Several of us are in Prof. Tony Reese's excellent class "Property and Contract Go High Tech." The gist of the course is that every week, a new speaker comes in and serves up his or her latest thinking in a three hour talk/seminar session. The papers have been uniformly great -- some published, some not.
Anyway, it's a shame that more people couldn't hear these. But there is something I can do about it. Attached inside this entry are my notes from last week's great talk by Joseph Liu, based on his article Copyright Law's Theory of the Consumer, 44 B.C. L. Rev. 397 (2003).
Prof. Liu's basic thesis is that copyright is too binary in its view of the consumer. Consumers are either viewed as incredibly passive, or incredibly active (i.e., they become authors themselves). He proposes that the goals of copyright would be better served by a more textured view that takes into accounts the various roles consumers take that aren't entirely passive, but are somewhat short of real authorship. A great read and a great talk. You can get the flavor of it in my notes. Disclaimer: the notes are mine as I took them in class, so any errors are probably mine and not Prof. Liu's.
- September 23, 2004 -- Joseph Liu: Copyright Law's Theory of the Consumer - Joseph Liu (BC Law School) - - Paper is an essay on different images of the consumer in U.S. © law An exploratory piece, not seeking definitive answers to things . . . more aimed at posing a series of questions - grew from an observation that little has been written about consumers Well-developed scholarship re authors - traditional view of the author - motivated by incentives / economic gain - recently, a critique of this Recognition of non-economic interests in copyright (moral rights). And a critique of the very notion of an author in an era of corporate/collective authorship. And po-mo critiques as to whether copyright romanticizes the idea of the author. - No theory of consumer - Copyright is for consumers' benefit The very notion of copyright is focused on consumers . . . but doesn't pay explicit attention to them. - Variation in statutory terms "Persons," "public," "owner" of copies, "transmission recipient." etc. - Technology angle -- changing the author/user balance - lots of attention paid to authors, still little paid to users Failure to articulate the different ways in which consumers are being affected is causing problems in modern copyright debate - Caveats - Use of "consumer" A loaded term, with connotations of passivity. "User" is somewhat more popular, and captures something different, but doesn't seem to quite fit. Part of the idea of this paper is to rehabilitate that term . . . but this may be a lost cause. - Q: suggest "player" . . . suggests more interactivity Never occurred to me. - Limited reach of paper Just suggesting a framework. This paper will not capture everything; consumer interests are very complicated. And observations about the implications of all this are really just a starting point. - Law and commentary uses two main images of the consumer - 1. passive consumer ("couch potato") Lends itself well to mass markets . . . passively taking in content that's provided to him. - shapes the modern reality of copyright markets Markets are very much dedicated to satisfying this passive consumer interest. And copyright law is very much aimed at providing conditions for a functioning market. - fair use has limited reach Under this view, there's not much need for fair use. And, if fair use starts to develop in a way that it threatens the incentive to produce, we'd have no problem protecting the incentive rather that growing fair use. - 2. active consumer -- consumer who actually becomes an author Literally, authors are consumers. No work is really new; modern works draw from earlier works. - robust doctrines balancing interests of authors Copyright expressly recognizes this in the privileges it offers authors, like the idea/expression doctrine. - These images anchor the ends of the spectrum, but don't exhaust the full range There are consumer interests that lie in the middle . . . more than passive, but not quite active - Additional consumer interests - 1. autonomy - freedom to decide when/where/how to consume When do you read a book? Listen to an album? Etc. - may seem trivial, but they are real Some degree of freedom in how we interact with information is necessary in order to really benefit from information. - physical copies handle this well When you buy a book, you have maximum flexibility. OTOH, other areas (like broadcast television) have less flexibility (technology is kind of changing this). - technology is shifting the balance More power, both to make works more malleable (increasing potential for autonomy) and less malleable (decreasing autonomy). - 2. communication and sharing Ability to communicate about works, interacting with other people w/r/t copyrighted works. Current technology and law clearly permit this. Things like the first sale doctrine and the private performance doctrine protect this. And we have maintained the balance in a way to avoid impacting incentives too much. - technology, again, is changing things Easier to copy . . . easier to contact people with whom to share copies. And this can cause problems -- see the Free Republic case - 3. self expression What we're talking about here are minimally-creative uses that fall short of full authorship - aside: why say "minimal"? What is meant here? Copyright law has a hard time with this. Minimal authorship can be enough to get a copyright . . . but what you're doing has to be fairly transformative in order to qualify for fair use. There's a disjunction here that needs to be explored. - we have a romantic vision of the author as creating something from nothing, but there is another category here People who create something out of something . . . our vision of copyright right now has a hard time with this. - presently, handled through fair use and practical limits on enforcement - technology is changing the balance It's simultaneously become easier to engage in this type of expression . . . and some copyright owners are exploiting this (video game level builders) . . . but at the same time there's a growing number of technological tools that can limit this kind of thing. Talking about encryption, DRM, etc. - Observations - copyright has traditionally recognized interests in more/medium active consumption, but digital technology is changing that - active consumer interests are important and should be considered They're not expressly recognized by copyright . . . but they make the system more efficient. - market may serve some of these interests in active consumption Particularly autonomy -- that's the kind of thing that the market can really get a handle on. If consumers value these interests, then copyright owners will be incentivized to provide them. There are reasons to be hopeful on this front -- but there are worries as well. - policymakers must be vigilant Market may fail to serve all such interests . . . particularly self-expression. It may be that the market can't or won't make that as easy as it could/should be. - courts should recognize more active consumer interests in fair use cases See TiVo and ReplayTV - lawmakers should consider a wider array of consumer interests - - DISCUSSION - Markets differ widely, as do consumer interests in each market . . . might need real market differentiation And policy differentiation within those markets - does that make the law too complex? Well, offloading this stuff all into the fair use doctrine is likely to have problems at least as bad. Plus, codification helps to clarify some of the things we really care about. - Dan Hunter - Amateur to Amateur A separate sphere of cultural activity? - Are these interests operating on a different timeline? The autonomy interest, for example, is relatively well-established. Markets and policymakers are relatively more willing to protect, say, the VCR at this time than they are ready to protect the self-expression interest (which still makes people pretty nervous). In a few years, maybe the self-expression interest will be more robust -- or maybe it will have been suppressed by - Transaction costs could prevent the market from moving in directions we care about? Take clearplay . . . even if the studios wanted to do this, we may be so far down the trail on our present copyright doctrine that clearing the rights for that kind of work would simply be impossible.
How close is Clearplay to the kind of self-expression
that we are concerned about here?