI attains true consciousness, we humans may have nothing to say about laws and policies on the other side of that event horizon.)
Next, the primary reason to register a claim of copyright with the USCO is to provide the author with the opportunity, if necessary, to file a claim of infringement in federal court. But to establish a basis for copying, a plaintiff must prove that the alleged infringer had access to the original work and that the secondary work is substantially or strikingly similar to the work allegedly copied. The inverse ratio rule applied by the courts holds that the more that access can be proven, the less similarity weighs in the consideration and vice-versa. But in all claims of copying, independent creation (i.e., the principle that two authors might independently create nearly identical works) nullifies any complaint. These are considerations not just about two works, but about human conduct.
If AIs do not interact with the world, listen to music, read books, etc. in the sense that humans do these things, then, presumably, all AI works are works of independent creation. If multiple AIs are fed the same corpus of works (whether in or out of copyright works) for the purpose of machine learning, and any two AIs produce two works that are substantially, or even strikingly, similar to one another, the assumption should still be independent creation. Not just independent, but literally mindless, unless again, the copyright question must first be answered by establishing AI consciousness.
In principle, AI Bob is not inspired by, or even aware of, the work of AI Betty. So, if AI Bob produces a work strikingly similar to a work made by AI Betty, any court would have to toss out BettyBot v. BobBot on a finding of independent creation. Alternatively, do we want human juries considering facts presented by human attorneys describing the alleged conduct of two machines?
If, on the other hand, an AI produces a work too similar to one of the in-copyright works fed into its database, this begs the question as to whether the AI designer has simply failed to achieve anything more than an elaborate Xerox machine. And hypothetical facts notwithstanding, it seems that there is little need to ask new copyright questions in such a circumstance.
The factual copying complication raises two issues. One is that if there cannot be a basis for litigation between two AI creators, then there is perhaps little or no reason to register the works with the Copyright Office. But more profoundly, in a world of mixed human and AI works, we could create a bizarre imbalance whereby a human could infringe the rights of a machine while the machine could potentially never infringe the rights of either humans or other machines. And this is because the arguments for copyright in AI works unavoidably dissociate copyright from the underlying meaning of authorship.
Authorship, Not Market Value, is the Foundation of Copyright
Proponents of copyright in AI works will argue that the creativity applied in programming (which is separately protected by copyright) is coextensive to the works produced by the AIs they have programmed. But this would be like saying that I have claim of co-authorship in a novel written by one of my children just because I taught them things when they were young. This does not negate the possibility of joint authorship between human and AI, but as stated above, the human must plausibly argue his own “mental conception” in the process as a foundation for his contribution.
Commercial interests vying for copyright in AI works will assert that the work-made-for-hire (WMFH) doctrine already implicates protection of machine-made works. When a human employee creates a protectable work in the course of his employment, the corporate entity, by operation of law, is automatically the author of that work. Thus, the argument will be made that if non-human entities called corporations may be legal authors of copyrightable works, then corporate entities may be the authors of works produced by the AIs they own. This analogizes copyrightable works to other salable property, like wines from a vineyard, but elides the fact that copyright attaches to certain products of labor, and not to others, because it is a fiction itself whose medium is the “personality of the author,” as Justice Holmes articulated in Bleistein.
The response to the WMFH argument should be that corporate-authored works are only protected because they are made by human employees who have agreed, under the terms of their employment, to provide authorship for the corporation. Authorship by the fictious entity does not exist without human authorship, and I maintain that it would be folly to remove the human creator entirely from the equation. We already struggle with corporate personhood in other areas of law, and we should ask ourselves why we believe that any social benefit would outweigh the risk of allowing copyright law to potentially exacerbate those tensions.
Alternatively, proponents of copyright for AI works may lobby for a sui generis revision to the Copyright Act with, perhaps, unique limitations for AI works. I will not speculate about the details of such a proposal, but it is hard to imagine one that would be worth the trouble, no matter how limited or narrow. If the purpose of copyright is to proscribe unlicensed copying (with certain limitations), we still run into the independent creation problem and the possible result that humans can infringe the rights of machines while machines cannot infringe the rights of humans. How does this produce a desirable outcome which does not expand the outsize role giant tech companies already play in society?
Moreover, copyright skeptics and critics, many with deep relationships with Big Tech, already advocate a rigidly utilitarian view of copyright law, which is then argued to propose new limits on exclusive rights and protections. The utilitarian view generally rejects the notion that copyright protects any natural rights of the author beyond the right to be “paid something” for the exploitation of her works, and this cynical, mercenary view of authors would likely gain traction if we were to establish a new framework for machine authorship.
Registration Workaround (i.e., lying)
In the meantime, as Stephen Carlisle predicts in his post on this matter, we may see a lot of lying by humans registering works that were autonomously created by their machines. This is plausible, but if the primary purpose of registration is to establish a foundation for defending copyrights in federal court, the prospect of a discovery process could militate against rampant falsification of copyright applications. Knowing misrepresentation on an application is grounds for invalidating the registration, subject to a fine of up to $2,500, and further implies perjury if asserted in court.
Of course, that’s only if the respondent can defend himself. A registration and threat of litigation can be enough to intimidate a party, especially if it is claimed by a big corporate tech company. So, instead of asking whether AI works should be protected, perhaps we should be asking exactly the opposite question: How do we protect human authorship against a technology experiment, which may have value in the world of data science, but which has nothing to do with the aim of copyright law?
About the IP Clause
And with that statement, I have just implicated a constitutional argument because the purpose of copyright law, as stated in Article I Clause 8, is to “promote science.” Moreover, the first three subjects of protection in 1790—maps, charts, and books—suggest a view at the founding period that copyright’s purpose, twinned with the foundation for patent law, was more pragmatic than artistic.
Of course, nobody could reasonably argue that the American framers imagined authors as anything other than human or that copyright law has not evolved to encompass a great deal of art which does not promote the endeavor we ordinarily call “science.” So, we may see AI copyright proponents take this semantic argument out for a spin, but I do not believe it should withstand scrutiny for very long.
Perhaps, the more compelling question presented by the IP clause, with respect to this conversation, is what it means to “promote progress.” Both our imaginations and our experiences reveal technological results that fail to promote progress for humans. And if progress for people is not the goal of all law and policy, then what is? Surely, against the present backdrop in which algorithms are seducing humans to engage in rampant, self-destructive behavior, it does seem like a mistake to call these machines artists.
Stacey Marbrey is an award-winning film director, producer, and internationally recognized editorial photographer and has programmed numerous film festivals. Previously, she acted as Program Director for an international film exchange under the auspices of the U.S. Department of State in concert with both the President’s Committee on the Arts and Humanities and the American Film Institute.
David Lowery is an American guitarist, vocalist, songwriter, mathematician, and activist. He is the founder of alternative rock band Camper Van Beethoven and co-founder of the traditional rock band Cracker. Throughout his career in the music industry, Mr. Lowery has worked in nearly every role imaginable, from both the business and music perspectives. Recently, he worked on a small project with limited online CD sales to experiment with a new revenue stream and business model. Mr. Lowery frequently posts at the popular blog “The Trichordist.”
How do creative roles intersect with legal issues? What can lawyers do a better job of understanding when engaging with creators?
Mr. Lowery highlighted the importance of the intersection between the arts and legal roles. Unfortunately, he noted, there is a stigma in the artistic community regarding the use of legal action. He commented that, while you should generally attempt to resolve disputes internally, you cannot be afraid to use the legal system to enforce your rights. Even the legally savvy artists can misjudge the scope of the rights to which they are entitled. Mr. Lowery emphasized the need to provide artists with an “intervention”: register your works with the Copyright Office, guarantee your revenue streams with the Mechanical Licensing Collective, and enforce your rights.
On a similar note, Mr. Newhoff echoed the notion that some artists do not fully appreciate the scope of their rights and––perhaps more importantly—their obligations. It is not uncommon, he explained, for creators to assume that their publisher will handle all the legal responsibilities that go into creating a work (i.e., clearing photographs, obtaining permission to publish interviews, etc.). That assumption, however, leaves the author subject to potential liability for copyright infringement. Rather than taking that risk, Mr. Newhoff argued, creators should be proactive in fulfilling their legal obligations.
Commenting on Mr. Newhoff’s observations, Ms. Marbrey remarked that, in many cases, creators wear many different hats and serve in various roles throughout the course of creating a work. Particularly in the film industry, it can be difficult for creators to keep their various duties and obligations separated and organized. Ms. Marbrey argued that this is one problem that lawyers can help to solve. By taking the time to understand the numerous roles in which a single creator may serve, lawyers can help to ensure that creators are getting maximum value out of their efforts.
The Stigma Against Contracts
The panelists each made unique observations on the use of contracts and how their respective industries tend to perceive them. Prof. Aistars pointed out a concerning trend: creators tend to have a negative view towards contracts and consequently refrain from using them. She commented that, in general, no one wants to be the person to involve lawyers in otherwise “friendly deals.”
The panelists shared stories from their careers that demonstrated this stigma. Ms. Marbrey, for example, worked on a collaborative project involving multiple SAG actors. The parties declined to set up a contractual framework to properly address various SAG-AFTRA requirements for actors. Consequently, the production was later paused to renegotiate deals with the actors after the film was already completed. Due to this misstep, the release of the project was delayed.
The panelists concluded that, while it may force some uncomfortable conversations at the onset of a project, creators should become more liberal with their use of contracts. Doing so allows for a mutual understanding between all parties before any time is invested into the creative process.
Current Trends to Watch in Copyright Law
This portion of the discussion offered a unique insight into the development of copyright law from creators’ perspectives. While the conversation was wide-ranging, there were several common topics that the panelists found especially significant.
The panelists came to a consensus that the general agenda of weakening copyright law could cause devastating effects to the creative community. Mr. Newhoff pointed specifically to the ongoing work being done by the American Law Institute (ALI) on a potential Restatement of Copyright. He argued that broadly speaking, the academic world tends to take an anti-copyright law stance. The panelists agreed that this should generate concern from the creative community and that individual creators should strive to have their voices heard as this project continues.
In general, creators tend to have difficulties understanding the scope of fair use. Especially given the recent Supreme Court decision in Google v. Oracle, there is an element of amorphousness to the fair use doctrine. The panelists concurred that, without legal assistance, creators will likely continue to struggle in determining what constitutes fair use and what requires a license to use.
The event concluded with a discussion on how creators can adapt to and update with the digital age. As a threshold matter, Mr. Newhoff argued that it is hard to fit 20th-century copyright doctrine into the 21st-century landscape. Moving forward, some of the copyright laws may need to be updated (or at least monitored) to better facilitate the production of creative works. Optimistically, Ms. Marbrey noted that the “streaming takeover” is exciting for filmmakers. Although streaming can pose tricky and previously unconsidered issues surrounding copyright law, it offers a new way for creators to showcase their works and opens the door to innovative revenue streams.
Greetings from CPIP Executive Director Sean O’Connor
I hope you had an enjoyable, restful Thanksgiving. At CPIP, we’re winding down 2020 while planning our spring and summer events—including biopharma and copyright roundtables, the 2021 WIPO-CPIP Summer School on Intellectual Property, and more.
As usual, our team has been up to many great things. Director of Copyright Research and Policy Sandra Aistars’ Arts & Entertainment Advocacy Clinic co-hosted a virtual clinic with Washington Area Lawyers for the Arts (WALA). The event was a huge success. You can read our write-up here, and a recording of the Rock Creek Kings’ featured performance is available here. Sandra also participated in a November 12 panel hosted by the Law of Intellectual Property (LIP) student organization at the University of Oregon School of Law (home to CPIP Senior Scholar Eric Priest).
Our affiliates have also been doing great things as well. Scalia Law Alumna and Arts & Entertainment Advocacy Clinic Adjunct Professor Terrica Carrington and Lateef Mtima of Howard University School of Law and IIPSJ have great quotes in this Billboard article on choreography, copyright, and social justice. CPIP Senior Fellow for Innovation Policy Jonathan Barnett continues to blog at Truth on the Market; you can catch his latest piece here and read his take on how antitrust law can be abused to promote unproductive rent-seeking. Meanwhile Chris Holman, CPIP Senior Fellow for Life Sciences, continues writing for the Biotechnology Law Report, where he serves as Executive Director; his latest article is available here.
While 2020’s end-of-year holiday season may well be challenging, I hope you and yours will find a way to share the spirit and renewal of this coming season while looking forward to a successful new year!
Spotlight on Scholarship
The scholars from our Thomas Edison Innovation Fellowship program continue to publish high quality scholarship and cutting-edge research that promotes the value of intellectual property. Here are some recent publications:
In his new paper at Penn State Law Review, Artificial Intelligence Inventions & Patent Disclosure, Professor Tabrez Ebrahim of California Western School of Law claims that AI fundamentally challenges disclosure in patent law, which has not kept up with rapid advancements in AI, and seeks to invigorate the goals that patent law’s disclosure function is thought to serve for society. In so doing, Prof. Ebrahim assesses the role that AI plays in the inventive process, how AI can produce AI-generated output (that can be claimed in a patent application), and why it should matter for patent policy and for society. He also introduces a taxonomy comprising AI-based tools and AI-generated output that he maps with social-policy-related considerations, theoretical justifications and normative reasoning concerning disclosure for the use of AI in the inventive process, and proposals for enhancing disclosure and the impact on patent protection and trade secrecy.
In patent law, equitable defenses can play an essential role in multi-million-dollar patent infringement cases. Unclean hands, misuse, or estoppel can render a potential verdict unenforceable. Professor Christa Laser of Cleveland-Marshall College of Law dives into the unique and unsettled role of equity in her new paper, Equitable Defenses in Patent Law, which is forthcoming at the University of Miami Law Review. Prof. Laser compares two theories to determine how courts might interpret undefined language governing equitable defenses in patent statutes, and she analyzes whether Congress codified preexisting decisional law or expanded it with the 1952 Patent Act. Finally, Prof. Laser suggests that Congress could delegate its authority to an agency to handle the ever-changing patent landscape.
In his new draft paper, Owning Knowledge: A Unified Theory of Patent Eligibility, Professor Talha Syed of Berkeley Law argues that the confusion surrounding patentable subject matter under Section 101 is two-fold. First, it results from our failure to develop a functionality doctrine that can clearly distinguish technological applications of knowledge from other forms of knowledge. Second, he offers a root cause of this failure. There is a distracting preoccupation in patent law with “physicalism,” that is, the notion that a patent is awarded for a thing (tangible or not) rather than for knowledge of that thing. In order to move forward, Prof. Syed states that we must first unwind the physicalist assumptions that are tangled up in our Section 101 analyses. Only then can we develop a functionality doctrine free of those encumbrances.
The following post comes from Chris Wolfsen, a recent graduate of Scalia Law and a Research Assistant at CPIP.
By Chris Wolfsen
On October 27, 2020, CPIP Director of Copyright Research and Policy Sandra Aistars and students from her Arts & Entertainment Advocacy Clinic at Scalia Law School co-hosted a virtual event with Washington Area Lawyers for the Arts (WALA) and the Copyright Alliance. This virtual copyright clinic, focused on Arts and the Pandemic, provided information to artists wishing to protect their works as well as educators incorporating creative works into distance learning and museums wishing to make work available during the pandemic.
The event kicked off with a testimonial from the Rock Creek King’s Evan Moses, explaining WALA’s assistance in pairing the band with an attorney who advised them in securing the proper permits and asserting their First Amendment rights to perform outdoors during the COVID-19 quarantine for the Save Our Stages Movement. The band continues to raise awareness of the need for legislation to support local music venues during COVID-19 shutdowns. The Rock Creek Kings are calling on both the D.C. City Council and the U.S. Congress to assist these small businesses until they can reopen safely again.
Professor Aistars then turned the event over so her clinic students could answer questions submitted by attendees, with former clinic student, now adjunct professor, Dr. Stephanie Semler moderating. First was an explanation from David Ward on how artists can copyright their artwork. He explained that artists have a copyright as soon as their work is fixed in a tangible medium, but that registering that copyright with the United States Copyright Office will benefit artists. This registration will allow people seeking to license works to find artists and for artists to recover statutory damages in the case of a successful infringement claim. David explained that there are six categories of protectable works and shared a quick walkthrough of the process on https://copyright.gov/.
Bernard Horowitz then fielded a question on the minds of many artists: should I sign a COVID waiver in the studio or for the live event I participate in? Bernard explained that this question is a moving target—COVID waivers have not yet been litigated and Congress has not acted on the matter. He noted that we can look to current personal injury laws to draw conclusions about what may happen with this type of waiver and went on to explain the sharp distinction between the laws in Maryland and D.C. compared to those in Virginia.
Another topic that has been brought to the forefront during the pandemic is collaboration between artists and teachers. Yumi Oda walked attendees through the concept of fair use—a defense to copyright infringement—explaining that teachers using creative works during a live stream of their lesson can take certain measures to improve the likelihood that they will have a good argument that their use of a work in a classroom setting is a fair use. She explained that fair use is a fact-specific inquiry, but that educational use in a classroom setting is a classic example. Yumi also recommended teachers take additional steps such as protecting the lectures, and the creative works within them, with a password and removing student access at the end of the semester.
In a similar vein, Emily Gunberg discussed how museums are adapting to life in a pandemic. Curators have to consider whether they have the right to display a visual work online, which requires making a reproduction. This is a right that does not automatically attach when a museum acquires the physical work for display within the museum building. Emily noted that some types of online postings are usually acceptable, such as thumbnail images due to their lower resolution and limited use. For general availability to the public, such as a feature in a museum’s virtual tour, curators should revisit licensing agreements to ensure they have permission from rights owners.
Heather Uzer was given a more holistic and open-ended question: is the pandemic a catalyst for reform, or a death knell for independent creators? She emphasized that it is within our capacity to use this moment as an opportunity and as a catalyst for change. Artists’ right to protect their works still remain and there are many resources available to help with that protection. WALA, the Copyright Alliance, and many others are committed to protecting independent creators. David Ward also noted that several legislative efforts have gained attention, and that some record labels are holding special days to acknowledge creator efforts and supplement revenue for broadcasting artists by returning all revenues to performing artists on those days.
The event concluded with a performance by the Rock Creek Kings, live, but socially distanced from Crescendo Studios in Falls Church, Virginia. You can watch the video of their performance here on YouTube. One of the owners of Crescendo Studios, Eddie Fuentes, spoke about the importance of art and music in a time where we cannot be physically connected, and Evan, the lead singer of the band, reinforced the message during the performance This has been a year where people have missed weddings, graduations, funerals, and birthdays. Our communities rely on creators now more than ever to bring us together through shared experiences when we are six feet, or even oceans, apart.
Greetings from CPIP Executive Director Sean O’Connor
With the end of the crazy year of 2020 coming into view, we here at CPIP are striving for a strong finish and already looking forward to meeting 2021 as prepared as anyone can be. Our thoughts are with all of CPIP’s friends, and I’m glad to pass along yet another Roundup full of positive news.
CPIP’s Eighth Annual Fall Conference, 5G at the Nexus of IP, Antitrust, and Technology Leadership, took place via Zoom on October 7-8. Thanks to everyone who made the event such a huge success! If you weren’t able to join us, you can find videos of the sessions here on CPIP’s website, and you can read our blog posts here and here.
In other event-related news, we have posts covering our recent conference, The Evolving Music Ecosystem, now available on both CPIP’s blog and IP Osgoode’s blog, hosted by our friends at York University’s Osgoode Hall Law School in Toronto. Bradfield Biggers, recent Boston College Law School graduate and music fintech entrepreneur at Timshel, and Meghan Carlin, Osgoode Hall law student and Co-President of the Osgoode Entertainment & Sports Law Association. You can check out the CPIP posts, here, here, here, and here, and the IP Osgoode posts here, here, here, and here.
CPIP would like to congratulate Thomas Edison Innovation Fellow Christa Laser on her professorship at Cleveland-Marshall College of Law! We’re excited about this opportunity for Christa to move into the world of academia, and we eagerly look forward to seeing all she has to offer in this space.
Congratulations also to Terrica Carrington of the Copyright Alliance for testifying at the “Copyright and the Internet in 2020” hearing before the House Judiciary Committee on September 30! You can find the written testimony, as well as a video of the hearing, on the Committee’s website. Terrica blogged about the oral argument in Google v. Oracle as well, and she joined the Committee for Justice on October 9 for a virtual panel discussion about the oral argument.
In other notable new from CPIP affiliates, CPIP Senior Scholar Mark Schultz and other experts have participated in a video for the Geneva Network on how IP helps in the battle against COVID-19. CPIP Affiliate Scholar Hina Mehta is speaking on October 30 at a session titled “Intellectual Property and its Commercialization” during Industry Day, an event hosted by George Mason University’s Department of Mechanical Engineering. Also this month, I spoke at the Law & Economics Center’s virtual Symposium on the Economics and Law of Cannabis Markets on October 12, as well as on the “Machine Learning in the Lab and in the Marketplace” panel at the LES 2020 Annual Meeting on October 16.
I’m grateful to the indefatigable CPIP staff for another productive month—especially in these crazy times—and I hope the coming months will allow us to catch our collective breath to prepare for the new year. Please read on for more October news from CPIP, and I wish you an early, happy—and especially safe—Thanksgiving!
CPIP Hosts Eighth Annual Fall Conference on 5G and the Internet of Things
On October 7-8, 2020, CPIP hosted its Eighth Annual Fall Conference, 5G at the Nexus of IP, Antitrust, and Technology Leadership, online from Scalia Law in Arlington, Virginia. The conference featured a keynote address by the Honorable Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director of the USPTO, and it was co-hosted by Scalia Law’s National Security Institute (NSI).
This conference addressed fast-emerging intellectual property (IP), antitrust, and technology leadership issues in the 5G and “Internet of Things” innovation ecosystem. Coverage included standard-essential patents (SEPs) along with established and emerging markets on a regional and global basis. Speakers were drawn from the academic, industry, and policymaking communities, with an emphasis on using objective fact-based analysis to explore points of convergence among legal, economic, and geopolitical perspectives on the IP and regulatory infrastructures that underlie these critical industries.
Our blog posts summarizing the conference are available here and here, and you can watch the conference videos here.
CPIP Welcomes Ken Randall as Next Dean of Scalia Law School
George Mason University has announced that Ken Randall will be the next Dean of Antonin Scalia Law School, beginning on December 1, 2020.
CPIP Executive Director Sean O’Connor welcomed the news: “We couldn’t be happier with the selection of Ken Randall as Dean-Elect. He cares deeply about the continued success of CPIP and is no stranger to innovation and commercialization. He and I have already developed a great working relationship, and CPIP endeavors to support his Deanship in any way we can. We also thank Dean Henry Butler for his outstanding leadership and look forward to working with him as a faculty colleague and Executive Director of the Law & Economics Center.”
The Center for the Protection of Intellectual Property congratulates Dean Randall on his appointment and welcomes him to the Scalia Law family. His rigorous academic mind, strong leadership skills, and expertise in online learning bring together the ideal skill set to take our law school to new heights. We very much look forward to working with him in the near future.
Deepak Hegde of New York University and co-authors Joan Farre-Mensa and Alexander Ljungqvist have published a new paper from our Edison Fellowship program entitled What Is a Patent Worth? Evidence from the U.S. Patent “Lottery” in the Journal of Finance. The paper provides empirical evidence that startups that obtain their first patent have, on average, 55% higher employment growth and 80% higher sales growth five years later. Utilizing a unique dataset drawn on unprecedented access to USPTO internal databases, the study also shows with causal evidence that these startups pursue more—and higher quality—follow-on innovation as the first patent boosts innovation by facilitating their access to funding.
CPIP Senior Scholar Ted Sichelman of the University of San Diego, along with Olena Ivus and Edwin Lai, have published a new paper in the Journal of Economics & Management Strategy entitled An Economic Model of Patent Exhaustion. The paper, which comes from our Edison Fellowship program, uses a sophisticated economic model to show that, contrary to the Supreme Court’s opinion in Impression Products v. Lexmark, mandatory patent exhaustion can be highly inefficient, particularly when transaction costs are low. The authors show that it is socially optimal for patent owners to be able to opt-out of exhaustion via contract when the social benefits from buyer-specific pricing outweigh the social costs from transaction cost frictions in individualized licensing.
In this paper from our Edison Fellowship program, Lauma Muizniece of the Investment and Development Agency of Latvia focuses on university autonomy as one of the key variables in commercializing publicly funded research in Latvia. The paper presents a case study using secondary data and interviews to demonstrate that, with greater funding flexibility and experimentation, universities could develop better ways to commercialize their research that are currently hindered by systemic bottlenecks. By taking a more nuanced approach at the research organization level that aligns incentives with opportunities, the paper argues that researchers and those who pursue commercialization of that research would be more successful in their endeavors.
Activities, News, & Events
CPIP Director of Copyright Research and Policy Sandra Aistars and the students in her Arts & Entertainment Advocacy Clinic joined the Washington Area Lawyers for the Arts (WALA) and the Copyright Alliance to co-host a virtual event entitled Arts and the Pandemic to discuss how local venues and artists are affected by the pandemic and to offer legal assistance to individual artists and small businesses. Prof. Aistars has written two recent articles at Law360 about the Google v. Oracle case. The first, RBG’s Legacy Can Guide High Court In Oracle Copyright Case, traverses the late Justice Ginsburg’s love of the arts and copyright legacy and runs through the various legal issues to explain why Google’s position is wrong on the merits. The second, High Court Oracle-Google Copyright War May Benefit Artists, examines how a case that is ostensibly about computer code could have a significant impact on the livelihoods of all artists and authors. Finally, Prof. Aistars spoke at the 2020 National Volunteer Lawyers for the Arts (NVLA) conference, discussing how to protect the arts and the importance of reversing anti-IP biases in academia.
CPIP Senior Fellow for Innovation Policy Jonathan Barnett published an op-ed at The Hill entitled “Unfair Use,” Democracy and the Supreme Court about the imbalance created by the expansion of copyright law’s fair use doctrine in recent years. Prof. Barnett explains how and why the Court can rein in the fair use doctrine in Google v. Oracle, noting that the current fair use “groupthink” dogmatism fails to recognize that platform aggregators improperly rely on the exception to generate billions of dollars annually despite having borne neither the costs nor risks of developing the content. Prof. Barnett also published an essay at Truth on the Market entitled Antitrustifying Contract: Thoughts on Epic Games v. Apple and Apple v. Qualcomm. The essay explains how the Epic v. Apple and Apple v. Qualcomm cases demonstrate “the unproductive rent-seeking outcomes to which antitrust law will inevitably be led if, as is being widely advocated, it is decoupled from its well-established foundation in promoting consumer welfare—and not competitor welfare.”
CPIP Senior Scholar Erika Lietzan has published a new article in the Cato Institute’s Regulation entitled The Evergreening Myth that discusses recent efforts by U.S. policymakers to reduce so-called pharmaceutical “evergreening” by changing the antitrust, intellectual property, and regulatory landscape. Prof. Lietzan explains that claims of evergreening, where drug companies supposedly block competition by improper means, are revealed to be myths upon closer inspection. Indeed, its proponents are making unstated normative claims that blind policymakers from making informed decisions based on rigorous evidence. As Prof. Lietzan concludes, the “term’s meaninglessness makes it impossible for audiences to distinguish among situations that may be different, as a legal, theoretical, or normative matter, and that may call for differing policy solutions,” and this “does a disservice to policymakers and the public.”
CPIP Senior Scholar Kristen Osenga has published a pair of op-eds on how policymakers and regulators are threatening innovation. In an op-ed entitled Price Controls Are Intellectual Property Theft by a Different Name at Townhall, Prof. Osenga discusses a recent executive order that would decrease Medicare payments for many prescription medications to match the lowest price paid in other developed countries. This policy, which she describes as “myopic at best and downright reckless at worst,” fails to consider the devastating impact it would have on medical innovation in the United States—and how it would ultimately hurt patients in the long run. At RealClearMarkets, Prof. Osenga published an op-ed entitled Today’s Federal Trade Commission Is Taking One Giant Leap Backwards that discusses the FTC’s misguided efforts to pit antitrust and patents against each other. As she explains, patent and antitrust law share the same goal of increasing innovation. Prof. Osenga concludes: “Rather than tilting at windmills already lost, it is time for the FTC to move forward and set their focus on real impediments to innovation and competition.”
You might think that a copyright battle waged between tech behemoths Google LLC and Oracle America Inc. about computer code has little to do with the concerns of songwriters, authors, photographers, graphic artists, photo journalists and filmmakers. You would be wrong. These groups all filed amicus briefs with the U.S. Supreme Court in Google v. Oracle, argued on Wednesday Oct. 7.
Google v. Oracle is a long-running copyright dispute in which Google admits that, pressed for time, and wanting to compete with Oracle, it copied more than 11,000 lines of Oracle’s Java software code, as well as the organizational structure of the software program.
In doing so, Google avoided the research and development costs of authorship and even the licensing obligations to make its products interoperate with other Java products those using the code legally took on. Google then began competing with Oracle — earning billions of dollars in revenue using the code and structure it had copied.[1]
Google claims that either the portions of the code it took were not copyrightable or that Google’s use is a fair use.[2] It and its amici — many of whom would prefer reduced intellectual property protections for software to fuel their business models — deploy terms like “permissionless innovation” and “efficient infringement” as a public relations strategy.
However, the Copyright Act is clear that software is copyrightable as a literary work — with no carveouts for particular types of code — and that fair use is a defense to copyright infringement intended to excuse limited uses of works, especially for noncommercial purposes, where the use does not compete with the original work.[3]
That is why Google lost in the U.S. Court of Appeals for the Federal Circuit, where U.S. Circuit Judge Kathleen O’Malley opined “[t]here is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform.”
The First Transformative Use Case at the Supreme Court in a Generation
The Supreme Court has not revisited the transformative use test articulated in Campbell v. Acuff-Rose Music Inc. in 26 years. That case added a new gloss on the first fair use factor — the purpose or nature of the use — courts consider when analyzing a fair use defense.
Artist advocates believe that some lower courts have improperly expanded transformative use over time so that it now includes uses that should be licensed, resulting in losses in income to creators.
Today it is not unusual for defendants to assert arguments that a given use is transformative even if it does not add new expression, meaning or purpose to a work, as Campbell required. It is common to hear policy arguments used to justify the need to copy the creative work of another for the sake of efficiency, or because it will reduce the cost of a product. Notable copyright scholars have even observed that transformative use is becoming a conclusory label that means all things to all people.[4]
Although cloaked in terminology related to software code, all of the familiar transformative use debates were present in Wednesday’s oral arguments in Google v. Oracle.
Google’s counsel, Thomas Goldstein, repeatedly resorted to the public policy arguments of efficiency and cost that rankle artists. At various points Goldstein was questioned by Chief Justice John Roberts and Justices Clarence Thomas, Elena Kagan, Neil Gorsuch and Brett Kavanaugh regarding why Oracle should be penalized for developing a “particularly elegant or efficient or successful or highly adopted solution in the marketplace.”
Goldstein ultimately replied that it would “upend the world” if later competitors were unable to copy popular computer code that programmers had become accustomed to using and “make the creation of innovative computer programs less efficient.”[5]
Google likewise argued that its use of Oracle’s code was transformative because it used the code on a mobile platform rather than a desktop. This argument was refuted by Deputy Solicitor General Malcolm Stewart, who noted that Google copied the portions of Oracle’s code that were used in the smart phone environment, so it did not transform anything.
Moreover, for app developers to have confidence that their programs would trigger the same functionality they had triggered in Java previously, the code had to perform exactly the same function it had always performed.
Hence, Google has not and could not do anything transformative in that sense either. To analogize to a motion picture that has only been released in theaters, he explained if one were to obtain a print of that film and instead stream it on a digital platform, no court would excuse that as a transformative fair use.[6]
Why the Standard of Review Matters
What might seem like an arcane civil procedure dispute over the proper standard of review for a fair use decision may well be the most important issue for artists in Google v. Oracle because it could determine whether cases in which fair use is asserted can be decided by a judge as a matter of law or instead require a trial and determination by a jury.
Google, which has routinely requested that fair use be decided by courts as a matter of law, has raised an argument through its amici that fair use is a question that must always go to the jury.
To put into perspective what this would mean for artists: Because copyright is a body of federal law that preempts state law, it must be tried in federal courts. Most individuals and small businesses cannot afford to bring or defend against even simple infringement actions in federal court. The American Intellectual Property Law Association has estimated that the mean cost of fully litigating a copyright infringement lawsuit is $397,000. Adding a jury trial requirement to these already astronomical costs would put justice ever further out of reach for the majority of the creative community.
Requiring a jury trial on fair use is outside the norm. As counsel for Oracle Joshua Rosenkranz noted, “Professor [Barton] Beebe has identified over 100 fair use cases decided by courts on summary judgment in a 30 year time span. Google could identify only five cases that went to a jury in a similar 30 year span.”[7]
Additionally, fair use is a defense on which both the public and creators depend and that requires stability and predictability so that individuals may make legal and commercial decisions with some certainty that they are not exposing themselves to undue risk. Google often makes these very arguments itself. To leave fair use determinations wholly to juries would undermine that stability and make innovation more dangerous and licensing more challenging.
What Artists Are Watching
Some amicus briefs filed by artist advocates invited the court to take this opportunity to clarify and rein in what they view are overly expansive fair use decisions since Campbell.[8]
Others express worry that
Google has used its unprecedented online footprint to dictate the terms of the market for creative works. By tying together a set of limited exceptions and exclusions within the U.S. Copyright Act and analogous laws in other countries, and then advocating for the radical expansion of those exceptions, Google has amplified its own market power to the great detriment of copyright owners.The more amorphous and unreasonably expansive the analysis and application of the fair use doctrine, the harder it becomes to establish the value of the copyrighted work during licensing negotiations that are the lifeblood of the creative ecosystem.[9]
Dale Cendali, co-counsel for Oracle, is optimistic after Wednesday’s argument and wrote to me in an email:
We are hoping that the Court will uphold the copyrightability of software and protect the incentive to create that the Constitution provides to all creators — big and small. We also are hoping the Court will agree it is fundamentally not fair use to use a work for the same purpose as the original for commercial gain. Moreover, fair use requires a complicated legal analysis that makes it suited to determination by a court as a matter of law — as has been the history of deciding fair use on summary judgment — as opposed to the often unpredictable and frequently unaffordable process of a jury trial.
Conclusion
Artists have much reason for optimism. The weight of the law and the diversity of amici arrayed against Google’s view of copyright is mighty. Beyond the wide variety of independent artists groups mentioned, amici aligned with Oracle also included:
The U.S. government, which has aligned with Oracle under the administrations of both former President Barack Obama and President Donald Trump;
Members of Congress who enacted the provisions of law in question, confirming that they intended to fully protect software without any carveouts or loopholes and that subsequent Congresses have only strengthened those protections;[10]
A member of Commission on New Technological Uses of Copyrighted Works, or CONTU, the special commission convened by Congress to advise it in the late 1970s on whether and how to protect software — confirming that software is protectable as a literary work and that CONTU considered and rejected the arguments Google raises in this litigation;[11]
The former Register of Copyrights Ralph Oman, who served during the time period that protections for software were enacted by Congress and whose role was to advise Congress on copyright matters as it drafted and implemented legislation — noting that Google’s arguments “fly in the face of long-standing principles of copyright law codified in the Copyright Act, which Congress extended to software in 1980 when it amended the Copyright Act explicitly to encompass computer programs”;[12] and
A variety of software and technology companies that depend on copyright protection to facilitate their participation in standards development as well as startup investment and innovation.
There is reason for optimism for all innovators and creators, as Rosenkranz summed up for the court:
The software industry rose to world dominance since the 1980s because of copyright protection, not unlicensed copying. And … the sky hasn’t fallen. [The] six years since the court of appeals’ first decision have brought new bursts of innovation and interoperability. In that time frame, we’ve seen the explosion of interoperability, cloud computing, 5G, machine learning, and autonomous vehicles.
Cases like Google v. Oracle illustrate how important copyright protections are to all authors in safeguarding the excruciating investment they make in taking their work from “the passable to the masterful.”[13]
[13] Joshua Rosenkranz, counsel to Oracle in closing to the court “who will invest the excrutiating time it takes to refine code from the passable to the masterful if all of it can be stolen?”
Greetings from CPIP Executive Director Sean O’Connor
As we move through our busy fall season here at CPIP, we are grateful for the efforts of everyone in the George Mason University community keeping us safe and healthy. We are fortunate that in these highly uncertain times, we are still able to focus on what we do best: bringing you the research, impact policy pieces, and programming that you have come to expect.
In the copyright sphere, we were gratified by the success of our postponed—and ultimately virtual—conference, The Evolving Music Ecosystem. Highlighted by an informative and moving fireside chat between singer, songwriter, and author Rosanne Cash and CPIP’s Sandra Aistars, the conference also featured seven panels of academics, industry specialists, and artists who provided invaluable insight into copyright law and the music business, especially in light of 2020’s challenges to the industry. Thank you to all who participated and attended! Videos of the keynote address and panel presentations can be watched here.
CPIP also congratulatesShira Perlmutter on her appointment to Register of Copyrights and Director of the U.S. Copyright Office by Librarian of Congress Carla Hayden. We very much look forward to Ms. Perlmutter’s continued positive impact on the copyright community in her new role.
In the patent sphere, CPIP Senior Fellow for Innovation Policy Jonathan Barnett led our roundtable, Measuring the Value of Patent Licensing. Leading legal scholars, economists, and industry representatives focused on the data collection and methodological approaches to quantifying the full economic benefits of commercializing new innovation through patent licensing models.
Congratulations to CPIP Senior Scholar Erika Lietzan on becoming the William H. Pittman Professor of Law & Timothy J. Heinsz Professor of Law at University of Missouri School of Law and for being named a “Best Lawyer in America” for 2020! We are proud of the many accomplishments of our Scholars!
In the coming month, we are excited to host our Eighth Annual Fall Conference on October 7-8. We are partnering with the National Security Institute (NSI) at Scalia Law School to focus on 5G at the Nexus of IP, Antitrust, and Technology Leadership. We hope you’ll be able to join us! You can see the conference program, confirmed speakers, and register for the virtual event here.
Last, but certainly not least, we are proud of the academic and policy publications of our Scholars, Fellows, and other affiliates. Keep reading to learn about work by Sandra Aistars, Jonathan Barnett, Stuart N. Brotman, Ross E. Davies, H. Tomás Gómez-Arostegui, Devlin Hartline, Chris Holman, Erika Lietzan, and Kristen Osenga.
CPIP Eighth Annual Fall Conference with USPTO Director Andrei Iancu on October 7-8
CPIP’s Eighth Annual Fall Conference will be hosted virtually from George Mason University Antonin Scalia Law School in Arlington, Virginia, on October 7-8, 2020. The theme this year is 5G at the Nexus of IP, Antitrust, and Technology Leadership. The conference is being co-hosted by the National Security Institute (NSI), and it features a keynote address by USPTO Director Andrei Iancu.
This conference addresses fast-emerging intellectual property (IP), antitrust, and technology leadership issues in the 5G and “Internet of Things” innovation ecosystem. Coverage includes standard-essential patents (SEPs) along with established and emerging markets on a regional and global basis. Speakers are drawn from the academic, industry, and policymaking communities, with an emphasis on using objective fact-based analysis to explore points of convergence among legal, economic, and geopolitical perspectives on the IP and regulatory infrastructures that underlie these critical industries.
Registration closes on Monday, October 5, 2020, at Noon ET, so please register soon! We have 4 hours of Virginia CLE credit pending!
CPIP Hosts Academic Roundtable on Patent Licensing Valuation
On September 17, 2020, CPIP hosted an academic roundtable entitled Measuring the Value of Patent Licensing online from George Mason University Antonin Scalia Law School in Arlington, Virginia. The roundtable, which was moderated by CPIP Senior Fellow for Innovation Policy Jonathan Barnett, included leading scholars, economists, and industry representatives.
The sessions focused on the existing methodologies developed to measure IP transactions, the insights achieved so far using those methodologies, and the possibilities for developing more precise methodologies to measure licensing and related transactional activities in the IP marketplace. They also examined the mechanics of IP licensing and transactional markets, how IP transactions generate social value, and the extent to which existing IP legal regimes may impede IP markets.
The Evolving Music Ecosystem Conference with Rosanne Cash
On September 9-11, 2020, CPIP hosted The Evolving Music Ecosystem conference online from George Mason University Antonin Scalia Law School in Arlington, Virginia. The conference featured a keynote address by singer, songwriter, and author Rosanne Cash, and coverage included news articles at Billboard and Mason News. CPIP Senior Scholars Sandra Aistars, Sean O’Connor, and Mark Schultz also participated in the event. We’ve posted a synopsis of each day of the conference here, here, and here.
This unique conference continued a dialogue on the music ecosystem begun by CPIP Executive Director Sean O’Connor while at the University of Washington School of Law in Seattle. In its inaugural year in the D.C. area, the conference aimed to bring together musicians, music fans, lawyers, artist advocates, business leaders, government policymakers, and anyone interested in supporting thriving music ecosystems in the U.S. and beyond.
To visit our conference website and to watch the videos, please click here.
CPIP Edison Fellow Tomás Gómez-Arostegui of Lewis & Clark Law School and co-author Sean Bottomley have published a draft of their law review article that will be published in the Case Western Reserve Law Review. The article takes an historical look at the first two permanent injunction factors from eBay v. MercExchange, namely, irreparable injury and inadequate legal remedies. The article concludes that equitable principles dictate that the Federal Circuit should recognize that: “(1) an injury it seeks to redress with a final injunction is future infringement itself, not just follow-on harms caused by future infringement; (2) it can presume future infringement from past infringement; (3) it can presume that legal remedies are inadequate to remedy future infringement; and (4) it need not require a plaintiff to show that alternative equitable remedies, like ongoing royalties, would inadequately redress future infringement.”
The Richmond Journal of Law and Technology (JOLT) has just published a new article by Professor Stuart Brotman, the inaugural Howard Distinguished Endowed Professor of Media Management and Law and Beaman Professor of Journalism and Electronic Media at the University of Tennessee, Knoxville. The article was supported by a Leonardo da Vinci Fellowship Research Grant from CPIP and the research assistance of recent Scalia Law graduate Samantha Levin. The article traverses the history and development of copyright and communications law, which have historically followed separate paths, and offers potential ways that they can be harmonized to match the current realities of the media marketplace.
CPIP Director of Copyright Research and Policy Sandra Aistars has written an article at Law360 (also available on the CPIP blog) about Justice Ginsburg’s copyright legacy, especially as it will affect the impending Google v. Oracle decision. Prof. Aistars has also published her latest Copyright Notebook series post, The Importance of Artists’ Agency, on the CPIP blog. Additionally, the Arts & Entertainment Law Clinic—directed by Prof. Aistars—has continued its academic partnership with the U.S. Copyright Office for the fifth year. This semester, they are supporting the Office’s public meetings to investigate standard technical measures (STMs) that could be adopted to aid and identify copyrighted works and to potentially reduce infringement on digital platforms as envisioned in Section 512(i) of the DMCA. Prof. Aistars and the Clinic students will also co-host an online copyright clinic with WALA and the Copyright Alliance that will feature a live performance by the Rock Creek Kings.
CPIP has published a new policy brief by Professor Ross E. Davies entitled Ebb and Flow in Safe Harbors: Some Exemplary Experiences Under One Old Statute and One New. Prof. Davies teaches administrative law, civil procedure, comparative criminal law, contracts, employment discrimination, legal history, legal profession, and torts at George Mason University Antonin Scalia Law School in Arlington, Virginia, and the policy brief is the product of our two Safe Harbors and Private Ordering in the Creative Industries research symposia that were held in 2019. In the policy brief, Prof. Davies compares and contrasts two seemingly unrelated statutory provisions that are often referred to as “safe harbors”—despite that term not appearing in either statute: the National Labor Relations Act (NLRA) as codified in Title 29, and the Online Copyright Infringement Liability Limitation Act (OCILLA)—otherwise known as Title II of the Digital Millennium Copyright Act (DMCA)—as codified in Title 17.
CPIP Scholars have participated in several speaking engagements this past month. CPIP Senior Fellow of Innovation Policy Jonathan Barnettspoke at the Innovation Alliance’s Recognizing the Growing Economic Impact of Patent Licensing webinar. CPIP Senior Fellow for Life Sciences Chris Holmanparticipated in the Regnier Institute for Entrepreneurship and Innovation Kansas City Region’s Bio-Medical and Healthcare Technology Entrepreneurship Certificate Program. CPIP Senior Scholar Erika Lietzanspoke at IPWatchdog’s The Race for a Coronavirus Vaccine: The Intersection of Science and IP Policy webinar. CPIP Senior Scholar Kristen Osengapresented a draft paper at the Gray Center’s Public Health: Regulation, Innovation, and Preparation research roundtable. And CPIP Director of Communications Devlin Hartlineparticipated in the Music Biz Entertainment & Technology Law Conference.
CPIP Scholars have also written op-eds defending the importance of robust patent protection, particularly for biopharmaceutical inventions in light of the COVID-19 pandemic. At the Huntsville Item, CPIP Senior Fellow for Life Sciences Chris Holmanargues that the seizure of patents will only hamper the development of a vaccine to combat the coronavirus: “Eliminating intellectual property protections would not only reduce incentives to develop coronavirus treatments as quickly as possible; they will also destroy the domestic industrial base that could be the key to stopping the next pandemic.” Likewise, CPIP Senior Scholar Kristen Osengaargues at the Nashua Telegraph that taxpayers are getting a great deal with biomedical research: “When new treatments are successful, drug companies make money because we, through insurance, buy those drugs to keep us, or make us, healthy. The government then taxes those profits and invests some of that tax money into new research. Far from ‘paying twice,’ we are getting a great bargain from government spending on basic research.”
The following post comes from Bradfield Biggers, a graduate of Boston College Law School and Founder & CEO of Timshel Inc., a music fintech company that provides data-driven cashflow solutions to musical artists in Los Angeles, California. This is the third of three posts (see day one recap and day two recap) summarizing our three-day The Evolving Music Ecosystem conference that was held online from George Mason University Antonin Scalia Law School on September 9-11, 2020.
By Bradfield Biggers
On September 9-11, 2020, the Center for the Protection of Intellectual Property (CPIP) hosted The Evolving Music Ecosystem conference online from George Mason University Antonin Scalia Law School in Arlington, Virginia. The conference featured a keynote address by singer, songwriter, and author Rosanne Cash.
This unique conference continued a dialogue on the music ecosystem begun by CPIP Executive Director Sean O’Connor while at the University of Washington School of Law in Seattle. In its inaugural year in the D.C. area, the conference aimed to bring together musicians, music fans, lawyers, artist advocates, business leaders, government policymakers, and anyone interested in supporting thriving music ecosystems in the U.S. and beyond.
SESSION 5: THE POWER OF DATA OWNERSHIP & ANALYTICS
Access to consumer data and the ability to process and respond to it is perhaps the most valuable component of our digital global ecosystems—no matter the industry. In the music business, collecting and analyzing data about listeners and their habits is occurring on a massive scale, and it’s informing the development of new business models and platforms. But questions of ownership and data sharing loom large, as musicians increasingly realize the value of knowing more about their fans. This panel discussed the current state of data collection and analytics in the music industry and explored ways that big data can foster creative ecosystems for all stakeholders. The panel was moderated by Prof. Sean Pager of Michigan State University College of Law.
Prof. Serona Elton from the University of Miami Frost School of Music kicked off the panel by describing the various places where artist data is aggregated, such as Spotify for Artists, Apple Music for Artists, Soundcharts, and collective management organizations (CMOs). Prof. Elton emphasized that while the number of data sources and quantity of data is extraordinary, the quality of data and specificity of the sources vary drastically. Moreover, while that data is accessible to everyone, the utility and granularity of the data will vary depending on who you are and how you want to use it.
Joshua Friedlander from the Recording Industry Association of America (RIAA) then described the history of data tracking in the music industry. Data analytics became prominent in the 1990s when the RIAA was tracking roughly a billion point-of-sale transactions for recorded music annually. Nevertheless, those billion transactions have been dwarfed by the 1.5 trillion datapoints the RIAA now tracks annually in the U.S. alone. Moreover, where the data of the 1990s merely tracked when and where a record was sold, music industry data today is infinitely more complex. The music data we collect now includes the demographics of the consumer, how long they consumed the song, how often they consume it, and many more analytics that continue past the point of sale or download. As a result, record labels and marketing plans are so intricately related to data that few will approve a marketing campaign without data-backed guidance. Finally, Mr. Friedlander advised artists to retain only representatives who understand and use music data. Without looking at this data to understand the disposition of fans, contemporary artists will have a more difficult time achieving success in this data-driven music business.
Prof. Jake Linford from Florida University School of Law followed Mr. Friedlander’s discussion of the endless potential of artist data with a critical discussion of the safety and usefulness of current data collection and analytics efforts. Prof. Linford agrees that this extraordinarily granular data has unlimited potential, but he also thinks that not all aspects of its potential are positive. For example, the data technology companies collecting from your online consumption habits may be able to help artists and record labels understand what style of music is likely to create the next big pop song. Nevertheless, such data collection can also reveal potentially sensitive information about users, such as political affiliation and sexual orientation. Prof. Linford went on to discuss how this data can also allow AI-driven robots to create compositions without human intervention. While many are excited about the prospect of robot artists, this does create an interesting philosophical debate of what constitutes a creator.
Prof. Tonya Evans then led the panel into a discussion of disintermediation in the music industry. Prof. Evans explained how too many gatekeeper intermediaries in music needlessly create friction. She recommended that blockchain can streamline music distribution and remove many of these costly friction points, which would leave more money for artists. However, despite the promise of modern internet technologies, she recognized that the effectiveness of streamlining music distribution with current blockchain technology is curbed by the pervasiveness of piracy. Prof. Evans then suggested that a solution to music piracy—which could pave the way for efficient music licensing—could be through a disaggregated, decentralized network of blockchain payment and smart contracts. She anticipates that this sort of technological framework could provide the certainty and trust that music stakeholders need to distribute music securely and efficiently.
Finally, Will Page, the former Chief Economist of Spotify, began his presentation by rehashing and analyzing some of the main points made by the prior panelists. Particularly, he found blockchain to be a less capable solution in the music industry because of the issue of conflicting song metadata. Instead, he suggested the creation of a global repertoire database that would provide needed clarity in the music rights environment that regularly misattributes—or outright fails to attribute—artists to particular songs. Mr. Page later suggested that a country’s best solution to straightening out its broken song attribution status quo would be to create a natural monopoly to act as a central copyright depositor to coordinate with licensees. He then went on to stress the importance of music’s big data conversation, which he suggested should drive music innovation over longstanding industry customs. For example, the music industry continues to rely on country-level data for identifying fans because of longstanding touring customs, rather than the city-level data we have access to that is vastly superior due to its granularity.
SESSION 6: ARTIST MANAGEMENT & THE BUSINESS OF MUSIC
In today’s music business, when artists can act as their own producers, promoters, booking agents, managers, etc., is there still a need for traditional representation? What is the role of an artist manager? How has it evolved as the internet and interconnectivity have grown? This panel, moderated by Prof. Robert Heverly of Albany Law School, brought together artists, managers, lawyers, and venue owners to discuss the constant evolution of artist representation and the business of music.
Prof. Olufunmilayo Arewa from Temple University Beasley School of Law opened the panel by explaining how marginalized groups have been short-changed by record agreements in the past. Prof. Arewa described the financial discrimination and general injustice that has been felt by African American musicians for generations. For example, African American R&B artists between the 1960s and 1980s received royalty contract rates worth 20-60% of what were considered standard rates. Moreover, she noted that an additional consequence of failing to compensate African Americans and other groups fairly is that they cannot receive union sponsored health insurance. Finally, Prof. Arewa highlighted that considering the Black Lives Matter movement, there have been various proposals on how to make amends for past royalty rate inequities.
Attorney Lita Rosario carried on Prof. Arewa’s conversation about the injustices felt by marginalized groups by discussing her personal experience litigating unfair royalty agreements on behalf of African American artists. She then outlined her work in striking the down the “sharecropping” agreements between artists and record labels in favor of joint venture arrangements. Ms. Rosario noted that in the traditional sharecropping model, an artist’s royalties must recoup the recording costs before she is given any share of her royalties. In her proposed joint venture agreement, the artist would instead begin to earn royalties on the day the album breaks even. Also, Ms. Rosario noted, while it is a positive that major record labels have committed around $225 million to promote anti-racism, this gives little solace to those who continue to suffer from the chains of inequitable contracts.
Simon Tam of the award-winning band The Slants then brought home the conversation about systemic racism and marginalization in the music industry by speaking about his personal experience navigating injustice. He recalled an incident when a record executive offered his band a substantial record deal, so long as they replaced their Asian lead singer for a white person. The executive said this was because “Asians don’t sell.” Mr. Tam confronted the executive about the racism and walked out on the deal. Since then Mr. Tam and his band have leveraged online independent distribution platforms to release their music, which has allowed them to create a successful career without label involvement. However, he explained that artists who forgo record label agreements will generally need to find the right group of representatives to champion their careers. The music industry is full of complex arrangements and niches, which is extremely difficult to navigate on one’s own.
Ralph Jaccodine, who is an artist manager and a professor at the Berklee College of Music, then rounded out the panel by providing the perspectives of the record label and artist manager. Prof. Jaccodine emphasized that modern artists can no longer confine their activities just to creating music. Prof. Jaccodine believes that artists need to be able to wear a bunch of different hats in the music industry so they can delegate aspects of their business to effective representatives. Artists need to educate themselves about their business and understand how activities from concert promoting to publishing function so that they can hire the right representatives to drive their careers. Without a knowledge of their business, artists can be taken advantage of and will not know if a particular manager or agent is worth hiring. Prof. Jaccodine encourages artists that they don’t need record labels to be successful—just knowledge and a good team.
SESSION 7: SUPPORTING ARTISTS & COMMUNITIES
Recognition of and support for local artists and musicians is vital to the preservation of creative and culturally diverse communities. Whether full-time professional musicians or part-time hobbyists, creative individuals’ contributions to their communities are invaluable and difficult to measure. But like many who make a living through artistic endeavors, musicians often struggle to find steady work and lack the benefits that many of us take for granted. Musicians also often encounter mental health and substance abuse issues at a greater rate than non-artists. This panel discussed ways a vibrant music scene can benefit a community, ways that communities can give back, and resources available to musicians in need. The panel was moderated by John Good of the Washington Area Lawyers for the Arts.
Prof. Ying Zhen of Wesleyan College kicked off the panel by discussing her 2018 survey concerning the wellbeing of modern musical artists. This survey was an in-depth, multidimensional study involving 1,000 artists who identified as full-time musicians with sustainable careers and those who were transitioning into such careers. From this data, Prof. Zhen and her team were able to uncover interesting information about the modern working artist. For instance, Prof. Zhen identified that the median income from music for these artists was $35,000 per year, the median artist has around 3.5 different music income streams, and that one-third of their yearly income came from non-music sources. And while much of her research concerned the financial wellbeing of artists, Prof. Zhen also collected data on their general wellbeing. Unfortunately, this research tended to show that artists found the financial instability of music challenging, drug usage by artists in this survey was higher than the national average, and that 76% of women in music reported experiencing sexual harassment. Although these figures did not paint the rosiest portrait of artist wellbeing, Prof. Zhen hopes this survey will bring about social and financial change by educating artists and policymakers on the everyday struggles of artists.
Jennifer Leff from MusiCares then followed Prof. Zhen’s presentation by discussing the resources that MusiCares, one of the largest artist resource organizations in the world, offers to artists. Specifically, Ms. Leff spoke about MusiCare’s grant program that helps artists who are struggling financially due to the global COVID-19 crisis. To qualify for this program, artists must have five years of music industry experience or be able to show proof of six commercially released tracks. Qualifying artists can request small-quantity grants to pay personal expenses, such as rent, medical care, and other necessities. So far, MusiCare’s grant program has supported over 18,000 artists during the COVID-19 pandemic and distributed $20 million in grant relief. In addition to this grant program, Ms. Leff spoke about how MusiCares looks out for the broader music community by offering educational seminars ranging from money management and tax tips for musicians to addiction and recover information.
Yudu Gray Jr., the co-founder of House Studio, then transitioned the panel from discussing overarching artist support organizations to how artists are handling the state of the music industry today. Through his music production company, House Studio, Mr. Gray has not only helped artists create masterful music productions, but he also concedes that he has helped artists with the “boring stuff” such as LLC registrations and accounting practices. However, this more holistic approach to providing foundational artistic and business services has allowed his artists to achieve global notoriety, as in the case of the Gramm–winning artist Logic. Mr. Gray then discussed his firsthand account of watching artists he works with struggle to pay rent and access other necessities because of the COVID-19 global pandemic. He sees that technology and the music industry are trying to pivot to stay alive, which ends up leaving individual artists behind. Recognizing this inequity, Mr. Gray began to look for ways to help artists get money to finance their projects. This search resulted in House Studio connecting with technology companies like Apple and Amazon to help artists’ projects get funded. For example, Mr. Gray spoke generally of an upcoming project where artists could pitch music video ideas to an undisclosed technology company that would fund the project without demanding rights. The only catch is that the content the technology company funded would be exclusive on its platform for a period of time.
Erik Philbrook from the performing rights organization American Society of Composers, Authors and Publishers (ASCAP) rounded off the panel by providing artists with tips on how they can get compensated for their work. First, Mr. Philbrook emphasized that artists need to register their music properly so that ASCAP and other royalty distributors can identify and compensate artists for their works. Second, he noted that many artists are not collecting their full amount of performance royalties because they only register with performing rights organizations as writers. Mr. Philbrook explained that unless an artist has a relationship with a publisher, the artist herself needs to register as both a writer and publisher with her performing rights organization so that she can receive all of the performance royalties she is due. Finally, Mr. Philbrook wanted to publicize that ASCAP also supports artists with educational materials, seminars, and conferences to teach artists on how to navigate the nuances of the music industry.
CLOSING REMARKS
CPIP Executive Director Sean O’Connor closed the conference by expressing how pleased he was with how smoothly the conference operated and thanking everyone involved in making this conference possible. Prof. O’Connor provided special thanks to the CPIP team, including Prof. Sandra Aistars, Prof. Devlin Hartline, CPIP Deputy Director Joshua Kresh, Kristina Pietro, and Mary Clare Durel, for their phenomenal work behind the scenes. Additionally, Prof. O’Connor acknowledged the financial and general support of the conference’s sponsors, in particular the Recording Industry Association of America (RIAA) and Mitchell Silberberg & Knupp LLP.
Prof. O’Connor then invited artists, academics, and anyone else to join CPIP next year in a follow-up conference that he anticipates will be themed “Rebuilding the Music Ecosystem.”
On Friday the Federal Court for the Southern District of New York (SDNY) ruled in favor of Hachette and other major book publishers, and against Internet Archive (IA) in a lawsuit considering IA’s Controlled Digital Lending (CDL) program, under which IA scanned books and “loaned” digital copies of copyrighted works over the internet. The court found that the activities were clearly infringing (PP. 14-15) and also that
At the recent 
By Chris Wolfsen
George Mason University has 
You might think that a copyright battle waged between tech behemoths Google LLC and Oracle America Inc. about computer code has little to do with the concerns of songwriters, authors, photographers, graphic artists, photo journalists and filmmakers. You would be wrong. These groups all filed amicus briefs with the U.S. Supreme Court in Google v. Oracle, argued on Wednesday Oct. 7.
By Bradfield Biggers