Secondary Infringement

As I noted in my extended essay, there is an unfortunate bit of sloppy rhetoric in Justice Souter's Grokster opinion that confuses matters. The person who actually copies a work is a direct infringer; this has been the usage for nearly a century. Justice Souter termed those with contributory and vicarious liability—which, together, cover the scope of "inducement to infringe"—as collectively secondary infringers. Notice that, both semantically and grammatically, "secondary" is not parallel to "direct." Instead, Justice Souter should have called the construct indirect infringement, and left the primary/secondary distinction for another critical distinction: whole work v. excerpt. That would leave us with a classification of infringements looking something like this:

	Direct Infringer	Indirect Infringer
Primary Infringer	Actual copier of whole work	Contributory, vicarious, or inducement of copying of whole work
Secondary Infringer	Actual copier of part of a work, or creation of a derivative	Contributory, vicarious, or inducement of copying of partial work or creation of a derivative

Thus, a given infringement (or infringer) is in two dimensions, not just one:

• A pirate who copies an entire song is a direct primary infringer
• A linking system or software repository of that entire song is an indirect primary infringer
• A pirate who copies part of a song to create a downloadable ringtone for a cellphone is a direct secondary infringer
• A film that includes that ringtone as natural background in a scene is an indirect secondary infringer

Ah. There's the point. Right?

Sort of. The real bottom line here is one of rhetoric and business, not of copyright. An article in today's NYT on the difficulties faced by documentarians for purely background material is rather illuminating:

Perfect, but a problem. Had the ringtone been a common telephone ring, the scene could have dropped into the final edit without a hitch, the moment providing a quick bit of emotional texture to the film. But EMI Music Publishing, which owns the rights to "Gonna Fly Now," was asking the first-time producer for $10,000 to use those six seconds. Ms. Sewell considered relying on fair use, the aspect of copyright law that allows the unlicensed use of material when the public benefit significantly outweighs the costs or losses to the copyright owner. But her lawyer advised against it. "I'm a real Norma Rae-type personality," Ms. Sewell said, "but the lawyer said, 'Honestly, for your first film, you don't have enough money to fight the music industry.' " After four months of negotiating — "I begged and begged," Ms. Sewell said — she ended up paying EMI $2,500. (Total music clearance costs for "Mad Hot Ballroom," which featured songs of Frank Sinatra and Peggy Lee, came to $170,000; total costs over all were about $500,000.)

Nancy Ramsey, "The Hidden Cost of Documentaries" (16 Oct 2005) (emphasis added; paragraphing removed for clarity). Under the rubric I've described above, Ms. Sewell would be an indirect secondary infringer (absent some other defense, such as fair use or a license).

Of course, the real problem here is not copyright; it is the business methods underlying the clearance problems. There are really two distinct problems, and solving one would leave the other untouched. First, there is the problem of the attitude of the clearing organizations and businesses. Having done some of these clearances before myself, my sympathies are entirely with Ms. Sewell. Neither the organizational cultures—whether ASCAP, BMI, or individual publishers, let alone the reprehensible "Harry Fox Agency"¹—nor the individuals involved understand anything about copyright or business relationships other than "gimme." Frequently, the only work done at those clearing organizations is the mechanical lookup to see if a work is controlled followed by a formula demand that does not consider the actual scope of the use. None of this is to say that clearances would necessarily be better if there were more entrants in the clearing organization market, as that runs into the limited monopoly that copyright itself creates. Sadly, Ms. Ramsey's article selected the easiest case: music. Had she delved into the problems with Corbis, Getty, et al., the examples would have been worse.²

The other problem, though, is certainly not the clearing organizations' fault: It is Hollywood accounting. Nobody trusts it, with good reason. Because nobody trusts the accounting at the back end, the clearing organizations have been forced to employ the one-time clearance fee as their only means of ensuring compensation. The print-publishing model of an advance against per-copy-sold royalties would be of great advantage to both sides, but depends upon accurate accounting. Of course, this doesn't even work particularly well in the publishing industry, which has its own accounting problems…

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1. Which, if it was truly an "agency," would be obligated to protect and advance the interests of its clients—songwriters—and not the "licensing" behemoth of which it is a wholly owned subsidiary.
2. For one thing, photography stock houses continue to press copyright licenses for public-domain works; they have successfully evaded having Bridgeman extended beyond that case through litigation tactics, not through substantive justification. For another, many photographs in the middle of the twentieth century were grabbed as works for hire contrary to the text of both the 1909 and 1976 Copyright Acts, but never challenged while the paperwork might possibly have existed to support the challenge.