Policy Blog Entries by Christopher Sprigman

It’s after midnight here in Charlottesville, Virginia, but I’m wide awake — happily — because I have some truly great news to report. The 10th Circuit just handed down its ruling in the appeal of Golan v. Gonzales. And I am happy to tell you that the First Amendment lives! (at least in the 10th Circuit).

Some sad news to report: the 9th Circuit has rejected constitutional challenges to the copyright laws in Kahle v. Gonzales. The opinion is here. Sad, yes, but also positively maddening, for reasons I will explain shortly.

First, a bit of background: Plaintiffs in this case — the Internet Archive and its Chairman, Brewster Kahle, and the Prelinger Film Archive and its President, Richard Prelinger — filed suit seeking a declaratory judgment that Congress violated the Constitution when it removed our traditional system of formalities from the copyright law. Formalities? Let me explain …

From the first U.S. copyright statute in 1790 until the Copyright Act of 1976, the U.S. had an “opt-in” copyright system that limited copyright protection to those who took affirmative steps to claim it — by, for example, registering their copyright, marking copies of their work with copyright notice, and renewing their copyright after a relatively short initial period of protection.

Hello all. Here’s a puzzle: Most music downloads are priced the same — around $0.99. That doesn’t make much sense. Different songs are … different, not least in terms of popularity. So if consumer demand for Song A is much greater than for Song B, why are both priced at $0.99? Why are the hits priced the same as the dross?

(Yes, I know about subscription services, and the limited number of both lower-priced and “premium” downloads. But for the most part, downloads are consumed a la carte and are uniformly priced around a $0.99 standard. And the explanation can’t just be because Apple wants it that way, because variable pricing, by more closely tracking demand, would benefit Apple as well as the record labels).

I have a paper coming out — The 99-cent Question — that offers an explanation. But before the paper hits the street I’d be interested in hearing yours. Why do we see hits and non-hits priced at the same $0.99 standard?

For my third proposed Intellectual Property Responsibility, I turn again to the world of copyright. I want to highlight the problem of CopyFraud, which is described in a recent article of that name by Jason Mazzone, an Assistant Professor at the Brooklyn Law School. The most common instance of CopyFraud involves people and firms falsely claiming copyright in public domain materials. Says Professor Mazzone:

Copyfraud is everywhere. False copyright notices appear on modern reprints of Shakespeare’s plays, Beethoven’s piano scores, greeting card versions of Monet’s *Water Lillies*, and even the U.S. Constitution. Archives claim blanket copyrights in everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation for producing a work without the “owners’s” permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.

As Professor Mazzone notes, U.S. copyright law provides no civil penalties for CopyFraud, and criminal prosecutions, while theoretically available, aren’t brought (apparently the FBI is too busy chasing down DVD pirates to worry about abuse of the IP system by owners).

So I propose Intellectual Property Responsibility #3 — IP owners shall not claim ownership in public domain materials. And I think the copyright law should be amended to enforce this responsibility with a stinging civil penalty (less punishing, of course, for inadvertant misrepresentations).

Here’s my second suggestion for an Intellectual Property Responsibility: IP owners shouldn’t try to use their copyright and trademark rights to stifle criticism of their product. A good example is the unfolding saga of Barney the Dinosaur.

Barney, as you probably know, is that tubby, purple PBS dinosaur who loves everybody. Some kids find him charming; most adults find him annoying. Some adults go somewhat further in their dislike. One is Stuart Frankel, who maintains a website arguing that Barney is the source of all evil. Here’s a sample of Mr. Frankel’s work:

All in good fun. But not apparently to Lyons Partners, a firm which owns the IP rights in the Barney character. Lawyers acting for Lyons Partners fired off a bunch of cease and desist letters to web sites critical of Barney, including Mr. Frankel’s. “It is unlawful…to use this property without the permission of Lyons Partnership,” the lawyers wrote. “These materials must be immediately removed.”

That ain’t right. The fair use doctrine gives wide latitude toward parodic uses of copyrighted works, and Frankel’s use is certainly parodic. As for trademark law, there is no likelihood that Frankel’s parodic use of the Barney character would cause consumers to mistakenly believe that the “real” Barney character was involved. And in any event, it turns out that Barney has priors. In 1999, the Fifth Circuit threw out trademark claims made against The Famous Chicken, a sports mascot who had taken to beating up a Barney-like character at baseball games. The opinion deserves to be read in full, but here’s an excerpt (internal citations removed):

This case involves a dispute over the use of the likeness of “Barney,” a children’s character who appears in a number of products marketed to children. Barney, a six-foot tall purple “tyrannosaurus rex,” entertains and educates young children. His awkward and lovable behavior, good-natured disposition, and renditions of songs like “I love you, you love me,” have warmed the hearts and captured the imaginations of children across the United States. According to Lyons, the owner of the intellectual property rights for Barney and the plaintiff in the suit below, the defendants—Giannoulas d/b/a The Famous Chicken and TFC, Inc. (“TFC”), the owner of the intellectual property rights to the Chicken—sought to manipulate Barney’s wholesome image to accomplish their own nefarious ends.

The Chicken, a sports mascot conceived of and played by Giannoulas, targets a more grown-up audience. While the Chicken does sell marketing merchandise, it is always sold either by direct order or in conjunction with one of the Chicken’s appearances. Thus, the Chicken’s principal means of income could, perhaps loosely, be referred to as “performance art.” Catering to the tastes of adults attending sporting events, most notably baseball games, the Chicken is renowned for his hard hitting satire. Fictional characters, celebrities, ball players, and, yes, even umpires, are all targets for the Chicken’s levity. Hardly anything is sacred.

And so, perhaps inevitably, the Chicken’s beady glare came to rest on that lovable and carefree icon of childhood, Barney. Lyons argues that the Chicken’s motivation was purely mercenary. Seeing the opportunity to hitch his wagon to a star, the Chicken incorporated a Barney look-alike into his acts. The character, a person dressed in a costume (sold with the title “Duffy the Dragon”) that had a remarkable likeness to Barney’s appearance, would appear next to the Chicken in an extended performance during which the Chicken would flip, slap, tackle, trample, and generally assault the Barney look-alike.

The results, according to Lyons, were profound. Lyons regales us with tales of children observing the performance who honestly believed that the real Barney was being assaulted. In one poignant account related by Lyons, a parent describes how the spectacle brought his two-year-old child to tears. In fact, we are told, only after several days of solace was the child able to relate the horror of what she had observed in her own words—“Chicken step on Barney”—without crying. After receiving such complaints from irate parents who attended the Chicken’s performances with their children, Lyons sought to defend this assault on their bastion of child-like goodness and naiveté.

Giannoulas offers a slightly different perspective on what happened. True, he argues, Barney, depicted with his large, rounded body, never changing grin, giddy chuckles, and exclamations like “Super-dee-Dooper!,” may represent a simplistic ideal of goodness. Giannoulas, however, also considers Barney to be a symbol of what is wrong with our society—an homage, if you will, to all the inane, banal platitudes that we readily accept and thrust unthinkingly upon our children. Apparently, he is not alone in criticizing society’s acceptance of a children’s icon with such insipid and corny qualities. Quoting from an article in The New Yorker , he argues that at least some perceive Barney as a “pot-bellied,” “sloppily fat” dinosaur who “giggle[s] compulsively in a tone of unequaled feeblemindedness” and “jiggles his lumpish body like an overripe eggplant.” […]

Perhaps the most insightful criticism regarding Barney is that his shows do not assist children in learning to deal with negative feelings and emotions. As one commentator puts it, the real danger from Barney is “denial: the refusal to recognize the existence of unpleasant realities. For along with his steady diet of giggles and unconditional love, Barney offers our children a one-dimensional world where everyone must be happy and everything must be resolved right away.”

Giannoulas claims that, through careful use of parody, he sought to highlight the differences between Barney and the Chicken. Giannoulas was not merely profiting from the spectacle of a Barney look-alike making an appearance in his show. Instead, he was engaged in a sophisticated critique of society’s acceptance of this ubiquitous and insipid creature. Furthermore, Giannoulas argues that he performed the sketch only at evening sporting events.

The sketch would begin with the Chicken disco dancing. The Barney character would join the Chicken on the field and dance too, but in an ungainly manner that mimicked the real Barney’s dance. The Chicken would then indicate that Barney should try to follow the Chicken’s dance steps (albeit, by slapping the bewildered dinosaur across the face). At this point, Barney would break character and out-dance the Chicken, to the crowd’s surprise. The Chicken would then resort to violence, tackling Barney and generally assaulting Barney. Barney would ultimately submit to the Chicken and they would walk off the field apparently friends, only for the Chicken to play one last gag on the back-in-character naive and trusting Barney. The Chicken would flip Barney over a nearby obstacle, such as a railing.

Sounds fun! In any event, Lyons’ lawsuit got nowhere, but that didn’t stop them from sending out nasty letters ordering Frankel and other parodists to cease and desist. But now they may be hoisted on their own chutzpah (does that make sense?). The Electronic Frontier Foundation and the very able Akin, Gump IP lawyer Elizabeth Rader (my former colleague at Stanford Law School’s Center for Internet and Society) have filed a complaint against Lyons in federal court in New York. The complaint asks the court to declare that Lyon’s IP claims are groundless.

That’s a good first step. But here’s another. How about we establish as Intellectual Property Responsibility #2 that IP owners refrain from sending meritless cease and desist letters in a bid to squelch criticism of their product — here, the Barney character. We live in an open society with a First Amendment, and IP law shouldn’t interfere with our ability to make social criticisms.

So how about it? Can we agree just to let people talk about Barney? It’s not as if any of these parodists are competing with Barney. If they succeed in turning people off the character, it’s because they will convince people that he’s loathsome. That’s fair, right?

We hear all the time about intellectual property rights — what they are, how they are violated, how we should respect them, how creativity and innovation are going to suffer if we don’t.

Fair enough. But I want to talk not just about intellectual property rights, but about intellectual property responsibilities. By which I mean the things that IP owners should be prepared (or required) to do in return for those valuable rights that the law grants them and that we’re encouraged to respect.

So I’m going to do a series of posts proposing some Intellectual Property Responsibilities. And I would be grateful for your help — if you have a suggestion for something you think IP owners should do, or should be required to do, make it!

Here’s my first, and it pertains to copyrights. From the first U.S. copyright statute in 1790, to the copyright revision of 1909, all authors were required to register (i.e., provide ownership and contact information) in order to receive a copyright. After 1909 the registration requirement was softened somewhat (it was tied to a separate requirement that copyright owners deposit a copy of their work with the Library of Congress, and noncompliance was punished by a fine, rather than, as previously, via forfeiture of copyright) but registration remained a responsiblity of the copyright owner all the way up to 1978. Similarly, copyright owners were required to re-register, or renew, their copyrights at a point fairly early in the copyright term (for most of our history, at the 28-year mark). Failure to renew would end the copyright, and send the work to the public domain.

Contrast this nearly 200 year history with what we have now. Now, copyright arises automatically and indiscriminately whenever an author fixes creative expression in a tangible medium. Put into plain English, if you and I sit down for a beer, and I sketch you on a cocktail napkin, I have a copyright the moment I lift my pen. Automatically. Whether I register the work or not. And the copyright lasts until and die, and then for 70 years thereafter.

Why is this important? In 2004 I published an article in the Stanford Law Review, Reform(aliz)ing Copyright, arguing that our former system of copyright formalities — a set of Intellectual Property Responsibilities that included registration and renewal — did a good job of focusing copyright on the type of valuable commercial works that the system of law exists to protect, while leaving all other works — like my cocktail napkin sketch — unregulated. In our Internet age, registration is even more important, because it allows anyone who wishes to use a copyrighted work to find out who to contact in order to ask permission and, if necessary, negotiate a license. Respect for copyright owners’ rights, in other words, suggests that copyright owners should fulfull their responsibility to register their works.

So, Intellectual Property Responsibility #1: Copyright owners should register their works.

The copyright law currently provides for a voluntary registry. Responsible copyright owners should use it, at least for works they intend to market. And I believe we should think about re-introducing mandatory registration. In my Stanford article, I sketch out a way we can do this without running afoul of our obligations under the Berne Convention, which is the international treaty governing copyright relations. Suffice to say that my ideas about mandatory registration have sparked opposition from some authors, who apparently feel that intellectual property is all about their rights and others’ responsibilities.

What do you think?

So yesterday the RIAA released a “scared-straight” film aimed at illegal filing sharing by college students. Download that O.A.R. tune, the RIAA says, and we’ll throw you in jail, have you drummed out of school, and generally ruin your life. I swear that I’m reporting this straight; it’s hard to convey the sense in which the RIAA’s film manages to both patronize and fear-monger, often in the same sentence. The Electronic Frontier Foundation’s Jason Schultz manfully gives it a try.

In a coincidence of cosmic proportions, yesterday Weird Al Yankovic resurfaced with what to me may be his magnum opus, “Don’t Download This Song”. My favorite line: Cause you start out stealing songs/then you’re robbing liquor stores/and selling crack/and running over schoolkids with your car.

Downloading as a gateway drug. Hysterical (in both senses of the word).

Here are some pics of driving shoes. First, the original Tod shoe:

Now, some “copies” from Bacco Bucci, Minnetonka, Ecco, E.T. Wright, and Ralph Lauren …

Notice that these shoes are all similar (moccasin style, sole that runs up the back) but they are also all different. The Minnetonka shoe is a kind of backwoods version — maybe we could call it a snowmobile driving shoe. Relatedly, the Ralph Lauren shoe seems to be aimed at the owners of large cigarette boats. In fact, I think the shoe would fulfill its purpose better if Lauren had applied a large glittery gold “$” to each toebox. The important point is that all these shoes are variations on a particular design theme, which was originated by Diego Della Valle of the Tod firm.

If you read my previous “Piracy Paradox” post, you know that copyright law doesn’t apply to most fashion designs, including these driving shoes. But what if it did? Would the Bacco Bucci, Minnetonka, Ecco, E.T. Wright and Ralph Lauren shoes be judged to infringe the Tod original?

I think they probably would. Copyright law gives to copyright owners the right to prohibit not only verbatim copying, but also the production of any work that is “substantially similar” to the preexisting copyrighted work. What is the major design element in the driving shoe? The sole that climbs the back of the shoe. Appropriate that, and mix it with the other elements of the shoe’s design (i.e., the moccasin-style upper portion) and you create a shoe similar enough to very likely land you in copyright trouble.

Which is a great example of why copyright law and fashion do not — and should not — mix. The driving shoe was a trend in mens’ shoes in spring 2005. In May of 2005 I went shopping at a Nordstrom in Paramus, NJ. In that Nordstrom I saw a table containing at least a couple of dozen driving shoes, all set out in a nice circle around the perimeter of the table. The fashion industry and the retailer were trying to send me a message. What was it? That at the moment driving shoes were “in the mode”, and that I might wish to pick one from among all the variations that suited my tastes and my wallet.

I bought the Eccos. They are a bit dowdier than the Bacco Buccis, but cheaper and more comfortable. Suitable for an academic.

If copyright law governed the fashion industry, would I have seen that table of driving shoes? It’s hard to definitively address a counterfactual, but my suspicion is the thriving fashion industry we see now depends on the absence of copyright. Copyright’s presence would, in my view, hurt not help.

That brings me again to H.R. 5055, a bill currently pending in Congress that would extend copyright to cover fashion designs. For all the reasons I’ve explained here, and that I lay out at greater length in a paper I’ve written with my friend and colleague Kal Raustiala, H.R. 5055 is misguided. The fashion industry’s designs have never been covered by U.S. copyright, and the industry is doing great. Let’s keep it that way.

Shoppers of the world, unite!

Bob Dylan is a provocateur, a habitual obfuscator, and a bit of a crank. That said, he’s also that rare and precious thing, a genuine artistic giant. His music will endure. And that makes his comments on illegal downloading, reported just now, particularly noteworthy. Asked whether he approved of illegal downloading, Dylan cut to the chase: “Well, why not? It ain’t worth nothing anyway.”

The article I’ve linked is a selective reporting of Dylan’s comments — I would love to see a transcript. But judging from the statements reported, Dylan isn’t making some dumb old man argument about the quality of today’s music. Rather, he’s complaining about the quality of today’s recordings — that is, the sound quality, the audio fidelity, of the music laid down on CDs and downloads.

To which all I can reply is thank you thank you thank you thank you thank you for noticing what should be obvious. CDs are an ancient (approx. 25 yrs.) digital technology, and recordings reduced to the CD standard, devised at a time when processing power was expensive, often sound dead, airless, flat. Dylan notes this in his comments, stating that the songs on his latest album “probably sounded ten times better in the studio when we recorded ‘em. CDs are small. There’s no stature to it.”

Well, so much for CDs. So along come downloads and what happens? Sound quality goes down! The bitrate at which most downloads are encoded provides near-CD-quality sound, which is a bit like eating “near-canned-quality peas”.

Why does this matter? Because it points to one of the ways in which the music industry is partially responsible for its own piracy problem. I’m sure there is demand out there for higher quality audio. Does the industry scramble to provide it? No. The industry didn’t exactly rush to support the DVD-audio and SACD standards by releasing recordings in those higher-fidelity formats, and perhaps that’s understandable given the rate at which consumers are moving away from physical media in favor of downloads. But why doesn’t the industry get behind higher-quality downloads? In a competitive market, record labels should be competing on both price and product quality — a dimension that includes audio fidelity.

Oh, wait a minute …

The typical explanation for intellectual property law goes something like this: Creating new books, films, drugs, songs, etc. is expensive, but once the nifty new thing is produced, copying is cheap (or, in the case of copying done over the Internet, free). Unrestrained copying robs creators of the means to profit from their works — the copyist can always outcompete the originator. So we need IP protections to make sure that the original author or inventor has control over copying. This way, authors and inventors will be properly motivated to create.