Reversing the vicious circle of custom

Wendy Gordon is the Philip S. Beck Professor of Law, Boston University School of Law, and is currently serving as the Bacon-Kilkenny Distinguished Visiting Professor of Law at Fordham University School of Law.

Now that Apple is removing DRM from its itunes songs, newspapers are trumpeting the move in ways like this: “COPY AN ITUNES SONG? GO AHEAD, APPLE SAYS.”

The copyright purist that lurks in me has the urge to remind the news-writers that removing DRM doesn’t also remove copyright’s legal restraints. But then…. if no one corrects the error, and the public begins assuming that an absence of DRM amounts to a permission to copy…. and if the record companies don’t correct the prevalent error… then music copyists will get a defense of IMPLIED CONSENT wherever DRM is absent from a song they’ve purchased.

If so, that in turn would make the newspapers’ overstatement true.  It would also make what too often is custom’s vicious circle, into a virtuous one. 

In addition, maybe the implied-consent defense (in the form perhaps of a quasi-estoppel argument) would even extend to people who copy recordings they didn’t initially purchase. After all, it’s not crazy for people to think that copyright owners could consent to what’s sometimes called ‘piracy’ and sometimes called ‘sharing’.  Un-negotiated copying can serve the copyright owner’s self-interest in many circumstances, as Ariel Katz, Mike Meurer, Doug Lichtman and others have reminded us.

Of course, the newspapers aren’t the only ones doing the work of turning custom’s wheel toward the public’s direction.  See, e.g., Best Standards project of Peter Jaszi and Pat Aufderheide, now joined also by Lewis Hyde and others.

For more on consent and copyright, see e.g., Jennifer Rothman’s piece, “The Questionable Use of Custom in Intellectual Property” in 93 Virginia L Rev 1899 (2007) and Jim Gibson’s “Risk Aversion and Rights Accretion in Intellectual Property Law”, 116 Yale L J 882 (2007); you might also see my reply to Jim in “The ‘Why’ of Markets: Fair Use and Circularity“, 116 YALE L.J. POCKET PART 358 (2007). For the Katz piece, it appears as “A Network Effects Perspective on Software Piracy” at 55 University of Toronto Law Journal 155 (2005); Giuseppina D’Agostino, has published various pieces on consent in freelance publishing, such as “Freelance Authors for Free: Globalisation of Publishing, Convergence of Copyright Contracts and Divergence of Judicial Reasoning” in F Macmillan (ed) New Directions in Copyright (Edward Elgar Cheltenham 2005) and “Canada’s Robertson Ruling: Any Practical Significance for the Copyright Treatment of Freelance Authors?” [2007] 2 EIPR 66.  For Mike Meurer, Doug Lichtman and others, see the literature on price discrimination: if works are shared, they become more valuable, and a person who intends to share a copy she purchases will be willing (under certain circumstances) to pay more for it.

  1. Thanks for the plug, Wendy. To a large extent, copyright jurisprudence works under the assumption that any unauthorized copy makes the copyright owner worse off and therefore entitled to a remedy, or at least as well off as if no copying had taken place (e.g., because the transaction cost of licensing are prohibitive), in which case no remedy is granted (see Wendy Gordon’s Fair Use as Market Failure). However, the more legally tricky question is what is the legal significance of the following observations:
    (a) we see copyright owners who decide not to employ available technological protection measures (TPM) or discontinue the use of TPM (we saw that in the case of software in the 1980s and now in sound recordings);
    (b) we have some theory (e.g., the articles that Wendy cites) that explains some instances of (a). That is, why there are situations in which not protecting (and allowing sharing or piracy) may be beneficial to copyright owners.
    If (b) is correct (and as a contributor to (b) I hope it is) and (a) happens as a result of (b), then it may seem desirable that this would have some legal significance. That is, that a remedy should be denied when a copyright owner decided to tolerate sharing because sharing is profitable to her. Of course, one can easily dismiss that view by suggesting that a copyright owner who benefits from tolerating piracy will not sue, and therefore it is a moot question. However, as I discuss in my paper, there might be situations whereby the copyright owner may act opportunistically. She may strategically tolerate piracy at stage 1 and then sue at stage 2, thus exploiting the consumer lock-in in order to extract higher license fees in settlement; or she may tolerate piracy by end users but still sue some intermediaries in order to get a share of their profits even if no harm was caused.
    The legally challenging question arises because the several models of profitable piracy/sharing it as a form of tacit price discrimination. Therefore, piracy can be profitable if and only if just some users copy, while others still buy. In many cases this can only happens if piracy is only tacitly tolerated. Thus, it is difficult to invoke a concept of an implied license unless the implied license analysis can be sophisticated and fine-tuned enough to distinguish between the users that the copyright owner wants to pirate and those whom she desires would buy. I’m not sure how we can infer the existence of an implied license the content of which is something like “I agree that you copy the software as long as you are a low-frequency home user who isn’t willing to pay the full market price, but not if you are a high-frequency home or business user”, or “if you paid $1 for the song you may make copies and give them to your friends, but only to your friends who aren’t willing to pay $1”.
    The other problem with implied license is that in some of the models referred to above profit is maximized when officially the copyright owner objects to any piracy but tacitly approves it. If there is an express rejection of a license to copy it is difficult to see how the court will find an implied license. Moreover, if courts will find an implied license nonetheless, copyright owners might respond by stopping to tolerate the limited piracy, a move that will render everyone worse off.
    Therefore, while we may justifiably want to take into account the fact that a copyright owner may have profitably tolerated piracy, it’s not clear to me in what ways we can do that without being counterproductive. In my paper I suggested that adjusting the remedy to prevent opportunistic lawsuits (e.g., injunctions, statutory damages, criminal liability) might be the only legal adjustment that can be made, but I’ll be happy to hear other views.

  2. Is it not a bit of a jump from “permission to copy” to “permission to copy and distribute”? I’m not sure the NYTimes article says anything that calls for correction. The explicit purpose of removing DRM is to allow users to copy for personal use (e.g., to their non-Apple music player). The music is still tagged with the user’s ID (so that if you give copies of music to a friend, it could be shown that you bought it and not them).

    Let’s say I rent a friend a car on the condition that only he drives it. I could prevent him from sharing the car by removing the steering wheel or putting a boot on the wheel. That option being available, would my choice not to do so imply consent for my friend to let somebody else drive it?

    I do think that DRM being available, the omission of it should become seen as consent for personal copying. But, given the RIAA’s publicly opposition to sharing, I don’t think people could reasonably go so far to see the omission as automatic permission to share.

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