Barely Legally

Confessions of a Moot Court Bailiff

That's Just Wrong

The New Yorker has a curious article about copyright which begins with a discourse on the Statue of Anne, the 18th century British copyright law.

I say ”curious” because the article starts out strong before taking a stunning nose dive in accuracy when it gets to the part about copyright on the World Wide Web: it claims linking to articles online is a form of copyright infringement.

Huh. Well, let’s hear it, then:

When you click on a link, you have the sensation that you no longer are at a place called awesomestuff.com but have been virtually transported to an entirely different place, called newyorker.com. A visual change is experienced as a physical change. The link is treated as a footnote; it’s as though you were taking another book off the shelf.

You’re mixing your metaphors, but I’m with you so far.

Some courts have questioned the use of links that import content from another Web site without changing the URL, a practice known as “framing.” But it’s hard to see much difference.

Okay. Whoa. Pause. Giant error number one. There’s a titanic difference between me linking to your article and me embedding your article in a frame on my web site. A link does not intrinsically have anyone else’s copyrighted content. How is anyone’s copyright violated with this link? Should I anticipate a cease and desist order from Ms. Swift’s attorneys? How about this? Linking is not embedding full stop.

What you mean is ‘pirate-bloggers are copying and pasting copyrighted bits of articles onto their own web sites, and I’m a copyright maximalist who feels that fair use is, well, unfair.’

We can disagree about how fair is fair, but let’s agree that linking is not framing and vice versa. Okay. We agree that wholesale copying is probably bad and linking is A Different Thing from that. And that sites which exist only to do the former are lousy.

it gets pretty weird

There’s a bit about how your web browser’s Back button means that even when you click a link, you’re still on the original domain, because you don’t have to do any extra work to get back to the linking site. At least I think. The author’s confusion confuses me. Back buttons work across domains. Unless you’re accusing bloggers of stealing your layout to confuse readers, this simply makes zero sense.

Back to business:

Effectively, awesomestuff.com has stolen content from newyorker.com, just as the compiler of “Most Thoughtful Essays” stole content from me.

Again, a conflation of two very separate practices. It’s puzzling; this article began as such a lucid recitation of copyright.

A magazine which reprints your article is not the same thing as a footnote or link to your article. The former is infringing. The latter is not. One has your content, one directs people to your content.

The folks at awesomestuff.com and their V. C. backers are attracting traffic to their Web site, with its many banner ads for awesome stuff, using material created by other people.

Well, yeah. That’s lousy but that is not linking. If the article proceeded to cite a bunch of studies about the prevalence of “link to New Yorker articles” sites compared to “plagiarize articles for our VC-backers” sites, this sentence would make a lot more sense. Instead, this conclusion doesn’t follow from this argument’s premises.

it’s not all bad

Later, the article observes that the Constitution empowers Congress to set copyright at a limited term, and only mentions in passing that Congress has repeatedly extended that term. I think that would have been a good time to go into what it means to be “limited” if copyright essentially lasts forever and gets extended anytime Mickey Mouse would otherwise lapse into the public domain. (2024, for those of you keeping score at home. I’m not holding my breath.)

The article continues into a rather cogent accounting of the orphan works problem and how much of the economic justification for extending copyright is nonsense: Congress isn’t going to incentivize James Joyce to write Ulysses again. He already wrote it and now he’s quite dead, but Congress is still going to re-re-re-extend Joyce’s copyright. This despite the fact that, again, the Constitution only authorizes Congress to pass copyright laws to promote (i.e. incentivize) the arts.

The article is pretty good for this bit. Granted, in the course of summing up the landscape on these issues, the odd straw man happens here and there. In reality, it’s probably for the best that an article with limited space gets (this part of) the law right and the views of IP minimalists wrong.

moral low ground

We work our way back to the present day with a summary of views on copyright: you’re either a maximalist or a minimalist. Hollywood is the former and Silicon Valley is the latter. Freelancers like the author fall somewhere in between, arguing that the erosion of their rights is most apparent in the publication of iTunes previews and snippets on web searches against authors’ wishes.

Note that the Second Circuit has held that snippets are Fair Use even for giant tech companies and giant publishing companies, which has nothing to do with your status as a disenfranchised freelancer.

This is, however, a perfect place to talk about the arguments for moral rights in American copyright law. The author drops the ball or punts it or is simply unaware there’s a ball. It comes up later, but first we have to struggle through a staggeringly poor version of the DMCA.

Then we get to this bit:

On the Web, the general rule—known as a “take-down notice”—is that you can post almost anything as long as you take it down when the rights holder complains.

This is a spectacular failure to sum up the Digital Millenium Copyright Act’s “safe harbor” provision, which creates the notice and takedown dance he’s attempting to describe. This is simply wrong. If I run a web site and I post something, I lose the protection of the DMCA’s safe harbor. The law says my users can post almost anything and I can’t be sued as long as I accept and respond to standard DMCA notices. That’s the difference between Grooveshark and 8tracks.

Having bungled its way through the rest of copyright law, the article takes a swing at Fair Use with predictably poor results.

Professors who copy material for use in class are frequently uncertain whether or not they need to seek permission.

That’s only true for professors who aren’t IP attorneys (which is admittedly nearly all of them). This isn’t a failing of Fair Use itself so much as attorneys as a whole to educate the public about their rights. In fact, an educational use is just about always an airtight Fair Use claim. Just… you know, don’t go photocopying five whole textbooks and passing them out to hundreds of students and you’ll be fine. This kind of highly technical balancing test is called the Straight Face test. Can you say it without laughing? Then it’s a good defense.

screw it

Believe it or not, I actually left out plenty of errors from the New Yorker’s article. There are just too many to run through them all. Putting on my law professor hat, this is barely a C paper. Probably C- because, rather than omit discussion of so many issues, this article incorrectly states the law and the issues. Repeatedly.

Copyright is hundreds of years old, and it’s extremely complicated. This article is extremely ambitious, and unsuccessfully attempts to cover far too much. The author, Louis Menand, is obviously a brilliant writer and thinker in plenty of other areas, but intellectual property may not be one of them. Which is fine. If the New Yorker needs an IP attorney to proofread these kinds of articles in the future, I’d do it for free.