30 January 2016

Link Sausages Taking (Uncopyrightable) Selfies

Oops — the lens was covered by a flap of the phone case, so no selfie for the blawg. Darn.

The "Monkey Selfie" opinion discussed earlier (second sausage) has issued as a written order. It's a clear and short dismissal with leave to amend (the amendment period extends to 17 February, so this may not be over!). The written version of the opinion makes two subordinate points that I wish had been made more clearly.

First (but not first in order in the opinion), Judge Orrick notes that not everything about intellectual property — and, in particular, many lacunae in the various statutes — can or should be resolved by judges.

Naruto is not an “author” within the meaning of the Copyright Act. Next Friends argue that this result is “antithetical” to the “tremendous [public] interest in animal art.” Perhaps. But that is an argument that should be made to Congress and the President, not to me. The issue for me is whether Next Friends have demonstrated that the Copyright Act confers standing upon Naruto. In light of the plain language of the Copyright Act, past judicial interpretations of the Act’s authorship requirement, and guidance from the Copyright Office, they have not.

Naruto v. Slater, No. 2015–cv–04324 Doc. 45 (N.D. Cal. 28 Jan 2016) (PDF), slip op. at 6 (bracketed text in original, internal cross-reference omitted, emphasis added). This should bring another jurist's not-quite-lamentation on an obvious lacuna in the Copyright Act to mind:

The questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties. Indeed, the Supreme Court has held that "it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause's objectives." Eldred v. Ashcroft, 537 U.S. 186, 212 (2003); accord Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) ("[I]t is Congress that has been assigned the task of defining the scope of the limited monopoly that should be granted to authors or to inventors in order to give the public appropriate access to their work product."). In Sony, the Supreme Court noted that it was Congress's responsibility to adapt the copyright laws in response to changes in technology:

From its beginning, the law of copyright has developed in response to significant changes in technology. Indeed, it was the invention of a new form of copying equipment—the printing press—that gave rise to the original need for copyright protection. Repeatedly, as new developments have occurred in this country, it has been the Congress that has fashioned new rules that new technology made necessary.

464 U.S. at 430–31 (footnotes omitted).

Authors['] Guild v. Google, Inc., 770 F. Supp. 2d 666, 677–78 (S.D.N.Y. 2011) (Chin, J., now on Ct. of Appeals) (footnote and parallel citations omitted, hyperlinks supplied, paragraphing corrected).

Second, of particular note is Judge Orrick's specific discussion of the Act's "plain language" (although couched much more diplomatically than is this sentence):

The Copyright Act protects “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102(a). The “fixing” of the work in the tangible medium of expression must be done “by or under the authority of the author.” 17 U.S.C. § 101. The Copyright Act defines neither “works of authorship” nor “author.” The Ninth Circuit has observed that the Act “purposefully left ‘works of authorship’ undefined to provide for some flexibility.” Garcia v. Google, Inc., 786 F.3d 733, 741 (9th Cir. 2015).

Naruto, slip op. at 4 (hyperlinks supplied). Regrettably, this is post hoc rationalization of the worst kind; the twenty-year-long legislative history reflects not an intentional lacuna left for flexibility, but a dissonant combination of failure to consider "because it's obvious" and a profound failure to agree at the last moment — contrary to the conclusory statement appearing in the treatise lurking in the background.

Copyright policy, jurisprudence, etc. would all be better off if we would stop pretending that there's anything "plain" about the language of the Copyright Act of 1976, or its amendments. It just isn't; it's badly organized, and badly written at just about any level of inquiry appropriate. (The irony that this relates directly to a statute whose constitutional mandate is to advance the progress of the useful arts and sciences is a bit much for a foggy Saturday morning.) Consider, for example, the probably unconstitutional redefinition of "author" that even allows non-human persons a claim of authorship:

In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

17 U.S.C. § 201(b). The necessary internal cross-reference to the definition of "work made for hire" — which is not actually necessary but for that definition's disingenuously convoluted nature — is bad writing in itself, because it doesn't explicitly cite the source of the definition. Under no intellectually honest understanding of the phrase "plain language" does either § 201(b) or the definition buried in § 101 qualify as "plain". And that's before considering § 203, or § 512, or...

That is, making a claim that something is compelled by the "plain language" of the Copyright Act is all too often either (or even simultaneously) overly diplomatic or sarcasm of the highest order. Authors, composers, artists, reusers, distributors, rights-acquirers, and everyone else deserve better. Perhaps, however, given that it was the respective Judiciary Committees in Congress — most of whom were lawyers — involved, the result was inevitable.

This is not fine prose nor, by itself, terribly clear. It would appear to have been drafted by lawyers.

Bourke v. Dun & Bradstreet Corp., 159 F.3d 1032, 1037 (7th Cir. 1998). Remember: The creative impulse is institutionally discouraged in law; the highest aspiration of legal writing is to demonstrate that someone else has already said the exact same thing (with, at most, easily dismissed variances). And this is true for "civil law" systems, too, mainly with slight changes in the "someone else." The irony of this denigration of creativity making a statute regulating rights in, and purportedly encouraging, creativity almost impossible for creative people to understand is perhaps too obvious to be left implicit.

Naruto reaches the right result at a policy level — animals can't be "authors" — relying on dubious authority and ignoring some obvious implications. But that's the best one can expect given the nature of the available authority...