Heh, He Said “Dicta”

Last time, I tried to explain the main holdings from the important but maddening Flava Works v. Gunther (a/k/a myVidster) opinion by Judge Posner. Because so much of the decision is dicta (material that is unnecessary to the holding), and fascinating and bizarre dicta at that—basically, it’s Judge Posner arguing with himself—there’s a lot to react to.

So here they are: nine observations about the dicta in Judge Posner’s Opinion, in no particular order:

Are Wieners Copyrightable?

1. Judge Posner can’t help but spend an unnecessary but interesting paragraph (again, complete dicta) on whether pornography is copyrightable.* He seems to think it is, and the current legal authority (somewhat old and creaky) backs him up. Under First-Amendment principles, what constitutes pornography (“obscenity,” really) is a combination of national principles (whether it lacks some sort of artistic merit) and local values (the jury going, “Ewwwww!”). Copyright is a national system, so it shouldn’t change from locale to locale. If the local populace is truly disgusted by it, it can use other laws to discourage it, just leave copyright out of it.

* Judges who are stuck adjudicating mass-defendant BitTorrent cases involving pornography (as most of them do) have starting looking to this idea as a means of getting rid of such cases (or at least the ones with the porn).

But then he writes (again, complete dicta) that the doctrine of in pari delicto (“equally at fault”) could bar a finding of infringement. The pornographic work would still be copyrightable; it’s just that in that locale, it can’t be enforced. Judge Posner cites his own opinion in Schlueter v. Latek, which did not involve copyright (but involved real estate licenses under Wisconsin law).* As Judge Posner put it (and this isn’t normally how it’s put), “The point is only that a court will not adjudicate a case if a judgment for the plaintiff would encourage or reward criminal or other unlawful activity — and by the same token it will not enforce a defense of in pari delicto if the effect would be to encourage or reward a greater wrong.”

* Apparently, in pari delicto as a defense is just unclean hands by another name. If that’s the case, then it should apply only to equitable relief, like injunctions, not to damages.

Well, that’s a new one on me. I wonder if in pari delicto would really resolve the problem of using local community standards to affect a national scheme. In essence, certain kinds of copyrighted works would be unenforceable here and there. It’s something we’re used to in the trademark context, but it’s alien to copyright law. If I want to prove your content is illegal, whose law do I apply, when nationwide distribution is concerned?

2. Judge Posner can’t help but crack jokes. Noting that not everything in myVidster’s catalog of videos is pornographic: “It’s true that its home page … lists videos that range from the fighting in Syria to ‘Obamacare’ and ‘Ugliest Tattoos” and ‘Why You Should Spiral-Cut Your Wiener’ (and yes, that really is about hot dogs).”

If You’re Not “Contributing” to the Solution…/Google “Layer Cake”

3. JudgePosner doesn’t think much of the available definitions of contributory infringement. After surveying a few, he pretty much throws up his hands and picks one because it’s shortest. (No, really he does.) In part, this is because he doesn’t much care about the distinction between primary and secondary infringement. He thinks that applying “general tort principles” gets you to the same place. The idea, I think, is that as you get more remote from the wrongful act, you need to prove more intent, like a sliding scale.

I don’t think Judge Posner is proposing a sliding scale (see point 4 below). There are good reasons why courts prefer categories to sliding scales. For one thing, they’re easier. More important, people who must follow the law find categories easier to understand. Copyright law is hard enough to predict without adding a sliding-scale continuum to a key aspect of the law.

Nevertheless, it’s worth thinking about how such a sliding scale might operate in copyright law (or at least a much more granular set of categories). There is something intuitively just about it, it must be admitted. There are, after all, people who avoid being direct infringers only by the barest or technical of margins. With a sliding scale, you wouldn’t need to prove much bad intent. There are also people who seem very far removed from the bad act but who are pulling the strings with a very bad purpose. A sliding scale would make of them indirect infringers.

That’s a pretty one-way application, though, isn’t it? It wouldn’t help direct infringers at all. There is no “innocent infringer” defense*, even though it’s pretty easy for ordinary folks to accidentally infringe copyright (because so much copying is done invisibly in the digital world). To apply such a sliding scale truly justly, you’d have to have a much more robust conception of “innocent infringement.”

* Proof of “innocent infringement” can reduce statutory damages, but that’s not a defense. That’s not as great as it sounds because (1) there’s still actual damages; (2) whether and to what extent to apply it is a jury question, and juries are not terribly sympathetic to infringers; and (3) you still have to pay at least $250 per work infringed, and if you innocently infringed a lot of works, you’re still going to pay a lot.

4.  Still, Judge Posner may have been right to mock Google and Facebook (who submitted a joint amicus brief—you can guess why) for calling myVidster a “tertiary infringer.” The idea is that the uploader is the “primary infringer,” the myVidster customers are “secondary infringers” and myVidster itself is a “tertiary infringer.” He calls this argument “a species of layer cake,” which cracked me up. It’s not how many categories you are removed from the infringement, but the absolute distance.* His essential point is not so much that categories don’t matter at all, but that their demarcations must be based on remoteness from the bad act, not on how many links there are between you and the bad act.

* You might be two counties away from point A but still be much closer to point A than someone else who is in the same county as point A. Heck, if the county in question is San Bernadino, I think you can be three counties away.

No, Not that Definition, THAT Definition

5. Terry Hart of CopyHype argues that Judge Posner “makes a common mistake by bootstrapping the definition of what makes a performance ‘public’ into a definition of what a ‘performance’ is in the first place.” His point is that everyone focuses on the definition of “public” and conflates that with the definition of “performance.” In other words, just as not every performance is public (obviously), not everything that’s done publicly with a copyrighted work is a “performance” (or display).

As Hart points out, getting these two definitions mixed up can result in error. In U.S. v. ASCAP, ASCAP* argued that digital downloads constituted a public performance because the music, once downloaded, is played by different members of the public at different times, which falls within the definition of “publicly.” The Second Circuit gave ASCAP high marks for chutzpah, but rejected this argument because downloads aren’t performances. To perform a work means to “recite, render, play, dance or act it, either directly or by means of any device or process.”

* A performance rights organization. Like BMI and SESAC, it collects songwriter royalties (which, the way the music business is set up, are not paid directly to the songwriter but to the songwriter’s publisher) for public performances of copyrighted music—like when songs are played on the radio, or at a bar, etc.

Hart is right: Judge Posner does make this mistake. He skips over the definition of “performance” and goes straight to the definition of “publicly.” This is especially odd since the judge is, in fact, concerned about when a performance takes place, not whether it’s public, so you’d think he’d be reaching for the definition of “performance.” Had he considered the correct definition, he would have realized that “performance by uploading” isn’t a performance, for almost an exact mirror-image of the reasons why “performance by downloading” wasn’t a performance in ASCAP.

So, then, under Judge Posner’s real-world analogy, the direct infringer of a copyrighted movie is the projectionist, as she is the one playing the movie. The audience can’t possibly be direct infringers under this analogy.

But it’s not so simple in the digital world. The analogue to the projectionist would be third-party hosting site (remember myVidster doesn’t host the infringing content). But the analogy breaks down because the projectionist in this case doesn’t turn on the projector. It’s as though the audience climbs into the projection room and collectively turns on the projector.* In that case, isn’t the viewer the direct infringer, not the projectionist (who might be an indirect infringer if her assistance with the infringement was knowing)?**

* In fact, technically, the audience would to be supplying the projection machine, taking down from a shelf the movie they want to watch (where it’s been made available by the projectionist) and loading it with their projection machine. The software that “plays” the movie is actually resident on your local machine, and I don’t think there’s anything really remarkable about the way the movie is progressively downloaded to your machine.

** Despite what I may have written last week (and corrected), Cablevision didn’t so hold. It punted this issue. But I think its logical about “volition” is as applicable to public performances as to copying.

Oh, About That Camel’s Nose? Nice Try.

6. It gets weirder, because Flava didn’t argue public performance. It argued public display, because the way myVidster was set up, you could see a single still of Flava’s movies on myVidster’s website. True, the still was derived from content hosted elsewhere, but there it is on a myVidster webpage, displayed to the public without any special action by the viewer other than to browse to that webpage. Posner ignores this argument. Further, myVidster appeared to concede that the stills were displays (but disputed whether they were public), and the district court’s opinion is all about displays but makes no mention of performances.

Is showing a single still of a movie a “display”? The Copyright Act specifically says, yes. The definition of “display” specifically includes showing individual images of a motion picture “nonsequentially.”

Should this have made a difference? Well, as an initial matter, folks were playing very fast and loose with the definition of “display.” What was being displayed was a single image, so logically, the injunction should have been limited to the display of single images. Under such preliminary injunction, myVidster would still be able to link to movies; it just wouldn’t be able to show the stills.

But that’s not what was enjoined (read for yourself). myVidster was told to disable access to the movies themselves. Sure, that’s one way of stopping the display, but it also stops the performance. And let’s be honest here: what Flava wanted was to stop the performance of the movies. The display of single images isn’t a substitute for the whole thing.

That brings up another little tiny issue: fair use. The display of a single image of a movie stands a pretty good chance of being a fair use—or, at least, a good enough chance to defeat a motion for preliminary injunction. I’m not going to go through all the factors here, but it’s a tiny faction of the overall work used in a way that doesn’t substitute for the work itself. On the other hand, the use is at least a little bit commercial and not transformative.*

* Does the fact that the work is pornographic find application here? One of the sub-factors is how creative the underlying work is. Does porn qualify? How does one even determine that?

What happened, then, is Flava got a very broad injunction based on a very narrow theory. Instead of pointing this out, I guess Posner just looked at the preliminary injunction and said to himself, “What’s all this about display? They’ve clearly got an injunction against public performance here, so that’s what I’m going with.”

Metaphor Meta-Phail?

7. Posner seems to go out of his way to reject the “theft” metaphor for copyright infringement. He describes bypassing Flava’s paywall to view Flava’s content as “stealing a book and reading it,” which isn’t an infringement of the reproduction right. We lawyers are fond of describing copyright infringement as a species of theft, which it isn’t. That’s just a metaphor. And, honestly, a more accurate metaphor would be trespass to land.*

* Except the land is personal property. So, uh, dang.

One doesn’t wish to read too much into this, but at a minimum, Posner’s point is that copyright isn’t a moral law (like theft or murder) but a technical one (albeit one that should be interpreted through an economic prism). Not everyone would agree…

8. The DMCA has a safe harbor for certain kinds of linking. Well, more accurately, for “information location tools.” The safe harbor is for “referring or linking users to an online location containing infringing material or infringing activity, by using information location tools.” (Read it here—skip to subsection (d).) Search engines, directories, things like that. This safe harbor has the same requirements as the more familiar “information at the direction of users” safe harbor (take-down regime, etc.).

So linking to infringing content is illegal, right? Congress wouldn’t have carved out a safe-harbor if it wasn’t already illegal right? Well, no, and Judge Posner explains why:

Taken literally it would make the publication, online or otherwise, of any contact information concerning a copyrighted work a form of contributory infringement. A more plausible interpretation is that Congress wanted to make the safe harbor as capacious as possible—however broadly contributory infringement might be understood, the Internet service provider would be able to avoid liability.

Unfortunately, the district court got completely confused by this. Much of its order dealt with myVidster’s failure to comply with the safe harbor, especially its lack of a repeat infringer policy, without first examining whether myVidster needs the safe harbor in the first place.

Copyright and the Economic School of Jurisprudence

9. Judge Posner’s copyright opinions are notorious. They really are. He issues a lot of them, and he’s really hard to pin down, doctrinally. I really wonder if there’s a standing rule at the Seventh Circuit that any copyright case will have him on the panel.

I think Judge Posner has so much trouble with copyright law is that he is of the economic school of legal analysis. He believes court decisions should always lead to the most economically efficient result, at least where the court has any discretion. I personally love the approach, at least where the issues can be explained in economic terms.*

* You wouldn’t want to apply it to something like murder, right?

At first blush, economic theory ought to be a perfect fit for copyright. Copyright is all about economic incentives, right? The whole idea is to give creators enough protection, through control over their works, that they can make money, and perhaps even a living, at their creative endeavors. They’ll be incentivized to make even more and even better creations. Society benefits because we get to consume more creative output than we would otherwise. This comes at the cost of increase cost for creative goods. We pay more for books and movies because it’s worth it because it’ll ensure that we get even more and better books and movies down the line.

Copyright creates an artificial market where one really couldn’t exist by, essentially, giving the copyright owner control over supply. The owner can exploit the copyrighted work as much or as little as she wants. If she’s rational (in the economic sense) and knows what she’s doing, she’ll exploit it enough to satisfy demand and maximize her returns.

But copyright law is so much more than that. There are so many more public interests involved than in your typical market. In fact, it intersects with another “market”: the marketplace of ideas, which pushes copyright in all kinds of different directions, but generally prefers that ideas be untethered (but at the same time benefits from the incentives copyright creates).

The fact is we don’t understand very well how copyright markets work in the large scale. If we tighten copyright law, how much will creative output increase and/or improve? How much will prices increase? How much will free expression be hampered? And so on.

And if we don’t understand very well now, what chance do we have in the near future? The digital economy threatens the current theoretical model by weakening the control over supply. Should we respond by tightening copyright law? By how much? And are we really willing to pay the price? And how much do we stand to lose if we don’t? We have no idea. None. And anyone who tells you differently is selling something.*

* Ooh, the irony! I just linked to a 5-second clip from a copyrighted work!

With so few reference points, it’s no wonder Judge Posner’s economic analyses get lost in copyright cases. Yes, ruling in Flava’s favor would be economically sensible in one sense, in that it would be cheaper for copyright owners to enforce their copyrights. But it would be economically problematic, too, because  it would shift that burden not onto the direct wrongdoers but onto those that benefit, however indirectly, from that wrongdoing.

This is, of course, the debate we’ve been having for 15 years: who should pay for copyright enforcement? Everyone’s got an interest—that’s easy—but no one’s got a solution.

On that happy note: thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.