Re: Re: Re: Conde Nast vs. Blackmask (copyright infringement)

I'm not sure where our disagreement is, but it wouldn't be any fun if we couldn't find one.

At 2:45 PM -0400 4/13/06, Vance R. Koven wrote:
>There's much in John's analysis here that I think is problematic.
>
>First of all, to say that a copyright holder can sit on a copyright
>because it's a legal right is utterly circular. It's precisely the
>scope of the right that we're trying to figure out, and policy
>considerations are not irrelevant. God didn't give anybody a
>copyright; Congress did, and did so within a constitutional framework.
>All these things bear analysis, and if under some circumstances the
>constitutional framework (encouraging progress in arts and sciences,
>etc.) says that an excessive grant of monopoly to an IP holder is
>unwarranted, well then there you have it. I'm not taking sides in a
>particular argument over a particular state of facts, just pointing
>out that the phrase "legal right" doesn't trump anything.

The scope of the right, taking into account the policy considerations, was largely defined by Congress in sec. 106. I'll grant that the statute is trumped by the "constitutional framework," but I didn't hear Prof. Jamar offer a constitutional argument for compulsory license. I heard an equitable argument. My point was that the copyright holder doesn't need equity if he has sec. 106. It is the compulsory license that depends on the licensee's claim to equity. I can't think of a situation in which the legal right under the Act is trumped by equity, which usually stands in when there isn't a statute. You can't usually argue laches when there's a statute of limitations. And I don't care how much equity you pile on -- you're not going to trump the statutory term of a statutory copyright with an equitable claim of adverse possession. But my argument was not even that equity won't trump the statute. My argument was that the putative compulsory licensee doesn't have any equity on his side. All he has is a disputable public interest policy argument. The policy argument isn't irrelevant, but the licensee doesn't get to make policy and call it equity.

>Second, as to the Microsoft/Apple hypo, we fortunately have doctrines
>under antitrust law (well, we used to, when we had antitrust laws)
>that prohibit an IP owner from expanding the scope of its monopoly,
>narrowly construed. Thus, were Microsoft to stop publishing Word for
>Mac, apart from the benefit of encouraging other people to write
>better programs and have any hope of distributing them, if the intent
>or effect would be to enhance Microsoft's monopoly of operating
>systems, then that practice, regardless of whether it would otherwise
>be entitled to engage in it as a matter of copyright law, would be
>held an illegal abuse of copyright and Microsoft might be at risk of
>losing it.

I offered the Microsoft/Apple hypo because it brings the full weight of equity and all the policies underlying antitrust to bear behind Prof. Jamar's suggestion. My point was that it still won't get Apple a compulsory license under any equitable doctrine or antitrust theory I've ever heard of. If Microsoft announced tomorrow that they were dropping the Mac version of Word because 1) we don't see why we should sustain the competition; and 2) we have better use for the money, how would you frame the claim for a Sherman Act violation? Can Microsoft's unilateral decision (no combination, contract, or conspiracy) to abandon a product line support an antitrust claim? Even if a unilateral refusal to deal might be a Sherman Act violation, it presumes that the defendant is supplying the market and discriminating against the plaintiff. I have trouble getting my head around an antitrust claim where the alleged anti-competitive conduct is the unilateral withdrawal from a market -- a refusal to compete. I see the competitive consequences in the OS market -- that's why I chose the hypo -- but even if we revive the essential facilities doctrine, it doesn't require the defendant to run a second ski lift just for the plaintiff's customers.

>Third, to say that a compulsory license is an unwarranted impingement
>on a "right to silence" is an argument that proves too much. We
>already have compulsory licenses for sound recordings, and other
>countries have compulsory licenses for a variety of other things.

I thought of that and ducked the issue, figuring somebody smarter than me would bring it up if it undermined my argument. The compulsory license for sound recordings is easy -- the work has been released by the copyright holder for public performance, so the compulsory license doesn't run afoul of the right to remain silent. What I wondered about was the compulsory license that allows anyone to arrange, perform, record, and distribute a songwriter's song. What triggers the compulsory license to record a song? Does there have to be some kind of publication before the compulsory license is available? If I write a song and offer it to Lucinda Williams, can she record it under a compulsory license before it's ever been released by anyone else? If I walk into your office and find "Ode to the Common Law" on your desk, can I record and release it under a compulsory license without your authorization? I know you're entitled to credit on the liner notes, but what if you're mortified? Honest questions -- I don't know the answer.

John Noble

>In
>other countries, moral rights law permits an author who has even
>published something to withdraw it; but I think the other side of the
>coin is equally valid, under some conditions (I think the genius of
>the common law tradition is that context really does matter). Truly
>unpublished and unavailable work might well deserve the "right of
>silence" but this argument is undercut by the expropriation of
>common-law copyright by the '76 Act. All works protected by Federal
>copyright have to be subject to the overarching Federal constitutional
>policy on why copyright exists.

I'm not sure I understand this argument. If I license publication, I can limit the term, but I can't terminate the license in this country under a moral rights doctrine; and I can't ever do anything about the authorized copies on the remainder table at Books R Us. But if I've limited the license to a first edition and limited run, nothing in the 76 Act stands in the way of my refusal to authorize a second edition. I'm not looking to a "common law tradition" where "context really does matter." I'm leaning on the legal rights under the 76 Act, and the "overarching Federal constitutional policy" that recognizes a right to remain silent. If there is an "overarching Federal constitutional policy on why copyright exists" that might trump the legal rights under the Copyright Act, you're still stuck with the First Amendment right to remain silent, which trumps even the Commerce Clause, never mind the Copyright Clause.

>Talking about IP rights as rights is only to begin, and not to end,
>the discussion.

Isn't the end in the First Amendment? Equity, common law, the Copyright Act, and Art. I, sec. 8 aside, we're down to the First Amendment -- the right to speak vs. the right to remain silent. Art. I, sec. 8 urges, and the Copyright Act adopts, a resolution of that issue in favor of the right to remain silent. That might be misguided. After all, the freedom of the press is right there on the surface in plain English; you have to drill for the right to remain silent. But if there isn't a right to remain silent, it is not because the First Amendment or the Copyright Act are trumped by the common law doctrines of adverse possession or abandonment.

>Vance
>
>On 4/12/06, J. Noble <jfnbl[_at_]earthlink.com> wrote:
>>
>> At 6:45 PM -0400 4/11/06, Steven Jamar wrote:
>> It does seem that the public is not served in this (and similar) particular
>> instances of works not being exploited by the copyright holder and being
>> made available by others and then the copyright holder taking the work out
>> of circulation again.
>>
>>
>> I wonder, could we find a sort of "compulsory equitable license" for this
>> sort of situation which would then be withdrawn upon the copyright holder
>> demonstrating actual exploitation of the work again?
> >
>>
>>
>>
>> It's a thought-provoking idea. Let's kill it in the crib before it learns to
>> walk. This is too long, but if you get bored, read the last two paragraphs
>> before you quit.
>>
>>
>> It's a long way from "The fact that a work is unpublished shall not itself
>> bar a finding of fair use" to a "compulsory equitable license." The
>> amendment to the sec. 107 was prompted by the misapplication of the
>> equitable notion that "non-exploitation" was the copyright holder's
> > privilege, and that publishing an author against his will was presumptively
>> unfair -- sort of a droit moral combined with the enforcement of privacy
>> rights. The compulsory license turns the traditional notion of equity on its
>> head. It's one thing to hold that it might still be fair use if a magazine
>> scoops a competitor's serialization rights (Harper & Row). It's another to
>> recognize a compulsory license to exploit the private correspondence of a
>> famous recluse (Salinger).
>>
>>
>> An analogous issue is before the Supreme Court in the E-Bay case, where the
>> Court is asked to reevaluate the relatively automatic grant of permanent
>> injunctive relief upon a finding of patent infringement. One of the grounds
>> relied upon by the district court in denying the injunction, along with
>> others, was the patentee's failure to practice the invention. The Federal
>> Circuit reversed, remanded, and ordered the district court to enter an
>> injunction. DOJ has filed an amicus brief, asking the Court to affirm the
>> Federal Circuit, and reiterate the traditional four-part test for injunctive
>> relief. DOJ opposes consideration of the patentee's failure to practice the
>> invention as weighing against injunctive relief, and in favor of awarding
>> royalties instead. The equities in the patent context are a lot stronger in
>> favor of the infringer who invested millions of dollars in developing and
>> marketing a useful, perhaps life-saving technology, only to have the brakes
>> applied by enforcement of a patent he didn't know about. Still, I feel safe
>> predicting that the Supreme Court will choose relatively automatic
>> injunctions that force the parties to negotiate the value of practicing the
>> invention (RIM), over a judicial determination of a royalty rate that lets
>> the infringer decide the value of the invention by pricing the accused
>> product before applying the court-ordered royalty and mailing the inventor a
>> check for the right to use his invention.
>>
>>
>> In contrast, I don't see any equities that work in favor of the defendant
>> engaged in willful infringement of a copyright on the notion that he should
>> be able to decide whether, when, and how an author's work should be
>> exploited if the copyright holder doesn't want to publish. I don't think
>> there are any equities at all in favor of the infringer -- the whole
>> proposal is based on the public interest in access to unpublished works.
>> That might strip the copyright holder of some equitable entitlement by
>> applying the "clean hands" doctrine; but the copyright holder is sitting on
>> a legal right -- he doesn't need an equitable entitlement. The defendant
>> doesn't have either equity or law on his side, except as the class
>> representative of the general pubic interest in reading what someone has to
>> say.
>>
>>
>> It's almost impossible to image the case in which the refusal to publish
>> harms the public interest in any meaningful sense. The public isn't denied
>> access to any ideas or information, just the author's expression. Authors
> > decline to publish, or withdraw works from publication, for all kinds of
>> reasons. They might be embarrassed by an early novel, or reverse their
>> thinking about a controversy they wrote about. I don't know if anything
>> Stephen King ever wrote is out-of-print, but a library of his
>> out-print-works, published under some sort of compulsory license, would
>> obviously dilute the market for his new works. His recent novels, for which
>> he might get a 15% royalty out of a $10 paperback, would be competing with
>> the unauthorized re-issue of works that are out of print, priced at $1
> > because the compulsory license was a cost-free acquisition. Even if the
>> copyright holder is entitled to a generous 50% royalty on the compulsory
>> license, he's getting screwed if it cuts into sales of his newer novels,
>> earning him 50 cents instead of $1.50 on the product substitution.
>>
>>
>> The strongest case I can build for application of Prof. Jamar's suggestion
>> is a decision by Microsoft to stop distributing the Macintosh version of
>> Word. It's like the sword of Damocles hanging over Apple -- the death blow.
> > Microsoft publishes it to keep Apple alive so they can insist they don't
>> have a monopoly. But even on those "best facts," I can't imagine giving
>> Apple the right to install Word on every mac it sells on the fiction that
>> Microsoft has abandoned its copyright. And how would it work? Does Apple
>> also get to issue derivatives too? If Microsoft "abandons" Word X for Mac,
>> can Apple re-issue Word X, and then release Word X.1 to keep up with the
>> competition? Or try this: there are a lot of people, like me, who think it's
>> all been downhill since Word 5.0 for the Mac. Can we re-issue Word 5.0 ($5
>> per copy) if it cuts into Microsoft's market for Word X priced at $299?
>> Let's assume we all hate Microsoft enough to screw them and call it equity.
>> The saving grace that lets us pretend it's equitable is Prof. Jamar's
>> concession that "the 'compulsory equitable license' for this sort of
>> situation ... would then be withdrawn upon the copyright holder
>> demonstrating actual exploitation of the work again." Is Apple's compulsory
>> license "withdrawn" when Microsoft "demonstrat[es] actual exploitation of
>> the work again" by re-issuing Word Classic 5.0, priced at $4,999 (a price I
>> might even pay)?
>>
>>
>> All other economic, equitable, policy and public interest considerations
>> aside, isn't this "compulsory equitable license" an obvious infringement of
>> the author's First Amendment right "not to speak"?
>>
>>
>> As an aside, in the case Noring points us to, the economics are a little
>> different. Take a look:
>> http://www.blackmask.com/catalo/default.php?cPath=60_63.
>> You can download a lot of stuff for free in a variety of formats at the
>> Blackmask website, which would seem to satisfy whatever public interest
>> justifies a compulsory license arising out of non-publication, and might
>> even look "heroic" in a comic book sort of way as he single-handedly takes
>> on the force of evil at Conde Nast (even sounds like a comic book villain).
>> But what he sells -- priced from $8.96 to $17.96 -- are copies of vintage
>> comic books "as originally published," including the prominent 10-cent cover
>> price. Now go to E-bay; look at collectibles/comics/golden age; sort by
>> price, high-to-low. Right now the list is topped by the 1940 debut of
>> Captain Marvel, advertised as "highest graded copies" (note the plural
>> "copies"). Someone other than a cynical old lawyer might assume that
>> "highest graded copy" means a really well-preserved original issue,
>> analogous to the F/VG rating ("fine book in very good jacket") used by book
>> collectors to refer to highest-value first editions. That impression might
>> be reinforced by the top bid of $8,110 with 4 days to go (or Buy it Now for
>> $45,000). But that would be a mistake. "Golden Age" comic books expressly
>> advertised as "first editions" on E-Bay top out at $175 for five 1953 issues
>> of Blackhawk. Now, god knows Blackhawk isn't in Captain Marvel's league; and
>> 1953 is the tail end of E-Bay's "Golden Age" of comic books, which pretty
> > much refers to the period between the introduction of pulp comics and the
>> realization that they were "collectible," and might someday be worth their
>> weight in gold if they were sealed in plastic and stored away, instead of
>> read on the school bus and tossed away (what the hell; buy two -- they're
>> only 10 cents). So it's not surprising that the price drops dramatically
>> based on supply and demand between the 1940 debut of Captain Marvel and
>> Blackhawk's adventures during the year I was born. What's telling is that
>> they can't call Captain Marvel a "first edition." So far as I can tell,
> > there is no meaningful legal distinction between the $10 comic book you can
>> buy from Blackmask "as originally published," and the "highest graded copy"
>> you might sell on E-Bay for $10,000. What Blackmask is really doing here, it
>> seems to me, is fucking with the collectibles market for vintage comic
>> books.
>>
>>
>> Let me emphasize, before I get sued, that I'm not accusing anyone of fraud
>> or false advertising. Blackmask offers full disclosure that's completely
> > truthful. The E-Bay ads are only misleading if you don't read
>them carefully
>> (the plural "copies" is a nice touch -- bet they'll fill an order for a
>> dozen at $45,000/each); and only fraudulent if the seller has cohorts
>> pumping up the bids to lure the gullible. But there's a sucker born every
>> minute; it's a big market; and what's cool about the adverse possession
>> claim, over Prof. Jamar's more sensible and more obvious public domain
>> alternative, is that Blackmask can sue copycats who steal their action by
>> copying their copyrighted copies.
>>
>> John Noble
>>
>>
>> At 6:45 PM -0400 4/11/06, Steven Jamar wrote:
>> There is a US District Court that sits in Greenbelt MD and I assume the
>> appearance before the magistrate will, as it is, or at least was when I
>> practiced actively, a pretrial planning session to set discovery schedules
>> and the like, and to simplify issues if possible.
>>
>>
>> Adverse possession of a copyrighted work. . . . Hmmm. Don't think so. SOL
>> will probably not relate back, but the injunction could still issue
>> prospectively for the ongoing violation.
>>
>>
>> If the copyright holder is known, it is not really an orphan work, is it,
>> though I understand some have advocated broadening orphan to include
>> no-longer-exploited works previously published (to distinguish from
>> unpublished works).
>>
>>
>> It does seem that the public is not served in this (and similar) particular
>> instances of works not being exploited by the copyright holder and being
>> made available by others and then the copyright holder taking the work out
>> of circulation again.
>>
>>
>> I wonder, could we find a sort of "compulsory equitable license" for this
>> sort of situation which would then be withdrawn upon the copyright holder
>> demonstrating actual exploitation of the work again?
>>
>>
>> Speculation is fun. Not much in the way of legal support here, but fun to
>> speculate nonetheless.
>>
>>
>> Could this be a [new?] species of misuse? If you have functionally
>> abandoned your exploitation for 20 years, you cannot now come along and
>> threaten those who are making it available? Or would you need to show some
>> sort of trap or bad conduct other than simple non-exploitation?
>>
>>
>> How about abandonment through non-exploitation and thus it is in the public
>> domain? I think this better than "adverse possession" -- since that would
>> work a change of ownership rather than merely a loss of copyright -- but
>> still very problematic.
>>
>>
>> Steve
>>
>>
>> On Apr 11, 2006, at 4:00 PM, Vance R. Koven wrote:
>>
>>
>> Indeed, one of the more interesting points (to my ignorant eye) raised
>> by the description in the blog was whether a plaintiff is entitled to
>> bring a copyright infringement case before a magistrate. I presume (if
>> the reporting is at all correct) that they were talking about a US
>> Magistrate, but still...
>>
>>
>> Vance
>>
>>
>> On 4/11/06, Jon Noring <jon[_at_]noring.name> wrote:
>>
>> Most here may have already seen this, but for the few who haven't,
>> appears to be a very interesting copyright infrinement case:
> >
>>
>> For the details and links elsewhere, see:
>>
>>
>> http://www.teleread.org/blog/?p=4631
>>
>>
>> with a small update at:
>>
>>
>> http://www.teleread.org/blog/?p=4639
>>
>>
>>
>>
>> Lots of interesting aspects to this case, particulary with regards to
>> the Public Domain.
>>
>>
>> Jon Noring
>>
>>
>>
>> --
>>
>> Prof. Steven D. Jamar vox: 202-806-8017
>>
>> Howard University School of Law fax: 202-806-8428
>>
>> 2900 Van Ness Street NW
>> mailto:stevenjamar[_at_]gmail.com
>>
>> Washington, DC 20008
>> http://www.law.howard.edu/faculty/pages/jamar
> >
>>
>>
>> "Our scientific power has outrun our spiritual power. We have guided
>> missiles and misguided man."
>>
>>
>>
>> - Martin Luther King Jr., "Strength to Love", 1963
>>
>>
>
>
>--
>Vance R. Koven
>Boston, MA USA
>vrkoven[_at_]world.std.com
>
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Received on Fri Apr 14 2006 - 18:50:31 GMT