Pirates! And Even More Frightening, Polititians!

An interesting confluence of events brings us back to my new favorite question: can the rights of copyright owners survive in the era of BitTorrent? Stated even less elegantly, if “content yearns to be free” (which is some silly phrase I must’ve heard somewhere that, nonetheless, succinctly sums up this whole dichotomy between copyright owners and on-line content thieves), what is to become of that precious right held by the content creator to actually make money from his or her creations?

Slight digression: as some of you know, I am a cartoonist. I like to say “I was syndicated before I went to law school.” I like to say it because it’s true, and well it also sounds pretty cool when delivered in an off-hand way. Try it, you’ll see. It certainly beats “I worked at the Dairy Queen.” Try that one too and you’ll see what I mean. Suave, cool and artsy vs. solid, clear-cut loser. So where was I going with this? Only that, as a content creator, I understand the desire to make some dough off of your art. Don’t get me wrong, I’d give my stuff away – and have (and still kick myself for not giving it to the National Lampoon when they said, “We love it, but we’re out of money thanks to Sam Gross over paying for everything”) – but when it comes down to it, I’d much rather get paid. It’s like getting paid to eat ice cream. So the point that I’m taking way to long to make is that wrong, uncool and just plain wicked to deprive a creator of the right to profit from his or her creation by downing-loading, copying, “sharing” or stealing it off of, over or through the Web. If you disagree, just let me know when you wouldn’t mind my stopping by to take anything of your that I might like for free.

Ok, back to our program. . . . So the interesting confluence of events are: (1) the illegal copying by a California Congressional candidate of a Don Henley song (and his vehement assertion that he had a right to copy based on the First Amendment); (2) a ruling in the Pirate Bay case (involving a P2P site not entirely dissimilar to Napster) and the political fall out from that ruling; and (3) the technology on the horizon that will make all this copying even easier.

The Wacky Politician – I am generally distrustful of politicians. I suppose that I’m of the opinion that they are self-serving, disingenuous and a-moral until proven otherwise. That said, I am nonetheless constantly surprised by what scumbags some of these people are (although generally so very, very nice when you meet them in person). Enter Republican (it figures) candidate for the U.S. Senate, Charles DeVore. According to the former Eagles rock star, Don Henley (free association: I once saw them in concert), the Republican (it figures) used Henley's songs "The Boys of Summer" and "All She Wants to Do Is Dance" in two campaign videos without Henley’s authorization. Note to would-be Republican (it figures) Senator: that’s copyright infringement, bucko.

DeVore (Republican; it figures) responded by claiming he had a First Amendment right to use the work. Huh? What, does he think no one’s listening to him? Maybe that’s how the Republicans do it. (Another digression: is it just me, or does it seem like a lot of Republicans went to USC? And why do those people from USC think it’s something to be proud of? And why do they buy those flags and hang them from their house and act as if they’re – well, Republicans all the time?) Anyway, so Henley sues, and DeVore plans to counter-claim and – even better – now apparently intends to use Henley’s music as part of a parody song, which you will recall may then entitle him to a fair use defense. Maybe it’s just me, but I bet that was his lawyer’s idea and not DeVore’s (the Republican; it figures).

For those of you who don’t remember much about the fair use doctrine, it permits short quotations used “for purposes such as criticism, comment, news reporting, teaching … scholarship or research [are] not an infringement of copyright.” 17 U.S.C. § 107. Courts evaluate fair use by considering four factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of copying, and (4) the market effect. The most significant is the last one. If the copy lessens the demand for the original work, it’s difficult to claim fair use. On the other hand, if the copy is used strictly for purposes of parody, criticism, or news reporting, it’s more likely to be deemed “fair.”
The Pirate Bay Ruling -- The Pirate Bay is a Swedish website that indexes and tracks bittorrent (.torrent) files. Since its humble beginnings in 2003 (it was created by the Swedish anti-copyright organization Piratbyrån – translated “The Piracy Bureau”), it has been involved in a number of lawsuits as both plaintiff and defendant (although not at the same time). The L.A. Times described the site as "one of the world's largest facilitators of illegal downloading", and "the most visible member of a burgeoning international anti-copyright—or pro-piracy—movement". By the end of 2008, it claimed to have over 25 million unique peers, meaning users who upload torrent files which link to the copyrighted material. With success like that, it will come as no surprise that several days ago, it’s principals were found guilty of criminal copyright infringement and sentenced to one year in a Swedish prison. (Which I imagine is filled with furnishings from Ikea, and serves those spicy ginger cookies to the prisoners.)

Surprisingly, this ruling has caused mass demonstrations against the jailing of these “pirates,” and moreover, the has apparently caused many young Swedes to affiliate with ‘The Pirate Party', a new political party that supports free file sharing for non-commercial use. According to press reports I have read, support for the Pirate Party had now surpassed that of the Swedish Green Party. (Huh, here we are, back on politics.) I find this fascinating because it strongly suggests that those who so firmly believe that “content is yearning to be free” (even if – surprisingly -- the contents of their own homes does not), will seek such homeostasis through political change. And why not? If people so strongly believe that the content created by others should belong to all – and not to those who created it alone – let’s put this thing to a vote. We know how Charles DeVore would vote.

Technology On the Horizon – And now for the coup de grace: Bittorrent tracking sites such as the Pirate Bay are on the verge of obsolescence. The technology poised to overtake them includes applications such as the Tribler, which – unlike those bittorrent file sharing applications that need to be pointed at torrent tracking sites such as the Pirate Bay, conducts its searches over a network of fellow bittorent users, thereby avoiding the centralized tracking sites entirely. Moreover, with applications such as iPredator, downloading can happen anonymously, meaning that copyright owners and prosecutors will have an even more difficult time locating the infringement and the infringers. Chuck DeVore, party of one? Your table is ready.

One last note: We’ll be discussing the inconvenient mismatch between the real world of P2P file sharing and copyright jurisprudence at the next meeting of BC Edge, April 29, 2009 at 12 noon Pacific Time. If you’d like to opine on whether copyright owners can survive in an era of fast evolving, dynamic, disruptive innovation, and whether the fair use doctrine should apply to file sharing, just send me an email and I’ll respond with the call-in number and pass code. My email is jonathan.pink@bryancave.com.

Second Circuit Revisits Key Word Debate

Breaking News (if you consider it still “breaking” when in fact it occurred a couple of days ago).

The Second Circuit – the only court to firmly hold that key word advertising does not constitute trademark infringement – has overturned a lower court’s decision to dismiss Rescuecom Corp.’s trademark infringement claim against Google based on precisely such facts (e.g. selling the term Rescuecom as a keyword to Rescue’s competitors), and remanded the case for further proceedings. (Rescuecom Corp. v. Google Inc., case number 06-4881).

In making this ruling, the Second Circuit stated that, by selling the Rescuecom’s mark as a keyword to advertisers, Google’s conduct was likely to cause confusion, at least with respect to search-engine users who searched for Rescuecom’s trademark on Google. This, the Court found that Rescuecom had adequately alleged a Lanham Act claim. The Court however did not express any opinion as to whether Rescuecom could prevail on that claim.

You will recall, the Second Circuit previously ruled in 1-800 Contacts Inc. v. WhenU.com Inc. that WhenU’s triggered pop-up adds touting 1-800s competitors did not constitute trademark infringement because it was not a “use in commerce” as required under the Lanham Act. To a large degree, that case turned on the fact that WhenU did not use, display, or sell the 1-800 trademark to competitors. Here, however, Google is alleged to do all this and more.

We’ll see where this goes. It will be particularly interesting given the fact that the Second Circuit has been in the minority with respect to key word cases.

Another Opinion Copyright Ownership In the Era of BitTorrent

I recently wrote about an artist who tried to gather support for a national day of “dining and dashing” to promote what he considered to be the injustice copyright owners face in the era of BitTorrent. There is no doubt that there currently exists an inconvenient mismatch between the real word of P2P file sharing and copyright jurisprudence, and that this inevitably leads to the question: can copyright ownership survive in an era of fast evolving, dynamic, disruptive innovation and should it?

Now a new book tackles this very question. Entitled Against Monopoly, and written by two econ professors at Washington University, David K. Levine and Michele Boldrin argue that intellectual property rights may stifle – rather than encourage – innovation, claiming that competition requires some degree of imitation.

Maybe.

As I argued in my last post on this issue, Professors Levine and Boldrin would seem to agree that even with P2P file sharing, musicians for example have an ancillary ability to make money off of their work, for example by using their increased popularity (that comes from easy access – read no coast – to their music) to sell more concert tickets, tee-shirts, etc.

While I wouldn’t go as far as they by suggesting we abandon the Copyright Act (far from it), I do think it needs some revision in order to allow for the reality of easy access to material in the Digital Age. Maybe the solution is to levy significant taxes on file-sharing companies such as BitTorrent, and use those proceeds to the artists whose works fuel these P2P sites. OK, that sounds pretty unworkable, even as I write it. But then again, what’s your bright idea?