The Tyranny Of Copyright: How A Once-Humble Legal Issue Has Tormented A Generation Of Speech

from the oh-come-on dept

Scott Burroughs, one half of the named partners at the law firm Doniger Burroughs, seems to want to build up a reputation as one of the go to voices for pushing the most absurd copyright theories out there. You may recall Doniger Burroughs as the law firm that, representing Playboy, sued BoingBoing for linking to images, making an argument that was so absurd that a court completely tossed it in just about three months (which is crazy fast).

Of course, as we noted, Doniger Burroughs after years of copyright trolling clothing designs appeared to be branching out into more traditional copyright trolling. As part of that, Burroughs has been publishing complete and utter nonsense in a regular column over at Above The Law.

Recently, he decided to do a bizarre attack on "fair use" in which he conveniently leaves out a few important facts in order to suggest that fair use has gone too far and needs to be pared back. He entitled the series, "The Tyranny of Fair Use" with the first part purporting to explain "How A Once-Humble Copyright Doctrine Tormented A Generation Of Litigants," and the second part unfairly tarnishing the legacy of judge Pierre Leval whose seminal paper, Towards a Fair Use Standard certainly has had tremendous weight on how the courts view fair use. Of course, the reason for that is because it's thoughtful and well-argued, but we'll get to that.

The "premise" (if you can call it that) of the first piece is that the concept of fair use today has strayed a great distance from where it began, going all the way back to the Statute of Anne. I'd quote his nonsense, but I get the feeling Burroughs might not think that's fair use. However, to summarize it, Burroughs claims that from nearly the beginning of time until just recently, "fair use" was very, very limited and required a very high bar to meet its standard. The second piece, then lays the blame on the more modern, more expansive view of fair use on Leval's famous paper, which, among other things, promotes the concept of "transformative works" as being a key factor in determining fair use. Burroughs claims that Leval's take on things "contravene[s] over 150 years of jurisprudence."

Of course -- perhaps because of his own fear of violating the copyright of Leval's piece -- Burroughs barely quotes from it at all. Perhaps that's because it debunks nearly everything that Burroughs says. Whereas Burroughs insists, repeatedly, that the fair use standards were well settled and clearly applied before Leval came on the scene, Leval's own paper points out that this is not even close to true:

Earlier decisions provide little basis for predicting later ones. Reversals and divided courts are commonplace. The opinions reflect widely differing notions of the meaning of fair use. Decisions are not governed by consistent principles, but seem rather to result from intuitive reactions to individual fact patterns. Justification is sought in notions of fairness, often more responsive to the concerns of private property than to the objectives of copyright.

Confusion has not been confined to judges. Writers, historians, publishers, and their legal advisers can only guess and pray as to how courts will resolve copyright disputes. After recent opinions of the Second Circuit casting serious doubt on any meaningful applicability of fair use to quotation from previously unpublished letters," publishers are understandably reluctant to pay advance royalties or to undertake commitments for biographical or historical works that call for use of such sources.

The point of Leval's paper, then, was to clarify the law, and make some suggestions about how fair use could be applied more consistently.

But there's a much larger part of the problem with Burrough's thesis, which argues that there was this completely out of left-field massive change to "fair use" in the past few decades, and that upset the entire history of the doctrine. What Burroughs -- astoundingly -- leaves out, is that this is much more true of copyright law itself. From the earlier copyright law in the US, it only applied for 14 year terms (with one possible renewal) and only to maps, charts and books. Over the years, copyright law has expanded and expanded and expanded, to the point that, after the 1976 Copyright Act went into effect, copyright law applied to nearly all new creative works and lasted an authors lifetime plus many decades (which, again expanded in 1998).

Indeed, a big part of the reason why Leval's paper became so necessary was that unlike in the past, copyright was now regularly starting to interfere with First Amendment protected speech, since so much speech and expression was now getting covered by copyright. A somewhat more broad view of fair use was essential because, for the first time, copyright was suddenly blocking all kinds of speech. That didn't happen nearly as much prior to 1978, because most work wasn't under copyright (and if it was, it wasn't for long). However, post 1978, suddenly all new works of any level of creativity were automatically covered by copyright, creating a real crisis for the First Amendment.

Indeed, this is why Supreme Court Justice Ruth Bader Ginsburg -- who famously has been a strong copyright maximalist in her interpretations of the law -- has noted repeatedly that fair use is copyright's internal safeguard to make sure it's compliant with the First Amendment (for what it's worth, I disagree, and think that fair use doesn't go nearly far enough in protecting the First Amendment, but still...):

In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations....

[....}

... the “fair use” defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances. Codified at 17 U. S. C. §107, the defense provides: “[T]he fair use of a copyrighted work, including such use by reproduction in copies . . . , for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” The fair use defense affords considerable “latitude for scholarship and comment,” ... and even for parody....

The CTEA itself supplements these traditional First Amendment safeguards....

In other words, the reason that fair use has expanded (in as much as it has expanded), is only because it was made necessary by the much, much, much more expansive changes to copyright law itself, sucking in all sorts of expression and making it incompatible with the First Amendment. The more expansive understanding of fair use (which is still far too limited) only came about because of that.

If Burroughs wants to go back to an originalist conception of fair use, that's fine if and only if he also agrees to go back to an originalist version of copyright: 14 year limits and it only applies to maps, books and charts. I'd buy into that.

Meanwhile, as for Burroughs' claim that fair use has become some sort of "tyranny for litigants," let's get real for a second. The real tyranny in copyright litigation these days comes from the trolls filing tons and tons of cases, hoping to get easy settlement cash. Oh, and on that note, looking at a recent Lex Machina report on the top copyright plaintiffs, what do we find? Oh, look, Doniger Burroughs in the very top spot:

If you can't see that, it shows that Doniger Burroughs filed more copyright lawsuits than any other law firm in the period covered by the report, with 1,121 cases filed. That's almost double the number three filer, who had 622 cases.

So, uh, maybe the "tyranny" of copyright litigation isn't because of fair use... but is because of copyright trolls.

Filed Under: copyright, fair use, free speech, pierre leval, scott burroughs, transformative use
Companies: doniger burroughs


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 4 Mar 2019 @ 1:55pm

    Which law school did Masnick get his JD from? In which state did he pass the bar?

    reply to this | link to this | view in chronology ]

  • identicon
    stine, 4 Mar 2019 @ 2:05pm

    nice

    You got another dig in at Higbee... nice.

    reply to this | link to this | view in chronology ]

  • identicon
    Bobvious, 4 Mar 2019 @ 2:05pm

    Maybe we should extend copyright terms

    to the Rapture plus 1000 years. Oh wait!

    reply to this | link to this | view in chronology ]

  • icon
    Thad (profile), 4 Mar 2019 @ 2:28pm

    Earlier decisions provide little basis for predicting later ones. Reversals and divided courts are commonplace. The opinions reflect widely differing notions of the meaning of fair use. Decisions are not governed by consistent principles, but seem rather to result from intuitive reactions to individual fact patterns. Justification is sought in notions of fairness, often more responsive to the concerns of private property than to the objectives of copyright.

    Confusion has not been confined to judges. Writers, historians, publishers, and their legal advisers can only guess and pray as to how courts will resolve copyright disputes. After recent opinions of the Second Circuit casting serious doubt on any meaningful applicability of fair use to quotation from previously unpublished letters," publishers are understandably reluctant to pay advance royalties or to undertake commitments for biographical or historical works that call for use of such sources.

    Unfortunately, that's largely still the case. While at least we've got a clear framework for fair use analysis now, fair use cases continue to be complicated and their outcome difficult to predict.

    Saner copyright law, with more explicit allowances for fair use, could really help with this problem. Unfortunately, there's little chance of anything like that passing anytime soon.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 4 Mar 2019 @ 2:39pm

    If fair use is such a burden, let us roll back the expansive handouts of extensions we've given them.
    It is supposed to benefit us but I am really hard pressed to see how the public is getting any benefits.

    Laws killing memes
    Laws killing content they don't control
    Laws killing technological advancement

    Fair use is so very mean to them... if we just did away with it then that damn dancing babies family would have coughed up the $150K the law says we deserve! That video cost us trillions of dollars in losses!!

    Lets take back the extensions they wanted, because they have tormented those of us who agreed to grant them exclusive rights for a limited time in exchange for fair use & the public domain, they've been trying to kill fair use and they had killed the public domain for a very long time. Let us go back to a simpler time where 'limited time' didn't mean 4 human life spans.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Mar 2019 @ 2:59pm

    How about removing all the principles of fair use from lawyers, and especially copyright layers, if they want to quote from previous cases and decisions they can negotiate a license, and see how they like the impact of copyright maximalism on their life.

    reply to this | link to this | view in chronology ]

  • identicon
    bobob, 4 Mar 2019 @ 3:03pm

    With respect to "fair use" in the US, one needs go no further back in history than the US constitution. Patents and copyrights are rights created by law and the constitution spells out the requirements for awarding those rights (which seems to been construed much more broadly than the actual text would suggest, given the length of time for which a copyright can be held these days).

    Certainly, if "fair use" was only very narrowly applicable, a copyright would not serve the purpose of promoting "the progress of the useful arts and sciences." If one cannot make use of something, it is not very useful. If anything, "fair use" needs to allow much more to make up for the DMCA and sonny bono. On the other hand, further restriction on "fair use" might create enogh of a backlash to address current copyright law in a way that is unfavorable to sonny bono and his fellow copyright nazis.

    Why is a lawyer, (of all people), trying to appeal to ancient common law in a situation where the more relevant text is the US constitution and more recent case law? Maybe I am mistaken, but my understanding is that one appeals to historical common law when there is a real question of how to apply a statute to a particular case, not to argue for sweeping changes that go against more recent case law.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 5 Mar 2019 @ 12:54am

      Re:

      "Why is a lawyer, (of all people), trying to appeal to ancient common law in a situation where the more relevant text is the US constitution and more recent case law?"

      Because none of the solid examples you mention back up the narrative said lawyer wished for the legislature to accept?

      The copyright cult isn't exactly known for their respect of law, jurisprudens, human rights, common sense or empirical fact.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 4 Mar 2019 @ 3:18pm

    'They keep telling us to go away...!'

    If the top litigator in copyright related lawsuits is going to claim that 'fair use' is somehow being 'tyrannical' I can only assume that they mean that the existence of fair use is allowing defendants that they are trying to go after to be able to defend themselves, which would of course be totally unfair.

    If 'fair use' is tyrannical then far, far worse is the current state of copyright law, though given how he makes his paycheck I rather doubt he'd ever admit it.

    reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 4 Mar 2019 @ 3:23pm

    Apparently, a lot of people who visit this site work or worked at Dewey, Cheatham, and Howe (a much "respected" law firm from the '90s [or was it the '80s?])--no law degree or license required. Only they could love trolls like this guy.

    At this point, copyright should be outlawed as a failed principle in its own right.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 4 Mar 2019 @ 4:10pm

    Another thing Burroughs doesn't talk about is under the statute of Anne, the copyright belonged to the author and not the publisher..."Under the statute, copyright was for the first time vested in authors rather than publishers;" If we went back to that, the RIAA and MPAA would go bankrupt.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 5 Mar 2019 @ 12:57am

      Re:

      "If we went back to that, the RIAA and MPAA would go bankrupt."

      Yes and no. I'm pretty sure Annes statutes still allowed copyrights to be dispositive. The guild of stationers at the time was certainly quite keen on having the law formulated to essentially guarantee the actual creators would end up indentured.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 5 Mar 2019 @ 3:22am

        Re: Re:

        The statute of Anne assigned copyright to the author as that was the only way the stationers company could get a copyright law passed. Thereafter the author had to play along with the publishers rules because how else were they going to get their book published.

        Interestingly before authors had copyright, they were still able to sell manuscripts to publishers because publishers needed something to publish, and the author had the only copy or copies of the manuscript, of which only one or two non printed copies existed. Copying was expensive when it meant writing out, or latter typing out, a new copy.

        reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 4 Mar 2019 @ 4:11pm

    "that's fine if and only if he also agrees to go back to an originalist version of copyright: 14 year limits and it only applies to maps, books and charts. I'd buy into that."

    Of course you would. Because you're mentally ill. See a shrink. Seriously. Now.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 4 Mar 2019 @ 4:44pm

      Re:

      What is gained by a copyright term that lasts not just for your lifetime, but seventy years beyond your death?

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 4 Mar 2019 @ 4:53pm

        Re: Re:

        The incentive to murder the creator is eliminated.

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 4 Mar 2019 @ 5:01pm

          Funny. Hilarious. Now try a serious answer.

          reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 4 Mar 2019 @ 5:44pm

          Re: Re: Re:

          Can't tell if poe mocking the deranged, or actually deranged...

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 4 Mar 2019 @ 5:47pm

          Re: Re: Re:

          Because laws against murder suddenly vanished?

          ...No, wait, they haven't! The hell have you been smoking?

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 4 Mar 2019 @ 5:48pm

          Re: Re: Re:

          I think it's telling of the state of copyright law where the life of a person making content is considered lesser than the content generated.

          Lives are generally considered more valuable than mailing lists, Jhon.

          reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 5 Mar 2019 @ 2:05am

          Re: Re: Re:

          "The incentive to murder the creator is eliminated."

          Oh, wow...

          So in other words, ownership of a song or book means you get targeted for death. Makes perfect sense. /s

          You know, bobmail, every time I think you copyright cultists have set the definitive bar you go right on proving that even a westboro baptist church cult member has nothing on you guys when it comes to living in delusion.

          What's next? Filesharing imperils our immortal souls? God hates pirates? Every copy made hastens the heat death of the universe?

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Mar 2019 @ 4:53pm

      Re:

      One who would attempt malicious psychiatric "diagnoses" over the internet would appear to be in greater need of said help.

      reply to this | link to this | view in chronology ]

    • icon
      John Roddy (profile), 4 Mar 2019 @ 5:47pm

      Re:

      9 out of 10 of my alternate personalities agree that you are probably the one who is crazy.

      reply to this | link to this | view in chronology ]

  • icon
    Gary (profile), 4 Mar 2019 @ 6:58pm

    Consensus

    So does anyone really think that extending copyright to Life + 70 years is going to make more works available? Or that this is just a bullshit excuse to keep anything topical out of the public domain?

    "Johnny, it's been many generations - but you may now creative derivative works of Star Wars without fear. As long as they don't use characters introduced in the prequel or later - you will have to pass that task to your sons."

    reply to this | link to this | view in chronology ]

    • icon
      morganwick (profile), 5 Mar 2019 @ 3:11am

      Re: Consensus

      I still believe one of these days copyright will be restored to sane terms that it would have without the excessive lobbying by the entrenched industries and, while we might not have everything enter the public domain at once, we should at least have a phased freeing of content so everything that should be in the public domain becomes so over the course of a handful of decades.

      reply to this | link to this | view in chronology ]

      • icon
        Thad (profile), 5 Mar 2019 @ 7:42am

        Re: Re: Consensus

        It's going to be tough to fight the copyright lobby, but it's also inevitable that one day our legislatures will be populated by people who grew up with memes, mashups, and YouTube videos. I expect the coming generation to have a very different view of copyright than the previous one.

        reply to this | link to this | view in chronology ]


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