Nimmer on infringement 2.0

I was reminded once again of Mark Twain’s comment — “Only one thing is impossible for God: to find any sense in any copyright law on the planet” — as I listened to Professor David Nimmer deliver the annual Frey Lecture in Intellectual Property at the Duke Law School this week.  As the person now responsible for revising and updating the seminal treatise Nimmer on Copyright, which was begun by his father over fifty years ago, Professor Nimmer has the monumental task of trying to make U.S. copyright law and jurisprudence coherent by creating a framework that makes it all (or most of it) make sense.  Judging from his lecture, it is a task he embraces with grace, humor and aplomb.

The title of Nimmer’s lecture was “Infringement 2.0,” and his overall framework involved the changing role of copyright and infringement in the current environment, where copyright protects every scrap of original expression, whether the creator needs or wants that protection, and where copying and widespread distribution can be accomplished with the click of a mouse.  I want to try to outline several points from the lecture that seemed especially interesting to me (fully recognizing that I alone am responsible for any misrepresentations of Prof. Nimmer’s meaning).

Nimmer began with a more qualified definition of infringement that we tend to think about normally, in my opinion — the unauthorized wholesale copying of works of high authorship.  Not just unauthorized copying, but wholesale copying of works of high authorship.  This definition seems to suggest that courts should not spend time worrying about copyrights in family photos and other ephemera; Nimmer even raised the question of whether we should protect pornography, although he immediately recognized the First Amendment issues that such a stance would raise.

With this qualified definition of infringement as a starting place, Nimmer took us on a tour of some recent copyright rulings.  What I found really interesting was his suggestion that courts are using fair use, in the digital environment to approximate the qualified definition of infringement that he suggested.  Two examples will have to suffice.  In the case involving the anti-plagiarism software Turnitin (A.V. v. iParadigms), the Fourth Circuit rejected an infringement claim based on the copying of entire student papers that are submitted to the service and stored to be used for comparison against later submissions.  The Court reached this result by finding that Turnitin’s use was a fair use, and Nimmer suggested that this use did not meet his qualified definition of an infringement because it did not copy works of “high authorship.”  More significantly, perhaps, Nimmer also approved of the District Court decision in last year’s Google Books case that Google’s scanning of millions of titles was a fair use.  In his framework, Google’s scanning did not amount to “wholesale” copying; even though entire works are scanned in to the database, users see only “snippets,” and those very short excerpts serve important social purposes.

Whatever one may think of the individual cases, this was a fascinating approach.  The copyright law says that what is fair use is not, therefore, infringement, so it makes perfect sense, for one sufficiently learned and bold, to try to understand fair use jurisprudence by looking at the limits on infringement that are thus defined by implication.

Another topic Nimmer addressed at length was the doctrine of first sale, and he was highly critical of the Ninth Circuit decision in Vernor v. Autodesk, which found that Mr. Vernor committed copyright infringement when he resold legal copies of CAD DVDs in apparent violation of licensing terms.   The Ninth Circuit spent a lot of time examining those license terms, but Nimmer suggested that they were asking the wrong question.  The proper question here, he suggested, was not “was this a sale or a licensing transaction,” as the Court assumed, but rather “who was the legitimate owner of the material substrate that made up this copy?”  He pointed out that in both the foundational Supreme Court case about first sale, from 1908, and in last year’s decision in the Kirtsaeng case, the Court was dealing with legal copies where an attempt had been made, through a license, to restrict downstream resale of those copies.  In both cases the Supreme Court ignored those attempts at licensing and allowed the legitimate owner of the material copies to resell the works on whatever terms he could negotiate.  Based on those precedents, Nimmer suggested that the Ninth Circuit erred when it found that Vernor had infringed copyright with his resale, based on provisions in the purported license.

Another place where Nimmer suggested a radical way to rethink the copyright environment was on the international front.  He asserted that the foundational principles of international copyright agreements — the prohibition of formalities and so-called “national treatment” — simply do not make sense in the Internet age, where potential copyright infringements nearly always cross national borders, and copyright owners are often impossible to locate.  He suggested that this out-dated approach be replaced by something the U.N. and the W.I.P.O could do very well — a searchable, worldwide registry for copyright owners that Nimmer called a “panopticon.”  His idea is that if a copyright owner has registered his or her work in the panopticon, they would be entitled to significant remedies for any act of infringement that is found.  If they do not register, however, a action for infringement could only result in an award based on actual losses, not the much more substantial “statutory damages” that are often available.

This idea is nothing if not ambitious, but its foundations are commonsensical.  If copyright protection is going to be completely automatic, and no notice on individual works is required, it is unfair to insist that users must have authorization for their uses if the rights holders have done nothing at all to make their claims known or to facilitate asking for permission.  Lots of other property rights regimes have notice or registration rules (think of buying a house or a car) and those rules are in place to protect the owner.  Why not a similar regime for international copyright, with an incentive, in terms of potential recovery available, for participation?

Finally, I want to end with Nimmer’s prediction about the prospect of a new copyright act in the United States.  It seemed that he does believe that Congress will seriously undertake such a thoroughgoing revision of the law, and he suggested a betting pool on when the new copyright act would pass.  For himself, he wanted to reserve a date in May of 2029.  So we have that to look forward to.