Copyright’s Constituencies

Teaching Civil Procedure and Copyright together again during the just concluded semester, which I have not done since 2007, made for a study in contrasts. As we teach it at Cincinnati, the second semester Civ Pro course is an in-depth examination of some of the trickiest and most important provisions to be found in the Federal Rules: discovery, summary judgment, class actions, jury trials, appellate review, and res judicata, among other topics. The emphasis is, perhaps contrary to the expectations of observers from outside the academy, almost relentlessly practical: if opposing counsel files motion X, how long will you have to respond? If the court issues ruling Y, what steps are necessary to obtain appellate review? And so forth.

In contrast, it frequently seemed in my Copyright class as if I was operating at the opposite end of the spectrum of practicality. Don’t get me wrong; dealing with topics like the Continental perspective on moral rights, or the ways indigenous cultures with strong oral traditions conceptualize authorship, is important: it helps illuminate for students the (occasionally creaky) structure of assumptions and tacit policy choices that undergird the substantive legal rules they are studying. This isn’t, at all, a criticism of the outstanding casebook I have used since I started teaching the class. But it’s not as if I realistically expect any of my students to sweep into a court in this country with an argument about the DMCA (for example) based upon the provisions of the EU Copyright Directive (which includes the EU’s DMCA counterpart). In the actual practice of copyright law in the United States, concepts like moral rights, collective authorship, fair dealing, non-utilitarian theories of creative production, and so forth aren’t merely criticized or disfavored; they often seem not even to be regarded as part of the relevant vocabulary.

The contrast got me thinking about what seems like a pretty important difference between the constituencies that rely on copyright law (and employ copyright lawyers) in the United States versus the constituencies that use the other varieties of intellectual property law.

Take patents, for example. Many accused patent infringers hold valuable patents themselves, which they may be very eager to enforce in future litigation. Thus, while they may have an interest in a relatively narrow construction and application of the law in one case, their interests in the next case may be quite different. This lack of a single consistent litigation viewpoint may exert a moderating influence on the arguments presented to courts in patent cases, a form of internal self-discipline that rests on a recognition that patent holders’ interests in the structure of the patent system as such do not point uniformly in a single direction. Of course, there are exceptions; nonpracticing entities (“patent trolls,” in the vernacular) exist only to be plaintiffs and can be expected consistently to argue for an expansion of patent rights and a broad construction of patent terms. But I would wager that most of the significant players in the patent system expect to be on both sides of a patent case eventually, and this may limit their willingness to press for extreme positions either pro or con.

Similarly, lots of accused trademark infringers (parodists aside) are themselves companies who rely on trademarks in their businesses. On the one hand, they want strong protections for their own marks; on the other hand, they want to be able to use comparative advertising or otherwise tweak competitors’ marks without fear of liability. These competing imperatives may moderate the arguments made to courts and legislatures in trademark matters.

Like many info/law types, I strive to give equal time in teaching to the “small copyright” and “big copyright” views of the world. It’s a matter of maintaining my students’ critical perspective. So there’s no Eldred v. Ashcroft (copyright is for authors, so the more the better) without Twentieth Century Music v. Aiken (copyright is for the public, so more is not always preferable). There’s no American Geophysical Union v. Texaco (the existence of a licensing market is itself probative of unfair use) without Bill Graham Archives v. Dorling Kindersley (you can’t show unfairness by offering to license transformative uses of your own work). Often, however, there’s no case to be cited for the “small copyright” version because the law is all on the “big copyright” side of the ledger. That’s when it’s necessary to refer to European doctrine or academic commentary to establish that the way we have done things is not the only, nor necessarily the best, way those things could be done.

I think the constricted state of copyright discourse (academic writings aside) rests on an important difference between copyright law on the one hand and patent and trademark law on the other. In the copyright world, most of the big players know perfectly well whether their interests lie mostly on the plaintiff’s or defendant’s side of the “v.” RIAA? Plaintiffs. MPAA? Plaintiffs. BSA? Plaintiffs. ISPs, search engine providers, technology manufacturers? Defendants. In consequence, the incentives that exist in patent and trademark law to avoid taking extreme positions (because they may come around to bite you in the next case) are mostly absent. Indeed, the incentive is to disavow your own prior expressions of reasonableness once it’s convenient to do so. Most judges aren’t copyright specialists and may not appreciate the importance of the Supreme Court’s periodic admonitions to steer a middle course; they may instead rest their rulings on the arguments submitted by the parties. Where the parties in copyright cases have an incentive to take comparatively extreme positions, the effect, I think, is to make it progressively more difficult to locate court decisions that take a middle view. For those of us who try to include a variety of perspectives when teaching copyright, that probably means that we must continue to rely on third-party sources and arguments to a greater extent than our peers in other areas of intellectual property law.

One Response to “Copyright’s Constituencies”

  1. I believe you are being far too charitable when you suggest that there are moderating forces at work in patent and trademark law that are somehow missing from copyright law.
    Primarily at the behest of the “big” players, the scope of what is patentable has been greatly enlarged. And the result? Highly questionable software patents being asserted by big against big, big against little and little against big. Common sense business methods being used as clubs to browbeat entire industries.
    . More generally, bet the ranch patent cases, fueled by creative damages awards and patents being used to prop up failing business models, have meant no holds barred patent litigation techniques that would make even a battle hardened class action lawyer blush.

    And so it is with trademarks. Combine an ever enlarging definition for trademark with trademark dilution and what do you get? Hilariously outrageous examples of trademark bullying. Apple taking action against Microsoft for “app”. Or endless litigation between consumer drug companies involving significant terms like “ lasts 12 hours”.

    The sad reality is that, to a disturbing degree, advancements in technology, advancements in the arts and advancements in protecting consumers, occur in spite of intellectual property law. All too often IP law is being used to hinder not promote.