Twenty-First Century Battles and Eighteenth Century Tools: Copyright in the COVID-19 Era
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Michael Madison is Professor of Law at the University of Pittsburgh, where he directs the Future Law Project and is Senior Scholar at Pitt Cyber. His research focuses on institutions for producing and distributing knowledge, information, creativity, innovation, art, and data. Among his many publications are some of the foundational articles on the practice of fair use, and he has served as a member of the legal advisory board of the American University Center for Media and Social Impact. The following interview has been edited and condensed for clarity.
Brendan Kredell: Mike, thanks for making time for this interview. Professors around the globe have spent the last year adapting the way they teach to the novel challenges that the COVID-19 pandemic represents. But I wonder if we might begin with a more basic question: is there anything novel about the legal and policy questions the pandemic raises?
Michael Madison: The most salient and pressing pandemic-motivated copyright issues concern access. How can readers, listeners, viewers, students, and so on, read, hear, see, and study material in remote and distributed environments, when a lot of the material infrastructures that we used to rely on are suspended, at least temporarily and perhaps permanently? Teachers and students aren’t in classrooms; patrons can’t easily access physical copies of works in library collections. Licensing digital material can cover some gaps in well-resourced institutions, but that only goes so far. Via Zoom and a lot of other innovations, teachers and students are making do. The copyright system, which was designed for the older material infrastructures (and related publishing industries) doesn’t offer much clear assurance that everyone is on the safe side of possible liabilities.
The situation today reminds me of the “Celestial Jukebox” metaphor that the great copyright scholar Paul Goldstein used, back in the 1990s, to prime intuitions about what “cyber” technology would bring to media and eventually to law. Professor Goldstein asked, in effect, what changes to copyright would be necessary to facilitate the emergence of what then seemed to be a wonderful prospective development: satellites orbiting the earth, controlled by publishers and other distributors, that could beam creative content on demand to consumers across the United States, and eventually to the world.
We now have related “jukeboxes,” on account of the pandemic. But they’re terrestrial. They sit in thousands of homes around the world. Maybe millions. And while copyright has adapted to internet technologies over the last 25 years in all sorts of ways, and while copyright policymakers might have seen this latest development coming (the home-based “jukeboxes,” not the pandemic), the system isn’t ready.
In short, the conceptual issues here aren’t novel. It’s been true for a while, technologically-speaking, that I (I myself!) could build a server in my basement, stock it with digital copies of all sorts of media, and rely on a high-speed home-based internet connection to stream that content as broadly or narrowly as I wish. In current copyright law, doing that would raise questions about first sale and exhaustion, about fair use, and about reproduction and public performance. Courts have been adjudicating those questions for a number of years, mostly (though not entirely) coming down in favor of copyright owners: authors and publishers.
Teachers, for the most part, have been caught in the crossfire of commercial interests; it’s been rare to have educational questions at the forefront of litigated cases. College and university counsel are (predictably) risk-averse. (Lawyers in secondary and primary education are even more so, even assuming – contrary to most of my experience – that they know anything about IP law at all.) For more than a decade, colleges and universities have been migrating course administration and a lot of pedagogy onto campus-wide courseware platforms that are optimized to sync with copyright permissions systems for media content. That means that the space in which teachers may exercise their judgment about what content to use with students, and how, is getting narrower and narrower, both in cultural terms (as teachers understandably inherit administrators’ caution) and in technical terms (if using courseware is mandatory, and if all content delivered via courseware must be licensed).
What’s different today is the scale of the question, rather than its character.
BK: Given that, are there any ways that efforts in other fields – say, work on knowledge commons and intellectual property sharing – can help us better navigate the thicket we find ourselves in?
MM: So far as I’m aware, there is nothing in legislative, judicial, or administrative hoppers, and nothing that has come through the law-making pipeline, to adapt the existing copyright system to pandemic-based issues. The highest profile formal conflict that I’m aware of pits a group of New York-based publishers against the Internet Archive, challenging controlled digital lending. But the issues in that case aren’t specific to the pandemic; publishers have long sought ways to limit distribution of digital texts. The periodic Copyright Office review of exemptions to section 1201 of the DMCA, where media educator questions have been located for some time, is ongoing.
What should teachers (and students) do, given the above? Staying under the proverbial radar is one time-honored strategy but one that comes with unknowable risks. Copyright owners aren’t bound by any expectation that all bets are off in the COVID era.
As always, general fair use principles apply, along with specific fair use guardrails appropriate to teaching. The “best practices” statements produced by the Center for Media and Social Impact at American University can be extremely helpful, though teachers (and others) should read them carefully. They’re guidance, based on research, but they’re not law.
For political (small-p), strategic, and rhetorical purposes – which is to say, not only for typically “legal” purposes — I usually believe that there is strength in numbers. Both the motivation for the “best practices” statements and a significant benefit of those statements has been the self-reflective community of interest, or a community of practice, with shared values and expectations that enable uses of creative content and prescribe limits on those uses. Community practice can be expressed via arguments in fair use itself; a number of courts have acknowledged the role that communities play in establishing both fair use and its boundaries. That seems to be due not simply to emphasis on “customary use” (which has rarely been a good metric for fair use) but instead to recognition of the implicitly “self-policing” character of a proper community (which keeps fair use claims from edging toward the extreme). Community practice can be documented via efforts to produce fair licensing systems. A single teacher may feel exposed and at risk for streaming media to their students; a community of teachers has a stronger voice, both speaking to its members and also speaking to outsiders – such as copyright owners, or campus administrators.
BK: On this question of community practice: it's clear already that many of the things that arose as responses to a crisis will persist as new norms of the post-COVID era. One of the effects of the pandemic has been to mainstream the practices of online teaching: hybrid learning isn't going away, streaming media isn't going away, courseware isn't going away, etc. How should professors and universities best direct their advocacy moving forward in order to develop a foundation that will sustain teaching and creative work in light of these developments?
MM: Longer term, I think that community formation, identity, and expression should and will remain critical, and (relatedly) the community needs to educate itself about what copyright really is (and is not) and what copyright really does (and does not do). Copyright questions affect every campus citizen; patent questions and trademark questions do not. But it’s also important to stress that copyright issues are frequently tangled up with other issues at the heart of college and university administration (and education generally): Budgets and funding streams. The infection of campus communities by corporate and commercial interests, including, but hardly limited to commercial publishers. Contingent employment status and security of employment. Status hierarchies that distinguish science, engineering, and computing disciplines from humanities disciplines and non-computational social sciences. Privacy and computer security anxiety stemming from accreditation oversight and regulatory oversight that accompanies sponsored research. The blending and evolution of academic disciplines. The character of scholarly publishing. The changing expectations and habits of students. Internationalization and its conflicts. Structural barriers to equity for women and people of color, among teachers, students, and other campus citizens.
In my experience, often teachers express what they think are copyright arguments (both as to things they own and as to things they want to use), yet it turns out that their true concerns and problems are not copyright-related at all. But copyright seems to provide an easy rhetoric of “I control this” and “I am entitled to do that.” Copyright is both more nuanced than that, and not capacious enough to handle all of the politics of contemporary and future education.
In short, it’s important for communities of teachers to focus on copyright in teaching (and copyright on campus generally) as a framework for thinking about goals and tradeoffs associated with knowledge, research, and education. It is all too tempting for teachers to express their anxieties about careers, about salaries, about rewards and recognition, and about their authority vis à vis their students in terms of control over content: access to media, syllabi, terms of promotion and scholarly publication and the like. The displacement is understandable, but copyright isn’t the place for those anxieties.
BK: Elsewhere in this dossier, there is discussion of how these issues of copyright impact academics in the British and Canadian contexts. At the risk of a naive question: whether we’re talking about fair use or fair dealing, how much of the conversation revolves around the principle of “fairness” itself? And to the extent that it does, how should we understand that?
MM: The name given to the doctrine of fair use is misleading. The name arose in judicial practice in the 19th century, largely because much of early American “fair use” law drew on existing English “fair dealing” law. And English law (now UK law), then and now, does at times frame related issues in “fairness” terms. But US law almost never does. Trying to squeeze contemporary fair use thinking – or practice – into fairness conversations is a bit like trying to squeeze a model ship into a glass bottle. It can be done, but little is gained. Once you’ve passed through the narrow neck, the ship simply stands up again. The shape of the bottle doesn’t change the character of the object.
At ground level, virtually all lawyers, judges, and scholars today agree that the vast bulk of the analytic work in fair use is done by the twin concepts of “transformative use” (broadly, in what respects did the accused infringer re-purpose the original work?) and “economic harm” (broadly, did the accused infringer appropriate any reasonably expected profits associated with the original?). “Fairness” isn’t a part of that equation.
Even stating the matter that way obscures a key point, which is that “fairness” as a concept is either too simplistic or too complex to be helpful in trying to understand the character of the law or its application. “Fairness” is relational and contextual. Fairness to whom? From whose point of view? At what point in time? Against what background, that is, what starting points? And to what end? What’s the goal? We could talk about Aristotle, Kant, and Rawls, or Mill and Bentham, or Locke and Hume. Just to focus on well-known Westerners. Copyright scholars have been known to do all of that, and journals and tenure portfolios are filled with their work. In my view, it’s thought-provoking intellectually, but almost always useless pragmatically.
Setting the name-dropping aside, at a broad level, it’s reasonable to think of copyright law and policy as one element of a world of “information ethics” or “knowledge ethics,” in which one or more concepts of “fairness” (along with economics, and other things) help to construct a normative vision of how new and existing knowledge arises and circulates. Note the future-oriented character of that statement; hundreds of years after the invention of modern copyright, we still lack a widely-accepted, persuasive, comprehensive normative vision of knowledge ecologies. (“Knowledge ecologies” is itself a subtly metaphorical normative statement and one that is not generally accepted in copyright scholarship or practice.) Pressing on the mechanics of fair use doesn’t disrupt the process of constructing that world, in my view. The mechanics are essential parts of that process, because the mechanics are exactly how we collectively go about trying to solve the actual problems that people encounter. And it’s consistent with my view of “information ethics” that lawyers and others (creators, teachers, students) should distinguish between the role of copyright in managing information and knowledge flows (on the one hand) and the role of other bodies of law and policy in addressing questions of equity in other respects, such as security of employment. These (using creative material in teaching, and building stable careers in teaching and research) aren’t unrelated problems, but they generally call for different sorts of solutions.
BK: If I might ask a specifically legal question: the US Supreme Court recently issued a decision in Allen v. Cooper that has caught the attention of many faculty members grappling with questions of how copyright applies in institutional contexts. Should university faculty take comfort in the sovereign immunity decision in Allen?
MM: My brief thought here is that we’re all in the very preliminary stages of digesting how that decision will get translated into practice on the ground. The case itself is about a point of constitutional law, not copyright law. It arose out of an extraordinary set of circumstances, and as a legal matter the Court largely used the opinion to re-affirm a pre-existing point of law. From the standpoint of any particular university faculty member, a couple of things are worth noting:
One, the opinion applies on its face only to public institutions. Anyone who teaches at a private college or university is not affected in the least.
Two, the opinion applies in the first place to the institution itself. Logically, that means that it should extend to agents of the institution acting in their institutional role(s), including professional staff and teachers, at least so long as they are abiding by their institution’s rules. So local practice will matter. On the ground, one should expect that the first cut at understanding and applying Allen will take place in general counsels’ offices and faculty governance processes, as campus citizens continue to sort out the details of campus-wide policies on using copyrighted materials for teaching. For risk management and other purposes, a university administration may counsel compliance with copyright owners’ licensing expectations even if Allen suggests that the risk may be low to nonexistent. If that happens (i.e., if policy says: get permission), and if teachers are accused of infringement, then it’s possible that Allen won’t protect them. Copyright owners generally have a stomach for litigation and the resources to advance it; universities and colleges often have neither.
MM: This is a great question, or series of questions, and like all great questions, it has no simple or straightforward answer. But there is plenty to worry about.
Let’s begin with a foundational piece of copyright metaphysics, which is too often invoked by rote but then forgotten. Copyright law developed in a world of physical things that embodied expressive works. Books, to be precise; as I tell my students, the vast majority of copyright law, policy, and theory starts with thinking about books, about the economics of book publishing, and about the mechanics of accessing material in books.
Everything else is covered by copyright to the extent that it is “like” or “unlike” books, in terms of physics or economics or both. If we stick with books, then copyright’s metaphysics seem to make sense: copyright “attaches” to the intangible expressive “work of authorship” that is contained within each printed copy of a bound volume. We may have one million copies of To Kill a Mockingbird, but assuming that each copy is an identical and authentic reproduction of Harper Lee’s creation, then we have only one “work of authorship.” The first is the container; the second is content.
For books, that division of “things” leads to a plausible division of legal systems: the physical books (containers) are governed by old-fashioned tangible property law, that is, the law of chattels (state law, usually, in our federal system); the intangible works of authorship (the content) are governed by copyright law (which is federal law). When I buy a book, I’m engaged in contract formation and performance; I’ve exchanged money for the container. When I copy a book without permission, I’m engaged in copyright infringement. I’ve appropriated the content.
These metaphysics of copyright aren’t really as straightforward as copyright lawyers and judges have taught themselves to believe (the metaphysics were largely invented to justify the claims of publishers to control the circulation of things they produced), but they usually work well enough in the analog world. In the digital world, the metaphysics break down entirely, and they’ve been breaking down consistently since the mid-1980s, when separately packaged computer software became a commercial reality. Nevertheless, for almost all purposes, modern copyright lawyers and judges invoke the metaphysics in software and digital goods cases (“the copyright applies to the expressive content conveyed via the digital media but not to the media themselves”). That duality sort of holds up when we’re looking at floppy disks, CDs, and Blu-rays. (It really doesn’t; floppies, CDs, and Blu-rays aren’t really “containers” in the same sense that books are.) The duality falls apart entirely when we get to streamed content, digital downloads, and the like. But I’m making a conceptual observation about “falling apart.” The duality is in the copyright statute, and for that reason as well as copyright’s history, the duality still has a kind of talismanic character.
BK: So as a practical matter, how much of this conversation about copyright and fair use is pre-empted by these contractual agreements we’re all entering into with private entities in order to stream a TV show or upload a video?
BK: Is there a way to adapt the processes developed for physical media (e.g. 1201 exemptions) into a streaming-only world, or do we need to reconcile ourselves to the idea that YouTube will take over the role of adjudicating fair use?
MM: The metaphysics of copyright also lie beneath what’s still useful and what’s not about the DMCA and section 1201. It’s true that the DMCA was developed in an era (the late 1990s) that preceded streaming, but the DMCA adopts the conceptual vocabulary of copyright’s metaphysics (container/content) without adopting its analog preconditions. Nothing in the DMCA or section 1201 or the exceptions process assumes that problems are being created or solved as to access only to analog objects. The metaphysics of copyright that courts “ported” from books to software in the mid-1980s still works reasonably well for digital objects and streamed content, at least so long as one holds on to the highly fictionalized version of those metaphysics that courts constructed around code in the first place. The DMCA exceptions process can be extremely arcane, technologically speaking, because the metaphysics of copyright dictate that one must locate an appropriate “container/content” distinction on which to hang the rule. But the logic of that distinction carries on, formally.
Of course, debates about accessing YouTube content – whether, for example, developers should be able to share and consumers (including teachers and students) should be able to access tools that allow them to download and store YouTube videos – show just how fictionalized copyright’s metaphysics have become. It’s wrong to wonder – at this point – whether this problem implicates YouTube (among other entities) as threats to public governance of copyright-relevant material. Streams and digital objects are simply showing us that the foundational concepts of copyright – the container/content distinction, grounded in the book publishing world – are exhausted.
That doesn’t help anyone solve a problem on the ground today. Perhaps it helps to explain why copyright today is so fraught, on all sides. We’re fighting 21st century battles with 18th century tools.
But YouTube (now for different rhetorical and practical purposes) has 21st century tools. One might ask “will YouTube take over adjudicating what is and is not copyright infringement?,” and the answer is: to a meaningful degree, for audiovisual content, it already has. Copyright scholars have a lively debate going on in law journals about whether fair use decisions can or should be automated through one or more AI systems, but the truth of the matter is that YouTube is rapidly doing this already. To the extent that other social media platforms are not doing this, to the extent and with the sophistication that YouTube is doing it, then I expect that other social media will get better at it in the near future. Or at least they will be more aggressive and comprehensive about trying to do it.
Is that worrisome? Certainly. Is there anything in the near term that we can do about it? I don’t know. I do think that there are few tools within copyright law that we can deploy as tools of resistance; having lost the preemption battle, for the most part, “public” values aren’t implicated directly in these “private” governance systems. The two better tools are located within debates about AI itself (can it be made to function better, whatever “better” might look like?) and within antitrust law (which is making a comeback, but which is largely – so far – a 20th century tool being deployed in 21st century battles). There was a moment, over the last 10 years, when a number of scholars and even some policymakers thought that we might collectively re-imagine and re-document copyright on a going-forward basis, much in the style of the revision processes that led to the 1976 and 1909 Acts. Maybe we could start with a metaphysics that makes sense, or abandon metaphysics altogether? Unfortunately, at this point, the collective energy behind that project seems to have dissipated.
Michael Madison is Professor of Law at the University of Pittsburgh School of Law. He is a Senior Scholar with theUniversity of Pittsburgh Institute for Cyber Law, Policy, and Security (Pitt Cyber). At Pitt Law, he is Faculty Director of theFuture Law Project and a John E. Murray Faculty Scholar.
Brendan Kredell is an Associate Professor of Film Studies and Production at Oakland University. His research focuses on the intersection of media and urban studies, the application of digital humanities tools to the study of media audiences, and film festivals. He is the co-editor (with Marijke de Valck and Skadi Loist) of Film Festivals: History, Theory, Method, Practice and the forthcoming Routledge Companion to Media and the City (with Germaine Halegoua and Erica Stein.)
Madison refers here to Paul Goldstein, Copyright’s Highway: From Gutenberg to the Celestial Jukebox (Stanford, CA: Stanford University Press, 2003). ↑
The case here is Hachette Book Group, et al. v. Internet Archive, pending at the time of publication in the United States District Court for the Southern District of New York. https://assets.documentcloud.org/documents/6935704/4388-1.pdf ↑
Allen v. Cooper concerns a video producer whose work – ironically enough, undersea videography of the wreckage of Blackbeard’s pirate ship, the Queen Anne’s Revenge – was being used without compensation by the state of North Carolina. In a unanimous decision, the Supreme Court found that states enjoy sovereign immunity from copyright infringement suits brought under the Copyright Remedy Clarification Act of 1990. For more analysis, consult Howard M. Wasserman, “Opinion analysis: Congress cannot subject states to suit for pirating and plundering copyrighted material,” SCOTUSblog, March 23, 2020, https://www.scotusblog.com/2020/03/opinion-analysis-congress-cannot-subject-states-to-suit-for-pirating-and-plundering-copyrighted-material/ ↑
Madison refers here to two of the foundational pieces of copyright legislation in the United States. The Copyright Act of 1909 was the first overhaul of the nation’s copyright laws in decades, significant to media scholars in that it was the first to address “mechanical reproduction” in the context of recorded music. (Notably, it omitted copyright for motion pictures, which weren’t eligible for protection until the 1912 Townsend Amendment). The Copyright Act of 1976 superseded the 1909 Act and serves as the basic framework for contemporary copyright law in the United States. Section 107 of that law introduced the first codification of fair use and the “four factors” test. ↑