2. User-Generated Content & Virtual Worlds, 10
Vanderbilt Journal of Entertainment & Technology
Law 893 (2008).
Digital Attribution, 87 Boston University Law Review
41 (2007).
Amateur-to-Amateur (with Dan Hunter), 46 William &
Mary Law Review 951 (2004).
2
5. Incentives theory
A brief history
Ancient copyright
The Stationers’
Company
The Statute of Anne
The United States
Constitution
Steady expansions in
19th & 20th century
1976 Act
1998 revisions
International law
5
6. (1) literary works;
(2) musical works;
(3) dramatic works;
(4) pantomimes and
choreographic works;
(5) pictorial, graphic, and
sculptural works;
(6) motion pictures and other
audiovisual works;
(7) sound recordings; and
(8) architectural works.
Or, colloquially, books, music,
plays, films, pictures,
photographs, sculptures,
building, computer software,
etc.
6
8. General Rights
102 – Base Requirements
106 – Exclusive Rights
106A – VARA
107 – Fair Use
Scope &
Limitations
108 - Libraries
109 - First sale
110 – Non-profit Performance
111 - Television
112 - Television
113 – VARA
114 – Music: Sound Recordings
115 – Music: Cover versions
116 - Music: Jukeboxes
117 - Software
118 – Public Broadcasting
119 - Television
120 – Architectural Works
121 – Blind & Disabled
122 – Television
9. Authors create works due to
the incentives offered by
Creators
copyright’s prospect of
financial reward.
product
Industry professionals
payment
purchase the content from
authors, package it in copies,
market it and distribute it.
Industry Professionals They are the expert
commercial intermediaries.
The public benefits from
product payment having access to a broad
selection of high quality
content.
Consumers
10. Creators
product payment
Industry Professionals
Congress seems to regard the
entertainment industry as
the chief “client” of
product payment copyright legislation.
Consumers
11. To what extent does the story of the
Stationers’ Company explain the
contemporary landscape of
copyright?
Have we returned to a licensed
monopoly right?
To what extent is copyright law’s
historical expansion (in scope and
duration) attributable Lockean,
rather than utilitarian, intuitions?
1976 Act? 1998 Acts?
Industry Professionals
product payment
11
12. “The VCR is to the
American film producer
and the American
public as the Boston
Strangler is to the
woman alone.”
-- Jack Valenti (MPAA)
12
13. Framing the problem:
New technologies, such as Creators
cassette tapes and
photocopiers, allow
consumers to create and product payment
exchange copies of works,
depriving the copy licensing
industry (and the creators Industry Professionals
who rely on the industry for
revenue) of their profits.
Answers to piracy: product payment
Expand rights
Strengthen enforcement Consumers
Criminalize infringement
Regulate Technology (DRM)
Piracy
13
15. Principles
1) Copyright law
creates private
property rights in
information patterns
2) This exclusive rights
are normatively
desirable and
benefit society
3) Copying of
information patterns
should occur only
when authorized by
the proprietor
15
16. Principles
1) Information patterns
should be shared for
purposes of
collaboration
2) Copying of
information patterns
should be fast,
simple & transparent
3) Central control is not
desirable – the
power in the system
should be at the
endpoints
16
17. Widespread copying
threatens to destroy
the business models of
the [music / film /
software] industry.
Major lawsuits against
tools/platforms that
facilitate copying:
Napster, Grokster,
YouTube
DMCA 512 provisions
Congress is generally
sympathetic ($$$)
17
19. What if networks facilitate “amateur” authorship?
Creators Creators
product payment
Industry Professionals
Industry Professionals
product payment
Consumers / Creators
“Prosumers”?
Consumers
Piracy
Sharing
19
20. What if networks facilitate “amateur” authorship?
Creators
Industry Professionals
Consumers / Creators
“Prosumers”?
Sharing
20
21. What if networks facilitate “amateur” authorship?
Creators
Industry Professionals
Consumers / Creators
“Prosumers”?
Sharing
21
22. Are there no implications?
Is non-commercial copyright
production legally insignificant?
Creators
What does this say about the
authorial incentive theory?
Do the implications turn on
issues of quality? Industry Professionals
Do the implications turn on
issues of collective coordination?
What does this say about the
complexity of copyright law?
Does it matter that amateurs do
not seem to understand copyright
law? Consumers / Creators
“Prosumers”?
What about technology?
Sharing
22
23. Creators
product payment
Industry Professionals
product payment
Consumers
Piracy
25. A fan website with multiple
authors collects encyclopedic
details about the Harry Potter
series.
The Harry Potter Lexicon
http://www.hp-lexicon.org
Formerly praised by J.K.
Rowling as a valuable resource
Lawsuit by Rowling claims
copyright infringement
District court determines this is
not fair use
Subsequently rewritten to
conform to court’s standard
Not Fair Use
25
26. Lenz uploads a video of her
toddler dancing to a Prince
song on the YouTube
UMG removes the video from
YouTube via the DMCA notice &
takedown provisions
Lenz countersues claiming that
fair use clearly permits her to
post the video, hence the Clearly Fair Use
notice was in bad faith.
Following a motion to dismiss,
the court allows the claim to
proceed.
Who controls the shape of
online tools?
26
27. Fairey presents himself as
a rebel “street artist”
He often appropriates
images for his work
Found and changed a
photo of Obama via a
Google search
Iconic poster distributed
“virally” over the Web
Fair Use?
Original photograph used
by Fairey ascertained by
bloggers (originally denied
by Fairey)
27
29. The Public Web
• Optimal for maximum distribution of information
• Vulnerable to commercialization
• Small players dependent on search
• Major commercial winner: Google
The Semi-Public Platform (Predominant)
• Often provides better tools (e.g. for blogs, photos)
• Technology is opaque to users
• Applications often push to become “sticky”
• Major commercial winner: Facebook*
The Walled Garden
• Popular model during the 1980’s
• Subscription barrier to entry
• Must provide some additional value
• Major commercial winner: World of Warcraft
29
30. Google, Facebook, World
of Warcraft, and Web
2.0 businesses see user
copyright as a potential
liability, not a source of
revenue
Cf. radio broadcasters in
1941 – except that
copyright is in the hands
of the multitudes
If the logic of the
Stationers’ Company
controls, where does
this point for the future
evolution of copyright?
31. Answer: “solve” the copyright
dilemma via contract
If users can be bound to
surrender copyright interest in
exchange for platform/tool
access, user copyright
interests will not threaten
revenue models.
Ironically, this licensing
“solution” is a close relative to
FSF, Wikipedia, Creative
Commons, etc.
But it deflates the scope of
the authorial interest for
business (not altruistic)
reasons
34. City of Heroes =
Marvel =
Toolmaker/
Copyright owner,
Hosting
potential
Platform/
exploiter
Proprietor
Player =
infringers
34
35. The users are charged
with direct copyright
infringement.
The users pay to
access City of Heroes
and have assigned
their authorial
interests by contract.
The lawsuit is brought
against the toolmaker/
platform, using
copyright to constrain
the power of
technological tools.
35
37. In a world where
authorship powers
are now widely
distributed,
copyright law
should look at:
1. Attribution rights
2. Notice
requirements
3. Shorter terms
4. Clear, short,
“bright line” rules
5. Funding the
commons
37
