Why Copyright Law is Stupid – A New Series

I’ve written about why lawyers frustrate me, why FAS 157 (Topic 820) sucks and why the current state of patent law stinks.  In each case, I’ve tried to not just be a critic, but be part of the solution.

Specifically, I wrote an entire series on how law firms could change their ways to not piss me (and their clients) off and have been very active within the NVCA and personally trying to change the way that software patents work

As for FAS 157 (Topic 820), if you can’t beat them, join them.  Today it was announced that I’ve been invited to a “blue ribbon panel” organized by the Financial Accounting Foundation (FASB) to help determine the proper valuation techniques of private companies.  Either I’ll have a positive effect, or I’ll have a ton of fodder to bitch about.

But enough of that – what’s next?  Well, I’ve decided my next target will be copyright law.  There are a ton of things wrong with the current state affairs, none greater than the fact that most of the doctrine was developed before electronic media and what has come since has been a knee-jerk reaction to lobbying efforts by large content owners.

I’ll whet your appetite with  specific cases that want to make me scream:

1. ASCAP has used copyright law to go after royalty fees from girl scouts who sung popular songs around campfires;

2. Book publishers claim that Google copying their works in order to search them is a copyright infringement.  If held true, all Internet search would be subject to copyright law and effectively banned;

3. There is no clearing house for performance rights meaning that I can own a piece of music, but am limited to where I can actually play it unless I negotiate individually with the content holder; and

4. Incidental uses of content subject the user to infringement claims.  A woman recorded her 13-month old son dancing to Prince’s “Let’s Go Crazy.”  The video (all 29 seconds of it) was posted on YouTube and immediately was subject to a DMCA takedown notice.  Google complied.  The mother is now suing Universal (the entity that owns the song) for violation of fair use laws.  (Good for her). 

But these are old news and frankly, there are bigger fish to fry which I’ll get into during the series.  These are just tastes of how the archaic ways of copyright laws have not kept up with the times.  (And no, I’m not going argue that Napster was legal). 

  • Amen. Copyright law really does suck, especially when you have to explain its insanity to others.

  • Yep, agree that “so far” Google is okay with this stuff, but I’m hearing from a lot of scholars that they are very worried about it.  All it would take is one crazy court (that never happens, right?) that wanted to go a different direction because the law just doesn’t cover it well.

  • Hey Jason,

    In bullet #2 are you talking about the copying for the purposes of providing snippets (the basis of the two lawsuits) or for the so-called non-display uses that Google is getting a license to as part of the Settlement? Not that it matters especially, but the non-display uses were not the basis for the lawsuit, in part because the case is weaker (by which I mean the fair use case was stronger) but also because Google was originally pretty coy about the many non-display uses they had in mind. Strange that it now turns out that those might end up being one of the most important aspects of the Settlement (although at this point there's no way the Settlement is getting approved as is).

    And for as broken as copyright law is, I think Google's fair use argument under the current doctrine was pretty strong here. And I was really hoping they'd stick around to fight on that angle. That being said, the only reason they had the luxury of making that argument is b/c they have endless amounts of money to defend against a lawsuit and keep plugging away in court for years to protect an activity that maybe you think should be presumptively legal.

    Bullet #2 also reminded me of a case you may have heard of. There's not a whole lot of post-DMCA law on the liability of search engines for caching copyrighted material, but the case that comes to mind immediately is Field v. Google (412 F.Supp.2d 1106), which granted Google's motion for summary judgment and held Google fell within the DMCA safe harbor & was making fair use of the guy's stuff in any event. Essentially there were 4 or 5 independent justifications for considering Google's caching legal behavior.

    Anyways, I'm looking forward to reading and commenting on your upcoming series.