Scrapping Fair Use

Judge Kozinski's lecture was called "What's So Fair About Fair Use?" He proposed a solution to the problem of the Fair Use doctrine. For you non-law nerds, here's a simple example: JK Rowling wrote the Harry Potter books, created all of the characters, settings, plots, etc. If I come along and write a HP sequel and start selling it for money, Rowling has a claim against me for infringement. The court would go through a complicated weighing and balancing test, and then decide if my sequel was "fair use" or not. If it is, Rowling gets nothing. If not, then the court can enjoin me from selling my book, and order that all copies in existence be destroyed. There's no in-between; either something is fair use or it isn't. That's the problem that Kozinski wants addressed.

He outlined a scheme in which a person could not get an injunction to stop the publication of derivative works; but rather could either sue for damages (to the copyright) or for disgorgement of a royalty (percentage of the profits). He bases his proposal on the notion that the Constitution says copyrights are specifically for the purpose of advancing science, art, etc. and that allowing copyright holders to sit on their rights for life + 80 years (the current term) undermines that charge. 

It's a good idea, and a good scheme. Kozinski was pretty adamant that he thinks most copyright holders are "control freaks" who think of their creations as their babies; and he thinks we should remove copyright from the realm of the emotional and put it into a strictly business sense – in other words, the interests of the advancement of science, art, and culture is more important than an individual's right to create something and retain control over that creation. He did point out that if you created something and didn't release it to the public, it could remain yours forever. But once people put their creations into the public domain and make money from them, then they are subject to be built upon by anyone who comes along. He thinks that others may often be able to exploit the creator's work better than the creator, who is too close to the creation to necessarily make the best use of it. 

He got into a complicated comparison to property and takings law; but pointed out that the huge difference is that one piece of property cannot be exploited by many people for all different uses in the same sense that intellectual property can. For instance, I can't keep my family home on a piece of land and still let Donald Trump build a casino there. But there can be a Harry Potter Nintendo game, Harry Potter lunchboxes, and Harry Potter books all at the same time, and none take away from the other.

An audience member questioned the judge about oversaturation; and I think this is the only serious problem with his idea. He stated that it seems instinctually true that oversaturation would be a problem, but that he hadn't seen any empirical evidence of it and thus wasn't convinced it was truly a problem. He used Don Quixote as an example and thus avoided the point: when Cervantes put out the first Don Quixote, it was enormously popular and many people started writing their own sequels. (This was before copyright law.) So Cervantes stepped up his planned schedule (had been two years) to write the second part, and did it in something like eight months. And then he died the next week. The moral, according to the judge, is that we wouldn't have had Don Quixote if he hadn't had the pressure of all the derivatives to make him write faster.

But I think the judge missed the point. Anyone who has seen something they enjoyed get marketed beyond all reason understands that oversaturation IS a problem. Hell, it happens just with songs on the radio. But on the other hand, the judge didn't point out what I think is the main reason why creators shouldn't be able to sit on their work: They didn't come up with it out of thin air. Kozinski mentioned the idea of something he called "shared cultural experience." That's just it. There's nothing new under the sun; the creator built on someone else's creativity, but can now keep other people from doing the same? It is fundamentally unfair.

Anyway, I thought his proposal was interesting, and as he pointed out, would only apply to derivative works. (Not, for instance, piracy, which is straight-up copying of someone else's work.) It was a good experience, they had good pastry available afterwards -- all in all, one of the best parts about being in law school.

Comments

[nathan]

The problem of oversaturation is mostly a myth. The frustration you're talking about is actually the result of "overadvertising" of mainstream products and entertainment on radio, tv, movie screens, billboards, etc...

When people consume the entertainment that they want, on their own terms, it's different. That's why people tend to listen to the same songs, watch the same movies, and read the same books, over and over. For example, lots of movies have been made about Jesus, the New Testament is public domain after all, and Mel Gibson still made a mint with The Passion.

If Harry Potter was public domain you'd see lots of derivative works, but work of low quality or work that didn't square with the essence of the Harry Potter "canon" would sell poorly and wouldn't do anything to diminish the original creator's work. I think protection of attribution is sufficient, so authors of derivative works would have to explicitly say "based on the works of J.K. Rowling" and that only Disney could label their products "Official Disney Merchandise".

I think limited copyright is a good thing (20 years maybe?) but that the current system is being gamed by rent-seeking content companies, to the detriment of both the public and independent creators.

[disney merchandise]

i am not sure what to think about this. Just a good read.

disney merchandise games toys