As argued in my recent article on private copyright enforcement and feedback loops, a deficit of transparency and public participation in private copyright enforcement has fostered gross overreach by copyright owners. A recent example of copyright overreach is amply demonstrated by the so-called Anti-Counterfeiting Trade Agreement, which was negotiated secretly and addresses far more than mere “counterfeiting.” (See here for a law professors’ letter I’ve signed against ACTA.)

It’s good to see such concerns echoed in the Congress’ just-released Declaration. For example:

International intellectual property policy making should be conducted through mechanisms of transparency and openness that encourage broad public participation. New rules should be made within the existing forums responsible for intellectual property policy, where both developed and developing countries have full representation, and where the texts of and forums for considering proposals are open. All new international intellectual property standards must be subject to democratic checks and balances, including domestic legislative approval and opportunities for judicial review.

Along similar lines, the Declaration calls excessive IP enforcement out to task, noting that “Government and private IP enforcement are commandeering greater social resources in order to impose stricter penalties than ever before, with fewer safeguards and less procedural fairness.” The Declaration contains many other important ideas, such as making sure that new IP protections are rooted in transparent research that demonstrates the need for new IP rights, including addressing the fact that fair uses and other IP limitations also generate economic value. Other important mentions are the importance of libraries and archives, strengthening IP exceptions, rejuvenating notice-based formalities, and much more.

I’d go on, but instead you should read the full document at http://infojustice.org/washington-declaration. Even better, sign it. (I did: I’m # 95.).

Scholars often focus on the substance of copyrights as opposed to the procedures used to enforce them.  Yet copyright enforcement procedures are at the root of significant overreach and deserve greater attention in academic literature.  This Article explores three types of private enforcement procedures: direct enforcement (cease-and-desist practice); indirect enforcement (DMCA takedowns); and automated enforcement (YouTube’s Content ID filtering program).  Such procedures can produce a “substance-procedure-substance” feedback loop that causes significant de facto overextensions of copyrights, particularly against those creating and sharing User-Generated Content (“UGC”).  To avoid this feedback, the Article proposes descriptive and normative frameworks aimed towards the creation of better procedures. Looking to the source of procedures, the relevant actors, and the functions of enforcement (the descriptive framework), the Article suggests principles of transparency, participation, and “balanced accuracy” (the normative framework) that might lead to private enforcement procedures that accommodate the reasonable cost and efficiency needs of copyright owners without trampling on UGC.

You can find the abstract and download the article here.

During yesterday’s interview, the two performers (Phoenix now cleaned up) discussed the film. After pleasantries, Letterman shifted into the IP issues (about 2:45 in). According to Letterman, his lawyers said he could sue, but that Phoenix’ lawyers claimed the use was fair use because it was for a documentary. Of course, it turned out to be otherwise — in Dave’s words, “Guess what, it’s no documentary. It was a theatrical ruse.” Moreover, he said, “I’m in it . . . at a pivotal point in the film.”

And now the demand: “Now you owe me a million bucks.” Ultimately, Phoenix promised, “We’ll work it out,” asking “but, can we talk about it privately?”

Click here to view the embedded video.

I find it odd in these days of sophisticated transactional lawyering that — regardless of any possible fair use — a commercial use like this would not have been cleared, in writing, in advance. Indeed, considering the “pivotal” role that the 2009 Letterman show appearance played in the film, it would appear crucial to nail down permission for that piece of IP, fair use or not. This is a film, where real money is at stake and risk-taking is usually quite low.

So is the demand real? Who knows. But for what it’s worth, a Letterman writer earlier claimed that Dave knew that the earlier, original 2009 appearance was a hoax. So I don’t know, but I sure hope that Dave’s demand is a gag. Considering that the Affleck/Phoenix movie is intended to explore the relationship between media and celebrity, it would be fitting to add our society’s constant stream of IP demands to the mix.

But then again, sometimes a demand is just a demand.

But the video is now down, and I wonder why. It wasn’t taken down by a DMCA take-down sent to YouTube, because the video now says it was removed by the user. An article at Networkworld.com confirms that Newsday removed the video. A Newsday rep stated: “We have taken the commercial ‘Flypaper’ down and its short, glorious run appears to be over.”

But why? Was the notoriously thin-skinned Apple upset? If so, that’s idiotic. Is Apple worried that people will start assaulting insects with their technology? Remember, Apple: iPads don’t kill people, people kill people!

Bottom line: if Apple is putting pressure on Newsday, shame on Apple. If Newsday — a news organization — is caving to demands from Apple, then double-shame on Newsday.

But as pointed out by Networkworld.com, we don’t know (yet) what happened, and Newsday is being tight-lipped with the reasons.

Well, Apple? Newsday?

Below is a side-by-side comparison of the original and new video.

I’m glad to see that nothing (yet) has been done to try to take down the video.  The video also makes me wonder about what we mean when we use the term “mash-up.”  As far as mash-ups go, Galactica: Sabotage is dissimilar to Danger Mouse’s mash-up classic Grey Album, which juxtaposed music samples from the Beatles’ White Album with vocals from Jay-Z’s Black Album.  In such a mash-up, you simultaneously hear portions from both sources.  It’s music with music.

However in form (but perhaps not function), Galactica: Sabotage is different.  Same music, but new video clips substituted for the original.  Perhaps such mash-ups by substitution are more like “smash-ups,” i.e., substitution + mash-up.  Like the Grey Album, there’s still juxtaposition, but the juxtaposition is provided by what’s absent rather than by what’s present.

This substitution may significantly deepen the level of knowledge required to appreciate the smash-up.  With the Grey Album, one need only know The Beatles’ original.  Even if one isn’t familiar with rap, one can appreciate the juxtaposition of Jay-Z’s lyrics with The Beatles’ music.  And if one is familiar with both, then the level of appreciation is much deeper.

But to be truly appreciated, the Galactica: Sabotage smash-up requires a much deeper level of knowledge.  Without knowledge of the missing original images, it’s harder to appreciate how the substituted video tracks and pays homage to the original.  Of course, the same might be said of Quentin Tarantino movies, which themselves pay near-continual homage to the history of film.  But recognizing the homage is not a prerequisite to enjoying them.

I think the proper role for statutory damages is to provide a basis for damages when actual damages or defendant’s profits are hard to compute or are nominal.  Here, actual damages may be nominal, since the cost of each song is more or less a dollar.  Statutory damages need to have enough of a bite that the plaintiff will have a legitimate remedy.  But they shouldn’t be so excessive that they give a plaintiff a windfall.  In the Tenenbaum case, $22,500 per song is such a windfall.  Sure, the jury might have awarded $150,000 per song for a total of $4.5 million.  But the fact that the jury didn’t go to the max doesn’t make $22,500 per song any less punitive.  If a bully breaks your nose, it’s no defense for him to say that he could have broken your arms, too, but chose not to.

That’s not to say that Tenenbaum should only be liable for $1 per song.  There are other purposes to statutory damages.  Reasonable deterrence — both specific and general — can also be appropriate.  But $22,500 per song is not necessary for such deterrence.  Even at a minimum level of $750 per song, the total damages would still be $22,500 total.  Tenenbaum may also be liable for plaintiff’s attorney’s fees, which would be many, many thousands more.  $22,500 plus attorneys fees is nothing to sneeze at, and for many, would amount to personal bankruptcy.  All this for 30 songs.

This brings me to my suggestion that statutory damages may have helped to kill the music industry.  The power of possible statutory damages is undeniable.  Someone who downloads 10 songs is liable, at least in theory, for $1.5 million plus attorney’s fees.  Whoa!  Such theoretical liability is chilling, and the music industry has relied on it to try to deter file sharers.  But I have to wonder if statutory damages also made the music industry complacent.  Instead of spending critical years of trying to adapt its business model to the internet, the industry spent years suing its own customers.  In the meantime, newcomers such as the iTunes store, swooped in to create new business models to take advantage.

When you see it you’ll know quick.
Things marked Yuk make you sick.
Sick sick sick.
Sick sick sick.
Mr. Yuk is mean.
Mr. Yuk is green.

Mr. Yuk also led to an interesting IP dispute.  According to WTAE, a Minnesota council member was using a face similar to Mr. Yuk on lawn signs (and from the video, also on a website) regarding an upcoming vote to amend a city charter.  Lawyers for the University of Pittsburgh Medical Center protested the usage, and the council member (himself a lawyer) claimed fair use.

Click here to view the embedded video.

The website shown in the 2007 video is still online (I’m pretty sure it’s the same URL though the video report’s resolution isn’t very good).  The Mr. Yuk-like symbol now sports an eye patch.

H/T to IO9.com.  Vid from CollegeHumor.com.