18 February 2006


One of the most frustrating aspects of dealing with intellectual property remains the patchwork quilt of differing (and all too often contradictory) legal, cultural, and business models. Leaving aside the frustration of overlap, contradiction, and insanity among attribution (trademark/trade dress, and sometimes unfair competition), invention (patent), and expression (copyright), we have serious choice-of-law, choice-of-culture, and choice-of-business-model problems that end up warping both policy and practice.

These problems are pretty obvious at the international level. The lion-hunting problem I referred to yesterday is just the tip of the iceberg. In that instance, a US-based copyright reuser got caught in the trap of a legal change in a nation whose own legal system was, to say the least, of dubious legitimacy for the entire period in question.

Where this gets really, really disturbing is in moving within the US. Europeans whine and moan about how hard they've got it, since the European Courts issue opinions in multiple languages and they've got, what, 20-odd different legal regimes now. Piffle. In the US, we have:

  • Fifty states, the District of Columbia, Puerto Rico, and several territories (like Guam);
  • Thirteen federal circuits;
  • Three competing, overlapping, incomplete sets of "uniform" and "model" laws, none of which have the actual force of law unless/until adopted in a given jurisdiction—and, when adopted, are almost always tweaked in that jurisdiction;
  • An explicit, overriding constitution;
  • Chevron deference, but not for all subjects or agencies; and
  • A mixture of elected and appointed judges, combined with a unique jury system

to keep things lively. And inconsistent. After all, the European courts don't agree to provide a definitive opinion on the basis of a "national courts split"! This is a major problem in copyright law today. Consider, for example, musical parodies. There are at least four logically inconsistent theories that hold in different parts of the country… and which part of the country will decide a given dispute can be manipulated shamelessly. Things are better in patent law because only one of the thirteen circuits deals with the Patent Act, and states are prohibited from doing so; but that's just better, because the Federal Circuit would still be required to construe a license agreement under the law of the relevant state.

Unfortunately, the problems don't stop with "disturbing." GooglePrint represents an effort to relocate publishing from New York to Nashville, and simultaneously pretend that there is no real difference. The Sixth Circuit's view of what constitutes "fair use" isn't completely incompatible with the Second Circuit's, but neither is it close enough to be called "congruent." Worse, the contract law that applies to book and magazine publication in New York is inconsistent with the contract law that applies to music and recordings of music in Nashville. As awful as these problems are, though—and they are by themselves sufficient to justify federalizing the entire mess and assigning it to a fourteenth circuit, or perhaps expanding the Federal Circuit's role from patents to all § 8 cl. 8 matters1—there is something much more insidious underlying the controversy: the incompatible business models.

  • Publishing, or at least book publishing, is virtually always on a piece-work basis. That is, the contracts are between an author and a publisher, but concern specific works, and specific works only. Further, there is no "standard" contract; instead, there is a division of rights based upon the nature of the work and the power relationships between the author and publisher, which vary widely.
  • Music, however, is virtually always on a personal-services basis. That is, the contracts are between a musician/composer and a publisher/producer/distributor, and require assignment of rights in that musician/composer's output for a specific period of time—all of it. There are "standard" contracts that only the most powerful and well-established musicians can change, and seldom by that much; composers are SOL. Rights are not divided between the musician/composer and publisher/producer/distributor, but essentially transferred virtually in their entirety to the latter. Finally, and most damagingly, music is subject to the compulsory license and mechanical reproduction provisions in the Copyright Act, while prose is not.2

GooglePrint unfortunately illuminates this distinction, because the underlying assumption Google (and its amorphous set of allies) has made is that at most one needs to go to the publishers to get permission for reproduction, whether that is opt-in or opt-out. That is, it is imposing the Nashville model of "publishing" on the existing contracts and copyright law of print publishing found in New York. To say the least, I am not pleased with the disingenuousness3 of this unadmitted attempt to change the rules at halftime. Certainly, this is a more "economically efficient" method of getting around the permissions problem, and epitomizes application of the fifth fair-use factor. It is not, however, the law; it is only a replication of the business model in Nashville, which in the face of Tasini cannot stand against a less-than-whole grant of rights.4

  1. Which is not to say that a single circuit would get everything right; just that there would be considerable value in consistency, if only the value of having a clear and definitive position against which to argue!
  2. This leaves open the interesting question of what happens to lyrics. Deciding whether the compulsory/mechanical license allows one to make one's own recording of a set of lyrics written especially for a given song is hard enough, in the face of the poor drafting of both the statute and the legislative history. The interesting—or, at least, interesting to a nerd like me—question is whether any reproduction privilege would extend to lyrics incorporated into a song that preexist the song. Consider, for example, a song that sets Howard Nemerov's "The Murder of William Remington" (see Howard Nemerov, The Collected Poems of Howard Nemerov 178 (1977)) to music, with an appropriate license from Professor Nemerov's estate. Would that then allow a third party to reproduce the poem as part of a "reproduction" of the music, without first obtaining its own license from the Professor's estate?
  3. It's early and it's pre-caffeine, so I'm being excrutiatingly polite. If I were fully awake, probably the nicest thing that I'd have to say about this is that it is intellectually dishonest and inherently disrespectful of the creators and creations at issue, and I'd probably get much nastier from there. And yes, that goes for the IWTBF advocates who refuse to distinguish between "information" and "expression," too.
  4. I promise, there will be a much longer exegesis on SSRN Real Soon Now. Or is that a threat?

    Notice that I've managed to get through this entire discussion without once relying upon a definition of "property" for anything. If nothing else, that both undercuts the airplanes-over-the-cornfield problem, and demonstrates that that problem is—as implied by Professor Tushnet's thoughtful post—at most a sideshow.