You CAN Copyright a Number. But Not As Such.

Back in February, a hacker named Arnezami made public (on the Doom9 forums) the HD-DVD Processing Key. And the Industry-with-an-evil-capital-I is very upset over that.

Basically, the HD-DVD Processing Key is a special number, necessary (but not sufficient) for the decryption and watching of HD-DVD's on your home Linux box. Which seems fairly innocuous - after all, once I buy a disk, by rights I should be able to watch it on any screen in my house. I use the phrase "by rights" on purpose; the question is clearly covered by the first sale doctrine.

But note, however, that once it's been decrypted, it can not only be watched but pulled apart, copied, redistributed, uploaded, downloaded, sideloaded, whatever. So you can understand why the publication of the information might upset players in an industry with a business model built on, you know, not allowing that to happen so much. Even if the information in question is just a very big number.

Now, per Slashdot, which points to Rudd-O, which used to point to Strange Action at a Distance, but that blog's been squashed... the Evil Industry is attempting to stomp out the information. Apparently, (quoting Rudd-O) "the movie industry is threatening Spooky Action at a Distance for publishing that number, specifically with copyright infringement." According to the quote that Rudd-O pulled off of Spooky Action, the threats are premised on the DMCA.

Slashdot, Rudd-O, Spooky Action, and possibly others are all speaking in terms of the DMCA copyright provisions; There is already some hue and cry to the effect that you can't copyright a number! (Even a number with letters in it, as when converted to hex.)

Now, first and foremost, it's very likely that the threat was not based on the copyright provisions in the DMCA but rather on the anti-circumvention provisions. And that should be the end of this discussion.

But it's worth taking a step back for a minute, and addressing the question of copyrighting a number. Because you actually CAN copyright a number. Just not if you're trying to protect it qua number.

That is, if I figure out some awesome new method for figuring out the next huge Mersenne prime, and then write that up in an article, then under copyright law: I can NOT protect the method I describe; I can protect the article in its particular expression, unless the method is only describable in a limited number of ways, in which case I can't; and I can NOT protect the number itself. Anyone else can come along and point out that the Nth Mersenne prime is 12457...whatever, and I can't stop them. And if they want to represent that number in Hex, it becomes a string of numbers and letters, and I still can't stop them.

HOWEVER. I can protect a number when it's not a number. I remember years ago someone wrote a poem that was made up of fictional personalized license plates. Which would look just like a long hex number, except it's not a number qua number. Or the line from Shakespeare: "2B, R not 2B" On its own, probably too short for copyright protection, but not by dint of its being essentially a string of letters.

I would even claim that if someone wrote an abstract poem, consisting of nothing but a string of numbers and letters that would sound "right" when read aloud in sequence, that would be protected under copyright.

On a more technical level, every document saved on your computer is, in a very real sense, nothing more than a number. It's stored as a series of bits and bytes which the computer generally translates as words or images; but there's nothing that obligates computers to do so. Just for fun, take a small image (it has to be small so as not to overwhelm your computer) and open it in a text editor (Notepad or the not-Windows equivalent). It's a bunch of gobbledygook, but it's something.

(Just a brief nostalgia moment: I remember the heady days of Usenet, when big files were broken up and posted as long, apparently meaningless text files full of hex codes that you'd concatenate and then rename to have your image or music or document or whatever.)

The point is, you can protect a number, in some circumstances. In the instant case, the number is probably being used qua number - it's the answer to a math problem and so is probably not protected under copyright. But then, I reiterate, copyright probably isn't the issue here; the threats are probably being made under the DMCA anti-circumvention provisions.

As importantly, though, what you also can't do to a nubmer is to make it go away by wishing it so. Back in the Summer of 1995, when I worked for the EFF, I helped out (in a one-L summer intern kind of way) with the Bernstein crypto export case.

In that case, I recall, the algorithm in question could, with some rejiggering, be represented as a string of numbers a few lines long. A few times - most often in the spirit of sincere legal analysis and only sometimes in the spirit of stick-it-to-the-man humor - the question would come up as to what the law would (and should) be if, instead of seeking to "export" the source code and an academic paper about the algorithm in question someone had just put it on a t-shirt and flown out of the country wearing it.

Of course, those conversations took place back in the day when if you wanted something a little more professional than using a Sharpie on your Hanes, there were some fixed costs involved. Now we have cafepress. Plus ca change, plus c'est le meme chose. Some young clever has even registered the number as a domain name, and has a nascent blog there.

So, as a copyright question - not protected. And as a practical matter - not protectable any more. I didn't go into the trade secret question, but that's also not going to work to keep the number out of the public's grubby mitts.; Arnezami apparently figured out the code by looking at disks, not by gaining improper access to guarded information.

My first instinct under the anticircumvention provisions is that release and propagation of the number is problematic, but as I write these words, I'm less and less convinced. I'll have to think about it some more... maybe even post a follow-up. It'll come down to the question of whether or not the Processing Key is an "access control" as used by the statute.

And looking at the broader question of copyrighting numbers...

You can copyright a number. Just not this one.

--Ben D. Manevitz

Update: Lots of good coverage out there. Only one link to me, but them's the wages of sin. Or in this case the wages of toiling in obscurity. In any event, I found particularly heartening the coverage at EFF Deep Links, that makes clear that it is, in fact, an anti-circumvention claim, and not a copyright one.

Also - tagging is a very cool and excellent innovation in the blog world. For those of you who don't check the tags on posts you read, it might be worthwhile to check the tags on this one at least. I got it from Slashdot, and I'm guessing I'm not the only one.

Ear-Tugging Actually Means "Call The Lawyers."

So it seems Carol Burnett is suing the necessary parties behind Family Guy because they appropriated her cartoon "charwoman" character and for disparaging her personally, etc. (Hat tip to Ron Coleman, here.)

It takes little imagination to anticipate that the studio will claim parody as a defense, at least in part. But it's clear that the studio still has its PR people doing the talking, instead of its lawyers, because the reported statement by the studio does a nice job of making the lawyers' jobs much harder: "'Family Guy,' like the 'Carol Burnett Show,' is famous for its pop culture parodies and satirical jabs at celebrities."

You can just hear the lawyers groaning. If it's a pop culture parody, then there's an arguable defense; if it's a satirical jab at a celebrity, then you've got a problem.

That distinction, made by courts and practitioners alike and premised on the Campbell v. Acuff-Rose decision, is actually a pretty fair one, to a point. The reasoning starts with the eminently reasonable assertion that if I'm going to make fun of (comment on, disparage, analyze, play on, whatever) Work X, I need to be able to "conjure up" Work X sufficiently. The point of a joke is that it builds on and then subverts expectations; in the case of parody the expectations in question is the original work.

Once I move away from commenting on the work itself, though, that rationale breaks down. If I want to make fun of {anything NOT Work X}, I should be able to do so without calling on someone else's copyright-protected work; I certainly can't say that I need Work X.

It's not uncommon (and there's an example of litotes right there) to see accused infringers raise the parody defense - more often than not inappropriately - and it drives me up the wall. Yiddish mit Dick and Jane and the JibJab video are two examples that spring to mind, but there are myriad others. (And quite honestly, I think the Supremes decision concerning Big Hairy Woman was a stretch, as well.)

The way to think of it is to ask if there's another work besides the allegedly infringED work that could serve the purposes of the allegedly infringING work just as well. So if I wanted to point out some inherent flaw or hypocrisy in the Dick and Jane books I would have to use the Dick and Jane characters, scenarios, cadence -- I would have to evoke Dick and Jane. But if I want to make a point about teaching Yiddish in little-kid-book terms, then my ends would be served as well by evoking Dick and Jane as by evoking Thomas the Tank Engine or Poky Little Puppy.

Similarly, This Land is Your Land speaks to a certain unity of Americans across social or cultural divides, and set the JibJab animation up nicely since it addressed a certain animosity and divisiveness across social/cultural divides, while at the same time making a more subtle point about citizens being united in their disdain for the politicians in question. The song was a great choice, but certainly not the only choice possible to serve that purpose.

So too, in the instant case. You have to ask, "what's the joke?" If the point is that Carol Burnett presents herself to the world as particularly moral or upright, and the gag is directed to undermining that, then you've got a parody. Family Guy couldn't make that point about Carol Burnett unless they evoked Carol Burnett. (A little back-story: according to The Smoking Gun the Family Guy had asked to use Carol Burnett's theme song in an episode, and she refused.)

On the other hand, if Family Guy was just making a point about... well, it's hard to think of it out of context. If Family Guy was making a point about how celebrities of the past had fallen, under this analysis then that's satire and that's not protected. Sort of.

"Sort of" because of footnote 14 in Campbell v. Acuff-Rose, which is so exquisite as to merit quotation in full:

A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody's critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required.

At one level, the footnote is nicely in line with the rest of the analysis and contemporary thinking on Fair Use, in which the fourth statutory factor is considered first among equals. The Court here saying, essentially, that where there's less market substitution the requirements are more relaxed, and when there's more risk of market substitution it is "more incumbent on one claiming fair use to establish . . . the parody's critical relationship to the original."

(Sidebar: Some argue that the Campbell decision steps back from seeing factor four as first-among-equals. I don't read the opinion -- especially footnote 14 -- that way, and in any case at least one Circuit has held that factor four is still primary, and that's the way Professor Hughes teaches it.)

Read closely, however, footnote 14 opens the door to satire being fair use. "[W]hen there is little or no risk of market substitution . . . looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required." (emphasis mine).

I call this exquisite because there's a huge problem with the parody/satire distinction and how parodic fair use doctrine has evolved. At first blush, the parody/satire distinction makes sense, and seems to leave plenty of room for the free speech that is the raison d'etre of Fair Use in the first place.

But on closer analysis it becomes clear that parody is far too narrow a defense. Looking at each case individually, the parody/satire distinction works. That is to say, the 'real' Dick and Jane people claim (rightly) that the Yiddish with Dick and Jane book isn't a parody of Dick and Jane, but a satire or social commentary (or just a joke or other expression) that leverages Dick and Jane to make a broader point, and they can point to Poky Little Puppy and Thomas the Tank Engine to make their case, claiming that those would serve just as well.

Similarly, the Guthrie estate could make the same claims about the JibJab video, pointing to some other song that approximates the underlying message of This Land is Your Land. And Carol Burnett could make the same argument, as well. If the message is that celebrities of the past have been brought low. . . I'm sure somewhere there's a relevant animation of Gallagher out there somewhere.

The problem arises when the situation is looked at globally. Because Dick and Jane points to Poky Little Puppy, but Poky Little Puppy is protected by copyright, too. And so is Thomas, and so are most songs that would serve instead of This Land, and so is that Gallagher animation, and so on.

We live in an incredibly referential world, where a huge chunk of our lexicon points to and leverages the expression of others, the vast majority of which is legally protected (by copyright and/or trademark). There's an ongoing conversation threading its way through our culture, and it's becoming more and more difficult to participate meaningfully in that conversation without stepping a little bit over the lines that have apparently been drawn.

How many times, for instance, have you heard or read a poem that takes a mostly octameter acatalectic trochaic poem -- which describes adequately for these purposes The Raven by Poe -- and applies it to some light subject such as cats or hardware malfunctions (or even a not-so-light subject like bombs in Italy)?

Now, okay. The Raven is in the public domain, but pretend for a minute that it was still protected. The linked poems could at least arguably infringe, or at least come close to infringing, and a more comprehensive search could probably turn up so-called parodies that hew more to the line set by The Raven than these do. As well, those poems are emphatically NOT parodies of Poe's poem. They say nothing about, and are not intended to say anything about Poe's poems or Poe himself.

What they do, though, is use the cultural currency that inheres in Poe's poem - the fact that it's so well known, the fact that it's so dark and so effective at communicating that darkness. The poems use that currency as a launching point for their own contributions to the hum of creativity, taking something light and treating it with too much seriousness, or (in the case of that last one) taking something serious and recasting it in terms more readily available to a reader.

It's those contributions that are being stifled under the current proprietarization (there's probably a better word for that) of culture and expression. When we think of the phrase "fair use" without out lawyers' hats on, we think that kind of use should be allowed, because it's fair. Fair to the creator, because it's only taking that which they already sent out into the world, and fair to the world because it allows us to have richer, more subtle, more complex interactions within it. When we put our lawyers' hats back on, though, that expression is disallowed.

Fair use is supposed to be the safety valve for exactly that sort of problem, but the way fair use has been limited -- particularly by the current understanding in practice of parody/satire -- is limiting the doctrine's ability to serve that purpose. Footnote 14 begins to address that issue, by opening the door for "satire," for which I want to read {NOT parody}, where the economic harm to the original creator is minimal.

I don't think the Caroll Burnett - Family Guy case will take us there, but you never know. In any event it will be interesting to see where and how the doctrine develops, and if Footnote 14 is ever given its due.

--Ben D. Manevitz

When Copyright is like Trademark is like Moral Rights

Last week I spent a nice evening at the Arts and Entertainment Law Journal's 25th Anniversary party. My invitation was by dint of my having had an article published therein.

At some point during the festivities the current editors of the journal approached me with a waiver allowing them to put the article (full text) online. (No link, because I don't think the site's up yet.) I had already granted the necessary permissions by email, but they - wisely in my opinion - wanted a signed document to the effect.

I signed off with only a cursory glance at the (admittedly short) document to make sure nothing was being made exclusive. And I joked to my neighbor that as an IP lawyer, signing something so blithely should have sent up some red flags.

But further discussion brought out an interesting point. With regard to "regular" writings, the value the Constitution and the copyright laws protect is essentially a sort of traditional sales value made intangible. That is, I have something, you want it, and I want to get paid for it; in a situation where you're unwilling to pay, I'd be fine with you not being able to get it.

With regard to legal scholarship (and a few other contexts), however, I thought it interesting that the model is flipped. I have something, and I'd love it if you'd read it. Really, please. And if you think it's smart or interesting or worthwhile, pass it on!

The value to the author inheres in the connection of the author's name to the article and the ideas in it. An author doesn't expect you to get paid for the right to read the article, or even to riff on the article. But he or she would like to get paid for being the person who thought those thoughts and expressed them, presumably because it indicates an ability to think other, similar thoughts and express them similarly well.

As long as properly cited and not otherwise passed off as another's, an author generally won't be husbanding the six exclusive rights so exclusively.

What is important to an author, though, is the source-identification aspect of the article and its use. That is, I really want the article connected to me and my name/identity.

And in that sense, it's neat how copyright concerns fold into trademark concerns; particularly the traditional (non-dilution) sorts of trademark concerns.

Taking that a step further, though, I thought it was cool how that sort of copyright/trademark overlap led directly to a set of concerns that look very much like moral rights.

An author's interest in having his or her name identified as the source of an article, and no one else's incorrectly identified tracks nicely to Attribution/Paternity; the author's interest in having that work represented in such a way as to accurately reflect its original meaning tracks similarly to Integrity. (See, Berne article 6bis.)

I thought it was interesting to see the flow as copyright implicated trademark implicated moral rights.

--Ben D. Manevitz

Fair Use and Fee Shifting

Well, it's been a pretty busy week for Mr. IPNotions. Not so much online, but I've been scampering around IRL, and now I'm gonna talk about (some) of it.

On Wednesday, I went to the Modest Proposals 3.0 conference at Cardozo. There were five really interesting proposals made, but I want to focus on Mike Carroll's "Fixing Fair Use" proposal.

Unfairly distilling a significant paper, a four-page proposed statute, and an hour's worth of speech and question-and-answer to a three-line summary, the Professor Carroll's proposal comes down to setting up a three-judge panel to adjudicate fair use questions ex-ante the putative use, resulting in narrowly binding but published decisions. The decision is formally reviewable by Circuit courts, and de facto reviewable by District courts.

The proposal was evocative of a presentation Professor Nimmer made last year (when I was still in flagrante LL.M.) that he called FUDGSICLE. I don't remember how the acronym unpacked, but his idea (again, unfairly distilled) was to set up voluntary, non-binding arbitration on the question of fair use ex-ante the putative use, resulting in decisions probative to any later inquiry into good-faith or willfulness. As I recall, in fact, Nimmer's proposal was that (for instance) if the arbitration panel deemed a particular use fair, then the copyright holder would be barred in later litigation from claiming bad faith or willfulness.

Carroll and Nimmer are both addressing a very real problem with fair use. Or rather two connected problems: the lack of certainty ex-ante the use (multiplied in any risk analysis by the potential for large statutory damages), and the high cost of defending against a charge of copyright infringement. And they both address the problem in a similar way, to wit, by introducing an element of certainty ex-ante (at a reduced cost) and relying on copyright holders to act in reasonable self-interest by only bringing suit in the very close cases, where the holder has a good chance of flipping the previous determination.

The issue I have involves the tendency of copyright holders - especially large IP-based businesses - to have an almost trademark-like protect-or-lose overzealousness when it comes to enforcing copyright. Neither of these ex-ante proposals prevents the copyright holder from holding the threat of an expensive suit in court over the heads of the risk-averse and/or cost-averse putative user. Disney or Viacom or someone will send a letter that comes just short of actually threatening suit (avoiding declaratory judgment actions) and that's usually more than enough to scare most users off. If you've already included the work in the new work, then go back and edit or just don't publish; if you haven't, then you find another way. In either case the fair use exception/limitation/defense/whatever is basically eliminated.

Setting up a cheap system for ex-ante determinations without making that system mandatory does little to eliminate the effectiveness of that kind of threat, particularly because the threat is leveraging not the possible loss attendant to a failure on the merits, but the certain loss attendant to defending the case - attorney's fees.

So what needs to be done is that these ex-ante determination processes need to be given teeth with regard to attorney's fees, so as to neutralize that part of the threat.

Right now, under Section 505, the court has discretion to award a prevailing party fees. In practice, it doesn't happen that often, and that's due in large part to the overwhelming reluctance to deviate from the US rule in US courts. That's fair, usually, but in the context of copyright cases - and the different ways they generally come to the court (or should come to the court) - it would be worthwhile to maybe skew that a little.

So, for instance, under Professor Carroll's proposal, the initiation of the fair-use adjudication process could trigger an automatic fee shifting provision in the event the matter goes to District Court, such that the party that initiates the inquiry in District Court (short-circuiting the Carroll adjudication process) would be liable for some or all of the attorney's fees of the other side in defending that case, to the extent that the defense had to do with fair use.

Under Professor Nimmer's idea, a party who acts in a manner to instigate suit after a a determination by the arbitration panel could be held for the attorney's fees of the other party if they prevail.

In either case, the ex-ante determination of fair use would then have the weight sufficient to defeat the threat posed by the cost of defense. Let's just put the metaphor in the blender: It would turn the Sword of Damocles into a shield. But not, you know, a shield hanging over your head...

--Ben D. Manevitz