Legal Commentary

Last week, Nobutoshi Kihara, "the wizard of Sony," died at the age of 84. Kihara was the engineer responsible for a large number of the early electronic gizmos that put Sony on the map: one of the first tape recorders, the transistor radio, 8mm film cameras, digital cameras, and one of the biggest of them all, the Betamax videocassette recorder. In other words, Kihara helped to bring recording and copying to the masses. He was thus a significant figure in what could fairly be called the Information Revolution, the one we're all living in right now.

What does all this have to do with cease and desist letters like the one Jeffrey Koons's lawyers sent to Park Life Gallery? I think it helps explain the sense that something about copyright law has shifted in a way that is generating more such controversies. A number of scholars have tried to locate that shift in the law somewhere: in additions to copyrightable subject matter, the length of the term, changes in fair use doctrine, anticircumvention rules, statutory damages. I believe that search is misguided. I think the relevant shift is not in the law, it's in the landscape.

The Raustiala and Sprigman Freakonomics article I linked to at the start of this series tried to link a change in C&D letter practices to some sort of change in statutory damages. But for the reasons stated in the prior two posts, this seems unlikely. Statutory damages have been the way they are for more than a century (with one important difference that's not relevant to letters like Koons's). And it's hard to see how the possibility of statutory damages by itself would drive aggressive claims in copyright law to a greater extent than that seen in other areas. After all, the claim is not that copyright is just like the rest of the law, but that it's importantly different somehow. How?

There are many differences between copyright now and copyright 40 or so years ago, but only one really explains the profound sense among many that copyright has gone off the rails: copyright simply, as a practical matter, applies to more people than it once did. Copyright 40 years ago was a regulation of publishers and distributors. That is, businesses and institutions, as well as professionals such as authors. Repeat players. Those were the only entities that had to worry about copyright.

The technologies invented by Nobutoshi Kihara and his cohort changed all that. They brought copying and distribution--the bread and butter of copyright law--to the masses. That is, ordinary individuals are now authors, publishers, and distributors, and are increasingly being subjected to the law applicable to those entities. However, individual users had over the course of decades, if not centuries, abided by a different set of rules for goods containing creative works: if it's in my physical possession I can do anything I want with it. To the extent there has been a change in the claims copyright owners make in cease-and-desist letters, it has been occurring in the context of this clash. Practices or users that previously never would have come to the attention of copyright owners, and thus were de facto outside the scope of copyright law, now fall within that scope, and are having claims directed against them -- and thus not only do small shops like Park Life Gallery come to the attention of major copyright owners like Jeffrey Koons, but that attention comes to everyone's attention as well, as it plugs into a battle narrative taking shape.

Copyright law was not built for this sort of conflict. That fact was made clear in one of the first cases involving copying technology, one that pre-dated Nobutoshi Kihara: photocopiers. In Williams & Wilkins v. U.S., famed copyright practitioner Alan Latman crucially relied on the de facto scope of copyright law in the 1970s in his oral argument before the Supreme Court:

Only a few minutes remained in the half hour allotted for his argument, and Latman had so far been able to sidestep the question he feared most. But now Chief Justice Burger returned to the question of Library of Congress practice. ?It?s not uncommon for judges, members of this Court and others, to call on the Library of Congress for a book, sometimes perhaps it?s a book, of which they have only one or a very few copies, at least I assume that, because frequently we get a request, ?Will you please return the book.? Well, sometimes instead of returning the book if we are not finished with it, speaking personally, I have Chapter 13 or Chapter 14 copied on the Xerox machine. As far as I know the Library of Congress has never sent photocopies of anything. They send the original.? Is such a borrower, Burger wanted to know, ?running up against this statute and these claims by making a copy for his own use, copyrighted material?? . . .

Latman responded, ?That is a harder question, which we think is quite different from this case.? After circling briefly, he gave his well-prepared answer: ?Nobody would sue. And I think that?s quite significant here, because it?s impractical for anyone to sue.? . . .

The Chief Justice smiled, deciding not to press the point, deflecting it instead with what in the Supreme Court passes for humor. ?Is it your opinion that nobody would sue the Chief Justice or nobody would sue anybody?? The courtroom burst into laughter.

Paul Goldstein, Copyright's Highway 94-95 (rev. ed. 2003). [Actually, listening to the audio, I've just noticed that it's Justice Rehnquist that made the joke at the end, not Chief Justice Burger. Burger then seemed to accept the de facto distinction and let the argument move on.]

The irony is that copyright owners and critics alike look backwards for a solution. Copyright owners want to bolster the old framework applicable to publishers and distributors and apply it to the new publishers and distributors: individuals. But copyright critics likewise look to the old framework as well, for defenses. Those defenses, like copyrightability and infringement doctrine, took shape in a world of costly physical limitations and the large-scale enterprises needed to overcome them: fair use (a game for repeat players), insanely detailed statutory exemptions (ditto), first sale (disposing of physical copies), personal or noncommercial uses, use of physical goods in the home. But those concepts are all fading into irrelevancy. The angst expressed at aggressive cease-and-desist letters is the angst of staring into the void and not knowing what is there.