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How (some) copyright owners think

By Rebecca Tushnet

Exclusive Rights has an intriguing post, puzzlingly titled On actively encouraging fan infringement and commercial success (Put a Ring on It). It argues persuasively that in some circumstances copyright owners not only tolerate certain types of remix but actively encourage it. The puzzling thing--okay, the oxymoronic thing--is the label "infringement" for that. When a copyright owner induces copying or the creation of derivative works, I had always thought we called that "licensing." The license may well be implicit, but it's still a license. (Compare the RIAA's rhetoric about putting one's CD collection on one's mp3 player--they say that it "won't usually raise concerns" though there's no right to do so; they want to have the right to object, which is to say they want to be able to pull the license.) When we're at the point of calling authorized uses infringing because that increases copyright owners' perceived freedom of movement, we are really down the rabbit hole.

(I have also, of course, set aside the fair use issues and the question whether the copyright owner could actually assert rights to stop all the uses the post mentions.)

Full post as published by 43(B)log on December 19, 2009 (boomark / email).