Supreme Court Admits Copyright Infringement May Actually Help The Copyright Holder
from the some-good,-some-weird dept
We’ve written a few times about the mess in the law concerning how to figure out the statute of limitations on copyright. The law says its 3 years, but it’s been interpreted very differently as to which three years it means. Is it three years after the first act of infringement? Or if something is “ongoing” (such as posting something online) can you then sue for the most recent three years? In a case that went to the Supreme Court concerning the movie Raging Bull, MGM argued that because the plaintiff, Paula Petrella, waited nearly two decades to bring a lawsuit over the script, the lawsuit should be barred based on the doctrine of laches (which has come up in other cases as well). Laches, of course, says that you can’t wait that long to bring a lawsuit, because you’re just piling up liability for the defendant. In short, the concept is that it’s inherently unfair to know about a situation, but not to bring suit, because you’re knowingly just letting the amount you’ll sue for stack up before finally suing.
In this case, the two lower courts sided with MGM and said that based on the laches doctrine, Petrella could no longer bring her lawsuit. The Supreme Court reversed that ruling, noting that the statute of limitations issue (allowing a “look back” of just three years) more or less overrides, but also that since laches is common law doctrine, and not a part of copyright law, it doesn’t count. As Matt Schruers notes, this is an odd ruling, in that the Supreme Court seems to have no problem bringing in other common law doctrines when it suits the court (or, really, when it suits Justice Ginsburg, who quite frequently is found leading the charge on these decisions):
It is somewhat curious that the Supreme Court comfortably imports some common law principles into copyright, such as doctrines associated with secondary liability, but not others, such as the equitable application of laches here.
But there’s another, perhaps more important point, that is unrelated to the direct issue in the case, but which Schruers again highlights as quite important: and that’s that Ginsburg — a notorious strong copyright supporter — appears to admit in a Supreme Court ruling that there may be benefits to the copyright holder from people infringing. This is a somewhat startling admission in a Supreme Court ruling:
It is hardly incumbent on copyright owners, however, to challenge each and every actionable infringement. And there is nothing untoward about waiting to see whether an infringer’s exploitation undercuts the value of the copyrighted work, has no effect on the original work, or even complements it. Fan sites prompted by a book or film, for example, may benefit the copyright owner. See Wu, Tolerated Use, 31 Colum. J. L. & Arts 617, 619–620 (2008)
While it is admittedly troubling that she seems to suggest that fan sites are infringing, it’s still progress that the Supreme Court has now stated, clearly, in a majority decision that infringement can, at times, benefit the copyright holder. This matters because so many people in policy and legal circles like to insist that this is impossible. In fact, Schruers himself notes that when he recently suggested something not even as broad as that, they got slammed with offensive comments:
A more interesting wrinkle is Justice Ginsburg’s explicit embrace of a point that I had previously characterized as “taboo” — that not all infringements impose costs on the rights holder. In fact, when I wrote last year that some infringements have no economic cost, and that other infringements will reallocate wealth instead of destroy it, the site admins had to install a profanity filter for the comment section. Yet today, Justice Ginsburg goes a step further and states that some infringement “may benefit the copyright owner.” (To my knowledge, Supreme Court opinions don’t have a comment section.)
We actually had written a post discussing Matt’s original post ourselves, and ran into similar issues with folks insisting that what we were discussing was nothing more than “theft” and “re-distribution to grifters.” Yet, here we now have the strongest copyright maximalist on the Supreme Court flat out admitting that sometimes copyright infringement benefits the copyright holder.
While there may be other issues with the ruling, this is at least nice to see.
Filed Under: copyright, laches, paula petrella, raging bull, ruth bader ginsburg, scotus, statute of limitations, supreme court
Companies: mgm
Comments on “Supreme Court Admits Copyright Infringement May Actually Help The Copyright Holder”
Proof of economic damage should be required
In order to pursue a copyright infringement suit, what if proof of actual (not hypothetical) economic damage were required?
The ridiculous statutory damages were originally conceived to stop REAL piracy. The kind where someone is mass producing, say, a DVD and marketing it as the real genuine item and raking in massive retail sized profits from something that costs 40 cents to produce.
Maybe a fix for the 21st century would be to require actual economic damages to be proved. This would definitely stop the kind of pirates the statutory damages were conceived for.
But it would leave alone someone who starts a fan site. Or does a remix using a very small fragment of some work.
Re: Proof of economic damage should be required
“In order to pursue a copyright infringement suit, what if proof of actual (not hypothetical) economic damage were required?”
This would imply someone has the right to infringe unless causing economic damage. Ownership of one’s creation and the right to decide what to do with it, when to release it, how to display it,how many copies to make etc… are concepts separate from damages. People do not have a right to appropriate your expression of an idea how they would like.
Re: Re: Proof of economic damage should be required
“This would imply someone has the right to infringe unless causing economic damage.”
The whole argument against infringement has been about economic damage at its core. Every argument, every complaint has been how it damages the business of an artist. Everything related to it also leads to economic concerns. If nobody is usurping your sales for themselves, it’s not significant.
“Ownership of one’s creation and the right to decide what to do with it, when to release it, how to display it,how many copies to make etc… are concepts separate from damages.”
That’s creating artificial scarcity. Limited copies, limited availability, and creating urgency in the customers’ minds. These are things you don’t need in the transforming market.
Then comes the major contention, “ownership”. It’s the idea that “Because it’s mine, I get to dictate to others how they may use my stuff”, and it remains “my stuff” even after the customer lays their money down and completes an exchange of payment for goods. The truth is, the ownership issue is tied to the economic issue. If one can own something intangible and stop others from propagating it, one can sell it as if it were a tangible good. It’s not reality though. You can record that movie on a stone tablet, but that doesn’t make the movie any more scarce nor less intangible. Expressions and information are intangible things. You can pretend that it isn’t, but sooner or later, people will start to do what they’ve always done with culture. They share it.
“People do not have a right to appropriate your expression of an idea how they would like.”
Why? Quantify that. We are not just a population of passive consumers and observers. We are copiers, remixers, learners, and creators. We take in what we see in the world and use it to express ourselves in various ways, even ways that earn the ire of those that want to control access for the sake of profit. The most common form of expression is the kind where people propagate culture that has had a meaningful impact on them. Either we love it, hate it, or feel indifferent. Nevertheless, we have a deep fundamental impulse to express that which invokes emotion from us. To deny that for the sake of “ownership” is to retard that process, a process that is the basis for the entire wealth of human culture and knowledge today.
Individuals expressing themselves through the sharing of content are not harmful. Those people are who copyright were meant to serve for the betterment of knowledge and the progress of culture.
Re: Re: Re: Proof of economic damage should be required
“The whole argument against infringement has been about economic damage at its core.”
Sometimes you just have the right to do what you want with what you created. I find it is often the non-creator stating that they have a right to do what they will with the creation of another. The law says otherwise.
“If nobody is usurping your sales for themselves, it’s not significant.”
I disagree. I paint a painting and display it in a gallery. You take a photo of my painting and place that photo, of the painting, on a website promoting the kidnapping of girls and their sale as child brides. I obviously disagree with this idea. In your construct of copyright, this is “not significant” and I have no recourse.
“Expressions and information are intangible things. You can pretend that it isn’t, but sooner or later, people will start to do what they’ve always done with culture. They share it.”
Intangible things have value. If they did not you would have no desire for them. I find your statement one often used to support piracy and because intangible things do have value, I cannot agree. Items have value beyond scarcity, a computer program is just one example of a good that has no physical scarcity but has “tangible” value.
Not all forms of infringement need to be prosecuted. Some such as fan fiction may benefit the original author or copyright holder but I find the “people due what they always have done they share” as utopian, and ignoring the fact the increasingly ideas and there expression are a significant portion of the economy as the production of physical goods shifts to growing economies where labor is less expensive.
Re: Re: Re:2 Proof of economic damage should be required
Your talking about “moral rights”. Although this is a component in European copyright law, it is not in US copyright law.
For instance, it is entirely legal to take someone else’s work and use it to create a parody that the original artist disagrees with or finds offensive. See the Supreme Court’s ruling over the “Pretty Woman” case for a great example.
Re: Re: Re:2 Proof of economic damage should be required
“Sometimes you just have the right to do what you want with what you created. I find it is often the non-creator stating that they have a right to do what they will with the creation of another. The law says otherwise.”
Everyone is a creator of content. You’re taking the narrow definition of only those that sell content are creators. Wake up. This is the age of user generated content. Assimilating and transforming content is how the creative process works. Nothing comes out of thin air. To say that using the works of others as a basis to create new works is “wrong” or a violation of someone’s moral right to own what they create is flat-out denial of the relationship between expressions and ideas.
“I disagree. I paint a painting and display it in a gallery. You take a photo of my painting and place that photo, of the painting, on a website promoting the kidnapping of girls and their sale as child brides. I obviously disagree with this idea. In your construct of copyright, this is “not significant” and I have no recourse.”
That’s a very poor example. First off, slavery is a reprehensible crime in itself and those that would not be offended by it are few. Putting those two things together does not prove your case. I can provide you with a sufficient counter argument as well.
If I took a photo of your painting and used it in an article where I give a scathing review of the painting that you didn’t like, fair use allows me to do just that because I am commentating on it. You might hate what I say, but you can’t stop me from doing it.
“Intangible things have value. If they did not you would have no desire for them. I find your statement one often used to support piracy and because intangible things do have value, I cannot agree. Items have value beyond scarcity, a computer program is just one example of a good that has no physical scarcity but has “tangible” value.”
Yes, intangible things do have value. A sunny day has value and it can be shared by all without any rivalrous cost to others. I find your response is often said by those that don’t understand the difference between value and price as well as assuming that the content is the item of value rather than the experience and effort the artist invests in creating it. Now that is a scarce and exclusive thing that also has value, and it can effectively bear a price.
“Not all forms of infringement need to be prosecuted. Some such as fan fiction may benefit the original author or copyright holder but I find the “people due what they always have done they share” as utopian, and ignoring the fact the increasingly ideas and there expression are a significant portion of the economy as the production of physical goods shifts to growing economies where labor is less expensive.”
It’s sad that you view fan fiction as a “form of infringement” rather than a compliment to the author they are emulating. People have always shared culture and knowledge because there is more benefit in everyone having it rather than only those that pay the gatekeeper having it.
I’m not ignoring the fact, but you’re failing to realize that content doesn’t have to be a product to be a sustainable business. People can sell their skills to the market for their value to culture. Having skills that other people lack is very marketable; you don’t have to sell a product to have a successful business.
Re: Re: Re:3 Proof of economic damage should be required
“Everyone is a creator of content. You’re taking the narrow definition of only those that sell content are creators. Wake up. This is the age of user generated content.”
Thank goodness there are professionals that make content or all I would have to watch are user generated cat videos..but seriously, yes anyone with a smartphone can take a picture but are you implying there is no distinction between a professional photographer’s photo and picture shot by my aunt? Though my aunt’s photo might be good, I think we can agree there is a distinction between the consistent quality of the two and a difference in value both aesthetically and economically. Just as there is a distinction between “reality television” and a motion picture, written by a writer and directed by a director etc. In addition, the creator of user generated content, (if they have not given their rights away by posting on certain platforms) retains the very same rights as those of creators that sell content.
“That’s a very poor example.”
No, it was a perfect example because you stated:
“If nobody is usurping your sales for themselves, it’s not significant.”
The whole point was to show a case where the current law would protect against this action and your interpretation of the law would leave no recourse. Because in my example the infringement IS “significant” yet not economically damaging. Your example was fair use, an allowance written into the statute. Because you can show an instance where someone can use a work without permission, makes my example no less valid. In fact, I would hope you would agree appropriating a work in the manner of my example should be actionable. Under current law, it is and I think the painter should be able to stop the use of the image under these circumstances.
“It’s sad that you view fan fiction as a “form of infringement” rather than a compliment to the author they are emulating.”
Why can’t they be both? It is not sad, I am not alone in this view because that is what the law states. I did not say fan fiction was not a complement to the author. Rather, based on the law, it fits the definition of infringement. I also stated that not all infringement should be prosecuted. But what if a company starts selling the fan fiction? I suppose you feel the original author that created the characters, the very universe in which the story takes place, is not entitled to any of the money generated by that fan fiction? I disagree. My thoughts are not based on a theory of what rights copyright should or should not encompass rather, they are based on the statutory language that provides them. Whether or not you agree with the law is strictly personal and I concede great minds will often disagree.
“I’m not ignoring the fact, but you’re failing to realize that content doesn’t have to be a product to be a sustainable business.”
No, content doesn’t have to be a product, but there is nothing wrong with content being a product. In fact, the law allows it and many many businesses are built on it being so. I return to the computer program. I fail to see the fault in a computer program being a product. In fact I believe many video game producers see no problem with this either.
Re: Re: Re:4 Proof of economic damage should be required
professional content recycles shit so much at this point that cat videos are a breath of fresh air
Re: Re: Re:4 Proof of economic damage should be required
Thank goodness there are professionals that make content or all I would have to watch are user generated cat videos..
Just a tip, but mentioning ‘cat videos’ in a counter argument(even if you only mean it in a joking fashion) is a good way to get people to dismiss the rest of your argument altogether, as it practically reeks of elitist disdain, as though if you’re not a ‘professional’, the best you could ever hope to ‘create’ is some simplistic video.
Also, given how much utter crap has been thrown out by ‘professionals'(for example: a large number of Hollywood films), and how you can find some really high quality stuff from ‘non-professionals’, the ‘professional’ label doesn’t exactly carry the same prestige these days as in the past.
I suppose you feel the original author that created the characters, the very universe in which the story takes place, is not entitled to any of the money generated by that fan fiction? I disagree.
In that case I hope you’re consistent and cut a check to the creators of the works you built upon for your creations anytime you make money off of them, because the odds of anyone just coming up with an idea completely out of nowhere, based or inspired on nothing is pretty much non-existent.
People build upon the works of those that have come before, tweaking this, changing that, adding some things and removing others to create a new piece, that’s how creation works.
Sometimes, like in the case of fan-fiction, the result is pretty similar to the source material, with the same world and at times the same characters, just in different situations, sometimes the result has almost nothing linking it to the source material other than a few minor themes or pieces of the world, but in both cases you’re creating something new based upon something already out there that inspired you.
Re: Re: Re:4 Proof of economic damage should be required
“The whole point was to show a case where the current law would protect against this action and your interpretation of the law would leave no recourse.”
Your example was a red herring. Your point was that “I should have the right to take down my content when it’s used in ways I don’t agree with!” My point was, that if it’s fair use, it doesn’t matter one bit how much you hate it nor how evil it is. Even if the site is used for criminal things, you have no right to take content down simply because it offends you.
“Why can’t they be both? It is not sad, I am not alone in this view because that is what the law states.”
It can’t be both because copyright is supposed to promote the progress, not hamstring it with a rusty spoon just to grant a concession to marketing concerns.
“No, content doesn’t have to be a product, but there is nothing wrong with content being a product.”
Yes, there is something wrong with it. You’re trying to sell a product that is infinite in supply, inconsequential to duplicate, and trivial to distribute, and it’s being built on the collective wealth of human culture, without investing the same resources it took to create the work in the first place. Selling a book, a song, or a movie is like trying to sell boxed air.
Re: Re: Re:2 Proof of economic damage should be required
How do you propose achieving the desired level of control over what other do with what you published? Establish monitoring over peoples activities to a level that will make the current spying regime an epitome of respect for privacy?
Re: Re: Re:2 Proof of economic damage should be required
I paint a painting and display it in a gallery. You take a photo of my painting and place that photo, of the painting, on a website promoting the kidnapping of girls and their sale as child brides. I obviously disagree with this idea. In your construct of copyright, this is “not significant” and I have no recourse.
That’s a publicity rights issue, not a copyright one. Selling or syndicating the photos to make a profit while the painting is under copyright is a copyright issue. However, if they’re taking the photo and selling it, etc., to explain that LAB has won an award for great painting, it’s fair use.
How long do you think copyright should be? Assume we agree on thirty years (just for the sake of the argument). After that time has elapsed, will you relinquish your claim to have property rights over the painting in terms of whether people can photograph it or not while it’s on public display?
The physical painting would remain your property but the right to copy it would now be available to all if it was out of copyright. How would such a situation sit with you?
Re: Re: Proof of economic damage should be required
Well, if I have the right to decide how my works will be displayed, then I demand all copies and prints be hung to the side, at precisely 12.62479 degrees, as I intended. Anything less than total compliance and capitulation to my transitory whims would be a horrendous misappropriation of the expression of my ideas!
Re: Re: Proof of economic damage should be required
The constitutional purpose of Copyright is not about ownership of one’s creation.
If you want to change copyright to be all about money, then infringement should only occur when there is economic loss.
If copyright really is to promote the useful arts and sciences, then it should be promoting publication, not restriction. Your exclusive right is to provide an incentive to create, not an incentive to prevent others from creating new works, transformative works, or fan type works that you should be encouraging.
One problem of copyright is that some people seem to think that copyright gives them certain rights that they do not actually have. For example, controlling the expression of your work, when it appears in a fair use, but in a way that you happen to not like.
Re: Proof of economic damage should be required
“In order to pursue a copyright infringement suit, what if proof of actual (not hypothetical) economic damage were required?”
I cannot agree. It would imply that People have a right to infringe if it is not causing economic harm. The creator has a right to decide when to release their work, where to release it, how many copies to make, how to distribute it etc… A perfect example and this really happened….A photographer takes a picture of a same sex couple kissing. He supports equal rights for all. His photo is appropriated for an ad for a political campaign of a candidate who vehemently opposes same sex marriage. Have real economic damages occurred? Are they calculable? Not likely… The photographer would have no grounds to sue to enjoin the use of his photograph by the political campaign under your proposed enforcement of copyright.
Re: Re: Proof of economic damage should be required
And rightly so, the work or photo should not have a copyright.
Re: Re: Proof of economic damage should be required
Maybe a better reasoning would be that the actual creator has full access to all Copyright covers, but if those Copyrights are acquired by someone else, especially if a corporation, then proving actual damages should be necessary.
Re: Re: Proof of economic damage should be required
So your solution is the status quo? Cary Sherman gets richer every year off the backs of suing grandmothers without computers? That’s your ideal scenario?
Equity and common law
You’re conflating equity and common law. Laches is a concept from equity, and while I’m still not convinced by the majority’s reasoning there, that distinction is important.
Re: Equity and common law
While I agree with this point, I’m not sure it is even relevant. I skimmed the majority opinion and they don’t seem to have said that laches doesn’t apply, just that it isn’t necessarily an absolute bar on the case. I think they’re saying that the court should look at both the statute of limitations and issues around laches before deciding whether or not to throw out the case and, on these facts, the case should go ahead. There was a mention of limiting the availability of equitable remedies, though, due to the delay.
Re: Re: Equity and common law
They’re going much further than saying it’s not an absolute bar – they’re basically saying it will almost never apply (damages are always kosher within the three year SOL, and equitable relief only gets tossed in extraordinary circumstances).
Re: Equity and common law
If the distinction was so important the Judge would have used it in all cases and not just those cases that prove liability against the Judges financial supporters.
it makes no difference really if you realize that if the Judge supports the most restrictions in copyright and then goes against it and gives some good ammunition to the fight of the century, whether copyright law should apply to individuals or only those making a profit from the copyright laws.
i often wonder
“Is it coporate “peer pressure?””
When considering the stupendus things i see them do
Then i ask
“is someones back being scrathed?”
And then i progress to,
“Did the person even understand completely the thing they were party too”
And then i think
“Maybe some criminals have found the perfect amnesty”
copyright monies
“In fact, when I wrote last year that some infringements have no economic cost, and that other infringements will reallocate wealth instead of destroy it.”
Funny how redistribution of wealth is fine when it’s copyright infringement, but not ok when when you mention the wealthy in the same sentence. Ahhh, hypocrisy at its finest.
Re: copyright monies
Redistribution of wealth occurs at all times. The question is which direction.
“It is hardly incumbent on copyright owners, however, to challenge each and every actionable infringement.”
I’d say that sentence is going to ultimately be the most important one.
Does not Matter
Common law does not really apply to anything these days.
It depends upon the Judges mood (or how much they are paid off) if it does or not.
None of this matters. No movie ever made by “Hollywood” has ever turned a profit. Ever. None of the them. Not even Star Wars.
So this suit is moot, and SCOTUS never should have heard it.
Re: Re:
That just shows how bad internet piracy is! It prevented Star Wars from making money from the future.
Those damn time traveling pirates ruin everything.
And murder might occasionally benefit society overall. Your point?
Re: Re:
Are you equating theoretical lost profits of a company with the loss of life?
Re: Re: Re:
No. Just pointing out a fallacious argument. You could transplant it any number of ways. X is illegal but X has some positive aspects, therefore X must be good overall.
I support what Mike’s trying to do, but when I see stuff like this, I’m worried that most people will dismiss the argument out of hand, so the net result actually hurts the cause.
Re: Re:
I’m rather disturbed by this peek into the fantasy drama that dictates your life.
Since I didn’t read Schruers entire paper, I saw no indication of that he thinks that ‘some infringements have no economic cost, and that other infringements will reallocate wealth instead of destroy it’ is good or bad just that this is a statement of fact.
and it has taken this long to realise this exactly why?
profit
Actually, there was another comment by an anonymous coward that no Hollywood movie has ever made a profit so there should be no charges of loss of profit as movies are not profitable, how can you accuse people of damaging a movies profits is no movie you have made has ever made a profit, it means that a movie can have no expectations of ever making a profit and sharing or pirating that movie could never remove what has never been there…i.e profit.
I love the comment that was made and think we should all start using this as a valid reason to share content with whomever we want.
Re: profit
Actually, the problem is that pirates have become the scapegoat for Hollywood’s decades old accounting practices. When the subject of production losses comes up, they can now readily turn and point, “But…pirates!“, then continue with business as usual while the ones they’re screwing over get out the pitchforks for a witchhunt.
Until those inside the industries come to understand that they are being cheated, shortchanged, exploited and lied to–while the studios themselves are massively profitable–nothing will change.
Statute of Limitations!!???
And here, 42 years later, Led Zeppelin is just now being sued for ripping off the intro guitar for Stairway to Heaven…
WTF!
Led Zeppelin sued for plagiarizing ‘Stairway to Heaven’ from former tour mates
Led Zeppelin sued over lifting riff for ‘Stairway to Heaven’
Led Zeppelin’s ‘Stairway to Heaven’ Targeted for Plagiarism
Led Zeppelin Is Getting Sued Over ‘Stairway to Heaven’
Led Zeppelin STOLE Stairway To Heaven from us, claim US band Spirit
https://news.google.com/news?ncl=djq6stPAz1G0GxM2Hwqvyjc_H0m4M&q=led+zeppelin&lr=English&hl=en&sa=X&ei=5817U_3jFYy9oQSO2IDoAQ&ved=0CDQQqgIwAA
The ruling is less odd if you understand the principle of Congress “occupying the field” with the Copyright Act. Nothing in the Act precludes equitable doctrines like secondary liability, but the rolling three-year statute of limitations definitely precludes something like laches. The majority gets it right – laches is a gap-filler. The courts only used it on copyright claims when copyright didn’t have a federal statute of limitations (they were borrowing from state statutes). Once Congress laid down the three-year window, laches outlived its usefulness.
Some history
“Copyright Infringement May Actually Help The Copyright Holder”: this is not really new. Last year we published an historical case study on dissemination of knowledge and copyright.
The abstract: Does copyright protection reduce or foster intellectual and industrial creation? Based on a case study from history of science (17th century), the aim was to provide more controversial evidence to this debate. The investigation used primary and secondary sources from the history of science and made the link to the actual debate on copyright, piracy and scientific communication. The paper describes how Elzevier, through non-authorized exploitation of a new product and without consideration of the editor’s legitimate interests, in a context of missing copyright protection, largely contributed to the dissemination of the French Journal de Savants and its content, and finally to the success of scientific journals. Obviously, rights infringement can not only promote the interest and objective of the rights holder but also and above all contribute to the emergence and development of new forms of scientific life. Sometimes, when barriers to communication and debate are too strong, tolerated and calculated infringement may be an option to move the lines/change the situation. In the post-Gutenberg galaxy, made up of open access, common goods and public domain, open data and e-Science, evaluation, innovation, sustainability, communication and sharing, copyright is not necessarily the (only) option to develop scientific communication. At least, the authors have to study lessons from academic publishing, copyright protection and piracy very carefully.
Tony Volpe, Joachim Schopfel, (2013) “Dissemination of knowledge and copyright: an historical case study”, Journal of Information, Communication and Ethics in Society, Vol. 11 Iss: 3, pp.144 – 155
The full article is available at http://www.emeraldinsight.com/journals.htm?articleid=17099579